Final Exam Posc475

Two most potent clauses citizens used to put govt back in check

Equal Protection and Due Process Clause (be able to discuss whether a statute complies or not to either concept)

The order of power given from the constitution to congress to administrative agencies

The Constitution gives power to congress who has enabling legislation which gives power to administrative agencies (creates and governs them). Administrative agencies have the power to promulgate rules (3 types) Substantive, Procedural, and Interpretive

Intermediate Scrutiny

The citizen must show there is no important govt interest in the law or the law is not substantially related to its objective Age, gender, sexual orientation

The flow of power derives from

The constitution

Law Fact Distinction of Ripeness

The courts generally apply a two-part test to determine if a controversy is ripe for judicial intervention. The first criterion is whether the controversy is fit for judicial decision, that is, whether it presents a Question of Law rather than a Question of Fact. At any stage in a proceeding, before or during trial, a judge may have to determine whether to let a jury decide a particular issue. In making this determination, the judge considers whether the issue is a question of law or a question of Fact. If the question is one of fact, it should be decided by the jury at trial. If the question is one of law, the judge may decide it without affording the parties the opportunity to present evidence and witnesses to the jury. A question of law involves the interpretation of principles that are potentially applicable to other cases. In contrast, a question of fact requires an interpretation of circumstances surrounding the case at hand. Resolving questions of fact is the chief function of the jury. Resolving questions of law is a chief function of the judge.

Generalized Concepts in IOUSA

The film breaks down our fiscal crisis into four severe deficits: The Federal Budget Deficit The Savings Deficit The Trade Deficit, and The Leadership Deficit The first section explains that when our government spends more money than it earns, financial and social instability is inevitable. Apparently, like any genuine addict, our entire society is living in denial about the effects of our Federal Budget Deficit. The older generations are enjoying government services which will be paid for by their children, grandchildren, and great-grandchildren. Their actions say: "Your financial slavery to our national debt (to be paid for with future taxes) is not my concern." As one person says in the film, it's analogous to an individual running up a huge credit card debt and then leaving it to their offspring when they die. Selfish? Irresponsible? The second section explains the Savings Deficit. Basically, Americans don't save money. This behavior directly amplifies the problem with the Federal Budget Deficit because when people don't have money saved, the government usually ends up paying for things like healthcare, food, shelter, etc. The government could say "F you," but that leads to social unrest. And the NUMBER ONE thing a government cares about is keeping order. Everything else is a distant second. So, we are in a vicious cycle. The third section explains the Trade Deficit. Currently, we import and consume more goods than we export and produce. To make up for this deficit, our suppliers lend us money (i.e., they purchase US Treasury Bonds) which the government pumps into the economy. This is like a retailer which gives you a store branded credit card to buy their goods. So long as you can find money from someone else to pay the debt to the retailer, all is swell in Pleasantville. However, when the game of hot potato ends, someone's hands get burned. In our situation, the more money we borrow from other countries like China, the more of our tax dollars we will send them. Worse, when that process gets maxed out, our creditors will force us to either sell assets (land, houses, cars, etc.) to pay them or simply start selling our debt. If they sell our debt too fast, our currency will lose value. If our currency loses value, inflation sets in. Once this horrible cycle starts, we will all be working much harder to acquire the same things we have now. Not fun. The final section of the film highlights the bipartisan contribution to our Leadership Deficit. Rather than talk straight about our illness and the prospective paths to fiscal health, FOX News and CNN focus on petty dramas and blameshifting. We have radio talk show hosts and other entertainers heavily influencing both political parties. We have people who are such diehard fans of a political party, that there is no hope of rational conversation. We are at the point where as a country we must realize that governors, presidents, legislators, etc. are people who make mistakes. In this case, they've made some huge ones. But, they have the power to fix those mistakes if we focus their election-centric brains on what we need. Unfortunately, like any good parent knows, it's hard to be the bad guy when the medicine doesn't taste good. And our current crop of representatives (if they represent our best interests, please shine some light for me) are more interested in their political careers than our country's well-being. Clearly, this contradiction must be ripped out like the heart of the guy who got sacrificed in the original Indiana Jones.

Federal Torts Claim Act (why it passed and what it does)

The government has sovereign immunity, FTCA is how you sue the government. It brought everyone together after WW2 for our negligence, we remedy you with FTCA, basically US needed to allow citizens to allow people to call them out when they are at fault or wrong. US didnt want to be an oppressive govt that harms its citizens. A tort is a civil wrongdoing can be intentional (battary, assault, embezzlement) or unintentional (negligence-element based) certain things one must prove.

procedural

not subject to 553. how does the agency function; how you do something-set up rules on how something functions decided by agency without public input

interpretive

not subject to 553. what do rules of legislation mean; chevron case

Rational Basis

A citizen who makes EP claim, must prove there is no legitimate govt interest in the law; citizen has burden of proof showing court this everything else; any possible reason/justification for this law its ok; almost everything tried under this is found constitutional- arbitrary/capricious manner in order to happen

The tools of the control of executive branch are

-Appointment/removal (malfeasance and malice, and misfeasance) -Impoundment (impound $) -Executive privilege -Reorganization -Delegation of Power -Veto

The tools of the control of legislative branch are

-Budget-authorization and appropriations (congress approving things for agencies) power of the purse -Hearings-oversight committees -Creation and Organization-biggest power: defines purpose , defines jurisdiction and scope whether broad or small (different scopes of authority given), defines rule making powers anything they give you can be taken away. Congress has enabling legislation given from the Constitution -Congress and oversight: power to conduct oversight hold hearings to hold agencies accountable, congress can issue subpoena, use commerce clause use all administrative powers to conduct hearings (major power)

Due process analysis involves

1) is there state action 2) is there a liberty or a property interest involved and 3) if the answer to the first two questions is yes, how much process is due? The first question to ask is who took the action that caused the injury that led to the suit. If a govt acted, then the court can proceed with further due process analysis. If the injury was caused by a private entity, then the due process suit is over.

Under the FTCA need to establish

1. a govt actor 2. elements of negligence IMPT 3. Breach of Duty -> causation and harm 4. immunities

Where does the Due Process Clause live in our constitution?

5th and 14th amendment

post-deprivational hearing

After the face hearing that in turn leads to more deprivation for the victim. A hearing conducted after the initial deprivation.

FTCA discretionary function exception

Congress enacted the Federal Tort Claims Act (FTCA) in 1946. The FTCA waives sovereign immunity for actions against the United States resulting from injuries caused by the negligent acts of governmental employees while acting in the scope of their employment.[1] The United States can be held liable "in the same manner and to the same extent as a private individual under like circumstances."[2] Excluded from this waiver of immunity are claims based on the performance of "a discretionary function or duty on the part of a federal agency or an employee of the Government."[3] This "discretionary function exception poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction"[4] "If the discretionary function exception applies to the challenged conduct, the United States retains its sovereign immunity and the district court lacks subject matter jurisdiction to hear the suit."[5] When the jurisdictional question is intertwined with the merits of the case, the government will typically file a motion to dismiss, which should be construed as a motion for summary judgment, not a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. -Under this provision, the waiver of immunity does not apply to any claim "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" - The Court distinguished between decisions made at the planning and policy stage and those conducted at the lower, or "operational," levels that implement the policy decisions, even if some judgment or discretion is exercised in carrying out such decisions.

Affirmative Action

Designed programs to counteract the long history of groups being displaced Claims for it:There are numerous reasons given by supporters as to why affirmative action needs to be used. Some examples include: To reverse the negative effects caused by years of discrimination To make sure minorities are represented at schools and in the workforce To create an equal opportunity for everyone by helping those individuals with a disadvantage Discrimination continues to deny opportunities to minorities and women to this day Diversity creates a better learning and work environment Most supporters claim that affirmative action is never used to force a school or employer to choose an unqualified person. It's used to help minorities and women when they're qualified. The hope is that schools and the workforce will become more diverse with qualified individuals through the use of affirmative action. Claims against it:There are just as many arguments against affirmative action as in favor of it. Some examples include: Reverse discrimination shouldn't be used to fix past discrimination People should be chosen based on merit and not by race or gender Minorities and women from lower classes aren't helped by affirmative action, only those individuals from privileged backgrounds Diversity of opinion isn't created by diversity of race or gender Devalues the hard work of many minorities and women Increases racial tension Opponents claim that no group should be favored over another group based on the sex of a person or the color of his skin. It wasn't right when schools and employers favored white men in the past, and it isn't right to favor minorities and women now. They want all schools and employers to be blind to race and gender when choosing students or employees. This blind method will create the best, most qualified group of individuals.

Due Process or Equal Protection Claim

Due Process relates to liberty or property interest.Substantive due process guarantees that laws will be reasonable and not arbitrary. Equal protection guarantees that similarly situated persons will be treated alike. Both guarantees require the Court to review the substance of the law rather than the procedures employed. Generally where a law limits the liberty of all persons to engage in some activity, it is a due process question. Where the law treats a person or class of persons differently from others, it is an equal protection question. Since both clauses protect against unfairness, both may be appropriate to the same govt act, and discussion of both may be appropriate in an essay answer. Govt or state interest and always tie into a govt contractor. When someone makes an ep claim, we state unfairness based on (ethnicity, age, gender, nationality, religion, sexual orientation, education, marital status, and race), the court had to come up with a way to protect discriminated classes. DP-State or Govt EP- Need Govt actor, if not then no scrutiny When you have a due process clause, always find the state action. If it is not a government actor, u are not gonna have a due process clause except when u deal with civil rights stuff.

Factual situation

Equal protection: levels of scrutiny and know where the burden of proof lies and what the burden of proof is and be able to apply them—there are questions here that has factual situations where u have to apply those and know them cold. Make sure there is a governmental actor? Black or old. U choose black because that is strict scrutiny. U don't imply anything in the factual scenario. Staff of 100 employees in the apartment. He cant bring a equal protection claim, because there is no governmental actor, he can bring a civil rights action. Civil rights action covers those with more than 15 employees and focused that governmental actor part. strict. Intermediate/heightened and low.

Regulations to protect employer

HR-to keep the company from being sued What factors does HR need to consider so boss can fire an employee? Protected through (unions, grievances, violation of Civil Rights Act, Could he have a disability?ADA, Probation-could have a probationary period at the job which means there is no expectation for future employment and can fire someone for any reason, and lastly contract, DP and Equal Protection Liberty interest

elements of standing

How one gets to file suit in court: law suit. A valid suit must have standing 1) injury infact 2)traceability referring to Causation (But-for and Proximate) and 3) Redressability (would a decision by the court fix the problem

Federal Exhaustion of Administrative Remedies

If people believe they have been or are about to be injured by administrative action, they cannot turn to the courts for help until they have gone through all the available channels within the agency. That is, they must exhaust all legal remedies within the agency. Every agency has published procedural rules for clients of the agency to follow in trying to redress an adverse agency decision or other agency action.

Doctrine of Mootness

In United States law, a matter is moot if further legal proceedings with regard to it can have no effect, or events have placed it beyond the reach of the law. Thereby the matter has been deprived of practical significance or rendered purely academic. Mootness doctrine is a principle of judicial procedure whereby American courts will not decide moot cases that is, cases in which there is no longer any actual controversy. The inability of the federal judiciary to review moot cases derives from the requirement of U.S. Const. art. III under which the exercise of judicial power depends upon the existence of a case or controversy. Therefore the courts will not hear or decide a case unless it includes an issue that is not considered moot because it involves the public interest or constitutional questions. ex.created exception out of thin air for Roe v. Wade about mootness. This is moot, this child has been born, issue cant be addressed. In some sense, women will make it to court in time to make the decision so they preemptly address it now for future cases.

Doctrine of Ripeness

In United States law, ripeness refers to the readiness of a case for litigation; "a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Doctrine prohibiting federal courts from exercising jurisdiction over a case until an actual controversy is presented involving a threat of injury that is real and immediate.The mandate contained in Article III of the Constitution that requires an appellate court to consider whether a case has matured into a controversy worthy of adjudication before it can hear the case. An actual, current controversy worthy of adjudication must exist before a federal court may hear a case. The court determines if a controversy between parties with adverse legal interests is of sufficient immediacy and reality to warrant judicial intervention (Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 92 S. Ct. 1749, 32 L. Ed. 2d 257 [1972]). The rationale behind the ripeness limitation is to prevent the courts from entering a controversy before it has solidified or before other available remedies have been exhausted. In disputes involving regulations or decisions promulgated by administrative agencies, a controversy is not considered ripe until the agency's decision has been formalized and the challenging parties have felt its effects. Similarly, if a state court remedy is available, a controversy is not ripe for federal court review until all state court remedies have been exhausted. questions to ask: is the case right for court? Administrative exhaustion; have you gone through everything you can to resolve this before going to court?; Did you exhaust your administrative remedies?

Misfeasance Malfeasance difference

Intentional conduct that is wrongful or unlawful, especially by officials or public employees. Malfeasance is at a higher level of wrongdoing than nonfeasance (failure to act where there was a duty to act) or misfeasance (conduct that is lawful but inappropriate).Malfeasance is a comprehensive term used in both civil and Criminal Law to describe any act that is wrongful. It is not a distinct crime or tort, but may be used generally to describe any act that is criminal or that is wrongful and gives rise to, or somehow contributes to, the injury of another person. Malfeasance is an affirmative act that is illegal or wrongful. In tort law it is distinct from misfeasance, which is an act that is not illegal but is improperly performed. Generally, a civil defendant will be liable for misfeasance if the defendant owed a duty of care toward the plaintiff, the defendant breached that duty of care by improperly performing a legal act, and the improper performance resulted in harm to the plaintiff. For example, assume that a janitor is cleaning a restroom in a restaurant. If he leaves the floor wet, he or his employer could be liable for any injuries resulting from the wet floor. This is because the janitor owed a duty of care toward users of the restroom, and he breached that duty by leaving the floor wet. In theory, misfeasance is distinct from Nonfeasance. Nonfeasance is a term that describes a failure to act that results in harm to another party. Misfeasance, by contrast, describes some affirmative act that, though legal, causes harm. In practice, the distinction is confusing and uninstructive. Courts often have difficulty determining whether harm resulted from a failure to act or from an act that was improperly performed. Essentially Malfeasance:the actor acted with malice and Misfeasance:the actor did a poor job in their role

Roe V. Wade

Justice Blackman wrote the opinion

two types of agencies in executive branch

Line agency: these agencies serve the public effect on public directly Staff agency: advise the president (cabinet positions) President has exclusive control over staff agencies, removal power is up to the president, when a department head has a particular length of term they have to stay in office unless there is cause

Concepts of Positive and Negative Freedom

Negative freedom holds that the government should stay out of things, thus the governmental power is limited to the protection of life, liberty, and property and citizens are essentially free. It holds that the strong will survive and will reach their full potential without the help of the government, thus no government interference, only an individual's initiative to succeed will help them. Positive Freedom holds that some of the population cannot achieve their fullest potential without help from the government. Positive government likewise holds that the government has positive roles in society and should be involved to a greater extent than the protection of life, liberty, and property. Essentially, this need for positive freedom and positive government is why the administrative state began.

Pre-deprivational hearing

Once it is shown that government threatens to deprive a person of a life, liberty or property interest, then certain procedural protections may kick in. Ordinarily (except when there is a true emergency), a pre-deprivation hearing of some kind is required. Moreover, that pre-deprivation hearing must have minimal procedural protections: the government must provide notice of the accusations against the individual, it must present evidence against him or her and the individual must have an opportunity to respond. Not surprisingly, procedural due process requires an impartial decision-maker at some point in the proceedings. Before they take away benefits there needs to be an opportunity to be heard

the books take on the Bivens case

Originally, the FTCA maintained soverigen immunity for the government in the event that one of its employees committed an intentional tort. Some believe Bivens established the notion of qualified immunity. This means sometimes they can be sued and sometimes they are immune from suit. The bivens case signaled the end of absolute official immunity. The bivens defendents were believe to have acted beyond their outer perimeters of their official line of duty. official immunity effectively created an absolute immunity for governmental officials.

Administrative Agencies

Pass laws in two ways: informal rule making process (federal register, how they get published-CFR code of fed regulation-have to give rule and legal authority for rule date and time of hearing whether public or not and it becomes a rule after it is not opposed, and everything published in CFR is monitored by watch dog units) and adjudication (formal rule making-trial-considered an order not a rule if legislators/head of agency dont know; trial of experts when people working for agency who are administrators ask experts if they can do something. Essentially, it is using an expert to back up what you're doing)

Due Process

People have the right to be heard, need a notice of termination for an opportunity to be heard, can be oral or written, or in person but doesnt need to be all just one. NOTICE of being told. And opportunity to be heard. The due process is called procedural due process and then there is substantive due process (does that agency or entity of the federal government have the power to promulgate the rule that will get you in trouble). We concentrate on procedural due process, 5th and the 14th amendment. Due process: no person shall be deprived of life, liberty, or property, without due process of law. Must determine a state or government actor

Bivens Case

Petitioner alleged damages resulting from a federal agent acting unlawfully.Petitioner's complaint alleged that agents of the Federal Bureau of Narcotics (Respondents) acting under claim of federal authority, entered his apartment and arrested him for alleged narcotics violations. The agents manacled Petitioner in front of his wife and children, threatened to arrest the entire family, and searched the apartment. Petitioner also alleges that the arrest was conducted with unreasonable force and without probable cause. Petitioner sought $15,000.00 in damages for "great humiliation, embarrassment, and mental suffering." The district court, on Respondents' motion, dismissed the complaint on the ground, inter alia, that it failed to state a cause of action. The court of appeals affirmed. issue-Whether a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. holding-Yes. An action for damages may be brought against federal agents acting under the color of their authority but acting unconstitutionally. The judgment is reversed. "The Fourth Amendment [of the United States Constitution] provides that: '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated . . . .'" Therefore, those who have their rights violated under the Fourth Amendment by a federal agent require protection under the Constitution. The Court has consistently ruled that "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." The Fourth Amendment, however, does not provide any monetary damages for injuries suffered as a result of a federal agent acting unconstitutionally. However, when there is a general right to sue under a federal statut e, a court "may use any available remedy to make good the wrong done." Petitioner is entitled to a cause of action and to recover monetary damages. The court of appeals is reversed and remanded. changed things -it used to be thought the govt could get away with everything

Jurisdiction is:

Power to hear the case; courts and administrative agencies jurisdiction, congress gives their jx to them through enabling legislation

Mathews v. Eldridge

Respondent Eldridge commenced this action in District Court to challenge the constitutional validity of the administrative procedures established by the Secretary of Health Education and Welfare for establishing whether there exists a continuing disability entitling a recipient to Social Security Disability (SSD) benefits. Eldridge was notified his benefits would terminate without an opportunity for a prior hearing. Eldridge received SSD benefits for nearly four years when he received a questionnaire from the state agency charged with monitoring his medical condition. Eldridge filled it out, indicating that his condition had not improved. The agency then obtained reports from Eldridge's doctors, and made a tentative determination that his disability had ceased. Eldridge was notified of the proposed termination, and advised that he could request additional time to submit additional information regarding his condition. Eldridge's written response disputed one characterization of his condition, and indicated that the agency already had enough information to prove his disability. The made its final determination to terminate benefits and notified Eldridge that he could seek reconsideration within six months. Eldridge relied on Goldberg v. Kelly (welfare benefits case) to support his contention that it was unconstitutional to terminate his SSD benefits without a pretermination hearing. The District Court held that Eldridge had to be afforded a pretermination hearing, and the Court of Appeals affirmed. Does due process require a pretermination hearing prior to discontinuing SSD benefits? No. Reversed. The Court distinguished Goldberg, saying the crucial factor there was that welfare recipients are in dire need, and assistance is only given to persons on the very margin of subsistence; whereas eligibility for SSD is not based on financial need. An additional factor is the fairness and reliability of existing pretermination procedures, and the probable value of additional procedural safeguards. The decision whether to discontinue SSD benefits will turn, in most cases, on routine, unbiased medical reports. Finally, Goldberg was in part based on the Court's conclusion that written submissions were an inadequate substitute for oral presentation by welfare recipients; whereas the detailed SSD questionnaires were sufficient. Dissent. To say that the discontinuance of disability benefits may cause the recipient to suffer only a limited deprivation is speculative and no argument. The very legislative determination to provide SSD benefits, without any predetermination of need, presumes a need which is not this Court's function to denigrate. The factors giving rise to due process are: 1] the private interest that will be affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 3] the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail

Equal Protection Levels of Scrutiny

Strict Scrutiny Intermediate Scrutiny Rational Basis

Which type of rule is the most important

Substantive Rule because it has the force and effect of law

Distinction between Bi-Metallic and Londoner cases

The Court distinguishes this case from Londoner v. City and County of Denver, a 1908 case in which the Court held that individual taxpayers had a right to a hearing before an individualized benefits tax was assessed. The apparent conflict between the two cases is explained by Justice Holmes's observation that in Londoner, "a relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds..." In contrast, here the taxpayers in Denver are affected equally, and in large numbers, and it would be an impractical impediment to government to afford all of them individual hearings. Instead, "their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." In other words, there was no violation of the Fourteenth Amendment because the taxpayers of Denver retained the right to organize and vote.

Example of FTCA

The Federal Tort Claims Act (FTCA) allows citizens to sue the government for negligence. A tort is a civil wrong doing to another person. There are two categories: intentional torts such as battery, assault, embezzlement, etc. and unintentional torts in the instance of negligence. Under the FTCA, the naval officer needs to establish that there is a government actor under which the claim can stand in court. In order to prove that a claim of negligence is present, there are steps that the naval officer must take. He first needs to prove that the navy had a duty to exercise a reasonable standard of care and that there was a breach of this legal duty in which the navy was responsible for the act or failure of action that resulted in the harm to the naval officer. Duty can be a contractual or professional relationship and it could also be the assumption of a duty. The navy as an employer does have a duty to practice a reasonable standard of care among its officers and failed to do so by allowing the naval officer to drive a vehicle owned by the navy that had no airbags in it thus the naval officer has proof of duty. Second, the naval officer must prove causation. There are two types of causation that both need to be present. Actual causation or "but-for" causation, is established by asking "but for the defendant's actions, would the claimant have suffered the loss?" If yes, the defendant is not liable. If no, the defendant is liable. Thus had it not been for the events conducted by the navy that led up to the incident, would the naval officer be in the situation he now finds himself? Conversely, legal causation or proximate causation explains that the navy's action had to be a foreseeable act. It is important to note that superseding events break the chain of causation. The naval officer has actual causation. If the navy would have given the naval officer a car with an airbag, the claimant's loss may have been avoidable. However, not proximate causation. The navy had no way of foreseeing that a drunk driver would hit one of their officers in the car nor could they have predicted that the car did not have airbags. Third, the naval officer needs to prove that there was harm brought on to the naval officer whether it be economic harm, declaratory judgement, emotional or physical damages, etc. The naval officer suffered excessive physical injuries from the accident thus he can prove harm. The last step in claiming an FTCA suit is to look at the immunities, the government actors who are immune from being sued. The government created the immunities in order to help certain government departments. There is absolute immunity, like the immunity that members of congress have and there is qualified immunity that other government official's hold in which one can sue the government agency but not the employees or individuals. In 1950, another immunity was added when the Supreme Court found that under the FTCA, military and servicemen could not sue the U.S Government for injuries derived during service in the military. This concept was known as the Feres Doctrine. It stated that the military had absolute immunity and no active duty member of the military or dependent of a military member could sue the military for negligence, unless the military member was on furlough or the government has carved out a discretionary function exception such as the issuing of permits or delivering mail. Due to the absolute immunity of the military, the naval officer cannot file claim of negligence under the Federal Tort Claims Act. The naval officer's claim is not viable under the FTCA because he does not meet either requirement for military members to hold under the exceptions to the military's immunity.

Deeper understanding of Bivens case

The Supreme Court created a private damages action against federal officials for constitutional torts (civil rights violations), which are not covered by the FTCA. In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Court held that the Fourth Amendment gives rise to a right of action against federal law enforcement officials for damages from an unlawful search and seizure. Since a Bivens action is brought against a federal official in the official's personal capacity, it is not considered to be an action against the United States and therefore is not barred by sovereign immunity. Bivens is not a general tort law. The plaintiff seeking a damages remedy under Bivens must first demonstrate that constitutional rights have been violated.[Davis v. Passman, 442 U.S. 228 (1979) ] Bivens suits have been acknowledged by the Court as having more of a deterrence effect against federal officials from committing constitutional torts than the FTCA. This is chiefly because a Bivens suit is a personal suit against the official, and punitive damages are recoverable. The government is substituted for the defendant in FTCA cases, and the FTCA does not allow punitive damages. Thus a Bivens defendant is at risk of personal liability, including punitive damages, while the government pays all damages in FTCA cases. Procedurally, a plaintiff is entitled to a jury trial in a Bivens action, but not in a FTCA case.[Carlson v. Green, 446 U.S. 14 (1980) ] The main defense for a federal official in a Bivens action is official immunity from actions for damages. There are two types of official immunity available as affirmative defenses: absolute and qualified.[ Butz v. Economou, 438 U.S. 478 (1978)] Absolute immunity is granted to judges, prosecutors, legislators, and the President, so long as they are acting within the scope of their duties. Qualified immunity applies to federal officials and agents who perform discretionary functions, but may be overcome by a showing that their conduct violated a constitutional right.[Harlow v. Fitzgerald, 457 U.S. 800 (1982) ] Absolute and qualified immunity are discussed more fully below.

Doctrine of Sovereign Immunity

The govt has sovereign immunity.In United States law, the federal government as well as state and tribal governments generally enjoy sovereign immunity from lawsuits, although in some cases this immunity has been waived by law. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort. The Foreign Sovereign Immunities Act provides foreign governments, including state-owned companies, with a related form of immunity—state immunity—that shields them from lawsuits except in relation to certain actions relating to commercial activity in the United States. The principle of sovereign immunity in US law was inherited from the English common law legal maxim rex non potest peccare, meaning "the king can do no wrong." You can sue a govt agency but not the employees or individuals they have a qualified immunity however if you have a govt individual who had knowledge of your constitutional rights and they violate them they can be sued individually-in 1983 this expanded to include constitutional protections

Strict Scrutiny

The govt proves there is a compelling govt interest in the law and is implemented in the least restrictive means. Race and ethnicity-fundamental constitutional rights (travel, voting, marriage)

Senatorial Courtesy

The presidents choices in regard to appointments are constrained by this concept. Senatorial courtesy requires the president to appoint the choice of the senior senator of the presidents party from the state where the vacant seat occurs. Presidents failure to do so is likely to result in the senates refusal to confirm.

Sexual Harassment

Two forms: quid pro quo (original sexual harassment-explicit) and hostile work environment

Employment Situations-HR

When Terminating Someone: Don't give a reason why you're firing someone if they are on probation. If a reason is given, employer is up for lawsuit.

How do you object to CFR?

You put other people in office by voting (through representation) through objections and notice to go against. DO IT THROUGH REPRESENTATION (congressional minion) refers to informal rulemaking

Adjudication

a trial like process; there has to be discovery; much more than informal process. Pleadings, documents prepared that say "we want this rule because..." People opposed to rule bring out why they are opposed to it-arguments must be supported by something. Battle of experts, why they believe something is good or bad; adujudication is helpful when you have expert testimony but it doesnt mean people will listen. Highly formulated under 554.

Law v. Fact disticntion

agencies and chevron case: More apt to take a case because legal distinction not fact distinction when factual distinction going to give a huge difference to agencies because justices know more about law. They dont know about aviation for example, so agencies can help them know aviation and help figure out legal distinction

Whether a pre- or postdeprivation hearing will suffice is something determined by

applying the three-pronged balancing test from Matthews v. Eldridge: a) what is the private interest b)what is the risk of an erroneous decision? What would the value be in requiring additional procedures? c) What is the government's interest?

The constitution gives power to

congress

congress has what kind of legislation

enabling

Goldberg v. Kelly

established pre-deprivation hearing. This case was brought by residents of New York City who received financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State's Home Relief Program. Their complaint alleged that City officials administering these programs terminated such aid without prior notice and hearing, denying them due process of law. After the suit was filed, the City adopted procedures for notice and hearing, which the plaintiff-appellees then challenged as constitutionally inadequate. The procedure allowed the recipient to challenge the proposed termination of benefits within seven days and submit a written statement for the reviewing official to make a final determination. Appellees' challenged the procedures' lack of an opportunity to personally appear before the reviewing officer for oral testimony and cross-examination of adverse witnesses. The procedure did allow for a post-termination "fair hearing," however. The District Court held that only a pre-termination hearing would satisfy the constitutional due process requirement. Issue. Does a State that terminates public assistance benefits to a particular recipient without affording him an opportunity for an evidentiary hearing prior to termination deny the recipient due process of law? Yes. Affirmed. Where welfare is concerned, only a pre-termination evidentiary hearing provides the recipient with procedural due process. For qualified recipients, welfare provides the only means to obtain essential food, clothing, housing and medical care. The crucial factor is that the termination of aid pending resolution of a controversy might deprive an eligible recipient of the very means by which to live while he waits. Dissent. No provision in the Constitution should paralyze the government's efforts to protect itself against making payments to people who are not entitled to them. There are large numbers of undeserving welfare recipients, and States should be able to fight back against them. Concurrence. None.The interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State's interest that payments not be erroneously terminated, clearly outweigh the State's competing interest to prevent administrative and fiscal burdens. The pre-termination hearing need not take the form of a judicial or quasi- judicial trial, as the "fair hearing" will afford full administrative review later on. It need only produce an initial determination that the welfare's grounds for termination of benefits are valid.

substantive

have the force and effect of the law; affect the public; due process is involved-cant just raise rates of tuition, we have to look at what law and cases

Londoner v. City and County of Denver case

is a case in which the United States Supreme Court held that Due Process rights under the U.S. Constitution attach to administrative agency hearings that involve adjudication, but not to those that involve legislation. Legal Principle:Due Process protections attach to government agency activities that are adjudicative in nature, but not to activities that are legislative in nature. Facts:The provisions of the Denver (Defendant) city charter confer upon the city the power to make local improvements and to assess the cost upon property specially benefited. Londoner (Plaintiff) was provided with notice of the assessment, but there was no opportunity for a hearing, the notice only fixed a deadline for the filing of complaints and objection. Londoner brought suit against the city challenging the assessment of a tax for the cost of paving the street abutting his property on the grounds that he was denied due process of law. Analysis:The Due Process protections of the 14th Amendment of the U.S. Constitution require a hearing and opportunity to be heard whenever the government wishes to violate a citizen's life, liberty, or property. Due Process rights attach to governmental activities that are adjudicative in nature, but not to activities that are legislative in nature. In the context of taxation, a legislative body has the power to tax without affording citizens due process protections. However, when the decision to tax particular individuals is made by a non-legislative body based on the individual facts and circumstances of a particular case, the decision becomes adjudicative in nature, and due process protections attach. These due process protections do not require a full trial, but the mere opportunity to file a written statement is insufficient. Due process in this context requires at least an opportunity to be heard in person and present evidence. No such opportunity was given. Therefore, the action violated Due Process, and the liens were void. This case is one of the earliest to establish when an agency rulemaking process must submit to adjudication. While administrative agencies have wide discretion within the rulemaking context, there are many instances in which adjudication is required. Where complaints are particularized and specific facts are at issue, adjudication is preferable since it is within a judge's expertise to resolve matters involving personal rights. Whereas, when there is a general grievance bearing on future policies, rulemaking is preferable because the expertise and familiarity of an agency within its field helps to inform them on such decisions.Here, the law of Colorado denied landowners post-deprivation hearings, the right to be heard after an assessment of taxes had been made. Thus, the right to a pre-deprivation hearing, allowing landowners to be heard prior to the assessment of taxes, was the only way in which the landowners could challenge the Government's actions depriving them of property.

Ripeness and Mootness deal with

the timing of things

Concepts of Captivity

this deals with the executive branches power of appointment. Because president appointees average less than two years in a position and frequently are unfamiliar with the agency or department they are appointed to head, political appointees often become captives of the mid-level career bureacrats who have been in the agency for decades. These bureacrats possess expertise on which the appointee comes to depend. They have more political influence and clout than the appointee because they have spent years cultivating a political base with memver of Congress and also with powerful interest groups who have a vested interest in what happens at the agency.

Bi-Metallic Investment co. v. State Board of Equalization

was a United States Supreme Court case which held that due process protections attach only to administrative activities in which a small number of people are concerned, who are exceptionally affected by the act, in each case upon individual grounds. By contrast, rule-making or quasi-legislative activities that affect a large number of people without regard to the facts of individual cases do not implicate due process protections. It is an important case in American administrative law. Facts:The State Board of Equalization of the state of Colorado and the Colorado Tax Commission ordered that the valuation of all taxable property in Denver be increased by forty percent. Plaintiff company brought suit alleging that it had been deprived of its due process protections because a tax had been levied against its property without it being afforded an opportunity to be heard, in violation of the 14th Amendment. The Colorado Supreme Court ordered that the suit be dismissed. The Supreme Court of the United States affirmed the dismissal, holding that no due process rights are implicated when a tax is levied against a large number of people who are all affected equally. Holding:The Due Process clause of the Fourteenth Amendment provides that the government may not deprive an individual of life, liberty, or property without notice and an opportunity to be heard. Where an agency rule will apply to a vast number of people, the Constitution does not require that each be given an opportunity to be heard directly for the purpose of arguing in favor of or against its adoption. In cases such as this, it would be impractical to allow all individuals affected to offer a direct voice in support of or in opposition to an order. Thus, the Constitution is satisfied by the fact that, as voters, the taxpayers exercise power, remote or direct, over those responsible for the order. Accordingly, the judgment of the state supreme court dismissing this suit must be affirmed.

Substantive rules

we are subject to them; they have the force and effect of law. example: registration tag on a car, parking pass on campus; affect the public-due process is involved

Notes on levels of scrutiny

when its not race, ethnicity or fundamental right, burden goes from govt to the person. Presumed to be unconstitutional til govt proves otherwise. Diversity will always be an issue because we keep changing and more groups form Fears are deep rooted in scrutiny due to suspect classifications of race and gender