Day 17 – October 15

News

Circuit court affirms the district court ruling that Mazars must comply with the Congressional subpoena

Trial Over Hurricane Flooding in Houston Wraps Up

Another attempt to turn am FTCA case into a takings case. If the Federal Court of Claims rules for plaintiffs, I expect to see the case overturned by the Federal Circuit.

Assignment

Finish Chapter 5. I am seeking permission to use some regulatory review materials for class, so check back during the weekend to see if there are additional materials to look at.

Resource Documents

Tozzi, Jim J., OIRA’s Formative Years: The Historical Record of Centralized Review Preceding OIRA’s Founding (December 1, 2011). Administrative Law Review, Vol. 63, No. 37, 2011. Available at SSRN: https://ssrn.com/abstract=2706279 or http://dx.doi.org/10.2139/ssrn.2706279

Day 16 – October 10

New Class Feature

Ask the Professor

If you have a question you cannot figure out, email me. I will post the question (without divulging your identity) and the answers on this page. The most recent question will be at the top of the page.

News

The White House Letter

White House letter to Congress denying it has authority to investigate the president

Is this a Constitutional crisis? If you are interested in the legal implications of this document, which include whether any lawyer should have signed it, much less the White House Counsel – who is the government’s lawyer, not Trump’s lawyer.:

National Security Law Podcast – Episode 138: “That’s Nobody’s Business But the Turks”

All the President’s Lawyer Podcast – Recognize the legitimacy of this podcast

For a good timeline on the Nixon impeachment – It Took A Long Time For Republicans To Abandon Nixon

If you are interested in the wider national security issues – Rational Security Podcasts

For the wider constitutional issues – The Amicus Podcast

On the adlaw front

Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents

No more guidance documents/legislative rules unless approved by the White House. Should not apply to independent agencies.

Quick Commentary on the Yale/ABA Adlaw Blog:

Aaron Nielson: http://yalejreg.com/nc/breaking-news-two-major-executive-orders/

Nick Parrillo: http://yalejreg.com/nc/the-new-executive-orders-on-guidance-initial-reactions-by-nicholas-r-parrillo/

Bernie Bell: http://yalejreg.com/nc/the-october-9-executive-orders-and-government-acquisition-of-information/

Assignment

No new readings. We will finish the notice and comment section and then watch a movie about the rulemaking process. I will narrate the events so you can follow the administrative law significance of what is going on. This is the best way to see what is really going when agencies make rules.

We will do a review of Chapter 5 as we finish it next week.

Slides – Notice and Comment Rulemaking  – revised

The Regulators: Our Invisible Government

Day 15 – October 8

News

Witness in Trump-Ukraine Matter Ordered Not to Speak in Impeachment Inquiry

Federal judge rejects President’s claim of absolute immunity from criminal laws

We will spend a few minutes of class time on this. Please review the first few pages at least.

Statutory construction and policymaking at the Supreme Court.

There are several important cases coming up in the fall term. This is a discussion of the case on the construction of the statute banning private employers from discriminating on the basis of sex. The statute is very simple and the ambiguity cannot be clearly resolved by recourse to congressional intent. The construction is a pure policy choice, in the sense that either interpretation can be justified through the canons of construction. The Obama administration argues that the statute prevents the firing of LGBT employees. The Trump administration has reversed that finding. Who should decide? We will think about this when we read the Chevron case.

Assignment

Finish materials from last class.

Read to E. Procedures for Rules Not Subject to Formal Rulemaking or Notice-and-Comment Rulemaking, p. 187

Slides – Notice and Comment Rulemaking – subject to revision

The Reg Map for Informal RulemakingThe Reg Map for Informal Rulemaking – Reading Version

Additional note on the FTCA

§ 2678. Attorney fees; penalty

No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of any judgment rendered pursuant to section 1346(b) of this title [judgement by the court] or any settlement made pursuant to section 2677 of this title [settlement], or in excess of 20 per centum of any award, compromise, or settlement made pursuant to section 2672 of this title.

 

Day 14 – Oct 3

News

Impeachment materials, from Peter M. Shane, Harold H. Bruff, and Neil Kinkopf, Separation of Powers Law: Cases and Materials (4th ed. 2018), with permission.

Assignment

Finish materials from last class.

Begin Chapter 5 – Rulemaking

Chapter 5 to b. General Statements of Policy, p. 165

APA 553 – Notice and Comment Rulemaking

Slides – Introduction to Rulemaking

Resources

Quick review of the delta talk and more info on why mangroves protect against the tsunamis and not against hurricane surge:

Why the Master Plan will not protect Louisiana and what we should do instead

In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644 (E.D.La. Nov 18, 2009) Final opinion and appendix.

The district court case that found the Corps liable for flooding New Orleans. You do not need to read this, but you should if you are interested in the cases.

Day 13 – October 1

News

What are the procedures for impeachment?

Can Congress grant witnesses immunity from prosecution by the DOJ?

One of the key issues in the upcoming impeachment investigation will be whether Congress can grant willing witnesses immunity from threats of prosecution if they testify. While this article is a couple of years old, it is still relevant today.

Judge bars Trump fast-track deportation policy

The key holding is that DHS should have gone through notice and comment rulemaking to change the standing policy of fast deportation of immigrants recently captured within 100 miles of the border to quick deportation of anyone, anywhere, captured anytime. This is a long opinion that reads like an introduction to adlaw.

Assignment

We are going to finish our section on suing the government with the Katrina levee breach case. I will do an introductory session on the Mississippi delta and why it is at extreme risk from climate change and hurricanes.

In re Katrina Levee Breaches, 5th Cir, Round II

The very rare situation where the 3 judge panel overrules itself, rather than the case going on to en banc review. This case finally ended the Katrina levee breach cases under the DFE exception. Think about whether they should have been ended much earlier under 702 of the FCA.

Slides – Brief Introduction to the Mississippi River Delta Cycle

Slides – Katrina Levee Breach Cases

Mississippi Delta Subsidence in Action – Fort Proctor

 

Day 12 – September 26

Remember, these are out of classroom assignments. We do not meet class on Thursday.

News

Telephone Conversation with President Zelenskyy of Ukraine

Note – this appears to be notes, not a transcript.

The Whistle-blower Complaint

The Inspector General’s Report on the Complaint

Brittish Supreme Court decision holding proroguing Parliament to be illegal

In US adlaw terms, the decision to prorogue Parliament was arbitrary and capricious.

Assignment

Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003)

This is the lead LA case on the LA-TCA. Points to cover are how the LA-TCA is interpreted compared to the FTCA, how the court resolved the discretionary act question, and whether this case really reinterprets the Fowler case it discusses. Be sure to read the concurrences and dissents. I have included the Louisiana constitutional and statutory provisions on tort claims. Note that Louisiana abolished sovereign in the 1974 constitution. This makes it much easier to sue, but also note the LA appropriations clause language is going to make it hard to collect a judgment from a state court proceeding such as a tort claims lawsuit.

CDC Food Safety Alert for Raw Oysters

Examples of Limitation of Liability Provisions in the LA Code

The Lousiana Tort Claims Act – Narrated PowerPointVideo

Suing the Federal Government for Flooding

We are going to look at the application of the FTCA in flood cases, including the Hurricane Katrina Levee Breach Case. The starting point is Hurricane Betsy, the 1965 hurricane that flooded New Orleans as thoroughly as Hurricane Katrina. The footprint of the city was small then – more people, less area. The city was also better prepared and had a more effective evacuation plan, so many fewer people were killed.

Hurricane Betsy

Remembering Betsy: WVUE-TV 09/1990 

Pay special attention to the levee comments at about 12:30 and the ending comments at 27.

LBJ and Russel Long right after Hurricane Betsy: https://millercenter.org/the-presidency/educational-resources/lbj-and-senator-russell-long-on-hurricane-betsy

Graci v. United States, 456 F.2d 20 (5th Cir. 1971)

This was filed under the FTCA after Betsy. It also introduces the Flood Control Act of 1928 and its statutory immunity. On remand: Graci v. U.S., 435 F.Supp. 189 (E.D.La. 1977) (short case, just finds that the Corps wins because it exercised discretionary authority)

Central Green Co. v. United States, 531 U.S. 425 (2001) – the key Supreme Court case on the application of Flood Control Act of 1920 immunity for dual-use projects. The heart of the case is paragraphs 41-45.

Slides – Suing the Government after Hurricane Betsy – Video

Resources

§10.  Suits Against the State (Louisiana Constitution)

Section 10.(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.

(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.

(C) Limitations; Procedure; Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered. (emphasis added)

Amended by Acts 1995, No. 1328, §1, approved Oct. 21, 1995, eff. Nov. 23, 1995.

TITLE 9 – Civil Code-Ancillaries – RS 9:2798.1 – Policymaking or discretionary acts or omissions of public entities or their officers or employees

§2798.1. Policymaking or discretionary acts or omissions of public entities or their officers or employees

A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.

B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

C. The provisions of Subsection B of this Section are not applicable:

(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or

(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.

D. The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.

Acts 1985, No. 453, §1; Acts 1995, No. 828, §1, eff. Nov. 23, 1995.

Louisiana Flood of 1983 – Suing the State for Causing Flooding

Boudreaux v. STATE, DEPT. OF TRANSP. & DEVELOPMENT, 780 So. 2d 1163 (La. Ct. App. 2001).

 

 

Day 11 – September 24

Remember – we are not meeting class

News

The federal whistleblower statute contains a specific provision that requires complaints that involve serious issues at national security agencies to be reported to the Congressional oversight committees for national security matters. This is a key part of congressional oversight. (These articles are from Lawfare, an excellent and fairly non-partisan national security law blog.)

The Witness and the Whistleblower: Some Thoughts

What the Latest Reports Say About the Whistleblower Complaint

Information on the Whistleblower Act at issue

Assignment

We are going to start on our section on suing the government, which is not usually covered in administrative law classes. While it is another limit on agency discretion, which we will look at in Chapters 6 & 7, it is sufficiently different from the rest of the litigation against agencies that it can be treated without reference to administrative law in general. We are going to look at the Federal Tort Claims Act, which allows the federal government – which is usually absolutely immune to ordinary tort litigation – to be sued for torts under limited circumstances.

28 USC Ch. 171: TORT CLAIMS PROCEDURE – the originally posted version from the House has has been replaced with the statutory version that is more readable.

This is the act. Just focus on the statutory provisions, not the history. While I will refer to the history as we look at the law, you are not responsible for it.

Federal Tort Claims Act Reader

These are edited versions of the key cases setting out the construction of the FTCA.

Tort Claims Against the Federal Government – Text

This is an explanation of the FTCA that I have prepared as a supplement to our text.

Form 95 – CLAIM FOR DAMAGE, INJURY, OR DEATH

This is the form for filing an FTCA claim. Review it so you understand the required information.

Narrated Powerpoints

The video is just a different way of watching, and it has closed captioning.

Introduction to Sovereign Immunity – Narrated SlidesYouTube Video

Federal Tort Claims Act History and Procedure – Narrated Slides – YouTube Video

Federal Tort Claims Act – DFE – Youtube Video

Resource Materials

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)

United States Court of Federal Claims Brochure

 

Day 10 – September 19

Moodle video is working

News

EPA to revoke California’s power to limit vehicle emissions

This is a huge change in environmental law. The basic framework for US environmental is called shared federalism. The federal government sets baseline standards and the states are free to set higher standards. Most of the enforcement falls on the states. (This is why a state like Louisiana is so much more polluted than many other states – we have the same baseline standards, but we do not enforce them.) California started regulating automobile and other emissions before the federal Clean Air Act. The L.A. basin traps pollution and forced California to adopt air pollution standards or die. California’s program was part of the reason that the legislation allowed states to have higher standards.

Assignment

We are not meeting class on the 19th, 24th, and 26th. We will be doing out of class assignments. The first of these is to watch a documentary, Well-Founded Fear, on the administrative hearing process in the immigration court system. This documentary is several years old, but the only thing that has changed is that the system is more crowded and less effective. This will give you a sense of how administrative hearings and due process play out in the real world. The judges do not have staff to research cases, so they just do the best that they can. Just as there is no duty to provide counsel to applicants, there is also no duty to provide translators. The applicant must bring his/her own translator, which also leads to confusion. Note how confusion between the judges and the applicants can have catastrophic effects on the applicant’s cases. Some of this is hard to hear clearly in the film, so I am attaching this document which analyzes some of the linguistic problems. (Don’t worry about the jargon, focus on what leads to confusion.)

Shannahan, Jennifer. “A narrative perspective on a well-founded fear: Officer stancetaking in a political asylum documentary.” University of Hawai’I Second Langauge Studies Paper 33 (2) (2015).

This is a guide to watching the movie:

Well-Founded Fear – Facilitators Guide

The movie is posted on the class Moodle page. While I have permission from the filmmaker to show the film in class, I do not have permission to post it on the general Internet.

You have until Friday the 27th to complete watching the movie. Please email me if you have any problems viewing the movie.

Day 9 – September 17

News

Trump Must Face Emoluments Claims, as 2nd Circuit Revives Lawsuit

Assignment

Finish materials from last class.

Finish reading Chapter 4.

Slides – Mathews v. Eldridge – updated with material for the rest of Chapter 4

Day 8 – September 12

News

Supreme Court order lifting stay on asylum limits and dissent by Sotomayor and Ginsburg.

Assignment

Finish materials from last class.

Read Mathews v. Eldridge (edited version)

We will take a hard look at this case.

Slides – Mathews v. Eldridge

Resources

The Social Security Disability Insurance Program

Information about SSI – CBPPInformation about SSI – CBPP – PDF of Charts (2019)

The application process

Checklist for Online Adult Disability Application

 

Day 7 – September 10

News

Recap

Three-week recap – I am going to take some time at the beginning of the class to recap what we have covered so far and to help you understand what you should be taking away from the material. I will also post review materials after class.

Assignment

Read to B The Modern Rule (p. 124)

Heerden v. Bd. of Sup’rs of Louisiana State Univ. & Agr. & Mech. Coll., No. CIV.A. 10-155-JJB-CN, 2011 WL 320921 (M.D. La. Jan. 28, 2011) van Heerden – Round II – LSU Settles on stigma + claims

Paul v. Davis list of shoplifters

Slides – Chapter 4 Part 2

Day 6 – September 5

News

What Happens When The FEC Can’t Do Its Job?

Terrorist Screening Database inclusion a due process violation

Assignment

Chapter 4 to to: 1. Modern Concept of ‘‘Property’’

Criminal due process review – Argersinger v. Hamlin, 407 U.S. 25 (1972) – the limits of the right to delegate criminal law matters to an administrative tribunal.

Read Goldberg v. Kelly Pay particular attention to Justice Black’s dissent.

Slides – Intro to Due Process and Goldberg

Resources

Practice materials for summary proceedings in Louisiana

Filetti, Garrett. “22nd Time’s the Charm: The 2015 Revisions to Summary Judgment in Louisiana.” La. L. Rev. 77 (2016): 479-585.

Code sections for Declaratory Judgment in LA

CCP 1871 Declaratory judgments; scope
CCP 1872 Interested parties may obtain declaration of rights, status, or other legal relations
CCP 1873 Construction of contract
CCP 1874 Interested person may obtain declaration of rights; purpose
CCP 1875 Powers enumerated not exclusive
CCP 1876 Court may refuse declaratory judgment
CCP 1877 Review of judgments and decrees
CCP 1878 Supplemental relief; expedited hearing for constitutional determination; effect of pendency of other proceedings
CCP 1879 Trial and determination of issue of fact
CCP 1880 Parties
CCP 1881 Construction
CCP 1882 Provisions independent and severable
CCP 1883 Uniformity of interpretation

Day 5 – September 3

News

Hurricane Dorian threatens the US

Disaster management and response is a core administrative law function, combining long-term regulation and preparation and emergency powers such as orders to evacuate and curfews.

Mandamus in the Juliana Case

Assignment

Finish the Wooley materials.

Bonvillian Cases: Bonvillian v. Dep’t of Insurance, 906 So.2d 596 (La.App. Cir.1 2005) and after remand and appeal – Bonvillian, round II.

This is where we see how the Wooley saga played out and where this leaves adjudications in Louisiana.

Slides – Bonvillian

 

Day 4 – Aug 29

News

Conflict of interest in New Orleans Criminal Courts

The case – Cain v. White, No. 18-30955, 2019 WL 3982560 (5th Cir. Aug. 23, 2019)

Wall Updates

Assignment

Finish Chapter 3

Wooley v. State Farm Fire and Cas. Ins. Co., 893 So.2d 746 (La. 2005) – annotated – study guide for Wooley to help guide your reading

We are going to take a deeper dive into Louisiana separation of powers and adjudications because Louisiana has a unique approach to adjudications among the states. The Wooley opinion, through paragraph 47, lays out the lower court’s ruling. The lower court ruling is a bit disjoint, so do not expect deep legal reasoning it. Try to identify the facts that the district court based its ruling on.

Slides – Wooley

 

Day 3 – Aug 27

News

The Power to Declare Trade War

The tariff power belongs to Congress. Congress delegated it to the president in national security situations and did not define what that meant.

Assignment

Chapter 3 – we may not get through all of the reading, but it makes more sense if you see it all at once.

554 -Adjudications.

555. Ancillary matters (General standards)

556 – Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision.

557 – Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record.

Slides Chapter 3 – these are subject to revision before class. Use them to review your reading of Chapter 3. The major change from the text is that we are less interested in the nuances of determining when a formal adjudication is necessary.

Day 2 – Aug 22

News

Why Trump Can’t Buy Greenland

DOJ Brief in the Trump Documents Subpoena Case

Response Brief of the House to the DOJ Brief in the Trump Documents Subpoena Case

Assignment

Chapter 2 to President, p. 54, and Line Item Veto, p. 69 t0 the end of the chapter. We will reserve the section on supervision through OMB/OIRA until Chapter 5, when we will discuss rulemaking.

The Delegation Doctrine section, p. 28-41, should be a review of what you covered in Constitutional Law. Skim this to refamiliarize yourself with the material. We will not review this in class, and it will not be on the exam, except as developed when we read Gundy v. US later in the course.

Resources

Slides – Remainder of Chapter 2 – revised – slide added after slide #38

Day 1 – August 20

Required Text and Class Information

Examples & Explanations: Administrative Law, by Funk, Seamon, 5th ed., 2015 – available online at Amazon and BN.COM.

Additional materials such as cases will be posted on this WWW site. We will work with public domain materials as much as possible. Any proprietary materials will be posted on Moodle.

There may be online quizzes through Moodle that will count toward your final grade and class participation may also be used as part of your grade. You are responsible for reading and studying the assigned material. Not all of it will be covered in class. You will be provided with study aids to help assure that you can identify the key issues that will be on the exam.

Working Course Outline – Administrative Law – Fall 2019

This is the basic outline of what we will cover. Exact coverage and dates will be adjusted based on coverage and outside events, such as hurricane days. Cases will be added or substituted based on current events and breaking news. The basic coverage of the text will stay the same.

Assignment:

Chapter 1. Chapter 2 from President, p. 54 to Supervision, p.65.

The first two classes will introduce the basic topics of administrative law and the structure of the administrative state.

Resources

Slides – Intro