Select Page

Administrative Law
University of Connecticut School of Law
Thaw, David B.

Administrative Law

University of Connecticut School of Law

Professor Thaw

Fall of 2013

Administrative Agency -organization with specific mandate

Where does the authority come from?

· People –Constitution- authorizes legislature to enact statues- legislature through organic/enabling statutes delegates authority to agencies- agencies do: (1) rule making; (2) adjudication;

Vs. (Here is where there is tension)King George (overconcentration of power). There is no presumption of legitimacy if the administrative body is not elected.

Rulemaking v. Adjudication

Two principles characteristics distinguish rulemaking from adjudication:

1) Adjudication resolves disputes among specific individuals in specific cases, whereas rulemaking affects the rights of broad classes of unspecified individuals.

2) Because adjudication involves concrete disputes, they have an immediate effect on specific individuals (those involved in the dispute). Rulemaking in contract, is prospective, and has a definitive effects on individuals only after the rule subsequently is applied.

· Based on the circumstances, an agency will argue that it’s doing rulemaking or adjudication to be required to do less procedures.

RULE: “The whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. 551(4)

· Bi-Metallic Investment Co. v. State Board of Equalization of Colorado (1915, pg. 20) – The City of Denver decided to raise the property values of all taxable property in the city. The USSC held that the increase was rulemaking, not requiring procedural due process protections because it did not use individual circumstances of any property owner in arriving at its decision. Instead, the city’s increase applied to all properties across the city.

o This was a challenge on similar grounds as Londoner. What’s different here is that the rule applied to everyone, so it’s impracticable to give everyone an opportunity to be heard.

ADJUDICATION (results in an order): virtually any agency action that is not rulemaking. 5 U.S.C. 551(6)(7)

· Londoner v. County of Denver (1908, pg. 14):(mostly an adjudication case)- a city ordinance allowed certain areas of the city to be chosen for paving, and the costs to be shared with the individual landowners based on the assessed value of their particular property. Londoner complained arguing that his property had been arbitrarily assessed and without any opportunity to object or dispute the assessment. The USSC held that there was an individualization of the facts, as the assessment took special account of Londoner’s (and other owners’) properties individually.

· “Where the legislature of a State, instead of fixing the tax itself, commits to some subordinate body the duty of determining the assessment and apportionment, due process of law requires that at some state of the proceedings before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, either personal, by publication, or by a law fixing the time and place of the hearing.”

· If it was legislature that put a tax on everyone, it would have been fine because when an elected body makes a law, the public is on notice. So, the 14th amendment issue does not arise.

· Yesler Terrace Community Council v. Cisneros (1994, p23) – Section 8 housing tenants could ordinarily be evicted only after a grievance hearing before the public housing authority that administers their residents. In cases of eviction for drug related or certain other criminal activity, however, PHAs could omit the otherwise mandatory grievance procedures, but only if the federal Department of Housing and Urban Development (HUD) has determined that state court eviction procedures satisfy the elements of due process. In 1991, HUD advised Washington that it had determined that Washington’s state court eviction procedures satisfy the elements of due process, and that Washington’s PHA’s therefore could dispense with grievance hearing for crime-related evictions. In 1992, the Seattle Housing Authority served Marla Davison with an eviction notice stating that she would not be afforded a grievance hearing because her eviction was due to alleged criminal activity. Davison brought an action seeking injunctive and declaratory relief on the ground that HJUD violated her due process when HUD did not provide her notice and an opportunity to comment.

§ HUD argued that legal requirements for procedures for the issuance of rules does not apply here because its determination that Washington’s eviction procedures standards is not a rule at all, but instead is an order stemming from an informal adjudication. Adjudication here would have meant less procedure.

§ The court does not buy that argument. HUD’s determination that Washington’s state-court eviction procedures met HUD’s due process requirements has all the hallmarks of a rule. HUD’s determination had no immediate concrete effect on anyone in particular, but merely permitted PHA’s to evict tenants in the future without providing them with informal grievance hearings. At the same time, the determination affected the rights of a broad category of individuals not yet identified. Before the decision was made, all public housing tenants in the state had a statutory right to a pre-eviction grievance hearing. After the decision, no public housing tenants accused of certain criminal activity had such a right. So, HUD’s determination was a rule, not adjudication.

§ It comes down to what is the proper unit of analysis? Is it individual or the state? If it’s individuals, it sounds like adjudication. If it’s state policy, (the way the court frames it), its rule making.

· Association of Irritated Residents v. EPA (2007, pg 29) – EPA was trying to figure out how to regulate animal feeding operations (AFO’s). EPA doesn’t have enough information and they need to study it. So, EPA makes a deal with the farmers for them to cooperate with EPA’s study in return for a promise of EPA to not sue them. Each participating AFO signs an individual Agreement with EPA, but all the Agreements have identical terms. The residents argue it’s a rule rather than adjudication to force EPA to give them more procedure. They argue that EPA made a rule that affects everyone and that the farmers were not afforded a meaningful opportunity for comment (Procedure requirements give them bargaining power).The EPA argues that the Agreement is not a rulemaking, but rather a valid exercise of the agency’s enforcement discretion.

o Dissent: if it smells like a rule it’s a rule. (Pg. 33)

Constitutional Constrains on Agency Procedure (Chapter 5, pg 802-806)

· Fifth Amendment provides that “(n)o person shall be deprived of life, liberty, or property, without due process of law” by the federal government.”

· Section one of the Fourteenth Amendment similarly provides with respect to the states that “(n)o State shall deprive any person of life, liberty, or property without due process of law.”

Roadmap for Due Process Problems:

· Both due process clauses – the Fourteenth Amendment expressly and the Fifth Amendment impliedly – speak only to the actions of government. Private citizens who are not acting pursuant to any governmental authority cannot violate the due process clauses.

· Most of the case law on procedural due process is concerned with defining the phrases “life liberty” and property and “without due process of law”.

o The first phrase describes the legal interests that are subject to protection under the due process clauses, while the second describes the kind of protection provided.

o Due process clauses contain three on-off switches: (1) “deprive,” (2) “person.” (3) And “life, liberty, or property.” If the government action in question is not a deprivation, or does not affect a person, or does not involve life liberty or property, then due process clauses by their terms require no particular procedures. If however, all three requirements are satisfied, if all three switches are on, then the due process clauses apply and require the government to act in accordance with the principles of due process of law.

o The fourth on switch is that procedural due process usually applies only to agency adjudication, not to agency rulemaking. Due process imposes no procedural requirements at all when agencies are acting in a legislative-like capacity affecting large communities.

Rise of Entitlement Theory- Model for identifying constitutionally protected interests. These two cases continue to be among the cornerstones of modern due process law. Two-step process: (1) Does Due Process apply? (2) If so, What process is due?

· STEP ONE: are there protected interests (does due process apply?)

· Board of Regents of State Colleges v. Roth (1972, pg846) – Roth was hired as an assistant professor under a one year term contract, but his contract was not renewed. Roth brought a suit against the university claiming that he was denied his procedural due process right because he was never given the reason for the decision to not be rehired. State University policy allowed non-tenured professors to be “not-retained” at the end of their specified term. USSC held that Roth did not have a right to a statement of reasons. Roth had not shown that a protected property interest had been created that was protected under the 14th Amendment. So, the analysis ends with the first step.

o Is the interest within the Fourteenth Amendment’s protection of liberty and property? Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.

· RULE: To have property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must instead, have a legitimate claim of entitlement to it (Roth)

· RULE: Property interests’ dimensions are defined by existing rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. For example, the welfare recipients in Goldberg v. Kell

ial discretion; specified mitigating and aggravating factors

§ Congress determined certain factors that could or could not be considered and cannot be considers such as gender, race

o Congress is allowed to seek assistance. The extent of that assistance must be governed according to the intelligible principle test. So, we’ll allow really broad delegation because of the functionalist type of reasons.

o Panama asked for more. It asked for a standard and opportunity to evaluate. Here, there is enough direction to satisfy the test.

§ Scalia (dissent): Does not question notion that we may need to have broad standards. However, this is not just co-mingling of power between agencies (that happens all the time), but this is the creation of a new branch altogether, a “Junior Varsity Congress.” To Scalia, you can only delegate things that they have already power to do under the constitution

· But judges can deviate from the guidelines. So, Scalia probably takes it too far.

LIFE AFTER MISTRETTA – Nondelegation challenges very much weakened, not many non-delegation challenges.

§ State of South Dakota v. United States Department of the Interior (1996): Statute allowed the Secretary of Interior to acquire land for purpose of giving to Indian Tribes. There is no standard at all for what land can be bought for Indian Tribes (suggests you can buy Empire State Building for wedding present to Indian Chief). The case didn’t get to the Supreme Court because the agency rewrote its regulations and the 8th Circuit was ok with those.

§ American Trucking Associations v. United States EPA (1999): A statute authorized EPA to promulgate regulations establishing national air quality standards for certain air pollutants.The Act says that each standard should be set at a level “requisite to protect the public health” with an “adequate margin of safety.” The court held that this provision did not violate the delegation doctrine. The court explained that the discretion granted to EPA was “well within the outer limits of our nondelegation precedents.” Indeterminate words such as “imminent,” “necessary” and “hazardous” provide sufficient guidance to agencies; there is no requirement that Congress specify how imminent, how necessary, or how hazardous something much be.

Industrial Union Department, AFL-CIO v. American Petroleum Inst (1980, pg86) – (Benzene case) –Not much on delegation here, other than Rehnquest concurrence. However, there is a very real nondelegation aspect of the case and it allows us to talk about the idea of protecting democracy when we also have administrative agencies.


o Rehnquist was really concerned with the fact that administrative agency was asked whether the possibility of future deaths can match the costs of preventing those deaths

§ OSHA decided the value of a human life

o Problem should be the job of congress = nondelegation problem = determining value of human life has to come from congress

§ Congress needed to set up intelligible principle, but there is no intelligible principle that can be laid out so that an administrative agency can decide the value of a human life

· Congress has to make core policy decisions = nothing is more core than the value of a human life

o è there are some things that simply cannot be delegate; not possible to set out an intelligible principle for the evaluating human life

– In Other words, Renquist: One thing is clear. The agency is asked to balance health concerns and economics to decide the value of human life. However, agencies should not get to decide that. Congress is better suited and most obligated to make choices on the value of life. So, Congress should come up with a clear policy and let the agency fill in the blanks. Congress has to determine the “how”.

§ Prof. Thaw: If we see nondelegation challenge again, it will be along the same grounds as this. It would have to involve a huge policy decision (value of life) and the statute would have to be really broad. Benzene involved a force of law policy decision. It would have to be something like that.