Deck 5: Administrative Law

Question 1

The Privacy of Joe the Plumber
In 1997, the Internal Revenue Service (IRS) disciplined employees who, out of curiosity, were looking up tax returns of famous people to see who made how much income. The IRS fired 23 employees, disciplined 349, and provided counseling for 472. During the 2008 election, the director of the Ohio Department of Job and Family Services ordered employees to look up the child support payment record of Samuel Joseph Wurzelbacher (Joe the Plumber), a man who had raised a controversial issue to then-candidate Barack Obama. Helen Jones-Kelley, the director, was a donor to the Obama campaign. Employees in the office complained about the search, and the director said, "Our practice is when someone is thrust quickly into the public spotlight, we often take a look." The Ohio Inspector General investigated the use of state computers for the search.
Is this practice so bad? What is wrong with just looking at data accessible at work? Why are we concerned about selective research about private citizens? Does it matter that the information was not released to the public?

Answer 1

Under the Freedom of Information Act (FOIA), requests that would reveal trade secrets or information about government worker's personnel records are prohibited. Also, the act prohibits federal agencies from communicating any records to another agency or person without obtaining that person's consent.
As per the mentioned scenario, the director of O Department ordered employees to search data records of Mr. S, a plumber, who had raised a controversial issue to then candidate B Obama. This practice is completely unlawful under FOIA.
The FOIA act does not allow any company or federal agencies to search the data records of their subordinates without seeking their consent. A person is not permitted to peep at any data accessible at work.
As per FOIA, the citizens have an access to specific agency information and require agencies to publicly disclose their procedures and decisions. Moreover, the unpublished agency information can be obtained only by an FOIA request. This is why selective research about private citizens is important.
It would matter if the agency information is not released to the public as people working under them would be unaware of the company rules and regulations. Moreover, there are instances where company personnel needs agency data for specific projects.

Question 2

Residents of New York City who were receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) brought a class action suit alleging that the New York officials responsible for the administration of the program were terminating aid to them without notice of the termination or without a hearing prior to the termination. The residents challenged the actions of the state officials as violative of their constitutional right to due process. The procedures for termination changed after the complaints of these residents, and notices and hearings were provided. What types of procedures would be necessary to protect the residents' due process rights? Must a court afford these procedures? [ Goldberg v. Kelly , 397 U.S. 254 (1970).]

Answer 2

Aid to Families with Dependent Children (AFDC) is a federally assisted program, which gives financial aids to the residents of the New York City. The residents of the New York City filed a suit against the administrative agency of the program for terminating the aid without notice or hearing and called it a violation of the constitutional rights.
The administrative agency responsible for running the AFDC program can bring some rulemaking to protect the rights of the residents of the New York City. The administrative agency must warn the officials not to violate the constitutional rights of the people. The notices and hearing should be brought before the termination of the aid.

Question 3

the Forged Comments
When the Commodities Futures Trading Commission (CFTC) proposed new rules to regulate the sales of derivatives and disclosure requirements in those sales, it received hundreds of comment letters. However, an investigation revealed that many of those letters were forged comment letters that were purportedly from an H.J. Heinz Company executive; a Burger King Corporation franchise; and at least five other Arkansas-based officials, including a judge, a county sheriff, and one mental health counselor. The letters contained identical passages criticizing banks for their "cartel-like control" of the $583 trillion derivatives market. The CFTC contacted the purported authors of the letters and confirmed them as forgeries. One agency observer noted, "This is just like the fake reviews we read all the time on the Internet from product buyers and services users. Everyone expects the seller to make these up or at least ask others to write letters for them." Is he right? What is the problem with the forgeries? Is this type of input different from e-Bay seller evaluations?

Answer 3

Asking any other person to write appreciation letters or reviews for company officials is unlawful. However, if an individual provides reviews or share concerns about the federal state rules and regulations genuinely, it is lawful.
As per the mentioned scenario, CFTC (Commodities Futures Trading Commission) received several forged comment letters about their proposed new rules to regulate the sales derivatives. The reviewers were mainly Mr. H, the company executive of B King, five Arkansas-based officials and several others.
The customers or product reviewers who provide fake feedback about any item online is unlawful and the offender is liable to be sued by the regulatory authority. This type of forged practice is unethical and the violator is liable to be penalized.
The problem with forgeries is that they are bribed by company officials to write good reviews about the sellers and in return they are given good monetary favors.
Moreover, the forgeries are never acted upon and are always given blind eye. The content regulatory authority should keep a check on these illicit activities and sue the offender with immediate action.
The inputs provided by product buyers on any online shopping websites are at most of the times paid expert reviews/feedbacks. The Content regulatory authority has come across several similar feedbacks that were on the same page.
In some cases, the inputs provided from e-bay seller evaluations are different. The customer feedback generally depends on the growth of the business. If the company is doing exceptionally well, then they would not resort to illegal means in promoting their business. However, if the company is facing hiccups, then they may resort to illicit means in advertising their products to the maximum potential customers.

Question 4

In 1979, Congress passed the Chrysler Corporation Loan Guarantee Act to keep the Chrysler Corporation in business and out of bankruptcy. The act established the Chrysler Corporation Loan Guarantee Board, made up of top federal officials, to oversee Chrysler's bailout. The meetings of this board necessarily involved sensitive discussions about Chrysler and its status. Would the meetings be covered under the Sunshine Act and thus open to the public? [Symons v. Chrysler Corp. Loan Guarantee, 670 F.2d 238 (D.C. 1981).]

Question 5

Rhonda Kallman founded a company that produces Moonshot 69, a caffeinated beer. Each bottle of beer contains about twice as much caffeine as a can of Pepsi. In 2011, Ms. Kallman, along with three other manufacturers, was served with a cease and desist notice from the FDA to remove the caffeine from her beer or stop selling the product. Ms. Kallman has said that what the FDA is doing is like Prohibition 2010 and that it has no authority to regulate the sale or production of alcohol. She also indicates that Moonshot 69 is not an energy drink like those that are subject to FDA regulation. She says that agencies should regulate and not ban products. What information could you share with Ms. Kallman that would help determine what the FDA is trying to accomplish?

Question 6

Sun-Diamond Growers is a trade association that engaged in marketing and lobbying activities on behalf of its member cooperatives, which were owned by approximately 5,000 individual growers of raisins, figs, walnuts, prunes, and hazelnuts. The United States charged Sun-Diamond and Mike Espy, the former Secretary of Agriculture, with giving Mr. Espy approximately $5,900 in illegal gratuities: tickets to the 1993 U.S. Open Tennis Tournament (worth $2,295), luggage ($2,427), meals ($665), and a framed print and a crystal bowl ($524). Sun-Diamond had an interest in favorable treatment from the Secretary at the time it bestowed the gratuities. Sun-Diamond's member cooperatives participated in a grant program administered by the Department of Agriculture to promote the sale of U.S. farm commodities in foreign countries. Sun-Diamond also had an interest in the federal government's regulation of methyl bromide, a low-cost pesticide used by many individual growers. The jury convicted Sun-Diamond, and the District Court sentenced the company to pay a fine of $400,000. The Court of Appeals reversed the conviction on Count 1. The Supreme Court granted certiorari. What should the court decide? Did Sun-Diamond violate the law by giving the gifts? Did the Secretary of Agriculture violate the law by accepting the gifts? Is this bribery? Mr. Espy was a former member of Congress before becoming Secretary of Agriculture. Would it be different if Sun-Diamond had given him gifts as a member of Congress? Are administrative agency employees permitted to accept gifts from those affected by their regulations and policies? What types of guidelines would you develop for your employees in their interactions with administrative agency employees? [U.S. v. Sun-Diamond Growers of California, 526 U.S. 398 (1999).]

Question 7

Three Chippewa Indian tribes submitted applications to the U.S. Department of the Interior seeking approval to convert a greyhound racing facility in Hudson, Wisconsin, to an off-reservation casino.
On June 8, 1995, the Indian Gaming staff in the department issued a draft report recommending approval of the Chippewa application.
While a final decision on the application was pending in the agency, Harold Ickes (then-White House Deputy Chief of Staff for Policy and Political Affairs) received a letter from Patrick O'Connor, a lobbyist for tribes that opposed the Chippewa application. The O'Connor letter explained that the Chippewa decision was significant, that the opposition tribes were important contributors to the Democratic Party, and that the Chippewa tribes were Republican supporters. In addition, Donald Fowler, the Democratic National Committee chairman, met with Mr. Ickes and "discussed the basis for the opposition to creating another gaming casino." Further, faxes regarding the application were exchanged between White House staff and Department of the Interior staff.
On June 27, 1995, the Chippewa application was denied. The decision cited "community opposition" but did not incorporate or discuss the lengthy and detailed reports the staff had prepared.
Interior Secretary Bruce Babbitt told Paul Eckstein, a lawyer for the Chippewas and a lifetime friend of Mr. Babbitt, that Mr. Ickes required him to issue the decision. Following an investigation, Mr. Babbitt was cleared of any violations of the law. However, what ethical issues arise when political activities cross into administrative proceedings? How would the Chippewas perceive this series of events?

Question 8

Why is the problem with the experts' objections important in determining whether DOI's moratorium was arbitrary and capricious?

Question 9

What is the significance of the difference between the factual information in the report and the terms of the moratorium?

Question 10

What does the court see as alternatives to the moratorium?

Question 11

What authority is given to the EPA by statute? Why does the EPA not want to exercise authority over greenhouse gases?

Question 12

Why does the majority conclude that greenhouse gases are included within that authority?

Question 13

List the arguments the dissent makes against requiring the EPA to take action on greenhouse gases. What do you learn about the role of the issue of global warming in the dissent's analysis of the case versus the analysis of the majority?