ADMINISTRATIVE LAW AND PROCESS Third Edition

Transcription

1 ADMINISTRATIVE LAW AND PROCESS Third Edition

2 LexisNexis Law School Publishing Advisory Board Paul Caron Professor of Law Pepperdine University School of Law Herzog Summer Visiting Professor in Taxation University of San Diego School of Law Bridgette Carr Clinical Professor of Law University of Michigan Law School Olympia Duhart Professor of Law and Director of Lawyering Skills & Values Program Nova Southeastern University, Shepard Broad Law School Samuel Estreicher Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law NYU School of Law Steven I. Friedland Professor of Law and Senior Scholar Elon University School of Law Carole Goldberg Jonathan D. Varat Distinguished Professor of Law UCLA School of Law Oliver Goodenough Professor of Law Vermont Law School Paul Marcus Haynes Professor of Law William and Mary Law School John Sprankling Distinguished Professor of Law McGeorge School of Law

3 ADMINISTRATIVE LAW AND PROCESS Third Edition Alfred C. Aman, Jr. Roscoe C. O Byrne Professor of Law Indiana University Maurer School of Law

4 ISBN: ISBN: (looseleaf) ISBN: (ebook) Library of Congress Cataloging-in-Publication Data Aman, Alfred C., author. Administrative law and process / Alfred C. Aman, Jr., Roscoe C. O Byrne Professor of Law Indiana University Maurer School of Law. Third Edition. pages cm Includes index. 1. Administrative law United States. I. Title. KF5402.A dc This publication is designed to provide authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender and the Matthew Bender Flame Design are registered trademarks of Matthew Bender Properties Inc. Copyright 2014 Matthew Bender & Company, Inc., a member of LexisNexis. All Rights Reserved. No copyright is claimed by LexisNexis or Matthew Bender & Company, Inc., in the text of statutes, regulations, and excerpts from court opinions quoted within this work. Permission to copy material may be licensed for a fee from the Copyright Clearance Center, 222 Rosewood Drive, Danvers, Mass , telephone (978) NOTE TO USERS To ensure that you are using the latest materials available in this area, please be sure to periodically check the LexisNexis Law School web site for downloadable updates and supplements at Editorial Offices 121 Chanlon Rd., New Providence, NJ (908) Mission St., San Francisco, CA (415) (2014 Pub.272)

5 Dedication To my students iii

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7 Preface to the Third Edition Administrative law is about legal processes that relate power to principles. It governs the legal means by which executive, legislative, and judicial powers are exercised over and through administrative agencies. The principles underlying federal administrative law are fundamental to the structure of federal government in the United States, particularly regarding the separation of powers and the authority of the three branches vis-à-vis each other. Those principles have generated extensive debate, since administrative agencies by definition involve intersecting authorities (e.g., as executive agencies governed by Congressional statute) and, inevitably, those intersections yield gray zones. The previous editions of this book have followed those controversies as the deregulatory and antiregulatory trends of the 1970s and 1980s yielded the neoliberalism of the 1990s and 21st century. Those debates continue. The second edition reflected what was then the emergent trend towards privatization and marketization of governmental services. That trend is now well established, and public/private partnerships are pervasive, including partnerships between governmental entities and transnational corporations. The expansion of the transnational private sector in relation to government, as well as in other respects, effectively makes transnationalism integral to domestic administrative law in a variety of ways. A purely state centric approach to administrative law is insufficient, as administrative law today mediates public and private power in novel ways, the implications of which can be far reaching. This third edition will reflect at least some of the challenges of those mediations. This edition foregrounds areas of administrative law that have given rise to new debates, or have brought new intensity to controversies of long standing. This is particularly the case with regard to judicial review, which has become a major site of contention over intra-governmental powers, including the powers of the Supreme Court itself. In some areas, including the judicial review of agency interpretations of statutes, settled doctrine has become unsettled, yielding important and often new interpretive questions for administrative law teachers and their students. The sharply partisan divides between the national political parties will undoubtedly be in the minds of many readers as they study recent cases; however, it is important to avoid too cynical a reading of the relevance of politics to the development of administrative law over the past decade. Administrative law is itself political in the classical sense of establishing and distributing powers; looking too quickly for partisan effects risks missing the rich institutional complexity of contemporary democracy as well as its fragility. Our focus on powers and the principles behind their distribution is thus designed to help readers focus analytically on sites of conceptual tension and ambiguity in administrative law that are likely to become important arenas of advocacy in the future. As in previous editions, the book is divided into two parts. An introductory Chapter 1 provides students with an overview of such key administrative law concepts as rules and orders as well as some of the various ways they might conceptualize administrative processes generally. Part I (Chapters 2 to 5) deals with the procedures agencies use to exercise their adjudicatory and rulemaking powers. It focuses on the exercise of power within the walls of administrative agencies. Chapters 2 and 3 explore the constitutional and statutory issues that arise when agencies adjudicate. More specifically, Chapter 2 is concerned with the constitutional law that governs the law-applying functions of v

8 Preface to the Third Edition agencies. It focuses on the constitutional requirements of the Due Process Clause of the Fifth and Fourteenth Amendments as applied to agency adjudication. Chapter 3 examines in detail the Administrative Procedure Act s requirements for formal adjudication. Chapter 4 addresses informal agency actions and various alternative dispute resolution approaches. Chapter 5 then focuses on rules and rulemaking processes under the Administrative Procedure Act. These institutional arrangements, introduced in Part I, are then set into motion in Part II. Part II (Chapters 6 to 10) examines how various actors outside of agencies attempt to influence and control the exercise of agency discretion. Chapter 6 deals with the constitutional issues that arise when Congress seeks to delegate legislative power to unelected agency administrators. It also examines delegation in relationship to international agencies and the outsourcing of agency responsibilities to private contractors as well. Chapter 7 involves executive controls over agency discretion as well as various legislative or political attempts to influence agency behavior. Some new issues regarding recess appointments as well as new statutory arrangements governing the ability of the President to remove agency officials are also included. Chapter 8 examines judicial controls over agency discretion and the scope of judicial review provided when a case is properly before a court. The Chevron case and the administrative law battleground that it has helped create will be covered in some detail, Chapter 9 addresses the question of which litigants can bring a lawsuit to challenge agency discretion, as well as when and where they can do so. Chapter 10 then examines other means of controlling agency discretion. In particular, Chapter 10 focuses on agencies and citizens power to obtain and withhold information. 1 As a starting point for our discussion of the pragmatics of administrative law, one could usefully view each agency as a culture, as the distinguished practitioner Howard Westwood argued over 45 years ago each agency being a law unto itself, with its own way of doing things. 2 There is utility to this kind of appreciation of each agency s character as a social system, as agencies were established by individual statutes, at different times, to meet different needs, and an astute lawyer will know these differences and the different opportunities or constraints they entail for successful advocacy. A more detailed knowledge of agency law in action would greatly advance our overall understanding of bureaucracies in general, and administrative law in particular. Increasingly, this is an area of fruitful exchange between legal scholarship and the social sciences. Indeed, alertness to social and historical context is an asset in case analysis. Administrative law has always been subject to wider societal and political pressures that affect the legal system as a whole, particularly in contexts where a shift in the public s needs, expectations, or attitude generates political energy for reform, and, accordingly, new demands for legal action. Thus, this casebook offers an approach to administrative law that integrates cases and context, and if this author s experience in the classroom is any guide this is especially instructive for students encountering the basic principles of this field of law for the first time. Contextual analysis, however, should not be limited to individual agencies; indeed to pursue the cultural analogy just this much further modern cultural analysis does not look for boundaries between cultures, but rather for cultural interconnections. Most 1 Throughout this book, citations are often omitted from the cases and articles excerpted. 2 Westwood, The Davis Treatise: Meaning to the Practitioner, 43 MINN. L. REV. 607, 611 (1959). vi

9 Preface to the Third Edition agencies, despite their significant differences, perform a number of common administrative functions. They gather information, formulate policy and then seek to implement and enforce that policy. Moreover, as already pointed out, they carry out these functions in the context of general historical and political forces that affect all institutions. As we shall see, especially in the chapter on judicial review, administrative law is a lively arena at the moment, as judges and law makers wrestle with the question of what may be particular to an agency and its expertise, and what should be general to the system as a whole, requiring close judicial scrutiny. Thus, while acknowledging the importance of particular substantive agency differences, this book focuses primarily on procedural issues that transcend individual agencies. It focuses on the more general legal context including various social, political, and historical factors, as relevant in which the key cases have arisen and been resolved. Indeed, administrative law must be historically sensitive, given the law s emphasis on longstanding interpretations of statutes as central to the conceptual and practical foundation of an agency s independence. Different historical eras are typified by different regulatory problems, different attitudes vis-à-vis the role government should play in dealing with these problems, and, consequently, different approaches to substantive regulation and procedure. For these same reasons, readers should not expect the lines of doctrinal development to be straightforward (or straight, for that matter), as administration law frequently finds its routes around doctrinal impasse (such as may emerge from unexpected circumstances) by tacking back or sideways to doctrinal sources some readers may have imagined to be no longer relevant. Individual agencies have unique histories and ongoing developing characters that are significantly affected by a number of contextual factors. Primary among these is the historical background that gave rise to the creation of the particular agency in the first place. Second, context includes the regulatory politics generated by an agency s ongoing attempts to carry out its statutory mandates in ever-changing political and economic contexts. Closely related to these broad contextual factors, and perhaps most important of all, is the nature of the agency s particular substantive task. As Professors Gellhorn and Robinson long ago noted, administrative procedures and the administrative process are ultimately related to the substance of administrative regulation. 3 Or, to paraphrase the artist Ben Shahn, form is the shape of content. 4 Shahn states an ideal. But in striving for that ideal, we cannot ignore the complex political realities of which administrative law is but a part. The administrative process and the law that it generates are very much products of a dialectical tension between timeless constitutional doctrines and rational administrative principles, on the one hand, and the demands for pragmatic governmental action constrained by politics in the historic context of the moment, on the other. It is a complex mixture of rational political theories and raw political hopes and fears. It reflects various attempts to deal collectively with a wide range of societal problems, some of which may or may not be capable of resolution by market processes or other non-state processes. Administrative law is often a bundle of contradictions in part reflecting the substantive and procedural contests involved in its making. In this book, several key contradictions are in play: the value we place on political process and yet our seeming inability to accept any finality when it comes to 3 Gellhorn & Robinson, Perspectives in Administrative Law, 75 COLUM. L. REV. 771, 787 (1975). 4 BEN SHAHN, THE SHAPE OF CONTENT 62 (Harv. Univ. Press 1957). vii

10 Preface to the Third Edition results; our respect for the market but, at the same time, our continuing belief in the efficacy of collective, pragmatic legal approaches to societal problems; our concern that the common good of the group be achieved, but not at the expense of basic individual rights. Again, I emphasize that readers should not look to administrative law to resolve these contradictions. Its primary role has been to give vent to their expression, and accordingly the primary effect of the administrative system has been more obviously procedural than substantive. However, procedure often encodes substantive values and agendas, and debates over administrative procedures are a means by which substantive conflicts are played out within agencies and in courts long after a law passes Congress and has been signed by the president. Understanding the subtleties of the interplay between substance and procedure is crucial to understanding the role administrative law plays today. Privatization, deregulation, regulatory cost efficiency, and regulatory forbearance introduced as key policy values with the national elections of the 1980s and the 90s will be with us, in one form or another, for the foreseeable future. Privatization (especially outsourcing) and deregulation are fueled increasingly by global competition and a deepening global regulatory discourse centered on efficiency (and, today, in some quarters, austerity). Regulatory ends are now traded off against cost efficiency, and cost-consciousness pervades the implementation of most regulatory programs today, particularly those administered by the president and subject to Office of Management and Budget review. In practice, this means that the government relies increasingly upon private actors to carry out public functions. From welfare to prisons, from snow removal to garbage collection, from military services to social services, from government sponsored health insurance exchanges to private web designers, private providers now play a much greater role than ever before. What is and what should be the role of administrative law in these contexts? Do we need a new administrative law? These are among the central questions this book is designed to help students answer for themselves. Given the major changes occurring in our political global economy, administrative law today is a key site for evidence of the adaptive capacity of government under the rule of law. As we adapt to changing times, creative and imaginative approaches towards law and policy will be evermore necessary. Understanding the basic principles set forth in this book will help students build the intellectual foundation for their own future innovations as legal professionals, thereby devising a new public law appropriate for sustaining democratic government in a global era and whatever is coming next. Bloomington, Indiana February, 2014 viii

11 Acknowledgments This book has benefited enormously from the conversations, comments, and other help I have had from my colleagues at the Maurer School of Law at Indiana University, especially Professors John Applegate, James Barnes, Yvonne Cripps, and Robert Fischman. I also wish to thank Professors Paul Craig at Oxford University, and Elisabeth Zoller, at the University of Paris II both regular visitors to the Law School as well as colleagues at other institutions with whom I have been in close contact regarding the issues in this book, in particular, Professor Alasdair Roberts at Suffolk University Law School and Professor José Vida at Juan Carlos III University in Madrid. I am deeply grateful for their comments, suggestions, and insights. I also wish to thank then Dean, now Provost Lauren Robel, and Acting Dean Hannah Buxbaum for the institutional support provided to me by the Maurer School of Law throughout this project. I also wish to thank all of the librarians at the IU Maurer School of Law for their help and expertise throughout this project. I wish to thank, in particular, Keith Buckley, Assistant Director for Public Services, Michelle Botok, Electronic Services Librarian, and especially, Jennifer Bryan Morgan, Documents Librarian and Director of the Library s U.S. government depository program. This book has also benefited from the conscientious and thoughtful contributions of the student research assistants who have worked on this project over the years, Kara Jensen 11, Erica Oppenheimer 12, John Fleming 12, Jason Olson 13, and Jillian Rountree 13. As the book neared its conclusion, several students, in particular, were deeply engaged in the exacting work of preparing the manuscript in its final form: Jake Davis 14, Ryan Weiss 14, and Scott Breen 15, all contributed importantly in this regard right up to the very end, when so many details needed to be addressed in short order. I greatly appreciate the expert assistance of Law School staff: Stacy Kaiser, senior faculty secretary, for her work on the many drafts of this manuscript, and Marian Conaty, support technician, who solved the innumerable technical problems that called for her special expertise. I am deeply grateful to my wife, Carol Greenhouse, without whose help, encouragement, and love, this book would not have been possible. She not only encouraged in me the kind of patience a long project like this requires, but she provided intellectual perspective, creative understanding, and stimulating questions along the way. ix

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13 Table of Contents Chapter 1 THE RELATIONSHIP OF THE INDIVIDUAL TO THE STATE THREE QUESTIONS RULES OR ORDERS? Londoner v. City and County of Denver Bi-Metallic Investment Co. v. State Board of Equalization of Colorado Notes and Questions Problem Problem Bowles v. Willingham Notes and Questions Problem RULES, ORDERS, AND THEORIES OF PROCEDURE SOME PRELIMINARY REFLECTIONS [A] Introduction [B] Red Light Theories of Administrative Law [C] Green Light Theories of Administrative Law [D] Context Aman, The Limits of Globalization and the Future of Administrative Law: From Government to Governance PART ONE WITHIN AGENCY WALLS Chapter 2 DUE PROCESS AND ADMINISTRATIVE ADJUDICATION INTRODUCTION THE RIGHT/PRIVILEGE DISTINCTION Bailey v. Richardson Notes and Questions Cafeteria & Restaurant Workers Union v. McElroy Notes and Questions THE DEMISE OF THE RIGHT/PRIVILEGE DISTINCTION DUE PROCESS, THE WAR ON POVERTY, AND THE NEW PROPERTY Reich, The New Property Goldberg v. Kelly Notes and Questions xi

14 Table of Contents 2.05 REFINING THE DUE PROCESS METHODOLOGY: PROPERTY AND LIBERTY INTERESTS Board of Regents of State Colleges v. Roth Perry v. Sindermann Notes and Questions Sandin v. Conner Notes and Questions Problem Problem DUE PROCESS AND WELFARE REFORM Reynolds v. Giuliani Notes and Questions HOW MUCH PROCESS IS DUE AND WHEN SHOULD IT BE PROVIDED? Mathews v. Eldridge Notes and Questions Hamdi v. Rumsfeld Notes and Questions CONFINING THE DUE PROCESS EXPLOSION Goss v. Lopez Ingraham v. Wright Notes and Questions Walters v. National Association of Radiation Survivors Notes and Questions THE PUBLIC/PRIVATE DISTINCTION [A] Due Process and Negative Rights DeShaney v. Winnebago County Department of Social Services Notes and Questions [B] Due Process and Healthcare Schweiker v. McClure Blum v. Yaretsky Notes and Questions [C] Privatization and Welfare Problem Chapter 3 FORMAL ADJUDICATION AND THE ADMINISTRATIVE PROCEDURE ACT INTRODUCTION THE NEW DEAL AND THE APA: AN OVERVIEW HAWLEY, NEW DEAL AND THE PROBLEM OF MONOPOLY Gellhorn, The Administrative Procedure Act: The Beginnings xii

15 Table of Contents Shapiro, APA: Past, Present, Future FORMAL ADJUDICATION AND THE APA Wong Yang Sung v. McGrath Notes and Questions Dominion Energy Brayton Point v. Johnson Notes and Questions Problem Citizens Awareness Network, Inc. v. Nuclear Regulatory Commission PARTY STATUS AND INTERVENTION IN AN APA PROCEEDING Envirocare of Utah, Inc. v. Nuclear Regulatory Commission and United States of America Offıce of Communication of United Church of Christ v. Federal Communications Commission Notes and Questions EVIDENCE [A] Rules of Evidence Calhoun v. Bailar Notes and Questions [B] Official Notice Castillo-Villagra v. Immigration and Naturalization Service Notes and Questions [C] Burden of Proof, Burden of Production, and Burden of Persuasion Director, Offıce of Workers Compensation Programs, Department of Labor v. Greenwich Collieries Notes and Questions THE ADMINISTRATIVE STRUCTURE OF FORMAL ADJUDICATION COMBINATION OF FUNCTIONS AND THE CONSTITUTION Withrow v. Larkin Notes and Questions Problem Problem Problem THE ADMINISTRATIVE LAW JUDGE AND AN UNBIASED DECISIONMAKER Grolier, Inc. v. Federal Trade Commission Notes and Questions Problem EX PARTE COMMUNICATIONS Professional Air Traffıc Controllers Org. (PATCO) v. Federal Labor xiii

16 Table of Contents Relations Authority Notes and Questions PRE-JUDGMENT ALFRED C. AMAN, JR. & WILLIAM T. MAYTON, ADMINISTRATIVE LAW Cinderella Career and Finishing Schools, Inc. v. Federal Trade Commission Notes and Questions Problem Chapter 4 INFORMAL AGENCY ACTION AND ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES INTRODUCTION INFORMAL AGENCY ADJUDICATION Citizens to Preserve Overton Park v. Volpe Camp v. Pitts Notes and Questions Pension Benefit Guaranty Corporation v. LTV Corp Notes and Questions ADMINISTRATIVE EQUITY Aman, Jr., Administrative Equity: An Analysis of Exceptions to Administrative Rules Chemical Manufacturers Association v. Natural Resources Defense Council, Inc Notes and Questions Kixmiller v. SEC Notes and Questions Problem Problem Problem CONDITIONS AND COMMITMENTS Aman, Bargaining for Justice: An Examination of the Use and Limits of Conditions by the Federal Reserve Board First Bancorporation v. Board of Governors of the Federal Reserve System Notes and Questions Problem ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES [A] Overview [B] Settlement United Municipal Distributors Group v. FERC xiv

17 Table of Contents Notes and Questions [C] Arbitration Thomas v. Union Carbide Agric. Products Co Notes and Questions Devine v. Pastore Notes and Questions [D] Other ADR Approaches and Their Critics Harter, Points on a Continuum: Dispute Resolution Procedures and the Administrative Process Edwards, Alternative Dispute Resolution: Panacea or Anathema? Chapter 5 AGENCY RULEMAKING WHAT IS A RULE? Schauer, A Brief Note on the Logic of Rules, with Special Reference to Bowen v. Georgetown Bowen v. Georgetown Univ. Hospital Arkema Inc. v. EPA Notes and Questions Industrial Safety Equipment Ass n Inc. v. E.P.A Notes and Questions Sugar Cane Growers Cooperative of Florida v. Veneman FORMAL AND INFORMAL RULES AND RULEMAKING PROCESSES [A] Overview [B] Informal Rulemaking Processes Notice and Comment Chocolate Mfrs. Ass n of United States v. Block Notes and Questions United States v. Nova Scotia Food Products Corp Notes and Questions Problem 5-1: E-Rulemaking Problem [C] Administrative Common Law Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council Notes and Questions Problem [D] Hybrid Rulemaking Procedures Industrial Union Department, AFL-CIO v. Hodgson Notes and Questions United States Steelworkers of America v. Marshall xv

18 Table of Contents Notes and Questions [E] Negotiated Rulemaking USA Group Loan Services, Incorporated v. Riley Notes and Questions [F] Exceptions to Section 553 Rulemaking Procedures American Hospital Assoc. v. Bowen Hoctor v. United States Department of Agriculture Notes and Questions United States v. Reynolds Notes and Questions Problem Problem CHOOSING RULEMAKING OR ADJUDICATION [A] Introduction [B] The Power to Choose SEC v. Chenery Corp National Labor Relations Board v. Bell Aerospace Company Notes and Questions [C] The Need for and Agency Use of Rules Heckler, Secretary of Health and Human Services v. Campbell Allison v. Block Notes and Questions PART TWO Chapter 6 LEGISLATIVE, EXECUTIVE, AND JUDICIAL CONTROL OF AGENCY DISCRETION: OUTSIDE THE WALLS OF THE AGENCY LEGISLATIVE CONTROL OF AGENCY DISCRETION INTRODUCTION LEGISLATIVE INFLUENCE OVER AGENCY DISCRETION: CONSTITUTIONAL LIMITATIONS Pillsbury Co. v. FTC Notes and Questions ARTICLE I OF THE CONSTITUTION Immigration and Naturalization Service v. Chadha Notes and Questions THE NONDELEGATION DOCTRINE A.L.A. Schechter Poultry Corp. v. United States Notes and Questions xvi

19 Table of Contents 6.05 THE NONDELEGATION DOCTRINE SINCE PANAMA AND SCHECHTER NONDELEGATION DOCTRINE REVIVAL? Industrial Union Department, AFL-CIO v. American Petroleum Institute Notes and Questions Problem Problem Mistretta v. United States Notes and Questions Whitman v. American Trucking Associations, Inc Notes and Questions DELEGATING LEGISLATIVE POWER TO PRIVATE ACTORS Association of American Railroads v. United States Department of Transportation Notes and Questions OUTSOURCING AMAN, ADMINISTRATIVE LAW FOR A NEW CENTURY Richardson v. McKnight Notes and Questions Problem DELEGATING LEGISLATIVE POWER TO INTERNATIONAL ACTORS Natural Resources Defense Council v. Environmental Protection Agency Notes and Questions THE DELEGATION OF JUDICIAL POWER: ARTICLE III Pound, Administration of Justice in the Modern City ALFRED C. AMAN, JR. & WILLIAM T. MAYTON, ADMINISTRATIVE LAW ADMINISTRATIVE ADJUDICATION AND JURY TRIALS Atlas Roofing, Inc. v. Occupational Safety and Health Review Comm n Notes and Questions Problem THE RETURN OF CROWELL v. BENSON Northern Pipeline Construction Co. v. Marathon Pipe Line Co Notes and Questions Commodity Futures Trading Commission v. Schor Notes and Questions Stern v. Marshall Notes and Questions xvii

20 Table of Contents Chapter 7 EXECUTIVE CONTROL OF AGENCY DISCRETION INTRODUCTION AMAN, ADMINISTRATIVE LAW IN A GLOBAL ERA CONTROLLING SPENDING: THE LINE ITEM VETO Clinton v. City of New York Notes and Questions THE POWER TO APPOINT Buckley v. Valeo Morrison v. Olson Notes and Questions THE POWER TO REMOVE Humphrey s Executor v. United States Notes and Questions Morrison v. Olson Notes and Questions Free Enterprise Fund v. Public Company Accounting Oversight Board Notes and Questions EXECUTIVE OVERSIGHT: EXECUTIVE ORDERS AND THE OFFICE OF MANAGEMENT AND BUDGET ALFRED C. AMAN, JR. & WILLIAM T. MAYTON, ADMINISTRATIVE LAW Croley, White House Review of Agency Rulemaking: An Empirical Investigation Notes and Questions EXECUTIVE AND CONGRESSIONAL PARTICIPATION IN AGENCY RULEMAKING PROCEEDINGS Sierra Club v. Costle Notes and Questions OMB AND THE DATA QUALITY ACT Notes and Questions OMB AND PRIVATIZATION Notes and Questions Chapter 8 JUDICIAL CONTROL OF AGENCY DISCRETION OVERVIEW JUDICIAL REVIEW OF QUESTIONS OF FACT O Leary v. Brown-Pacific-Maxon Notes and Questions xviii

21 Table of Contents 8.03 JUDICIAL REVIEW OF FINDINGS OF FACT THE SUBSTANTIAL EVIDENCE STANDARD Universal Camera Corp. v. NLRB Notes and Questions QUESTIONS OF LAW National Labor Relations Board v. Hearst Publications, Inc Notes and Questions Skidmore v. Swift Notes and Questions THE CHEVRON REVOLUTION Chevron v. NRDC Notes and Questions Immigration and Naturalization Service v. Cardoza-Fonseca Notes and Questions Food and Drug Administration v. Brown & Williamson Tobacco Corporation Notes and Questions CHEVRON STEP TWO Mayo Foundation for Medical Education and Research v. United States Notes and Questions Chemical Manufacturers Association and Cement Kiln Re-Cycling Coalition, Petitioners v. Environmental Protection Agency, Respondent; Environmental Technology Council, Inc., Intervenor WHEN CHEVRON DOES NOT APPLY: TYPES AND DEGREES OF DEFERENCE United States v. Mead Corporation Notes and Questions Barnhart v. Walton Notes and Questions Gonzales v. Oregon Notes and Questions City of Arlington, Texas v. Federal Communications Commission Notes and Questions National Cable & Telecommunications Association v. Brand X Internet Services, et al.; Federal Communications Commission and United States v. Brand X Internet Services, et al Notes and Questions Problem JUDICIAL REVIEW OF AGENCY RULES [A] The Arbitrary and Capricious Standard of Review and the Rational xix

22 Table of Contents Basis Test [B] The Hard Look Doctrine AMAN, ADMINISTRATIVE LAW IN A GLOBAL ERA Motor Vehicle Mfrs. Assn. v. State Farm Mutual Notes and Questions FCC v. Fox Television Studios, Inc Notes and Questions Baltimore Gas & Electric Co. v. NRDC Notes and Questions Chapter 9 THE AVAILABILITY AND TIMING OF JUDICIAL REVIEW INTRODUCTION APA EXCLUSIONS FROM JUDICIAL REVIEW: COMMITTED TO AGENCY DISCRETION BY LAW Heckler v. Chaney Notes and Questions Webster v. Doe Lincoln v. Vigil Notes and Questions WHO HAS STANDING TO SEEK JUDICIAL REVIEW? Association of Data Processing Service Organizations v. Camp Notes and Questions [A] Constitutional Standing Allen v. Wright Notes and Questions Problem Lujan v. Defenders of Wildlife Notes and Questions Friends of the Earth, Incorporated v. Laidlaw Environmental Services (TOC), Inc Notes and Questions Problem Massachusetts v. Environmental Protection Agency Notes and Questions [B] STANDING STATUTES: PRUDENTIAL CONSIDERATIONS United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., DBA Brown Shoe Company Notes and Questions WHEN SHOULD JUDICIAL REVIEW OCCUR? [A] Finality xx

23 Table of Contents Federal Trade Commission v. Standard Oil Co. of California Notes and Questions Problem [B] Exhaustion of Administrative Remedies Myers v. Bethlehem Shipbuilding Corp Notes and Questions [C] Ripeness Abbott Laboratories v. Gardner Toilet Goods Association v. Gardner Notes and Questions [D] Primary Jurisdiction Nader v. Allegheny Airlines, Inc [E] Mootness THE PROPER FORUM Telecommunications Research & Action Center v. F.C.C Notes and Questions Chapter 10 OPEN GOVERNMENT OPEN GOVERNMENT INTRODUCTION ALFRED C. AMAN, JR. & WILLIAM T. MAYTON, ADMINISTRATIVE LAW THE FREEDOM OF INFORMATION ACT [A] Overview [B] Defining Agency and Agency Records Forsham v. Harris United States Department of Justice v. Tax Analysts Notes and Questions Problem [C] FOIA Exemptions King v. U.S. Dept. of Justice Glen Scott Milner v. Department of the Navy Center for National Security Studies v. U.S. Department of Justice Notes and Questions [D] Reverse FOIA Suits Chrysler Corp. v. Brown Notes and Questions THE FEDERAL ADVISORY COMMITTEE ACT Natural Resources Defense Council v. Herrington Notes and Questions Byrd v. United States Environmental Protection Agency xxi

24 Table of Contents Notes and Questions Problem GOVERNMENT IN THE SUNSHINE ACT Common Cause v. Nuclear Regulatory Commission Notes and Questions THE PRIVACY ACT Tijerina v. Walters Notes and Questions APPENDIX A APPENDIX B APPENDIX C THE CONSTITUTION OF THE UNITED STATES OF AMERICA (Selected Provisions) FEDERAL ADMINISTRATIVE PROCEDURE ACT UNITED STATES CODE, TITLE 5 (Selected Provisions) FREEDOM OF INFORMATION ACT UNITED STATES CODE, TITLE 5, CHAPTER TABLE OF CASES TC-1 INDEX I-1 xxii