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Administrative Law
University of Connecticut School of Law
Parker, Richard D.

Parker- UConn Law

ADMIN LAW OUTLINE SPRING 2011

Using Aman’s Administrative Law & Process

I. INTRODUCTION & RULES V. ORDERS

Why do we need big government? What has changed? à Changes in society; increasing complexity; efficiency; people have asked for these special interests to be regulated; but most of all, scale of commerce has grown (we don’t have personal connections with the people we buy from); technology more complex and have created externalities. Downside to such large bureaucracy?

The 3 Questions

–What is the governmental action (empowered thru organic statute) that gives rise to the issues?

–Regulating private conduct, disbursing entitlements, managing fed property?

–Ex: School board decision to suspend a student? Health commissioner’s ban?

–How does the law characterize those actions?

–Issue? Rule? Order? Variance? Ruling? Ordinance? Planning document? Tax assessment? Expulsion/suspension?

–What are the legal consequences of those characterizations?

Where is Admin Law found—where do I research?

–Administrative Procedure Act (1947 and hardly ever amended): governs Federal agencies—fundamentally flawed. Usually changed by judicial interpretations. This is the default. States address all the same issues in their individual state Acts

–“Organic” Statute: statute that the agency is applying (ex: Title VII for EEOC; Clean Water Act for EPA). All the power the agency has comes from the organic statute; w/o it, no power.

–Code of Federal Regulations: Agencies will have their own substantive & procedural regs

–Particular Notices/Federal Register Notices

–Guidance documents and Advisory Opinions issued by the agency

–Case law; Constitution; Policy (relied on when all else is ambiguous); Academic treatises (last)

Examples of Admin Agencies:

–Municipal and local bodies àTax assessors, Zoning bds, Planning comm’ns and school boards

–State actors à public service commissions, DMV, environmental affairs, consumer affairs

–Federal Admin Agencies à SEC, IRS, DOL, EPA

–Distinction b/w Cabinet Departments (Executive) and the agencies (like EEOC, also Executive) and Independent Regulatory Agencies (Boards and Commissions like the FTC, SEC that are not Executive). The IRAs are headed by groups instead of heads, must be bipartisan, can only be removed for cause unlike Exec officials who can be removed by Prez anytime

APA History

Regulation of particular industries to protect individualsà1970s emphasis on health, safety, environment and on entitlement progsà 80s-today deregulation b/c of cost and efficacy concern

Rules or Orders?

Rules: general applicability; “legislative;” this stretch of road is 50 m.p.h.; typically forward-looking; “safety in numbers”à Enough accountability; no right to oral hearing under the Constitution (Bi-Metallic). Process is less critical.

Orders/Adjudication: more specific/individualized; “adjudicative;” issuing a ticket for going 80 m.p,h.; typically retrospective. Process is more critical—there can be a right to a hearing (at some point, prior or not); decide contested facts and apply law (this includes licensing). Orders are preferred for policy develop instead of making an overwhelming list of rules. Orders used for enforcement and rule develop

–Distinction b/w order and rule important b/c different procedural protections.

–Agencies with rulemaking authority have a choice whether they wish to make policy through adjudication or rulemaking

–Advantage to adjudication: easier to see what the correct policy should be in the context of a particular fact situation; also agency can choose the best D (worst violator); only particular parties to a case have the opportunity to participate in the decision (not the public at large)

–Advantage to rulemaking: agency can decide an issue in one proceeding instead of over and over again in adjudications

Londoner v. City and Cty. Of Denver (Sup Ct 1908) p. 4 à Orders

Facts: The plaintiffs challenged a tax which was assessed against their real property by the city council over plaintiffs’ written objections, without affording them a hearing.

Issue/Holding: DP violation? YES. This is an order (as opposed to rule)—more potential for abuse when small number of people effected and will have more difficulty mobilizing. DP requires opportunity to be heard and notice. Something more than written objections—need a simple oral hearing. DP required when adjudication as opposed to rulemaking.

Bi-Metallic Investment Co. v. State Board of Equalization of CO (Sup. Ct. 1915) p. 8 à Rule

Facts: Bi-Metallic Co (P), challenged a uniform forty percent tax increase on the ground that it was not afforded an opportunity to be heard.

Issue/Holding: Whether all individuals have a const right to be heard before a matter can be decided in which all are equally concerned? NO. Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. There must be a limit to individual argument if government is to go on. Distinguishable from Londoner b/c here we have the whole city of Denver. This is a rule as opposed to order b/c larger group. DP doesn’t apply to general rulemaking—the safeguard is the political process. Competing concerns of efficiency and fairness to the individual

II. PUBLIC V. PRIVATE AUTHORITY

–Outsourcing gov’t jobs to the private sector (ex: tow trucks, loan collectors, healthcare)

–DP protections apply to state actors, not private non-governmental actors, but private actors can become state actors if they are sufficiently connected to the state

–Globalization à market approaches taking place of trad’l command & control agency reg

–Public/private partnerships increasingly common—prisons, welfare, healthcare, education, municipal snow removal/garbage collection à3rd Party Government

–2 ways to view these changes: 1) laissez-faire approachà minimizing the role of the state; 2) extension of the stateà new ways for states to carry out responsibilities; markets a form of reg

–Lowers cost to the gov’t; increases efficiency

–What keeps these private actors accountable? Economic adversity (market forces); when there are no market forces at play (like prisons, schools), then renewal of Ks by the government

–Do we want entities that are financially motivated playing a role in public interest? Is it enough that you have a gov’t agency overseeing it?

Richardson v. McKnight (US Sup Ct 1997) p. 30 à Public/Private Partnerships

Facts: Prisoner sued guards employed by private firm who placed him in tight restraint

Issue/Holding: Immune from suit like a gov’t EE would be? NO. Looks to history and purposes of immunity to hold that there was nothing special enough about the job to warrant gov’t immunity. Immunity protects the gov’ts ability to perform traditional functions; ensure talented candidates aren’t deterred by the threat of damages suits from entering public service. Court ignores Sec. 1983 which only sometimes imposes liability; looks to common law (activist)

III. DUE PROCESS

Benefit (privilege) v. Right

If gov’t only deprives you of a privilege/benefit, it doesn’t need to provide DP

Great Society of the 60s/“new property” à gov’t supplied benefits are essentials; Goldberg

Goldberg v. Kelly (Sup Ct 1970) p. 72 à Welfare as a Property Right

Facts: Appellees were financial aid recipients whose benefits were terminated without being afforded a pre-termination hearing (oral confrontation and cross-exam), challenged as DP denial

Issue/Holding: DP Violation? YES. Sources of security, public or private, are no longer regarded as privileges/luxuries/gratuities, but are essential rights/entitlements—same impact as depriving someone of private property. Concerns for general welfare. BUT hearing doesn’t need to be quasi-judicial (no need for complete record and opinion). Just needs (for speedy resolution) an impartial decision-maker and to appear personally w/ or w/o counsel. Black Dissentà becoming welfare state; will have unintended consequences

Notes: Why is pre-term hearing important? If written rebuttal brings up additional issues, they’re not addressed; uneducated unable to be effective in writing; ability to tell story in 3D

–The state can mitigate the cost through greater efficiency. Also, process values: state has an interest in an electorate that feels fairly treated.

–Black’s unintended consequences have happened. Less $ avail for benefits b/c spent in litigation

Board of Regents of State Colleges v. Roth (Sup Ct 1972) p. 88 à No Legit Property Right

Facts: Roth, a professor with a 1 yr K was not retained for a 2nd yr at the school. Upon release he was not provided with a reason or a hearing.

Issue/Holding: DP Violation? NO. PDP only applies to the denial of life, liberty and property. 14th Am protection of property is a safeguard of security interests that a person has already acquired in specific benefits-it does not extend to future interests they hoped to get but didn’t. Must have a legitimate claim of title to property (his name, honor, integrity not at stake). You need more than a unilateral expectation—entitlement is created by K, state entity. Dissent sees a property right in work.

Perry v. Sindermann (Sup Ct 1972) p. 95 à Yes Legit Property Right (Unilateral Expect + )

Facts: Sindermann (R) taught for 10 yrs in a state college under a series of Ks. After a disagreement with the college administration, R’s last 1 yr K was not renewed without opportunity for a hearing. The school had an informal tenure system.

Issue/Holding: DP violation? YES. The official suggestion of an informal tenure system (implied K) meant that he had more than just a unilateral expectation of conti

in the US as an enemy combatant be given a meaningful opportunity to receive notice and contest the fact-basis for that detention before a neutral decision-maker. Ct finds all Mathews factors to be high, but we “must uphold our values, especially during times of war.” War isn’t a “blank check.”

Note: While the Ct gives him rights, there’s a big series of compromises. Given less than most-security

DP detainees usually get: factual notice of their classification as enemy combatant (only to the extent that the information is not classified); Personal representative (as opposed to counsel)—can’t really prep b/c lots of the information is classified; no access to witnesses; hearsay evidence IS admissible; no right of cross-examination; need to attack the veracity of the evidence; presumption of guilt, which you can rebut; preponderance of evidence standard; Some of the evidence is classified, so the record isn’t whole; Who are the decision-makers?; The trial is NOT speedy

Cushman v. Shinseki (Ct of App, Fed Circuit 2009) Supp p. 14 à Rights not yet acquired

Held: DP rights were violated by the consideration of tainted medical evidence.

In other cases, deprived of a benefit they had; grew accustomed to receiving it. Here, different b/c not yet acquired the rightà This case says, yes, they have the same rights as people who are being thrown off of benefits. This probably wouldn’t hold up for people who haven’t yet obtained a job.

IV. CONFINING THE DUE PROCESS EXPLOSION

–Mathews v. Eldridge is a limitation; Additionally, narrowly defining what a property or liberty interest is allows cases to be dismissed before any elaborate balancing analysis occurs

Goss v. Lopez (Sup Ct 1975) p. 154 à Look to the weight, not nature, of the interests

Facts: Several students were temporarily suspended from their high school without a hearing prior to suspension or within a reasonable timeframe afterwards

Issue/Holding: Is there an interest; what process is due? YES. We look not to the weight, but to the nature of the interests. 10 day suspension is not de minimus. Suspension is milder deprivation than expulsion, but education is the most important function of state/local gov’t. Student’s interest [HIGH]: avoid unfair/mistaken exclusion. Risk of erroneous deprivation [HIGH]: Things are not always what they seem to be. Gov’t interest [LOW]: No prohibitive costs/interference with the educational process.

The procedures were minimal; didn’t wish to burden schools w/ quasi-jud proc (retreat from Goldberg)

Ingraham v. Wright (Sup Ct 1977) p. 160 à Example of Mathews test applied

Facts: Schools in FL used corporal punishment; statutorily authorized by negative inference

Issue/Holding: Is there an interest; what process is due? YES liberty interest, BUT low incidence of abuse, the openness of our schools, and the common-law safeguards (tort) are sufficient to afford DP.

Child’s interest [LOW]: subject to historical limits. Risk of Erroneous Deprivation [LOW]: insignificant; teacher/principal discretion; prudence/restraint (wtf Goss?). Gov’t Interest [HIGH]: The prior hearing would have to precede any paddling; burdensome. If opposed to corporal punishment, policy should come through community debate and legislative action.

Walters v. Nat’l Assoc. of Radiation Survivors (Sup Ct 1985) p. 169 àEx. of Mathews applied

Facts: Service-connected benefits to vets—not based upon need, but based upon service connection and degree of incapacity. Judicial review of VA decisions is precluded by statute; att’y fee limits—$10

Issue/Holding: Whether the fee limitation denies realistic opportunity to obtain legal representation, hence violating DP rights? NO. Gov’t interest [HIGH]: fee limits should remain to protect claimant’s benefits from being diverted to lawyers. The system should stay as informal and non-adversarial as possible. Difficult to quantify the erroneous deprivations. Benefits here are more like Mathews SS than Goldberg