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Wednesday, August 6, 2003 (Class 21) ==


Access to Information ===

* Three sources, all amendments to APA
** FOIA: agency records
** Sunshine Act: open meetings
*** Not particularly effective, since deliberations often happen in offices, etc., prior to meeting

FOIA




* Old language (pre-1966) allowed exception for "good cause"; only allowed access to information to people who were "properly and directly concerned." Also provided no remedy.
* Strengthened in 1974, new guidelines in 1986, most recently amended in 1996.
* 552(a)(2): agency must make available for public inspection and copying
** (A) final opinions and orders, resulting from adjudications
** (B) statements of policy and interpretation not published in Federal Register (553 exemptions--mere interpretive rules)
** (C) administrative staff manuals, instructions to staff, that effect members of the public
** (D) copies of records regardless of form or format (1996--electronic format)--that agency determines have become or are likely to become subject of subsequent requests
** (E) index of records (Vaughn index--after Vaughn v. Rosen--court told agency it needed to make records available in systematic fashion)
* (D) and (E): Often agencies establish "reading rooms" for frequently requested documents.
* 1996 amendment: agency must make availble by electronic means
* Agency may delete identifying details for personal privacy; justification must be explained fully in writing.
* 552(a)(3): any person can make request. Must reasonably describe documents; can charge reasonable fees.
* Agency definition: broader than 551 (APA) definition. Includes military, executive office of President (not always clear what executive office of President is). Includes FBI.
* Congress and judiciary are excluded.
* Agencies need to have public records officer.
* 20 days to respond to request (10 days for expedited request).
* Can get District Court review of agency decision, standard is de novo review.
* Judge can do in camera review of sensitive documents.
* Can award attorney's fees to private litigants who "substantially prevail."
* Exceptions to FOIA, 552(b)
** authorized under criteria established by executive order to be kept secret; properly classified pursuant to executive order.
** internal personnel rules & practices
** specifically exempted by statute
** trade secrets, confidential commercial/financial information
** inter-agency or intra-agency memorandums which would not be available by law in litigation
** personnel/medical files
** records or information compiled for law enforcement purposes
*** that would interefere with enforcement proceedings
*** would deprive a person of a right to a fair trial
*** unwarranted invasion of privacy
*** disclose confidential source
*** disclose techniques and procedures for investigations/prosecutions
*** endanger life or safety of individual
** regulation/supervision of financial institutions (e.g., the Fed)
** geological/geophysical: maps concerning wells.

NLRB v. Sears, Roebuck & Co.




[421 U.S. 132] 1975 United States Supreme Court (cb683)

* Focuses on exemption 5: intra-agency memoranda.
* Sears wants copy of five years of "advice memoranda" and "appeals memoranda," generated by NLRB in investigating unfair labor practice cases.
* NLRB refuses to disclose documents under 552(b)(5): intra-agency memoranda.
* Documents are discoverable unless they are privileged; thus NLRB must argue that documents are privileged and could not be discovered in litigation.
* NLRB claims memoranda are not final; only determine whether or not complaint should issue.
* Court decides when Board decideds not to file complaint, it is final; but when complaint is filed, it is not final. Similar to Nor-am and Ruckelshaus dealing with judicial review.
* Quality of decisionmaking process is not improved by protecting post-decisional memoranda.
* Pre-decision memoranda are more like "work product" and therefore privileged.

Scalia on FOIA




* Arguments against FOIA
** Costly
** Agencies regulate private parties, records become public.
** Writing shortly after "reverse FOIA" suit, Chrysler v. Brown. Competitors to Chrysler made a FOIA request on information Chrysler has filed with government; Chrysler sues to enjoin agency from disclosing information under "trade secret" exception.
** Exemptions don't mean that disclosure is prohibited, however, only means that disclosure is not required. Thus Chrysler could not force agency to not disclose documents.
** Private parties have no right to enjoin disclosure of agency documents; must be covered by some other statute such as privacy act.
** Businesses now market information retrieved under FOIA.
* Real guarantor is not "do it yourself" monitoring by public and press, but rather balance of powers/checks and balances.




Administrative Law

Professor Libby Adler

Wednesday, May 28, 2003 (Class 1)


Monday, June 2, 2003 (Class 2)

Amalgamated Meat Cutters v. Connally

[337 F. Supp. 737] 1971 District of Columbia Court of Appeals (cb62)

Whitman, Administrator of Environmental Protection Agency, et al. v. American Trucking Associations, Inc., et al.

Industrial Union Department

Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Commission

[517 P.2d 289] 1973 Oregon Court of Appeals (cb75)

Summary

Assignment #1


Wednesday, June 4, 2003 (Class 3)

Review

Continued Legislative Control of Administrative Agencies

Immigration and Naturalization Service v. Chadha

[462 U.S. 919] 1983 United States Supreme Court (cb86)

Commodity Futures Trading Commission v. Schor

[478 U.S. 833] 1986 United States Supreme Court (cb108)

Summary


Monday, June 9, 2003 (Class 4)

Review

USDA v. Murray

[413 U.S. 508] 1973 United States Supreme Court (cb121)

Delaney Clause

Public Citizen v. Young

[831 F.2d 1108] 1987 District Court Court of Appeals (cb134)

Summary


Monday, June 16, 2003 (Class 5)

Goldberg v. Kelly

[397 U.S. 254] 1970 United States Supreme Court (cb296)

Welfare Reform

Nancy Morawetz Article

Mathews v. Eldridge

[424 U.S. 319] 1976 United States Supreme Court (cb310)


Wednesday, June 18, 2003 (Class 6)

Board of Regents of State Colleges v. Roth

[408 U.S. 564] 1972 United States Supreme Court (cb326)

Perry v. Sindermann

[408 U.S. 593] 1972 United States Supreme Court (cb332)

Charles Reich Article

Cleveland Board of Education v. Loudermill

[470 U.S. 532] 1985 United States Supreme Court (cb338)


Friday, June 20, 2003 (Class 7)

(make up class)

Introduction to APA

United States v. Florida East Coast Railway Co.

[410 U.S. 224] 1973 United States Supreme Court (cb356)


Monday, June 23, 2003 (Class 8)

Seacost Anti-Pollution League v. Costle

[572 F.2d 872] 1978 1st Circuit Court of Appeals (cb378)

  Rulemaking Adjudication
On the Record 556 or equivalent 554 and 556 (or private and public interests implicated)
No "on the record" language 553 Not in APA

Heckler v. Campbell

[461 U.S. 458] 1983 United States Supreme Court (cb419)

Assignment #2


Wednesday, June 25, 2003 (Class 9)

Heckler v. Campbell

[461 U.S. 458] 1983 United States Supreme Court (cb419)

Air Line Pilots Association v. Quesada

[276 F.2d 892] 1961 2d Circuit Court of Appeals (cb428)

National Petroleum Refiners Association v. Federal Trade Commission

[482 F.2d 672] 1973 District of Columbia Court of Appeals (cb440)

Wirtz v. Baldor Electric Co.

[337 F.2d 518] 1963 District of Columbia Court of Appeals (cb454)

Pacific States Box & Basket Co. v. White

[296 U.S.C. 176] 1935 United States Supreme Court (cb462)


Monday, June 30, 2003 (Class 10)

Informal Rulemaking

Automotive Parts & Accessories Association v. Boyd

[407 F.2d 330] 1968 District of Columbia Circuit Court of Appeals (cb468)

United States v. Nova Scotia Food Products Corp.

[568 F.2d 240] 1977 2d Circuit Court of Appeals (cb514)

American Mining Congress v. Mine Safety & Health Administration

[995 F.2d 1106] 1993 District of Columbia Circuit Court of Appeals (cb505)


Wednesday, July 2, 2003 (Class 11)

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.

[435 U.S. 519] 1978 United States Supreme Court (cb532)

Ex Parte Communication

HBO v. FCC

[567 F.2d 9] 1977 District of Columbia Circuit Court of Appeals (cb540)

Action for Children's Television v. FCC

[564 F.2d 458] 1977 District of Columbia Circuit Court of Appeals (cb542)

Sierra Club v. Costle

[657 F.2d 298] 1981 District of Columbia Circuit Court of Appeals (cb546)


Monday, July 7, 2003 (Class 12)

Informal Rulemaking Continued

Association of National Advertisers, Inc. v. FTC

[447 U.S. 921] 1979 District of Columbia Circuit Court of Appeals (cb560)

Discretion to Adjudicate

Securities & Exchange Commission v. Chenery Corp.

[332 U.S. 194] 1947 United States Supreme Court (cb573)

National Labor Relations Board v. Wyman-Gordon Co.

[394 U.S. 759] 1969 United States Supreme Court (cb578)

National Labor Relations Board v. Bell Aerospace

[416 U.S. 267] 1974 United States Supreme Court (cb581)

Conclusion of Process Unit


Wednesday, July 9, 2003 (Class 13)

Universal Camera Corp. v. NLRB

[340 U.S. 474] 1951 United States Supreme Court (cb792)

Citizens to Preserve Overton Park, Inc. v. Volpe

[401 U.S. 402] 1971 United States Supreme Court (cb749)

Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc.

[467 U.S. 837] 1984 United States Supreme Court (cb760)


Monday, July 14, 2003 (Class 14)

Judicial Review of Agency Decisions

Scalia Article

Food and Drug Administration, et al. v. Brown & Williamson Tobacco Corporation, et al.

[2000 WL 289576] 2000 United States Supreme Court (sp69)

Gary Smith: Quid Pro Quo for Chevron Deference

United States v. Mead Corporation

2001 United States Supreme Court (sp63)


Wednesday, July 16, 2003 (Class 15)

Johnson v. Robison

[415 U.S. 361] 1974 United States Supreme Court (cb837)

Webster v. Doe

[486 U.S. 592] 1988 United States Supreme Court (cb850)


Monday, July 21, 2003 (Class 16)

Judicial Review of Agency Inaction

Heckler v. Chaney

[470 U.S. 821] 1985 United States Supreme Court (cb876)

American Horse Protection Association, Inc. v. Lyng

[812 F.2d 1] 1987 District of Columbia District Court (cb889)

Final Exam


Wednesday, July 23, 2003 (Class 17)

Environmental Defense Fund, Inc. v. Hardin

[428 F.2d 1093] 1970 District of Columbia Circuit Court of Appeals (cb902)

Nor-Am Agricultural Products, Inc. v. Hardin

Environmental Defense Fund, Inc. v. Ruckelshaus

[439 F.2d 584] 1971 District of Columbia Circuit Court of Appeals (cb905)

FTC v. Standard Oil Co.

[449 U.S. 232] 1980 United States Supreme Court (cb910)

Dalton v. Specter

[511 U.S. 462] 1994 United States Supreme Court (cb911)

Abbott Laboratories v. Gardner

[387 U.S. 136] 1967 United States Supreme Court (cb918)

Toilet Goods Association v. Gardner

[387 U.S. 158] 1967 United States Supreme Court (cb925)

Exhaustion

McGee? v. United States

[402 U.S. 479] 1971 United States Supreme Court (cb937)

McKart? v. United States

[395 U.S. 185] 1969 United States Supreme Court (cb938)


Monday, July 28, 2003 (Class 18)

Standing

Association of Data Processing Service Organizations, Inc. v. Camp

[397 U.S. 150] 1970 United States Supreme Court (cb957)

National Credit Union Administration v. First National Bank & Trust Co.

[522 U.S. 479] 1998 United States Supreme Court (cb963)

Sierra Club v. Morton

[405 U.S. 727] 1972 United States Supreme Court (cb970)


Wednesday, July 30, 2003 (Class 19)

Standing

Lujan v. Defenders of Wildlife

[504 U.S. 555] 1992 United States Supreme Court (cb1001)

Bennett v. Spear

[117 S.Ct. 1154] 1997 United States Supreme Court (c1017)

Friends of the Earth, Incorporated v. Laidlaw Environmental Services, (TOC), Inc.

[528 U.S. 167] 2000 United States Supreme Court

Final Assignment


Monday, August 4, 2003 (Class 20)

Federal Tort Claims Act

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) et al.

[467 U.S. 797] 1984 United States Supreme Court (cb1038)

United States v. Gaubert

[499 U.S. 315] 1991 United States Supreme Court (cb1050)


Wednesday, August 6, 2003 (Class 21)

Access to Information

FOIA

NLRB v. Sears, Roebuck & Co.

[421 U.S. 132] 1975 United States Supreme Court (cb683)

Scalia on FOIA



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