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Administrative Law
University of Connecticut School of Law
Chabot, Christine

Chabot_adminlaw_spring10

Section I: Introduction
1. Agency’s 3 functions
a. Legislative: FDA issues regulations & rules (basically the same)
b. Executive: Enforcement of regulations & rules via sanctions inspection etc.
c. Judicial/Adjudicative (fact finding)
i. Two types of fact finding
1. Enforcement Actions: agency hearing to force compliance
2. Permits: individualized determination of outcome based on facts
2. Reasons to Regulate (usually market failures)
a. Collective action: where single rational action hurts greater good (national defense)
b. Monopoly power: gov’t will regulate where monopoly
c. Inadequate Info: Need to compensate for inadequate info by requiring more
d. Externalities: spillover of economic transaction that impacts part not directly involved in transaction (ie 2d hand smoke)
e. Excessive competition
f. Windfall profits: OPEC
g. Scarcity: where not enough of something need to regulate (ie broadcast frequencies)
3. Limits Agency Decisions
a. Constitutional
i. Separation of powers: Non-delegation: always a loser
ii. Equal protection
iii. Subs due process: ie no rational basis
iv. 1st amendment: regulation of advertising/free speech
v. Proc. DP
b. Statutory
i. Organic statute: exceeds authority granted by Congress OR Agency actions inconsistent with statute
ii. Cross-cutting statute: usually APA
iii. Procedure: agency action procedurally invalid
c. Executive Orders
d. Agency’s Own rules and regs
e. Administrative common law
f. Factual
4. Admin Procedure Act
a. Sec. § 706: court review, court can:
i. Compel action where unreasonably delayed
ii. Can set aside
1. Arbitrary capricious action
2. Unconstitutional actions
3. Statutorily inconsistent actions
4. Procedurally incorrect
5. Unsupported by evidence
6. Unwarranted by the facts to the extent that the facts are subject to trial de novo review
5. Theories of Administrative Law
a. Rule of Law (Red Light)
i. Formalism
1. Transmission-belt theory (ie. Statutory formula to determine price for milk)
a. Agencies just exercising Congress’ power to give effect to statutes, agencies do not exercise any of their own independent power
ii. Proceduralism as an alternative?
iii. Would it give us more comfort if we make agencies hold a hearing before making decisions; is that enough of a check?
b. Public Purposes (Green Light)
i. Expert, rational decision making
1. Statute is not a limit to what agencies can do; but an invitation to figure out what can be done
ii. Should we rely on markets instead
1. Deregulation (more a red light theory)
2. Prediction markets
c. Democratic Process
i. Assume agencies are political players but may enhance democratic process
ii. Participation
1. Rulemaking procedures; if agency wants to pass a rule it is an open proceeding and anyone can participate
iii. Or political oversight?
1. SEC members can only be removed “for cause”
2. Argument is there should be a separation between agencies and direct presidential control
d. Public/Private Partnerships
i. At some level substituting private firm for gov’t has some incentives
1. Ie garbage collection and the cost
a. Is it cheaper and easier to use a private service rather then the gov’t
6. Introduction to the Due Process in Administrative Adjudication
7. Methods of Statutory Interpretation: what sources do cts examine to understand statutes?
a. Plain meaning of statutory language
b. Diction definition: Vehicle = wheeled means of conveyance (is this definition itself ambiguous? What is a means of conveyance?)à Dictionary definition might help clarify the indeterminate meaning of a term but it cannot completely define it
i. Snow mobile has no wheels but Congress might have intended to exclude it from parks
c. Legislative history
d. Intent/purpose of statute
e. Court or agency (custom) precedent: how term understood before
f. Statutory structure: other provisions might clarify meaning (suppose another section said “no person may use a bicycle in a wilderness area of a national park”- means vehicle does not cover bike b/c otherwise don’t need another comment)
8. No Statute will be completely determinate or indeterminate, but does statute have an unjustified degree of indeterminatncy? Is the set of possible circumstances that can be regulated too big?
a. Pro-indeterminacy: why should delegation be indeterminate?
i. Agency expertise
ii. Agency flexibility
iii. Possibility of adjudication
iv. Congressional “capture” by interest groups: agency less subject to capture?
v. Democratic legitimacy of the president (when his is player in delegation)
b. Pro-determinacy: why should delegation be more determinate?
i. Agencies may be subject to capture, just less visible to and effected by public
ii. Democratic legitimacy of congress (as rule making authority)
iii. Notice; benefit of specificity, public understands statute better

Section IA: Non-delegation Doctrine
1. Non-Delegation Doctrine
a. Art. I, § 1: Vests the legislative power in Congress
i. A delegation of power violates NDD if there is unjustified degree of indeterminacy
ii. USSC: intelligible principle necessary Schecter
1. Ct never struck down on terms of NDD- in practice, NDD is unenforced constitutional norm
b. Def: all legislative powers are vested w/in congress, and congress may not delegate those powers to another body
i. A statute may be struck down as an unconstitutional delegation of legislative power if it does not provide an intelligible principle limiting the agency’s [or president’s] power
ii. NOTE: Toothless doctrine has been (basically) abandoned
c. 3 Views
i. Constitutional delegation of legislative power to congress is an initial and FINAL allocation of power – so congress cannot delegate to anyone. Undisputed.
ii. Congress grant of power to executive (or private party) is illegal delegation where scope of power granted is too broad. Schecter
iii. Congress grant of power to executive (or private party) is ALWAYS LEGAL since the grant is an exercise of its legislative power. Steel Seizure cases
d. Delegation re: quasi-legislative powers
i. SCt uses “intelligible principle” test when Congress delegates legislative abilities to agencies
1. So long as the statute gives the agency an intelligible principle of what they are to follow then it is fine and not unconstitutional to delegate
a. But can’t be tooooo broad that they give away all their power
i. Can tell head of FDA to make baby formula “nutritious” and then the head can make changes to rules as he goes along
e. Delegation with quasi-judicial powers
i. Main concern is the delegation does not undermine the Art III branch

Section II: Adjudication (W/in Agency Walls)
1. Procedural Due Process Due Process
a. DP only applies to informal adjudcations
b. Issue: What procedures are required to ensure due process of law and when are these procedures required by the 14th Amendment?
i. 5th and 14th Amendments: neither US nor state govts shall deprive any person “of life, liberty, or property w/o due process of law.”
1. Liberty interests are created by the Constitution. Property Interests are based on a legitimate claim of entitlement grounded in non-constitutional law (Roth, below)
2 Questions: Analysis
2. Is this the type of government decision for which the Constitution guarantees certain minimum procedures? (Is there a liberty interest?) see Roth, Sinderman
a. Assuming liberty/property interest, Court independently decides what process is due. See Loudermill
3. How much process is due, given the need to balance the importance of the private party’s interest, the government’s need for expedition and informality, and the likelihood of erroneous decisions absent the procedural protections sought? See Matthews
a.
b. DP not apply to formal adjudications or formal rulemaking bc/ Sec. 556 and 557 provide more procedure than required by Constitution
i. Does not apply to informal rulemaking b/c constitutional DP not apply to Sec. 553
c. Identifying Interests
i. Property Interest:
1. Goldberg: Property interests no longer concern just real estate; may flow from sense of entitlement to certain benefits or privileges given by government
2. Roth: to have a 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 (reliance in daily life)
a. Grounded in non-constitutional law: statue, judicial/agency doctrine, unwritten practice
b. Reliance interest exists if there is a sufficiently high degree of determinacy in underlying source of non-constitutional law
3. Sinderman: Person’s interest is property interest for due process purposes if there are such rules or mutual understandings that support claim to entitlement of benefit- reasonable expectation of continued receipt of the benefit
ii. Property Interest and Pre-termination Hearings
1. Goldberg v. Kelly (1970)
a. Facts: Suit brought by residents receiving aid under Aid to Families with Dependent Children in NYC. They alleged state and city officials terminated aid without prior notice and a hearing, depriving them of due process. After the time of filing, procedural safeguards were implemented and plaintiffs (appellees) challenge constitutional adequacy of those procedures. Under these procedures, there is an initial agency decision, notification, and allowance for written submission by recipient, termination of benefits, post-termination administrative hearing, and judicial review. Does DPC require recipient to be afforded an evidentiary hearing before the termination of benefits?
b. Ct Reasoning: Weigh costs for gov and benefits to recipients in affording a DP right. This particular right/benefit (aid) is different because it provides means of living. Gov’s economic concerns, such as costs of delaying discontinuance of grants until post hearing, are not overriding in welfare context and state can attempt to minimize costs. Pre-determination hearing serves only to produce initial determination of validity of welfare dept’s grounds for termination in order to protect recipient from erroneous termination- only minimum procedural safeguards necessary: meaningful time and manner; timely and adequate notice detailing reasons for proposed termination and effective opportunity to orally defend and confront adverse witnesses. Written arguments are insufficient bc poorly educated people might not be able to write effectively and may seem more credible in person. Counsel does not need to be provided by recipient must be allowed to retain one if he desires. Evidence used to justify gov action that injures an individual must be disclosed
c. * Footnote 8- Property Interest: property is no longer just real estate; it is mostly held as ent

In Summary: Bottom line is that there MUST be some kind of hearing when life, liberty, or property interest is affected. BUT hearing can imply a written exchange, not necessarily an oral one. In Matthews, written is enough, he got all of the process that was due. What cout have done in these DP cases is to require some type of hearing (not necessarily an oral hearing) and if no pre-termination at least post, when ever any type of property or liberty interest is at issue
4. Formal Adjudication and the Administrative Procedure Act
a. §551 Rulemaking v. Adjudication
i. Adjudication (7) results in “order”, which is not a rule (6)
ii. Rulemaking results in a “rule,” which is the “whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or proscribe law or policy or describing the organization procedure…..”
1. Rule defined broadly- seems anything can be a rule, which means nothing is an order
2. Definition section of aPA not helpful- think more theoretically about the distinctions
iii. Theory: what is an order for purposes of the APA?
1. Formally concerns a specific /particular party (rather than a whole industry)- this distinction is based on the addressee
2. Underlying facts are “adjudicative” (about a particular party) rather than “legislative” (general)
a. What happens when there is a mix of legislative and adjudicative facts? Facts that effect whole industry and those that effect individual will usually be involved in a decision
3. Retrospective (applies standards to behavior of party) rather than forward looking (directs part to do something in the future/relevant facts are in the future)
a. Again, there will be some mix of facts and application
4. Small number of people affected by order (not as broad or far reaching as a rule)
b. Rule: Formally general except for general directives that seem to affect a very small class of people and are based on adjudicative facts (Londoner exception)
c. Order: Formally specific directive or a formally general directive w/in the small class exception
d. Administrative Procedure Act
i. APA § 554: Adjudications
1. Separation of an agency’s investigative and adjudicatory staffs below the commission or agency head level
2. (a) triggering (“magic words”) provision
3. (b) Notice to parties
4. (c)(1)- opportunity for pre-hearing submissions, opportunity for settlement
5. (c)(2)- if settlement doesn’t happen, then there’s a hearing and decision in accordance w/ §556/557
6. (d)(1)- ALJ cannot consult a person or party on a fact in issue, except w/ notice to all parties (not applicable to agency or members of agency)
7. (d)()- Structural Insulation àALJs may not be responsible to or subject to supervision or direction of enforcement staff. (Not applicable to agency or members of agency so commissioner can be involved in writing rule, then deciding that violation of rule should be investigated and then determining if violation occurred. -Any enforcement official who engaged in investigative or prosecuting functions in same case cannot participate or advise in the decision.
ii. APA § 556: Hearings; presiding EEs; powers and duties, etc (evidence gathering process)
1. (b)- Who Presides: Presiding official at hearing = ALJ or agency or members of agency
a. Agency = administrator or commissioners acting together
b. Members of agency = individual commissioner
c. ALJ=administrative law judges are not “federal judges” (in practice, it’s almost always an ALJ who presides at formal adjudicatory hearings); merit selection, for-cause tenure, rotation increases impartiality of ALJ
2. (c)- empowers presiding official to conduct hearing and guide evidence gathering process
3. (d)- oral hearing provision; evidence gathering process to build record
a. party is entitled to represent relevant evidence in oral or written form
i. evidence can be submitted in writing or orally. In cases where you won’t be prejudiced, agency can require it submission in writing
b. party is entitled to conduct such cross-examination as may be required for full and true disclosure of the facts. (presumptive, not absolute right- Seacoast)
i. Under PDP, Mathews balancing test would be used to determine if CE is required as a matter of DP. Burden is on party that wants CE to show why
4. (e)- record=exclusive record for decision