Required Text: MASHAW, MERRILL, and SHANE, ADMINISTRATIVE LAW: the AMERICAN PUBLIC LAW

The Columbus School of Law THE CATHOLIC UNIVERSITY OF AMERICA

Administrative Law 261, Sec. N-1 Spring 2012 (MW 6:20 – 7:35 p.m.) Room 305 Professor Donna Coleman Gregg 202-319-6299 [email protected]

Required Text: MASHAW, MERRILL, AND SHANE, ADMINISTRATIVE LAW: THE AMERICAN PUBLIC LAW SYSTEM (6TH EDITION, 2009) (“MMS”)

Supplemental materials including articles and decisions will be distributed as warranted by significant developments during the semester.

The reading assignments listed below for each class represent a general guideline as to the order of topics to be covered and how much emphasis will be devoted to each topic. They are subject to slight adjustment as the course progresses. Although we will try to cover all the reading within a class or so of the dates it is assigned, I am trying to build in some flexibility to spend more time on particular areas if warranted and to discuss breaking developments that occur. If we deviate from the printed reading schedule, I will announce the revised readings for the next lecture at the end of each class, post the change on TWEN, and e-mail the change to the class.

Date (Class 1): Mon., January 9, 2012

Topic/ Issues: COURSE INTRODUCTION

Admin Law 261: Conduct and Logistics of the Course

Lecture and Discussion: Why Study Administrative Law? An Introduction to the American Public Law System and “the Administrative State”

Class Preparation: Give some thought to how the federal agencies comprising the pervasive “Administrative State” in which we live touch your everyday life. Specifically, on a day prior to the first day of class, try to identify and jot down at least a dozen examples of how federal agencies play a role in your normal daily activities. Bring your list to class. We’ll discuss this in class and create a composite list to revisit at the end of the semester.

Date (Class 2): Weds., January 11, 2012

Topic/ Issues: ADMINISTRATIVE LAW “BIG PICTURE”

MMS 1-39: INTRODUCTION TO ADMINISTRATIVE LAW  What (and where) is Administrative Law?  U.S. Public and Administrative Law  The Architecture of an Administrative Agency  Critique and Reform of Administrative Government

** Please complete the student information and agency team preference form that was distributed in class on Mon, Jan. 9, and it to class on Jan. 11.

Date: Mon., January 16, 2012

NO CLASSES – Rev. Martin Luther King, Jr. Birthday

Topic/ Issues: LEGISLATIVE CONTROL OF AGENCY ACTIONS  Delegations of Lawmaking Authority o Non-Delegation Doctrine o Consequences of Statutory Vagueness and Precision

Class Preparation: MMS App. A 1371-76, U.S. Constitution Art. I (§§ 1, 7 & 8)

MMS 72-77, notes on Panama Refining Co. v Ryan, Schecter Poultry Corp. v United States, and Yakus v. United States

MMS 78-88, Amalgamated Meat Cutters v. Connally, Economic Stabilization Act, and note 1

MMS 127, Introduction to Statutory Precision

MMS 13-40, Public Citizen v. Young

2 Adminstrative Law 261 Spr 2012 Date (Class 4): Mon., January 23, 2012

Topic/ Issues: LEGISLATIVE CONTROL OF AGENCY ACTIONS  Legislative Veto  Other Means of Control

Class Preparation: MMS 107, Introduction

MMS 108-119, Immigration and Naturalization Service v. Chadha

MMS 121(Note 5) -127: Congressional Review Act, Sunset Laws, and Appropriations Riders

Topic/ Issues: LEGISLATIVE CONTROL OF AGENCY ACTIONS  Pervasive Instruments of Legislative Control

Class Preparation: MMS 150-68

 Administrative Procedure Act  Freedom of Information Act  Government in the Sunshine Act  Federal Advisory Committee Act [Add cite]  Privacy Act  National Environmental Policy Act  Regulatory Flexibility Act  Paperwork Reduction Act  Ethics in Government Act  Inspector General Act

3 Adminstrative Law 261 Spr 2012 Date (Class 6): Mon., January 30, 2012

Topic/ Issues: EXECUTIVE SUPERVISION OF AGENCY ACTION AND POLICY  President’s Power to Appointment and Remove Administrators

Class Preparation: MMS App. A, 1377-88, U.S. Constitution, Article II, §2

MMS 177-84, Commentary

MMS 185-91, Buckley v. Valeo

MMS 216-28, Humphrey’s Executor

Date (Class 7 ): Weds., February 1, 2012

Topic/ Issues: EXECUTIVE DIRECTION AND SUPERVISION OF ` AGENCY ACTION AND POLICY  President’s Authority to Direct Agency Policy

Class Preparation: MMS, 253-69 Commentary

MMS 278-83 Commentary

MMS 283-87 Environmental Defense Fund v. Thomas

4 Adminstrative Law 261 Spr 2012 Date (Class 8 ): Mon., February 6, 2012

Topic/ Issues: QUIZ – Legislative and Executive Control of Administrative Agencies

AGENCY ADJUDICATION  Introduction

Class Preparation: MMS 307-13 Commentary

MMS 313-25 Commodities Futures Trading Comm. v Schor

Date (Class 9 ): Weds., February 8, 2012

Topic/ Issues: AGENCY ADJUDICATION  Timing and Elements of Due Process

MMS 332-39 Goldberg v. Kelly

MMS 347-55 Mathews v. Eldridge

MMS 360-66 Hamdi v. Rumsfeld

5 Adminstrative Law 261 Spr 2012 Date (Class 10 ): Mon., February 13, 2012

Topic/ Issues: AGENCY ADJUDICATION  Interests Protected by Due Process

MMS 378-84 Board of Regents v. Roth

MMS 384-91 Perry v. Sinderman

MMS 391-408 Cleveland Bd of Education v. Loudermill

Date (Class 11): Weds., February 15, 2012

Topic/ Issues: AGENCY ADJUDICATION§§  Statutory and APA Hearing Rights

Class Preparation: MMS App. C 1396, APA §§ 554(a)

MMS 408 Commentary

MMS 408-17 U.S. v. Florida East Coast Railway Co.

MMS App. C 1393-94, APA § 551 (4), (6), and (7) (definitions) MMS App. C 1396-97, 1398-1402, APA §§ 554, 556-557

MMS 427-34 Richardson v. Perales

6 Adminstrative Law 261 Spr 2012 Date (Class 12): Mon., February 20, 2012

Topic/ Issues: AGENCY ADJUDICATION  Managing and Avoiding Adjudication

MMS App. C 1405-07, APA §§ 1305, 3105, 3344, 5372, 7521

MMS 455-57, Commentary

MMS 457-61 Nash v. Califano

MMS 467-71, Heckler v. Campbell

MMS 476 - 80, Airline Pilots Ass’n v. Quesada (and notes 1 and 2)

Topic/ Issues AGENCY RULEMAKING  Introduction

Class Preparation: MMS App C 1395-99, APA §§553 , 554, and 556

MMS 496, 515-18 Commentary

MMS 531-536 National Tire Dealers & Retreaders Ass’n Inc. v. Brinegar

MMS 530-47 Motor Vehicle Manufacturers Ass’n of U.S., Inc. v. State Farm Mutual Automobile Insurance Co.

Review rules for rulemaking proceedings for your team’s agency

7 Adminstrative Law 261 Spr 2012 Date (Class 14): Mon., February 27, 2012

Topic/ Issues: AGENCY RULEMAKING  Exceptions from Rulemaking Process  Informal Rulemaking Process

Class Preparation: MMS App. C 1395, APA §533(a)

MMS 567-73 U.S. v. Nova Scotia Food Products Corp

MMS 597-608 Sierra Club v. Hostel

MMS 609-17 Ass’n of National Advertisers v. FTC

Topic/ Issues: AGENCY RULEMAKING  Hybrid Rulemaking  Other Requirements

Class Preparation: MMS 609-17 Ass’n of National Advertisers v. FTC

MMS 581-88, Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council, Inc.

March 5 and 7, 2012

SPRING BREAK – NO CLASSES

8 Adminstrative Law 261 Spr 2012 Date (Class 16): Mon., March 12, 2011

Topic/ Issues: QUIZ: AGENCY ADJUDICATION AND RULEMAKING

Date (Class 17): Weds., March 14, 2012

Topic/ Issues: JUDICIAL REVIEW OF AGENCY ACTION: REVIEWABILITY  Reviewability  Statutory Preclusion  Decisions Committed to Agency Discretion by Law

MMS 899-910 Johnson v. Robison

MMS 916-926 Webster v. Doe and note 1

9 Adminstrative Law 261 Spr 2012 Dates (Classes, 18 ,19, 20 and 21): Mon., March 19, 2012, Weds. March 21, 2012, Mon., March 26, 2012, and Weds., March 28, 2012

Topic/ Issues: REVIEWABILITY

1. Timing: Finality, Ripeness, and Exhaustion

MMS 983-90 Dalton v. Specter

MMS Commentary (990--97)

MMS 997-1004 Abbott Laboratories v. Gardner

MMS 1004-09 Toilet Goods Ass’n v. Gardner

MMS App. C 1404, APA §704

MMS 1014-18 commentary

2. Standing

MMS 1033-35 Association of Data Processing Service Organizations, Inc. v. Camp

MMS 1047-57 Sierra Club v. Morton and notes 1-2

3. Causation, Redressability and Public Actions

MMS 1084-97 Lujan v. Defenders of Wildlife

MMS 1101-13 Massachusetts v. Environmental Protection Agency and notes 1-4

10 Adminstrative Law 261 Spr 2012 Date (Class 22): Mon. April 2, 2012

QUIZ: REVIEWABILITY

Date (Class 23): Weds. April 4, 2012

Topic/ Issues: JUDICIAL REVIEW OF AGENCY ACTIONS: SCOPE OF REVIEW: Introduction, Presumptive (but limited) Review, Questions of Law

MMS App. C 1402-05, APA §§ 701-706

MMS 798-812 Citizens to Preserve Overton Park and notes

Mon., April 9, FINAL DAY, EASTER RECESS

NO CLASSES

11 Adminstrative Law 261 Spr 2012 Date (Class 24): Weds., April 11, 2012

Topic/ Issues: SCOPE OF REVIEW: Questions of Law

Class Preparation: MMS 812-19: Chevron U.S.A. v. Natural Resources Defense Council, Inc.

Note: YOU CAN’T PRACTICE ADMINISTRATIVE LAW WITHOUT KNOWING THIS CASE!!!

MMS 819-35: United States v. Mead Corp. and notes 1-3

Date (Class 25): Mon., April 16, 2012

Topic/ Issues: SCOPE OF REVIEW: Substantial Evidence Test

MMS 848-52 NLRB v. Hearst

Date (Class 26): Weds. April 18, 2012

Topic/ Issues: SCOPE OF REVIEW: Recent Cases (TBD)

Class Preparation: TBD

12 Adminstrative Law 261 Spr 2012 Date (Class 27): Mon., April 23, 2012

GUEST SPEAKER

Date (Class 28): Weds., April 25, 2012

Topic/ Issues: FINAL CLASS WRAP-UP AND REVIEW

13 Adminstrative Law 261 Spr 2012

COURSE POLICIES:

Grading: Final grade will be determined as follows: Final exam (70%), 3 quizzes (10% each). The final exam will be closed book and will consist of one section of multiple-choice questions, and one section of essay questions, including one fact-based analysis problem. I reserve the right to raise or lower the final grade by one-half letter grade (e.g., B+ to A or B) based on students’ class preparation and participation.

Other Policies:  Laptops may be used in the classroom for note-taking only.  In the interest of free and open class discussion, in-class audio-taping generally is not permitted but can be arranged with advance permission in special circumstances causing a prolonged absence.  Attendance is mandatory. Students will be required to initial an attendance sheet at each class. If you do not sign in, you will be considered absent. Absences are governed by the Law School’s attendance policy (see Academic Rule Section V in the Announcements).  I will announce my regular office hours at the first class and post them on TWEN. I will also meet with students by appointment.  Additional reading material and other information will be communicated to students in class, by direct e-mail, or on the course TWEN site.

ACADEMIC HONESTY POLICY: The Rules of Professional Conduct for Law Students (Honor Code) applies to conduct of law students from the time a student registers in the law school until graduation. The Rules of Professional Conduct for Law Students are located in the Announcements and posted to the web. Allegations of violations of these rules, including allegations of academic dishonesty, may be brought before the Honor Board for investigation and possible adjudication. In addition to the Law School Honor Code, students are also bound by the University’s Academic Honesty policy found at http://policies.cua.edu/academicundergrad/intergrity/procedures.cfm . Academic honesty is expected of all students. Neither the Law School nor the University will tolerate violations of academic honesty

14 Adminstrative Law 261 Spr 2012