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Administrative Law
University of South Carolina School of Law
Holley-Walker, Danielle R.

ADMINISTRATIVE LAW – HOLLEY WALKER
Office hours Wed 10-12 and Thurs 2-4
 
Introduction
·         Administrative Agencies and Our System of Gov’t
o       Definition: The study of the place of administrative agencies in the American legal system
o       Federal Agencies are known as the 4th branch of the gov’t
o       Statutes create and enumerate the powers of each agency
o       Two types of Agencies
§         Executive
·         Headed by person appointed by the president
·         At will of the president
·         Member of president’s cabinet
·         Ex. HUD; Dept of Homeland Security; Treasury; Dept of Justice
§         Independent
·         Headed by a 3 or 5 member board
·         Must be represented by both parties (republican and democrat)
·         Ex. FDA, SEC, FCC, FAA
o       ICC v. Cincinnati, New Orleans, and Texas Pacific Railway Co.(1897)
§         ICC was the first regulatory agency created
·         Created by the Interstate Commerce Act (ICA)
§         3 Options Congress had to prescribe rates
·         Prescribe them itself
·         Prescribe duty to a tribunal
·         Leave it to the companies, but subject to regulations and restrictions
§         Congress creates ICC – gives them the purpose of creating rates which are reasonable and just. 
·         The role of gov’t here is to curb the price of RR rates – to protect the common man
·         The Court was skeptical of agencies at the time
·         It denied the ICC the power to regulate RR rates bc it wasn’t explicitly stated in the ICA
·         The Court said Congress would have to specifically enumerate what powers an agency had – it would not be able to imply powers from broad language
o       Court did this bc agencies were new and wanted to limit federal agencies and keep powers not enumerated to them with the states
o       Pennsylvania v. West Virginia(1923)
§         Whether WV can restrict pipeline co.’s from selling natural gas to customers outside the state
§         Court held it was not well suited to decided on issue above
·         The task is very complex – even a special panel or agency specifically created for this issue could fail at reaching at correct decision here
·         Highly technical issue; need for expertise in the area/field
·         Research and information gathering needed to be knowledgeable about the field
o       National Broadcasting Co. v. United States(1943)
§         What is the scope of authority for an admin agency
§         Whether the FCC had the authority to create the Chain Broadcasting Regulations
§         FCC created by the Federal Communications Act of 1934
§         The need for regulation by the FCC regarding radio broadcasting is the limited number of frequencies available and the booming radio industry
§         FCC has a licensing power – to be used for the “public interest, convenience, or necessity”           
·         The “public interest” is the main focus of the court
o       Court defined this as the “larger and more effective use of radio”
o       United States v. Southwestern Cable Co. (1968)
§         Whether the FCC has the authority to regulate cable tv (CATV)
§         Cable’s argument was they didn’t fall under either of the categories the FCC had the authority to regulate—1) common carriers and 2) broadcasters
·         Cable was a little bit of both but not wholly in either
§         FCC argues that nothing in the FCA’s statutory language limits the FCC to only being able to regulate the two categories above
·         The court agrees with this
§         This case is seen as the height of the Court’s allowance of regulatory authority on behalf of admin agencies.
·         From here it begins to decline back to where it was with the earlier cases when the agencies are given less power and especially implied or broad powers which aren’t enumerated
o       FDA v. Brown & Williamston Tobacco Corp. (2000)
§         FDA trying to regulate tobacco as a drug—determining that nicotine is a drug will allow the FDA to regulate it and essentially ban it if it wants
§         Court held Congress has directly spoken on this issue and precluded the FDA from regulating tobacco products
§         Began the decline in powers given to agencies by the courts
 
·         Adjudication and Rulemaking: Introduction
o       Agency decision making falls into 1 of 4 categories
Informal          Formal
§553           §553(c)
                    556, 557
 
§555, DPC §554, 556
                     557
Rulemaking           
 
 
Adjudication
o       Londoner v. City and County of Denver(1908)
§         14th argument – due process rights violated by assessment of tax for street paving
§         Entitled to a hearing to dispute the tax under local ordinances, but hearing wasn’t given
§         City council met as a board, w/o a hearing by opponents, and ruled on the matter
§         Why Due Process Applies
·         Type of issue being decided—grievance against gov’t (local/state)
·         Conceded by Colorado statute
·         Property deprived
·         Number of persons affected; had this tax been spread evenly to all people of Denver then its likely not an issue, but this only affects a small number of people (equal protectio

ement payments where regulations prescribing computation methods did not reach correct result in individual cases.
§         Supreme Court held:
·         retroactive rule could not be upheld as exercise of Secretary’s authority to make retroactive corrective adjustments
·         retroactive rule was also invalid under Medicare Act’s general grant of authority to promulgate cost-limit rules
 
·         Informal and Formal Rulemaking Procedures
·         Notice and Comment: Informal Rulemaking
o       Chocolate Manufacturers Assn. v. Block (4th Cir. 1985)
§         Manufacturers of chocolate sought review of rule promulgated by Food and Nutrition Services of Department of Agriculture that prohibited use of chocolate flavored milk in federally funded special supplemental food program for women, infants and children
§         Court held that Department’s proposed rule making did not provide adequate notice that elimination of flavored milk would be considered in rule-making procedure
§         Logical Outgrowth Test
§         Notice and Comment period:
o       US v. Nova Scotia Food Products Corp.(2d Cir. 1977)
§         Government brought action to compel processor of hot smoked whitefish to comply with current good manufacturing practice regulations.
§         The United States District Court enjoined production of whitefish except in compliance with FDA requirements, and appeal was taken.
§         The Court of Appeals held that:
·         (1) FDA’s failure to disclose to interested persons the scientific data upon which it relied in promulgating regulation establishing time-temperature-salinity prescriptions for processing smoked whitefish was procedurally erroneous, and
·         (2) FDA’s general statement which was issued in connection with promulgation of regulation and which left unanswered question concerning the necessity of formulating a rule with specific parameters applicable to all species of fish and which failed to discuss the comment that to apply proposed requirements would destroy the commercial product, was inadequate
o       Both substantive and procedural