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

Administrative Law and Process Outline
Parker, Fall 2016
University of Connecticut School of Law
What is Admin Law?
❖    Basics:
➢      A study of how Federal Administrative/Agencies function, process of decision making, controls by the agencies that affect private parties, and over the agencies by the other branches of government. Agency’s control through rules and orders. W/in the framework is permits, fines, prison sentences, and benefits. Agencies are controlled by Congress, the Executive, and the Judiciary. The main reason for agencies existence is the need for delegation of duties that cannot be performed by the President or Congress alone, and to allow expert parties to handle certain areas…
❖    Agency
➢      Each authority of the government of the U.S., except Congress, Courts, and President
❖    Independent Agencies
➢      (FCC, SEC, FTC, NLRB, NRC, FRB) Called “board” or “commission,” are independent because they are insulated from control by the president. 1) multi-member group, 2) no more than a simple majority from one party, 3) fixed, staggered terms 4) can only be removed for cause. Can bring up constitutional issues, because Pres. Charged w/ “enforcing the laws.”
❖    Separated Powers and Agencies
➢      Constitution separates powers, Congress (makes laws) Executive (enforces laws) Judicial (apply the law to cases). Agencies can and often do combine all three functions, and independent agencies are even outside of executive control. Agencies stem from the necessary and proper clause. (Art. I § 8 clause 18), and also from amount of practicality to allow execution of laws.
The Relationship of the Individual to the State…
❖    Three Questions
➢      (1) What is the governmental action that gives rise to the issues in the case before us?
■       The governmental entities we shall call administrative agencies include, for example, municipal and local bodies such as tax assessors, zoning boards, planning commissions, and school boards; state actors such as public service commissions, departments of motor vehicles, the environment or consumer affairs; and federal administrative agencies such as the Securities and Exchange Commission, the Internal revenue Service, the Department of Labor; or the Environmental Protection Agency.
●       It is important first to be very clear on just what the governmental action is that gives rise to the procedural claims in the case before you. 
➢      (2) How does the law characterize those actions?
■       Agencies can issues rules, orders, variances, rulings, ordinances, planning documents, tax assessments, expulsions, or suspensions.
■       Some of these actions will affect individuals directly.
■       Others will be more general and their specific impact on individuals more remote.
➢      (3) What are the legal consequences of those characterizations?
■       If an agency is engaged in issuing what we are sure is an order, and some kind of adjudicatory process is appropriate, does it follow that adjudicative processes similar to those used in a federal court must be employed.
❖    Rules or Orders?
➢      Londoner v. City and County of Denver (3)- Street being paved and charging citizens for it. Pr- APA case. Basic Due Process for Admin. Law. Due Process requirements attach adjudication or what is finally adjudications, but not necessarily w. rulemaking . Due process, opportunity to be heard, Dupe Process attached here because it was a decision by a non-legislative body based on individuals facts/circumstances.
■       RULE: When a state legislature commits to a subordinate body the duty of determining whether and in what amount a tax should be levied, and of making its assessment and apportionment, due process of law requires that the taxpayer have notice and an opportunity to be heard before the tax becomes law. 
■       Agencies are required to provide individual hearings when creating policy based on adjudicative facts. An adjudicative fact is a fact that is particular to and concerns a small number of parties.
●       For example, suppose that the Federal Highway Administration constructs a highway and taxes the adjacent landowners to fund the construction. Without a hearing, the tax would violate due process because the agency is depriving a small number of taxpayers of money.
➢      Bi-Metallic Investment Co. v. State Board of Equalization of Colorado (7)- Taxes increased by 40%. Not given opportunity to be heard. Dismissed because it was general tax levied against a large number of people. Due process (adjudicative procedures?) Are required only when “a relatively small number of persons are concerned, who are exceptionally affected, in each case upon individual grounds.” Bottom line adjudications require due process, rulemaking may not. (GO TO DUE PROCESS SECTION).  
■       RULE: Where an agency rule applies to a large number of people, the Due Process Clause does not require that each person have an opportunity to be heard regarding the rule’s adoption.
■       Sup Ct clarified that agencies are not required to hold individual hearings when creating policy based on legislative facts.
■       A legislative fact is a fact of general social, economic, or scientific relevance that concerns all regulated parties.
●       For examples, suppose that the Federal Highway Administration constructs a highway and taxes the entire American population to fund the construction. Even without a hearing, the tax would not violate due process because the agency is depriving all taxpayers of money.
➢      Bowles v. Willingham (11)- WWII manufacturer controlled rent-Mathews tes- Congress DOES NOT need to give notice when endowing authority to & in the formation of Agencies.
Due Process and Administrative Adjudication
❖    Application
➢      5th and 14th are interchangeable and apply to both federal and state governments. Daniels v. Williams determined that “only deliberate decisions of government officials” trigger due process concerns. Bi-Metallic & Londoner v. Denver, established that due process does not apply to general lawmaking, Due process is required when “a relatively small number of persons was concerned, who are exceptionally affected, in each case upon individual grounds.” Which means that due process is required when the proceeding is functionally adjudication.
■       Due process does not require agencies to hold individual hearings when making a deprivation of property based on a legislative fact that concerns all regulated parties (Bi-Metallic Co v. Colorado)
➢      Deprivation of life, liberty, or property without due process of law
■       Question 1: Has the state deprived person of life, liberty, or property?
■       Question 2: If so, did state do so by “due process”?
➢      Due Process in General:
■       An individual has the statutory right to a hearing when Congress requires the opportunity to hear heard APA §§ 554-555
■       When due process requires an individual hearing, agencies must use additional procedures to safeguard the individual's due process right to property or liberty.
■       Generally, an individual hearing must always include, at minimum, several basic procedures to satisfy due process: notice of the pending adverse action and the time and place of the hearing; the right to be heard during the hearg; an impartial decisionmaker who presides over the hearing without bias; the right to confront and cross-examine witnesses at the hearing; and the right to counsel.
●       For example: the VA must notify a veteran of a pending termination of disability benefits.
●       If required, the VA must provide the time and place of a hearing as well as an impartial judge. During the hearing, the veteran must be allowed to confront and cross examine any witnesses.
■       Admin agencies must avoid violating due process by providing an individual hearing when creating policy based on adjudicative facts.
●       Property interests include freedom from certain types of punishment or confinement as well as statutory entitlements to freedom.
●       Individual hearing require certain BASIC procedures and may occasionally require additional procedures based on a three factor test. 
◆      Basic procedures include:

sent witnesses.
●       RULE: The Court Returned to the standard set forth in Wolff: State-created liberty interests will be generally limited to freedom from restraint, which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary prison life.    
❖    Due Process and Welfare Reform
➢      Reynolds v. Giuliani (101)- Court issued a preliminary injunction directing the city to
■       (1) allow applicants for food stamps, Medicaid, cash assistance, expedited food stamps, and temporary pre-investigation grants to apply for benefits on the first day they visit a Job Center
■       (2) To process all applications for expedited food stamps and temporary pre-investigation grants at Job Centers within the timeframes required by law;
■       (3) To make eligibility determinations regarding food stamps and Medicaid separate for eligibility determinations regarding cash public assistance; and
■       (4) To send applicants for ongoing and emergency assistance written notice of determinations of their eligibility.
●       The court directed that an “informal intervention” process continue to be utilized to address individual cases of exigent need. 
■       District Court Held: State agencies must comply STRICTLY with their obligation to provide food stamps and Medicaid benefits to eligible applicants. The court expanded its order to cover “immediate needs grants” and to require issuance of expedited food stamps in five days rather than seven.
■       Second Circuit Held: The record does not support a finding of “deliberate indifference” by the State defendants to the rights of the plaintiff class, or warrant the issuance of a permanent injunction against the State defendants.
❖    How much Process is Due and When Should it Be Provided?
➢      Mathews v. Eldridge (109)- (Eldridge receiving SS payments, some process before term. But full process of formal adjudication after, w/opportunity for retroactive benefits)(same as Goldberg) basically requires balance of individual interest v government interest
■       First: Consider the private interest affected by the official action
■       Second: Consider the risk of an erroneous deprivation of the interest under the required procedures and the likely reduction of that risk by more or different procedures
■       Third: One must consider the government's interest in using the present procedure, as opposed to more procedure
■       When the court applied this test they found that an individual hearing must occur before the agency action if the loss would be severe; otherwise, the hearing may occur after the agency action.
●       For example. The VA may terminate a vet’s disability benefits before an individual hearing if the loss would not be severe
➢      CONSIDER: Dignitary view of simply people desiring to plead case to live person
■       In Mathews SS interest less than welfare, because need and not based on poverty. Trial type procedure not as useful because largely based on doctor’s reports. Strong government interest NO. More procedure required.
➢      NOTE: No court has ever held APA does not provide sufficient due process: claims alway arise when APA formal adjudication procedure is not followed. (Watch out for informal adjudication problem).
■       Remember must be government agent acting in government capacity: not like leaving a pillow on accident.