-read chapter 5 1. Summarize Sackett v. EPA at the end of the chapter. 2. Choose any government agency (CIA, FCC, FDA, SEC, DEA etc. ) a. Describe the agency's function. b. When was it established and for what purpose. c. Has it been a success or a failure based on your research? d. Find and summarize an article or case about the agency you chose, either showing effective enforcement, or corruption and over-stepping activity. -cite your references!

-read chapter 6. 1. summarize State of South Dakota v. Morse at the end of the chapter. 2. Research a recent high profile criminal case (actor, athlete, mogul etc.) Summarize the case history and current standing. -Cite at least 2 references.

CHAPTER 4 CONSTITUTIONAL LAW number and no expiration date. Amex is able to sell TCs for their face value because Amex's contract with TC owners gives Amex the right to retain, use, and invest funds from the sale of TCs until the date the TCs are cashed. All States have unclaimed property laws requiring abandoned property to be turned over to the State while the original property owner still maintains the right to the property. The purpose of unclaimed property laws is to provide for the safekeeping of abandoned property and then to allow the rightful owner to claim the aban- doned property. As these laws are applied to TCs, Amex sends the funds held as TCs to the State as unclaimed Alabama was one of only sixteen States that permitted com- mercial hazardous waste landfills. From 1985 through 1989, the tonnage of hazardous waste received per year more than doubled. Of this, up to 90 percent of the hazardous waste was shipped in from other States. In response, Alabama imposed a fee of $97.60 per ton for hazardous waste gener- ated outside Alabama compared with a fee of $25.60 per ton for hazardous wastes generated within Alabama. Chemical Waste Management, Inc., which operates a commercial hazardous waste land disposal facility in Emelle, property with the serial number, amount, and date of sale since the name of the TC owner is not known. 'When one of these TCs is cashed, Amex seeks to reclaim those funds from that State. In New Jersey, the Treasurer returns the funds with interest. Until recently, all States had a fifteen-year abandonment period for travelers checks. In 2010, New Jersey passed Chapter 25, shorten- ing the abandonment period for travelers checks to three years. Amex challenges the constitutionality of the amendment. Explain whether the amendment violates any of the following provisions of the U.S. Constitution: (a) Due Process Clause, (b) Contract Clause, (c) Takings Clause, and (d) Commerce Clause. Alabama, filed suit asserting that the Alabama law violated the Commerce Clause of the U.S. Constitution. a. What arguments could Chemical Waste Management, Inc,, make in support of its claim that the statute is unconstitutional? b. What arguments could Alabama make to defend the constitutionality of the statute? . Who should prevail? Explain. - Y 2 2 CHAPTER 5 = | '} Administrative Law CHAPTER OUTCOMES After reading and studying this chapter, you should be able to: * Explain the three basic functions of administrative agencies. Distinguish among the three types of rules promulgated by administrative agencies. Explain the difference between formal and informal methods of adjudication. Identify (1) the questions of law determined by a court in conducting a review of a rule or an order of dministrative law is the branch of public law that is A created by administrative agencies in the form of rules, regulations, orders, and decisions to carry out the regulatory powers and duties of those agencies. Adminis- trative agencies are government entitiesother than courts and legislatureshaving authority to affect the rights of private parties through their operations. Such agencies, often referred to as commissions, boards, departments, administra- tions, government corporations, bureaus, or offices, regulate a vast array of important matters involving national safety, 'welfare, and convenience. For instance, Federal administrative agencies are charged with responsibility for national security, citizenship and naturalization, law enforcement, taxation, currency, elections, environmental protection, consumer pro- tection, regulation of transportation, telecommunications, labor relations, trade, commerce, and securities markets, as well as with providing health and social services. Because of the increasing complexity of the social, eco- nomic, and industrial life of the nation, the scope of admin- istrative law has expanded enormously. Justice Jackson stated that \"the rise of administrative bodies has been the most significant legal trend of the last century, and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart.\" Federal Trade Commission v. Ruberoid Co., 343 U.S. 470 (1952). This observation is even truer today, as evidenced by the dramatic increase in the number and activities of % an administrative agency and (2) the three standards of judicial review of factual determinations made by administrative agencies. Describe the limitations imposed on administrative agencies by the legislative branch, the executive branch, and the legally required disclosure of information. Federal government boards, commissions, and other agencies. Certainly, agencies create more legal rules and adjudicate more controversies than all of the nation's legislatures and courts combined. State agencies also play a significant role in the function- ing of our society. Among the more important State boards and commissions are those that supervise and regulate banking, insurance, communications, transportation, public utilities, pollution control, and workers' compensation. Countless administrative agencies establish much of the Federal, State, and local law in this country. These agencies, which many label the \"fourth branch of government,\" pos- sess tremendous power and have long been criticized as being \"in reality miniature independent governments... [which are] a haphazard deposit of irresponsible agencies.\" 1937 Presidential Task Force Report. Despite the criticism against them, these agencies clearly play a significant and necessary role in our society. Adminis- trative agencies relieve legislatures of the impossible burden of fashioning legislation that deals with every detail of a spe- cific problem. As a result, Congress can enact legislation, such as the Federal Trade Commission Act, which prohibits unfair and deceptive trade practices, without having to define such practices specifically or to anticipate all the particular prob- lems that may arise. Instead, Congress may enact an enabling statute that creates an agencyin this example, the Federal Trade Commission (FTC)to which it can delegate the CHAPTERS ADMINISTRATIVE LAW power to issue rules, regulations, and guidelines to carry out the statutory mandate. In addition, the establishment of sepa- rate, specialized bodies enables administrative agencies to be staffed by individuals with expertise in the field being regu- lated. Administrative agencies thus can develop the knowledge and devote the time necessary to provide continuous and flex- ible solutions to evolving regulatory problems. This chapter focuses on Federal administrative agencies, which can be classified as either independent or executive. Executive agencies are those housed within the executive branch of government, whereas independent agencies are not. Many Federal agencies are discussed in other parts of this text. More specifically, the FTC and the Justice Department are discussed in Chapter 40; the FTC, the Consumer Financial Protection Bureau (CFPB), and the Consumer Product Safety Commission (CPSC) in Chapter 41; the Department of Labor, the National Labor Relations Board (NLRB), and the Equal Employment Opportunity Commission in Chapter 42; the Securities and Exchange Commission (SEC) in Chapters 43 and 44; and the Environmental Protection Agency (EPA) in Chapter 45. 5-1 Operation of Administrative Agencies Most administrative agencies perform three basic functions: (1) rulemaking, (2) enforcement, and (3) adjudication. The term administrative process refers to the activities in which administrative agencies engage while carrying out their rule- making, enforcement, and adjudicative functions. Administra- tive agencies exercise powers that the Constitution has allocated to the three separate branches of government. More specifically, agencies exercise legislative power when they make rules, executive power when they enforce their enabling statutes and their rules, and judicial power when they adjudicate dis- putes. This concentration of power has raised questions regard- ing the propriety of having the same bodies that establish the rules also act as prosecutors and judges in determining whether those rules have been violated. To address this issue and bring about certain additional procedural reforms, Congress enacted the Administrative Procedure Act (APA) in 1946. 5-1a RULEMAKING Rulemaking is the process by which an administrative agency enacts or promulgates rules of law. Under the APA, a rule is \"the whole or a part of an agency statement of general or par- ticular applicability and future effect designed to implement, interpret, or process law or policy.\" Section 551(4). Once pro- mulgated, rules are applicable to all parties. Moreover, the rulemaking process notifies all parties that the agency is con- sidering the impending rule and provides concerned individ- uals with an opportunity to be heard. Administrative agencies opyright 2018 Cengage Learning. All Rights R 9 promulgate three types of rules: legislative rules, interpretative rules, and procedural rules. |Practical Advice | Keep informed of the regulations issued by administrative agencies that affect your business. LEGISLATIVE RULES Legislative rules, often called regulations, are in effect \"administrative statutes.\" Legislative rules are those issued by an agency that is able, under a legislative del- egation of power, to make rules having the force and effect of law. For example, the FTC has rulemaking power with which to elaborate upon its enabling statute's prohibition of unfair or deceptive acts or practices. Legislative rules, which are immediately binding, generally receive greater deference from reviewing courts than do interpretative rules. Legislative rules have the force of law if they are constitu- tional, within the power granted to the agency by the legisla- ture, and issued according to proper procedure. To be constitutional, regulations must not violate any provisions of the USS. Constitution, such as due process or equal protection. In addition, they may not involve an unconstitutional delega- tion of legislative power from the legislature to the agency. To be constitutionally permissible, the enabling statute granting power to an agency must establish reasonable standards to guide the agency in implementing the statute. Statutes have met this requirement through such language as \"to prohibit unfair methods of competition,\" \"fair and equitable,\" \"public interest, convenience, and necessity,\" and other equally broad expressions. In any event, an agency may not exceed the actual authority granted by its enabling statute. In 2015, the U.S. Supreme Court addressed the validity of an IRS rule that made the Patient Protection and Affordable Care Act's (more commonly called the Affordable Care Act or Obamacare) tax credits available in those States that have a Federal Exchange. In a 6-3 decision, the Court upheld the IRS rule but based its decision on the Court's own interpreta- tion of the Act without deferring to the agency's interpreta- tion. The Court stated \"Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.\" King v. Burwell, 576 U.S. __ (2015). When analyzing an agency's interpretation of a statute, we often apply the two-step framework ***. Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency's interpretation is rea- sonable. *** This approach \"is premised on the theory that a statute's ambiguity constitutes an implicit dele- gation from Congress to the agency to fill in the statu- tory gaps.\" *** \"In extraordinary cases, however, there may be reason to hesitate before concluding that Con- gress has intended such an implicit delegation.\" *** anned, or duplicated, in whole or in part. WCN 02:200-203 'This is one of those cases. The tax credits are among the Act's key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep \"economic and political significance\" that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. *** It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. *** This is not a case for the IRS. It is instead our task to determine the correct read- ing of [the Act]. Legislative rules must be promulgated in accordance with the procedural requirements of the APA, although the ena- bling statute may impose more stringent requirements. Most legislative rules are issued in accordance with the informal rulemaking procedures of the APA, which require that the agency provide the following: 1. prior notice of a proposed rule, usually by publication in the Federal Register; . an opportunity for interested parties to participate in the rulemaking; and . publication of a final draft containing a concise general statement of the rule's basis and purpose at least thirty days before its effective date. Section 553. In some instances, the enabling statute requires that an agency make certain rules only after providing the opportunity for a hearing. This formal rulemaking procedure, which is far more complex than the informal procedures, is governed by the same APA provisions that govern adjudication, discussed later. In formal rulemaking, when an agency makes rules, it must consider the record of the trial-type agency hearing and include a statement of \"findings and conclusions, and the rea- sons or basis therefore, on all the material issues of fact, law, or discretion presented on the record.\" Section 557(c). Some enabling statutes direct that the agency, in making rules, follow certain procedures that are more formal than those the agency uses in informal rulemaking but do not com- pel the full hearing that formal rulemaking requires. This inter- mediate procedure, known as hybrid rulemaking, results from combining the informal procedures of the APA with additional procedures specified by the enabling statute. For example, an agency may be required to conduct a legislative-type hearing (formal) that permits no cross-examination (informal). In 1990, Congress enacted the Negotiated Rulemaking Act to encourage the involvement of affected parties in the initial stages of the policy-making process prior to the publication of notice of a proposed rule. The Act authorizes agencies to use 2018 Cengage Learning. Al Rights Reserved. May not be copled, scanned PART 1 THE LEGAL ENVIRONMENT OF BUSINESS negotiated rulemaking but does not require it. If an agency decides to use negotiated rulemaking, the affected parties and the agency develop an agreement and offer it to the agency. If accepted, the agreement becomes a basis for the proposed reg- ulation, which is then published for comment. See Case 5-1 Practical Advice Participate as early as possible in the rulemaking process of administrative agencies that affect your business. INTERPRETATIVE RULES Interpretative rules are \"issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.\" Attorney Gener- al's Manual on the Administrative Procedure Act. Interpreta- tive rules, which are exempt from the APA's procedural requirements of notice and comment, are not automatically binding on private parties the agency regulates or on the courts, although they are given substantial weight. As the Supreme Court has stated, The weight of such [an interpretative rule] in a par- ticular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade. Skidmore v. Swift & Co., 323 U.S. 134 (1944). @ See Case 5-2 PROCEDURAL RULES Procedural rules are also exempt from the notice and comment requirements of the APA and are not law. These rules establish rules of conduct for practice before the agency, identify an agency's organization, and describe its method of operation. For example, the SEC's Rules of Practice deal with such matters as who may appear before the commission; business hours and notice of pro- ceedings and hearings; settlements, agreements, and confer- ences; the presentation of evidence and taking of depositions and interrogatories; and the review of hearings. & SEE FIGURE 5-1: Administrative Rulemaking 5-1b ENFORCEMENT Agencies also investigate to determine whether duct has violated the statute or the agency's legis carrying out this executive function, the agencie have been accorded great discretion to compel of information, subject to constitutional limit limitations require that (1) the investigation be duplicated, in whole or in part. WCN 02.200203 CHAPTERS ADMINISTRATIVE LAW }3(1 3T Administrative Rulemaking Rule LT Subject to APA Binding Legislative Interpretative Procedural Exempt from APA Exempt from APA Persuasive Persuasive law and undertaken for a legitimate purpose, (2) the informa- tion sought be relevant, (3) the demand for information be sufficiently specific and not unreasonably burdensome, and (4) the information sought not be privileged. For example, the following explains some of the SEC's investigative and enforcement functions: All SEC investigations are conducted privately. Facts are developed to the fullest extent possible through informal inquiry, interviewing witnesses, examining brokerage records, reviewing trading data, and other methods. With a formal order of investigation, the Division's staff may compel witnesses by subpoena to testify and pro- duce books, records, and other relevant documents. Fol- lowing an investigation, SEC staff present their findings to the Commission for its review. The Commission can authorize the staff to file a case in federal court or bring an administrative action. In many cases, the Commis- sion and the party charged decide to settle a matter without trial. SEC, http://www.sec.gov. 5-1c ADJUDICATION After concluding an investigation, the agency may use informal or formal methods to resolve the matter. Because the caseload of administrative agencies is vast, far greater than that of the judicial system, agencies adjudicate most matters informally. Informal procedures include advising, negotiating, and settling. In 1990, Congress enacted the Administrative Dispute Resolu- tion Act to authorize and encourage Federal agencies to use mediation, conciliation, arbitration, and other techniques for the prompt and informal resolution of disputes. The Act does not, however, require agencies to use alternative dispute resolu- tion, and the affected parties must consent to its use. Practical Advice When available, consider using alternative methods of dis- pute resolution with administrative agencies. The formal procedure by which an agency resolves a mat- ter (called adjudication) involves finding facts, applying legal rules to the facts, and formulating orders. An order \"means the whole or a part of a final disposition, whether affirmative, negative, injunctive or declaratory in form, of an agency.\" 12018 Cengage Learning. All Rights Reserved. May not be copled, sca APA Section 551(6). In essence an administrative trial, adju- dication is used when required by the enabling statute. The procedures the administrative agencies employ to adju- dicate cases are nearly as varied as the agencies themselves. Nevertheless, the APA does establish certain mandatory stand- ards for those Federal agencies the Act covers. For example, under the Act, an agency must give notice of a hearing. The APA also requires that the agency give all interested parties the opportunity to submit and consider \"facts, arguments, offers of settlement, or proposals of adjustment.\" Section 554(c). In many cases this involves testimony and cross-examination of 'witnesses. If no settlement is reached, a hearing must be held. The hearing is presided over by an administrative law judge (ALJ) and is prosecuted by the agency. The agency appoints AL]Js through a professional merit selection system and may remove them only for good cause. There are more than twice as many ALJs as there are Federal judges. Hear- ings never use juries; thus, the agency serves as both the prosecutor and decisionmaker. To reduce the potential for a conflict of interest, the APA provides for a separation of functions between those agency members engaged in investi- gation and prosecution from those involved in decision mak- ing. Section 544(d). Either party may introduce oral and documentary evidence, and the agency must base all sanc- tions, rules, and orders upon \"consideration of the whole record or those parts cited by a party and supported by and in accordance with the reliable, probative, and substantial evidence.\" Section 556(d). All decisions must include a state- ment of findings of fact and conclusions of law and the rea- sons or bases for them, as well as a statement of the appropriate rule, order, sanction, or relief. If authorized to do so by law and within its delegated jurisdiction, an agency may impose in its orders sanctions such as penalties; fines; the seizure of property; the assess- ment of damages, restitution, compensation, or fees; and the requirement, revocation, or suspension of a license. Sections 551(10) and 558(b). In most instances, orders are final unless appealed, and failure to comply with an order subjects the party to a statutory penalty. If the order is appealed, the gov- erning body of the agency may decide the case de novo. Sec- tion 557(b). Thus, the agency may hear additional evidence and arguments in deciding whether to revise the findings and conclusions made in the initial decision. ed, or duplicated, in whole or in part. WCN 02-200-203 Although administrative adjudications mirror to a large extent the procedures of judicial trials, the two differ sub- stantially: Agency hearings, especially those dealing with rule- making, often tend to produce evidence of general con- ditions as distinguished from facts relating solely to the respondent. Administrative agencies in rulemaking and occasionally in formal adversarial adjudications more consciously formulate policy than do courts. Conse- quently, administrative adjudications may require that the administrative law judge consider more consciously the impact of his decision upon the public interest as well as upon the particular respondent.... An adminis- trative hearing is tried to an administrative law judge and never to a jury. Since many of the rules governing the admission of proof in judicial trials are designed to protect the jury from unreliable and possibly confusing evidence, it has long been asserted that such rules need not be applied at all or with the same vigor in pro- ceedings solely before an administrative law judg Consequently, the technical common law rules govern- ing the admissibility of evidence have generally been abandoned by administrative agencies. McCormick on Evidence, 4th ed., Section 350, p. 605. EEXEETEREN Limits on Administrative Agencies PART 1 THE LEGAL ENVIRONMENT OF BUSINESS 5-2 Limits on Administrative Agencies An important and fundamental part of administrative law is the limits judicial review imposes upon the activities of administrative agencies. On matters of policy, however, courts are not supposed to substitute their judgment for that of an agency. Additional limitations arise from the legislature and the executive branch, which, unlike the judiciary, may address the wisdom and correctness of an agency's decision or action. Moreover, legally required disclosure of agency actions provides further protection for the public. @ SEE FIGURE 5-2: Limits on Administrative Agencies 5-2a JUDICIAL REVIEW As discussed in Chapter 4, judicial review describes the proc- ess by which the courts examine government action. Judicial review, which is available unless a statute precludes such review or the agency action is committed to agency discre- tion by law, acts as a control or check on a particular rule or order of an administrative agency. Section 701. GENERAL REQUIREMENTS Parties seeking to challenge agency action must have standing and must have exhausted their Executive Control = Power of appointment = Budgetary control Impoundment of monies appropriated BN CO T TRt EL S ADMINISTRATIVE AGENCIES P PR AN et Violation of Constitution = Violation of required YR Legislative Control Power over budget Amendment of enabling statute. Elimination of agency + Enactment of guidelines 2018 Cengage Learning. Al Rights Reserved. May not be copled, scanned, or duplicated, in whole or in part. WCN 02-200-203 CHAPTERS ADMINISTRATIVE LAW administrative remedies. Standing requires that the agency action injure the party in fact and that the party assert an in- terest that is in the \"zone of interests to be protected or regu- lated by the statute in question.\" Judicial review is ordinarily available only for final agency action. Section 704. Accord- ingly, if a party seeks review while an agency proceeding is in progress, a court will usually dismiss the action because the party has failed to exhaust his administrative remedies. @ See Case 5-3 J AL YA AT Be sure to exhaust all of your administrative remedies before seeking judicial review of action taken by an administrative agency. In exercising judicial review, the court may decide either to compel agency action unlawfully withheld or to set aside impermissible agency action. In making its determination, the court must review the whole record and may set aside agency action only if the error is prejudicial. QuesTiONs OF Law When conducting a review, a court decides all relevant questions of law, interprets constitutional and statutory provisions, and determines the meaning or applicability of the terms of an agency action. This review of questions of law includes determining whether the agency has (1) exceeded its authority, (2) properly interpreted the applicable law, (3) violated any constitutional provision, or (4) acted contrary to the procedural requirements of the law. QuEsTIONS OF FACT When reviewing factual determinations, the courts use one of three different standards. In cases in which informal rulemaking or informal adjudication has occurred, the standard generally is the arbitrary and capricious test, which requires only that the agency had a rational basis for reaching its decision. Where an agency has held a formal hearing, the substantial evidence test usually applies. It also applies to infor- mal or hybrid rulemaking, if the enabling statute so requires. The substantial evidence test requires that the agency support its conclusions with \"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\" Con- solidated Edison Co. v. NLRB, 305 U.S. 197 (1938). Finally, in rare instances, the reviewing court may apply the unwarranted by the facts standard, which permits the court to try the facts de novo. This strict review is available only when the enabling statute so provides, when the agency has conducted an adjudi- cation with inadequate fact-finding procedures, or when issues that were not before the agency are raised in a proceeding to enforce nonadjudicative agency action. @ See Case 5-4 018 Cengage Learning. All Rights Reserved. May not be copied, sc 5-2b LEGISLATIVE CONTROL The legislature may exercise control over administrative agencies in various ways. Through its budgetary power, it may greatly restrict or expand an agency's operations. Con- gress may amend an enabling statute to increase, modify, or decrease an agency's authority. Even more drastically, it may completely eliminate an agency. Or Congress may establish general guidelines to govern agency action, as it did by enact- ing the APA. Moreover, it may reverse or change an agency rule or decision through specific legislation. In addition, each house of Congress has oversight committees that review the operations of administrative agencies. Finally, the Senate has the power of confirmation over some high-level appoint- ments to administrative agencies. In 1996, Congress enacted the Congressional Review Act, which subjects most rules to a new, extensive form of legisla- tive control. With limited exceptions, the Act requires agen- cies to submit newly adopted rules to each house of Congress before they can take effect. If the rule is a major rule, it does not become final until Congress has had an op- portunity to disapprove it. A major rule is any rule that the Office of Management and Budget (OMB) finds has resulted in or is likely to result in (1) an annual effect on the economy of at least $100 million; (2) a major increase in costs or pri- ces; or (3) a significant adverse effect on competition, employment, investment, productivity, innovation, or inter- national competitiveness of U.S. enterprises. If the rule is not a major rule, it takes effect as it otherwise would have after its submission to Congress and it is subject to possible disap- proval by Congress. All rules covered by the Act shall not take effect if Congress adopts a joint resolution of disap- proval. The President may veto the joint resolution, but Con- gress may then vote to override the veto. A rule that has been disapproved is treated as though it had never taken effect. 5-2c EXECUTIVE BRANCH CONTROL By virtue of their power to appoint and remove their chief administrators, U.S. Presidents have significant control over administrative agencies housed within the executive branch. With respect to independent agencies, however, the Presi- dent has less control because commissioners serve for a fixed term that is staggered with the President's term of office. Nevertheless, his power to appoint agency chairs and to fill vacancies confers considerable control, as does his power to remove commissioners for statutorily defined cause. The President's central role in the budgeting process of agencies also enables him to exert great control over agency policy and operations. Even more extreme is the President's power to impound monies appropriated to an agency by Congress. In addition, the President may radically alter, combine, or anned, or duplicated, in whole or in part. WCN 02:200-203 96 even abolish agencies of the executive branch unless either house of Congress disapproves such an action within a pre- scribed time. 5-2d DISCLOSURE OF INFORMATION Requiring administrative agencies to disclose information about their actions makes them more accountable to the public. Accordingly, Congress has enacted disclosure statutes to enhance public and political oversight of agency activities. 'These statutes include the Freedom of Information Act (FOIA), the Privacy Act, and the Government in the Sunshine Act. FREEDOM OF INFORMATION Acr First enacted in 1966, FOIA gives the public access to most records in the files of Federal administrative agencies. Once a person has requested files, an agency must indicate within ten working days whether it intends to comply with the request and must within a rea- sonable time respond to the request. The agency may charge a fee for providing the records. FOIA permits agencies to deny access to nine categories of records: (1) records specifically authorized in the interest of national defense or foreign policy to be kept secret, (2) records that relate solely to the internal personnel rules and practices of an agency, (3) records specifically exempted by statute from disclosure, (4) trade secrets and commercial or financial information that is privileged or confidential, (5) inter- or intra-agency memorandums, (6) personnel and medical files the disclosure of which would constitute a Clearly unwarranted invasion of personal privacy, (7) investi- gatory records compiled for law enforcement purposes, (8) records that relate to the regulation or supervision of finan- cial institutions, and (9) certain geological and geophysical information and data. The Electronic Freedom of Information Act Amendments of 1996 require agencies to provide public access to informa- tion in an electronic format. Agencies must, within one year after their creation, make records available by computer tele- communications or other electronic means. PART 1 THE LEGAL ENVIRONMENT OF BUSINESS Practical Advice Be aware that the Freedom of Information Act may give the public access to information you provide to administrative agencies. Privacy Act The Privacy Act of 1974 protects certain gov- ernment records pertaining to individuals that a Federal agency maintains and retrieves by an individual's name or other personal identifier, including social security number. In general, the Privacy Act prohibits unauthorized disclo- sures of those records covered by the Act. It also gives indi- viduals the right to review and copy records about themselves, to find out whether these records have been dis- closed, and to request corrections or amendments of these records, unless the records are legally exempt. It also requires agencies to maintain in their records only that information about an individual that is relevant and necessary to accom- plish an agency function and to collect information to the greatest extent practicable directly from the individual. GOVERNMENT IN THE SUNSHINE AcT The Government in the Sunshine Act requires meetings of many Federal agencies to be open to the public. This Act applies to multimember bodies whose members the President appoints with the advice and consent of the Senate, such as the SEC, the FTC, the Federal Communications Commission, the CPSC, and the Commodity Futures Trading Commission. The Act does not cover execu- tive agencies such as the EPA, the Food and Drug Administra- tion, and the National Highway Traffic Safety Administration. Agencies generally may close meetings on the same grounds on which they may refuse disclosure of records under FOIA. In addition, agencies such as the SEC and the Federal Reserve Board may close meetings to protect information the disclosure of which would lead to financial speculation or endanger the stability of financial institutions. The Sunshine Act also permits agencies to close meetings that concern agency participation in pending or anticipated litigation. OPERATION OF Rulemaking process by which an administrative agency promulgates rules of law ADMINISTRATIVE AGENCIES Legislative Rules substantive rules issued by an administrative agency under the authority delegated to it by the legislature Interpretative Rules statements issued by an administrative agency indicating how it construes the statutes and rules that it administers Procedural Rules rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct for practice before the agency 2018 Cengage Learning. Al Rights Reserved. May not be copled, scanned duplicated, in whole or in part. WCN 02.200-203 CHAPTERS ADMINISTRATIVE LAW Enforcement process by which agencies determine whether their rules have been violated Adjudication formal methods by which an agency resolves disputes LIMITS ON ADMINISTRATIVE Judicial Review acts as a control or check by a court on a particular rule or order of AGENCIES an administrative agency Legislative Control includes control over the agency's budget and enabling statute Executive Branch Control includes the President's power to appoint members of the agency Disclosure of Information congressionally required public disclosure enhances oversight of agency activities Legislative Rules MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH v. UNITED STATES Supreme Court of the United States, 2011 562 US. 44,131 SCt. 704, 178 LEd.2d 588 Roberts, C. . I Most doctors who graduate from medical school in the United States pursue additional education in a specialty to become board certified to practice in that field. Petitioners Mayo Foun- dation for Medical Education and Research, Mayo Clinic, and the Regents of the University of Minnesota (collectively Mayo) offer medical residency programs that provide such instruc- tion. Mayo's residency programs, which usually last three to five years, train doctors primarily through hands-on experi- ence. Residents often spend between 50 and 80 hours a week caring for patients, typically examining and diagnosing them, prescribing medication, recommending plans of care, and per- forming certain procedures. Residents are generally supervised in this work by more senior residents and by faculty members known as attending physicians. In 2005, Mayo paid its resi- dents annual \"stipends\" ranging between $41,000 and $56,000 and provided them with health insurance, malpractice insur- ance, and paid vacation time. Mayo residents also take part in \"a formal and structured educational program.\" [Citation.] Residents are assigned textbooks and journal articles to read and are expected to attend weekly lectures and other conferences. Residents also take written exams and are evaluated by the attending faculty physicians. But the parties do not dispute that the bulk of residents' time is spent caring for patients. Through the Social Security Act and related legislation, Congress has created a comprehensive national insurance 12018 Cengage Learning. Al Rights Reserved. May not be copled, sca system that provides benefits for retired workers, disabled workers, unemployed workers, and their families. [Citation.] Congress funds Social Security by taxing both employers and employees under FICA on the wages employees earn. [Citations.] Congress has defined \"wages\" broadly, to encompass \"all remuneration for employment.\" 3121(a). The term \"employment\" has a similarly broad reach, extending to \"any service, of whatever nature, per- formed ... by an employee for the person employing him.\" 3121(b). Congress has, however, exempted certain categories of service and individuals from FICA's [and Social Security Act] demands. As relevant here, Congress has excluded from taxation \"service performed in the employ of...a school, college, or university ... if such service is performed by a stu- dent who is enrolled and regularly attending classes at such school, college, or university.\" 3121(b)(10). * * * P On December 21, 2004, the Department adopted an amended rule prescribing that an employee's service is \"incident\" to his studies only when \"[t]he educational aspect of the relationship between the employer and the employee, as compared to the service aspect of the relationship, [is] pre- dominant.\" [Citation.] The rule categorically provides that \"[tlhe services of a full-time employee\"as defined by the employer's policies, but in any event including any employee normally scheduled to work 40 hours or more per week \"are not incident to and for the purpose of pursuing a course of study.\" [Citation,] (the full-time employee rule). ed, or duplicated, in whole or in part. WCN 02-200-203 98 The amended provision clarifies that the Department's anal- ysis \"is not affected by the fact that the services performed.... may have an educational, instructional, or training aspect.\" [Citation.] The rule also includes as an example the case of \"Employee E,\" who is employed by \"University V" as a medi- cal resident. [Citation.] Because Employee E's \"normal work schedule calls for [him] to perform services 40 or more hours per week,\" the rule provides that his service is \"not incident to and for the purpose of pursuing a course of study,\" and he accordingly is not an exempt \"student\" under 3121(b)(10). [Citation.] After the Department promulgated the full-time employee rule, Mayo filed suit seeking a refund of the money it had withheld and paid on its residents' stipends during the sec- ond quarter of 2005. [Citation.] Mayo asserted that its resi- dents were exempt under 3121(b)(10) and that the Treasury Department's fulltime employee rule was invalid. [The District Court granted Mayo's motion for summary judgment. The Government appealed, and the Court of 'Appeals reversed.] 'We granted Mayo's petition for certiorari. [Citation.] I 'We begin our analysis with the first step of the two-part framework announced in Chevron [USA Inc. v. Natural Resources Defense Council, Inc.], [citation], and ask whether Congress has \"directly addressed the precise question at issue.\" We agree with the Court of Appeals that Congress has not done so. The statute does not define the term \"student,\" and does not otherwise attend to the precise question whether medical residents are subject to FICA. [Citation.] In the typical case, such an ambiguity would lead us inex- orably to Chevron step two, under which we may not disturb an agency rule unless it is \"arbitrary or capricious in sub- stance, or manifestly contrary to the statute.\" [Citation.] In this case, however, the parties disagree over the proper framework for evaluating an ambiguous provision of the In- ternal Revenue Code. The principles underlying our decision in Chevron apply with full force in the tax context. Chevron recognized that \"[t]he power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.\" [Citation.] * * * Filling gaps in the Internal Revenue Code plainly requires the Treasury Department to make interpretive choices for statutory implementation at least as complex as the ones other agencies must make in administering their statutes. PART 1 THE LEGAL ENVIRONMENT OF BUSINESS [Citation.] We see no reason why our review of tax regulations should not be guided by agency expertise pursu- ant to Chevron to the same extent as our review of other regulations. * % * We have held that Chevron deference is appropriate \"when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was pro- mulgated in the exercise of that authority.\" * * * * % * The Department issued the full-time employee rule pursuant to the explicit authorization to \"prescribe all need- ful rules and regulations for the enforcement\" of the Internal Revenue Code. [Citation.] * * * 'The full-time employee rule easily satisfies the second step of Chevron, which asks whether the Department's rule is a \"reasonable interpretation\" of the enacted text. [Citation.] To begin, Mayo accepts that \"the 'educational aspect of the relationship between the employer and the employee, as compared to the service aspect of the relationship, [must] be predominant\" in order for an individual to qualify for the exemption. [Citation.] Mayo objects, however, to the Depart- ment's conclusion that residents who work more than 40 hours per week categorically cannot satisfy that requirement. Because residents' employment is itself educational, Mayo argues, the hours a resident spends working make him \"more of a student, not less of one.\" [Citation.] Mayo contends that the Treasury Department should be required to engage in a case-by-case inquiry into \"what [each] employee does [in his service] and why\" he does it. [Citation.] Mayo also objects that the Department has drawn an arbitrary distinction between \"hands-on training\" and \"classroom instruction.\" [Citation.] We disagree. Regulation, like legislation, often requires drawing lines. Mayo does not dispute that the Treasury Department reasonably sought a way to distinguish between workers who study and students who work, [citation]. * * * The Department reasonably concluded that its full-time em- ployee rule would \"improve administrability,\" [citation], and it thereby \"has avoided the wasteful litigation and continuing uncertainty that would inevitably accompany any purely case- by-case approach\" like the one Mayo advocates, [citation]. 'We do not doubt that Mayo's residents are engaged in a valuable educational pursuit or that they are students of their craft. The question whether they are \"students\" for purposes of 3121, however, is a different matter. Because it is one to which Congress has not directly spoken, and because the Treasury Department's rule is a reasonable construction of what Congress has said, the judgment of the Court of Appeals must be affirmed. 2018 Cengage Learning. Al Rights Reserved. May not be copled, scanned, or duplicated, in whole or in part. WCN 02-200-203 CHAPTERS ADMINISTRATIVE LAW Interpretative Rules PEREZ v. MORTGAGE BANKERS ASS'N. Supreme Court of the United States, 2015 575US. , 135 SCt. 1199, 191 LEd.2d 186 Sotomayor, J. These cases began as a dispute over efforts by the Depart- ment of Labor to determine whether mortgage-loan officers are covered by the Fair Labor Standards Act of 1938 (FLSA), [citation]. [This statute is discussed in Chapter 42.] The FLSA \"establishe[s] a minimum wage and overtime com- pensation for each hour worked in excess of 40 hours in each workweek\" for many employees. [Citation.] Certain classes of employees, however, are exempt from these provi- sions. Among these exempt individuals are those \"employed in a bona fide executive, administrative, or professional capacity ....or in the capacity of outside salesman....\" [Cita- tion.] The exemption for such employees is known as the \"administrative\" exemption. The FLSA grants the Secretary of Labor authority to \"defin[e]\" and \"delimi[t]\" the categories of exempt adminis- trative employees. [Citation.] The Secretary's current regula- tions regarding the administrative exemption were promulgated in 2004. As relevant here, the 2004 regulations differed from the previous regulations [issued in 1999 and 2001] in that they contained a new section providing several examples of exempt administrative employees. [Citation.] One of the examples is \"[e]mployees in the financial services industry,\" who, depending on the nature of their day-to-day work, \"generally meet the duties requirements for the admin- istrative exception.\" [Citation.] The financial services exam- ple ends with a caveat, noting that \"an employee whose primary duty is selling financial products does not qualify for the administrative exemption.\" [Citation.] [In 2006, the Department issued an opinion letter finding that mortgage-loan officers fell within the administrative exemption. In 2010, however, the Wage and Hour Division again altered its interpretation of the FLSA's administrative exemption as it applied to mortgage-loan officers, conclud- ing that mortgage-loan officers \"have a primary duty of making sales for their employers, and, therefore, do not qualify\" for the administrative exemption. The Department accordingly withdrew its 2006 opinion letter. Like the 1999, 2001, and 2006 opinion letters, the 2010 Administrator's Interpretation was issued without notice or an opportunity for comment. MBA filed a complaint in federal District Court chal- lenging the 2010 Administrator's Interpretation. MBA contended that the 2010 Administrator's Interpretation was procedurally invalid in light of the D.C. Circuit's decision 12018 Cengage Learning. All Rights Reserved. May not be copled, sca in Paralyzed Veterans, which holds that an agency must use notice-and-comment procedures when an agency wishes to issue a new interpretation of a regulation that deviates significantly from a previously adopted interpre- tation. The District Court granted summary judgment to the Department. On appeal, the D.C. Circuit applied Par- alyzed Veterans and reversed. The Department appealed to the U.S. Supreme Court.] When a federal administrative agency first issues a rule interpreting one of its regulations, it is generally not required to follow the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA or Act). [Citation.] The United States Court of Appeals for the District of Columbia Circuit has nevertheless held, in a line of cases beginning with Paralyzed Veterans of Am. v. D.C. Arena L. P., [citation], that an agency must use the APA's notice-and- comment procedures when it wishes to issue a new interpre- tation of a regulation that deviates significantly from one the agency has previously adopted. The question in these cases is whether the rule announced in Paralyzed Veterans is consist- ent with the APA. We hold that it is not. The APA establishes the procedures federal administra- tive agencies use for \"rule making\" defined as the process of \"formulating, amending, or repealing a rule.\" [Citation.] \"Rule,\" in turn, is defined broadly to include \"statement(s] of general or particular applicability and future effect\" that are designed to \"implement, interpret, or prescribe law or policy.\" [Citation.] Section 4 of the APA, [citation], prescribes a three-step procedure for so-called \"notice-and-comment rule-making.\" First, the agency must issue a \"[g]eneral notice of proposed rule making,\" ordinarily by publication in the Federal Regis- ter. [Citation.] Second, if \"notice [is] required,\" the agency must \"give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.\" [Citation] An agency must consider and respond to significant comments received during the period for public comment. [Citation.] Third, when the agency promul- gates the final rule, it must include in the rule's text \"a concise general statement of [its] basis and purpose.\" [Citation.] Rules issued through the notice-and-comment process are often referred to as \"legislative rules\" because they have the \"force and effect of law.\" [Citation.] Not all \"rules\" must be issued through the notice-and- comment process. Section 4(b)(A) of the APA provides that, 1ON 02:200-203 100 unless another statute states otherwise, the notice-and- 'comment requirement \"does not apply\" to \"interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.\" [Citation.] The term \"interpretative rule,\" or \"interpretive rule,\" is not further defined by the APA, ** % it suffices to say that the critical feature of interpretive rules is that they are \"issued by an agency to advise the public of the agency's construction of the statutes and rules which it admin- isters.\" [Citation.] The absence of a notice-and-comment obli- gation makes the process of issuing interpretive rules comparatively easier for agencies than issuing legislative rules. But that convenience comes at a price: Interpretive rules \"do not have the force and effect of law and are not accorded that weight in the adjudicatory process.\" [Citation.] *** This exemption of interpretive rules from the notice- and-comment process is categorical, and it is fatal to the rule announced in Paralyzed Veterans. Rather than examining the exemption for interpretive rules contained in $4(b)(A) of the APA, the D.C. Circuit in Paralyzed Veterans focused its attention on 1 of the Act. That section defines \"rule making\" to include not only the initial issuance of new rules, but also \"repeal(s]\" or \"amend[ments]\" of existing rules. [Citation.] Because notice- and-comment requirements may apply even to these later agency actions, the court reasoned, \"allow[ing] an agency to make a fundamental change in its interpretation of a sub- stantive regulation without notice and comment\" would undermine the APA's procedural framework. [Citation.] ** * Because an agency is not required to use notice-and- comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule. 'The straightforward reading of the APA we now adopt har- monizes with longstanding principles of our administrative law jurisprudence. Time and again, we have reiterated that the APA \"sets forth the full extent of judicial authority to review PART 1 THE LEGAL ENVIRONMENT OF BUSINESS executive agency action for procedural correctness.\" Fox Tele- vision Stations, Inc., [citation]. Beyond the APA's minimum requirements, courts lack authority \"to impose upon [an] agency its own notion of which procedures are 'best' or most likely to further some vague, undefined public good.\" [Cita- tion.] To do otherwise would violate \"the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure.\" [Citation.] These foundational principles apply with equal force to the APA's procedures for rulemaking, We explained in [cita- tion] that 4 of the Act \"established the maximum proce- dural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.\" [Citation.] \"Agencies are free to grant addi- tional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.\" [Citation.] The Paralyzed Veterans doctrine creates just such a judge-made procedural right: the right to notice and an opportunity to comment when an agency changes its interpretation of one of the regulations it enforces. That requirement may be wise policy. Or it may not. Regard- less, imposing such an obligation is the responsibility of Congress or the administrative agencies, not the courts. We trust that Congress weighed the costs and benefits of placing more rigorous procedural restrictions on the issu- ance of interpretive rules. [Citation.] In the end, Congress decided to adopt standards that permit agencies to prom- ulgate freely such ruleswhether or not they are consist- ent with earlier interpretations. That the D.C. Circuit would have struck the balance differently does not permit that court or this one to overturn Congress' contrary judgment. [Citation.] For the foregoing reasons, the judgment of the United States Court of Appeals for the District of Columbia Circuit is reversed. Judicial Review: Standing Supreme Court of the United States, 2012 5.3 SACKETT v. ENVIRONMENTAL PROTECTION AGENCY 566 US. , 132 5Ct. 1367, 182 LEd.2d 367 Scalia, J. [The Clean Water Act (Act) prohibits \"the discharge of any pollutant by any person,\" without a permit, into the \"navigable waters,\" which the Act defines as \"the waters of the United States.\" If the Environmental Protection Agency (EPA) determines that any person is in violation of this restriction, the Act directs the agency either to issue a compliance order or to initiate a civil enforcement action. When the EPA prevails in a civil action, the for a civil penalty not to exceed $37,500 per violation. According to the government, when vails against any person who has been issued order but has failed to comply, that amount it $75,000. 2018 Cengage Learning. All Rights Reserved. May not be copled, scanned, or duplicated, in whole or in part. WCN 02-200-203 CHAPTERS ADMINISTRATIVE LAW The Sacketts own a two-thirds-acre residential lot in Bonner County, Idaho. Their property lies just north of Priest Lake, but it is separated from the lake by several lots containing permanent structures. In preparation for constructing a house, the Sacketts filled in part of their lot with dirt and rock. Some months later, they received from the EPA a compliance order, which stated that their resi- dential lot contained navigable waters and that their con- struction project violated the Act by placing fill material on the property. On that basis the order directs them im- mediately to restore the property pursuant to an EPA work plan and to provide the EPA with access to the site and all records and documents related to the conditions at the site. The Sacketts, who do not believe that their property is subject to the Act, asked the EPA for a hearing, but that request was denied. They then brought an action in the U.S. District Court for the District of Idaho, seeking declaratory and injunctive relief. Their complaint contended that the EPA's issuance of the compliance order was \"arbitrary [and] capricious\" under the Administrative Procedure Act (APA) and that it deprived them of \"life, liberty, or property, with- out due process of law,\" in violation of the Fifth Amend- ment. The District Court dismissed the claims for want of subject-matter jurisdiction. The U.S. Court of Appeals for the Ninth Circuit affirmed, concluding that the Act \"preclude[s] pre-enforcement judicial review of compliance orders\" and that such preclusion does not violate the Fifth Amendment's due process guarantee. The U.S. Supreme Court granted certiorari.] The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of \"final agency action for which there is no other adequate remedy in a court.\" [Cita- tion.] We consider first whether the compliance order is final agency action. There is no doubt it is agency action, which the APA defines as including even a \"failure to act.\" [Cita- tion.] But is it final? It has all of the hallmarks of APA final- ity that our opinions establish. Through the order, the EPA \"determined \"rights or obligations.\" [Citation.] * * * Also, 101 \"legal consequences ... flow\" from issuance of the order. [Citation.] * * * The issuance of the compliance order also marks the \"consummation\" of the agency's decisionmaking process. [Citation.] As the Sacketts learned when they unsuccessfully sought a hearing, the \"Findings and Conclusions\" that the compliance order contained were not subject to further agency review. * * * The APA's judicial review provision also requires that the person seeking APA review of final agency action have \"no other adequate remedy in a court,\" [Citation.] In Clean Water Act enforcement cases, judicial review ordinarily comes by way of a civil action brought by the EPA under [citation]. But the Sacketts cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue * * * an additional $75,000 in potential liability. The other possible route to judicial reviewapplying to the Corps of Engineers for a permit and then filing suit under the APA if a permit is deniedwill not serve either. * * * Nothing in the Clean Water Act expressly precludes judi- cial review under the APA or otherwise. But in determining \"[w]hether and to what extent a particular statute precludes judicial review,\" we do not look \"only [to] its express language.\" [Citation] The APA, we have said, creates a \"presumption favoring judicial review of administrative action,\" but as with most presumptions, this one \"may be overcome by inferences of intent drawn from the statutory scheme as a whole.\" The Government offers several reasons why the statutory scheme of the Clean Water Act precludes review. [The Supreme Court found that these arguments did not support an inference that the Clean Water Act's statutory scheme precluded APA review.] We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and that the Clean Water Act does not preclude that review. We therefore reverse the judgment of the Court of Appeals and remand the case for further pro- ceedings consistent with this opinion. Judicial Review: Questions of Fact FCC v. FOX TELEVISION STATIONS, INC. Supreme Court of the United States, 2009 556 US. 502, 129 SCt. 1800, 173 LEd2d 738 Scalia, J. Federal law prohibits the broadcasting of \"any ... indecent ... language,\" [citation], which includes expletives refer- ring to sexual or excretory activity or organs, see [cita- tion]. This case concerns the adequacy of the Federal 12018 Cengage Learning. Al Rights Reserved. May not be copled, sca Communications Commission's explanation of its deci- sion that this sometimes forbids the broadcasting of inde- cent expletives even when the offensive words are not repeated. ed, or duplicated, in whole or in part. WCN 02-200-203 102 * * * Congress has given the Commission various means of enforcing the indecency ban, including civil fines, see 503(b)(1), and license revocations or the denial of license renewals, [citation]. 'The Commission first invoked the statutory ban on inde- cent broadcasts in 1975, declaring a daytime broadcast of George Carlin's \"Filthy Words\" monologue actionably inde- cent. [Citation.] At that time, the Commission announced the definition of indecent speech that it uses to this day, pro- hibiting \"language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk that children may be in the audience.\" [Citation.] . x In the ensuing years, the Commission took a cautious, but gradually expanding, approach to enforcing the statutory prohibition against indecent broadcasts. * * * Although the Commission had expanded its enforcement beyond the \"repetitive use of specific words or phrases,\" it preserved a distinction between literal and nonliteral (or \"expletive\") uses of evocative language. [Citation.] The Com- mission explained that each literal \"description or depiction of sexual or excretory functions must be examined in context to determine whether it is patently offensive,\" but that \"deliberate and repetitive use.... is a requisite to a finding of indecency\" when a complaint focuses solely on the use of nonliteral expletives. [Citation.] In 2004, the Commission took one step further by declar- ing for the first time that a nonliteral (expletive) use of the F- and S-Words could be actionably indecent, even when the word is used only once. The first order to this effect dealt with an NBC broadcast of the Golden Globe Awards, in the performer Bono commented, \"This is really, really, * * *ing brilliant.\" * * * This case concerns utterances in two live broadcasts aired by Fox Television Statio