BIG IDEAS – Administrative Law Focuses: Power, Process, Review
à Power: What power does the agency have and how may it exercise its power?
à Process: What process and procedure is required for the legitimate exercise of agency power and is the agency complying with that process?
à Review: What kind of review of agency action is available or required? What are the scope and limits of that review?
CONSTITUTIONAL RIGHT TO A HEARING
Applies to Adjudication and Rulemaking
GV: constitutional due process marks out the MINIMUM process [“the floor”] that is due when state deprives individual of a liberty or property [due process] interest
*Note: APA generally offer more “process,” statutes/rules can clearly offer more rights
Analysis to Determine if Due Process is Required…
Step 1: State Action?
Step 2: Is action individualized enough? [individual action vs. general action]
Step 3: Is there a life, liberty, or property interest implicated?
Step 4: Determine what process is due?
Step 1: State Action
à GV: must be state action to trigger constitutional protection
Step 2: Individual Action
GV: action must be individualized enough to trigger state action
à Hearing right extends to narrow “individualized action,” NOT “generalized action”
à Basis: Due Process doesn’t protect generalized rights – subject to political process
à Adjudication associated w/ “individualized,” rulemaking associated w/ “generalized”
Case Examples
Bi-Metallic: State agency wants to increase property tax rate, property owner plaintiff sues saying property being taken without due process; court finds that a generalized determination does not implicate due process, impracticable for everyone to be “heard.”
Londoner v. Denver: Due process implicated by promulgation of special tax district for paved roads; property owner plaintiff had constitutional right to “hearing” because relatively small group of individuals in district were assessed individualized taxes.
Anaconda v. Ruckelshaus: General EPA regulation affects only one company in a county; court finds no due process violation because the regulation had affect in general community [emissions] – public hearings were satisfactory, no individualized hearing.
STEP 3: IS THERE A LIFE, LIBERTY, OR PROPERTLY INTEREST IMPLICATED
GV: “look at the nature of the interest at stake”
Life Interest: did not discuss
Liberty Interest
GV MIDTERM SLIDE: Fundamental Liberty Interest, State-Created Liberty Interest
GV FINAL SLIDE: stigma (plus), deprivation of constitutional rights or physical liberty, deportation of aliens (but notes new rules), expulsion/suspension from school (not note particular rules)
NOTES: traditional examples OR “stigma-plus” – “more than just speculative”
*Traditional Ex/: right to contract, marry, Myers: right to raise children how you want
*“Stigma” Basis: impacts strong enough individual interest to impair individual going forward; individual should have opportunity for “name-clearing” hearing
Property Interest
GV MIDTERM SLIDE: State-Created Property Interest
GV FINAL SLIDE: real/personal property, government benefits, protected government employment, licenses
NOTES: defined by state law, must be legitimate/clear entitlement claim NOT abstract, a tangible benefit, “traditional” property interests
*Examples: welfare entitlement benefit, state job (depends on type of contract)
à CASE GLOSS – Cleveland BOE v. Loudermill – Holding: if state creates constitutional property right, then state’s procedures for deprivation of given property right can’t be less than what Due Process requires [must follow DP for deprivation]…
*Facts/Conclusion: Civil Service employee plaintiffs have property interest implicated when they were provided only post-termination hearings because civil service allowed only “for cause” termination thereby establishing property right to jobs; once state creates constitutionally protected right they must follow constitutional procedural requirements for taking away. Court abandons “bitter with sweet approach” [if state establishes right, then they can establish procedure for taking it away].
Add’l Case Examples
Goldberg v. Kelly: Court find plaintiffs’ property interests are implicated when they were dropped from welfare benefit programs without a hearing.
Board of Regents v. Roth: Non-tenured teacher plaintiff is not rehired after expiration of his teaching contract and is provided no reason why which is pursuant to state law; no liberty interest is implicated because no stigma imposed by not being rehired; no property interest is implicated because state law afforded him no legitimate claim to continued employed because terms of contract were clear, thus his entitlement claim was abstract.
Step 4: Determine what process is due
APPLY MATHEWS BALANCING TEST
GV SLIDE: “used to determine what process is due – what procedural elements are required to satisfy due process”
à CAREFUL: test is manipulative, flexible, result can often be disagreed with…
à Expressed Mathematically: C = P x V
C = cost of providing additional safeguards, burden of add’l safeguards
*[not just monetary, timing]
P = nature/value of the individual/private interest at stake
[not just monetary, weight of interest]
V = increased probability/value of an accurate finding with add’l procedures
*[risk of erroneous deprivation, more procedures, credibility at stake]
*Hearing Requirements
Goldberg: hearing basically resembled a trial [oral argument, cross examination, impartial decision maker, decision based on legal rules and evidence at hearing]
*Replaced by Mathews: notice; opportunity to rebut in front of neutral decision maker
GV SLIDE: “even where there is a recognized right of notice and opportunity to be heard, the nature of the notice and hearing required can vary from a full pre-termination trial type hearing to a very abbreviated “initial check” on the accuracy of the hearing with post-deprivation review, to a resort to available state judicial procedures”
*GV FACTORS TO CONSIDER: timing of the hearing [before or after deprivation of liberty or property – is a pre-deprivation hearing required], is there fair and adequate notice [any emergency exceptions? – is there an emergency exception (to protect public health or safety)], opportunity to present case, ability to confront adverse witnesses [some exceptions], is there an impartial decision maker, right to counsel [though not appointed], statement of reasons
Case Examples
Mathews v. Eldridge: Plaintiff’s disability benefits denied with use of questionnaire and reasoned response (no hearing); court determines hearing not necessary before terminating benefits [could terminate with hearing pending] because value of individual interest lower relative to Goldberg [welfare > disability], not a significant increased probability of more accurate finding [m
ons apply
*APA §554(a): “This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined ON THE RECORD after opportunity for an agency hearing, except to the extent that there is …
à TEST TO APPLY – Chevron Test for Statutory Interpretation [discussed later too]:
Step 1: If statute is clear, that interpretation stands
Step 2: If statute is not clear, court must defer to agency’s reasonable interpretation
Basis: administrative law is about expertise, defer to the agency’s expertise
Case Example – Dominion Energy: Authorizing statute says when issuing permit must offer “opportunity for public hearing;” because statute doesn’t say “on the record” court defers to agency’s interpretation [Chevron deference] and no formal hearing is required.
Hearing Rights and Limitations
Formal Hearing Requirements [casebook pg. 70 “APA Provisions”]:
(1) conducted by an administrative law judge
(2) agency must separate its prosecuting and adjudicating functions, no ex parte contact with decision makers
(3) must allow cross-examination, ‘may be required for a full and true disclosure of facts’
(4) private party is sometimes entitled to recover attorney fees if agency’s position not substantially justified
Limitations – CASE LAW – Heckler v. Campbell – Principle: Statutory hearing rights can be foreclosed through rulemaking where issue “not unique to each claimant” and “case by case determination not required.”
à Expressed in GV SLIDE: “agency need not provide an adjudicatory hearing prescribed by statute if the agency has already addressed the issue in a rule; agency may relay on its rulemaking authority to determine issues that do not require case-by-case consideration”
*Facts/Conclusion: SS ALJs make disability benefit decisions by first in a hearing assessing applicant’s ability to do some work, then second using a rule-made “matrix” whether a job could exist for them. Authorizing statute requires “hearing;” court finds process statutorily satisfactory because even where hearing is required, agency may rely on rulemaking [the “matrix”] to settle an issue “not unique to each claimant” where it need not settle with case-by-case consideration.
[~individualized determinations still based on evidence adduced at hearing]
Types of Formal Adjudication / Hearing – Decision Making Models
Two theoretical models: [polar-opposites, reality is somewhere in between]
Judicial Model: adjudicative decision resembles a judge’s decision
Institutional Model: most efficient and effective, adjudicator helps implement mission
à Models relevant administrative law “tension” between accuracy and efficiency versus fairness and acceptability to private litigant… [derived from GV SLIDE]
