Chapter #9- Administrative Discretion In Enforcement & Licensing

1. Chapter #9- Administrative Discretion In Enforcement & Licensing

2. Why Should Agencies have somuch Discretion?

3. Sources of Discretionary Authority • Broad legislative or executive delegations of authority to administrators; • Expertise in particular field; • Experience in a specific area of activity; • Political support from groups and individuals both in and out of the government; • The intergovernmental factor; • The move to entrepreneurial government; • Emergency conditions.

4. Ways to keep the Agency’sDiscretion in Check • Judicial Review (See FDA Case) • Tort Liability Suites (Suing Government Employees for Leak of CIA Operative’s identity by Former Agent) • Criminal Prosecutions (Prosecuting Prosecutor in Duke Lacrosse Date Rape Case) • Contract-Related Actions (Suing Blackwater for IRAQ civilian deaths) • Injunctive Relief (Court orders to stop Fla. Dept. of Agriculture’s eradication of Citrus Trees)

5. Some examples of Agency Discretion in Various Areas Enforcement & Licensing

6. Enforcement • Enforcement is the last step an agency can take to achieve its policy goals. It could lead to “sanctions” which are defined in section 551(10) of the APA as: • Prohibition, requirement, limitation, or other condition affecting the freedom of a person; • Withholding of relief; • Imposition of penalty or fine; • Destruction, taking, seizure or withholding of property; • Assessment of damages, reimbursement, restitution, compensation, costs, charges or fees; • Requirement, revocation or suspension of a license; or • Taking other compulsory or restrictive action. Equal Protection Issues – Beware!

7. Enforcement Techniques: • Consent Settlements: negotiated settlement codified in an administrative order. (form of an ADR) • Advisory Opinions: Issued upon petition from an affected party to advise if activity is lawful and offers guidelines; • Industry Guides: Do not have the force of law, but agency solicits industry norms and recommends to industry participants to follow/adopt; • Cease & Desist Orders: “negative order” which specified certain actions which the party must not take in the future. • Affirmative Disclosure & Order Corrective Orders: if agency feels that public has been mislead—agency can force party to correct mis-information

8. Citizen Initiation of Agency Enforcement • Often private citizens and interest groups have the right to bring their own actions in court to enforce statutory policies for which administrative agencies are responsible. Statutes give “standing” to 3rd parties to file enforcement actions (often in environmental laws). Also, these types of statutes MAY give 3rd parties the ability to directly sue private parties for remedies. Is this A good Idea?

9. JUDGE JUDY READY TO RULE---- Petitioners have “standing” under This law to file an Action and Agencies failure to do anything Is like a denial—the Issue is “ripe”. Agency Must Act. Case: Environmental Defense Fund v. Ruckelshaus. P. 310 Under the FIFRA, The US Secretary of Agriculture is charged with suspending use of chemicals in Treatment of crops when the effect amounts to “unreasonable adverse effects on the Environment”. Petitioners ask agency to suspend use of DDT. Agency “sits” on Request and does not issue an order either way. Petitioners sue to force agency to Act and agency claims petitioners have no “standing” and not “ripe” for challenge.

10. JUDGE JUDY READY TO RULE---- There is jurisdiction On “ongoing” pollution Activities and NOT Past conduct—case Remanded to see If there are any “ongoing” violations. Case: GWALTNEY OF SMITHFIELD V. CHESAPEAKE BAY FOUNDATION & NATURAL RESOURCES DEFENSE COUNCIL. P. 313 Under the Clean Water Act of 1972, private citizens sue meat packing company. Company defends Stating there is no jurisdiction of the court to entertain such a case and the law Only allows for private citizen’s suits for “current” and “ongoing” pollution, not Past.

11. Reasons for Administrative LicensingProcedures • Control of Public Resources • Fair Allocation of Limited Resources • Assurance of Competence in Complex and Dangerous Occupations • Maintenance of Public Order

12. Licensing is adjudication • Thus “Due Process” protections kick in. • The APA section 558 requires formal adjudication for denial, termination or revocation of licenses. • Often those who investigate also make an important decision about the termination of licenses. This is called “combination of functions”

13. The combination of An administrative agency Of being both the judge And the investigator does Not, alone, rise to the level Of a Due Process violation JUDGE JUDY READY TO RULE---- Case: WITHROW ET AL. V. LARKIN. P. 416 State Physician licensing board Conducted an investigation hearing and then decided to hold another hearing to Decide if the physician’s license should be revoked. Physician claims that this board “wearing two hats” in the investigation and adjudication process is a violation of The 14th Amendment “Due Process” and fundamentally unfair….

14. Her personal living Circumstances have no rational Relationship to the fitness To practice law. Board should issue license JUDGE JUDY READY TO RULE---- Case: CORD V. GRIBB. P. 420 Attorney for 13 months applied in the jurisdiction Of Virginia for a Bar license. The Virginia Board of Bar Examiners declined her Application b/c of “bad morals” b/c she was living with a man but not married.