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Administrative Lawt SURVEY ARTICLES Administrative Lawt by Johnny C. Burris* James M. Landis, in many ways the prophet of the modern concept of administrative law and process both in theory and practice,' commented in 1938 that: The last century has witnessed the rise of a new instrument of govern- ment, the administrative tribunal. Without too much political theory but with a keen sense of the practicalities of the situation, agencies were cre- ated whose functions embraced the three aspects of government. Rule- making, enforcement, and the disposition of competing claims made by contending parties, were all intrusted to them. As the years passed, the process grew.2 What was true in 1938 is even truer today. The process continues to grow at a rate which defies the ability of the most diligent lawyer to keep track of developments.3 This article is a continuation of earlier efforts4 designed t Copyright 0 1988 by Johnny C. Burris. * Associate Professor of Law, Nova University Center for the Study of Law. University of Kentucky (B.G.S., 1975); Salmon P. Chase College of Law, Northern Kentucky University (J.D., 1978); Columbia University School of Law (LL.M., 1984). 1. T. McCitw, PRoPtirs OF REGULATION 153-209 (1984); D. RrrcHiE, JAMES M. LANDIS (1980). 2. J. LANDIS, THE ADMINISTRATIVE PROCESS 1-2 (1938) (emphasis added). 3. See, e.g., S. BREYER, REGULATION AND ITS REFORM 1-2, appendix 1 (1982); K. DAVIs, ADMINISTRATIVE LAW TEXT 3-4 (3d ed. 1972). It may also defy the ability of the courts and particularly the Supreme Court to continue to perform the traditional role assigned to them in the administrative process. See Strauss, One Hundred Fifty Cases Per Year: Some Impli- cations of the Supreme Court's Limited Resources for Judicial Review of Agency Action, 1057 1058 MERCER LAW REVIEW [Vol. 39 to assist members of the bar in dealing with this wealth of new informa- tion generated each year in the administrative law area. The goal is to provide a manageable yet comprehensive and critical, annual overview of recent significant developments5 in Eleventh Circuit caselaw dealing with administrative law.6 I. CONSTITUTIONAL AND JURISDICTIONAL DEVELOPMENTS A. Nondelegation Doctrine One of the fundamental problems in federal administrative law is the problematic nature of the claim to constitutional legitimacy of the mod- ern administrative agencies. 7 For many years this problem was resolved 87 COLUM. L. REV, 1093 (1987). Developments occur not just in the context of judicial deci- sions but on a variety of other levels; agency adjudicatory decisions, agency informal adjudi- catory decisions, agency rules, agency rule proposals, and agency licensing decisions to name but a few, all of which can have a tremendous impact on the resolution of matters of con- cern to a client. 4. Burris, Administrative Law, 38 MERCER L. REv. 991 (1987); LeBel, Administrative Law, 35 MERCER L. REv. 1029 (1984). 5. The Eleventh Circuit decided only one Freedom of Information Act case this past year. In Clarkson v. IRS, the court held that the IRS properly denied Clarkson access to the records requested because the records related to an ongoing criminal investigation concern- ing a tax protestor's activities. 811 F.2d 1396 (l1th Cir. 1987). The Freedom of Information Act has generally offered only very limited access to IRS records. See generally Church of Scientology v. IRS, 108 S. Ct. 271 (1987). The Eleventh Circuit decided only one Equal Access to Justice Act case this past year and it did not break any new ground. Stratton v. Bowen, 827 F.2d 1447 (11th Cir. 1987). Cf. Mims v. Teamsters Local No. 728, 821 F.2d 1568, 1570-71 (11th Cir. 1987) (approved of granting attorney's fees under the "common benefit" exception in a private action to enforce the Labor-Management Reporting and Disclosure Act). See generally Hall v. Cole, 412 U.S. 1 (1973). 6. The Eleventh Circuit decided 122 cases this past year in the administrative law area. Similar efforts for the other United States Circuit Courts of Appeal and state courts are published by a variety of law reviews. E.g., Schwartz, Administrative Law Cases During 1986, 39 ADMIN. L. REv. 117 (1987); Michael, Administrative Law, 64 DEN. U.L. REv. 105 (1987) (10th Circuit); Bienenfeld, Administrative Law, 33 WAYNE L. RzV. 259 (1987) (6th Circuit); King, Administrative Law, 18 TEx. TECH L. REv. 237 (1987) (5th Circuit); Holden & Craig, Administrative Law, 32 Loy. L. REv. 557 (1986) (5th Circuit); Vaughan, Federal Employment Decisions of the Federal Circuit, 36 AM. U.L. REV. 825 (1987); Morrison, Ad- ministrative Law, 89 W. VA. L. REv. 475 (1987) (West Virginia); Black, Collins & Golden, Administrative Law, 46 MD, L. REv. 541 (1987) (Maryland); Schwartz, Administrative Law, 38 SyRAcusE L. Rev. 1 (1986) (New York); Manis & Cohen, Administrative Law, 38 MERCER L. REv. 17 (1986) (Georgia); Malley, Administrative Law, 55 Miss. L.J. 735 (1985) (Missis- sippi). Two excellent recently published single volume general sources of introductory infor- mation concerning administrative law are W. Fox, UNDERSTANDING ADMINISTRATIVE LAW (1986) and R. PERcE, S. SHAPIRO & P. VERKUIL, ADMINISTRATIVE LAW AND PROCESS (1985). 7. See, e.g., J. FREEDMAN, CRISIS AND LEGITIMACY: THE ADMINISTRATIVE PROCESS AND AMERICAN GOVERNMENT 6-94 (1978). 1988] ADMINISTRATIVE LAW 105,9 based upon the historic fact that the rise of the modern administrative state corresponded with the decline of the doctrine of separation of pow- ers and the related doctrine of nondelegation. In the post New Deal world, the nondelegation doctrine ceased functionings as a check on con- gressional power to delegate quasi-legislative 0 and quasi-judicial 1 power to the executive branch and independent agencies." Courts turned in- stead to the issue of agency accountability, a secondary principle derived from traditional nondelegation doctrine, as a means for the courts to check abuses of extraordinarily broad delegations of authority.s When the courts focus on the accountability aspect of the nondelegation doc- trine, they are concerned with the issue of whether an agency's action was consistent with its statutory grant of authority. The purpose of the in- quiry is to permit the courts to check abuses of authority by agencies without declaring the underlying statutory delegation unconstitutional. "The lesson of modem nondelegation doctrine cases is that courts should ... declare agency action illegal because it is either ultra vires or incon- sistent with the statutory purpose, and should not hold a statute uncon- 14 stitutional as a violation of the nondelegation doctrine. Two recent Supreme Court decisions1 called into question the continu- ing validity of the conclusion that the nondelegation doctrine, outside of 8. See, e.g., Sunstein, Constitutionalism After the New Deal, 101 HAtv. L. Rzv. 421, 430.36 (1987); Burris, supra note 4, at 993-95. 9. The decisions in Yakus, Zemel, and Amalgamated Meat Cutters demonstrate how far the courts stretched the flexible concepts of the traditional nondelegation doctrine in order to avoid holding statutes unconstitutional for violating the principle of separation of powers. Yakus v. United States, 321 U.S. 414 (1944); Zemel v. Rusk, 381 U.S. 1 (1965); Amalgamated Meat Cutters v. Connally, 337 F. Supp. 737 (D.D.C. 1971). A recent example of a very vague delegation of authority which was implicitly found valid by the Eleventh Circuit is Peoples Natl Bank v. Meredith, 812 F.2d 682, 685 (11th Cir. 1987) (extraordinary vague delegation, virtually no standards set forth). But see Peoples Nat'l Bank v. Meredith, 812 F.2d 682, 686-87 (11th Cir. 1987) (Clark, J., dissenting & concurring in part). 10. Humphery's Executor v. United States, 295 U.S. 602, 628 (1935). 11. See Commodity Futures Trading Comm'n v. Schor, 474 U.S. 1018 (1986); Thomas v. Union Carbide Agriculture Prods. Co., 473 U.S. 568 (1985); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). 12. Arguably the nondelegation doctrine never was an effective check on congressional power to delegate these functions except for a few cases in the 1930s. Burris, supra note 4, at 993 n.13 & 995; 1 K. DAvis, ADMINISTRATiVE LAW Trans 149-50 (2d ed. 1978). In 1974 the Supreme Court noted that these cases from the 1930s have been "virtually abandoned by the Court for all practical purposes." National Cable Television Ass'n v. United States, 415 U.S. 336, 352-53 (1974). 13. Burris, supra note 4, at 995-1000. 14. Id. at 995. Cf. K DAvis, supra note 12, at 198-204, 206-16 (argues that nondelegation can perform a necessary and useful function if reformulated to protect against unnecessary and uncontrolled exercise of discretionary powers by agencies). 15. INS v. Chadha, 462 U.S. 919 (1983); Bowsher v. Synar, 106 S. Ct. 3181 (1986). 1060 MERCER LAW REVIEW ,[Vol. 39 the accountability aspect of the doctrine, is one of the moribund doc- trines" in administrative and constitutional law. In the process of doing so, the Supreme Court reopened for serious consideration the question of whether administrative agencies are consistent with our constitutional structure of checks and balances established by the separation of powers. In both these decisions, the Supreme Court adopted a formalistic ap- proach to the resolution of separation of powers issues," which was inex- tricably linked to the continuing viability of the resolution the nondelega- tion doctrine had provided to the question of the constitutional legitimacy of administrative agencies.' This approach was seen by some commentators as reviving what were thought of as long settled issues con- cerning the legitimacy of delegation of authority to administrative agencies.'s In INS v. Chadha,s0 the Supreme Court declared unconstitutional the legislative veto, because it violated the formal procedures established in Article I of the Constitutions" regulating the manner in which Congress 16.
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