Administrative Law
Fall 2013
Professor Amanda C. Leiter
Leiter@wcl.american.edu
OHs Wed. 3:15-5, Room 470
COURSE INFORMATION
&
SYLLABUS
Casebook: Cass, Diver, Beermann, & Freeman (CDBF), 6th ed.
Office Hours: Wednesdays 3:15 – 5 or by appointment (leiter@wcl.american.edu)
Class Policies:
Attendance:

Class attendance is mandatory. Please let me know in advance if you need to be
absent for any reason.
Class Participation:

I will have tent-cards with your first name in large black letters on one side of
the card, and in large red letters on the other side.

Bring these to class every day and set them up with the black side facing me if
you’re prepared, or the red side facing me if you’re unprepared.

Each day, I will call on several students to participate in our discussion. Please
be prepared to discuss the facts and law of each case assigned for that day as
well as any cases or issues we carry over from the previous class discussion.

If you’re unprepared for class one day, make sure the red side of your card is
facing me. Be forewarned, though: I will likely call on you the next day.

Even if I don’t call on you, you are encouraged to volunteer in class, and/or to
ask questions as necessary.
PowerPoints:

I frequently use PowerPoints to display questions, answers, interesting tidbits
from discussion, etc. I will post these slides on the MyWCL site every few days,
so please don’t bother to reproduce the slides in your notes, as that will prevent
you from paying attention to our discussion.

If I haven’t posted slides for a few days, feel free to email and remind me.
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Administrative Law
Fall 2013
Professor Amanda C. Leiter
Leiter@wcl.american.edu
OHs Wed. 3:15-5, Room 470
Laptop Policy:

Some professors ban laptops in the classroom, but I would prefer not to do that.
You are adults and must determine for yourselves how best to use your
computers in law school and in your subsequent careers.

That said, if computer use is proving to be a distraction, I will reconsider
my laptop policy. Please, be courteous to me and your fellow students and
save your research, tv-watching, and virtual socializing for your free time.
Grading:

Field Observation: As detailed below, you must choose a federal agency to
“follow” over the course of the semester. SEE BELOW FOR DETAILS.

Exam: There will be a 4-hour, 100-point, open-book, in-class exam.
o One 20-point essay question will ask you to consider and evaluate a
general administrative law topic (like the relationship between agencies
and Congress) in the context of your chosen “field agency.”

Grading: Your course grade will be based principally on your exam grade, with
an adjustment for class participation (including satisfactory completion of the field
observation exercise).
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Administrative Law
Fall 2013
Professor Amanda C. Leiter
Leiter@wcl.american.edu
OHs Wed. 3:15-5, Room 470
Agency Field Observation:
From the start of the course, you should follow the issues we discuss as they arise in
actual day-to-day practice within a functioning federal agency or sub-agency.
Over the semester, you must:

Prepare to discuss your agency on specified days during class discussion (I will
notify you ahead of these discussions);

Do ONE of the following:
o Attend and write up a 1-page summary of an administrative proceeding
(such as a meeting, hearing, or adjudication) at your chosen agency; OR
o Research a policy issue currently pending before your chosen agency and
write a 4-page discussion of (a) the issue, and (b) relevant administrative
procedural questions that have arisen during the agency’s consideration of
the issue (for example: has the agency had to decide how to involve
interested members of the public? Has it held a public hearing? Has it
published a notice of proposed rulemaking? Has it been sued or held an
adjudicatory proceeding before an ALJ?); AND

Answer a 20-point question on the final exam that asks you to discuss a generic
administrative law issue in the context of your agency.
You may choose to track any federal agency or sub-agency, but not a state/local/foreign
agency. Agencies that students have successfully followed in the past include:

Environmental Protection Agency (EPA)

Department of Agriculture (USDA)

Federal Communications Commission (FCC)

Federal Election Commission (FEC)

Federal Trade Commission (FTC)

Food and Drug Administration (FDA)

Occupational Safety and Health Administration (OSHA)

Patent and Trademark Office (PTO)

Securities and Exchange Commission (SEC)
That said, you may choose a different agency if you’d like.
You need not acquire intimate knowledge of all the technical workings of your chosen
agency or sub-agency. Rather, I hope the exercise will help you get a sense of the reallife application of some of the esoteric doctrines we’ll be discussing.
EXAMPLE: As you begin your tracking exercise in the second week of class, you should
look up the organic statute(s) that created your agency, and the enabling statute(s)
that gave it particular powers and authorities. Then, when we turn to notices of
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Administrative Law
Fall 2013
Professor Amanda C. Leiter
Leiter@wcl.american.edu
OHs Wed. 3:15-5, Room 470
proposed rulemaking, you should check to see whether your agency has published any
such notices in the past 6 months. And so on through the semester.
After you know some basics about your agency, you may wish to cultivate a contact
within the agency who will be willing to talk to you on the phone every couple of weeks
to give you a continuing update on how the agency is confronting the various issues
being covered in class. (In addition to giving you insights about this class, your contact
may also prove useful in your later job search. Moreover, cultivating a contact at an
agency is itself a useful skill for future practice.)
The “deliverables” for this assignment are as follows:

By Wednesday, Sept. 11 – Please email my assistant, Kevin Schellhase,
kschell@wcl.american.edu, and let him know which agency or sub-agency you
have chosen to follow. You need not check your choice with me, though I’m
happy to discuss it with you if you have questions.
o In choosing your agency, note that you either need to attend one hearing
over the course of the semester or write a short research paper on an
issue pending before the agency. It is therefore worth your time to
navigate through your chosen agency’s website and find out (a) whether
the agency has some public proceedings scheduled between
September and early November, and/or (b) whether any interesting
issues are currently pending before the agency.
o Over the course of the semester, you may choose to narrow your choice
(for example, you may start out by signing up for the Securities and
Exchange Commission and decide later to focus on the SEC’s Division of
Enforcement).

By Wednesday, Nov. 27 – Complete the written assignment. This means you
must EITHER
o Attend and write up a 1-page summary of an administrative proceeding at
your chosen agency. Your write-up should include:

The name of the agency;

The name, date, time, and location of the proceeding;

The character of the proceeding (e.g. formal rulemaking, informal
adjudication, etc.);

A brief synopsis of the issues covered in the proceeding;

A brief discussion of how (if at all) “the public interest” figured into
the proceeding; and

A brief observation of any arrangement the agency made for public
participation in the proceeding (for example: Was the proceeding
publicly announced? Were members of the public invited to attend?
Did any members of the public choose to attend? If so, how many?
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Administrative Law
Fall 2013
Professor Amanda C. Leiter
Leiter@wcl.american.edu
OHs Wed. 3:15-5, Room 470
Were audience members able to ask questions or offer insights?
etc.).
o OR, ALTERNATIVELY, you may research and write up a 4-page
discussion of an issue currently pending before your agency. If you
choose this option, your write-up should include:

The name of the agency;

A discussion of the issue you chose to research (this should include
identification of the statute(s) under which your agency claims
authority to do whatever it’s thinking about doing);

Identification of the outside parties that are interested in the
outcome;

A brief synopsis of the different “sides” of the debate, and where
the identified outside parties stand; and

A discussion of how (if at all) the agency is factoring in “the public
interest” as it makes its decision.
o These will not be graded, but careful completion of one or the other written
assignment is required to ensure that you get full credit for classparticipation. Failure to complete the assignment will result in your course
grade being lowered by a full third-of-a-grade (e.g. from an A- to a B+).

Several times over the semester, we will spend some time at the end of class
discussing your field observations on the topic at hand (e.g. how your respective
agencies handle notices of proposed rulemaking, etc.). We will first break into
groups of 4-6, so you can share your observations with your fellow students;
then, when we come back together, I’ll ask a few of the groups to share your
discussion with the rest of the class.

Finally, the exam will include one 20-point question (out of 100-points) that asks
you:
o To identify the agency you followed over the semester;
o To give a few concrete examples of rulemakings or adjudications in which
your agency is presently engaged; and
o To analyze a generic administrative law topic (for example: congressional
oversight of agency action, or judicial review of agency action, or public
participation in agency action) in the context of your chosen agency.
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Administrative Law
Fall 2013
Professor Amanda C. Leiter
Leiter@wcl.american.edu
OHs Wed. 3:15-5, Room 470
SYLLABUS
Topic
1
2
3
I.
Introduction
A. What is administrative law?
B. A walk through the APA
C. Intro to agency choice of form
II. Legislative Control of Administrative Agencies
A. Authorization: The Problem of Delegation
B. Revision: The Legislative Veto
4
C. Appropriations: The Line Item Veto
D. Oversight: Hearings and Legislation
Reading
 Reading A (posted
on MyWCL)
 Reading B (posted
on MyWCL)
 APA §§ 551, 553558, 701-706
(CDBF 982-83,
988-94, 995-97)
 CDBF 15-33
 CDBF 34-62
 SKIM APA ch. 8
(CDBF 997-1002)
III. Executive Control of Administrative Agencies
5
A. Appointment
 CDBF 62-97
B. Removal
C. Independent Agencies
6
7
IV. Judicial Control of Administrative Agencies
A. Standards of Review under the APA
1. A&C Review of Questions of Fact or
Policy
 Reread APA ch. 7
(CDBF 995-97)
 CDBF 111-127
 CDBF 127-155
2. Judicial Review of Questions of Law
8
a) Pre-Chevron
 CDBF 155-181
b) Chevron
9
10
[Chevron continued]
c) The Mead Mess
3. Arbitration and the Substantial Evidence
Standard
B. Judicial Remedies for Unlawful Agency Action
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 CDBF 181-198
 CDBF 199-229
Administrative Law
Fall 2013
Topic
Professor Amanda C. Leiter
Leiter@wcl.american.edu
OHs Wed. 3:15-5, Room 470
SYLLABUS
Reading
C. Barriers to Judicial Review
1. Jurisdiction
11
2. Reviewability
 CDBF 231-261
a) Agency Action
b) Statutory Preclusion
12
13
14
c) Committed to Agency Discretion
3. Standing
 CDBF 261-284
 CDBF 297-345
4. Ripeness
 CDBF 345-369
5. Exhaustion
V. The Agency Toolbox
A. Choice of Form
15
1. Due Process & Statutory Constraints on
Choice of Form
 Reread APA ch. 5
(CDBF 982-94)
 CDBF 379-397
2. Agency Authority to Issue Rules
16
3. Agency Authority to Make Policy by
Order after Adjudication
 CDBF 397-414
17
4. Agency Authority to Make Policy by
Manuals and Guidance Documents
 CDBF 414-424
18
19
 Reread APA § 553
(CDBF 988-89)
B. Rulemaking
1. Procedures: Notice & Comment
2. Political Influence on Rulemaking
3. Impartiality of the Rulemaker
 CDBF 424-447
 CDBF 448-474
20
4. Hybrid Procedures
 CDBF 474-490
21
5. Exemptions from 553
 CDBF 490-513
22
6. Alternatives to 553
 CDBF 513-528
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Administrative Law
Fall 2013
Topic
Professor Amanda C. Leiter
Leiter@wcl.american.edu
OHs Wed. 3:15-5, Room 470
SYLLABUS
Reading
7. Analytical Tools to Formulate Policy
23
a) Presidential Oversight
 CDBF 528-554
b) Cost-Benefit Analysis
24
25
c) Impact Statements
C. Adjudication
1. Agency Authority to Adjudicate
 CDBF 554-568
 CDBF 569-580
26
2. Due Process: Application
 CDBF 580-616
27
3. Due Process: Hearing Rights
 CDBF 616-631
28
4. Due Process: Hearing Rights, cont’d
 CDBF 631-677
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