POLSC 607 | Admin Law | Exam 3

Respondeat Superior

A legal obligation making the employer responsible for the conduct of an employee while in the service of the employer. — From Latin for "let the master answer."

FTCA

Absolves the individual employee of legal liability (so long that negligence occurred in the scope of employment) and spreads the cost to taxpayers.

Discretion

Informal administrative acts, even though they may be within an administrator's formal authority.

Vermont Yankee Power Corp. v. Natural Resources Defense Council (1978)

A Supreme Court case: — Issue: were the Atomic Energy Commission / Nuclear Regulatory Commission rule-making procedures adequate enough to provide a thorough consideration of crucial safety and environmental concerns related to the licensing of nuclear power plants? — Two lower courts said no. —The Supreme Court reversed it unanimously. — Justice Rehnquist: the judiciary is not entitled to compel regulatory agencies to employ rule-making procedures which Congress has bot required despite the perceived inadequacies of the rule-making procedures. - Rehnquist stressed that only under exceptional circumstances.

Association of Data Processing Service Organizations v. Camp (1970)

A Supreme Court case: — Two pronged test: injury in fact and within a zone of interest protected by a particular law. — Involves standing.

Seminole Tribe of Florida v. Florida (1996)

A Supreme Court case: — Was concerning good faith in reference to gambling. Court ruled that Congress cannot waive the immunity of states that was set in the Eleventh Amendment. - Case involving the revival of federalism.

Motor Vehicles Manufacturers v. State Farm (1983)

A Supreme Court case: — Was the only major setback for administrative discretion (reasoned analysis) in the 1980s.

Ashcroft v. Iqbal (2009)

A Supreme Court case: — A 5-4 majority stressed that the Bivens suit can only be filed against federal officers for allegedly violating constitutional rights, not against their superiors under the doctrine of respondeat superior.

United States v. Alvarado (1963)

A Supreme Court case: — A case following Abel. — The Court upheld an administrative arrest where officials did not even obtain an arrest warrant. — Extended the ruling from Abel. — 4th and 5th Amendment protections have been weakened by the Supreme Court in some areas.

Allen v. U.S. (1987)

A Supreme Court case: — A class action lawsuit with 1,200 plaintiffs, alleged that 500 deaths and injuries resulted from radioactive fallout from the open-air atomic bomb testing in Nevada in the 1950s and 1960s. — The Circuit Court reversed the district decisions, finding that all actions surround the atomic tests to be immune from the suit, as the performance by a federal agency of a "discretionary function" protected by Section 2680 of the FTCA. — In 1990, Congress enacted the Radiation Exposure Compensation Act, a compensatory program for victims of atomic testing and uranium mining.

Citizens to Preserve Overton Park, Inc. v. Volpe (1971)

A Supreme Court case: — Concerned the decision by the Secretary of Transportation John A. Volpe to construct Interstate 40 through Overton Park in Memphis, Tennessee. — Section 4(f). required the government to demonstrate that there were no "feasible and prudent" alternatives to building through public lands. — The Court recognized the place of cost, directness of route, and community disruption in highway routing, but the existence of the statute "indicates that protection of parkland was to be given paramount importance."

Nevada Dept. of Human Resources v. Hibbs (2003)

A Supreme Court case: — Employees filed a lawsuit under a family leave and medical act, Court ruled that Nevada Dept. of HR could be sued. - Only victory for civil rights among the state sovereign immunity list.

Flast v. Cohen (1968)

A Supreme Court case: — Florence Flast and a group of taxpayers challenged federal legislation that financed the purchase of sexual textbooks for use in religious schools. — Flast argued that such use of tax money violate the Establishment Clause of the First Amendment. — A district court held that the federal courts should defer when confronted with taxpayer suits directed against federal spending programs. — The Court (8-1) rejected the government's argument that separation of powers barred taxpayer suits against federal taxing and spending programs. — In order to prove a "requisite personal stake" taxpayers had to: - 1) establish a logical link between their status as taxpayers and the type of legislative enactment attacked, and - 2) show the challenged enactment exceeded specific constitutional limitations imposed upon the exercise of Congressional taxing and spending power. — The Court held Flast had met both parts of the test. — However, the Court ruled that it was not a violation of the Establishment Clause.

Alden v. Maine (1999)

A Supreme Court case: — Involved parole officers that were not paid overtime under the Fair Labor Standards Act. - Officers sued in state court, ruling was that states have immunity in federal courts, implied immunity in state courts as well.

Wong Wing v. United States (1896)

A Supreme Court case: — Involving the administration power to arrest and detain. — Court held that persons cannot be imprisoned as punishment unless first given a criminal trial with constitutional requirements. — The due process safeguard is essential to liberty. —Due process separates us from totalitarian and authoritarian regimes. —Sometimes it is necessary to arrest and detain. - Carriers of infectious diseases may be confined without the benefit of a judicial proceeding. —Federal court rule the practice unconstitutional.

Abel v. United States (1960)

A Supreme Court case: — Involving the administration power to arrest and detain. — ______ was a Soviet spy who the FBI believed was engaged in espionage activities against the United States. - The FBI wanted to arrest but lacked evidence for a warrant. - Learned that he was in a country illegally. - Secured help from the INS— because INS warrants do not require probable cause. - INS District Director made out the arrest warrant. - After the arrest, he was placed in solitary confinement for five weeks at a detention camp. - Only when criminal charges were filed was a judge brought into the case. — The Supreme Court upheld the standard practice of the INS.

Barr v. Matteo (1959)

A Supreme Court case: — Issue: whether the head of a federal agency (the Federal Office of Rent Stabilization) was liable in tort for issuing a press release which defamed agency employees. — Court held that ______ was absolutely immune from liability (even if he acted maliciously) because the issuance of press releases was within the "outer perimeter of his line of duty" and was an "appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively." — ______ does not apply if conduct is non-discretionary (known as ministerial duties). — In subsequent cases, the ______ ruling extended to the IRS tax collectors, HEW claims agents, and deputy U.S. Marshals.

Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics (1971)

A Supreme Court case: — Narcotics agents broke into _____'s apartment, searched him and the apartment, and arrested him, all without a warrant and without probable cause. — Charges were dropped; _____ sued the agents. — The court said that the petitioner is entitled to recover monetary damages for any injuries he has suffered as a result of the agents' violation of the Fourth Amendment. — On remand, the defendants were found to have acted beyond the outers perimeters of their line of duty. Court said that "it would be a sorry state off affairs if an officer had the discretion to enter a house at 6:30am without a warrant or probable cause, and make an arrest by employing unreasonable force."

Butz v. Economou (1977)

A Supreme Court case: — One of the most important official immunity decisions. — Earl Butz, the Secretary of Agriculture, initiated the action which led to the suspension of Economou's (conducted a commodity futures business) registration privilege, thus preventing him from being able to continue his work as a trader. — The Court concluded that federal executive officials exercising discretion are entitled only to qualified immunity, subject to those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of public business. — The ______ decision applied the qualified immunity doctrine to federal officials, except law enforcement officers. — Court insisted that absolute immunity protections should be extended to public officers performing quasi-judicial functions.

Chevron, USA, Inc. v. Natural Resources Defense Council (1984)

A Supreme Court case: — One of the most influential administrative law cases decided in the past 35 years. — The Clean Air Act Amendments of 1977 impose certain requirements on States that have not achieved the national air quality standards established by the EPA pursuant to either legislation, including the requirement that such "non-attainment" States establish a permit program regulating "new or modified major stationary sources" of air pollution. — The EPA's interpretation of the statute here represents a reasonable accommodation of manifestly competing interests, and is entitled to deference.

Heckler v. Chaney (1985)

A Supreme Court case: — Prison inmates Chaney and others were convicted of felonies and sentenced to death by lethal injection. They petitioned the FDA, charging that such use of drugs violated the Federal Food, Drug, and Cosmetic Act. — The FDA refused to take action. — An agency's refusal to act or take enforcement action is un-reviewable unless Congress has indicated otherwise. The action is "committed to an agency's absolute discretion." — The Court did not see any law to apply because of the inaction; therefore, no review of the case.

Abbott Laboratories v. Gardner (1967)

A Supreme Court case: — Rule stating that pill bottle had to include the generic and the brand name of the drug. — The Supreme Court ruled that the regulation was too burdensome, immediate, and substantial; decided that there was ripeness. — Ripeness presumes good faith on the part of the agency officials that they will not unnecessarily delay a final decision.

Massachusetts v. EPA (2007)

A Supreme Court case: — The Clean Air Act requires the EPA Commissioner to regulate pollutants "which in his judgment cause, or contribute to, air pollution which may reasonably by anticipated to endanger public health or welfare." — In response, the EPA found that they lacked the authority to regulate greenhouse gases because they were not pollutants. — Massachusetts and other states sued to force regulation of CO2. — Court found that the Clean Air Act does give the EPA the authority to regulate greenhouse gases. — "Greenhouse gases fit well within the Clean Air Act's capacious definition of air pollutant."

Chisolm v. Georgia (1973)

A Supreme Court case: — The Court accepted case involving people from two states and then ultimately dismissed it. - As a result they ratified the Eleventh Amendment.

Cooper v. O'Connor (1938)

A Supreme Court case: — The Court argued that all administrators performing quasi-judicial functions should be given the same immunity protections enjoyed by judges.

Dalehite v. U.S. (1953)

A Supreme Court case: — The Court interpreted discretion to cover all of the judgmental or policy decisions made by experts at a planning level rather than operational level.

INS v. Lopez-Mendoza et al. (1984)

A Supreme Court case: — The Court set forth the framework for when the exclusionary rule; involves an analysis of the cost to society and the benefits to the individual. — Subsequent decisions have significantly weakened the exclusionary rule in an administrative context.

Hein v. Freedom from Religion Foundation (2007)

A Supreme Court case: — The Supreme Court narrows standing. — Do taxpayers have standing to bring an Establishment Clause challenge against the Executive Branch actions funded by general appropriations rather than by any specific congressional grant? — Since no specific congressional appropriation was implicated in the suit, the Court ruled that there was no "Case or Controversy" under the Flast exception. - To extend Flast to executive actions, the Court said, would "threaten the separation of powers by relaxing the doctrine of standing and turning federal courts into "general complaint bureaus."

Spalding v. Vilas (1896)

A Supreme Court case: — The heads of executive departments (postmaster general) should enjoy immunity from liability when engaged in duties imposed on them by law. - Discretion plays a large role in policy implementation and officials should not hesitate to use discretion for fear of lawsuit. - Suit for damages would "seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of government." — Impact: - Started the trend toward broader immunity. - Top administrators should be protected from torts regardless of the motives that inspired their actions, even if malicious. - _______ was decided before the development of a large, administrative state.

Environmental Defense Fund v. Ruckelshaus (1971)

A court case: — The circuit court insisted that when administrative actions affect the "life, health, and liberty" of individual interests, then the judiciary must subject agency behavior to "strict judicial scrutiny." — Close judicial supervision of agency actions should function to "require administrative officers to articulate standards and principles that govern their discretionary decisions in as much detail as possible" and to ensure that the administrative process itself will confine and control the exercise of discretion.

Whistleblower

A person who raises concern or makes public wrongdoing occurring in a private organization or government institution.

Reviewability (APA)

APA and __________: - Section 702 states — "A person suffering legal wrong because of agency action within the meaning of a relevant statute, is entitled to judicial review thereof." - Section 704 states — "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." - If it were not for the two exceptions to review set forth in Section 701, all federal administrative actions would be subject to review. Under Section 701, judicial review applies except to the extent that: — 1) statutes preclude judicial review — 2) agency action is committed to agency discretion by law - The APA does establish, however, a presumption of __________. - Presumption weakened in Heckler v. Chaney (1985). — The Court should never say that they cannot rule on a case. - There are criticisms: some argue that all discretionary action should be __________.

Intentional Tort Exception

An exception that provides that the FTCA does not apply to claims: - arising out of assault - battery - false imprisonment - false arrest - malicious prosecution - abuse of process - libel - slander - misrepresentation - deceit - interference with contract rights

Provision 1983 (Part I)

Applying _______ _______: — Can state and local officials be held liable for constitutional torts? — 42 U.S.C. _______ _______ (which was part of the Civil Rights Act of 1871) provides: "Every person who, under color of any statute, ordinance, regulation, custom, usage, of any state or territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Provision 1983 (Part II)

Applying _______ _______: — In Davis v. Scherer (1984), the Court held that to win a damage suit under _______ _______, the plaintiff has to prove that the constitutional or statutory right was clearly established at the time the violation took place. — In Wyatt v. Cole (1992), a divided Court refused to extend the qualified immunity protections to private parties in _______ _______ suits charged with violating a person's constitutional rights when engaged in state action or in the performance of quasi-judicial functions. — Richardson v. McKnight (1997), a deeply divided Court (5-3) upheld the Wyatt decision. A prison inmate sued two guards at a prison in Tennessee that had been privatized. — Breyer concluded that "we have found no conclusive evidence of an historical tradition of immunity for private parties carrying.

Judicial Intervention (Proponents)

Case for _______ _______: — Propriety and capacity should not trump judicial review if constitutional rights are being violated. — Mistake to see each institutional actor as strictly separate. — Powers and responsibilities overlap in modern government. — Actions and omissions of legislatures and executive agencies create impetus for ________ _______ — Courts are uniquely situated to overcome legislative and bureaucratic intransigence. — The courts have responsibility to protect public interest, minority rights, and disadvantaged.

Government Liability (Rejection Cases)

Cases Rejecting ______ ______: — In Smith v. United States (1993), the Supreme Court held that Antarctica is a foreign country for this purpose even though it is "a sovereign-less region without civil tort law of its own." — In Sosa v. Alvarez-Machain (2004), the Supreme Court held "that the FTCA's foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred." - The plaintiff's suit therefore was dismissed even though his "abduction in Mexico was the direct result of wrongful acts of planning and discretion by DEA agents in California."

Administrative Search and Seizure

Cases involving ________ _______ _____ ______: - Foucha v. Louisiana (1992) — the Court ruled that the state could not hold a person indefinitely that the state contended had potentially dangerous anti-social personality. - Kansas v. Crane (2002) — the Court said that the state can commit dangerous sexual predators indefinitely (after they have already served their criminal sentence) by demonstrating psychiatric proof of danger. — Discretion is needed. — Proof need not be absolute or hold mathematical precision. - Bruce v. Beary (11th Cir. 2007) — police actions at auto repair and salvage businesses exceeded the limits of administrative searches. — The raid so clearly violated the established law that officers were not entitled to qualified immunity.

Discretionary Action (Courts)

Courts' Role: — Following Schechter Poultry v. U.S. (1935): which ended broad delegation of power. - The courts have generally allowed Congress to delegate increasingly broad _____ powers to administrators. - In 1970s, growing concern about administrative power. - Burger Court (1969 - 1986) took closer look at administrative ______. - By the late 1980s, the Supreme Court developed a new respect for technocratic administration and once again began deferring to agency expertise / ________.

Sovereign Immunity (Criticisms)

Criticisms: — Bernard Schwartz and Kenneth Davis oppose the ____ _____ doctrine. — Unfair and unjust to those hurt by government actions. — If a private citizen is liable for running over a pedestrian, why is the driver of a government vehicle immune? — The doctrine is never defended on the grounds that it is fair to citizens, because it is not. — Defense based on the danger of allowing the citizens to sue the government for damages, potentially bankrupting the US or states and destroying all government. — Better for one or a few to suffer than all of society. — Few people today believe that the government should be absolutely _____, but the doctrine lives on.

Judicial Intervention (Criticism)

Critics: — Propriety and capacity are questioned. — Federal courts are not sensitive to federalism and separation of powers. - Governor Brownback and Kansas legislature's criticism of state court ________ in public school financing. — Judges are generalists and adjudication is ad hoc. — Interventionist judiciary hinders effective state administration and often fails to achieve objectives or produces negative consequences.

5th Amendment (Protection Against Self-Incrimination)

Decline of : - _______ Amendment: "No person. . . shall be compelled in any criminal case to be a witness against himself." - Supreme Court has applied the protection to any proceeding beyond a criminal trial. - Protection has been applied narrowly, however, so the privilege against self-incrimination has been severely weakened.

Discretion (Democracy Part II)

Democratizing _______: — Judge J. Skelly Wright agrees with Davis that _____ must be controlled but he feels that Davis unrealistically and unjustifiably optimistic. — Administrators are not going to willingly limit their ______. — According to Judge J. Skelly Wright, administrators must be compelled by Congress and by the Courts. — Courts will assume the primary burden. — Congress should delegate with clear standards (stricter delegations). — Revive the non-delegation doctrine.

Discretion (Democracy Part I)

Democratizing _______: — Kenneth C. Davis does not agree with Pitt's famous quote "Where law ends, tyranny begins." — Where law ends, _______ begins — Exercise of ______ may mean beneficence or tyranny, justice or injustice, reasonableness or arbitrariness. — What can we do to democratize ______ ? - Confining ______ Power - Structuring ______ Power - Checking ______ Power

FTCA (Discretionary Function Exemption)

Discretionary Function Exemption of the ______: — Prohibited any tort suit "based upon an act or omission of an employee of the government, exercising due care, in the execution of a statute or regulation, or based upon the exercise or performance or failure to exercise a discretionary function or duty on the part of a federal agency or an employee of the Government." — Other exceptions: - Negligent transmission of letters or postal matter. - Claims arising in respect of the assessment or collection of any tax or customs duty. - Claims caused by the fiscal operations of the - Treasury or by the regulation of the monetary system. - Claims arising out of combatant activities; or for claims arising in a foreign country.

Deference Principle (Definition)

Employed commonly by the courts when they want to yield (defer) to the judgment of administrative expertise. - Thus escaping the problem of reviewing difficult cases.

Whistleblowers

Famous _________: - Daniel Ellsberg — former State Department analyst who leaked the Pentagon Papers in 1971, a secret account of US involvement in the Vietnam War. The Papers reveled deceptive practices by previous administrations. - W. Mark Felt (aka Deep Throat) — leaked information in 1972 about the Watergate scandal. - A. Ernest Fitzgerald — the US Department of Defense auditor, was fired by the Nixon administration for reviewing cost overruns associated with the C-5A cargo plane. - Edward Snowden — a former NSA computer and intelligence analyst who revealed mass surveillance of citizens without oversight. - Others — Cathy Harris (racial profiling), Frank Serpico (police corruption in New York), Samuel Provance (Abu Ghraib), and Jeffrey Wigand (tobacco companies manipulating nicotine).

Administrative Inspections

Fourth Amendment Limits on ______ ______: - U.S. v. Martinez-Fuerte (1976) — limits must restrict official intrusions into private affairs if privacy is to be protected. — Totalitarian governments maintain control over citizens through domestic spying on individuals and business operations. - In totalitarian or authoritarian governments, state interests trump individual rights. — American colonists knew of the abuses under the British rule. — Applying the Fourth Amendment to administrative searches still developing law. — Administrative searches are defined by the Fourth Amendment's reasonableness. Supreme Court decisions vary.

Discretion (Ideal Exercise)

Ideal Exercise of __________: Administrative problem => discovery of relevant facts => application of rules, laws => responsible administrative decision

Discretion (Ideal Mode)

Ideal Model of ________: — Very complicated in practice. — Administrators may use their ______ to deny that a problem exists or define it in a certain way. — Administrators also have the ______ to determine what facts are relevant and what laws / regulations to apply. — _______ decisions are also influenced by past experiences, environmental circumstances and pressures, politics, and personal values. — Joel Samaha has commented that _______ creates an enormous gap between the law on the books and the law in action because class, race, economics, and politics influence ________.

Non-Traditional Alternatives

In controlling administrative discretion: — Not used on a broad scale. — Administrative courts: - The judicial system does not have resources to handle administrative law cases. - Separate administrative court idea dates back to 1910 Mann-Elkins Act. - Administrative courts have limited jurisdiction subject to judicial review. - Should we develop a separate administrative law court system? - Critics argue a loss of generalist system; worry about special interests.

Reviewability (Courts)

Is the matter within the court's jurisdiction for ___? — First, the court must answer NO to the following: - have applicable statutes prohibited judicial ______ of specific administrative action? — Second, the court must answer YES to the following: - Have relevant statutes explicitly or implicitly permitted _____? - Does the party bringing the suit have standing? - Has the proper defendant been named? - Have all administrative remedies been exhausted? - Is the case ripe for ______? - Have the proper forms of action (relief) been filed? - Historically, courts used these questions to deny _____.

Institutional Reform Litigation

Judicial activism and administration: — By the 1960s, judicial review moved from procedure to procedure and substance. — Growing caseload. — For over two decades, federal courts intervened in administration of public institutions. — Targets: public schools, hospitals, mental health facilities, welfare agencies, prisons, and more. — Often called ________ ______ ______. — Intervention peaked in the 1980s. — David Horowitz called the activism the "judicalization of the administrative process." — Activism v. restraint not limited to liberal v. conservative.

FTCA (Limitations)

Limitations: — Allowed damage damaged suits to be filed against the United States in district courts "for money only. . .on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment. . ." — Prohibited jury trials. — Forbade claims for punitive damages. — Exempted certain agencies. — Act not applicable to certain circumstances.

Butz

Limits of the _______ decision: — Plaintiffs must prove that officials "knew or reasonably should have known" that their actions violated constitutional rights. — This is known as the Wood principle because it was articulate in Wood v. Strickland (1975). —Must be a clear violation of an established constitutional or statutory right.

Legal Formalism

Notion, prevalent in the 18th century, that constitutional rights are absolute and should not be invaded by the government or limited by the courts.

Standing (Definition)

One must be the proper party to bring a suit or challenge an administrative action.

Ombudsman System

One of the non-traditional alternatives to controlling administrative discretion: — Origins in Sweden in 1809; Danish Ombudsman plan a model. - Support in many countries and in the US in the 1960s but used only modestly here. — Investigates complaints and objectively determines if any angry acted in a mistaken, unfair, arbitrary or illegal manner. — Do not have the power to prosecute but they help find appropriate solutions. — If anything, an _______ advocate of good government.

Whisteblowing

One of the non-traditional alternatives to controlling administrative discretion: — Person raises concern or makes public wrongdoing occurring in a private organization or government institution. — Revealed misconduct may cover many things. Make their allegations internally (within organization) or externally (regulators, law enforcement, Congress, the media). — The _______ Protection Enhancement Act of 2012 (WPEA) was signed into law on November 27, 2012. — Among other key reforms, federal employees are now protected (in addition to already-existing scenarios) from reprisal if they: are not the first person to disclose misconduct; disclose misconduct to coworkers or supervisors; disclose the consequences of a policy decision; or blow the whistle while carrying out their job duties." Government Accountability Project

Checking Administrative Power

One of three ways to democratize discretion: — Absolute discretion is not consistent with a democratic system of government. — For Davis, one officer should _____ another. — Five methods to help _______ discretionary power: - 1) Supervision and review by supervisors - 2) Administrative tribunals - 3) Legislative committees - 4) Ombudsman - 5) Judicial review of agency action

Structuring Discretionary Power

One of three ways to democratize discretion: — Davis contends that discretionary justice can be reduced by ______ decision-making. — The problem is compounded by decisions made in secret. - Example: the IRS decisions to audit taxpayers is based on unpublished rulings. — For Davis, open up the process across the board. — Openness may not be appropriate for all decisions. — Administrators should openly state the reasons for reaching decisions. — Goal: seek balance between the rule of law and the excessive use of discretion.

Confining Discretionary Power

One of three ways to democratize discretion: — Most injustices occur because discretionary power is too broad, rather than too confined. — For Davis, ______ discretion is about eliminating or limiting its use. — Under ideal conditions, discretionary power would be ______ by clear boundaries. — Best hope lies in more rule-making. — Administrators know what is best for implementing public policies. — For Davis, the biggest problem is not delegation of broad discretion but delay in using rule-making to fill gaps in power.

FTCA (Other Exemptions)

Other Exemptions of the _______: — The intentional tort exception, 28 U.S.C. 2680(h), provides that the ______ does not apply to claims: arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. — Special Exception for Military Personnel — Feres v. United States (1950) held that "the Government is not liable under the FTCA for injuries to servicemen and women where the injuries arise out of or are in the course of activity incident to service."

Ombudsman

Person who acts as a neutral, trusted intermediary between an organization and some constituency.

Scope of Review (Definition)

Pertains to the depth to which a court will review an issue after is has been agreed to review the issue.

Reviewability

Pertains to whether a court believes it as the authority or jurisdiction to review a case.

Administrative Discretion (Problem)

Problems: — Judge J. Skelly Wright: a tyranny of petty bureaucrats who lack the power to change the rules even one iota in order to do justice is at least as bad as tyranny of petty bureaucrats who make up the rules as they go along. — Kenneth C. Davis: the problem of ______ justice poses the most serious threat to due process. - Administrators can abuse their _______ power when applying general public policies to individual cases. - Opportunity for abuse is severe because 90% of agency action is informal and 99% of informal action involves _______. - This largely uncontrolled ______ is not practically subject to judicial review. — Scholars and practitioners are reluctant to deal with the ______ justice problem.

Legal Realism

Recognizes the balance of rights of the individual against the rights of society (such as order or safety); therefore, constitutional rights can be infringed upon for the greater good of society. - More pragmatic.

Eleventh Amendment

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Comity

The doctrine of _________ — embraces the broad principle that governmental institutions should generally and initially honor the decisions or judgments of other governmental branches before they become involved.

Immunity (Under Common Law)

Under common law: — Under Anglo-Saxon common law, public officials were extended no ________ privileges simply because they worked for the government. — In a representative democracy, civil servants were perceived as ordinary citizens who were taking their turn at governing. — Under common law, public administrators were ______ as long as the damaging act was within statutory authority. — Problem: sometimes it is difficult to determine the scope of statutory authority. — Some public officials have absolute _____ within their official capacity: judges, prosecutors, and presidents. — Others have only qualified ______.

Search

Why give administrative agencies the power to ______? — Agencies need information to regulate. — Record-keeping requirements have long been upheld by courts. — In most instances, private parties freely disclose to public officials what they know. — Sometimes, individuals and businesses feel that an administrative inspection violates the right to privacy. — Virtually all agencies have the weapon of the administrative subpoena. — Record-keeping, administrative power, and child labor.

Governmental Liability

Why increase in _______ ______? — Only seems fair that the government should extend a form of _____ insurance to its employees. — Government is in a much better position to assume the _______ costs. — Danger of administrators being sued for wrongdoing could be disruptive to the administrative process. — Kenneth C. Davis and four positive effects: - 1) Shift to _______ ______ preserves the administrative process - 2) Fair and just thing to do - 3) Quality of justice will be improved - 4) Will deter officials from committing deliberate torts

Administrative Detention

_____ ______ expanded: - In re Sealed Case - In Rasul v. Bush and Hamdi v. Rumsfeld (2004) — The Court held that Guantanamo Bay detainees and Hamdi are entitled to federal habeas corpus relief to determine the legality of their status and indefinite detention. - Boumediene v. Bush (2008) — The Court held that basic constitutional rights cannot be denied even to enemy combatants. — The Detainee Treatment Act and Military Commissions Act did not provide adequate and effective substitute for habeas corpus.

Christian Penitentials

________ ________: Law versus Discretion — The schedule of sins described in the ______ listed a certain number of years on a diet of bread and water for each sin; other penance included sexual abstinence and almsgiving. — Alternately, a penitent could pay a certain number of solidi (or coins) in lieu of each year of fasting. — Harshness of the penalties caused priests to mitigate them, especially for those who could not physically endue the punishments. — Priests had discretion to consider the sinner and not the sin when imposing a penalty. — Individual considerations caused problems. — _________ did take into account the sinner's state of mind and the free gift of God's grace. — The spiritual and mental state of the sinner — as well as his or her social status — was fundamental to the process. — It was not an impersonal system, therefore, but rather one that was based on differences and distinctions of many kinds. — Criticisms that priests faced back then are the same that administrators face today: - Favoring special interests - Promoting their personal welfare - Differential treatment encourages society to violate rules because they are viewed as arbitrary and corrupt - Need for proper guidance through rules

Deference

_________ of activism: — The Chevron decision encourage judicial restraint, especially by the Supreme Court, but did not end active judicial review of agency decision-making. — Activism did not come to an abrupt end during the Reagan years. — Federal and state courts are diverse. — Miles and Sunstein report: Justice Breyer, the Court's most vocal critic of Chevron, is the Court's most deferential justice; formed Justice Scalia, the biggest cheerleader of Chevron, was the least deferential justice of the Court.

Exclusionary Rule

— Is a judge-made rule of evidence. — Prohibits prosecutors from using illegally obtained evidence during a trial. — The rule has been justified on three grounds: - 1) Normative argument which says that a court of law should not participate in, or condone, illegal conduct. - 2) Excluding evidence will deter law enforcement officials from illegal behavior. - 3) Alternative remedies, such as civil lawsuits for damages against police officers, are unworkable.

Writ of Quo Warranto

— Makes an official or public agency show the legal authority under which an agency functions.

Standing (Environmental Interests)

to Assert Environmental Interests: — In Sierra Club v. Morton (1972), the Supreme Court denied an environmental group ______ to challenge a decision by the Secretary of the Interior to permit the construction of a resort complex in a national forest. — In US v. SCRAP (1973), the Court granted _____ to a group of law students to challenge the regulation of the ICC. - This regulation permitted an increase in railroad freight charges for recyclable materials, which made recycling more expensive. — The Court distinguished the SCRAP case from the Sierra Club case by saying that in Sierra Club, no specific injury by the Club or its member was alleged. By contrast, SCRAP claimed that the action by the ICC would directly harm their use of the natural resources of the Washington Metro Area.

Mootness

— A case is ______ if the issue that gave rise to it have been resolved or have otherwise disappeared. — Case will often be dismissed. — Example: - DeFunnis v. Odegaard (1974): DeFunnis was denied acceptance into law school, the lower court ordered that he be admitted, but by the time the case was appealed he was about to graduate law school and therefore ____.

Tort

— A civil wrong; an injury to a legally protected right; a lawsuit that seeks damages not a criminal prosecution. — Damages may be compensatory or punitive.

Exhaustion (of Administrative Remedies)

— A close cousin of the ripeness requirement. — Parties must have first ________ all of their non-judicial ______. — The _______ doctrine avoids unnecessary litigation and allows the courts to defer to agency "expertise" in the resolution of complex issues. — Porter v. Nussle (2002) - The Court upheld the Prison Litigation Reform Act (1996) which limited the way prisoners could bring lawsuits. - Law precluded federal courts from reviewing prison conditions until all ______ _____ have been _______.

Abstention

— A judge-made doctrine, supports the principle of comity and requires that the federal courts are to respect the independence of state activities. — In administrative law, ______ is used to avoid unnecessary conflicts between federal courts and state agencies.

Gifford's Model (of Discretionary Decision-Making)

— Administration of statutes is a dynamic learning process with not enough common "factual components" that allow rules to be developed that constrain discretionary behavior. — Davis's proposals only suitable for some administrative caseloads and bureaucratic levels.

Tucker Act (1855)

— An act that gave federal courts jurisdiction to hear claims against the US involving contracts.

Scope of Review

— An individual who has been adversely affected by a federal agency action or decision and who wants to sue must demonstrate: - A) that the court has jurisdiction - B) that the decision is reviewable (Congress has not precluded review) - C) that the individual has standing to challenge the administrative action - D) that the individual has exhausted all administrative remedies - E) that the other procedural requirements have been satisfied — Once a court has decided to review agency action, the question then becomes: What is the prior scope of review? How active will the intervention be in the agency?

Immunity

— Both state and federal governments in America are clothed with sovereign ______. - Can be sued only with their consent and only under the conditions they set. - 1) Section 702 of the APA sanctions suits in equity against the federal government. - 2) A tort claims act is the vehicle through which most state and federal governments agree to be held liable for their torts (mostly negligence). — The Federal Tort Claims Act — Official _______ — State employees are exposed to liability for violating another person's rights by Section 1983 of the Civil Rights Act of 1871. They also have a qualified ______ which is the same as for federal employees.

Discretion (Cases Upholding Discretion — Part iii)

— Chevron, USA, Inc. v. Natural Resources Defense Council (1984): - One of the most influential administrative law cases decided in the past 35 years. - The Clean Air Act Amendments of 1977 impose certain requirements on States that have not achieved the national air quality standards established by the EPA pursuant to either legislation, including the requirement that such "non-attainment" States establish a permit program regulating "new or modified major stationary sources" of air pollution. - The EPA's interpretation of the statute here represents a reasonable accommodation of manifestly competing interests, and is entitled to deference.

State Sovereign Immunity

— Chisolm v. Georgia (1973): Court accepted case involving people from two states and then ultimately dismissed it. - As a result they ratified the Eleventh Amendment. — Seminole Tribe of Florida v. Florida (1996) — Alden v. Maine (1999) — Kimel v. Florida Board of Regents (2000) — Board of Trustees University of Alabama v. Garrett (2001) — All these court cases weaken federal rights protection for employees. — Nevada Dept. of Human Resources v. Hibbs (2003) - Only victory for civil rights among this list.

Administrative Discretion (Cases Striking Down — Part iI)

— Citizens to Preserve Overton Park, Inc. v. Volpe (1971): - Case concerned the decision by the Secretary of Transportation John A. Volpe to construct Interstate 40 through Overton Park in Memphis, Tennessee. - Section 4(f). required the government to demonstrate that there were no "feasible and prudent" alternatives to building through public lands. - The Court recognized the place of cost, directness of route, and community disruption in highway routing, but the existence of the statute "indicates that protection of parkland was to be given paramount importance." — Motor Vehicles Manufacturers v. State Farm (1983): was the only major setback for ______ ______ (reasoned analysis) in the 1980s.

Absolute Official Immunity

— Common law doctrine placed public administrators in difficult and unfair position. — Courts gradually moved to abandon the common law doctrine and moved to provide public officials with reasonable ______ protections. — Spalding v. Vilas (1896): - The heads of executive departments (postmaster general) should enjoy _____ from liability when engaged in duties imposed on them by law. - Discretion plays a large role in policy implementation and officials should not hesitate to use discretion for fear of lawsuit. - Suit for damages would "seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of government."

Writ of Injunction

— Compels or restrains actions by public officials.

Administrative Discretion (Cases Striking Down — Part I)

— Environmental Defense Fund v. Ruckelshaus (1971) - "Silent Spring" by Rachel Carson and pesticide use. - The circuit court insisted that when administrative actions affect the "life, health, and liberty" of individual interests, then the judiciary must subject agency behavior to "strict judicial scrutiny." - Close judicial supervision of agency actions should function to "require administrative officers to articulate standards and principles that govern their ______ decisions in as much detail as possible" and to ensure that the administrative process itself will confine and control the exercise of _______.

Substantial Evidence Rule

— Essentially requires the courts to see whether there is _______ ______ supporting challenged agency decisions. — Rules seems simple enough but is difficult to define. — In a 1938 case, Consolidated Edison v. NLRB, the Supreme Court said that _______ ______ "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." — Courts basically have the discretion to apply such terms as "_______ ______" as they see fit.

DFE

— FTCA allows the government to say "yes, we were negligent, and our negligence was the proximate cause of your injury, but the negligence arose out of an act of discretion; therefore we are not liable." — Courts have distinguished between acts of discretion with policy implications and acts of discretion simply implementing policy. The former are covered by the discretionary exemption in the FTCA but the latter not. — Dalehite v. U.S. (1953)

Writ of mandamus

— Forces an official to carry out certain mandatory functions as required by law.

Wood Principle

— From the decision in in Wood v. Strickland (1975): — Plaintiffs must prove that officials "knew or reasonably should have known" that their actions violated constitutional rights. — Must be a clear violation of an established constitutional or statutory right.

Deference Principle

— Fundamental to administrative law. Based on the separation of powers and common sense. — In Chevron, USA v. Natural Resources Defense Council (1984), the Supreme Court deferred to the expertise of the Environmental Protection Agency, arguing that "considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations." — Should courts defer to agency expertise when statutes seem ambiguous, allowing administrators broad discretion in interpreting statutes, or should the courts take responsibility in interpreting vague statutes?

Discretion (Cases Upholding Discretion — Part iV)

— Heckler v. Chaney (1985): - Prison inmates Chaney and others were convicted of felonies and sentenced to death by lethal injection. They petitioned the FDA, charging that such use of drugs violated the Federal Food, Drug, and Cosmetic Act. - The FDA refused to take action. - An agency's refusal to act or take enforcement action is un-reviewable unless Congress has indicated otherwise. The action is "committed to an agency's absolute discretion." - The Court did not see any law to apply because of the inaction; therefore, no review of the case.

Compliance (+ Court Orders)

— If administrators fail to comply with court orders, specific writs may be issued: - writ of habeas corpus - writ of injunction - writ of mandamus - writ of prohibition - writ of quo warranto — Failure to ______ with these writs means that public officials could face fines, jail sentences or both for the contempt of the court.

Category One (Cases)

— In each of these cases, the Court held that public officials must, as a general rule, obtain a search warrant before they can force an individual or company to undergo an inspection. - Camara v. Municipal Court (1967) - See v. City of Seattle (1957) - Marshall v. Barlow's, Inc. (1978) - Kyllo v. U.S. (2001)

Category Two

— In these cases, because the businesses were already closely supervised by regulatory agencies, the Court felt that it was reasonable to except such businesses from the warrant requirement. — Pervasively regulated exception. - Collonade Catering Corp. v. United States (1970) - United States v. Biswell (1972) - Pullin v. Louisiana State Racing Commission (1985) - Illinois v. Krull (1987)

Category Three

— In these two cases the Supreme Court believed an exception to the warrant requirement because adequate administrative safeguards existed to protect privacy interests in much the same way a search warrant would - United States v. Martinez-Fuerte (1976) - South Dakota v. Opperman (1976)

Federal Tort Claims Act (1946)

— Involving sovereign immunity, the only act that has general applicability.

Administrative Discretion (Cases Striking Down — Part III)

— Massachusetts v. EPA (2007): - The Clean Air Act requires the EPA - Commissioner to regulate pollutants "which in his judgment cause, or contribute to, air pollution which may reasonably by anticipated to endanger public health or welfare." - In response, the EPA found that they lacked the authority to regulate greenhouse gases because they were not pollutants. - Massachusetts and other states sued to force regulation of CO2. - Court found that the Clean Air Act does give the EPA the authority to regulate greenhouse gases. - "Greenhouse gases fit well within the Clean Air Act's capacious definition of air pollutant."

Standing

— Means that one must be the proper party to bring a suit or challenge an administrative action. — In administrative law, ________ doctrine holds that those who are harmed by administrative action should have the opportunity to challenge the legality of the action in court. — In administrative law, the requirements for _____ are generally not as strict as they are for constitutional claims. - Section 702 of the APA grants a person _____ if he / she has been "aggrieved by an agency action within the meaning of the relevant statute." — Association of Data Processing Service Organizations v. Camp (1970) — two pronged test: injury in fact and within a zone of interest protected by a particular law.

Qualified Immunity

— Most administrators enjoy only _____ _____ . — Governmental administrators may be liable either for common law torts or for violations of constitutional rights.

Official / Qualified Immunity

— Most federal employees have a qualified immunity in that sometimes they are immune from such suits: (a) when there is a lack of malice — they acted in good faith (b) when they did not know and could not have known that their actions would violate the constitutional rights of others.

Presidential Immunity

— Nixon v. Fitzgerald (1982) - The president is absolutely immune from liability for any decision made within the outer perimeters of his official duties (cannot be sued). - Fitzgerald was a civilian analyst who testified in court about waste of taxpayer money and was later fired. He sued President Nixon. — Clinton v. Jones (1997) - Unanimous decision that the president may be sued for alleged actions that take place prior to assuming office. - Immunity attaches to the office and not the person. - Federal courts will carefully manage any case with the president's busy schedule.

Formal Agency Action

— Only 10% of agency action is _______. — _________ action is defined by statutes, court rulings, agency procedures. - Ordermaking - _______ rule-making — Discretion can be abused but does not mean it is unlimited or unreasonable. — Most discretionary actions are guided by legal, ethical, and professional standards. — Public administrators would not last long in their jobs if they ignore those constraints.

Writ of Prohibition

— Orders officials to stop performing activities beyond their legal powers.

Sovereign Immunity (Origins)

— Origins date back to British common law. — The doctrine is based on the medieval argument that the King (British monarch) is sovereign, and incapable of wrongdoing. — It appears that ____ _____ places public officials in a democracy above the law. — Technically, ____ _____ protects only the government from liability, not the officials. — Officials have been granted their own _____.

Standing (Summary)

— Plaintiff must suffer "an injury in fact" to a legally-protected interest which is concrete, not conjectural or hypothetical. — Must be a causal correlation between injury and conduct by the government, injury must be traceable to government action. — Must be "likely" that the injury is redressed by a favorable decision of the court.

Federal Tort Claims Act (1946)

— Prior to the passage of the _____, citizens injured as a result of government negligence could not sue the government to recover damages. — The only remedy was to have their representative submit a private bill in Congress. — Says: "The US shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances."

Fourth Amendment

— Protects individuals "in their persons, houses, papers, and effects, against unreasonable searches and seizures." — The amendment prohibits search warrants from being issued except "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

Official Immunity

— Protects the government's officers from personal liability. — Originally, _____ _____ of public administrators went from one extreme to another: no immunity to absolute.

Governmental Immunity

— Protects the government. — A situation in which the government cannot be sued or held liable because of the tortious actions of its officers.

Writ of Habeas Corpus

— Requires an official to present a prisoner in court and justify why the person is being held.

Scope of Judicial Review

— Section 706 of the APA authorizes courts reviewing agency action: - A) to compel agency action where an agency has illegally refused to act or unreasonably delayed an action - B) to void and set aside certain agency actions that are found to be unconstitutional, contrary to federal law, beyond the jurisdiction of the agency, or actions taken in violation of procedure - C) to void those agency actions found to be arbitrary, capricious, and an abuse of discretion; those actions or decisions are not support by substantial evidence in the record or have "no basis in fact"; and those actions unwarranted by the facts after a trial de novo by a reviewing court.

Administrative Discretion

— Simple definition: informal administrative acts, even though they may be within an administrator's formal authority. — Kenneth C. Davis: a public administrator, "has ______ whenever the effective limits on his power leave him free to make a choice among possible outcomes of action." — _________ is not limited to what is authorized or legal but includes all that is within the effective limits on the officer's power. — Davis: informal ________ _______ is the "lifeblood of the administrative process."

State Level Ombudsman

— Since 1967, at least five states have established and maintained full-time ______: Hawaii, Alaska, Nebraska, Iowa, and Arizona. — Other states have ______ connected to the governor's office or specialized offices. - New York and Kansas have long-term care ombudsman. - The Kansas Long-Term Care Ombudsman Office advocates for over 28,000 using home patients in 650 facilities. — Criticisms: - More bureaucracy, redundant, lack any real powers other than persuasion.

ICE

— Stands for Immigrations and Customs Enforcement. — Immigration reform has still not been passed by Congress. — The Department of Homeland Security in late 2014 published a new set of priorities for going after undocumented immigrants for deportation— which placed greater emphasis on those convicted of serious crimes. — The number of undocumented immigrant arrests rose by roughly one-third in the first 8 weeks of the Trump administration, largely driven by an increase in the number of non-criminals arrested. — Trump administration is assembling nation-wide force for deportation.

Administrative Practices (and Bill of Rights)

— The Bill of Rights first ten amendments to Constitution. — Specific provisions protect against arbitrary government action. — The 4th and 5th Amendments are relevant for administrative law. — 4th Amendment: - Protects individuals "in their persons, houses, papers, and effects, against unreasonable searches and seizures." - Prohibits search warrants from being issued except "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."

Legal Formalism (4th / 5th)

— The Fourth and Fifth Amendments are related. - In Boyd v. United States — the Court ruled that the Fourth and Fifth Amendments almost run into each other. - Boyd reflects _____ ______; we can't allow violations of rights (slippery slope to the end of limited government). — The Fifth Amendment protection for business has been basically eroded.

Review (Obstacles)

— The Supreme Court has imposed internal constraints on the power of judicial _____. Article III of the Constitution gives the federal courts the authority to hear "cases and controversies" arising under the Constitution and federal law. - standing - ripeness - mootness - exhaustion of remedies - primary jurisdiction - doctrines of comity, abstention, and full faith and credit

Discretion (Cases Upholding Discretion — Part I)

— The Supreme Court has not contributed much to curtail abuses of _____. — Court rulings cover only a tiny fraction of _______ administrative action. — Court decisions are often too vague and confusing to employ in guiding administrative action. — Court decisions have been limited to the narrow facts of a case and it is difficult to make general applications. — The Supreme Court has refused to take bold action to limit administrative ______.

Law vs Discretion

— The _____ / ______ controversy dates back to 600 AD and it hasn't changed much since then. — The problem: balance equality under the _____ through the consistent and objective application of the ____, with the need to make _____ sensitive to individual cases. — Formalism versus Pragmatism: - Joel Samaha: ______ has always been at war with Anglo-American history. — Our culture disdains the use of _______. - "Equal justice under _____" - "We are a government of _____, not men (or women)" - "Where ____ ends, tyranny begins," William Pitt (engraved on DOJ building)

Fourth Amendment (and Administrative Law)

— The ______ Amendment is not easy to interpret and apply. — The word "unreasonable" is subjective. — Court has recognized 7 exceptions (such as consent) to warrant requirement. — _______ Amendment and other protections were not originally applied to civil cases. — Criminal cases involve loss of life or liberty. - Believed too costly for effective public administration. - But Congress has delegated to administrators the power to arrest and temporarily imprison. — Public interest may demand arrest and detention for health and security.

Primary Jurisdiction (Doctrine)

— The ______ ______ doctrine serves to allow administrative agencies primary or initial jurisdiction without court intrusion in resolving disputes involving administrative agencies. — Congress may fail to define who has ______ ______. — The court may decide that the decision reached by the agency should be considered final, thus giving the agency both ______ and exclusive jurisdiction.

Sovereign Immunity Doctrine

— The government is sovereign and therefore cannot be held liable for its actions. — Basically, the government is immune from being sued unless it consents to being sued. — The government can waive immunity by legislation. — Tucker Act (1855) gave federal courts jurisdiction to hear claims against the US involving contracts. — Over 40 federal statutes now allow the federal government to be sued in certain situations. — Is the sovereign immunity doctrine dead? — Of the many statutes, only one, the Federal Tort Claims Act (1946) has general applicability.

Courts (Role)

— The job of ______ is to settle specific disputes between litigants. — Some say this role is critical to preserving the integrity of the administrative process. — Focus on procedural issues. - Did Mr. Smith receive proper notice? - Was Mr. Smith denied benefits entitled to him? — ______ should avoid reviewing cases involving substantive policy decisions. — Use legal doctrines to deny review.

Ripeness

— The principle behind the _____ requirement is that courts should be preserved for problems which are real and imminent, not squandered on problems that are abstract, hypothetical, or not mature enough for review. — Whether an agency act is sufficiently _____ for review depends primarily on the effect of the act. — Cases are ____ for review when agency decisions (orders, directives, rules) have an immediate impact upon a particular person's "rights and obligations." — Abbott Laboratories v. Gardner (1967): rule stating that pill bottle had to include the generic and the brand name of the drug. - The Supreme Court ruled that the regulation was too burdensome, immediate, and substantial; decided that there was ______. — _______ presumes good faith on the part of the agency officials that they will not unnecessarily delay a final decision.

Category Four

— These cases do not fit neatly into the other categories. — The Court either said the searches were not searches under the meaning of the Fourth Amendment or that the search was justified (reasonable) because of a reduced expectation of privacy or for compelling administrative goals. - Dow Chemical Co. v. United States (1986) - Wyman v. James (1971) - New Jersey v. T.L.O. (1976) - Vernonia School District v. Acton (1995)\ - Board of Education v. Earls (2002) — There are limits: - Safford Unified School District v. Redding (2009) - Redding was reported to the principal for having drugs and strip searched which yielded only two ibuprofens. Court ruled that school officials had gone too far.

Governmental Liability (Increased)

— Though the absolute immunity of government officials has been narrowed by the Courts and Congress, the current trend is for government to assume more ______ for torts. — The federal government, as well as state and local governments, are not willing to insure all forms of tortious acts committed by their employees. — Fraudulent, corrupt, or malicious acts by public employees, especially if not committed in the line duty, should not be covered.

Whole Record Requirement

— Under the APA Section 706(2), reviewing courts must now examine the ____ ____ in applying the substantial evidence test rather than only part of the record as was the practice prior to the APA. — In Universal Camera Corp. v. NLRB (1951), the Supreme Court acknowledged that the APA prohibited courts from looking at only a part of the record to determine whether an agency decision was based on substantial evidence. — There is some dispute over what constitutes the _____ ____ but for the most part the _____ ____ ____ has improved the substantial evidence test.

Judicial Review (of Agency Action)

— Under the systems model, some argue that courts provide the best check on administrative behavior. — _____ _____ within administrative law involves the legitimate scope of scrutiny and methods used to evaluate agency behavior. — Marbury v. Madison (1803) established _____ _____: - The case involved an administrative issue. - Marbury sought a writ of mandamus (a writ used by administrators to make people do their jobs). - Marshall said that Marbury had the right to appointment but denied the writ. - Congress had violated the Constitution by expanding the Court's original jurisdiction.

Bivens (Recent Decisions)

— ______ does not permit liability claims to transfer from agency employees to federal agencies. — If other federal statutory remedies exist, the _____ remedy should not be allowed. — The Court refused to apply the ______ liability claims to extend to private corporations contracted by the federal government. — Professor Richard Pierce argues that ______ should be overruled.

Informal Agency Action

— _________ agency actions characterized by use of discretion. —Discretion can be abused but does not mean it is unlimited or unreasonable. —Most discretionary actions are guided by legal, ethical, and professional standards. —Public administrators would not last long in their jobs if they ignore those constraints.

Discretion (Scope)

— _________ involves both positive powers (issuing a license, awarding a contract, prosecute or fine a business) and the significant power to do nothing. - Negative ______ power gives administrators more clout because it is much more difficult to check negative powers than positive ones. Section 706(1) of APA prohibits abuses of ______. - Courts have ruled that administrators are not free to use their ______ powers to block the implementation of programs authorized by Congress or to prevent persons from receiving statutory entitlements. - Difficult, however, to force action through litigation. - Supreme Court has limited judicial review of agency ______. — _________ is not limited to final decisions. It applies to numerous interim decisions that can be crucial but often receive less notice. Interim decisions may determine fate of public policies. — _________ also is not limited to substantive choices (over policy content) but extends to procedures, methods, forms, timing, and many other factors.

Discretion (Cases Upholding Discretion — Part II)

—Vermont Yankee Power Corp. v. Natural Resources Defense Council (1978): - Issue: were the Atomic Energy Commission / Nuclear Regulatory Commission rule-making procedures adequate enough to provide a thorough consideration of crucial safety and environmental concerns related to the licensing of nuclear power plants? - Two lower courts said no. - The Supreme Court reversed it unanimously. - Justice Rehnquist: the judiciary is not entitled to compel regulatory agencies to employ rule-making procedures which Congress has bot required despite the perceived inadequacies of the rule-making procedures. - Rehnquist stressed that only under exceptional circumstances.