I. Introduction to Federal Administrative Law
a. Governs how government agencies make decisions & how we can influence government
b. Model for all states
II. Where is Admin Law Found:
a. APA/State APA: Over 100 government agencies (most) governed by this
b. Organic Statutes: Congress creates agencies; tells them basic law supposed to use in broad context; agency issues regulation to flesh it out
c. Procedural Statutes & Substantive Statutes
d. Procedural Rules (established by agency): Code of Federal Regulations
i. Have to be consistent with APA and Organic statutes
i. Nothing in APA can be unconstitutional (even though nothing in it has)
ii. Organic rules and procedural rules are subject to constitutional analysis & often found unconstitutional
iii. Due Process: Constitutional underpinning of entire administrative state
f. Questions of Policy:
i. When Court is undecided on ambiguity, it wants to be sure it’s doing something that makes sense; want to make sure what they are doing is sound policy.
III. Rules v. Orders (the Londoner –BiMetallic distinction)
a. Agency is governed in 1 of 2 ways: Issue rules or orders
b. Everything in APA divided into these two categories.
c. Orders: Uniquely focused on the individual or small group; backward-looking; result of adjudication; the more the specific the target, the more like an order it is
i. Example: Cop sees you going 75 mph & gives citation
1. Order; directed at you specifically
ii. Londoner v. City and County of Denver:
1. Facts: Bd. of public works ordered the paving of a street next to P’s property; Tax assessment was ordered on neighborhood; P got notice & was allowed to submit contentions in writing, but not given a hearing.
2. Issue: Does lack of hearing violate DPC of 14th amendment
3. Holding: Yes. No hearing; Assessment void.
a. Assessment made at special city council meeting where P not given opportunity to present argument.
b. Before tax irrevocably fixed, taxpayers must have had notice and an opportunity to be heard.
4. Closer to order b/c small group w/ specific assessment.
5. Class Take Aways:
a. If legis. had not delegated taxing power to a subordinate body, notice & hearing could not be required (can raise taxes for any reason or no reason at all + can only change it if vote them out)
b. Due process is implicated b/c property is being taken w/o being heard
c. The hearing cannot take place after the tax is fixed-must be before; gives gov’t to do things quickly + gives them more power
i. Timing matters!
iii. Bowles v. Willingham:
1. Facts: Appellee owned several rental units. Rent ctrl administrator set the maximum rent that would be fixed on her properties. (adjudicative in nature. Landlord wants a hearing before rent control is imposed)
2. Issue: Violate due process under 5th Amendment?
3. Holding: No.
a. There is (enough) due process; Congress specifically provided for judicial review of rent control after the regulations were made effective.
b. Does not matter that the rent control order goes into effect before the decision is reviewed.
c. Balancing of interests.
i. State: there’s a war, if we let everyone appeal the rent control, we’ll never be able to control it.
ii. LL: I want my rent!
iii. Court comes down on the side of the State b/c of wartime exigencies.
1. Due process in emergency situations does not require jud. review before
4. Class Take Away
a. Landlord is complaining b/c he is singled out; order!
b. Ct. is not saying gov’t can do whatever it wants in wartime
i. Still get hearing, but takes form of judicial review after rent controls take place
c. If this was deprivation of liberty, the Ct. would not feel same way
i. Money, can be reimbursed afterward.
d. Rules: Apply to everyone; generally applicable; forward looking; the more people involved & the more general, the more like a rule it is
i. Example: Sign on highway says speed limit 50 mph
1. Rule; generally applicable
ii. Bi-Metallic Investment Co. v. State Board of Equalization of Colorado:
1. Facts: Bd. ordered a 40% valuation increase on all taxable property in Denver; P sued to enjoin b/c not given hearing
2. Issue: Violate due process clause of 14th amendment?
3. Holding: No.
a. Reassessment valid; notice and hearing were not required b/c it was a matter that applied to everyone alike
i. Not like Londoner v. Denver; affected small number of person exceptionally affected. Here, affected everyone equally.
b. When a rule of conduct applies to a large number of people, it’s impracticable that everyone gets a voice in its adoption. Not the same considerations as when it applies only to a few interested parties.
4. Class Take Away
a. If reasoning of Lononder applied, should have gotten a hearing here; have two subordinate agencies imposing assessments on people in Denver (entire city)
b. Case went the other way b/c Ct. airbrushed the discussion of subordinate v. legislature out of the picture.
i. All lots in Londoner were different sizes so uniquely affected; wanted to challenge the degree of own assessment.
ii. Holmes seizes on this aspect in Londoner – individuals impacted differently in individual way. So being singled out.
iii. Holmes draws distinction between rules and orders.
1. Flat rule that is generally applicable here.
2. Rules are subject to a different due process- are quasi-legislative & do not req.
iii. No accountability for gov’t official entrusted in overseeing prisons and giving out contract
1. Have complete immunity
4. Mechanisms of accountability operate differently in gov’t & private contexts
a. In private, almost none unless diligent contract supervisor
c. Supreme Court enforces a public/private distinction
i. Due process protections only apply to state actors & do not apply to private, non-governmental actors.
ii. Private actors can become state actors if they are sufficiently connected to the state
iii. Constitutional issues:
1. Can the government delegate the responsibilities
2. If so, what are the constitutional rts of the person in the private realm
3. State action doctrine : when you have made the public stuff private, still need to make sure that there is no unconstitutional stuff going on
d. Public/private partnerships seen in two main ways
i. Step away from the state (minimizes the role of the state)
ii. Extension of the state (delegating to private sector represents new ways for states to carry out their responsibilities)
e. Richardson v. McKnight: U.S. SC (1997)
i. Facts: Prisoner sued under 42 U.S.C. § 1983 (Every person who, under color of law, deprives another person of rights, shall be liable) for abuse by 2 prison guards in private prison. Guards asserted qualified immunity.
ii. Issue: Are prison guards who are employees of a private prison management firm entitled to qualified immunity
iii. Holding: No, not immune
1. Policy arguments for immunity for (at least) public prison guards.
a. Protect gov’t officials ability to serve public good
b. Discourage timidity in performing their jobs (maintain discipline)
c. Encourage qualified people to come in when they’d otherwise be scared away by possibility of lawsuits.
2. So how are private guards different? Breyer says:
a. Market forces will discourage timidity (lose job)
i. So diff than gov’t employees!
b. State of TN didn’t give immunity to private guards for state claims, so that gives Court comfort that maybe it doesn’t need to give immunity for Federal claims.
c. Private prisons can purchase insurance to mitigate negative effect that lawsuits might have on performance (won’t have to pay out of pocket)