Administrative Law:

por REESE, John H.
[ Livros ] Publicado por : West Publishing co., (St. Paul, Estados Unidos:) Detalhes físicos: 844 p. ISBN:031404986X. Ano: 1995 Tipo de Material: Livros
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Chapter One. An Introduction to Administrative Law

What Is Administrative Law?
Why Do We Have Administrative Agencies?
What Is an Administrative Agency?
Separation of Powers
Separation of Powers Analysis-Formalism
Separation of Powers Analysis-Functionalism
The Executive Power
Bowsher v. Synar
Morrison v. Olson
The Legislative Power
Immigration and Naturalization Service v. Chadha
The Non-delegation Doctrine
Substantive (Legislative) Rules
Interpretative Rules
The Judicial Power
Commodity Futures Trading Commission v. Schor
Mistretta v. United States
Creating an Agency
The Range of Legislative Design Choices
The Legislative Process for Creating an Agency
Administrative Procedure Legislation (APA)
Does the APA Apply to This Agency?
Does the APA Apply to This Problem?
Does the APA Complement the Agency Legislation on the Problem?
Some Functional Effects of Creating an Agency
Executive Authority-"Take Care That the Laws Be Faith-fully Executed
Legislative Authority-"The Framing and Enactment of Laws
Some Functional Effects of Creating an Agency-Continued
Judicial Authority-"The Official Right to Hear, Consider, and Determine Questions in Controversy
Summary-The Headless "Fourth Branch" of Government

Chapter Two. Introduction to the Administrative Procedure Act and Public Information

Introduction to the Administrative Procedure Act (APA)
Section 3 of the Original APA
Freedom of Information Act (FOIA)
Public Information
Agency Records Exempt From Disclosure
National Parks and Conservation Association u. Morton
National Labor Relations Board u. Sears, Roebuck & Co
Reverse FOIA Actions
Chrysler Corporation u. Brown
The Privacy Act of 1974
The Government in the Sunshine Act

Chapter Three. Agency Administration of Its Legislative Program

Asserting Agency Authority-The Available Means
Asserting Agency Authority-Choosing the Means
Asserting Agency Authority-Making the Choices
Internal Factors Influencing the Choices
Lack of Experience
Insufficient Experience
Complexity of Policy Issues
Avoiding Criticism
Impediments to Rule Making
Legislative History
External Factors Influencing the Choices
Legislative Pressure and Intrusion
Executive Pressure and Intrusion
Petitions for Rule Making
Judicial Review of Petitions for Rule Making
Judicial Review of Agency Adjudication
The Choice: A Matter of Degree
Securities & Exchange Commission u. Chenery Corporation
Asserting Agency Authority - The Court-Imposed Choice
Theories on Which Courts May Order Promulgation of Rules-Standards
Abuse of Discretion
Curry u. Block
Mandatory Language in Agency Legislation
Federal or State Administrative Procedure Legislation
Common Law or Equitable Considerations
Sun Ray Drive-ln Dairy v. Oregon Liquor Control Commission
Constitutional Principles-Due Process of Law and Equal Protection of the Laws
Hornsby v. Allen
Elizondo v. Department of Revenue
Constitutional Principles-The Right to Know
Remedies and the Court-Ordered Choice
Court-Ordered Adjudication
American Airlines Inc. v. Civil Aeronautics Board
Asserting Agency Authority-Implementing the Choice
Constitutional Requirements-Rule Making and Adjudication
Londoner v. City and County of Denver
Bi-Metallic Investment Company v. State Board of Equalization of Colorado
Distinguishing Between Legislating and Adjudicating

Chapter Four. Procedural Requirements for Rule Making-Federal

Agency Legislation
The Administrative Procedure Act
Subject Matter Exceptions From APA Rulemaking Procedures
Notice of Proposed Rule Making
General Exemptions From § 553 Procedures
Interpretative Rules and General Statements of Policy Distinguished
Interpretative Rules
Legal effect of the rule
The formal approach
The functional approach
Factors applied in the analysis
Substantial impact of the rule
General Statements of Policy
Alaska v. Department of Transportation
Procedural Rules
Publication Requirements
Substantive (legislative) Rules
General Policy Statements and General Interpretations
Publication by Reference
The Good Cause Exemption From § 553 Procedures
The Required Proceeding
Opportunity to Participate
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc
Consideration of Materials Submitted and Statement of Basis and Purpose
Formal Rulemaking Proceedings- "Trigger" Language
United States v. Florida East Coast Railway Co
Publication of Substantive Rule Before Its Effective Date
Delay Period
Retroactive Rules
The Right to Petition the Agency for a Rule
Procedural Requirements for Rule Making-State and Local
Agency Legislation
The State APA
Agency Procedural Rules
Local APA

Chapter Five. Procedural Requirements for Adjudication - Federal

Initiating the Adjudicatory Process
Regulatory Agencies
Heckler v. Chaney
Selective Enforcement
Moog Industries, Inc., v. Federal Trade Commission
Federal Trade Commission v. Universal-Rundle Corp.
Private Enforcement
Cort v. Ash
Benefits Agencies
Application for Benefits
Termination of Benefits
Licensing Agencies
Application for a License
License Suspension or Revocation
Adjudication Procedures: Agency Legislation
Adjudication Procedures: Administrative Procedure Legislation
Formal Adjudication Required by Statute
Exemptions From § 554
A Matter Subject to a Subsequent Trial de novo
The Selection or Tenure of an Employee
Decisions Based Solely on Inspections, Tests or Elections
The Conduct of Military or Foreign Affairs Functions
Where an Agency is Acting as an Agent for a Court
The Certification of Worker Representatives
Notice of Hearing
Private Moving Parties
Time and Place for Hearing
Compromise and Settlement
Hearing Pursuant to §§ 556 and 557
The Recommended or Initial Decision
ALJ Consultation Prohibited
Separation of Functions
Grolier Incorporated v. Federal Trade Commission
Participation in Decision, Recommended Decision or Agency Review
Exceptions to Separation of Functions Provisions
Applications for Initial Licenses
Rates, Facilities or Practices of Public Utilities or Carriers
The Agency and Agency Members
Withrow v. Larkin
Declaratory Orders
Informal Adjudication
Agency Legislation
APA § 555
Agency Procedural Rules
Procedural Due Process of Law
Case Law Construing All of the Above

Chapter Six. Procedural Rights of Persons and Parties

Limits on Application
Appearance With Counsel
An Agency Function
An Agency Proceeding
Agency Duty to Conclude Matters Presented
ln Re International Chemical Workers
Process, Required Reports and Inspections
Reports and Records
Required Reports
Required Records
Administrative Procedure Act
Inspections and Searches
Private Party Subpoenas
Subpoena Enforcement
Agency Notice of Denial
Discovery: Court Rules, The APA, The Freedom of Information Act (FOIA) and Agency Discovery Rules
Federal Court Lawsuit
Formal Agency Adjudication
The Federal Rules of Civil Procedure
Agency Statutes
Administrative Procedure Legislation
Agency Discovery Rules
The Freedom of Information Act (FOIA)
Discovery Techniques
Prehearing Conferences
Written Interrogatories
Requests for Admissions
Production of Documents and Tangibles
Witness Prior Statements-The Jencks Rule

Chapter Seven. Constitutionally Required Procedural Fairness

1. Agency legislation
2. Federal or State APA
3. Agency Procedural Rules
4. Constitutional Requirements- Due Process and Equal Protection
a. The Constitutional Language
b. The Londoner-Bi-Metallic Distinction
e. The Right-Privilege Doctrine
d. Equal Protection of the Laws Complications
B. Does Due Process Apply?
Cafeteria & Restaurant Workers Union u. McElroy
Goldberg u. KellJ
Board of Regents u. Roth
Perry u. Sindermann
O'Bannon u. Town Court Nursing Center
Cleueland Board of Education u. Loudermill
C. What Process Is Due?
1. The Hearing-Timing
a. The General Rule
b. Extraordinary Situations
2. The Hearing-Type
3. Substitute for a Hearing
4. Bifurcated Proceedings
North American Cold Storage Company v. City of Chicago
Goláberg v. Kelly
Goss v. Lopez
Mathews v. Eldridge
lngraham v. Wright
Cleveland Board of Education v. Loudermill
D. Procedural Due Process-Summary
Chapter Eight. Formal Hearings
B. The Administrative Procedure Act
1. Applicability of Section 556
2. Presiding Officers
3. Hearing Powers
4. Evidence
a. Burden of Proof
b. Oral or Documentary Evidence
c. Hearsay
Richardson v. Perales
d. Cross-Examination
Calhoun v. Bailar
e. Illegally Obtained Evidence
f. Methods of Proof, Inferences and Presumptions
g. Establishing General Facts by Rule
Heckler v. Campbell
h. The Whole Record Rule
i. The Meaning of Substantial Evidence
j. Submission of Evidence in Writing
5. The Record
6. Official Notice of a Material Fact
a. The Constitutional Background
Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio
b. The Administrative Procedure Act
Bank s v. Schweiker
7. Harmless Error

Chapter Nine. Agency Decisions in Formal Proceedings

A. Individual and Institutional Decisions
1. The Role of a Judge
2. The Role of a Hearing Officer (ALJ)
3. The Role of the Agency
B. The Morgan Cases
Morgan v. United States
Morgan v. United States
National Nutritional Foods Association v. Food and Drug Administration
C. Extensive Delegation Within the Agencies
D. Decision Requirements in Agency Legislation
E. Decision Requirements in the APA
1. Relationships Between § 556 and § 557
2. Original Decisions; Appeal and Review
a. Presiding Officer (ALI)
b. Original Decisions of Presiding Officers (AL.Js) and the Agency
(1) Initial Decision
(2) Recommended Decision
(3) Tentative Decision of the Agency
e. Appeal and Review of Original Decisions
(1) Initial Decisions
(2) Recommended Decisions
(3) Tentative Decisions
(4) Intermediate Appeal or Review
3. Right to Submit Proposed Findings and Conclusions, Exceptions and Supporting Reasons to Decision Makers
4. The Agency Decision
a. Basis for the Decision
b. Scope of the Decision
e. Findings of Fact and Conclusions of Law
Saginaw Broadcasting Co. v. Federal Communications Comimission (Gross et al., Intervenors)
Universal Camera Corp. v. National Labor Relations Board
Allntown Brodcasting Corporation v. Federal Communications Commission
Federal Communications Commission v. Allentown Broadcasting Corp
Penasquitos Village, Inc. v. National Labor Relations Board
d. Rehearing and Reopening
5. Ex Parte Communications
6. The Effect of the Decision
a. Direct Effect on the Agency and the Parties
b. General Effect on the Agency and Others
e. Res Judicata and Collateral Estoppel
d. Equitable Estoppel Against the Government

Chapter Ten. Additional APA Provisions

Agency Powers and Sanction Authority
1. Variations in Agency Choice of Sanction
2. Agency Abuse of Discretion in Choosing Sanction
3. Agency Sanction as Violation of Equal Protection
B. Agency Licensing Actions
1. License Applications
2. License Suspensions and Revocations
3. License Renewals
C. Coordination With Other Statutes and Superseding or Modifying the APA
1. Coordination With Pre-APA Statutes
2. Legislation Superseding or Modifying the APA
D. Negotiated Rulemaking Procedure
E. The Negotiated Rulemaking Act
1. Agency Determination to Use Negotiated Rulemaking
2. Public Notice of Negotiated Rulemaking
3. The Negotiated Rulemaking Committee
4. Support Services
5. Judicial Review
F. Administrative Dispute Resolution
G. The Administrative Dispute Resolution Act
1. Limitations on Using ADR
2. Neutrals in ADR Proceedings
3. Disclosure of lnformation
4. Voluntary Arbitration
5. Arbitration Award
6. Judicial Review of Arbitration Award
H. Regulatory Flexibility
I. The Regulatory Flexibility Act
1. Agency Rules Subject to the Act
2. Regulatory Flexibility Agenda
3. Initial Regulatory Flexibility Analysis
4. Final Regulatory Flexibility Analysis
5. Certification of Inapplicability by Head of Agency
6. Exception for Emergency Circumstances
7. Opportunity for Small Entities to Participate
8. Agency Periodic Review of Its Rules
9. Judicial Review

Chapter Eleven. Availability of Judicial Review

A. Presumption of Reviewability
B. Jurisdiction to Provide Review
1. Special Statutory Review
2. General Jurisdiction Statutes
3. Specific Jurisdiction Statutes
4. The Administrative Procedure Act
C. Preclusion of Review
1. The Administrative Procedure Act
2. Statutory Preclusion
a. Implied Preclusion
Bowen u. Michigan Academy of Family Physicians
b. Express Preclusion
e. Preclusion of Constitutional Claims
d. Limiting the Scope of Review
3. Committed to Agency Discretion
a. No Law to Apply
Webster u. Doe
b. Decisions Traditionally Committed to Agency Discretion
D. Form of Proceeding; Venue; Review in Enforcement Proceedings
1. Form and Venue of Proceeding
2. Venue
3. Review in Enforcement Proceedings

Chapter Twelve. Standing: Models for Analysis and Prediction

A. Introduction: Standing as a Component of Justiciability
B. Main Themes (Factors) Involved in Standing Analysis
C. Main Themes Subclassified
1. Alleging a Justiciable Injury
a. Specific, Individual Injury
b. Article III and Separation of Powers
e. Judicial Tradition, Policy and Article III
d. Asserting Injury to a Private Interest
e. Asserting Injury to the Public Interest
2. The Legal Basis of the Standing Claim
a. Pure Standing Under Art. III
(1) Common-Law Right Asserted
(2) Constitutional Right Asserted
(3) Statutory Interest Asserted
(4) Administrative Rule Interest Asserted
b. Standing Supported by Statute
(1) Based on Article III and Agency (Organic) Statutes
(2) Based on Article III, Agency (Organic) Statutes and the APA
3. The Private or Public Nature of the Action
4. Whose Interests Are Being Asserted by the Complainant?
a. Representational Standing-Associations
b. Representational Standing-Individuals
5. Prudential Limitations on Standing
6. State-Created Standing
7. Special Considerations-Administrative Law
C. Main Themes Sub-Classified-Continued
b. Statutes Restricting Standing to a "Party"
e. Standing to Intervene in an Agency Proceeding
8. A General Model for Standing Analysis
9. Sovereign Immunity
D. Standing Themes Illustrated
1. Alleging a Justiciable Injury
Allen v. Wright
2. The Legal Basis of the Standing Claim
a. Pure Standing Under Article IIL
Flast v. Cohen
b. Standing Supported by Statute
(1) Based on Article III and Agency (Organic) Statutes Associated Industries of New York State, Inc. v. Ickes
(2) Based on Art. III, Agency (Organic) Statutes and the APA
Association of Data Processing Service Organizations, Inc. v. Camp
Sierra Club v. Morton
United States v. Scrap
Japan Whaling Association v. American Cetacean Society
Clarke v. Securities Industry Association
3. The Private or Public Nature of the Action
4. Whose Interests Are Being Asserted by the Complainant?
a. Representational Standing-Associations
Hunt v. Washington State Apple Advertising Commission
b. Representational Standing-Individuals
Singleton v. Wulff
5. Prudential Limitations on Standing
6. State-Created Standing
Asarco Inc . v. Kadish
E. State Court Standing
1. Federalism
2. Justiciability and Standing

Chapter Thirteen. Timing of Judicial Review and Relief Pending Review

A. Finality and Ripeness
1. Finality of Administrative Action
2. Finality and the Administrative Procedure Act
a. Action Made Reviewable by Statute
b. Final Agency Action
3. Ripeness
a. Legislative Rules
Abbott Laboratories v. Gardner
b. Interpretative Rules and Informal Rulings Ciba-Geigy Corporation v. U.S. Environmental Protection Agency
c. Preliminary, Procedural or Intermediate Action
B. Exhaustion of Administrative Remedies
a. A Court-Developed Doctrine
b. Legislatively Imposed Exhaustion Requirements
2. The Court-Developed Doctrine
3. Some Illustrations
a. Waiver of the Issue for Failure to Raise It Before the Agency
b. Where Fact Issues and Agency Expertise Are Involved
c. Where the Complainant Alleges Irreparable Damage If Required to Exhaust Remedies
d. Use of Federal Courts to Restrain State Agencies
e. Asserting Questions of Law
(1) Constitutional Questions
(2) Lack of Jurisdiction
(3) Agency Violation of a "Clear Right" 61
(4) No Properly Authorized Procedure to Exhaust
(5) Solely a Question of Statutory Interpretation
(6) Lack of Authority to Grant the Remedy Requested
4. Exhaustion Doctrine and the APA
Darby v. Cisneros
C. Primary Jurisdiction
2. The Basic Doctrine
Nader v. Allegheny Airlines, Inc.
3. The Modified Doctrine
4. Retain on or Dismiss From Court Docket
5. Primary Jurisdiction and the Antitrust Laws
D. Relief Pending Judicial Review and Interim Relief
1. Relief Pending Judicial Review
a. Court Authority ln General
b. Court Authority Under the APA
e. Agency Authority Under the APA
2. Interim Relief

Chapter Fourteen. Scope of Judicial Review

Questions of Law
General Principles of Judicial Review
Types of Questions of Law Decided by Agencies
Constitutional Law Questions 705
Interpreting Legislative Language and Applying it to Facts Developed in Formal Proceedings
The Political Nature of Legislative Acts
The Political Nature of Legislation Requires Its Interpretation
Variations Among Judicial Models for Interpretioning Legislation
Court-Agency Qualification s to Interpret Legislation
Inherent Vesting of Interpretative Authority in the Agency
Executive Responsibility of the Agency to Interpret Its Legislation
Court-Agency Allocation of Authority to Interpret Legislation
National Lahor Relations Board v. Hearst Publications, Inc.
Packard Motor Car Co. v. National Lahor Relations Board
Bureau of Alcohol , Tobacco and Firearms v. Federal Lahor Relations Authority
Interpreting Legislative Language in the Abstract
Interpretative Rules, Guidelines, Policy Statements
Skidmore Et Al . v. Swift & Co.
Ford Motor Credit Co. v. Milhollin
Legislative Rules
Batterton v. Francis
Chevron, U.S .A. Inc. v. Natural Resources Defense Council, Inc.
Agency Interpretation of Its Legislative Rules
Agency Discretion Limited by Its Rules
Substantive (Legislative) Rules
Procedural Rules and Procedures
Interpretative Rules, General Policy Statements, and Guidelines
Findings of Fact
Developed From Evidence Introduced in a Formal Proceeding ("The Exclusive Record for Decision")
Universal Camera Corp. v. National Lahor Relations Board
Developed From Data Accumulated in Informal Proceedings (Decision Based on the "Administrative Record ")
Informal Adjudication
Citizens to Preserve Overton Park, Inc. v. Volpe
Informal Rulemaking
Promulgation of Rules
Substantial Evidence-Arbitrary, Capricious: A Reconciliation
Association of Data Processing Service Organizations, Inc. v. Board of Governors of the Federal Reserve System Agency Amendment or Repeal of a Legislative Rule
Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co
Review of "Legal" Facts
Constitutional Facts
Jurisdictional Facts
A Summary Statement on Judicial Review
Scope of Review in the States

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