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Administrative Law
University of Connecticut School of Law
Lindseth, Peter L.


v Executive Control of Administrative Agencies

Ø Removal of Executive Officers

§ Humphrey’s Executor v. United States (Remove FTC Commissioner for “inefficiency, neglect of duty or malfeasance”)

· The President does not have an unrestricted power, under the United States Constitution, to remove a gov’t officer whose functions are legislative and judicial in nature where Congress provided specific grounds upon which the officer may be removed.

· Congress may place statutory restrictions (such as to require a finding of “good cause”) before an official exercising quasi-judicial and quasi-legislative power can be removed.

· Unlike Meyers b/c here Commissioner exercised quasi-judicial and quasi-legislative functions that were appropriately shielded from excessive presidential influence; whereas, in Meyers, the postmaster was purely an executive officer restricted to performance of executive functions.



v Due Process Clause

Ø Due process rights attach when a gov’t deprives or threatens to deprive a person of life, liberty or property.

Ø The 5th and 14th Amendments prohibit gov’t from depriving any person of a protected interest w/o due process of law.

§ 5th: Applies to federal gov’t.

§ 14th: Applies to state gov’t.

Ø Whether an agency is required to provide a hearing and, if so, what process is required at the hearing?

Ø Core Due Process Rights:

§ Notice;

§ Oral hearing;

§ Counsel;

§ Right to Confront Evidence;

§ Neutral Decision-maker.

v Due Process Constraints on Choice of Procedure

Ø The major procedural models: rulemaking or adjudication.

§ Agencies may make decisions informally, w/o using either an adjudicatory or rulemaking process when no particular procedural model is statutorily or constitutionally required.

Ø The choice between rulemaking is left to Congress or the agency under delegation from Congress.

Ø Due process requires adjudication in narrow, rare circumstances.

Ø Due Process and Adjudicative Facts

§ Due process requires notice & an adjudicatory hearing when agency action affects a particular party and is based on facts specific to that party. These facts are referred to as adjudicative facts.

· For example, adjudication in the abstract to decide who gets a grant.

§ Adjudicative facts b/c they are the type of facts that are found out through the adjudicatory process that focuses on the particular situation of a single or small number of parties.

Ø Londoner v. Denver (Taxing Property Owners for Street Paving)

§ The USSC held that an agency w/ delegated authority to tax property owners for street paving, was constitutionally required to hold individual hearings.

§ Due process requires a hearing w/ rights to present evidence and arguments b/c the agency’s decision was particularized to the situation of each property owner.

Ø Due Process and Legislative Facts

§ Where agency action is based on conditions common to many parties, such as the value of all property in a city, such general facts are referred to as legislative facts and a legislative process is constitutionally sufficient.

§ No hearings required.

§ Legislative facts b/c they are normally found legislatively.

Ø Bi-Metallic Investment Co. v. State Board of Equalization (40% Tax Increase For ALL Properties)

§ When an agency imposes a tax on an across-the-board basis, w/o attention to the particulars of any taxpayer, due process does not require individualized hearings.

§ When “more than a few people” are affected, legislative procedures are sufficient and the normal channels of gov’t accountability provide the only practical safeguard (impractical to hear every person’s arguments and evidence.)

v Due Process and the Adjudicatory Hearing: The “Due Process Revolution”

Ø Interests such as gov’t benefits, gov’t employment, licenses, and the like used to be thought of as gratuities that could be withdrawn at anytime w/o due process.

Ø Now, the courts have recognized these interests as property interests.

§ These are referred to as new property.


Ø Goldberg v. Kelly (Welfare Bennies)

§ Welfare benefits could not be terminated w/o first holding a hearing to determine the recipient’s continued eligibility. Welfare statute created an entitlement to benefits.

§ Due process requires some sort of oral hearing before termination when a person wrongly terminated from welfare will likely suffer a grievous loss.

· Some courts have held that grievous loss created a property or liberty interest – therefore, anytime a gov’t action could have a severe negative effect on an individual, a pre-deprivation hearing is required. This is incorrect.

¨ Grievous loss: Amount of process due, not the existence of a protected interest.

¨ Whether due process is required at all is determined by whether the statute or some other source of law created an entitlement to the gov’t benefit.


§ Determined by applying federal due process standards to the procedures already provided and asking whether those procedures are accurate.

§ When due process applies, it requires a hearing at a meaningful time.

§ The USSC created the balancing test (in Matthews v. Eldridge) to determine what process is due.

· Once it is determined that an action will deprive a person of a protected interest, three factors must be considered to determine the level of process that must be afforded.

§ Balancing Test:

· What is the strength of the private interest affected

egulations, for the creation of property interests. (Board of Regents v. Roth)

§ Legal Entitlements Create Property Interests: If an external source such as state law creates a claim of entitlement to a state benefit, then a property interest exists.

· Conversely, if state law does not recognize a claim of entitlement, so that he claimant has only a unilateral expectation of receiving the gov’t benefit, then no property interest exists and due process protections do not attach.

§ Entitlements Exist When The Interest Is Governed by Criteria, Rather Than Discretion:

· A claim of entitlement exists when law, custom, or practice establishes that claims to the gov’t benefit are evaluated under a definite set of criteria.

¨ Example: State law or employment contract provides employee may not be terminated absent good cause. The employee has a property interest in continued employment. Therefore, due process must be followed before termination.

¨ Examples: Gov’t employees at will do not have a claim of entitlement and may be terminated w/o due process.

§ Entitlements Are Created By Substantive, Not Procedural Law:

· If a statute provides procedural protections only, no entitlement exists.

· Procedural constraints on gov’t action are normally insufficient to create an entitlement.

· Example: When a statute defines eligibility for welfare payments, those who meet eligibility requirements have a claim to such payments.

· Like Cleveland v. Loudermill (Felony servant fired) Where the Ohio law stated could only be terminated for “good cause,” gov’t employees had a property interest in continued employment and were at least entitled to a limited pre-termination hearing.

§ Board of Regents of State Colleges v. Roth (“Fixed Term” Professor)

· The absence of a renewal provision meant that the teacher lacked a property interest in continued employment and thus the university was not required to provide the teacher w/ a hearing before deciding not to appoint him for another year.

· Property interests are created by sources external to the Constitution, such as state law.

¨ Thus, there was no property interest b/c nothing in state law or the employment contract constrained the gov’t’s decision whether to continue the employment beyond the initial contractual term.