Admin Outline

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					DEFINITIONS:
  1. ADMINISTRATIVE LAW
        a. The branch of law that governs the organization and functioning of
           government agencies, and how their actions are reviewed by the court
        b. Federal administrative law governs agencies
        c. Each state has its own version of administrative law governing its own
           state agencies
  2. APA
        a. The set of laws in each state and the federal government that specifies how
           the agencies in that jurisdiction carry out basic functions such as rule
           making, adjudications, and how citizens can petition the agencies
        b. This only applies if the legislature has not made special rules for a given
           agency
        c. Non-agencies under the APA follow administrative law principles
  3. THE AGENCY SYSTEM
        a. Role of the judge – to make sure that the case is presented properly and
           that the result is just; he may ask questions and review the evidence and
           can help an attorney to protect the client
  4. ALJ
        a. Fact-finder in the admin. law system
        b. Usually act as inquisitorial judges and try to assure that the case is fairly
           presented and decided
        c. They don’t make final decisions but make recommended rulings to the
           agency
  5. ROLES OF AGENCIES
        a. Carry out government policy
        b. Agency’s enabling statute
                i. Establishes the agency’s powers and duties; organization; funding;
                   standards for judicial review of the agency’s actions
        c. State agencies are established by the state constitution or later
           constitutional amendments
  6. DELEGATION OF POWER TO THE AGENCY
        a. Legislature can give the agency broad powers with little specific direction;
           or very specific direction powers and duties; or powers that are triggered
           by specific events
  7. FEDERAL AGENCIES
        a. All enforcement agencies are in the executive branch
  8. STATE AGENCIES
        a. Have several elected executives that control agencies – the governor
           controls most agencies; the attorney general controls the legal office
  9. INDEPENDENT AGENCIES
        a. Run by boards or commissions – members have fixed terms and can only
           be removed for bad conduct – the terms are staggered
        b. Federal
                i. Appointed by the President – ex.: SEC
        c. State
                i. Can be appointed by the governor or other elected officials
               ii. Can be statewide or local
10. CHANGING AGENCY POLICY
      a. Executive branch control
                i. Replace the agency director; use executive orders to direct agency
                   policy
      b. Legislature
                i. Change the enabling law; increase or eliminate the funding for
                   agency functions
      c. Citizens
                i. Petition the agency to change and participate in public hearings;
                   lobby the executive and the legislature; elect different politicians in
                   the executive and the legislature
11. FEDERAL, STATE, AND LOCAL RELATIONS
      a. Federal control of state and local government
                i. Congress can preempt state law to assure uniform policy; it can
                   make state funding contingent on adopting certain policies
      b. States
                i. Legislature determines the allocation of powers; some state health
                   depts. control the local departments; some local depts. Are
                   independent
12. ADMINISTRATIVE RULES
      a. Legislature can delegate the power to make rules to the agency; rules
           cannot exceed the authority in the agency’s enabling legislation or the
           Constitution
      b. Properly promulgated rules have the same effect as statutes – must give
           the public notice of the proposed rules and must allow and consider public
           comment
13. PUBLIC PARTICIPATION IN RULEMAKING
      a. Proposed rules must be published for public comment
      b. Agency must take written comments
      c. Some states require public hearings if requested by enough people
      d. Federal agencies sometimes use public hearings on important policy issues
      e. Agency must review and consider the comments
14. ADJUDICATION V. RULE
      a. Rules apply to everyone in the affected class
      b. Adjudications decide questions in individual cases and only bind those
           parties
      c. Parties to an adjudication are entitled to be heard – adjudications may
           include oral hearings – some are done on written documents only
15. ALJs v. JUDGES
      a. ALJs may use their own knowledge of the subject; Judges can be
           disqualified if they know about the subject
      b. ALJS often know the parties and may have worked on the case; Judges in
           courts can’t know the case or the parties
16. ADJUDICATIONS V. JUDICIAL OPINIONS
       a. ALJs are primarily fact finders; they often follow AG opinions;
       b. Judges decide legal questions on their own
       c. ALJ decisions are recommendations to the agency and may be changed by
          the agency
       d. An adjudication is not binding in other cases; court decisions can be
          binding on lower courts
17. PERMITS AND LICENSES
       a. Have to show you have met the standards set by law or regulation before
          you get the license or permit – standards must be clear and all applicants
          must be treated equally
       b. Conditioned on accepting enforcement standards
                i. You agree to be bound by the administrative rules; you must allow
                   inspections during business hours; licenses and permits may be
                   revoked without a court order
18. INSPECTIONS
       a. Inspector determines the facts through the inspection
       b. Defendant may present his case during the inspection
       c. Inspector must provide a written record
       d. Local government often allows appeals to the city council
       e. Courts will defer to inspector’s findings if the case is appealed to the
          courts
19. ADMINISTRATIVE SEARCHES
       a. License and permit holders may be inspected without a warrant – other
          inspections may require one
       b. Requirements for administrative warrant
                i. Administrative warrants don’t require probable cause
               ii. Requires a list of the addresses to be searched and the reasons for
                   the search
20. ADMINISTRATIVE ORDERS
       a. First step – issue an order explaining the violation and how to correct it
                i. If person doesn’t comply, the order proves that the person was on
                   notice of the problem
               ii. In some cases there may be a fine for not complying with the order
       b. If the target of the order doesn’t comply, the department must seek a
          judicial order to force compliance
                i. Most agencies can’t make arrests or use force
               ii. Violating a court order allows the courts to use their powers
21. COURT ORDERS
       a. Injunctions – orders to prevent an action
                i. Temporary injunctions can be used in emergencies
               ii. Permanent injunctions require notice to the affected party and an
                   opportunity for that party to be heard in court
       b. Personal Restriction Orders
                i. Order individuals to refrain from dangerous behavior
               ii. Can require treatment
              iii. Can limit activities
22. ADVISORY AND CONSULTATIVE ROLE
       a. Some agencies don’t have enforcement powers – do research and
          education – shape policy by funding other agencies or private projects
       b. Ex. – CDC – non-enforcement agency – primary role is providing
          guidance to state and local health departments
23. PUBLIC ACCESS TO AGENCY INFORMATION
       a. Freedom of Information Act
                i. Provide public access to information held by agencies
               ii. Have exceptions to protect trade secrets and information that will
                   affect agency function or public safety
              iii. Modified by state and federal privacy laws to protect personal
                   information
       b. Open Meeting Laws
       c. Provide for public attendance at agency governing body meetings –
          require public notice of meetings – allow for closed meetings on personnel
          matters and other topic that require secrecy
24. PERSONAL RESTRICTIONS
       a. Include quarantine, excluding communicable disease carriers from work,
          mandatory vaccinations, and actions against individuals
25. CONSTITUTIONAL DUE PROCESS
       a. US and most state constitutions don’t require a hearing before ordering
          restrictions
       b. Constitution does require habeas corpus after the restrictions are in place,
          if the person requests it
       c. Government must show that it has the legal authority to impose the
          restriction and the factual basis for the restriction
       d. For public health restrictions – must be a rational relationship between the
          restriction and the risk
26. STATUTORY DUE PROCESS
       a. Some state legislatures require more due process
       b. Some states have passed emergency powers laws that affect due process
27. JUDICIAL REVIEW STANDARDS
       a. Does the activity violate US constitution or treaties?
       b. Does a state agency activity violate the state constitution?
       c. Is the agency activity allowed by the agency’s enabling act?
       d. Is the activity prohibited by other laws?
       e. Is the agency following its own rules?
28. COURTS DEFER TO AGENCY POLICY DECISIONS – WHY?
       a. Efficiency
       b. Flexibility
       c. Speed
       d. If the court finds the agency action is illegal, it can prevent the agency
          from acting
       e. A federal court cannot change an agency ruling, only block it and send it
          back to the agency for reconsideration
       f. Some state courts can change the agency ruling and substitute their new
           ruling
29. LEGISLATURE SETS THE STANDARD FOR JUDICIAL REVIEW OF
    FACTS
       a. De Novo Review – court ignores the agency decision
       b. Review on the Record – courts uses the record of the agency proceeding
           but makes an independent review
       c. Deference to the Agency – court upholds the agency decision unless it is
           arbitrary and capricious – this the usual standard for review
       d. No Review – legislature doesn’t allow judicial review of the agency
           decision in some cases
30. EXHAUSTION OF REMEDIES
       a. Many agencies provide an internal appeals or review process for agency
           decisions
       b. Courts require that people who want to challenge in court first go through
           all the agency appeals
       c. Court doesn’t require exhaustion of the agency process if the agency is
           acting illegally
       d. If the litigant goes directly to court and the court decides the action was
           legal, it will be too late to finish the agency process
31. SEVERABILITY
       a. The court will look at the law and try to uphold as much of it as they can –
           if the unconstitutional part can be severed, they will cut it
32. BICAMERALISM/THE GREAT COMPROMISE
    a. The division of the legislature into different branches – the two keep each
       other in check
    b. The idea that a majority of both Houses must pass a bill before it becomes a
       law and takes effect
    c. Great Compromise – House would represent the people; the Senate would
       represent the states – members of the House would be elected by the people
       and serve for 2 years; members of the Senate would be elected by the States
       and serve for 6 years
33. POCKET VETO
       a. Constitution gives the President 10 days to review a measure passed by
           Congress – if he hasn’t signed it within 10 days, it becomes the law
           without his signature – if Congress adjourns during the 10-day period, the
           bill doesn’t become law
34. WHEN HOUSES OF CONGRESS MAY ACT UNILATERALLY
       a. The House alone was given the power to initiate impeachments
       b. The Senate alone was given the power to conduct trials following
           impeachment on charges initiated by the House and to convict following
           trial
       c. The Senate alone was given final unreviewable power to approve or
           disapprove Presidential appointments (Appointments Clause)
       d. The Senate alone was given unreviewable power to ratify treaties
           negotiated by the President (National Security)
35. APPOINTMENTS PROCESS
       a. The ultimate control over an agency is through hiring and firing agency
          personnel – there are few cases on the appointments process so the
          constitutional limitations are unclear
       b. Appointments Clause:
               i. “The President shall nominate, and by and with the Advice and
                  Consent of the Senate, shall appoint…all other Officers of the US,
                  whose appointments are not herein otherwise provided for, and
                  which shall be established by law: but the Congress may by law
                  vest the Appointment of such inferior Officers, as they think
                  proper, in the President alone, in the Courts of law, or in the Heads
                  of Departments”
36. SUPERIOR OFFICERS OF THE US
       a. Appointed by the President with advice and consent of the Senate – major
          policy role and answer to the President
37. INFERIOR OFFICERS OF THE US
       a. Can be appointed by the President, the Department heads, or the Courts –
          no advice and consent
38. LIMITATIONS IN THE ENABLING LEGISLATION
       a. Congress creates and shapes the Executive Branch
       b. Congress follows the Constitutional guidelines for appointments
       c. Congress can impose additional requirements – limitations on who can be
          appointed; limitations on removal, as in independent agencies
39. CIVIL SERVICE
       a. Developed by Congress to protect workers from losing their jobs every
          time the administration changes
       b. Most personnel are civil service and can only be fired for cause with due
          process - Limited due process for security agencies
       c. Advantage of civil service – you will be able to exercise your professional
          judgment without getting fired and you won’t be fired because of the
          political party you belong to
       d. Problems with Civil Service – it is hard to fire people and they pay less
          but the job security makes up for it
       e. The highest level of agencies aren’t in Civil Service – they get fired when
          administrations change
40. TENURE OF OFFICE ACT – 1867
       a. If Congress is silent on removal, the officer serves at the discretion of the
          President
       b. Act limited the right of presidents to remove cabinet members without the
          consent of the Senate
       c. Andrew Johnson removed the Secretary of War – was impeached, but not
          removed by one vote
41. NIXON AND THE INDEPENDENT COUNSEL
       a. Saturday night massacre – the night the plumbers broke in and raided
          Democratic headquarters
       b. Independent counsel was Archibald Cox – he was finding dirt on Nixon –
          Nixon fired him – told Asst. AG Bork to do it – was the background for
          this law
       c. Independent Counsel law
               i. Passed to provide an independent voice to investigate the
                  Executive branch - Was appointed by a panel of judges
              ii. The law expired at the beginning of the Clinton administration -
                  Clinton’s biggest political mistake – not vetoing the renewal of the
                  Independent Counsel law
       d. Appointing the Independent Prosecutor
       e. Who makes the appointment?
               i. Three judge panel appoints the counsel
       f. The AG can remove independent counsel for good cause, mental
          disability, or other good reasons
42. FORMAL (APA) ADJUDICATIONS
       a. Look more like trials
       b. Requirements:
               i. No ex parte communications
              ii. Separation of functions
       c. Parties are generally represented by counsel and the agency will have a
          representative at the proceeding
       d. An ALJ is an acquisitorial judge – is there to help the litigated party
          present its case and to make sure it is presented effectively
       e. Loophole in the APA – the judge can talk to the people inside the agency
          – what is their relationship to the regulated party? – they are not friends
          with the regulated party
       f. The judge can ask people in the agency for clarification
       g. In the federal system, Congress amended the APA to require separation of
          functions, so the judge is not supposed to have also participated in the
          preparation of the case
43. EX PARTE COMMUNICATIONS
       a. Are an interesting problem – in a trial, they are communications between
          the judge and one of the parties or a non-party outside of the presence of
          the other party dealing with an issue of the case – is not okay – is
          considered not fair for the judge to talk to one adversary without having
          the other adversary there
       b. The loophole on the ban dealing with ex parte communications is that the
          ban doesn’t include other people in the agency
44. ADMINISTRATIVE COSTS AND FORMAL ADJUDICATIONS
       a. Administrative agencies carry out a lot of adjudications, but if every
          adjudication had to be a formal one, it would be chaotic and would take
          forever
       b. Makes it so that agency can’t regulate in a hurry if it has to go through a
          formal process
        c. We try to explain to the courts why they shouldn’t impose an extremely
           time consuming expensive process on the government to keep it from
           making rules
        d. Costs of formal adjudications
                 i. Monetary costs are high; time costs are high; they reduce agency
                     flexibility; they are legally disfavored
45. JUDICIAL LIMITATIONS ON FORMAL ADJUDICATIONS
        a. Most of the Circuits and the Supreme Court are reticent to order formal
           adjudications unless the language of the statute clearly requires it – if you
           want one, you have to convince the court that Congress intended for you
           to have one
46. RULES OF EVIDENCE IN ADMINISTRATIVE PROCEEDINGS (Formal and
    Informal)
        a. In an inquisitorial proceeding, the prejudice is to let all evidence in and
           comment on its significance – the ALJ determines whether the evidence is
           valid
        b. Generally, in administrative law proceedings, unless the agency has
           chosen to adopt a narrower standard, they do not apply the rules of
           evidence
        c. Hearsay – you are not supposed to testify to what someone else said
        d. Residuum Rule – provided that while hearsay was admissible evidence,
           the decision in an administrative adjudication could not rely solely on
           hearsay evidence, there had to be at a least a residuum of non-hearsay
           testimony to support the decision – that has been replaced
        e. In agency proceedings, they can admit hearsay and everything is judged
           by a general standard
        f. The Court will look to see if there is substantial evidence in the record to
           see if it supports the agency’s determination – it will include hearsay, but
           if it is just hearsay, the Court may decide that it doesn’t meet the
           substantial evidence basis - LA calls it “sufficient evidence”
47. INFORMAL ADJUDICATIONS
        a. Social Security determinations; Federal student loans; Medicaid eligibility
           determinations
        b. Anytime the government is making a decision regarding specific facts that
           are not judicial decisions, they are probably doing adjudications
        c. Agencies also make rules – rules apply generally – they apply to the world
           even if the actual number of people regulated by that rule is small
        d. If you are a party to an adjudication, you have a right to be heard and
           much more critically, you generally have some right, ultimately of judicial
           review
        e. Congress can take away the right of judicial review – but it doesn’t do it
           very often
        f. Rules you don’t get to appeal – it is just like a law passed by the
           legislature
        g. Adjudications are usually appealable
48. NEW PROPERTY
       a. Is acquired by establishing some kind of ownership
       b. Two notions of new property – one is intellectual property, which is
          another form of intangible property
       c. We are dealing with property created with governmental rights – property
          that is derived from the government giving you a right to entitlement
       d. If you want to practice law, you don’t have a right to that license, you
          have to meet the state’s requirements
49. OLD PROPERTY
       a. Your house, your car, etc. – how do you know you have old property? –
          you bought it – show the title
       b. Old property is fairly well defined – rocks, trees, cars, houses, etc.
50. 1996 WELFARE REFORM ACT
       a. Was a reaction to Goldberg and more generally a reaction to the perceived
          adverse affects of the welfare system
       b. TANF – Temporary Assistance for Needy Families
       c. “Temporary” became the key issue – in writing the reform act, the
          underlying premise was 5 years and you are out
       d. For the first several years this worked efficiently because the economy
          was booming
       e. The Act made everything temporary – are getting into the problem of folks
          who have used up their five years, have had jobs and lost jobs – what do
          we do with them?
       f. The government has turned welfare back into a kind-of 19th Century
          privilege of the state
51. EMPLOYMENT HEARINGS
       a. Only government employees have constitutional rights to a hearing and
          due process
       b. State rights are defined by the state law, not the US Constitution, and can
          be broader than the US rights
       c. States can create rights to employment due process for private employers
52. HOMELAND SECURITY AND THE CIA
       a. One of the big fights over the Homeland Security Bill was the employee
          rights
               i. Security agency personnel are subject to firing without stated cause
                   and get no hearing
              ii. The Homeland Security Act extends the definition of a national
                   security job to many more employees, who thus lose civil service
                   protection
53. BASIC PROCEDURE FOR SS DISABILITY
       a. Get a form from the office
       b. What is the illness, work history, etc.?
       c. SSI orders records
       d. A doc at SSI at Disability Determination Service – run by state as
          contractor – makes a determination
       e. Sends to regional office
       f. Regional office pays, QA, or denies
      g. Ask for reconsideration
      h. This is all done with records
      i. At the state level, the examiner can call the patient’s doc
      j. At the federal level, the expert is bound by the patient’s doc
      k. Most problems arise because of poor documentation
      l. Applicants can submit new information and get a new evaluation
      m. After denial, you can ask for a hearing before ALJ
      n. At the hearing stage, you ask for an expedited review if the case is clear
      o. ALJ’s decision is final
      p. At this point you can appeal to the federal courts
54. RULEMAKING
      a. Is like legislation
      b. The principle – a legislature delegates its legislative authority to the
         agency – this makes it controversial because it is giving legislative
         authority to the agency
      c. Some agencies do not have rulemaking authority
      d. Rules can’t exceed the authority granted by the legislature and the
         legislature can’t exceed its constitutional authority
      e. The first way to challenge any rule is to ask if it is constitutional, and if it
         is then ask if it is in the authority given the legislature
      f. Once a rule is properly promulgated, it has the same effect as legislation
      g. If it isn’t properly promulgated, it will be void
      h. If there is any implicit grant of rulemaking authority to the agency, the
         federal courts will allow the agency to make rules
      i. The shift from adjudications to rulemaking started in the 1950s
55. HOW TO MAKE A RULE
      a. Publish the proposed rule and what it is based on for public comment
               i. The Federal Register and the State Register are where rules are
                   published first
      b. Review and address public comments and publish these along with any
         modifications in the rule
      c. Codify the rule after it is effective
               i. Rules are codified in the Code of Federal Regulation and the LA
                   Administrative Code
56. THE BASIC RULE – NOTICE AND COMMENT RULES
      a. If it is a rule that is going to have legislative impact, under the APA it will
         go through notice and comment – most states have adopted the same
         standards
      b. There is no constitutional reason why notice and comment is required for a
         rule to have legislative effect
      c. You have to publish the proposed rule and publish any supporting
         information that is important to understanding how the rule is adopted –
         you have to give the public, including the potentially regulated parties a
         fair idea of what the rule is going to do
      d. You have to take the comments and publish them and your answer to them
      e. If you have revised your rule based on the comments, you publish the
         revised rule with an effective date
      f. When the effective date arrives, the rule becomes legislative rule and is
         enforced
      g. To challenge the rule, you have a fairly limited window before the statute
         of limitations runs
      h. You always retain the ability to challenge a rule if it is unconstitutional or
         beyond the agency’s authority
      i. Once the rules are effective, they are codified (numbered and published)
57. RULE v. ADJUDICATION
      a. If it affects specific parties, it is probably an adjudication
      b. If it affects the general public, it is probably a rule
      c. If it is a rule, you don’t have a right to be heard; if it is an adjudication,
         you do have a right to be heard
      d. Public participation is limited to the parties in the adjudication
      e. Rulemaking is a public process which allows political input
      f. Politicians are not supposed to mettle in an ongoing adjudication
      g. Adjudications are driven by specific facts and can treat similar situations
         differently
      h. Rules set up a general framework that treats all parties uniformly – that
         doesn’t necessarily mean that the rule effects everyone though
      i. Rules are the fairest way to make big regulatory changes because
         everyone is on notice of what is going on
      j. Important use of rules, particularly at state level, is to adopt uniform
         national standards
      k. Agency efficiency is probably what drove the SC to accept delegated
         powers to make rules
      l. Use rulemaking to establish legislative facts – i.e. disability
         determinations, SS ratings
      m. Rules also give guidance to the public
      n. Adjudications may provide some guidance as to what agencies are doing
         and how they apply the laws, but agency adjudications are not generally
         published and are not widely available – they are also not binding
      o. You can control the outcome of rulemaking much easier than that of
         adjudication – rules are not dependant on ALJs – there is more input from
         across the agency and rules are directly controlled by agency policymakers
      p. Adjudications are subject to the ALJ – ALJ’s are not binding, but they still
         have strong weight
      q. By using rules rather than adjudications, you get a uniform playing field
         for everyone
58. PROSPECTIVE V. RETROACTIVE
      a. Retroactivity
               i. Legislation is often retroactive
              ii. Rules are not supposed to be retroactive
                       1. Can’t go back and say that you can no longer get paid for in
                           office chemotherapy and then ask for a refund
                      2. Can say you can no longer get paid for in office chemo and
                          make your investment in your stand alone cancer center
                          worthless
             iii. Only real limit is ex post facto provision in the Constitution
             iv. Adjudications are based on things that have already happened
              v. Adjudications are not precedent – they are guides to the agency’s
                  thinking, but they aren’t binding on other parties or on the agency
             vi. Adjudications are driven by the cases that are available
       b. Prospective
               i. Rules are prospective – they are not bound by existing facts
59. DOWNSIDE OF RULEMAKING
       a. Adjudications can be more flexible in the individual cases
       b. Rules can be so general that they don’t give you any clear guidance
       c. Adjudications are useful when you aren’t sure what the rule should be and
          you need more information and a chance to experiment
       d. You still need adjudications for enforcement, although it does streamline
          the adjudications
       e. Bigger problem with rulemaking – the more agencies use rules, the more
          lawyers try to keep them from using rules, and the more complicated it all
          becomes
       f. At the federal level in particular, rulemaking has become very complex
60. APA DEFINITION OF A RULE
       a. “Rule means the whole or a part of an agency statement of general or
          particular applicability and future effect designed to implement, interpret,
          or prescribe law or policy or describing the organization, procedure, or
          practice requirements of an agency and includes the approval or
          prescription for the future of rates, wages, corporate or financial structures
          or reorganizations thereof, prices, facilities, appliances, services or
          allowances therefore or of valuations, costs, or accounting, or practices
          bearing on any of the foregoing”
61. LA DEFINITION OF A RULE
       a. “Rule” means each agency statement, guide, or requirement for conduct or
          action, exclusive of those regulating only the internal management of the
          agency and those purporting to adopt, increase, or decrease any fees
          imposed on the affairs, actions, or persons regulated by the agency, which
          has general applicability and the effect of implementing or interpreting
          substantive law or policy, or which prescribes the procedure or practice
          requirements of the agency
       b. “Rule” includes, but is not limited to, any provision for fines, prices or
          penalties, the attainment or loss of preferential status, and the criteria or
          qualifications for licensure or certification by an agency. A rule may be of
          general applicability even though it may not apply to the entire state,
          provided its form is general and it is capable of being applied to every
          member of an identifiable class. The term includes the amendment or
          repeal of an existing rule but does not include declaratory rulings or orders
          or any fees.
62. RULE V. INTERPRETIVE GUIDELINE
       a. Interpretive guidelines do not need notice and comment
       b. They are only explaining what the agency thinks the law is – they don’t
          change the meaning of the law
       c. Prosecution guidelines are classic examples
       d. How do you know if it is guidance? – the most important criteria is
          whether or not the agency treats it as binding
               i. There can be a really fine distinction when the underlying law is
                  vague
              ii. Very specific laws – like the ADA – leave no room for rules so
                  everything is a guideline
63. HIPAA
       a. Health Insurance Portability and Accountability Act of 1996
       b. Told HHS to promulgate privacy rules on electronically transmitted
          medical records
       c. Proposed rule covers electronically transmitted financial records
       d. Final rule covers all records, if any are electronically transmitted
       e. Toward the end of the Clinton administration – when the final rule came
          out it applied to every single record if the healthcare provider transmitted
          one single thing electronically – this imposed very significant costs on
          healthcare and made it more difficult to deliver healthcare in certain
          situations
       f. There were several challenges to this rule and they were basically
          politically spiked
       g. The Bush administration took the bad parts out and hospitals didn’t want
          to take the heat for being seen as being against privacy
64. AGENCIES AND ORAL TESTIMONY
       a. Can be limited to written comments
       b. Allowing oral comments enhances participation; allows politicians to
          grandstand; can be good to get publicity; avoid it if you plan on going
          against public sentiment
       c. Sometimes the agency will provide support and legal fees to those without
          resources in order to encourage participation
65. WHEN IS FORMAL RULEMAKING REQUIRED?
       a. Just like formal adjudications, formal rulemaking is very time consuming
          and expensive – courts try to avoid making agencies do it
       b. Must have magic language
               i. Only when rules are required by statute to be made on the record
                  after opportunity for an agency hearing
66. EXEMPTIONS TO NOTICE AND COMMENT REQUIREMENTS
       a. Military and foreign affairs
       b. Agency procedures
               i. Does not change the substantive rights of the parties
              ii. Does not change the regulated behavior, only the process in agency
                  procedures
       c. Actions where secrecy is important
              i. Wage and price controls – bidding on contracts – negotiations on
                 land purchases and sales
      d. Emergency Proceedings
              i. Emergency rules
             ii. Interim final rules
                      1. Published and in effect, but will be modified after
                          comments are in
            iii. Calculations and other non-discretionary rules
            iv. Technical corrections
                      1. Can require notice and comment if the correction causes a
                          different result
             v. Interpretive Rules
                      1. Do they have legal effect – legally binding test
                      2. Does the agency treat them as binding?
                              a. Key – are there cases when they do not follow
                                  them?
                      3. Does the agency call them interpretations when it publishes
                          them?
                      4. Do they conflict with previous rules?
                      5. Do they conflict with previous interpretations?
                              a. Only the DC court cares about this
            vi. General Statements of Policy
67. HYBRID RULEMAKING
      a. A lot of this arose from the environmental activism that lead to the first
         and subsequent Earth Days
              i. Congress wanted to allow citizens and communities to participate
                 in significant regulatory proceedings – this wasn’t in the enabling
                 acts
             ii. Courts then began debating their role in reviewing these
                 proceedings
68. PRESIDENT’S ROLE IN RULEMAKING
      a. Controls and supervises executive branch decisionmaking
      b. When should the president’s contacts be documented?
              i. When the statute requires that they be documented
             ii. If the rule is based on factual information that comes from such a
                 meeting
69. STATE AGENCIES V. FEDERAL AGENCIES
      a. Limited staff
      b. Greater reliance on the expertise of board members, rather than staff
      c. Board may hear lots of testimony and review a lot of information – they
         cannot afford the time and effort to put together volumes of supporting
         information for regs
70. CBA
      a. Cost-Benefit and Risk-Benefit Analysis
              i. Justice Breyer’s tunnel vision problem
                     1. Each rule is seen without reference to all the other
                         regulations
             ii. Why is this a problem in environmental law?
                     1. The cost of removing the last 5% of crap
      b. Do the costs and benefits always fall on the same group?
      c. How does the diffuse and long-term nature of benefits complicate CBA?
      d. Should we use CBA for health regulations?
71. EXECUTIVE ORDER 12866
      a. OIRA (Office of Information and Regulatory Affairs) must review rules
         that have an impact of more than $100 million aggregate or substantial
         impact on a segment of the economy or anything else
72. THE REGULATORY PHILOSOPHY
      a. Federal agencies should promulgate only such regulations as are required
         by law, are necessary to interpret the law, or are made necessary by
         compelling public need, such as material failures of private markets to
         protect or improve the health and safety of the public, the environment, or
         the well-being of the American people. In deciding whether and how to
         regulate, agencies should assess all costs and benefits of available
         regulatory alternatives, including the alternative of not regulating
73. CBA UNDER 12866
      a. Costs and benefits shall be understood to include both quantifiable
         measures (to the fullest extent that these can be usefully estimated) and
         qualitative measures of costs and benefits that are difficult to quantify, but
         nevertheless essential to consider
      b. Further, in choosing among alternative regulatory approaches, agencies
         should select those approaches that maximize net benefits (including
         potential economic, environmental, public health and safety, and other
         advantages; distributive impacts; and equity), unless a statute requires
         another regulatory approach
74. WHAT MUST THE AGENCY PROVIDE? – OIRA
      a. An assessment, including the underlying analysis, of benefits anticipated
         from the regulatory action (such as, but not limited to, the promotion of
         the efficient functioning of the economy and private markets, the
         enhancement of health and safety, the protection of the natural
         environment, and the elimination or reduction of discrimination or bias)
         together with, to the extent feasible, a quantification of those benefits
      b. An assessment, including the underlying analysis, of costs anticipated
         from the regulatory action (such as, but not limited to, the direct cost both
         to the government in administering the regulation and to businesses and
         others in complying with the regulation, and any adverse effects on the
         efficient functioning of the economy, private markets (including
         productivity, employment and competitiveness), health, safety, and the
         natural environment), together with, to the extent feasible, a quantification
         of those costs
      c. An assessment, including the underlying analysis, of costs and benefits of
         potentially effective and reasonably feasible alternatives to the planned
          regulation, identified by the agencies or the public (including improving
          the current regulation and reasonably viable nonregulatory actions), and an
          explanation why the planned regulatory action is preferable to the
          identified potential alternatives
75. UNFUNDED MANDATES ACT OF 1995
       a. Agency must do a CBA if the costs exceed $100 million
76. LA APA ON RULE MAKING
       o §969
                Says that the legislature by concurrent resolution may suspend,
                   amend or appeal any rule or regulation or bodies thereof increase,
                   decrease, or repeal adopted by state department, agency, board, or
                   commission
                        What is the potential problem with that? – could have
                           separation of powers issues – Chadha issue
                        A concurrent resolution legislative veto wouldn’t work on
                           the US Congress level either
77. JUDICIAL REVIEW
       a. We allow agencies to make rules
       b. The volume of rules may exceed the legislature’s time and attention span
          and rules sometimes need to be made on an emergency basis
       c. We review agency actions – courts get to decide if the agency has acted
          improperly
       d. If the agency acts unconstitutionally, or beyond its authority, or without
          following procedure, its actions are void
       e. Courts can stop agencies from acting or force agencies to act
       f. There are really difficult policy issues going on with judicial review
       g. Getting a hearing is not the same as prevailing in the hearing
       h. If you cannot get to court, you cannot win – getting to court is good even
          if you can’t win because you can still delay and delay is very valuable to
          your client
       i. Jurisdiction and standing – must be present or the claim is void – can be
          raised at any time, including by the court on its own
78. 28 USC §1251
       a. The Supreme Court shall have original and exclusive jurisdiction of all
          controversies between two or more States
       b. The Supreme Court shall have original but not exclusive jurisdiction of:
                i. All actions or proceedings to which ambassadors, other public
                   ministers, consuls, or vice consuls of foreign states and parties;
               ii. All controversies between the US and a State;
              iii. All actions or proceedings by a State against the citizens of another
                   State or against aliens
       c. These are the areas in which the federal courts or the Supreme Court have
          jurisdiction from the Constitution
       d. In every case not on this list, jurisdiction is controlled by Congress –
          Congress can grant/take away the jurisdiction
79. 28 USC §1331
       a. The district courts shall have original jurisdiction of all civil actions
          arising under the Constitution, laws or treaties of the US
80. 28 USC §2342
       a. Circuit courts review rulemakings because these are cases that look like
          trial records already – there aren’t any fact-finding issues
       b. So far, courts have ruled this as exclusive jurisdiction, so if the statute says
          you “may” go, you must go to the Circuit court
       c. What about suits to force the agency to issue a rule that would be covered
          by §2342 – generally, you would have to go to the appeals courts, but you
          don’t have to; it is a gray area and there is ambiguity
       d. This is the general, sort of catch-all statute
       e. In general, rulemakings are in appeals courts
81. STANDING
       a. Must be present or the claim is void
       b. Can be raised at any time, including by the court on its own (sua sponte)
       c. Constitutionally Required Standing
                i. All cases must meet this standard
               ii. While the US Supreme Court can interpret what it means, the
                   courts cannot abolish it
              iii. Injury in fact – injury, causation, and redressability
              iv. Recreational, Aesthetic, or Environmental Injury
                       1. Sierra Club v. Morton
                               a. Just loving trees from far away is not enough – if
                                    you use the area for recreation, this can be enough
       d. Prudential Standing
                i. This is an umbrella over several different theories
               ii. The unifying theme is that these are designed to limit the number
                   of persons who can bring a claim when the constitutional standing
                   requirements are vague or overboard
              iii. Additional statutory or judicial limits over the constitutional
                   requirements
              iv. These are cases where the litigants have met the constitutional
                   minimum but the Court or Congress has put on additional
                   requirements to get into court and since Congress can control
                   standing and jurisdiction, then these are constitutional
               v. So you see the courts in things like zone of interest tests and such
                   trying to narrow the number of litigants
              vi. Congress can override jurisprudential limits put on by the court – it
                   can pass a law that says anyone who meets the constitutional
                   standing requirement can sue – this prevents the courts from
                   adding anymore requirements
       e. Animal Standing
                i. Courts are pretty reticent to say that animals have standing
               ii. Animal standing is controversial because of the agenda involved –
                   there is a part of the country that believe that animals and people
                   should have the same rights
82. RISK OF INJURY
       a. The courts have accepted a theoretical risk of harm, such as increased risk
          of cancer from a landfill, as injury
       b. LA Environmental Action Network v. US EPA
                i. Group had concerned citizens – some of whom lived near Dump A
                   and some of whom lived near Dump B
               ii. The case was about not putting stuff in Dump A but putting it in
                   Dump B
              iii. Case was about a conflict in standing – members who live near A
                   wouldn’t be affected but members near B would
              iv. Court said that it wasn’t there to referee – that was a problem for
                   the agency
               v. So if you have associational representation and there are conflicts
                   amongst your members, that isn’t for courts to resolve, it is for the
                   association to handle
83. PROCEDURAL INJURY
       a. These are where the agency doesn’t go through the right process
       b. Can just the defect in the process give you standing or do you have to wait
          until they are ready to build the thing and then claim it is a problem? – the
          Court has basically looked at this and wrapped it up in the interest of
          causation
       c. You have to show with the procedural defect that this could in fact affect
          your rights
       d. It isn’t the process that gives them the standing, it is that the process will
          allow the construction of something that otherwise might be disallowed
          and it is that increased risk of an adverse affect through the process that
          gives them standing
       e. If you can convince the court that this significantly increases the
          probability that they will be able to do something improper, and the
          improper thing will injure you, you will succeed
       f. If you can’t convince the court that the procedural defect could affect the
          outcome in a significant way, then you won’t be able to get standing on
          the procedural defect
84. THIRD PARTY ACTION AND CAUSATION
       a. You are alleging that the regulatory action against a third party is harming
          your clients – or the failure to take a regulatory action
       b. Simon v. Eastern KY Welfare Rights Org.
                i. Group was challenging a tax exemption for a hospital – it was a
                   non-profit hospital exempted from taxes, that wasn’t seeing low-
                   income patients
               ii. Group asked the IRS to remove the tax exemption – the IRS
                   wouldn’t do it – the group sued the IRS
              iii. The Court said that the group couldn’t do this – even if the IRS had
                   pulled the tax exempt status, it wouldn’t have changed the situation
                   – the hospital wouldn’t have treated any more poor people if their
                   tax exemption had been taken away
              iv. It has been hypothecated that what they really needed to show was
                   that the hospital was so scared the IRS would kick its butt and pull
                   the tax status, that then they would begin to administer healthcare
                   to low-income patients
85. INFORMATIONAL INJURY
       a. The agency fails to collect required information that would be available to
          the public
       b. The Courts have given a broad right of standing to any member of the
          public to contest this and try to force the agency to collect that information
       c. There is a very broad legislative purpose in the Freedom of Information
          Act – you don’t have to show why you want the information and everyone
          has the right to the information – the agency or the government can’t say
          you don’t it – either they classify it or you get it
       d. The Courts say if the agency isn’t collecting the information so you can’t
          get it under the Freedom of Information, that defeats this openness process
86. REDRESSABILITY
       a. You have to be able to show that the remedy you seek from the court
          would address your problem
       b. If you have stated a concrete action for injury, you probably have also met
          this standard – the problem is if the agency does not have the power to do
          what you want
       c. You cant force an agency to make a rule when it doesn’t have the power to
          do so and you can’t order an agency to pay monetary damages when it
          doesn’t have the power to do so
87. REPRESENTATIONAL STANDING
       a. When can associations bring actions on behalf of their members?
                i. At least one member must have standing
               ii. It must fit the organization mission
              iii. The remedy must not require the participation of individual
                   plaintiffs
              iv. Here there is no point where the individual members get to come
                   and contest the settlement before the court – the association
                   becomes the plaintiff bootstrapped through the standing of at least
                   one member
88. GENERALIZED STANDING
       a. If an injury is suffered by a very large group of people, it may be better
          addressed by legislative action - is related to the political question doctrine
       b. If the court finds an injury to be so generalized that essentially almost
          everyone would seek a recovery; in the absence of Congress saying they
          have to hear the cases, the court may back off and say this is something
          the legislature needs to fix – look at the situation in NO
89. ZONE OF INTERESTS
       a. Are your interests really those that are meant to be protected by the
          statute? – similar to the test in torts for negligence per se
       b. You have to show that the statute affects your interest and it was the intent
          of that statute to benefit your interests
       c. Classic case – Air Courier Conference of America v. American Postal
          Workers Union - fight between the postal unions and the PO when they
          were changing the rule to let third parties carry some of the first class mail
       d. The postal union argued that the statute was designed to protect the
          monopoly on first class mail – and that they should have standing
       e. The court said the act was passed to protect the post office and through the
          monopoly they would have enough business
       f. The court said even though there is an incidental benefit that the monopoly
          on first class mail is also a job guarantor on mail workers – it isn’t enough
          to give you standing if the post office wants to change it and allow some
          of the first class mail to be carried by third parties
       g. With zone of interests, it is anything the court wants it to be
       h. Anyone who meets standing in a zone of interest can sue
       i. If you have to satisfy zone of interest you have to think about how you can
          show that you are a beneficiary of the statute or that your interests line up
          with the Congressional purpose of the statute
90. AGENCY ACTION
       a. Defined in §551 of the APA
       b. Includes the whole or a part of an agency rule, order, license, sanction,
          relief, or the equivalent or denial thereof, or failure to act;
       c. Makes it hard to force an agency to do something that is not specifically
          required by statute or regulation
91. PRECLUSION OF JUDICIAL REVIEW
       a. Congress has the power to limit judicial review of agency actions
       b. What if Congress is silent on the availability of judicial review in a
          particular statute? – classic case on this is Abbott Laboratories v. Gardner
92. PRE AND POST ENFORCEMENT REVIEW
       a. While review is favored, there is no right to review before the agency
          brings an enforcement action
       b. An injunction prevents the agency from acting
               i. Prevents important health and safety measures
              ii. Enmeshes the court in agency policy making
       c. What are the Equitable Factors?
               i. Since there is no right to pre-enforcement review, the plaintiff
                   must show the court an equitable basis for granting review, which
                   resembles the factors for granting an injunction
                       1. Is there an immediate effect of the agency action on the
                           plaintiff’s activities?
                       2. What is the risk of waiting for enforcement?
93. RIPENESS
       a. Deals with whether the case and controversy is sufficiently far along that
          the court has enough information to intervene
       b. In a facial challenge, the court does not need to see how the rule is applied
       c. The court must also find that this is a final agency action
94. SMALLPOX EMERGENCY PERSONNEL PROTECTION ACT OF 2003
      a. Judicial and Administrative Review – no court of the US, or of any State,
         District, territory or possession thereof, shall have subject matter
         jurisdiction to review, whether by mandamus or otherwise, any action by
         the Secretary under this section. No officer of employee of the US shall
         review any action by the Secretary under this section (unless the President
         specifically directs otherwise)
95. COMPLIANCE ORDERS
      a. An order to a specific party to obey the law
      b. Based on the agency’s view that the party is not in compliance with the
         law
      c. Not self-enforcing – the agency must bring a separate enforcement action
         to force compliance
      d. Compliance order is that they have examined your business actions and
         they believe you are violating the law and they want you to clean up your
         act
      e. Court found that this was not an appealable final action – the agency
         hasn’t really done anything that has changed the party’s legal rights
      f. Compliance orders are a really big red flag if you are in the regulatory
         business
      g. What if you benefit from a policy that is being changed?
               i. Consumer – action is ripe
              ii. Manufacturer – action is only ripe when agency does something
                  against him
96. EXHAUSTION OF ADMINISTRATIVE REMEDIES
      a. Is another timing issue
      b. You have to go through the administrative process
      c. Key question is whether the enabling act or an agency regulation requires
         exhaustion
      d. If exhaustion is not required, then the party may go to court directly
      e. If there is an agency process available and you lose in court, you may have
         waived your agency appeal
97. EXCEPTIONS TO EXHAUSTION
      a. Court looks to see if enforcement action stays as you go through the
         process; and if so, does it cause you irreparable harm?
      b. Will requiring exhaustion prevent the court from properly reviewing the
         action?
      c. Can the agency process provide the requested relief?
      d. Is the agency so biased or prejudiced that it cannot give a fair review?
98. ADMINISTRATIVE ISSUE EXHAUSTION
      a. Idea that you have to present the same issues to the agency that you
         present to the court – generally you have to
      b. There are clear things you don’t have to present – if your claim is that it is
         unconstitutional
      c. In a specific case, the court found that the basic nature of social security
         disability proceedings mitigated against this formal notion of issue
         exclusion – Sims v. Apfel
       d. So we are left with the general notion that you have to present the same
            issues in formal proceedings
99. 5 USC §701(a)(2)
       a. Is related to the political question doctrine
       b. The courts recognize that agencies are charged with making policy under
            the direction of the legislature and the executive branches
       c. The proper review of a policy choice is through the ballot box
       d. The purpose of agencies is to carry out political decisions
       e. When the agency is making a policy choice, the agency should be allowed
            to make it – that is the administrative law notion to political question
       f. Classic case on this – Citizens to Preserve Overton Park v. Volpe
100. PRIMARY JURISDICTION
    a. Is related to “Committed to Agency Discretion”
    b. In these disputes, there is an issue which meets the standard for judicial
       review
    c. The primary jurisdiction question is whether the courts should let the agency
       resolve the problem first
    d. This is important when national uniformity is important
    e. The court gives the agency the chance to make a rule for the country before
       hearing an individual dispute
101. SMALLPOX
    a. It is a stable aerosol virus – you can cough on someone and make them sick
    b. It is easy to produce – infectious at low doses
    c. Human to human transmission is that diseases spread by people, you are not
       only infected, but you suddenly become a threat to society – people want to
       lock you up and in some extreme cases, shoot you
    d. 10 to 12 day incubation period – high mortality rate (30%)
    e. If you get smallpox once, you never get it again – so doctors knew people
       would get an immunity, so they tried to develop a mild case – wasn’t the best
       strategy – sometimes you got a mild case, sometimes you died
    f. 1796 – Edward Jenner demonstrated that skin inoculation of cowpox virus
       provided protection against smallpox infection
    g. 1805 – Italy, first use of smallpox vaccine manufactured on calf stomachs –
       they grew the vaccine on the stomachs of calves
    h. 1864 – widespread recognition of utility of calf flank smallpox vaccine
    i. 1940s – development of commercial process for freeze-dried vaccine
       production
    j. Herd immunity
            a. Imagine smallpox moving through a community – particularly one
                 where a significant number of people are immune to it – it only keeps
                 going by running into susceptible persons before it dies out
            b. There is a 10 day-two week incubation period, then you are sick for
                 about another week – so for about 10 days you are infectious – if you
                 don’t run into another susceptible person to pass on the infection, it is
                 gone
          c. So the more people you have in the community that are immune, the
              lower the probability that an infected person will come into contact
              with a susceptible person
k.   This is important for two reasons
                    i. No vaccine is perfect
                   ii. There are people who can’t be vaccinated
l.    The vaccine is curious
                    i. Everyone thought it was cowpox – but discovered it wasn’t – it
                       might be horsepox but we don’t know
                   ii. Our current vaccine is much cleaner in the production method,
                       it is still pretty much the same stuff used at the beginning
                 iii. It is a live virus – we give you an infection with vaccinnia
                       which normally just makes a sore on your arm – and you are
                       immune to smallpox
                  iv. Problem – if you have problems with your immune system, and
                       you can’t fight off the vaccinia virus, it starts growing, and you
                       can pass it on to someone
                            1. It can kill you, make you sick, leave you permanently
                                 brain injured
                            2. We have a treatment for it, but we aren’t sure how
                                 affective it is
m.    35 Years ago
                    i. 5.6 million new vaccines and 8.6 million revaccinations each
                       year
                   ii. 9 deaths; 12 cases of encephalitis each year
n.   Death or Permanent Injury – 1/1,000,000
                    i. Mostly among immuno-suppressed persons
o.   There is something interesting about smallpox
                    i. It only infects people; it doesn’t infect animals – is one reason
                       it is difficult to study
                   ii. And, it is a fairly short-lived disease
p.   So we know right off that smallpox has to be moving through the population
     somewhere in the world – if there is ever a month that there is no case of
     smallpox, it is gone and it allows you to eradicate the disease
q.   It also tells you that smallpox is a relatively new disease
r.   Global eradication program
                    i. Goal is not to vaccinate everyone in the world – the majority of
                       people have some immunity
                   ii. The goal is to track down every outbreak and ruthlessly
                       vaccinate and isolate those that are infected – because if you
                       can contain the outbreaks, the disease is gone
                 iii. They did “ring immunization”
                            1. Idea that you don’t immunize everyone in the world – if
                                 you come down with smallpox, we lock you up, and
                                 vaccinate everyone that you are in contact with and
                                   everyone they are in contact with – so it is like two
                                   rings
                               2. You can vaccinate someone after they are exposed –
                                   you have about four days
                               3. So we sent people all over the world where outbreaks
                                   were
                               4. They basically bribed everyone in the community to tell
                                   who may be vaccinated
       s. 1980 – smallpox was declared dead – we eradicated it – once the disease is
          eradicated, people don’t want to get vaccinated anymore because they aren’t
          scared
       t. The watershed event in tort practice in 1965 – strict liability and products
          liability – big watershed in modern legal practice – roll that up with class
          actions and you start getting multi-billion dollar tort claims
       u. One high priority target for these claims were vaccines
       v. There was a drumbeat against vaccinations in general by the plaintiffs bar
       w. So we stopped immunizing people – the risks seemed too high for the benefit
       x. If you are right that smallpox is gone and won’t come back, that is a rational
          choice – but are we positive?
       y. The reason the white man was able to wipe out so many Indians was because
          he brought disease – measles – it is synchronous infection that breaks down
          societies – there is enough of a percentage of society not functioning that the
          rest of the social structure falls apart and if you are in a hunter-gatherer
          economy and nobody is hunting or gathering, everybody dies
       z. The entire world is susceptible to smallpox
102. WHY ARE WE WORRIED ABOUT SMALLPOX?
       a. There are some strains of smallpox still in existence and we worry about it
          because of bioterrorism
       b. The USSR made about 50 tons of smallpox virus and they don’t know what
          happened to it.
       c. Immuno-suppressed people cannot fight the virus and develop progressive
          vaccinia
       d. What has changed since the last time we immunized people?
              a. We have millions of immuno-suppressed people – people with AIDS,
                   on chemotherapy; people getting steroids for arthritis and asthma;
                   people with organ transplants; etc.
       e. We are now in the position where if we have an outbreak, there is the potential
          that millions of people could die
103. JUDICIAL REVIEW
       a. Congress sets scope of review, within constitutional boundaries
       b. Since the Constitution is silent on agencies, Congress has a pretty free hand
       c. Congress can allow anything from a trial de novo to no review, unless such an
          action runs afoul of the constitution
       d. APA §706 – scope of review
104. TRIAL DE NOVO (Type of Review)
       a. You start over at the trial court
       b. Agency findings can be used as evidence, but there is no deference to the
           agency
       c. Used more by the states than the feds
105. INDEPENDENT JUDGMENT ON THE EVIDENCE (Type of Review)
       a. Decide on the agency record, but do not defer to the agency’s interpretation of
       the record
       b. Sort of like appeals in LA
106. CLEARLY ERRONEOUS (Type of Review)
       a. Definite and firm conviction that a mistake has been made on the facts or policy
       b. Same as reviewing a verdict by a trial judge without a jury
107. SUBSTANTIAL EVIDENCE – FORMAL ADJUDICATIONS (Type of Review)
       a. Could a reasonable person have reached the same conclusion?
       b. Standard for reviewing a jury verdict or for taking a case from the jury
       c. 706(2)(E) – only applies to formal adjudications and formal rulemaking
       d. Should a jury get more or less deference than an agency?
108. SUBSTANTIAL EVIDENCE – INFORMAL ADJUDICATIONS AND
RULEMAKING (Type of Review)
       a. 706(2)(A)
       b. Arbitrary and capricious or abuse of discretion
       c. Same assessment of reasonableness as 706(2)(E), so the result is about the
           same as the substantial evidence test used for formal proceedings
109. SOME EVIDENCE (Type of Review)
       a. Scintilla Test
       b. The agency needs to show even less than in the substantial evidence standard
       c. Only limited use
110. FACTS NOT REVIEWABLE AT ALL
       a. Congress can prevent certain types of judicial review
       b. Compensation decisions under the Smallpox Vaccine Compensation Act are
       not reviewable
       c. Enabling law is always reviewable unless Congress has taken away the court’s
       subject matter jurisdiction
111. HOW CAN THE COURT TELL IF THE AGENCY IS WRONG?
       a. When the legislature gives the agency the power, it is also saying that it only
       wants agency decisions overturned in the most serious cases
       b. Remember Matthews v. Eldridge
                        i. The value of limiting appeals outweighs the risk of error in all
                           but the most serious cases
       c. Courts have different political views than agencies and thus they should be
       especially careful about reversing agency decisions
112. HOW THE COURTS TREAT THE AGENCY’S LEGAL INTERPRETATIONS
       a. Substitution of judgment with some weight to the agency’s findings
       b. Substitution of judgment with no weight to the agency’s findings
       c. Reasonableness test – uphold the agency if the interpretation is reasonable
       d. Does reasonable just mean that the judge agrees with it?
113. INTERPRETATION OF AGENCY RULES
       a. Should interpretation of rules and statutes be the same standard?
       b. Are they?
       c. How are interpretations of rules treated differently?
       d. What perverse incentives does this give the agency?
114. ARBITRARY AND CAPRICIOUS REVIEW
       a. Old view
            i. Highly deferential to the agency
            ii. Same as rational relationship test in con law
       b. Citizens to Preserve Overton Park Inc. v. Volpe
                 i. Added the notion of looking at the administrative record before the
                 agency
                 ii. Remember, this was about whether there was a reasonable and prudent
                 alternative
115. WHEN SHOULD THE COURT ALLOW THE RECORD TO BE
SUPPLEMENTED? (De Novo Review)
       a. Like a trial transcript on appeal, the record is usually closed
       b. There can be an exception if the issue being appealed to the courts is the
       agency’s failure to allow outside input and thus failing to consider all relevant
       factors
       c. There can also be an exception if the plaintiff makes a credible showing of
       significant bias by the agency and the court needs to evaluate it
       d. RARE
116. STANDARD FOR RESCINDING A RULE
       a. If a rule was properly promulgated, it was based on a record justifying the need
       for the rule
       b. If the agency wants to rescind the rule, it must do a comment explaining why
       the underlying situation has changed, making the rule unnecessary
117. CAN YOU FORCE AN AGENCY TO MAKE OR CHANGE A RULE?
       a. If the statute provides for a set time
                 i. What if the agency still cannot get it done?
       b. If there is no set time
                 i. Did the agency respond to your request?
                 ii. If the agency says there is a legal bar, the court can review that
                 iii. What if the agency says it has more important rules to make?
118. REMEDIES FOR IMPROPER RULES
       a. Remand but leave the rule in force
                 i. Cannot do this for unconstitutional rules or rules that exceed agency
                 authority
       b. Remand and stay the rule
119. RELYING ON AGENCY ADVICE – EQUITABLE ESTOPPEL
       a. You cannot get money damages – no appropriations
                 i. Not under the tort claims act
       b. It is a defense to criminal claims
       c. Can be a defense to civil enforcement
       d. Relying on an agency mistake or failure to enforce a law does not work
120. COLLATERAL ESTOPPEL AND NON-ACQUIESCE
       a. Same facts, same parties
                i. Government is bound
       b. Same facts, different parties
                i. Government is not bound
       c. Non-Acquiesce
                i. The government can re-litigate the same facts (different parties) in
                different circuits to get better results
                        ii. Or to get a split to get US Supreme Court review
121. THE SEATBELT SAGA
       a. Came about in the 1950s – had new cars that could go really fast, had bad tires
       and bad brakes
       b. Began to notice that there was a pretty significant death rate on the highway
       c. This is a classic example of public policy – generally media leads – there were
       news stories about accidents and cars
       d. First there is popular concern about accidents
       e. Then interest groups – interest groups use individual stories to build their
           constituency
       f. Individual stories – MADD – taking individual stories of lovable people killed
           by drunk drivers – innocent victims – who wants to vote for drunk drivers?
       g. Nader and Public interest
                a. Nader was the key player in all of this
                b. Nader was on a crusade in the early 1960s – GM had introduced the
                    most innovative car ever designed in the American market – the
                    Courvier – was a mixture between a Porsche and a Volkswagen
                c. Nader saw his opportunity – wrote that the car was “unsafe at any
                    speed” – this became a best seller
                d. The insurance industry liked this – they want you to do safe things so
                    they don’t have to spend any money
       h. Congress gets into the act because the public is upset – passes the Traffic and
           Motor Vehicle Safety Act
                a. Requires that everyone wear a seatbelt
       i. By 1972, realize no one is wearing a seatbelt
       j. 1975 – required cars to have automatic seatbelts or ignition locks
       k. 1974 – Congress passed a law banning regs requiring interlocks and said that
           all future regs on passive restraints had to be submitted to Congress for
           legislative veto - this was an enormous pain – why was it built? – to prove it
           was a bad idea
       l. DOT under Ford withdrew the regs
       m. DOT under Carter passed new passive restraint regs for 1982, Congress didn’t
           veto them
       n. 1981 – DOT withdrew the regs – Motor Vehicles Manufacturers Assn. v.
           State Farm
                a. State Farm wanted the regs
       o. 1984 – DOT under Libby Dole
       p. States vied with themselves to come up with the most ridiculous seatbelt laws
       q. Most state laws didn’t work, so we went to passive restraints and air bags
       r. Lee Iacocca – went on TV and convinced people that air bags were good and
           safe
       s. His strategy was figuring out that he could build a cheap minivan if he called
           it a light truck – none of the safety regs applied to light trucks – so of course
           he wanted air bags, because the vans were cheaply made
       t. 1997 – most newer cars had airbags
       u. 1998 – airbags kill small children and grannies
                a. Nothing new – known at the time
                b. Save many more
       v. 1999 – you can get your airbag disconnected
       w. This is a classic regulatory cycle spread out over 20+ years with conflicting
           views and conflicting agendas
       x. We see the regs flipping back and forth as administrations change
       y. Parallel with this, MADD is building up momentum to pass drunk driving
           laws
       z. The most important impact is that cars are much safer now
       aa. As a plaintiff’s lawyer, a safer car means you have more potential plaintiffs -
           as cars get safer, liability for crashes increase
122. TOBACCO IN THE COLONIES
       a. The next exciting regulatory dilemma
       b. When did it come into European culture? – when Columbus found America –
       Indians had it
       c. Tobacco was critical to the colonial economy because it was a cash crop – and
       it was a better cash crop than others because it was more well-liked and it was
       easier to ship it back to Europe than other crops
       d. In the 1950s, smoking was viewed by most people as cool
       e. Why is it hard to quit smoking? – nicotine is one of the most addictive
           substances known
       f. 1964 – what happened to change our attitudes about smoking? – it was the
           first time the Surgeon General came out and said smoking was bad for you
       g. 1965 – strict liability was pivotal event
       h. Federal Cigarette Labeling and Advertising Act – 1965/1969
                a. Required hazard labeling on cigarettes
                b. Banned cigarette advertising in electronic media regulated by the FCC
                          i. Why not ban it everywhere? – because of First Amendment
                             problems
                         ii. Broadcast media (radio and TV) are regulated by the FCC
       i. Prevented state additional requirements
                a. Why did they do this? – it was a bargain – they didn’t want the states
                    in enlightened places to be able to regulate cigarette advertising and
                    they didn’t want tort lawyers to be able to sue the manufacturers for
                    selling incredibly dangerous products they lied about
                b. This was a wonderful political ploy
       j. We care about this because it costs us a lot of money and because it kills a lot
           of people
       k. Public health impact of tobacco
       l. In defense of tobacco
               a. It limits retirement
                         i. Saves Medicare and SS
                        ii. Great for private pension plans as well
       m. If you factor in the cost of tobacco, the problem isn’t that people smoke, its
           that they don’t smoke enough
       n. Tobacco will reduce life-time health care costs if you smoke enough
       o. Improves job opportunities for young, cheaper workers
       p. If you do a lifetime cost analysis, smoking a lot and being fat is a lot cheaper
           for the state
       q. The reason we have a Medicare and SS crisis is because we have a lot of
           healthy old people
123. HISTORY OF SUING THE GOVERNMENT
       a. Traditional Sovereign Immunity
       b. All compensation had to be by private bills
       c. Court of Claims
               i. 1855
               ii. Administrative tribunal to review claims and make recommendations to
               Congress
               iii. Later Congress made the decisions binding
                                1. Not an Art. II court
                                2. Like bankruptcy courts
               iv. Appeal to the Federal circuit and the US Supreme Court
               v. Contracts, tax refunds, takings – not torts
124. FEDERAL TORT CLAIMS ACT
       a. Went into effect into 1945
       b. All private bills before then
       c. Allowed tort claims
       d. Significant exceptions
125. BIRD FLU
       a. Vaccine that will make some people sick
       b. Feds want to come up with new ways of making the vaccine
       c. What about an experimental vaccine?
       d. What if the feds make you take the experimental vaccine – can they do that? –
           remember Jacobson – they probably have the authority to do I
       e. What if it harms you? – you would think you had a claim – Allen tells us that
           as long as the government did it on purpose, you are out of luck
126. LEVEE ISSUES IN KATRINA
       a. Claims raised about the levees
                     i. Negligent design – there is a bunch of peet moss under them
                    ii. The area wasn’t just a swamp, it was a significant wet swamp
                        recently – 9th Ward
                   iii. There are questions about whether or not the contractor who built
                        the levee wall if his construction was correct
                    iv. The levee wall on Lakeview – there was an adjudication about why
                         the levee walls weren’t straight when they were finished – the ALJ
                         said it didn’t matter
                     v. Negligence against the Corps and the contractors
       b. The Industrial Canal is for boats going between the Mississippi and Lake
       Pontchatrain
       c. Where does Industrial Canal fit into the cases? – is it a flood control project or a
       navigation project? – the Industrial Canal is navigation; the 17th Street Canal is
       flood control project
       d. The Flood Control Act doesn’t apply to the Industrial Canal because it is a
       navigation canal – Graci v. US – and in theory the Corps might be on the hook
       now
       e. What if the canal serves a dual purpose?
       f. What are the Corps’ defenses? – agencies are constantly making cost benefit
            analyses
       g. If the Corps can say they built it with the best they could afford – that is
            discretionary authority
       h. If they say they are surprised by what is down there – did they have a duty to
            know what was under the levees?
       i. What is suing the Corps worth?
       j. Policy question – what is the effect of the litigation going to be? – what is the
            one thing you know will happen as a result of this litigation? – it is going to be
            delayed and will take a long time
127. PUMP QUESTION IN NEW ORLEANS
       a. The ones in Metairie problem is that there was a huge pump that was built and
       the pump wasn’t working – it overheated
       b. There wasn’t adequate shelter for the pump operators, who need to be there
       while the pumps are running – they need the pump operators to clear the trash out
       while the water is being pumped out
       c. The operators aren’t going to be out there in 140 mph wind
       d. There are supposed to be steel houses for the operators to live in while the
       hurricane is going on – but they hadn’t finished building them
       e. Is this like the power cord that didn’t get fixed in Sadin?
       f. What about choosing a design that couldn’t be run during the hurricane?
       g. The pumps were designed to not work during hurricanes
       h. One huge question – will this be Berkovitz discretionary authority in choosing
       the design or is it Sadin saying what a dumb idea; you needed to have the housing
       and it was negligent to choose a design to pump water out during hurricanes when
       you can’t run them during the hurricane?
       i. Maybe the answer is that you can’t design a pump that can run during a
       hurricane because there isn’t any good answer to the operators and the rakes that
       clear the trash out the pumps
       j. The question is, what does it mean to have a $2 billion verdict against NO? does
       NO have any money? – no – is the state going to pay it off? – no
       k. Not sure whether winning a huge verdict is really worth that much, but it is
            guaranteed to cause a lot of mischief
128. ADMINISTRATIVE SEARCHES AND TERRORISM
      a. Post 9/11, the distinction between administrative law and criminal law has been
      blurred
      b. Bush is calling for administrative search warrant powers to investigate
      terrorism

129. ADMINISTRATIVE SEARCHES
   a. Are carried out a lot
   b. Is a big area of practice with very little case law on it and very little guidance – it is
   an area of law where the theories aren’t as well worked out as you would guess
   c. Adjudications
                     i. When the inspector gets in the door, he is carrying out an
                        adjudication – he is making factual observations
                    ii. Inspectors have a set of specified rules that they go through to
                        determine if the facts match the set of rules
                   iii. The rules are usually adopted by statute or regulation
                   iv. The inspector makes a record by going down a checklist – based
                        on the score, you pass, fail, get a re-inspection, get closed down
                    v. You have an administrative appeal to the agency of that inspector’s
                        decision – jurisprudentially, it is like a small hearing
   d. It is an adjudication, but you have to get in the door
   e. All of this has gotten a lot more interesting post-9/11 – Homeland Security guys
   want to snoop around a lot
   f. The CIA got very interested in administrative warrants – take national security law
   – FISA – warrant for criminal investigation involving national security – uses
   standard less than 4th Amendment probable cause – generally use against non-US
   citizens – looks like an administrative warrant – but they are pushing the envelope

130. FOURTH AMENDMENT
a. The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized

131. CRIMINAL LAW
      a. Fourth Amendment Requirements for searches to find evidence in criminal
      prosecutions
                 vi. Warrant that specifically describes the premises to be searched and
                     what is being sought
                vii. Probable cause based on reliable information
               viii. Judicial approval
          b. Exceptions
                  i. Plain view
                         1. Telephoto lenses?
                         2. Space Cameras?
                         3. Infrared?
                            4. How did you get where you are viewing from?
                            5. The thing to keep in mind with plain view- if someone is in
                                your house for an administrative purpose, does that make
                                everything they see a “plain view” for general law, or is it
                                limited to the purpose for which they are there?
                   ii. Hot pursuit
                            1. Not ad law cases
                  iii. Securing the scene to prevent injuries
                            1. Not ad law cases
132. Licenses and Permits
       a. Restaurant license, elevator license, shellfish processing license
               i. Issued on set criteria established through statute or regulation
       b. Can require consent to searches as a condition of licensure
               i. Restaurant licenses – any time during regular business hours
       c. If you run a restaurant, the health inspector can come in any time during
       business hours, without warning, a warrant, an area warrant and inspect you
       d. Are restaurants pervasively regulated industries? – do they meet the criteria?
       e. Why are restaurants inspected? – sanitation standards – politicians want to keep
       their constituency from getting sick because they will complain – bad publicity
       f. Why do you need to be able to do surprise inspections in order to further your
       purpose? – because they may operate under a different standard until they knew
       you were coming
       g. What is your constitutionally adequate substitute? – the licensing process –
       they are told that inspections will occur every so often, but they won’t know how
       often – they are put on notice, told the conditions, and told the limitations of the
       search
       h. Restaurants are a classic pervasively regulated industry
       i. What about evidence of unrelated crime?
            i. Restaurant inspector finds your cook’s stash of cocaine
                          1. Can the inspector call the cops? – NO
                          2. The cook’s cocaine doesn’t have anything to do with the
                              purpose of the inspection
                          3. It doesn’t have anything to do with the regulatory scheme
                          4. Was the cook on notice that he was subject to have his
                              cocaine stash inspected? – NO – the health regulations didn’t
                              say that the purpose includes searching for CDSs
                          5. Need a criminal warrant
                          6. One of our key issues is that you aren’t supposed to use these
                              as a subterfuge
                          7. Key distinction from Burger – this isn’t criminal activity that
                              is involved in the scope and course of the business
                          8. This notion of related activity is implicit in a lot of the cases,
                              but it hasn’t gotten a lot of judicial scrutiny – it is still left as
                              an open question
            i. But it is thought that you should be able to call the cops
                   a. What did Camara say?
                              i. Finally, because the inspections are neither personal in
                                 nature nor aimed at the discovery of evidence of crime,
                                 they involve a relatively limited invasion of the urban
                                 citizen’s privacy
                             ii. If you start looking for crime, that changes
133. Administrative Searches and Terrorism
       a. Homeland security is wrapping themselves in the traditional public health and
       safety field
       b. When we pick a suspected terrorist up under an administrative hold – can we
       do that?
       c. If we want to use the administrative standard why don’t we just say we don’t
       want to prosecute these people – that might solve the issue
       d. It is the holding open the option of criminal prosecution relating to the searches
       and detentions that creates this criminal law issue
       e. Another issue from criminal law – silver platter doctrine – all the fourth
       amendment protections have nothing to do with private citizens – two dilemmas
                        i.       Notion of someone becoming a police agent – if the cops
                                 tell you they think your neighbor is a dope dealer and to
                                 keep your eyes out and grab the dope – you are an agent of
                                 the police and the 4th Amendment applies
                        ii.      What happens if Homeland security runs seminars for
                                 public health inspectors around the country saying what
                                 terrorist things look like (C4, Bin Laden tape, etc) – and
                                 say if you see anything during the inspections, to call them
                                 – does that turn the health inspectors into police agents and
                                 4th Amendment applies – is a difficult problem
                        iii.     Can Homeland security raise public consciousness?
                        iv.      Have problems with administrative searches using this
                                 authority in other contexts – problem of are we going to
                                 make everyone police agents
       f. It is a difficult dilemma on how far we give up our individual security
134. Authority for Reporting Subpoenas
       a. Most state and federal agencies that have significant regulatory powers may
       require reporting under the general grant of authority
       b. If the agency has a limited grant of authority or does not have a regulatory role
       (CDC), they will need a specific authorization to require reporting
       c. Subpoena power requires a specific grant of authority
       d. The first agency reporting requirements were promulgated by state agencies
       e. Communicable disease reporting began in the colonies and was carried over to
       the state and city governments – reports of smallpox were critical to quarantines
       and vaccination programs – third party reporting

135. First Party Reporting
        a. Reporting about your or your businesses own activities
        b. Thinking about the rights at issue
        c. Look at the purpose of the report
               a. Is it targeted at identifying illegal behavior?
               b. Is it overly burdensome?
               c. At federal level, does the report comply with the Paperwork Reduction
                   Act?
136. Third Party Reporting
       a. Is about reporting other people
       b. Privacy issues, but no 4th and 5th Amendment issues
       c. The third parties usually don’t have standing to challenge the report
       d. Key issue here is self-incrimination
       e. It isn’t improper search because you aren’t searching at all
       f. If the government gets a third party to rat you out, there aren’t any
           constitutional bars to using that evidence – silver platter doctrine
       g. Contemporary Third Party Reporting
               a. Continue to do communicable disease reporting – STDs, TB
               b. Vital statistics data (birth and death certificates)
               c. Child, spousal, and elder abuse
               d. Violent injuries, including gun shots
               e. Cash transactions over $10K (banks)
       h. Privacy issues
               a. What about privilege? – there shouldn’t be any constitutional bar here
                   – is stuff about attorney-client privilege, but there has always been an
                   exception for ongoing criminal activity, so there shouldn’t be any
                   constitutional bar here
               b. What about priests? – confession to the priest about child abuse is
                   probably sheltered – but should the diocese report the priests?
               c. There is no historical privilege for physician-patient relation – that is a
                   statutory privilege
       i. Enforcement
               a. Governmental
                        i. Loss or limitation of professional license
                       ii. Administrative fine
                      iii. Criminal prosecution
                      iv. There are few enforcement actions
               b. Private
                        i. Negligence per se claims
                                1. Have to prove that this was a proximate cause of your
                                   injuries – these actions are about warning the state who
                                   would intervene
                       ii. Slightly different from Tarasoff claims
137. Paperwork Reduction Act
       a. Designed to keep federal agencies from having too many onerous reporting
           requirements
       b. If an agency wants to require reporting of a group of people it has to be
           reviewed by OMB
       c. Applies to most agencies, including independent ones
       d. OMB doesn’t have the authority to veto requests by independent agencies
       e. What is covered:
               a. Reports required of 10 or more people
               b. Also covers requirements to give information to the public
                         i. MSDS
                        ii. Food labels
                       iii. Hazardous materials inventories
               c. Applies to investigations of a class of persons
       f. Exceptions
               a. Law enforcement investigations
               b. Civil lawsuits
               c. Adjudications
               d. Investigation of a single person or company
       g. Standards
               a. Agency must show the information is required for the agency’s
                    function
               b. Agency must show it doesn’t duplicate information collected by other
                    agencies
               c. Agency must show it isn’t overly burdensome
       h. If the data collection is part of a rule or regulation to notify the public about
          these reporting requirements, that satisfies the Paperwork Reduction Act
               a. The public may object through comments
               b. ORIA may also file comments for objections
       i. If it is not part of a rule, there must be a separate posting and period for public
          comment
       j. OIRA Review
               a. Can veto requests unless they are in a rule – they can only comment on
                    rules
       k. The executive office can veto it if it isn’t a rule; if it is a rule, the executive
          office can only file comments
       l. Independent agencies can ignore the veto
       m. Executive agencies usually negotiate to resolve the problem
       n. There is limited authority for judicial review
       o. Administrative Requirements
               a. Have to assign a control number
                         i. If they don’t put the control number on it, they can’t hammer
                            you if you don’t fill it out
       p. The agency must explain why the information is needed and how to complete
          the form
138. Subpoenas
               a. A reporting requirement directed at a single, identified individual or
                    company
               b. Reporting requirements usually require the creation of a report
               c. Usually ask for already existing documents – subpoena duces tecum
               d. Are enforced through judicial orders and contempt
               e. Reporting requirements usually have agency sanctions
               f. Contesting a Subpoena
                        i. Does the agency have the power to issue the subpoena? (4th and
                           5th Amendment issue)
                       ii. You can ask the court to quash the subpoena
                      iii. You can wait for the agency to go to court to get an order and
                           contest the authority for the subpoena then
                      iv. The agency may provide their own administrative review of
                           subpoenas, which you would have to follow
                               1. If you are contesting the legality of the subpoena, you
                                   don’t have to go through the agency’s administrative
                                   process
               g. Fourth Amendment Issues – Morton Salt Test
                        i. Is a reporting requirement or a subpoena a search?
                       ii. Court said it was an attenuated search
                      iii. Morton Salt Factors
                               1. Is the subpoena sufficiently specific to allow
                                   compliance?
                               2. Is the subpoena unduly burdensome?
                                       a. The more important the data is to the public
                                           welfare, the less likely the court will be to grant
                                           your burdensome argument
                               3. Does the agency have a proper purpose?
                      iv. Basically a reasonableness test
                       v. Hard to beat an agency subpoena
               h. Fifth Amendment Issues
                        i. Only applies to people, not corporations – becomes an issue if
                           you are a criminal officer or a corporation
                       ii. Self-incrimination
                      iii. Only applies if there is a threat of criminal prosecution
                      iv. Does not apply to documents that you have voluntarily created
                       v. The government must force you to testify against yourself,
                           which means you have to create a document that testifies
                           against you
                      vi. Core issue – are you being forced to create a document that
                           will be used against you?
139. Freedom of Information Act (FOIA)
       a. President Johnson
               i. “This legislation springs from one of our most essential principles: a
                   democracy works best when the people have all the information that
                   the security of the Nation permits. No one should be able to pull
                   curtains of secrecy around decisions which can be revealed without
                   injury to the public interest
       b. At the same time, the welfare of the nation or the rights of individuals may
       require that some documents not be made available
       c. FOIA and the Privacy Act work together - FOIA provides the availability of
       records with some exceptions – the Privacy Act keeps the government from
giving away your personal information even if it would be allowed to do that
under FOIA
d. Exemptions
       i. National security – military secrets
       ii. Citizen complaints
                a. A citizen must be able in confidence to complain to his
                    government and to provide information, just as he is – and
                    should be – free to confide in the press without fear of reprisal
                    or of being required to reveal or discuss his sources
       iii. Personnel information
                a. Fairness to individuals also requires that information
                    accumulated in personnel files be protected from disclosure
       iv. Governmental Operations
                a. Officials within the government may be able to communicate
                    with one another fully and frankly without publicity. They
                    cannot operate effectively if required to disclose information
                    prematurely or to make public investigative files and internal
                    instructions that guide them in arriving at their decisions
e. Who Uses FOIA and Why?
       i. Reporters
       ii. Businesses
       iii. Lawyers
       iv. NGOs
       v. Citizens
       vi. The number one group of competitors looking for this information are
       foreign companies because no other country has a FOIA
       vii. Policy is that there are no strings on who can get this information – has
       been questioned as to whether that is in our strategic interest
f. Burden of Proof
       i. In the old days, you had to convince the government you had good
       reason
       ii. Now, the only time it matters with why you get the data is what they
       can charge you for it
g. There are no disallowed reasons for asking for information under the FOIA
h. What are allowable purposes for requesting information under the FOIA?
       i. One major use is lawyers who are investigating cases prior to litigation
       ii. Post-9/11 – the DOJ issued an order to remind agencies to read the
       exceptions in the FOIA carefully and to withhold information if they
       thought they had a sound legal basis for doing so
       iii. They didn’t change the official policy, but they told the agencies to be
       careful
       iv. The exceptions are essentially voluntary – are guidelines to the agency
       what it shouldn’t disclose – the agency can do a balancing test to choose to
       release information that is covered by an exception – unless there is
       another law that says they can’t disclose information
i. Scope of the FOIA
         i. The FOIA applies to documents held by agencies of the executive
         branch of the federal government. The executive branch includes cabinet
         departments, military departments, government corporations, government
         controlled corporations, independent regulatory agencies, and other
         establishments in the executive branch
         ii. The definition for “agency” for FOIA is broader
         iii. Exceptions
                          1. POTUS, VPOTUS, Senators, Representatives – any
                             other elected official of the federal government
                                 a. Papers of ex-presidents are covered to some
                                     extent
                          2. Post Office
                          3. Regulatory agencies
                          4. Military
                          5. Judiciary
                          6. Private Companies
                          7. Persons who receive Federal contracts or grants
                          8. Private organizations
                          9. State or Local governments
         iv. If you aren’t an agency under the FOIA definition, then it doesn’t apply
         v. Biggest fight – when the federal government contracts with third parties
         or companies to gain information – if the information stays with the party,
         you can’t get it from the party – the feds can move critical information to a
         third party contract and shelter it from FOIA
         vi. Exception:
                          1. Shelby Amendment
                                  i. Allowed FOIA access to data produced by
                                     universities on federal grants
                                 ii. This is relatively recent and still fairly
                                     controversial
j.   Court Ordered Discovery
         a. Usually only in litigation
         b. Must lead to admissible evidence
         c. Limited ability to get information from non-parties
         d. Puts other side on notice of what you are looking for
         e. Constrained by limits in the rules of civil procedure and in local court
              rules
k.   The FOIA provides that a requester may ask for records rather than
     information
l.   An agency is only required to look for an existing record or document
m.   An agency is not obliged to create a new record to comply with the request
n.   An agency is neither required to collect information it does not have, nor must
     an agency do research or analyze data for a requester
o.   When records are maintained in a computer, an agency is required to retrieve
     information in response to a FOIA request
p. The process of retrieving the information may result in the creation of a new
   document when the data is printed out on paper or written on computer tape or
   disk
q. Since this may be the only way computerized data can be disclosed, agencies
   are required to provide data even if it means a new document must be created
r. The law requires that each request must reasonably describe the records being
   sought. This means that a request must be specific enough to permit a
   professional employee of the agency who is familiar with the subject matter to
   locate the record in a reasonable period of time
s. Standard
       a. Whether a professional employee of the agency who is familiar with
           this will find the record
t. Making a Request
       a. The request letter should be addressed to the agency’s FOIA officer or
           to the head of the agency
       b. The envelope containing the written request should be marked
           “Freedom of Information Act Request” in the lower left-hand corner
u. Basic Elements of a Request
       a. First, the letter should state that the request is being made under the
           FOIA
       b. Second, the request should identify the records that are being sought as
           specifically as possible
       c. Third, the name and address of the requester must be included
       d. Optional items
                 i. You phone number
                ii. How much you are willing to pay
               iii. Why you should get a discount
               iv. The format you want
                v. Reasons for expedited processing
v. Fees
       a. First, fees can be imposed to recover the cost of copying documents
       b. Second, fees can also be imposed to recover the costs of searching for
           documents
       c. Third, fees can be charged to recover review costs. Review is the
           process of examining documents to determine whether any portion is
           exempt from disclosure
w. Categories of Requesters
       a. News and Educational
                 i. A requester in this category who is not seeking records for
                    commercial use can only be billed for reasonable standard
                    document duplication charges
                ii. A request for information from a representative of the news
                    media is not considered to be for commercial use if the request
                    is in support of a news gathering or dissemination function
       b. Commercial
                 i. Requesters seeking records for commercial use
                        ii. Commercial use isn’t defined in the law, but it generally
                            includes profitmaking activities
                       iii. A commercial user can be charged reasonable standard charges
                            for document duplication, search, and review
                c. Everybody Else
                         i. People seeking information for personal use, public interest
                            groups, and nonprofit organizations are examples of requesters
                            who fall under this group
                        ii. Charges for these requesters are limited to reasonable standard
                            charges for document duplication and search. Review costs
                            may not be charged
                d. Small Requests
                         i. Small requests are free for a requester in the first and third
                            categories. This includes all requesters except commercial
                            users
                        ii. There is no charge for the first two hours of search time and for
                            the first 100 pages of documents
                       iii. A noncommercial requester who limits a request to a small
                            number of easily found records will not pay any fees at all
       x. Fee Waivers
                a. Fees now must be waived or reduced if disclosure of the information is
                   in the public interest because it is likely to contribute significantly to
                   public understanding of the operations or activities of the government
                   and is not primarily in the commercial interest of the requester
       y. How long does the Agency Have?
                a. Under the 1996 amendments to the FOIA, each agency is required to
                   determined within 20 days (excluding Saturdays, Sundays, and legal
                   holidays) after the receipt of a request whether to comply with the
                   request
                b. The FOIA permits an agency to extend the time limits up to 10 days in
                   unusual circumstances
                c. What if they ignore you?
                         i. As a practical matter, there is little that a requester can do
                            about it. The courts have been reluctant to provide relief solely
                            because the FOIA’s time limits have not been met
140. Administrative Appeals of Denials of Documents of Fee Waivers
       a. A requester may appeal the denial of a request for a document or a fee waiver
       b. A requester may contest the type or amount of fees that were charged
       c. A requester may appeal any other type of adverse determination
       d. A requester may also appeal because the agency failed to conduct an adequate
       search for the documents that were requested
       e. You need to go through the administrative appeal process before you go to
       court
       f. If you have been through the administrative process, then you can go to the
       courts
141. Form of the Appeal
       a. An appeal will normally include the requester’s arguments supporting
       disclosure of the documents
       b. A requester may include any facts or any arguments supporting the case for
       reversing the initial decision
       c. An appeal letter does not have to contain any arguments at all
       d. It is sufficient to state that the agency’s initial decision is being appealed
142. Judicial Appeal
       a. When an administrative appeal is denied, a requester has the right to appeal
            the denial in court
       b. A FOIA appeal lawsuit can be filed in the US District Court in the district
            where the requester lives
                 a. DC District Court gets a whole lot of these because probably 90% of
                     people requesting information are in DC
       c. The requester can also file suit in the district where the documents are located
            or in the District of Columbia
       d. Standard of Review
                 a. “In such a case, the court shall determine the matter de novo, and may
                     examine the contents of such agency records in camara to determine
                     whether such records or any part thereof shall be withheld under any
                     of the exemptions set forth in subsection (b) of this section, and the
                     burden is on the agency to sustain this action”
       e. Key thing with this – haven’t seen it in any other type of agency action – there
            is no deference to the agency
       f. When the Court Defers to the Agency
                 a. In addition to any other matters to which a court accords substantial
                     weight, a court shall accord substantial weight to an affidavit of an
                     agency concerning the agency’s determination as to technical
                     feasibility under paragraph (2)(C) and subsection (B) and
                     reproducibility under paragraph (3)(B)
       g. How the Court Decides if the Document is Exempt
                 a. In Camara review
                          i. This prevents the plaintiff from being able to attack the claim
                             because he has no information about the documents being
                             withheld
                 b. Vaughn list (Vaughn v. Rosen)
                          i. Agency must list and describe the documents and explain why
                             it is claiming an exemption
                 c. The burden of justifying the withholding of documents is on the
                     government
                          i. You put de novo review together with burden of proof on the
                             agency and you have the agency having to litigate each one of
                             these cases as a trial with no deference (have to the whole case
                             on) – so they are very time consuming and expensive for the
                             agency – is very economically crippling for smaller agencies
                             and creates large delay for larger agencies
                       ii. This is Scalia’s “Taj Mahal” of unintended consequences –
                           Congress didn’t intend for this to happen
                      iii. Congress could fix this, but they would have to either give the
                           agency more discretion to withhold information or they would
                           essentially have to so limit the exceptions that there would be
                           very few close calls – to do that would probably require the
                           disclosure of a lot of information that the agencies believe
                           should be withheld
                      iv. So we are left in a bind – we want this freedom of information
                           process and we are worried about secrets coming out, the court
                           will have to have a very direct oversight role
143. FOIA’s Exemptions
       a. There are 9 classes of documents that the agency may refuse to produce
       b. This is a discretionary decision unless other law further restricts disclosure
       c. For example, there are additional laws protecting trade secrets and classified
          materials
       d. When the Court is reviewing this, if it is within the agency’s discretion and
          the agency has decided to withhold, the court won’t second-guess that
          decision, they only do a de novo review on whether the item qualifies for
          exemption at all
       e. What if the Agency Doesn’t Want to Admit the Document Exists
              a. Ordinarily, any proper request must receive an answer stating whether
                  there is any responsive information, even if the requested information
                  is exempt from disclosure
              b. In some narrow circumstances, acknowledgment of the existence of a
                  record can produce consequences similar to those resulting from
                  disclosure of the record itself
              c. Admitting you have a record about a confidential informant would
                  give away the identity
       f. What if You Ask for an Excluded Record
              a. The exclusions allow an agency to treat certain exempt records as if
                  the records were not subject to the FOIA
              b. An agency isn’t required to confirm the existence of three specific
                  categories of records
              c. If these records are requested, the agency may respond that there are
                  no disclosable records responsive to the request – is known as the
                  Glomar Response
              d. Glomar Response
                        i. Is an agency’s express refusal to even confirm or deny the
                           existence of any records responsive to a FOIA request. This
                           type of response was first judicially recognized in the national
                           security context – Phillippi v. CIA (raising issue of whether
                           CIA could refuse to confirm or deny its ties to Howard
                           Hughes’ submarine retrieval ship, the Glomar Explorer) –
                           although the Glomarization principle originated in a FOIA
                           exemption (1) case, it can be applied in cases involving other
                           FOIA exemptions as well, in particular privacy exemptions (6)
                           and (7)(C)
                      ii. A “Glomar” response can be justified only when the
                           confirmation or denial of the existence of responsive records
                           would, in and of itself, reveal exempt information (DOJ memo)
144. FOIA Exemption ONE – CLASSIFIED DOCUMENTS
       a. Permits the withholding of properly classified documents – information may
          be classified in the interest of national defense or foreign policy
       b. The government will often refuse to confirm or deny if the record even exists
       c. The courts, as long as the process was proper, don’t get to look behind that
          and second-guess the classfication
       d. The system for classifying documents is primarily governed through
          Executive Orders – is one of the President’s powers
145. FOIA Exemption TWO – INTERNAL PERSONNEL RULES AND PRACTICES
       a. Covers matters that are related solely to an agency’s internal personnel rules
          and practices
       b. Areas where these are really controversial – things like prosecutorial
          discretion
       c. Types of Documents Exempted
              a. First, information relating to personnel rules or internal agency
                  practices is exempt if it is a trivial administrative matter of no genuine
                  public interest
              b. Second, an internal administrative manual can be exempt if disclosure
                  would risk circumvention of law or agency regulations
              c. In order to fall into this category, the material will normally have to
                  regulate internal agency conduct rather than public behavior
146. FOIA EXEMPTION THREE – INFORMATION EXEMPT UNDER OTHER
LAWS
       a. Incorporates into the FOIA other laws that restrict the availability of
          information.
       b. To qualify under this exemption, a statute must require that matters be
          withheld from the public in such a manner as to leave no discretion to the
          agency
       c. IRS records are an example
       d. This is the catch-all exemption – if there is any law that Congress has passed
          that prevents the government from releasing information, it trumps the FOIA
147. FOIA EXEMPTION FOUR – CONFIDENTIAL BUSINESS INFORMATION
       a. Most commonly contested exemption
       b. Trade secrets
              a. A legally defined term in tort law
              b. You violate a trade secret act by stealing the secret – that is important
                  for FOIA because it is a very plastic definition – there is a whole set of
                  criteria that depend on trade secrets – such as how hard you worked to
                  keep the secret
              c. Courts have rolled trade secret into confidential business information
       c. Confidential business information
              a. The courts have held that data qualifies for withholding if disclosure
                   by the government would be likely to harm the competitive position of
                   the person who submitted the information
              b. Information may also be withheld if disclosure would be likely to
                   impair the government’s ability to obtain similar information in the
                   future
              c. If you can’t show the court that this is important business information
                   that shouldn’t be disclosed, the court isn’t going to worry about it too
                   much
148. FOIA EXEMPTION FIVE – INTERNAL GOVERNMENT COMMUNICATIONS
       a. Applies to internal government documents
       b. Examples
                         i. A letter from one government department to another about a
                            joint decision that has not yet been made
                        ii. A memorandum from an agency employee to his supervisor
                            describing options for conducting the agency’s business
                      iii. Include lawyer client privilege
       c. NLRB v. Sears Roebuck
                         i. What does the regional office do when there is an unfair labor
                            practices complaint it does not want to adjudicate?
                                1. The office of counsel makes the final decision in an
                                    appeal memorandum
                        ii. Who does it ask for advice and what does it get
                                1. When the regional office is considering such a request
                                    it gets an advice memorandum from counsel
                      iii. What did Sears want?
                                1. Documents exchanged between the NLRB counsel and
                                    the regional offices
                       iv. What privilege did the NLRB claim?
                                1. Agency claimed (B)(5) agency memorandum privilege
                                    – attorney client privilege
                        v. Sears says these reflect policies already adopted by the agency
                            and thus are not subject to this exception because they do not
                            further agency consultation
                       vi. What presidential privilege does this resemble?
                                1. Exemption 5 mirrors the executive privilege to not
                                    disclose certain documents in litigation
                      vii. What is a memo for decision-making v. a memo for policy?
                     viii. In this case, when there is an unfair labor practice as a
                            complaint, the regional office has to decide whether or not to
                            act
                       ix. Office of counsel makes a final appeal on a memoranda –
                            counsel advises agency what to do
                        x. When the Exemption Applies
                                1. To fall into the exemption, the documents must be part
                                    of the agency decisionmaking process
                                2. Court wants to protect the frank discussion of legal
                                    policy matters so that agencies will not be completely
                                    swayed by public opinion
                                3. Key test
                                        a. Are these pre-decisional documents or is this an
                                            explanation about why they didn’t adjudicate?
                                4. Documents don’t get sent until they have made the
                                    decision – they are really documenting why they won’t
                                    act on complaint; not ones furthering the discussion
                                5. Court said if you are just explaining what you did, that
                                    should be open to the public
                                6. Exemption 5 also covers attorney work product
                       xi. What if the agency uses the internal documents as a basis for a
                            rule?
                      xii. And the public comes in and says they can’t evaluate the basis
                            of the rule unless they are made public
                     xiii. At that point, the agency has to either make them public or
                            change the basis of the rule
       d. Why do Advice and Appeals Memos not Fall under Exemption 5?
                         i. They are not sent until Counsel makes its decision on not filing
                            a complaint, and thus do not fall under 5
                        ii. What about memos which direct the filing of a claim?
                                1. They just initiate the process and are clearly part of an
                                    ongoing transaction which includes further
                                    decisionmaking and legal advice, thus they are subject
                                    to 5
       e. What if Exempt Materials are used as part of a Record for a Ruling?
                1. Materials that might be exemption 5 exempt lose their exemption if the
                    agency relies on them as part of the record for a ruling
                2. If the agency then finds it cannot release them, the record for the rule
                    would fail
149. FOIA Exemption Six – Personal Privacy
       a. Covers personnel, medical, and similar files the disclosure of which would
       constitute a clearly unwarranted invasion of personal privacy
       b. Isn’t an absolute protection
       d. There is precedent that things that aren’t so intrusive could be released – i.e. a
           list of employees
       e. This exemption protects the privacy interests of individuals by allowing an
           agency to withhold personal data kept in government files
                                1. Which would constitute a clearly unwarranted invasion
                                    of personal privacy
                                2. Allows release of information which is not so intrusive
       f. Only individuals have privacy interests – corporations and other legal persons
           have no privacy rights under this exemption
       g. Problem
                a. What about personnel files of SC nominees/
                         i. Can the government withhold them even if the person says it is
                            OK to release them?
               b. Tape of the last minutes of the Challenger?
                         i. Why would the paper want the tape when the y had the
                            transcript – shock effect and it is news
                        ii. Court said the tapes were subject to protection
150. FOIA Exemption Seven – LAW ENFORCEMENT
       a. Allows agencies to withhold law enforcement records in order to protect the
       law enforcement process from interference
       b. Is key because law enforcement agencies have to do a whole lot of things that
       don’t involve law enforcement
       c. Types of Interference
               i. Could reasonably be expected to interfere with enforcement
               proceedings;
               ii. Would deprive a person of a right to a fair trial or an impartial
               adjudication
               iii. Could reasonably be expected to constitute an unwarranted invasion of
               personal privacy
               iv. Could reasonably be expected to disclose the identity of a confidential
               source, including a State, local or foreign agency or authority or any
               private institution which furnished information on a confidential basis,
               and, in the case of a record or information compiled by a criminal law
               enforcement authority in the course of a criminal investigation or by an
               agency conducting a lawful national security intelligence investigation,
               information furnished by a confidential source
               v. Would disclose techniques and procedures for law enforcement
               investigations or prosecutions if such disclosure could reasonably be
               expected to risk circumvention of the law, or
               vi. Could reasonably be expected to endanger the life or physical safety of
               any individual
       d. This list was added in 1974 – the previous provision was short, but gave the
       government very broad discretion to withhold anything that touched on law
       enforcement
       e. This list was meant to limit discretion and encourage the release of
           information
       f. What is a law enforcement purpose?
               1. Remember that law enforcement agencies are also big employers with
                    extensive non-law enforcement activities
       g. What are the Privacy Interests?
               1. The FBI collects lots of raw information on people – why not release it
                    to newspapers?
151. FOIA Exemption 8 – Financial Institutions
       a. Protects information that is contained in or related to examination, operating, or
       condition reports prepared by or for a bank supervisory agency such as the
       Federal Deposit Insurance Corporation, the Federal Reserve, or similar agencies
152. FOIA Exemption Nine – Geological Information
       a. Covers geological and geophysical information, data and maps about wells
       b. Is rarely used – but LA and TX would be good places to find it used, if
       anywhere

153. THE PRIVACY ACT
       a. Privacy Act of 1974 provides safeguards against an invasion of privacy through
       the misuse of records by Federal agencies
       b. In general, the act allows a citizen to learn how records are collected,
       maintained, used, and disseminated by the Federal Government
       c. The act also permits an individual to gain access to most personal information
       maintained by Federal agencies and to seek amendment of any inaccurate,
       incomplete, untimely, or irrelevant information
       d. Key part – it makes the agencies tell what types of private individualized
       information they keep – if you don’t ask the agency that keeps the type of data of
       data that might affect you, you will never know what to ask for
       e. The Act is about you getting data – that is the key thing – this is you –That is
       critical, because the FOIA doesn’t contain a provision to waive the exemption
       because you want the information
       f. Privacy Act acts as a waiver through the request – so the government will
            release it, but only release it to you – that is how the two acts go together
       g. Computer Matching and Privacy Protection Act of 1988
                1. Amended the Privacy Act by adding new provisions regulating the use
                    of computer matching
       h. Can you just ask for all the Records the Government Has?
                1. There is no central index of Federal Government records about
                    individuals
                2. An individual who wants to inspect records about himself or herself
                    must first identify which agency has the records
       i. Getting Other People’s Records
                1. A request for access under the Privacy Act can only be made by the
                    subject of the record
                2. An individual cannot make a request under the Privacy Act for a
                    record about another person
                3. The only exception is for a parent or legal guardian who may request
                    records on behalf of a minor or a person who has been declared
                    incompetent
                4. It is a crime to knowingly and willfully request or obtain records under
                    the Privacy Act under false pretenses
       j. Privacy Act Process
                1. Mirrors the FOIA process
154. Sunshine/Open Meeting Acts
       a. Why have them? – to create open meetings
       b. Benefits – we find out what the government is up to
       c. Costs – it is an exercise of posturing for the crowd, thus achieving paralysis and
       ineffective decision-making
       d. State v. Federal
       1. Federal law has 10 exceptions that mirror the exemptions in the FOIA –
       so the extent that a federal deliberative body is meeting to talk about
       something that you couldn’t get information about with a FOIA request,
       they may go into executive discussion and not allow you to get the
       information
       2. State laws are broader in the sense that they have fewer exceptions –
           but there are personnel matter exceptions; financial decision
           exceptions
       3. Whenever they are making public policy decisions, they have to have
           the open meeting
       4. Agencies don’t like these because they get in the way and it is hard to
           have the press there
       5. Interesting question – what about e-mail?
e. Sunshine Acts require public notice of meetings
f. Agencies try to get around the Sunshine Acts
                  1. Work off written documents – remember the exemption for
                      intra-agency memos
                  2. Meet in groups of two
                  3. Have staff do the meetings and then rubber stamp the results
                  4. Local groups like to forget to file the notice of the meeting;
                      change the time of the meeting; turn it into an emergency
                      meeting; etc.
g. What is a meeting?
                        1. What did the Moberg case find?
                               a. Found that the critical definition was whether
                                    there was a quorum present of either the
                                    governing body or its committees, unless it was
                                    a social or chance gathering
h. FCC v. ITT
       1. The US SC used a narrower definition under the federal law in FCC v.
           ITT
                i. They are only meeting when they are deciding
               ii. They can get together privately when they are receiving
                    information and having informal background discussions
i. What do you tell your clients?
       1. Comply with notice
       2. Do not make the decisions at the background sessions
       3. Clearly separate them, at least in time
j. Sanctions
       1. What sanctions can you get if you prevail on a claim that a meeting
           should have been open
                i. You can get attorney’s fees if you prevail on a claim that a
                    meeting should have been open
k. Can the federal court overturn actions because of improperly closed meetings?
       1. federal law does not allow the court to overturn an agency action
           because a meeting was improperly closed
               2. some states do allow this, plus providing other penalties
155. Federal Advisory Committee Act (FACA)
       a. Congress passed the law to keep the government from packing these boards
       b. FDA is an example
       c. Covers every group used by the President or an agency to get advice
       d. Should be balanced membership and not biased
       e. These were designed to limit the President’s ability to get private advice –
           does that violate separation of powers? (FDR’s Kitchen Cabinet)
       f. If they are all federal employees, this doesn’t apply – is all about outside
           advisory panels
       g. Hilary Health
               a. If this is a federal advisory commission, do we have to let the
                  information out?
               b. Hilary had 800 people that were advisors to this commission
               c. She said the only people really members were government employees
                  so the act didn’t apply

CASES:
1. North American Cold Storage v. Chicago
       a. Freezer failed and 47 barrels of chicken spoiled – chicken was seized and
          destroyed without a hearing
       b. Court ruled that health department could act without a hearing
       c. Business was entitled to a hearing afterwards to contest the action and ask for
          damages if it was unwarranted
       d. Is this a taking?
               a. If the state takes property for public use, it must pay fair value
               b. The state doesn’t have to pay if it is a threat to public health and is
                   destroyed – the state doesn’t have to pay for the costs of regulation
    2. Chevron v. NRDC
          a. Case where courts established a standard to decide if an agency action is
               legal
                    i. First step is to determine if the law clearly prohibits the agency
                       action
                   ii. If the law would allow the action, then the second step is to decide
                       if the agency action is reasonable in light of the objectives of the
                       law
                  iii. If the action is reasonable under the statute, then it is allowed
    3. INS v. Chadha
          a. Congress has the ultimate authority over agencies – they set up the
               agencies but they don’t control the appointment of the people to the
               agency – that is set up by the Appointments Clause
          b. Congress pushed the hard decisions down to the agency – the agency is
               making decisions through an administrative law system – deciding who
               gets to come in; or goes back out; who, out of those that have snuck in,
               have to go back – this keeps Congress out of the political heat
     c. But Congress wanted to be able to still kick someone out if they didn’t like
         them - Legislative veto – Congress gets to decide who gets in
     d. Requirements of §244 (a)(1)
              i. Deportable under any law of the US except the provisions
                  specified in paragraph 2 of this subsection; has been physically
                  present in the US for a continuous period of not less than seven
                  years immediately preceding the date of such application, and
                  proves that during all of such period he was and is a person of
                  good moral character; and is a person whose deportation would, in
                  the opinion of the Attorney General, result in extreme hardship to
                  the alien or to his spouse, parent, or child, who is a citizen of the
                  US or an alien lawfully admitted for permanent residence
     e. Court’s final ruling - that the Congressional veto provision in §244(C)(2)
         is severable from the Act and that it is unconstitutional – this violated
         separation of powers
     f. When the Court decides they do like it, they will say why convenience and
         efficiency are critical and why they rise to constitutional protection
         (Matthews v. Eldridge)
     g. “The fact that a given law or procedure is efficient, convenient, and useful
         in facilitating functions of government, standing alone, will not save it if it
         is contrary to the Constitution”
     h. “Convenience and efficiency are not the primary objectives – or the
         hallmarks – of democratic government and our inquiry is sharpened rather
         than blunted by the fact that congressional veto provisions are appearing
         with increasing frequency in statutes which delegate authority to executive
         and independent agencies”
     i. Post-Chadha – Congress enacted a law requiring notice of certain agency
         actions and created a delay in their implementation to allow it to pass a
         law to override them
              i. It is much harder to do, which leaves the agencies more latitude
                  than before Chadha
4. Myers v. US
     a. President Wilson discharged an Oregon postmaster without cause
     b. Chief Justice and Ex-President Taft wrote the opinion, which found that
         the Tenure in Office Act and related acts were an unconstitutional limit on
         presidential powers
5. Humphreys’ Executor v. US
     a. President fired Humphreys – Humphrey’s next of kin sued for back pay
     b. The Court said Congress could put a tenure of office on a presidential
         appointment - was a much more hostile court
     c. This is the first case to really recognize the independent agency
     d. The Court’s rationale at that time was that the FTC looked like a court
         more than an agency because the FTC did adjudications
     e. As a post-Myers requirement, Congress only allowed FTC commissioners
         to be removed for good cause
      f. The Court explains that the FTC exists to carry out specific policies
         spelled out by Congress and is not meant to be an arm of the executive
         branch
      g. The Court focuses on quasi-judicial functions of the agency, which were
         more unusual at the time, but are no longer limited to independent
         agencies
      h. If the President can find cause he can fire one; but the President hasn’t
         fought this battle – if they do find cause, they leak it to the press and the
         guy eventually loses his job
6. Buckley v. Valeo
      a. How members of the FEC are chosen:
               i. Two members appointed by the President Pro Tempore of the
                   Senate; two by the Speaker of the House; two by the President (all
                   subject to confirmation by both Houses of Congress); and the
                   Secretary of the Senate and the Clerk of the House as ex officio
                   nonvoting members
      b. Case was like Chadha because it dealt with separation of powers
7. Morrison v. Olson
      a. Olson was being picked on by the AG for stuff that went on during a
         republican administration
      b. Independent counsel was appointed and he was going to challenge this law
      c. The court created a core function standard for inferior officers
               i. Is it an inferior official?
                           1. In this case, yes, because of the limited mandate
                           2. Look at what the officer is actually doing
              ii. Is this a critical area for the President to control the exercise of
                   discretion?
                           1. In this case, no, that is why it is independent
             iii. Does the President retain enough control?
                 1. In this case, Yes – good cause is good enough, and this is
                     exercised through someone (AG) the president controls
             iv. How broad is the mandate?
                   1. The independent counsel’s mandate is limited – he is
                       investigating one individual for one particular action
      d. Key issue in Olson
               i. The limitation of the removal power to good cause rather than at-
                   will
      e. Does this impermissibly interfere with the President’s power to carry out
         the laws?
               i. Majority says “no”, rejects the use of “quasi-legislative/quasi-
                   judicial” labels and focuses on separation of powers
      f. Why was Olson the wrong person to challenge the law?
               i. If the IC is not faithfully carrying out the laws, then there would be
                   good cause to remove him, and if he is, then what is the
                   justification for removing him?
               ii. The case would have been much more interesting if the AG had
                   removed the IC and he was suing to continue in his job
      g. Scalia dissented
                i. Said the law was a limitation in the president’s power; it
                   intimidates subordinates
               ii. Scalia was right
8. Mistretta v. US
      a. Case attacked the US Sentencing Commission
      b. Was a separation of powers on the question whether judges had an
          unfettered discretion to sentence people and whether the sentencing
          commission’s limitations breached separation of powers
      c. The effort was to try to make sentencing more uniform and to dispute the
          disparity of who went to jail; also to reduce the sentences
      d. End result was the opposite of the intention – by the time they were done,
          white collar criminals had longer sentences, but so did drug offenders;
          also, it eliminated various ways to shorten a sentence
      e. Court said that judges have enormous independence but there is nothing in
          the Constitution that says they get to decide what the law is in terms of
          things like sentencing – Congress has the power to limit judicial authority
          on sentencing and therefore this was not a separation of powers issue -
          Congress has broad power on the courts
      f. The Court upheld this Commission because of it peculiar nature, finding
          that it did not unduly affect the judicial branch
      g. The attack on the Sentencing Commission made it back to the Supreme
          Court because of questions about whether the factors used for sentencing
          had been ruled on by the jury – was a Due Process issue
      h. Essentially, the power of the sentencing commission has been limited on
          due process grounds
9. Wooley v. State Farm Fire and Cas. Ins. Co.
      a. McCarron-Ferguson Act
                i. With a few exceptions, leaves the regulation of insurance to the
                   states
               ii. Insurers are organized by state
             iii. States do not have the information or expertise to do the job
              iv. Limits the risk sharing to small pools
               v. Exempts insurance companies from antitrust laws – allows
                   collusive action between the independent companies
      b. The Insurance Commissioner prior to 1956 was the Secretary of State – it
          was one of those jobs the Secretary of State took charge of – was not a
          crazy solution
      c. After a while, it was turned into an elected office – in 1960, it went to the
          voters, and the voters approved making this an elective office
      d. Critical fact about this – what powers came with being an elective office?
          – NONE – there were no constitutional powers
      e. Act 609 of 1960, the legislature proposed a constitutional amendment to
          add the Commissioner of Insurance to the constitutional elective offices
     and it was amended – the Commissioner of Insurance was created as a
     constitutionally elective officer in the executive branch
f.   The department shall exercise such functions and the Commissioner shall
     have such powers and perform such duties as may be authorized by this
     constitution or provided by statute
g.   The DAL shall commence and handle all adjudications in the manner
     required by the LAPA, that the ALJ shall issue the final decision or order
     and the agency shall have no authority to override the decision or order,
     that the governor shall appoint, and the Senate confirm, a director for
     DAL, who, in turn, shall employ the ALJs, and that the current ALJ,
     employed by the various affected agencies shall be transferred to and
     employed in the DAL.
h.    The ALJ shall have the authority to:
           i. Regulate the adjudicatory proceedings assigned to him
          ii. Issue such decisions and orders as are necessary to promote a fair,
              orderly, and prompt adjudication
        iii. Exercise those powers vested in the presiding officer in the
              Administrative Procedure Act
         iv. If the parties do not object, conduct adjudications or conferences in
              person or by telephone, video conference, or similar
              communication equipment, and administer oaths in such
              proceedings
          v. Continue an adjudication in any case when a party or subpoenaed
              necessary witness has been called to service in the uniformed
              services as defined in R.S. 29:403, including but not limited to a
              proceeding pursuant to R.S. 32:667
i.   ALJs do not have the power to enforce their decisions and orders, powers
     that unquestionably lies in Article V courts
j.   The ALJs simply are not constitutionally allowed to exercise the judicial
     power of the state and Act 739 does not impermissibly attempt to
     authorize the exercise of judicial power. The ALJs make administrative
     law rulings that are not subject to enforcement and do not have the force
     of law.
k.   Administrative agencies are a governmental hybrid whereby they exercise
     powers similar to those exercised by all three branches of government
l.   A quasi-judicial function is one that involves the use of some discretion,
     but is of a different type than a judicial decision. The function is
     somewhere between strictly judicial and ministerial
m.   Did Res Judicata apply?
           i. Pursuant to this statute a second action is precluded when all of the
              following criteria are satisfied:
                              a. The judgment is valid
                              b. The judgment is final
                              c. The parties are the same
                                    d. The cause or causes of action asserted in the
                                        second suit existed at the time of final judgment
                                        in the first litigation; and
                                    e. The cause or causes of action asserted in the
                                        second suit arose out of the transaction or
                                        occurrence that was the subject matter of the
                                        first litigation
      n. The Supreme Court gets to decide if it was okay for the agency to thumb
          their nose at State Farm
      o. Try the res judicata act in LA
                i. Supreme Court said no – it can’t be a final ruling so they missed on
                   requirement #2; and since they missed on #2, they missed on #1
                   because it isn’t valid
               ii. Leaves State Farm in a bind – State Farm won with the ALJ and if
                   they are smart they aren’t using that policy until they resolve this
      p. Current state of this – a regulated party relies on an ALJ finding not
          endorsed by an agency at their own risk and nothing stops an agency from
          going into court to bring all of the sanctions to bear that go into using an
          illegal insurance policy
      q. Second part of this opinion
                i. Deals with the power of the legislature to limit the authority of the
                   head of any agency to appeal the ALJ’s decision
               ii. Court said he didn’t have constitutional powers because the
                   legislature wanted control over the powers of the office
              iii. The legislature has the power, within constitutional guidelines to
                   reduce/eliminate the powers of any agency whose powers are not
                   specifically listed in the constitution
              iv. A state agency can ask a state court to determine a legal matter –
                   give them an advisory opinion
               v. The agency could ask the court to determine the legal validity of
                   the insurance policy – if the court rules it is valid, the agency can
                   appeal that and if the court rules it is invalid, State Farm is stuck –
                   they have a final ruling, but they could appeal
      r. An unintended consequence we have with this is if you are an agency, you
          don’t have to use an ALJ unless it is required in the statute – you generally
          use it as a less costly alternative to go to court – but what agencies are
          doing now is going directly to court because in court they control the
          presentation of their case and they get to appeal – so if you are a regulated
          party without deep pockets, they have taken a more attractive forum for
          you away and have thrown you into court
10. Moore v. Roemer
      a. One of the cases where the Court declared something unconstitutional that
          really mattered – threw out the whole workers’ compensation system
      b. Said all the rulings had to be reviewed by the courts if the parties wanted
          them
       c. Legislature put an amendment to the voters and the voters decided that
          they want workers’ compensation and approved the amendment
11. Goldberg v. Kelly
       a. Dealing with the due process rights to be terminated from welfare
       b. It raised this notion of a statutory entitlement as opposed to a
          constitutional entitlement
       c. Constitutional entitlement – you are, as a resident of the US,
          constitutionally entitled to a certain set of due process rights if you are
          accused of a crime
       d. The Court in Goldberg talks about matrix regulation – it is the simple idea
          that you have a whole list of criteria that could qualify you for a
          government benefit – they are laid out in a government matrix - If you
          meet the criteria, you get the benefit - if you don’t meet the criteria, the
          examiner may make a case for why you should get the benefit anyway
       e. Pre-Goldberg, if you were on welfare and the case worker decided you
          didn’t meet the criteria anymore, the case worker will send a termination
          recommendation to the supervisor – the supervisor reviews it and sends
          the client a letter outlining the problem and gives the client 7 days to
          appeal it to a higher up
       f. If there is no response, the aid is stopped, you are notified, told of the
          reason and told about the right to a post-termination hearing
       g. Why can’t this be a hearing on written documents? – these are folks who
          will not have an attorney available unless the state provides one – they
          wanted to be able to present testimony orally, which is actually a pretty
          important right – there are folks who want to tell their story who can’t
          write it down in English and can’t hire someone who can do it for them
       h. Why doesn’t the State want to give them a hearing? How does this
          adversely affect the welfare system for other recipients? – the State says
          this will divert other welfare recipients – every dollar put into due process
          comes out of someone else’s check
       i. Court came up with its Goldberg rights:
                i. Timely and adequate notice
               ii. Oral presentation of arguments
                       1. Something new – generally agencies conduct their business
                           on written documents as much as possible
              iii. Oral presentation of evidence
                     1. Setting this up so the claimant can present his case without
                         having to present any written documents
              iv. Confronting adverse witnesses
               v. Cross-examination of adverse witnesses
              vi. Disclosure to the claimant of opposing evidence
             vii. The right to retain an attorney (no appointed counsel)
            viii. Determination on the record of the hearing
              ix. Record of reasons and evidence relied on
               x. An impartial decision maker
       j. The only two major Goldberg changes were the procedural changes to
           conduct it orally and the big right to have the hearing before the benefits
           are terminated, and not after
       k. Best way to understand Goldberg case is as a unique response to very
           compelling facts – welfare recipients if their benefits were terminated
           would probably lose an effective right of appeal; they didn’t have the
           ability to have legal representation; and many of them didn’t write English
           – you could make a good argument that they deserved a right to a pre-
           termination hearing with oral arguments - that was the high point
       l. Roth, Sinderman and Loudermill were all job cases where the people had
           more resources than the welfare recipients
       m. We allow summary proceedings to protect the public health and safety and
           then hold post-action hearings
12. Board of Regents v. Roth
       a. Guy was working for a state actor on a year-to-year contract, which was
           not renewed
       b. This is classic employment at will without an expectation of continued
           employment
       c. He wants a hearing
       d. Court didn’t give him a hearing – didn’t find he had an expectation of a
           continued benefit
13. Perry v. Sinderman
       a. Guy had a job as a teacher
       b. Employer’s policy – could only be fired with cause if you have been there
           7 years
       c. He had been there 10 and they don’t renew his contract
       d. In this case, the Court said he is at least entitled to a hearing on this
14. Cleveland Board of Education v. Loudermill
       a. Could only be fired for cause – no pre-termination hearing and took 9
           months post-termination to get a hearing
       b. Court finally ruled that this would allow the state to basically put
           conditions on a constitutional right – the due process right to a hearing on
           the termination of a benefit where you had a continuing expectation was a
           constitutional right and the state couldn’t limit that right
       c. Why would we want to give people in public employment some sense of
           job security? – private employment in this country has moved to a “every
           person for himself” – which is good for the economy but tough on the
           individuals – that has accentuated the difference between the traditional
           notion of government employment that you don’t get paid well, but they
           won’t fire you
       d. Loudermill at the US Supreme Court
                i. State said the job was a privilege so we get to set the criteria for
                    holding it
                       1. This is the “bitter with the sweet” doctrine
                       2. “Bitter and sweet” doctrine – federal limitations on states
                           – states can’t put limitations on federal due process rights
               ii. The US Supreme Court doesn’t buy this

15. American Manufacturers Mutual Insurance Co. v. Sullivan
       a. PA Comp law requires employers to pay reasonable and necessary
           medical bills
       b. Plaintiffs wanted them paid up front, employers wanted them to prove the
           necessity and reasonableness first
       c. Plaintiffs say this is a termination of benefits and they want due process
       d. Court says they are not yet qualified and must prove eligibility
16. Paul v. Davis
       a. Let the sheriff give a list of “active shoplifters” even if defendant had not
           been convicted
       b. Court distinguished Constantineau
                i. Said that there was a stigma because drunks could not buy alcohol
       c. What did Brennan say this would allow the states to do?
                i. Have commission do ex parte trials as long as all they did was
                    public condemnation, such as calling the person a Communist or
                    traitor
17. Valmonte v. Bane
       a. Plaintiff was put on the child abuse register because of a complaint
       b. Employers were required to check this list
       c. Court found that this deserved a hearing
18. Siegert v. Gilley
       a. Defamatory job recommendations from Government employer
       b. Not a constitutional violation
19. Connecticut Dept. of Public Safety v. Doe; Smith v. Doe
       a. US Supreme Court ruled that persons convicted of even minor sex related
           crimes, such as public indecency as teenagers, could be put on a state
           WWW site without a hearing
       b. Claimed this was police power prevention, not punishment
20. Matthews v. Eldridge
       a. To get SS, you have to file for a benefit – get the form from the office –
           you have to put down your medical history, illnesses, etc.
       b. The SS office orders medical office and SS staff will review your
           application and look at your records to see if you meet the standards for
           benefits
       c. They may order an independent medical examination
       d. That review is sent as a recommendation to the regional office – that
           office either pays it, looks for more information or denies it
       e. If they deny it, you ask for reconsideration
       f. If they continue to deny it, you can ask for a hearing before an ALJ – you
           can ask for an expedited hearing because you are now two years in
       g. The ALJ will eventually render a decision – the agency treats it as final
       h. At that point, you have an appealable provision to the federal courts
           subject to the standards of review of the agency
       i. Plaintiffs say instead of the paper based procedure, they want some
          Goldberg rights
       j. The plaintiffs say they want pre-termination rights
       k. The Court distinguishes this from Goldberg
                i. There is a right to retroactive benefits from SS – so from the
                   Court’s view this took some of the sting out
       l. The court is wrestling with the Goldberg right to present oral testimony –
          they didn’t find it very significant in this case – these determinations are
          made on your medical records and your objective information on those
          records – there is nothing the claimant can add to this that should be taken
          into consideration - so the Court looks at what the nature is of the factual
          record that is being examined
       m. The Court gave a test
                i. The Court recognized that the system made mistakes – said that
                   isn’t the end of the inquiry – the question is whether the cost of a
                   mistaken determination is greater than what it would cost to
                   increase the accuracy
               ii. The Court said there will be mistakes made in this system, but
                   what is the impact of one of those mistakes versus the additional
                   costs of improving the accuracy of the proceeding
              iii. This is a hard formula to put numbers to because first of all, there
                   is the false positive to give some benefits who doesn’t deserve it;
              iv. The more common issue is the person who is wrongfully denied
                   benefits
               v. The Court says that letting the person testify or having the hearing
                   before or after termination won’t affect the accuracy – what will
                   are things like more detailed independent evaluation; more highly-
                   skilled examiners reading the records; etc.
              vi. But this would be an enormous cost in both dollars and delay
             vii. First time the Court has said they would weigh the injury to the
                   individual against the cost of alleviating that injury to society and
                   other beneficiaries
       n. Whenever we look at an administrative due process question, this is
          what we have to think about – know for exam!
       o. There is a de minimis test – chiefly if you are trying to get federal
          constitutional due process
       p. There are also alternative remedies
       q. In general you would rather have a contract action or a tort action than a
          hearing because most all administrative hearings are pirate victories – you
          get a hearing, your client gets screwed, but you have been due processed
21. Sandin v. Conner
       a. State prison cases are mostly filed under 42 USC 1983, alleging that the
          state deprived them of their civil rights
       b. “Cruel and unusual punishment claims” which generally deal with
          conditions of confinement or medical care
       c. Due process claims require the plaintiff to show that he had a liberty
           interest in the proceeding – even if the court finds a liberty interest, that
           just lets the prisoner into court
       d. Prisoner got 30 days in solitary as punishment
       e. Only when discipline “imposes atypical and significant hardship on the
           inmate in relation to the ordinary incidents of prison life” is due process
           implicated
       f. The Court rejected a claim that punishment of solitary confinement for 30
           days was enough to trigger due process requirements
22. Wilkinson v. Austin
       a. The Court concluded that indefinite placement in a “supermax” prison
           together with a disqualification from parole was enough to trigger due
           process requirements
       b. The question was – does moving someone into a “supermax” prison
           require some additional due process?
       c. In this case, it disqualified the prisoner from parole – that is a key issue
       d. Good time credits – if you run a prison, you want to have some incentives
           to the prisoners who behaved – if they behaved well, they got “good time
           credits” – this was a prison administration technique – the Courts decided
           that anything that affects how long you serve is a liberty interest
       e. So putting someone into “supermax” probably doesn’t trigger it, but
           disqualifying someone from parole does and taking away good time
           credits which could take away from early release does too
       f. What is the value of having a hearing in jail? – you get to tell the warden
           your troubles, but then he does exactly what he was going to do in the first
           place
       g. What rights does a prisoner retain?
                 i. Some freedom to exercise religion
                ii. Some limited right to communicate with the outside
               iii. A little bit of free speech
               iv. Some bodily integrity, at least in the area of medical care
                v. Freedom from beatings and the like through 1983 and state laws
23. North American Cold Storage v. City of Chicago
       a. Property at issue was poultry – it was old property - it was in a refrigerated
           warehouse
       b. City officials took the chicken and shut the business down pursuant to a
           city statute that dealt with public health
       c. The health department was convinced the plaintiff was going to re-freeze
           the chicken after it had thawed – so they wanted to seize it and not give
           them a hearing – they didn’t want to give them any time in fear of them
           shipping it off
       d. Is this an illegal taking? – the Court said it wasn’t because the government
           has the right to protect the health of the public from harmful substances
       e. The government was going to destroy the chicken they seized – but what
           if it was real estate? – they would have used the real estate
       f. So one critical distinction in this analysis is – is the property taken for
          public use or is it destroyed?
       g. We have lots of administrative procedures that don’t require pre-action
          proceedings or compensation – the remedy is that you can go to court later
          and question the action – if they find that they didn’t have appropriate
          legal authority to seize your property, you can sue them for damages
       h. But how do you persuade a jury to give you damages for spoiled chicken
          you were going to put in a grocery store?
       i. A real disquestion is not whether you get due process, but if you get it
          before action or post-action
       j. It changes the entire regulatory progression if the action is post – you
          basically move from asking permission to asking forgiveness
       k. Most folks that have been regulated are kind of stuck with the end of the
          matter – but if you give them the chance to hang it up first, they will do it
       l. One principle is that it is good for the government to win
24. Varholy v. Sweat
       a. Plaintiff was arrested for public intoxication - she was tested – voluntarily
          agreed to be tested - she was suspected of being a prostitute – so they had
          the health officer come in and examine her – found out she had gonorrhea
       b. “Venereal” diseases are now called “sexually transmitted infections”
       c. Syphilis
                i. The original and most dangerous until HIV
               ii. Before you could treat the person, the disease would go dormant
                   and then some years later, it would become active and affect some
                   organ system of the body
              iii. We have reduced the number of cases of syphilis in recent years
       d. Gonorrhea
                i. The new one
               ii. 2-3+ million cases a year
              iii. Is a more common disease in women
       e. Chlamydia
                i. Traditionally hard to diagnose so it is underreported
               ii. Maybe as common as gonorrhea
       f. Syphilis is hard to catch and relatively easy to treat
       g. Gonorrhea and chlamydia are easiest to catch and everywhere, so you get
          re-infected
       h. This case was decided in 1943 – WWII was going on
       i. What was the plaintiff’s participation in the war effort? – she worked in a
          shipyard – shipping was how the US won WWII
       j. The first national VD laws were passed during WWI
       k. VD is a particular problem for soldiers because most of the time they are
          hanging around camp bored – therefore, VD became a national security
          problem
       l. At the moment of this case, she is being held in jail and they are going to
          transfer her to a hospital for treatment
       m. She brought on a lot of evidence that she was a person of good moral
           character
       n. She filed a writ of habeas corpus to get to court
       o. The US Constitution assumes we have a writ of habeas corpus because it
           addresses it – says that habeas corpus won’t be suspended with the
           exception of certain situations – habeas corpus is available to anyone who
           is confined by the government for any reason
       p. Plaintiff is being held under a couple of different laws – she was arrested
           for being drunk and disorderly, but is really being held under this public
           health authority – what facts support this confinement? – she has been
           examined and diagnosed
       q. She is going to be confined until she is treated, then they hint that they will
           go easy on the drunk and disorderly charges – they really want to treat the
           VD
       r. Bail
                 i. People are entitled to freedom from excessive bail
                ii. When people are arrested, they are presumed innocent – so we let
                    you out on bail
               iii. Public health law – we don’t have to let you out if you pose a risk
                    to the health of society – if you have a contagious disease, you are
                    a risk to the public, there is no presumption of innocence – it is not
                    a bailable order
               iv. People are also held without bail if it is known that they will go out
                    and commit new crimes
       s. There was no hearing before she was quarantined
       t. She is picked up, examined, held, treated, and besmirched with effectively
           no due process except for a judge reviewing that she was the right person
25. Ex Parte Milligan
       a. Milligan had been an Indiana resident for some 20 years prior to the
           outbreak of the Civil War – in 1864 he was arrested for various alleged
           acts of rebellion and aiding the Confederacy, being tried, convicted, and
           sentenced to death by a military tribunal in May, 1865
       b. He filed a writ of habeas corpus
       c. The Milligan Ruling
                 i. The military had no right to hold or try Milligan unless and except
                    in “foreign invasion or civil war, the courts are actually closed, and
                    it is impossible to administer criminal justice according to law,
                    then, on the theatre of active military operations, where war really
                    prevails,” martial law shall prevail
       d. What does Habeas Corpus require?
                 i. Bring the person to a judge
                ii. Show the legal authority for the confinement
               iii. Show the facts supporting the legal authority
26. In Re Halko
       a. Plaintiff has been confined for about two years for having TB
       b. TB killed 100,000 people in the US as late as 1940 – TB is still a big issue
       c. Dormant Infection – Converters
                i. You can be infected and the bug lies dormant
               ii. The only evidence is a positive skin test
       d. Active Infection
                i. Triggered by stress, immune system problems
               ii. HIV is #1 in the US
              iii. Only infectious if it affects the respiratory track
       e. Treatment
                i. Converters
                   1. Up to a year of preventive treatment
                   2. Can have liver complications
                   3. No drinking
               ii. Active Disease
                   1. Months of treatment with multiple powerful drugs
                   2. Some still die
                   3. Cannot miss doses or the bug becomes resistant
                   4. MDR means you may not be able to be treated and will die
       f. It is spread through coughing, infected bodily fluids, and through milk
          from infected cows – it is controlled with isolation and treatment
       g. Until the 1950s, there were no effective treatments for TB
       h. Key distinction in understanding due process in civil commitments v.
          criminal – crimes are about intent – while the courts have not clearly
          articulated this, you see that there isn’t an issue of presumption of
          innocence in these cases – they are deferring to the agency expertise to
          determine that you have the disease – they aren’t punishing you for it, they
          are merely protecting society from you inadvertent or advertent spreading
          of the disease
       i. The standard of proof the court used to review the quarantine order was
          reasonable grounds
       j. If the court defers to the expertise of the agency and the agency says that
          you have this disease, then that in itself is reasonable grounds.
       k. Halko had no appointed counsel
27. Reynolds v. McNichols
       a. Plaintiff stated she was a model and a prostitute
       b. Colorado passed this VD law because VD had risen to epidemic
          proportions in the state and prostitutes are common carriers of the disease
       c. Plaintiff had been seen by the police before, but she had never admitted to
          having sex with the people she was found with at the time
       d. The “hold and treat” order was triggered by being arrested for being a
          prostitute – if you were arrested for prostitution, the statute was triggered
          that required that you be held and examined or treated for gonorrhea
       e. As an alternative, there was the “walk in” order – it was a ticket to the
          health department – it said you had to show up to the health department
          and be examined for gonorrhea
       f. Does a tourist town want to get rid of prostitution? – probably not – so
          how do you regulate illegal activity
       g. The cops are issuing these “walk in” orders because they know who the
          prostitutes are
       h. If she were contesting a criminal conviction for prostitution, her
          arguments would make a lot of sense – but the court goes through these
          and looks at them as administrative procedures to deal with the threat to
          the public
       i. This is an involuntary detention, but it is not a punishment – it allows for
          examination of VD and provides a treatment for it
       j. The court digs into public health law jurisprudence
28. Addington v. Texas
       a. Defendant had a history of behavioral problems, some of which include
          crimes – we could lock him up but that poses a problem – if the state
          decides to criminally process you, it is fairly difficult to convince a jury
          that you are not guilty by reason of insanity
       b. It is pretty easy to lock up mentally ill people unless they are so delusional
          and out of control that even the jury thinks they are crazy - the state had
          tried to treat the defendant in the past – he wasn’t cooperative - he got
          turned in this time for assaulting his mom - they want to confine him
          because he isn’t real cooperative with treatment
       c. Why put people in a mental institution rather than prison – they can be
          watched better, and get treatment, and the nature of the sentence is better –
          they stay there until they no longer meet the statutory test
       d. What about sex offenders? – is where it gets blurred between mental help
          and prison – we usually confine sex offenders in the same prison and in
          the same cell after they have served their criminal time but when they are
          in their civil commitment because they still pose a threat
       e. The fact-finder has to determine that you are mentally ill and that you are
          a danger to yourself or others
       f. Defendant’s mother asked for an emergency commitment and evaluation –
          we have the same thing in LA
       g. There is a jury and defendant was represented by counsel
       h. What must the factfinder find?
                i. Whether the proposed patient is mentally ill; and if so
               ii. Whether he requires hospitalization in a mental hospital for his
                   own welfare and protection or the protection of others; and if so
              iii. Whether he is mentally incompetent
       i. We are looking at the appropriate standard of proof
       j. The plaintiff wanted guilt “beyond a reasonable doubt” – it is harder to
          meet
       k. We usually see a “mere preponderance” standard in civil cases – that is an
          easier standard to meet
       l. The TX trial court used a “clear and convincing” standard - TX Supreme
          Court said that was okay, but that they would have been happy with the
          “preponderance of the evidence” standard
m. This is a post-Matthews case and they discuss the standards of proof that
   resemble Matthews, but they never mention the case – they didn’t want to
   equate people’s freedom with the cost of SS paperwork
n. In Matthews, we are balancing the due process against the cost of making
   mistakes – three standards of proof
         i. Beyond a reasonable doubt
        ii. Clear and convincing evidence
      iii. Preponderance of the evidence
o. Which standard will lead to the least chance of mistakenly confining
   someone? – beyond a reasonable doubt
p. Which standard will lead to the best chance of mistakenly confining
   someone? – mere preponderance
q. Why is proving beyond a reasonable doubt so costly to the state? – what if
   the guy is crazy and he gets let go? – that is more likely to occur with this
   standard
r. In mental and public health we look to the risk of the state – so a cost of
   beyond a reasonable doubt is the heightened chance that a dangerous
   person will be released back into the community
s. The court said there is some precedent of using this heightened standard
t. On the other hand, the court tells us that these standards can be hard for a
   jury to apply them to a case
u. The court said this has a symbolic value – this is a special kind of
   administrative detention
v. This is different than a disease control case and other administrative
   actions – they want the courts and the legislatures to be careful with these
w. Two sources of legal authority
         i. Police power
        ii. To protect the state
      iii. When you are a danger to others, you classify as police power
x. Parens patria
         i. The state as parent – constitution has been read as giving the states
            and the government the right to protect people against themselves
            when they don’t pose a threat to others
        ii. If you are a danger to yourself, you fall under parens patria
      iii. The courts have not said how much authority you have under
            parens patria
       iv. This is limited – under police power, the state can do a whole lot
            more to you to protect other people; under parens patria, the state
            has more restrictions because of each individual’s constitutional
            right
y. The court talked about the stigma factor – the court says there is a stigma
   attached to being involuntarily committed to mental institutions
z. An angle the court didn’t explicitly mention is the least restrictive
   alternative – there are states that have provisions that say you have to use
   least restrictive alternatives in your quarantines – this is a rejection of the
            Mathews analysis – it doesn’t allow the state to use costs as a justification
            for its actions
        aa. So in the case of mental health, you have to do whatever is the least
            restrictive measure without considering the costs
29. City of Newark v. JS
        a. City wants to confine JS in a hospital and we are trying to figure out the
            due process requirements
        b. NJ has an old 1920s public health law – old laws are good laws
        c. The judge in this case has decided it is time to come up with a new
            standard – he is also convinced the Americans with Disabilities Act effects
            the police power
        d. The NJ law doesn’t provide a huge amount of due process
        e. The judge is looking to NY for their due process
                 i. The person gets notice, gets to have a hearing, and gets appointed
                     counsel
                ii. NY provides for automatic release unless the Commissioner
                     obtains an order permitting continued detention
               iii. Court review and approval is required whenever detainment will
                     last more than 60 days
               iv. Periodic judicial review is required
                v. The Commissioner must prove by clear and convincing evidence
                     that detention is necessary
               vi. The date of the NY law is 1993
        f. This court seems to miss that the definition of mental illness and mental
            competence is very plastic – for the majority of the cases there is no
            clearly defined line between mentally ill and not mentally ill
        g. The court wants to say that this needs to be a least restrictive alternative
        h. The judge gives some precedent – Sheldon v. Tucker – case involving
            teachers and what they had to report – this case triggered first amendment
            protections – the Supreme Court is very sensitive when it comes to cases
            that violate the First Amendment
        i. Sheldon v. Tucker
                 i. The judge implies that this case supports LRA for disease control
                     cases
                ii. The case is about making teachers give the state a list of all the
                     organizations they have belonged to for the past 5 years
        j. Covington v. Harris
                 i. Plaintiff confined to a mental hospital but the hospital put him in a
                     maximum security facility
                ii. The facility was not contemplated in the original commitment
                     order – the court said he did have a right under habeas corpus to
                     have a hearing to determine whether or not he should be confined
                     here
        k. Green v. Edwards is on point
                i. The court found that counsel had been appointed too late in the
                   proceeding, based on decisions construing the civil commitment
                   law
               ii. In this case, the legislature did seem to intend to treat the diseases
                   in a similar manner
              iii. No US Constitutional issues
              iv. Only because the W. VA legislature decided to model their disease
                   control law after their mental health law – they intended them to be
                   construed in the same way
               v. Said disease control cases do require more scrutiny and heightened
                   due process including appointed counsel
       l. The ADA doesn’t apply, neither does Arline
       m. The judge said that mental health and disease control look the same – you
          get
                i. Appointed counsel
               ii. Notice of a hearing
              iii. A hearing
              iv. Proof by clear and convincing evidence
       n. After he went through all of this, he said that what the state did was okay
          and that JS needed to be committed
30. Bowen v. Georgetown University Hospital
       a. Feds change the way reimbursement is calculated on Medicare costs
       b. The hospitals said this was a retroactive rule – you are changing what you
          promised to pay us
       c. The Court agreed you couldn’t do that
       d. However, in a later case – the court found that there could be changes in
          the way that base year calculations were done, even though these changed
          past bills – the court said as long as you aren’t changing the rules they
          operated on, that is not a retroactive rule and it is allowable
       e. If the agency isn’t enforcing the regulation, nothing prevents the agency
          from starting to enforce it and enforcing it retroactively because that is not
          a retroactive law
       f. This ban on retroactive rules does not apply to interpretive rules because
          nothing prevents an agency from deciding it read a law incorrectly and
          changing the guideline
       g. You have to give fair notice about what the rule is going to cover – the
          general public and the regulated parties need to be able to comment
          effectively about the rule
31. Chocolate Manufacturer’s Assn. v. Block
       a. The Court looked at this and said the rule doesn’t have to be exactly the
          same otherwise the notice and comment process means nothing
       b. But the agency cannot come up with a new rule based on the comments
          because the comments aren’t public until after they are published with the
          new rule
       c. So the commenters from the chocolate industry had no idea that the
           pediatric commenters had spoken against chocolate milk – they were not
           on proper notice
32. Portland Cement v. Ruckelshaus
       a. Court required that the agency must disclose the factual basis for the
           proposed rule, if it relied on scientific studies or other collections of
           information
33. Connecticut Light and Power v. NRC
       a. Court stated that the agency cannot play hid the peanut with technical
           information
34. Rybachek v. EPA
       a. EPA added 6000 pages of supporting information
       b. Court said the agency may supplement the rulemaking record in response
           to comments asking for explanation
35. Idaho Farm
       a. Agency added a report to the record, then relied on it in the final rule
       b. Court ruled that the agency may not add new material and then rely on it
           without giving an opportunity to comment on it
36. Shell Oil v. FPC
       a. Formal rulemaking was impossibly time consuming to use for regulating
           something changeable such as natural gas rates
37. Vermont Yankee v. NRDC
       a. Mechanism for public participation – public adjudicatory hearing
       b. Issue in this case – disposal of spent fuel
       c. The agency’s plan to resolve this was through rulemaking because it is a
           recurring issue and because it is about the same for all plants
       d. The agency said the waste should be kept around until someone figures
           out what to do with it – still waiting
       e. The AEC relied on a report by an expert on its staff when making this rule
       f. The plaintiffs wanted to cross-examine the expert – but this wasn’t
           allowed
       g. The DC Circuit ruled that the report did not provide a sufficient factual
           basis for the AEC’s decision
       h. The APA section that established notice and comment rulemaking is 553 –
           it is important in this case because it is a limit on what procedure courts
           can impose on agencies, absent specific statutory authority
       i. This doesn’t limit the procedure agencies can allow
       j. The CA remanded
                 i. It looked hard to see if there was a meaningful opportunity of
                    public participation, rather than just a technical chance to comment
       k. The SC didn’t buy this – remanded to CA to let it decide if the rulemaking
           complied with 553
       l. Allowing courts to modify agency procedures would undermine the
           function of agencies because courts could use procedural review to force
           the results they wanted – agencies would have to retreat to giving full
           hearings for everything to avoid manipulation of their decisions
       m. A better hearing record doesn’t matter in informal rulemaking because it is
          not made only on the record from the hearing but all the other information
          that is provided, and there is no evidence that hearings improve this

38. Home Box Office v. FCC
        a. Regulation of advertising and program content on cable
        b. Lots of contact with FCC commissioners
        c. Court says it is a big problem if information is left out of the record
                 i. You do not need to put in stuff that happens before the rule is
                    promulgated
                ii. Decisionmakers should not talk to outsiders during the comment
                    review period after publication, and should document it if they do
39. Sierra Club v. Costle
        a. Sierra Club claimed Senator Bird coerced the EPA on coal burning power
            plant standards
        b. Volpe Test
                 i. Test for whether a rulemaking may be overturned solely on
                    evidence of Congressional pressure
                ii. Was there specific pressure on the agency to consider important
                    factors?
               iii. Did the agency in fact change its mind because of these
                    considerations?
        c. When the Court applied the Volpe test to this case, it ruled that there was
            no problem with the contracts because Congress should be involved in
            such policy decisions
40. Assn. of National Advertisers Inc. v. FTC
        a. FTC is adopting rules on TV advertising directed at children
        b. Chairman has written and spoke at length on the evils of TV ads aimed at
            children
        c. Plaintiffs seek to disqualify him because of bias
        d. What happened to Cinderella?
                 i. Cinderella disqualified the same Chairman from participating in an
                    adjudication because he had prejudged some of the facts
        e. Is the standard different for rulemaking?
                 i. Clear and convincing evidence that he has an unalterably closed
                    mind on matters critical to the rulemaking
41. State v. Broom
        a. This is the extreme case for delegation – delegation of the authority to
            define crimes
        b. Broom drove a truck that hauled explosives - explosives have always been
            very carefully regulated
        c. Regulation said it could only be left unattended when the driver was
            making deliveries – Broom went into a restaurant to have lunch and left
            the truck unattended - he was prosecuted for a felony violation
       d. The statutes provide that the director of public safety is to set minimum
          standards for the manufacture, transportation, use, sale, handling and
          storage of explosives
       e. The regulations are to be those “reasonably necessary” to protect the
          public’s health, welfare and safety,” and are to conform with “the rules
          and standards of the Institute of Makers of Explosives”
       f. The legislature cannot delegate the right to define felony offenses to
          administrative bodies or department heads
       g. “The wisdom of the constitutional concept is exemplified by the
          vagueness of the regulations in the LA Explosives Code and the lack of
          full legislative review for those enactments. The legislature has not only
          delegated to the director of public safety the authority to create felonies, it
          has relinquished most of the supervision over that authority to its
          subcommittees and the governor”
       h. “Even if the delegation were constitutional, the lack of legislative
          direction would make the enactment procedures suspect”
       i. Already we see an indication of another way to provide specificity in the
          regulation
       j. The LA Supreme Court incorporates Chadha analysis into LA law
       k. The question is, did the Court really mean what it said?
42. Adams v. State Dept. of Health
       a. Adams owned and manufactured individual sewerage treatment plants for
          rural communities, which were unable to utilize municipal sewerage
          treatment systems. His treatment system had the trade name “Sani-Robic”
          – it was designed primarily to satisfy regulatory requirements so that
          subdivisions could be built
       b. The law at issue was the entire sanitary code – in this particular case,
          sewerage
       c. Why would this be controversial? – sewer lines are a lot more expensive
          to run than water lines; we don’t run pressurized sewerage systems in the
          US – it is done by building pipes that gradually slope downhill, then it
          goes to a pumping station that pumps it back up and it goes back down
          again – so we have various alternatives – two traditional ones are the cess
          pool and the septic tank
       d. Cess pool – you basically run your toilet into a hole in the ground
       e. Septic tanks – put a tank out and your waste runs into the tank – there is a
          field – pipes run out into the field and it is absorbed into the ground – to
          be absorbed into the ground, the ground has to be able to absorb things
       f. The land here was clay and relatively permeable
       g. Adams got into trouble because he was installing these sewerage
          treatments without permit or proper authorization from the Dept. of Health
          – initially criminal charges were brought against him
       h. He was not successfully prosecuted – the Court said that the statutes
          granting the DHHR the power to draft regulations controlling the
          manufacture and sale of individual sewerage treatment systems do not
            contain sufficient guidelines or standards to constitute a constitutional
            delegation of legislative authority
        i. If the agency action is unconstitutional or it is beyond statutory authority,
            or it wasn’t properly promulgated, it is void – if it is void, you don’t have
            to comply with it, so you don’t have to go through all the agency process
            before you go to court – this isn’t allowed in federal law – in federal law,
            you have to have a case or controversy
        j. You can challenge a federal law as being unconstitutional on its face if
            you have standing to do so – in this situation, anyone affected by the rule
            can ask for a declaratory judgment
        k. We are looking at the court’s review of the statute – Adams got the
            criminal charges struck and the state didn’t appeal
        l. Now Adams is asking for a declaratory judgment which the court grants
            that the statute is unconstitutional
        m. The court declared it unconstitutional because it gave the DHHR too much
            power – the trial court said it wasn’t specific enough – they looked at the
            actual delegation – it basically said the health officer would promulgate
            this, it will be signed off by the Secretary of the DHHR and be
            promulgated by the APA
        n. The guidance is general – to protect the public from disease and nuisance
            resulting from the improper disposal of sewerage
        o. This is classic general delegation of authority
        p. The Court uses the Schwegmann Brothers Rule
                 i. So long as the regulation or action of the official or board
                     authorized by statute does not in affect determine what the law
                     shall be or involve the exercise of primary and independent
                     discretion, but only determines within prescribed limits some fact
                     upon which the law by its own terms operates, such regulation is
                     administrative and not legislative in nature
                ii. Based on this statement, the Court have agreed with the TC or not
        q. Legislative intent behind the sanitary code – the intent of the sanitary code
            is to protect public health in drinking and waste water – this is a classical
            environmental law based on the constitutional power of police power
        r. We have due process protection in the form of the APA
        s. At the enforcement level there are adjudications, where you get a chance
            to be heard
        t. Plaintiff raised the fact that this was vague
        u. We are looking at whether or not this plant applies to this standard – if so,
            he can make application to the Dept. and if he complies with the standard,
            he gets a permit; if he doesn’t then he doesn’t get a permit; if you don’t get
            a permit you can’t legally install these
        v. Court said that they are not bound by res judicata when plaintiff brought
            up earlier cases
43. State v. Taylor
        a. Defendant was prosecuted for bringing contraband into the prison
        b. He challenged the law by claiming it is unconstitutional and that the
            legislature has delegated too much power
        c. The statute was way too wide open – “for the purpose of inmate and
            institutional security at state adult or juvenile correctional institutions,
            contraband shall be defined as any article, substance, or thing which is not
            issued by the authorities operating the facility, sold through the
            institutional canteen, specifically permitted by applicable regulations, or
            otherwise specially authorized by the head of the facility or his designee
        d. This case deals with a hybrid challenge – it could also be seen as a classic
            criminal law void for vagueness challenge; but it shows up as an
            administrative challenge based on delegation because the head of the
            facility is allowed to designate what is and is not contraband either
            implicitly by selling it in the canteen or explicitly by having a regulation
            on allowable items in the prison
        e. They have given the warden the right to decide what is and isn’t
            contraband
        f. What complicates this case – it is being compared to a previous statute –
            the previous law was different though because it listed everything that was
            contraband and allowed other things to be added to the list by regulation
        g. In the immediate case, the court didn’t find this to be a lawful delegation
44. State v. All Pro Paint and Body Shop
        a. A guy was paid $100 to get rid of barrels of paint thinner – he put them in
            two uninhabited houses in EBR parish
        b. The cans were found by the owners who came back – the owners called
            DEQ – DEQ tracked down defendant
        c. We see a revised Schwegmann Test
                 i. A delegation of authority to an administrative agency is
                     constitutionally valid if the enabling statute
                     1. Contains a clear expression of legislative policy
                     2. Prescribes sufficient standards to guide the agency in the
                         execution of that policy; and
                     3. Is accompanied by adequate procedural safeguards to protect
                         against abuse of discretion by that agency
        d. This new test is limited to a review of the statute itself which creates or
            defines the felony offense. The legislature cannot delegate to the executive
            branch, under however stringent guidelines, the authority to fill in the
            details of what constitutes a felony under the statute
        e. This really doesn’t change much
        f. Court of Appeal came up with a one-step test
                 i. Is it criminal? – if so, you can’t delegate it
        g. SC looks at Broom again and says that they didn’t mean Broom to say you
            could never define a felony, but that in that case there wasn’t enough
            detail given to define a felony
        h. They are redefining the analysis for civil and criminal delegation and as
            long as the three prong test of Schwegmann is met, even if the agency is
            spelling out facts that will be used in a criminal prosecution that is okay
        i. Does the hazard waste control law have a clear intent? – Yes – the
            legislature is saying this stuff is dangerous, it is bad, and we want it
            controlled
        j. Do they have to specify every possible form of toxic waste? – NO
        k. Their definition of hazardous waste is pretty broad, but the alternative
            would be them sitting and doing a laundry list – so the court is saying the
            broad definition of hazardous waste is adequate
        l. What other standards guide the DEQ in environmental law? Which level
            of government really sets the environmental standards? – the federal
            government
        m. Due Process Considerations – all of these follow the APA
        n. What other review is available? – you can seek a declaratory judgment if
            you think the rule is improper and beyond authority
        o. Bottom line – the court has either explicated the true meaning of Broom or
            changed it – but they have decided that you can prosecute someone on
            definitions provided in a rule – it is the same for criminal and civil
            prosecutions
        p. So the question is - was the Adams court wrong in declaring that the
            regulations in the sanitary code were unconstitutional?
45. State v. Alfonso – the Mullet Case
        a. Key question – has the legislature given the agency the authority to make
            rules about reporting the catch of mullet, as opposed to rules about the
            manner of catching mullet
        b. What we want to glean from this case is that sometimes the legal question
            isn’t really the question the Court decided
        c. What is really going on here – the Court is concerned that there is a
            disproportionate penalty – if you don’t comply with the statute, you have a
            lifetime ban from mullet fishing – this could ruin your life if you do this
            for a living
        d. The Court reminds us of the Schwegmann test
                  i. Is there a clear expression of legislative policy
                 ii. Are there sufficient standards guided by that policy
                iii. Are there adequate procedural safeguards to protect those affected
        e. Clear expression of legislative policy
                  i. The legislature was concerned because they didn’t want mullet to
                     become an endangered species
                 ii. They were regulating to protect the species
                iii. Why would reporting be a reasonable part of the process? – to
                     make sure that enough mullet are left after the fishing season – if
                     you don’t know how many are being caught, how can you make a
                     reasonable policy about what the amount should be
        f. Sufficient Standards
                  i. Did the legislature spell out what taking mullet means? – No – they
                     just said taking mullet
                 ii. There was no guidance on the punishment either
     iii. There was another statute that dealt with fish that the Court looked
          at – the legislature had a law dealing with commercial fishermen
          that imposed a $250 fine
     iv. So we are seeing some breakdown in the guidance
g. Adequate procedural safeguards
       i. The commission, in promulgating the rule, went through the APA
          provision
      ii. But the court says that this was not mandated by statute
     iii. The court said there wasn’t procedural due process – although they
          followed the APA, they weren’t required to follow it
     iv. In the federal system, if the statute is silent in an APA act, the
          default is the APA
      v. This is the first case to raise the issue that if the statute doesn’t
          specify the APA, then it doesn’t specify any regulatory procedure
          at all
     vi. LA Supreme Court doesn’t decide a whole lot of administrative
          law cases – there are whole areas of administrative law where there
          are splits in the circuits or it hasn’t been addressed at all
h. Declaratory Judgment
       i. Ultimately, LA law looks more like the federal law – but there is a
          split among the circuits and no recent SC case sorting this out
      ii. Circuits use the same test, but apply it differently
     iii. Grounds for declaratory judgment
                  1. It is unconstitutional
                  2. It exceeds statutory authority of the agency
                  3. The rulemaking procedure failed
     iv. What does the exhaustion or agency remedy mean?
      v. What do you have to do?
                       a. Ask the agency to review the rule – if the agency
                           doesn’t have a process for doing so and doesn’t
                           respond to your request, you have satisfied that and
                           it is easier to convince the court that the rest of this
                           stuff works because the agency is unresponsive
                       b. But if there is a process, and the agency says tough
                           luck – you have to go on to the next step
     vi. Two parts:
                       a. Must show that the decision in an adjudication
                           would not be an adequate remedy; or
                       b. Must show irreparable injury – is the same standard
                           for injunctions
                                 i. Generally means the potential penalty for
                                    the adjudication is too high for you to run
                                    the risk of violating the rule, taking the
                                    penalty and appealing the penalty
    vii. This is basically the federal law, and LA is no better than the feds
          for getting a declaratory judgment, at least for individuals
             viii. With Wooley, the court left open declaratory judgments for an
                   agency
46. Bennett v. Spear
       a. Ranchers wanted to contest rules under the Endangered Species Act
           limiting the release of water from dams
       b. The purpose of the endangered species act isn’t to protect ranchers
           although they argue they are an endangered species
       c. Ranchers argued that the provision of the statute that required them to rely
           on the best data should allow them to test it
       d. This was almost a procedural injury – they wanted the right to contest the
           basis of the rule – they made their standing on the fact that the rule was
           not sufficiently justified by the science
       e. Test
                i. It must be the consummation of the agency process
               ii. It must affect legal rights or have legal consequences
47. Association of Data Processing Service Organizations, Inc. v. Camp
       a. The Court allowed competitors of banks to contest rule changes that
           would have let banks do data processing
       b. The intent of the law was to protect banks from bad business decisions,
           not to protect competitors
       c. The court found that the plaintiffs challenge to the law would further its
           purpose – limit the conflict for banks – even if they were not the intended
           beneficiaries
       d. The data processors convinced the court that by giving them standing they
           would be private AGs and their interests were the same as the government,
           which was keeping banks out of financially risky business – the court
           bought the notion
48. Abbott Laboratories v. Gardner
       a. Was a dispute over the authority of the FDA to require certain labeling
           changes on prescription drugs
       b. Is a pure “facial” challenge – the plaintiffs claimed the FDA exceeded its
           statutory authority
       c. They are asking for an injunction to stop enforcement until the court rules
           – they claim they couldn’t risk enforcement
       d. Pre-enforcement review is the hardest thing to get a court to do
       e. The court has to weigh this against getting enmeshed in the agency policy
       f. If they jump into this they are taking away the agency’s chance to come up
           with a flexible enforcement policy
       g. Court is also looking at whether this is ripe
       h. If this were not a facial challenge, the court would have to see how the
           agency was going to apply the rule
       i. Court found that judicial review is favored, and that it would not hold it
           precluded unless the congressional intent was clear
       j. Court said that if it is ready for judicial resolution, the regulation required
           immediate and significant change in the conduct of the affairs of the
           plaintiffs and there are serious penalties attached to non-compliance, then
           the court is willing to review under the APA and willing to do pre-
           enforcement review (unless Congress has barred review)
49. Toilet Goods Assn. v. Gardner
       a. Companion case to Abbott
       b. FDA promulgated a rule allowing them to inspect toilet good
           manufacturers to assure compliance with FDA regulations
       c. Unlike Abbot, where you would have to change your actions based
           directly on the rule, nothing happens with this rule until they go to
           inspection and the worse that would happen during this inspection is that
           you would have to let them in and they may see you aren’t making
           properly sanitary toilet goods and that might threaten the public’s health
           and safety
50. Block v. Community Nutrition Institute
       a. Clarified Abbott’s policy on reviewability
       b. Consumers wanted to challenge rules under the milk price support law,
           which was intended to protect milk producers
       c. The Court found that Congress had specified who could appeal these
           orders and how
       d. Coupled with the purpose of the act, this was enough to show intent to
           prevent consumer claims
       e. If the Secretary proposed a regulation that in some other way violated a
           constitutional protection or another law, you could still get into court – but
           you can’t take advantage of the regulatory produce scheme – you have to
           come up with some other way
51. Federal Trade Commission v. Standard Oil Company
       a. FTC finds that Standard Oil is engaging in anticompetitive practices
       b. Standard wants to appeal this
       c. Court says this alone does not have legal consequences
       d. Standard must wait until the agency brings an enforcement action
52. National Automatic Laundry and Cleaning Council v. Shultz
       a. Agency opinion letters – you send a letter to the agency (i.e. the IRS)
           explaining what you want to do and based on those facts, they will issue a
           letter saying they either think this is okay or it isn’t
       b. If they say it is okay and you go ahead and do it and do it the way you said
           you would, they have some estoppel for coming after you later
       c. In this case, there is a new law – the association of automatic laundry and
           cleaning establishments asked the secretary for a letter explaining how the
           agency would interpret this and enforce it
       d. The agency sent them a detailed explanation about what they thought the
           law meant and a number of examples
       e. This is not a rule – it has no force of law – it is an interpretative guideline
       f. The court said this was sufficiently detailed and gave it very clear
           guidance on to how it was going to be enforced and since it came from the
           secretary’s office it could easily be seen that this was a statement of policy
       g. So the court allowed review of this interpretative letter without any more
           enforcement action
       h. The court found the dispute was ripe because the opinion included detailed
           factual hypotheticals on the application of the doctrine in different
           situations – this gave the court the necessary factual information to review
           the application
       i. Without this detail, the court would have required the plaintiff to wait for
           enforcement so there would be facts to evaluate
53. Taylor-Callahan-Coleman Counties Dist. Adult Probation Dept. v. Dole
       a. The opinion was to an individual party, based on that party’s specific facts
           – like an IRS letter ruling
       b. The plaintiff was a third party who wanted to challenge the opinion as it
           would be applied to others
       c. The court found that this was not a final agency action, at least as to other
           parties
54. Western Illinois Home Health Care, Inc. v. Herman
       a. This was an opinion letter to two specific parties about whether they were
           subject to the joint employer doctrine
       b. The letter said they were, and that they were now on notice so they would
           be subject to the penalties for a willful violation
       c. The court found this was a final agency action
                 i. This was influenced by the harsh results
55. Franklin v. Massachusetts
       a. MA wants to contest the method the Department of Commerce used to
           correct the census numbers – this matters because the number of
           Congressmen you get is determined by your population – you may lose a
           Congressman
       b. Court said the Dept. of Commerce’s action is not a final agency action –
           they give their report to the President – he reviews it and gives it to
           Congress –Congress looks at it and decides whether or not it will cost you
           a representative – Congress creates laws and you can only challenge a law
           if it is unconstitutional
       c. The President is charged with determining the final count, and Congress
           does the reallocation of representatives
       d. The Court found that the report from Commerce was only a
           recommendation to the President
56. Portela-Gonzalez v. Secretary of the Navy
       a. Just knowing that you are going to lose through the agency process is not
           enough – you have to go through the process
       b. You have to show that the agency is biased or prejudiced
       c. Just because you do not meet the agency’s criteria is not enough
       d. Court said bias and prejudice is not the same as you lose because you did
           wrong
       e. You have to show personal animus and inalterably closed minds – this is
           difficult to do
57. Sims v. Apfel
       a. Administrative issue exhaustion
       b. SS disability benefits
        c. Court held that the general rule is that plaintiffs who are subject to
           exhaustion of remedies must also present the issues they want to appeal to
           the agency
        d. In the specific case, the court found that the special nature of SS mitigated
           against the formal notion of issue exclusion
                i. Informal, and applicants seldom have counsel
        e. So we are left with the general notion that you have to present the same
           issues in formal proceedings
58. Citizens to Preserve Overton Park v. Volpe
        a. Congress said no federal money to build roads in parks if there was a
           reasonable and prudent alternative
        b. The Secretary authorizes a road in a park and tells plaintiffs that it is
           within his discretion and cannot be reviewed by the courts
        c. The court found that the question of reasonable and prudent provided
           adequate law to guide judicial review
59. Heckler v. Chaney
        a. The FDA Act directs the agency to require that drugs be approved for
           specific uses before they can be sold in interstate commerce
        b. The agency does not police the use of drugs for unapproved purposes,
           once they are approved for at least one use
        c. The court rejected a challenge to this, say this was classic prosecutorial
           discretion, which an agency did not have to justify
60. American Horse Protection Assn, Inc. v. Lyng
        a. Can you get to court to require an agency to make or modify a rule, in the
           absence of a congressional mandate to make the rule?
        b. The APA requires that an agency respond to a request to make or modify a
           rule
        c. The court found that this response, or lack of one, was reviewable
        d. The court may allow review, but it almost always defers to the agency
61. Webster v. Doe
        a. National Security Act allows CIA employees to be fired without due
           process of judicial review
        b. Court says this is within congressional power, especially for national
           security
        c. Court says that the plaintiff’s constitutional law claim can be reviewed
           because no agency is above the constitution
        d. Dissents say this makes no sense because it undermines the agency
           discretion
62. Lincoln v. Vigil
        a. Indian health service has the discretion to decide how to spend certain
           funds
        b. Court says this cannot be reviewed, it is a classic policy choice
        c. However, whether the policy has to announced through notice and
           comment versus a simple policy statement, is reviewable – the procedure
           may be reviewable even if the policy isn’t
63. Jacobson v. Massachusetts
        a. Jacobson is a very important part of the fight against smallpox – even if he
           doesn’t want to get vaccinated, it is for the betterment of the public that he
           be vaccinated
        b. This case is about a treatment that benefits society and the benefit to you is
           only ancillary
        c. This case took place in 1970 in the US – smallpox hadn’t been in the US
           since the 1940s – we are trying to decide whether or not to continue the
           vaccination
        d. Why didn’t Jacobson want to get his vaccination?
                i. Because he had a bad reaction to a vaccination as a child and he
                   saw that his son had had the same thing
               ii. He argued it wasn’t safe
              iii. He was also a religious man – there are people who don’t trust
                   government science and who don’t believe that vaccinations work
                   – who profits from fostering these beliefs – bookstores; crackpot
                   book authors; etc.
              iv. People argue that vaccines create autism
        e. What was he being asked to do because he hadn’t gotten his vaccination?
                i. They were trying to lock him up
               ii. This was a criminal case based on a criminal statute that punishes
                   people who don’t get their vaccination
        f. He wanted to put on expert testimony before the court about why they
           made the wrong choice when the legislature chose to enact this law
        g. The Court said it was the legislature’s right – they could pick one
        h. The agency makes a policy decision empowered according to the
           legislative direction, this would be step one – the legislature clearly
           wanted this done
        i. So he got no review
        j. Court said if he didn’t want to get vaccinated, he should leave – the Court
           said this is the cost of living in society – you don’t want to get vaccinated,
           move
        k. The government had the power to force you to be vaccinated
        l. Lochner happened at about the same time as this case
                i. Court said the state couldn’t use its police power to enforce
                   minimum wage laws
        m. When you read this case next to Lochner, Lochner looks very different,
           because this case said the state could use its police power for anything
        n. We have no mandatory vaccination requirements for adults – we only
           have them for children who want to go to school – if you don’t go to
           school, you don’t get vaccinated
64. St. Mark’s Baths v. NY - 1986
        a. City was trying to close down a bath house - these were not actually bath
           houses – they were places where gay men would meet and hook up
        b. The city did it to try to prevent the spread of AIDS
        c. AIDS is most commonly spread through homosexual intercourse – anal
           sex and fellatio
       d. Does public health and safety trump freedom of association? – Court said
           these people didn’t have an absolute right to freedom of association when
           public health is involved
       e. What was the bathhouse’s argument? – they were running safe sex
           seminars
       f. The Court looked back to Jacobson and to Mayor of Baltimore – this was
           a classic public health order that dealt with public health – the Court said
           this was typical agency discretion
       g. The Court ordered the bath houses closed
       h. There were a number of NY public health officials who also believed in
           the safe sex theory – there was a bit of opposition to this by certain health
           groups
       i. Most states chose, and continue to choose, to not use their police power to
           regulate HIV
       j. In this case, we see courts have the authority to make the policy decisions
65. Chevron
       a. Clean Air Act Case
       b. EPA wanted to consider all of the sources of pollution within a given
           chemical plant as one source – the bubble model
       c. The statute did not give clear guidance
       d. What should the court do?
                i. If the statute speaks clearly to the point, then you have to follow
                   the statute
                                a. This assumes that the statute is constitutional
               ii. If the statute is silent or ambiguous
                                a. A court may not substitute its own construction of a
                                    statutory provision for a reasonable interpretation
                                    made by the administrator of an agency
                                b. What does it mean to be silent or ambiguous?
                                          i. Do you look at the statute itself? (Scalia,
                                             usually)
                                         ii. Do you include legislative intent? (Breyer,
                                             usually)
       e. Do Chevron and Substantial Evidence come to the same result?
                i. Chevron is about interpretations of statutes
               ii. Substantial evidence is about factual disputes
66. US v. Mead
       a. Administrative implementation of a particular statutory provision qualifies
           for Chevron deference when it appears that Congress delegated authority
           to the agency generally to make rules carrying the force of law, and that
           the agency interpretation claiming deference was promulgated in the
           exercise of that authority
67. Christensen v. Harris County
       a. What form was the interpretation?
       b. What did the court rule?
       c. What other agency documents would this cover?
       d. Why is this consistent with our definition of a guidance document?
       e. Barnhart factors:
                i. The importance of interpretation to agency policy;
               ii. The period that the agency has held the view;
              iii. The legal expertise of the agency;
              iv. The complexity of the problem;
       f. These factors modify Mead
68. Public Citizen v. US Dept. of Health and Human Services
       a. Was the Medicare manual binding?
       b. Is this consistent with Barnhart?
       c. Are Mead and Barnhart consistent?
69. Universal Camera Corp. v. NLRB
       a. Employer fires chairman after he testified at an NLRB meeting
       b. What did the hearing officer do?
                i. Believed the company and did not reinstate him
       c. What did the NLRB do?
                i. NLRB rejects the hearing officer’s finding
               ii. Reinstated the chairman with back pay
       d. What is the key legal issue before the court?
                i. Should the court reviewing the NLRB’s action consider the
                   hearing officer’s recommendation?
               ii. Is the agency bound by the hearing examiner’s opinion?
              iii. Should the court look only to the part of the record that the agency
                   relies on for their decision or the record as a whole?
       e. Court says you have to look at the whole record, including the ALJ’s
           findings
       f. ALJs v. Court Masters
                i. Why is the deference due an ALJ different from the deference due
                   a master appointed to a judge, whose findings can only be
                   overruled if clearly erroneous?
               ii. Where does the master get the power?
              iii. What if the agency does delegate final decisionmaking authority to
                   the ALJ, then wants to change a decision?
70. Natural Resources Defense Council, Inc. v. Herrington
       a. Defending a rule – the proposed rulemaking must explain the basis of the
           rule
       b. In this case the court found that an important issue raised in comments had
           not been addressed, making the determination arbitrary
       c. This can be cured by republishing with more information
71. FDA v. Brown and Williamson Tobacco Corp.
       a. Politics of FDA
                i. Chairman Kessler was appointed by Bush I – liked publicity
               ii. Wanted to keep his job when Clinton came into office
              iii. Banned silicone breast implants – just to be safe
                        1. Made 4.5 billion for trial lawyers and got to keep his job
       b. The FDA decided to regulate tobacco
       c. Kessler knew everyone hated tobacco, he wanted to redeem himself, make
           money on the speaking Circuit and got a good deanship – he did
       d. Basic FDA authority
                i. Anything sold in interstate commerce with the intent to affect the
                   structure or function of the body is a drug – the drug must be
                   proved safe and affective
               ii. Does nicotine affect the structure and function of the body – YES
       e. What would be the effect of applying the safe and effective test of
           tobacco? – you would have to ban tobacco - creates a regulatory paradox
       f. The act prohibits “the introduction or delivery for introduction into
           interstate commerce of any food, drug, device, or cosmetic that is
           adultered or misbranded” – 21 USC §331(A)
       g. §352(J) deems a drug or device misbranded “if it is dangerous to health
           when used in the dosage or manner, or with the frequency or duration
           prescribed, recommended or suggested in the labeling thereof”
       h. Second, a drug or device is misbranded under the Act “unless its labeling
           bears…adequate directions for use…in such manner and form, as are
           necessary for the protection of users,” except where such directions are
           “not necessary for the protection of the public health”
       i. Labeling problem – there is no way you can label tobacco that will allow
           you to use it safely – used in the expected manner, it is dangerous – that is
           the regulatory dilemma going in that the SC has to resolve
       j. Chevron Step One
                i. Does tobacco fall under the statute? – NO – it isn’t specifically
                   named
               ii. We are left with this issue that just because you affect the structure
                   and function of the body, you will be regulated
       k. Chevron Step Two
                i. Did Congress intend to allow the FDA to regulate tobacco?
               ii. The ATF regulates tobacco – and it isn’t part of the ATF – they are
                   a law enforcement organization
              iii. Congress also reviewed and expanded the FDA act without
                   touching tobacco after the Surgeon General released his report on
                   the dangers of tobacco
       l. US Supreme Court Opinion
                i. The majority (Scalia) said this was evidence that Congress did not
                   intend for the FDA to regulate tobacco, and that such intent
                   trumped Chevron
               ii. Minority (Breyer) said just look at the law
              iii. Politics trump principle
72. Lorillard Tobacco Company v. Reilly – Preemption analysis v. Chevron
    analysis
       a. Doctors in the 1950s told people smoking was good for them
       b. Congress enacted the Labeling Act in 1965 to protect tobacco companies
       c. What is MA trying to do? – what it can as a state – this is federalism at
           work – this is states being the laboratory of social prevention that we
           protect through federalism
       d. Where was MA trying to ban the advertising of cigarettes? – 1000 feet of
           playgrounds and schools
       e. Why did they want to ban the advertising to children – because there is
           evidence – studies show that cigarettes are bad for children
       f. Types of preemption
                i. Explicit
                               a. Preempt the state’s action explicitly
               ii. Implicit
       g. Set up regulations so there is no room for the state to regulate
       h. MA argued that they were regulating this as part of a general ban on
           outdoor advertising
       i. The Court looked at the legislative history and said that Congress was
           clearly interested in preventing specific state regulations that concern
           smoking advertising – the only reason to keep people from smoking is for
           their health
       j. The Court found that Congress intended to keep the states from regulating
           the advertising of tobacco
       k. How is the US Supreme Court’s preemption analysis similar to a Chevron
           analysis?
       l. That was Justice Stevens’ irony – Congress could keep the states from
           protecting children from tobacco but Congress itself couldn’t protect kids
           from guns
       m. Difference – congress is preventing the states from doing something as
           opposed to dealing with the federal government’s police power and state
           commerce – a police power regulation should be a state right, not a federal
           right – is what Lopez was about
       n. Smokeless tobacco and cigars aren’t covered – weren’t a big deal at the
           time and they didn’t do a whole lot of advertising
       o. Question is – are there other limits? – this is where the court started
           looking into commercial speech regulation – effects your ability to
           regulate advertising of legal products
       p. Commercial speech protection is not as absolute as a First Amendment
           political speech protection but it is close – they have to have a narrowly
           tailored solution
       q. Left with an interesting dilemma – the state could ban the sale of tobacco
           to minors, or vending machines, or tobacco sales entirely – we are left
           with actions v. speech – states could ban tobacco, but if tobacco is legal,
           they can’t ban the advertising
       r. But if tobacco becomes illegal, then they can ban the advertising
73. Dalehite v. US – The Texas City Disaster
       a. Had ships in the harbor loaded with fertilizer and one ship loaded with
           explosives
b. A fertilizer ship caught on fire – the ship blew up – the fire company was
   down there and so were a lot of people who had gone down there to see
   what was going on
c. This was one of the first major cases that came up under the FTCA –
   question was would the FTCA provide compensation for this terrible
   disaster?
d. TVA is producing ammonia nitrate fertilizer – producing it for the war –
   they were producing it because it was an explosive
e. Ammonia nitrate is not a high explosive, it isn’t extraordinarily potent, but
   it is cheap and you can get a whole lot of it
f. Post WWII, ammonia nitrate is also a good fertilizer – they were shipping
   it to Europe because we were trying to help rebuild Europe under the
   Marshall Plan
g. Why TVA? – what does TVA have that is enticing to manufacturing? –
   electricity
h. There is also a ship in the harbor with explosives – why would we ship
   explosives to Europe – demolition – demolish the buildings we had
   already bombed to help rebuild
i. The ship with explosives caught fire and set off the rest of this stuff
j. The general claim
         i. The negligence charged was that the US, without definitive
            investigation of FGAN properties, shipped or permitted shipped to
            a congested area without warning of the possibility of explosion
            under certain conditions.
k. District Court saw a general claim of negligence – FGAN (Fertilizer
   Grade Ammonia Nitrate) – it was negligent right off to ship the stuff out
   of a crowded port
l. Specific findings by the TC
         i. The Government had been careless in drafting and adopting the
            fertilizer export plan as a whole
        ii. Specific negligence in various phases of the manufacturing
            process; and
       iii. Those which emphasized official dereliction of duty in failing to
            police the shipboard loading
m. The statute
         i. Any claim based upon an act or omission of an employee of the
            Government, exercising due care, in the execution of a statute or
            regulation, whether or not such a statute or regulation be valid, or
            based upon the exercise or performance or the failure to exercise or
            perform a discretionary function or duty on the part of a federal
            agency or an employee of the Government, whether or not the
            discretion involved be abused
n. This is broad immunity – we are exploring where does this end and
   negligence begins
o. Key issue – why do we have this protection?
        p. Why do we limit claims based on government decisionmaking? – it would
           tend to make them not act and that is not always a good thing – we want
           the government to act
        q. If you don’t like what the government is doing and you can’t sue them,
           what else can you do? – protest; elect someone else
        r. The Court is reminding us that this is political control – if you don’t like
           what the agency is doing as a policy matter, the remedy is through the
           political process, not in the courts
        s. Compensation – if you aren’t able to be compensated, you ask Congress to
           compensate you
        t. We see this classic dilemma – the court saying these are political choices
           that we don’t want you solving through litigation
        u. The agency had a plan for doing this, followed that plan – the plaintiffs
           couldn’t point out any negligence – they just disagreed with the plan – the
           SC said that wasn’t sufficient
74. Allen v. US
        a. We did a surface test of an atomic weapon – the plaintiffs were affected by
           the nuclear fallout
        b. Plaintiffs said the government didn’t warn them adequately enough about
           the fallout
        c. Plaintiffs alleged that they suffered certain radiation-related injuries – they
           may have had them
        d. Took several years to get to trial – was a trial at the district court level
        e. Did the government do it on purpose? – Yes – but they didn’t mean to
           make everyone sick
        f. The government knew where the fallout was going – so at the very least,
           they made a policy decision on where the fallout would go – so do these
           people have a tort claim? – NO – it fell under the discretionary exception
           as long as the government did it on purpose – that seems counterintuitive
        g. The whole point of the FTCA is that the government can choose to do
           some bad things to you and you can’t sue them for a tort unless it falls
           under another exception
        h. The FTCA deals with tort claims which are leftover after you have your
           other constitutional claims (Equal Protection; Due Process; etc.) – in
           giving permission to sue in this area, the federal government has given
           fairly narrow permission
        i. Court of Appeals said since the government did it on purpose, the
           plaintiffs are screwed
        j. If the policy decision violates some other constitutional protection, then
           you are entitled to compensation; but if you just have a garden variety tort,
           you are out of luck
75. Berkovitz v. Berkovitz
        a. This case deals with polio vaccine
        b. The government couldn’t claim discretionary authority
        c. FDA regulations require that every vaccine be tested
d. Plaintiff claimed the FDA didn’t inspect the vaccines correctly and that
   was the cause of their child getting polio
e. This was a period when we had two vaccines – Salk vaccine and Sabin
   vaccine
f. Salk
         i. Supposedly dead virus
g. Sabin vaccine
         i. Live, attenuated vaccine
        ii. Gives a mild infection
      iii. Can spread to others – which is good because you sort of
            immunized all of your friends
       iv. What if someone is immunosuprressed? – the mild case of polio
            turns into a full-blown case of polio
h. During the first rollout of the Salk vaccine, some vaccine was not killed
   and children became infected – this was the first vaccine litigation and it
   was a legitimate real injury because they screwed up
i. People got suspicious of vaccines – undermined confidence in them
j. Swine flu vaccine came along in 1975
         i. Was the bird flu of that time
        ii. This was going to be the hallmark of President Ford’s presidential
            career - did a massive vaccination campaign
      iii. Companies demanded immunity from lawsuits
       iv. For once, the feds basically said to sue them instead of the vaccine
            manufacturers and you can use strict liability – did this because
            they didn’t think it would be a big deal
        v. Turns out the vaccine might or might not have caused a sort of
            Guillain-Barre syndrome – most people have a mild case which is
            very difficult to diagnose – is a bad neurological disease
       vi. Lawyers got together with patients and doctors and doctors were
            encouraged to make these diagnoses and we ended up with a huge
            number of Guillain-Barre cases
      vii. Was the first big mass tort medical-related claim
     viii. Turns out that this doesn’t cause the syndrome
k. Varig Airlines case
         i. Airplanes are very highly regulated
        ii. The FAA required them to inspect airplanes
      iii. They promulgated regulations that allowed them to do specific
            samplings
       iv. Court said the statute was a valid regulation to only require
            inspections of some airplanes and it was in the discretion of the
            agency to choose which planes to inspect
l. But the regulations in this case didn’t say that it would spot-check the
   vaccine, it said that it would check every vaccine
m. Since that is what the statute said, and they didn’t do it, they can’t impose
   immunity
       n. This is a proper application of FTCA – the agency had to inspect all the
           vaccines, because that is what the people expected of them
       o. When the FDA doesn’t follow its own rules, it doesn’t get discretionary
           authority immunity
76. Leleux v. US
       a. Federal tort claim for getting a STD
       b. Naval recruiter and an underage navy recruit
       c. She had sex with the military recruiter – she said it was absolutely
           consensual – why did she say this – what exception was she trying to
           avoid in the FTCA? – that intentional torts are excluded under the FTCA
       d. She is trying to plead that she was negligently injured in the Naval
           recruiting process – that getting liquored up and partying with the
           recruiters was part of the process – the Court didn’t want to go there
       e. The court looked at it that she didn’t consent to getting herpes
       f. This being an un-consented transmission of a loathsome disease was a
           classic battery action – and as such, it is excluded from the FTCA
       g. Sheridan case – the government assumed a duty to corral an intoxicated
           armed serviceman – he wasn’t properly corralled and was injured – he
           sued the government for the injuries
       h. Court said it wasn’t battery because he was hit by the serviceman – it was
           negligence based on the government’s failure to carry out their duty to
           keep this guy from injuring people – the fact he was a government
           employee didn’t matter at all
       i. If the claim is independent of the employment status of the person who
           committed the injury, then you can stay in court
       j. Put these cases together – Leleux – no liability – was a battery; Sheridan –
           liability because the government’s negligence was in preventing the
           battery rather in committing the battery
       k. You still get to sue the recruiter, but that isn’t worth much – if you step
           out far enough out of your role as a government employee, you can be
           sued individually for tort claims
       l. Key Notions
                i. If the constitution gives you a remedy, you have it and the
                    government can’t take it away
               ii. If you have a claim on a different constitutional remedy – that is a
                    constitutional claim, not a tort claim
              iii. If you have an ordinary tort claim, you are stuck with the exception
                    to sovereign immunity in the FTCA – if you don’t fall into that
                    exception, you can’t bring the case – you fall out of the exception
                    if it is a discretionary function
77. Gregor v. Argenot Great Insurance Co.
       a. Raw oyster case – Pascal Manale’s – plaintiff had hepatitis C – ate raw
           oyster and died from vibrio vulnificus
       b. Plaintiff was eating in dining room, sign was posted in oyster bar
       c. The Oyster Industry
                i. Didn’t support the labeling requirements
          ii. Their concern was that people wouldn’t want to eat oysters
         iii. As a products liability lawyer, you would tell them that they are
               selling a dangerous product and they need a little cover – they need
               a label - Nonetheless, they opposed this
         iv. They had a profound effect on the law that was finally passed
d.   The warning:
           i. There may be a risk associated with consuming raw shellfish as is
               the case with other raw protein products. If you suffer from chronic
               illness of the liver, stomach or blood or have other immune
               disorders, you should eat these products fully cooked
          ii. In fairness, it should say “if you would like to avoid having illness
               of the liver, stomach or blood” because you don’t have to be
               immuno-suppressed to get these illnesses
e.   What if he didn’t have Hepatitis C? – would it have mattered if the
     warning was there? – YES – because that was all that they were required
     to post – if they didn’t correctly post the warning that didn’t apply to you,
     it still isn’t a problem
f.   Plaintiff’s negligence theory against the state – argues that the state never
     cited the restaurant for how the signs were posted – there is evidence that
     they did inspect the restaurant and knew the sign was out of place
g.   The health department said that the inspector was under the impression
     that the oyster bar was the only place where they sold the oysters and he
     used his discretion
h.   25% of the oysters consumed at the restaurant were ordered off the menu
     and not at the oyster bar
i.   Interesting issue
           i. LA abolished sovereign immunity, but kept discretionary authority
          ii. The statute looks like the federal statute
         iii. “Lawful powers and duties” creates an interesting issue – what if
               the thing is later declared to be unlawful? – what if they have gone
               beyond their lawful powers and duties?
j.   What if the inspector is taking a bribe – what might that do to the state’s
     liability? – is the state liable for the criminal acts of your employees
     beyond their course and scope? – NO – you are liable for their negligence
k.   So if he had taken a bribe, we don’t know if the state would be on the
     hook – it might have to do with if the boss was getting a piece of the bribe
l.   On some level the state won’t be liable, on another level, the state will be
m.   Another issue – this is something that is prone to low-level corruption
n.   The Sanitary Code
           i. Point of sale is a critical term of art – when you order the oysters,
               you have to be able to see the sign; and the restaurant has to
               establish that the sign can be read
          ii. Issue on the placement and the visibility – could be a table tent,
               menu notice, etc.
       o. So when we are thinking about discretion, they must display it – the
          Health Dept. doesn’t have the option to say that a restaurant doesn’t have
          to display it and it must be at point of sale
       p. What case did the court adopt as a standard?
               i. Berkovitz
       q. How do you use that standard in this case?
               i. Is this like the polio part or the discretionary inspection?
              ii. Court said that they couldn’t say it was in the discretionary
                  authority
       r. The court looked at the statute and said point of sale is sufficiently well-
          defined that it doesn’t allow discretion to be used
       s. The court also found the restaurant liable for not properly posting the sign
       t. Ultimately, they assign more liability to the restaurant than to the health
          department figuring that the restaurant should know more about their
          oysters than the Health Dept.
       u. The Court is unclear on whether the theory is bad oysters or bad warning
       v. St. Marks – redux
               i. Data from health studies in the mid-1970s showed a huge risk of
                  hepatitis B in bathhouses
                       1. Should the health department have warned the public?
                               a. If you warn too much, you lose credibility
                               b. There is a real public policy dilemma – if you
                                   increase the warnings, you end up with an overload
                       2. Should they have closed the bathhouses?
              ii. What does the public assume from government inaction?

78. Graci v. US
       a. Flood case – the flood occurred in Plaquemines and St. Bernard - flood
           was a result of Hurricane Betsy
       b. The purpose of this particular body of water that flooded was to create a
           short cut for ships to pass from the Gulf to New Orleans
       c. The purpose of the channel was for navigation – the canal is still open and
           there is still a clean shot between the Gulf and New Orleans
       d. If you connect New Orleans and the Gulf and a hurricane comes, the
           hurricane will obviously push water up the channel and help flood
       e. They are looking at the Flood Control Act of 1928
       f. 1927 – the Mississippi flooded – flooded basically the whole delta starting
           south of St. Louis to New Orleans
       g. What kind of immunity does the Act give the Corps for flood control –
           absolute immunity for any damage caused by flood or flood waters – if
           they screw it up through malfeasance, they are still absolutely immune
       h. This was an all-purpose liability act
       i. Congress gives them complete immunity because they are going to go in
           and rebuild the levees
       j. Government says it is water and it flooded so it doesn’t matter if it is a
           navigation channel as opposed to a flood control project
       k. Court said if it is a navigation channel, you don’t get Flood Control Act
          Immunity
       l. Question is – where does that leave us? – what act then controls – FTCA –
          so what we are doing is shifting from absolute immunity to FTCA
          immunity – so the court can still impose discretionary authority
       m. You go from absolute immunity to at least being able to make your case in
          court

79. Florida East Coast Railway Co. v. US
       a. This is a flood, but not one due to a levee break, it is due to the levee
           system disrupting the drainage in the area
       b. Court found that the 1928 Act controlled
       c. Problem – there is also a levee district in this
       d. Courts have not construed the 1928 Flood Control Act to wrap around
           third parties – there is no government contractor defense to the 1928 Flood
           Control Act
       e. Although if you were a contractor who built it specifically to the Corps’
           instructions, you could probably argue that you weren’t negligent
80. Central Green Co. v. US
       a. Even if the project has a flood control purpose, the Act does not grant
           immunity if the damage was not flood related
       b. It is about flood control projects and damage related to flooding

81. Saden v. Kirby
       a. New Orleans Sewerage and Water Board
       b. 2 big pumps, one little one
       c. Underground power line for big pumps, generator to run one big pump
       d. Power line for big pumps went down
       e. Was still down when flood occurred 3 months later – finally fixed 6
          months after the flood
       f. Evidence presented that it shouldn’t have taken 3 months to fix the power
          line
       g. Court found that this was an unreasonable delay in fixing the power line –
          found the S&WB liable
       h. Found the Plaquemines Parish government wasn’t liable because they
          built the dam after the water had peaked and the plaintiffs’ couldn’t show
          any extra damage
       i. If you are representing a Plaquemines governor, what is your defense? –
          why did you build that dam on purpose? – to prevent the flooding – if
          someone from NO says that you flooded them by building the dam and not
          letting the water run, what is your answer – discretionary authority – that
          wasn’t addressed in this case at all – is odd that it wasn’t
       j. Should Plaquemines be able to have discretionary authority?
       k. How far will discretionary authority go?

82. Camara v. Municipal Court
a. This is the first time the SC is really looking at administrative searches –
   at least the routine state and local government administrative search
b. In San Francisco – looking for violations of the occupancy permits – is a
   routine housing inspector
c. The Municipal Ordinance
        i. “Authorized employees of the City departments or City agencies,
             so far as may be necessary for the performance of their duties,
             shall, upon presentation of proper credentials, have the right to
             enter, at reasonable times, any building, structure, or premises in
             the City to perform any duty imposed upon them by the Municipal
             Code”
d. Occupancy permits matter for public health purposes – too many tenants
   overload sewer, power, etc. - this is a legitimate purpose
e. Defendant wouldn’t let the inspector in – was arrested and charged with a
   crime based on not allowing the inspector in
f. Defendant files a writ of prohibition – an attack under the CA system of
   the constitutionality of these acts – said it doesn’t meet criminal due
   process requirements – there was no warrant, which meant you didn’t get
   to probable cause or judicial approval – State courts throw this out
g. Precedent – Frank v. Maryland
        i. SC upheld conviction of one who refused to permit a warrantless
             inspection of private premises for the purposes of locating and
             abating a suspected public nuisance
          th
h. The 4 Amendment was narrowly construed to deal with only criminal
   searches
i. The Frank Rule
        i. …Municipal fire, health, and housing inspection programs “touch
             at most upon the periphery of the important interests safeguarded
             by the 14th Amendment’s protection against official intrusion,”
             because the inspections are merely to determine whether physical
             conditions exist which do not comply with minimum standards
             prescribed in local regulatory ordinances
       ii. Gave us a rationale for this
j. By and large are talking about administrative actions – you can’t be
   criminally prosecuted
k. 4th Amendment didn’t say anything about administrative searches –
   question it, what did the drafters know about them? – the colonial
   governments did a whole lot of nosing around for nuisances in people’s
   houses – quarantines for smallpox, etc. – the states were very involved in
   regulation of day-to-day activities
l. But the 4th Amendment itself doesn’t give us a clue if it was intended to
   stop these or just apply to criminal prosecutions – have to look at the
   intentions
m. Why is the Intent of the Search Critical?
        i. Since the Inspector does not ask that the property owner open his
             doors to a search for “evidence of criminal action” which may be
             used to secure the owner’s criminal conviction, historic interests of
             “self-protection” jointly protected by the 4th and 5th Amendments
             are said not to be involved, but only the less intense “right to be
             secure from intrusion into personal privacy”
n.   What the court was left with is if you want to contest the inspection, that is
     a crime – and what they were concerned about is, lets say you are a health
     inspector and you want to harass someone – you can inspect that person
     whenever you want – don’t have to find anything or cite that person, can
     just keep inspecting him
o.   The SC decided that this was a little too much power for the government
     and that you shouldn’t have to risk going to jail to contest a search
p.   Came up with an analysis – question was whether the burden of obtaining
     a warrant is likely to frustrate the governmental purpose behind the search
q.   Does a warrant requirement mean no searches?
          i. “In assessing whether the public interest demands creation of a
             general exception to the 4th Amendment’s warrant requirement, the
             question is not whether the public interest justifies the type of
             search in question, but whether the authority to search should be
             evidenced by a warrant, which in turn depends in part upon
             whether the burden of obtaining a warrant is likely to frustrate the
             governmental purpose behind the search”
         ii. “In a criminal investigation, the police may undertake to recover
             specific stolen or contraband goods. But that public interest would
             hardly justify a sweeping search of an entire city conducted in the
             hope that these goods might be found. Consequently, a search for
             these goods, even with a warrant, is “reasonable” only when there
             is “probable cause” to believe that they will be uncovered in a
             particular dwelling”
r.   In Frank, you don’t need a warrant before anything – see a glimmering of
     the Matthews analysis – what is the cost-benefit, what is the burden of the
     transaction?
s.   “The primary governmental interest at stake is to prevent even the
     unintentional development of conditions which are hazardous to public
     health and safety. Because fires and epidemics may ravage large urban
     areas, because unsightly conditions adversely affect the economic values
     of neighboring structures, numerous courts have upheld the police power
     of municipalities to impose and enforce such minimum standards even
     upon existing structures”
t.   General v. Specific Probable Cause
          i. “There is unanimous agreement among those most familiar with
             this field that the only effective way to seek universal compliance
             with the minimum standards required by municipal codes is
             through routine periodic inspections of all structures”
         ii. “It is here that the probable cause debate is focused, for the
             agency’s decision to conduct an area inspection is unavoidably
             based on its appraisal of conditions in the area as a whole, not on
             its knowledge of conditions in each particular building”
u.   Key finding was distinguishing this probable cause – criminal law you are
     looking for specific items, specific evidence; whereas in an area
     inspection, it is based on the conditions of the area as a whole; doesn’t
     depend on a knowledge of conditions in any particular building or
     apartment
v.   Factors Supporting General Probable Cause
          i. First, such programs have a long history and public acceptance
         ii. Second, the public interest demands that all dangerous conditions
             be prevented or abated, yet it is doubtful that any other canvassing
             technique would achieve acceptable results
        iii. Finally, because the inspections are neither personal in nature nor
             aimed at the discovery of evidence of crime, they involve a
             relatively limited invasion of the urban citizen’s privacy
w.   The Frank Consensus
          i. “Time and experience have forcefully taught that the power to
             inspect dwelling places, either as a matter of systematic area-to-
             area search or, as here, to treat a specific problem, is of
             indispensable importance to the maintenance of community health;
             a power that would be greatly hobbled by the blanket requirement
             of the safeguards necessary for a search of evidence of criminal
             acts”
x.   Prevention v. Punishment
          i. “The need for preventive action is great, and city after city has
             seen this need and granted the power of inspection to its health
             officials; and these inspections are apparently welcomed by all but
             an insignificant few. Certainly, the nature of our society has not
             vitiated the need for inspections first through necessary 158 years
             ago, nor has experience revealed any abuse or inroad on freedom
             in meeting this need by means that history and dominant public
             opinion have sanctioned”
y.   Standards for an Area Warrant
          i. Such standards will vary with the municipal program being
             enforced, may be based upon
                                     1. The passage of time
                                     2. The nature of the building
                                     3. The condition of the entire area
         ii. They will not necessarily depend upon specific knowledge of the
             condition of the particular dwelling
z.   Emergency Exceptions
          i. “Nothing we say today is intended to foreclose prompt inspections,
             even without a warrant, that the law has traditionally upheld in
             emergency situations”
         ii. Examples
                             1. North American Cold Storage – seizure of
                                unwholesome food
                             2. Jacobson – compulsory smallpox vaccination
                             3. Compagnie Francaise – health quarantine
                             4. Kroplin – summary destruction of tubercular cattle
       aa. Practical Considerations
                 i. Notion about what is in the area warrant
                ii. Is there much of an administrative burden?
               iii. This doesn’t necessarily require a judge, but that you have some
                    set out, defined reason to search and reason to select the areas to
                    search and that there is some discretion on the inspector
83. See v. Seattle
       a. Routine fire inspection of a commercial warehouse – done as part of a
            city-wide sweep
       b. Owner was prosecuted for refusing to allow the inspection
       c. Key question – do business establishments have a diminished expectation
            of privacy under the 4th Amendment?
                 i. “The businessman, like the occupant of a residence, has a
                    constitutional right to go about his business free from unreasonable
                    official entries upon his private commercial property”
       d. Further Gloss on Area Warrant
                 i. “But the decision to enter and inspect will not be the product of the
                    unreviewed discretion of the enforcement officer in the field”
       e. The Dissent
                 i. “Today the Court renders this municipal experience, which dates
                    back to Colonial days, for naught by overruling Frank v. Maryland
                    and by striking down hundreds of city ordinances throughout the
                    country and jeopardizing thereby the health, welfare, and safety of
                    literally millions of people”
       f. Predicted Impact
                 i. “But this is not all. It prostitutes the command of the 4th
                    Amendment that “no Warrants shall issue, but upon probable
                    cause” and sets up in the health and safety codes area inspection a
                    newfangled “warrant” system that is entirely foreign to 4th
                    Amendment standards. It is regrettable that the Court wipes out
                    such a long and widely accepted practice and creates in its place
                    such enormous confusion in all of our towns and metropolitan
                    cities in one fell swoop”
       g. Camara and See only deal with the US Constitutional issues – some state
            constitutions have greater protections and the legislatures can enact greater
            protections
84. US v. Biswell
       a. Federally licensed gun dealer
       b. Police officer and federal treasury agent show up and ask to see the books
            and the storeroom
       c. Owner consents and they find a sawed off rifle
       d. Owner is prosecuted and attacks the search as not having even an area
           warrant
       e. Pervasively Regulated Industries
                i. When a dealer chooses to engage in this pervasively regulated
                   business and to accept a federal license, he does so with the
                   knowledge that his business records, firearms, and ammunition
                   will be subject to effective inspection
               ii. Each licensee is annually furnished with a revised compilation of
                   ordinances that describe his obligations and define the inspector’s
                   authority. The dealer is not left to wonder about the purposes of the
                   inspector or the limits of his task
85. NY v. Burger
       a. Search of junk yard for stolen goods
       b. Lower court excluding the evidence
                i. “The fundamental defect…is that it authorizes the searches
                   undertaken solely to uncover evidence of criminality and not to
                   enforce a comprehensive regulatory scheme. The asserted
                   “administrative scheme” here is, in reality, designed simply to give
                   the police an expedient means of enforcing penal sanctions for
                   possession of stolen property”
       c. Does the history of the regulations matter?
                i. Firearms and alcohol have always been regulated
               ii. “We pointed out that the doctrine is essentially defined by “the
                   pervasiveness and regularity of the federal regulation” and the
                   effect of such regulation upon an owner’s expectation of privacy.
                   We observed, however, that the “duration of a particular regulatory
                   scheme” would remain an “important factor” in deciding whether a
                   warrantless inspection pursuant to the scheme is permissible”
       d. Alternative Standard – “…where the privacy interests of the owner are
           weakened and the government interests in regulating particular businesses
           are concomitantly heightened, a warrantless inspection of commercial
           premises may well be reasonable within the meaning of the 4th
           Amendment”
       e. Lower court said that is just a subterfuge – they are using their
           administrative authority to affect a criminal search without having to have
           due process
       f. Question – is a junkyard a pervasively regulated industry?
       g. Court says that junkyards qualify
       h. What they decided was that where the privacy interests of the owner are
           weakened and the government interests in regulating particular businesses
           are concomitantly heightened, a warrantless inspection of commercial
           premises may be reasonable within the meaning of the 4th Amendment
       i. Criteria for Searches of Regulated Industries
                i. There must be a substantial government interest that inform the
                   regulatory scheme pursuant to which the inspection is made
               ii. The interest must be necessary to further the regulatory scheme
             iii. There must be a constitutionally adequate substitute for a warrant
                   1. In other words, the regulatory statute must perform the two
                       basic functions of a warrant
                            a. It must advise the owner of the commercial premises
                                 that the search is being made pursuant to the law and
                                 has a properly defined scope
                            b. And it must limit the discretion of the inspecting
                                 officers
             iv. What is necessary to substitute for a warrant?
                            1. To perform the first function, the statute must be
                                 “sufficiently comprehensive and defined that the owner
                                 of commercial property cannot help but be aware that
                                 his property will be subject to periodic inspections
                                 undertaken for specific purposes”
                            2. “In addition, in defining how a statute limits the
                                 discretion of the inspectors, we have observed that it
                                 must be “carefully limited in time, place, and scope””
      j. How do these apply to this case?
               i. First, the State has a substantial interest in regulating the vehicle-
                   dismantling and automobile-junkyard industry because motor
                   vehicle theft has increased in the State and because the problem of
                   theft is associated with this industry.
              ii. Second, regulation of the vehicle-dismantling industry reasonably
                   serves the State’s substantial interest in eradicating automobile
                   theft. It is well established that the theft problem can be addressed
                   effectively by controlling the receiver of, or market in, stolen
                   property
             iii. Finally, the “time, place, and scope” of the inspection is limited
                 1. The officers are allowed to conduct an inspection only “during
                     the regular and usual business hours”
                 2. The inspections can be made only of vehicle-dismantling and
                     related industries
                 3. And the permissible scope of these searches is narrowly defined
                          a. The inspectors may examine the records, as well as “any
                               vehicles or parts of vehicles which are subject to the
                               record keeping requirements of this section and which are
                               on the premises”
86. Whalen v. Roe
      a. Required reporting of narcotics prescriptions by physicians and
          pharmacies
               i. Intended to develop data on abuse and to collect data for
                   prosecution
      b. What about patient’s privacy? – most of these are legitimate prescriptions,
          but people are concerned about medical privacy
      c. Court found this to be within police powers
      d. Government must avoid unneeded disclosure
       e. Only limitations – don’t unnecessarily disseminate it and the political
           limitations
87. Marchetti v. US
       a. The law required gamblers to keep records of illegal gambling activity
       b. The court found that these violated the 5th Amendment because they
           targeted criminal activity
       c. What if you are required to keep records for a legal purpose? – i.e. taxes –
           and you cheat – you can’t sit on the records because they would
           incriminate you – they were records kept in the normal course of business
           for an appropriate reason – the fact that they will incriminate you is your
           hard luck
                i. One odd exception – where having the record at all will
                   incriminate you – feds want your income statements of your
                   transactions – you do illegal drug transactions – they will
                   incriminate you
88. Chrysler Corp. v. Brown
       a. Stands for the “reverse FOIA case”
       b. When you are suing the government to keep them from releasing
           information
       c. The FOIA is silent on any third party right to contest disclosure – so you
           have to argue that you come in under the general jurisdiction of the APA
           to enjoin the agency from acting unlawfully and convince the court is not
           only subject to an exemption but releasing the information would be
           acting unlawfully
       d. It is the all purpose way of getting the agency into court when there is no
           private action in the area you are in
       e. Court reminds us that these exemptions are not absolute – the agency may
           decide that even if something is valid, the agency can release it unless it is
           otherwise prohibited
       f. Are trade secret protections absolute?
                i. Court also said that the protection of the trade secret act is not
                   absolute, but the agency must show some legal basis for releasing
                   otherwise protected information
               ii. When might the agency release trade secret information?
                           1. Congress does this for toxics in some cases
       g. Releasing Proprietary Corporate Data
                i. Key to deciding whether the data will be released
                     2. Was the data provided voluntarily or under compulsion?
               ii. When is voluntary information covered?
                           1. If it would not ordinarily be available to the public
              iii. When is compelled information covered?
                               1. If it would cause significant harm if not released
       h. Examples where Congress has compelled disclosure
                i. MSD and community notification act under EPA
       i. Do the companies have to be notified first?
       i. By executive order, companies must be notified when the agency
          wants to divulge their information
j. Clinical Trial Data
       i. The FDA is under pressure to release clinical trial data submitted
          for new drug approvals
                   1. There are new concerns that drug companies are
                       overstating the benefits and understating the risks of
                       drugs
          ii. What are the FOIA issues?
                   1. If the FDA is sitting on the information collected under
                       the existing regulatory system, there is a pretty strong
                       argument that it shouldn’t be released, but no statute
                       that says it can’t
                   2. Chrysler v. Brown says they could release it if public
                       safety requires it
                   3. So the FDA could do this, but the companies would
                       freak out
                   4. The odds of the FDA unilaterally deciding this are
                       pretty slim
                   5. This is probably the cutting edge issue to the FOIA –
                       trying to figure out what the FDA has as opposed to
                       what the drug companies have – were they lying to the
                       FDA

				
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