9780130909695

Latest Trends in Administrative Law! bull; "Real world" Procedural Aspects Includes bull; Rulemaking Informal Action Agency Discretion Formal Adjudication Legal Analysis Civil Liability

Daniel E. Hall is associate professor of criminal justice and legal studies at the University of Central Florida.

Preface

xv

Introduction

1

(12)

Administrative Law Defined

1

(1)

Sources of Administrative Law

2

(1)

Constitution

2

(1)

Enabling Laws

2

(1)

Administrative Procedure Act

2

(1)

Executive Orders

2

(1)

Administrative Agencies

3

(7)

The Need for Agencies

5

(1)

Types of Agencies

5

(1)

The History and Size of the Bureaucracy

6

(3)

The Impact of Agencies on Daily Life

9

(1)

Conclusion

10

(3)

Bureaucracy and Democracy

13

(18)

Democracy and Accountability

13

(7)

Federalism

13

(3)

United States v. Morrison

16

(2)

Separation of Powers

18

(2)

Theme

20

(1)

Controlling The Bureaucracy

20

(8)

Presidential Control

20

(4)

Clinton v. City of New York

24

Congressional Control

23

(3)

INS v. Chadha

26

Judicial Control

25

(3)

Conclusion

28

(3)

Agency Discretion

31

(18)

Introduction

31

(1)

Detriments and Benefits of Discretion

32

(1)

Limits on Agency Discretion

33

(1)

Examples of Agency Discretion

34

(12)

Prosecutorial Discretion

34

(1)

General Motors v. Federal Energy Regulatory Commission

35

(1)

Rulemaking and Policy Discretion

36

(1)

Chevron v. Natural Resources Defense Council

37

(1)

Gonzalez v. Reno

38

Claims and Applications Decisions

36

(1)

Protective Action

36

(7)

Brock v. Roadway Express

43

Tests and Inspections Generally

42

(2)

Advisory Opinions and Declaratory Orders

44

(1)

Mediation and Arbitration

45

(1)

Other Action

45

(1)

Conclusion

46

(3)

The Requirement of Fairness

49

(28)

Due Process in General

50

(1)

Protected Interests

51

(3)

Life

51

(1)

Liberty

51

(1)

Property

51

(1)

Entitlements

52

(1)

Governmental Employment

52

(1)

Perry v. Sindermann

53

(1)

Licenses

54

(1)

Utilities

54

(1)

Education

54

(1)

Goss v. Lopez

55

Cost-Benefit Analysis

54

(2)

Notice

56

(1)

Hearing

57

(11)

Where

57

(1)

What

57

(1)

When

58

(1)

Goldberg v. Kelly

59

(3)

Gilbert v. Homar

62

(4)

Ingraham v. Wright

66

(1)

Dixon v. Love

67

Counsel

65

(3)

Equal Protection

68

(4)

FSK Drug Corp. v. Perales

71

(1)

Conclusion

72

(5)

Delegation

77

(26)

What is Delegation?

77

(1)

Delegating Legislative Authority

78

(6)

United States v. Gramaud

79

(1)

Panama Refining v. Ryan

80

(4)

The Nondelegation Doctrine Today

84

(1)

Touby v. United States

86

(4)

South Dakota v. Department of Interior

90

Delegating Judicial Authority

85

(9)

Foley v. Condominium Association

95

Delegating to Private Agencies

94

(4)

Delegation And Criminal Law

98

(1)

Arrest And Delegation

98

(1)

Conclusion

99

(4)

Agency Rulemaking

103

(24)

In General

103

(5)

Rulemaking and Adjudication Defined

108

(1)

The Volume of Rules

109

(1)

Types of Rules

110

(1)

Rulemaking Procedure

110

(9)

Formal Relumaking

111

(1)

United States v. Florida East Coast R.R.

112

(1)

Informal Rulemaking

113

(2)

Exempted Rulemaking

115

(1)

Hybrid Rulemaking

115

(2)

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council

117

(1)

Negotiated Rulemaking

118

(1)

Advisory Committees

118

(1)

Ratemaking

119

(1)

Taxation and Revenues

119

(3)

Controlling Rulemaking Authority

122

(1)

FDA v. Brown and Williamson

120

(3)

Conclusion

123

(4)

Agency Investigations and Information Collection

127

(34)

Acquiring Information

127

(1)

Recordkeeping and Reporting

128

(4)

United States v. Morton Salt Co.

129

(1)

Fifth Amendment Aspects

130

(1)

Immunity

131

(1)

Inspections, Tests, and Searches

132

(20)

Fourth Amendement Aspects

132

(3)

Camera v. Municipal Court

135

Drug, Alcohol, and AIDS Testing

134

(4)

Skinner v. Railway Labour Executive Ass'n

138

(10)

Vernonia School District v. Action

148

(3)

Closely Regulated Businesses

151

(2)

Donovan v. Dewey

153

Subpoenas

152

(5)

Enforcement of Subpoenas

155

(2)

Parallel Proceedings

157

(1)

Paperwork Reduction Act

157

(1)

Conclusion

158

(3)

Agency Adjudications

161

(36)

In General

162

(1)

Notice

162

(1)

Parties and Participation

163

(6)

Parties in Interest and Intervention

163

(3)

Ashbacker Radio Corp. v. Federal Communications Commission

166

Other Methods of Participation

165

(4)

Discovery

169

(1)

Prehearing Conference

170

(1)

Prehearing Settlement/ADR

170

(1)

The Hearing

170

(24)

Evidence Admissibility

171

(1)

Prejudicial Error Rule

172

(1)

Legal Residuum Rule

172

(1)

Richardson v. Perales

173

Privileged and Illegal Evidence

172

(4)

INS v. Lopez-Mendoza

176

Official Notice

175

(3)

Burdens

178

(1)

Standards

178

(1)

Steadman v. United States

179

(1)

Woodby v. INS

180

(1)

Administrative Law Judges

180

(1)

Independence

181

(2)

Stephens v. Merit Systems Protection Board

183

Interest, Bias, and Prejudgment

182

(3)

Gibson v. Berryhill

185

(1)

Separation and Combination of Functions

186

(1)

Counsel and Attorney Fees

187

(1)

The Decision

188

(1)

Institutional Decision

188

(1)

Final, Initial, and Recommended Decisions

188

(1)

Findings in Formal Adjudications

189

(1)

Findings in Informal Adjudications

190

(1)

The Right to a Jury in Administrative Proceedings

190

(2)

Observing and Administrative Hearing

192

(2)

License Cases

194

(1)

Conclusion

194

(3)

Accountability Through Reviewability

197

(42)

In General

198

(1)

Sources of Review Authority

198

(2)

Satutory

198

(2)

Nonstatutory

200

(1)

Agency Discretion

200

(4)

Lincoln v. Vigil

202

(3)

Heckler v. Chaney

205

Standing

204

(12)

Association of Data Processing Service Orgs. v. Camp

207

(1)

Citizen and Taxpayer

208

(2)

Federal Election Commission v. Akins

210

Qui Tam Actions

209

(4)

Environmental Cases

213

(1)

Sierra Club v. Morton

214

(1)

Competitor

215

(1)

Consumer

216

(1)

Timing of Review

216

(5)

Primary Jurisdiction

216

(1)

Exhaustion of Administrative Remedies

217

(8)

Mckart v. United States

225

Ripeness

218

(3)

Scope and Standards of Review

221

(10)

De Novo

221

(2)

Substantial Evidence

223

(3)

Arbitrary, Capricious, Abuse of Discretion

226

(1)

Issues of Law

226

(3)

Issues of Fact

229

(1)

Mixed Questions of Law and Fact

230

(1)

Issues of Discretion

230

(1)

Failure to Raise Issues

230

Motor Vehicle Manufacturers Ass'n. v. State Farm Mutual

227

(4)

Alternative Rationale

231

(1)

Review of Rules

231

(1)

Common Law Doctrines

232

(4)

Res Judicata

232

(1)

Collateral Estoppel

233

(1)

Application to the Government

233

(1)

Equitable Estoppel

234

(2)

Schweiker v. Hansen

236

Laches

235

(1)

Conclusion

236

(3)

Accountability through Accessibility

239

(30)

Accountability Through Accessibility

240

(1)

Freedom of Information Act

240

(15)

Publication Requirement

241

(1)

Failure to Publish

241

(1)

Inspection and Copying Requirement

242

(1)

Indexing

242

(1)

Failure to Comply

242

(1)

Production upon Request Requirement

242

(1)

Request Procedure

243

(1)

What Records?

244

(1)

FOIA as Discovery

245

(2)

North v. Walsh

247

Fees and Waivers

245

(1)

Exemptions

245

(4)

National Defense and Foreign Policy

249

(1)

Agency Personnel Matters

249

(1)

Other Statutes

249

(1)

Trade Secrets and Financial Information

250

(1)

Agency Memoranda

250

(1)

Personnel, Medical, and Files Containing Private Information

250

(2)

Department of Defense v. Federal Labor Relations Authority

252

Law Enforcement Records

251

(1)

Financial Institution Information

251

(1)

Geological Information

251

(3)

Judicial Review and Remedies

254

(1)

Congressional Monitoring

255

(1)

Privacy Act

255

(7)

Collection of Information

256

(1)

Maintaining Records, Publication, and Rules

257

(1)

Disclosure of Records

257

(1)

Individual Access

258

(1)

Amending Records

258

(1)

Judicial Review and Remedies

258

(1)

Civil Actions

258

(3)

Ray v. Turner

261

Criminal Penalties

260

(1)

Congressional Monitoring

261

(1)

Government in the Sunshine Act

262

(1)

Exemptions

262

(1)

Judicial Review and Remedies

263

(1)

Congressional Monitoring

263

(1)

Federal Advisory Committee Act

263

(1)

Trade Secrets Act

264

(1)

Privatization and the Public's Right to Know

264

(1)

Forsham v. Harris

265

Conclusion

264

(5)

Accountability Through Liability

269

(34)

Introduction

270

(1)

Sovereign Immunity

270

(1)

Federal Tort Claims Act and Its Exceptions

271

(5)

Executive Functions

272

(1)

Intentional Torts

272

(1)

Discretionary Function Doctrine

272

(1)

Bowers v. City of Chattanooga

273

(2)

Scope of Employment

275

(1)

Public Duty Doctrine

275

(2)

Kirk v. City of Shawnee

277

Damages Limitations

276

(1)

Section 1983 Actions

276

(21)

Plaintiffs and Defendants

281

(1)

Monell v. Department of Social Services

282

(1)

Deprivation and Color of Law

283

(2)

County of Sacramento v. Lewis

285

Remedies, Fees, and Costs

284

(3)

Smith v. Wade

287

(1)

Procedure

288

(3)

Immunities

291

(1)

Absolute and Qualified

291

(1)

Harlow v. Fitzerald

292

(1)

Functional Approach

292

(1)

Judges

293

(1)

Prosecutors

293

(1)

Law Enforcement Officers

294

(1)

Witnesses and Jurors

294

(1)

Public Defenders

294

(1)

Legislators

295

(1)

Procedure and Immunity Claims

295

(2)

Constitutional Claims

297

(1)

Bivens v. Six Unknown Agents

296

(1)

Common Law Torts and Official Immunity

297

(3)

Strothman v. Gefreh

298

(2)

Tucker Act

300

(1)

Conclusion

300

(3)

Researching Administrative Law Issues

303

(12)

Introduction

303

(1)

The Scope of Administrative Law

304

(1)

Beginning the Search

304

(1)

Rules Created by the Administrative Agency

304

(1)

Finding Agency Decisions

305

(1)

Searching the Federal Register

305

(1)

Searching the CFR

306

(1)

Computerized Sources for Administrative Law

306

(9)

APPENDIX A: Constitution of the United States

315

(18)

APPENDIX B: Administrative Procedure Act Excerpts

333

(32)

APPENDIX C: Selected Executive Orders

365

(16)

Index

381

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ADMINISTRATIVE LAW: BUREAUCRACY IN DEMOCRACY No legal subject is as timely and important as administrative law. Today, nearly every person will have contact with several government agencies in a year's time while never making contact with an elected representative. Even more, individuals, especially those who own or operate businesses, are more heavily regulated by administrative agencies than they are by their "political" representatives. The Framers of the United States Constitution intended to create a self-governing republic. But the Framers lived in a simpler world, one without international travel, the Internet, and businesses as large and powerful as nations. Governments have turned to large bureaucratic agencies to meet the demands of the increasingly large and complex nation. The challenge is to remember what the Framers feared and to remain steadfast in preserving what they designed, even in the wake of social and technological change. This text is devoted to the idea that government is to remain accountable, and thereby tyranny can be prevented. The simple division of power into federal and state and into three branches is no longer realistic. But the principle is the right one, and with some molding it can continue to be an effective structural constraint on agency authority. The reader will learn in this text that most constitutional rules and doctrines that apply to administrative law are intended to keep government accountable. Even more, when distilled, many of them are founded upon separations theory. There are three goals in this text: to examine administrative law in the context of accountability and the prevention of abuse; to assist students in critical thinking and case analysis by including case excerpts; to provide students with some practical knowledge of administrative agencies and the laws that govern their behavior. TEXT FEATURES Thewriting styleand language of this book are intended for the undergraduate student in law, justice, or political science or the graduate student in non-law fields. When used, legalese is explained. As mentioned, I have includedcase excerptsthroughout the text. Cases were selected on the basis of the following criteria: importance and impact, currentness, clarity of writing, and ability to be edited successfully. The book has been written so that the text can stand alone. The cases are used to illustrate or more fully develop ideas that are discussed in the text. In order to keep the cases an appropriate length, considerable text .has been excised from most of the cases. The guiding principle in the editing process was to reduce the size of each case without jeopardizing its legal and educative integrity. Some internal citations have been retained, others removed. In some instances, especially a long string of cities, the removal of a citation is denoted with an ellipsis. In others, the citation has been removed without notation. Manyillustrations, graphs, and figuresare used to assist the students in conceptualizing the subjects discussed. These include conceptual mapping diagrams as well as data charts. Sidebarson topics related to the discussion in the text have been included to increase student interest in the subject. Legal termsare in boldface in the text and defined in the margins. At the close of each chapter, a legal Web site is featured inLawlinks.In addition, a list of Web sites can be found in Chapter 12. Review questions and review problemscan be found at the close of each chapter. Review questions are designed to test the reader's retention of the content of the chapter. The review problems are designed to test the reader's ability to apply the concepts of the chapter to a set of facts or to engage in critical analysis. Appendicesinclude excerpts from the federal Constitution, the Admi

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Administrative Law : Bureaucracy in a Democracy

Administrative Law : Bureaucracy in a Democracy

0130909696

Summary

Author Biography

Table of Contents

Supplemental Materials

Excerpts