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

Administrative law Spring 2007
1.    Relationship of the Individual To the State
a.    3 Questions for agencies
i.        How do agencies control us?
ii.      How are they themselves influenced and controlled?
iii.    How do they make decisions and how do we make sure those decisions are rational and fair and lawful?
iv.    Agencies do not have any powers of their own
1.    State agencies – get power from state
2.    Federal agencies – get power from Congress through organic statute
a.    Exception – military agencies can be delegated power by President
v.      Where administrative law is found
1.    Administrative procedure actà shapes how agencies can make decisions
a.    Enacted 1947, not amended since
2.    Organic Statute
a.    Statute that gives the agency the power to do it’s job
b.    Example – Securities and Exchange Act
c.    May stipulate procedures that trump the Administrative procedures act (APA)
d.    APA is like the default rule
3.    Regulations
a.    Rules that are passed (eg – maximum emissions)
b.    Can be Procedural
c.    Must be consistent with organic statute or APA, whichever applies
d.    These are typically subject of interpretation
vi.    Constitutional Rules
1.    Due process, separation of powers, appointments clause of constitution, etc
vii.  Policy
1.    What makes good policy?
a.    Accuracy – decision that is technically correct, factually well founded, grounded in science
b.    Legitimacy/Accountability
c.    Efficiency – Getting the decision done in a reasonable amount of time
2.    Policy is kind of a gap-filler
a.    Can be used to fill where not covered by statute or constitution
b.    Rules v Orders
i.        Rules – usually has general application
1.    Eg. Speed limit is 35mph
2.    Subordinate Bodies AND legislature can issue rules
3.    Are usually forward-looking à what’s required in future
4.    Rules have individualized impacts over time
5.    Not OK if designed to single out someone, but this is VERY hard to prove
6.    Gov’t reluctant to allow discovery – wary of potential floodgates
ii.      Order – usually more individual
1.    Giving a ticket is an adjudication, is an order
2.    Are usually backward looking
3.    You did something we want to prevent – issue an order
iii.    Londoner v City and Court of Denver US Supreme 1908 (p4)
1.    Denver charter – city can tax residents for cost of benefits from local improvements
2.    (1) Majority of owners with frontage sign petition asking Board of public works for an improvement. (2) passage of the ordinance by city council (3) board sets specifications and assesses cost for each land owner after notice by publication and opportunity for any owner to be heard. 
3.    HELD – VIOLATION of due process
a.    Petitioner landowners were never given opportunity to be heard BEFORE taxed
4.    RULE – when a subordinate body and not legislature issues a tax, they must give those taxed a right to be heard because taxing is a deprivation of property
iv.    Bi-Metallic v State Board of Equalization of Colorado.US Supreme Court 1915 (p8)
1.    Challenge to State Board of Equalization – a subordinate body – increasing property tax
a.    (Board is NOT legislature itself)
2.    Held – NO VIOLATION of due process
a.    Order applies to everyone – it is a rule, similar to a legislative act
3.    Court: when a rule of conduct applies to more then a few people, would be impractical to allow everyone a right to be heard
a.    There must be a limit to allow government to function
4.    General RULE – this case could have gone the other way
a.    Rules that are generally applicable do NOT trigger due process right to a hearing
i.      Constitution doesn’t require it
ii.    BUT – statute could be passed to require it
c.    Public vs Private Authority
i.        Today more often private companies have been given government-like responsibilities
ii.      Prison systems – privately owned
1.    Power to keep someone against their will is the epitome of government responsibility
iii.    1980 – Reagan gave a lot of govt responsibility to private contractors
1.    Ex – Iraq – private actors were armed and fighting, highly unusual
a.    Technically private contractors – but had govt protection
iv.    Richardson v McNight. US Supreme 1997 (p30)
1.    question – do private prison guards have same right to immunity as state prison guards?
2.    HELD – NO, no immunity for private actors
3.    USC §1983 (Handout) – person who, under color of state, causes person to be deprived of rights secured by the constitution, that person can be held liable UNLESS they are a judicial officer acting within their capacity
4.    This is a QUALIFIED immunity
a.    Does not cover intentional misconduct & must occur within the scope of their job
5.    Why have qualified immunity at all?
a.    Common law tradition AND public policy mean judicial reinterpretation of a statute is often in favor of the past practice
b.    Purpose of §1983 was to waive sovereign immunity
i.      Court interpretation – one cannot deprive another of rights unless they are a judicial officer
c.    Insurance argument : Private can purchase insurance to protect themselves, why not have the state do the same?
6.    Majority – BREYER
a.    Private employees work in a free market system – don’t need immunity b/c inspired to work efficiently by risk of competition
b.    Private can get insurance – protect from torts
c.    [Scalia retort – no such thing as civil rights liability insurance] 7.    Dissent – SCALIA
a.    Qualified immunity should be for state and private actors
b.    State and private guards perform identical jobs
i.      If private have absolute power – risk of them bring too tough
ii.    If have no immunity – fear of lawsuit, risk of them being too timid
iii. Either way à it’s the same as the state guards
c.    Not really a free market system – once in place, hard for private to lose the contract
d.    If private has immunity – IS a risk guards more likely to violate rights because less fear of repercussions – BUT majority did not address this, focused on timidity factor
v.      Section Summaryà we have a lot of private actors w/power

visor. Recipient can request post-termination hearing,
b.    HAVE a pre-termination oral hearing
i.      Recipient can appear, present oral argument, cross examine, option of counsel
ii.    Oral hearing is INSUFFICIENT – uneducated, can’t put good argument into words. Judge controls– can request info according to what he already thinks
4.    TEST the court used
a.    Government interest vs personal interest
i.      Depriving welfare recipients is unconscionable – they are destitute
b.    Opposing argument – risk state paying underserved benefits while await hearings
5.    Oral hearing is INSUFFICIENT – uneducated, can’t put good argument into words.
a.    Judge controls the hearing – can request info according to what he already thinks
6.    BLACK – dissent was very predictive
a.    Court here made it hard to get off welfare, so state made it harder to get on
b.    State made pre-termination hearings brief – bright-line, highly objective, low discretion
f.     Refining the Due Process Methodology – Property & Liberty Interests
i.        Board of Regents v Roth. US Supreme 1972 (p88)
1.    Professor fired after one year w/no reason claims violation of due process
3.    Requirements of procedural due process apply ONLY to the deprivation of interests encompassed by the 14th amendment’s protection of liberty and property
4.    RULE à To claim a property interest – MUST have entitlement based on statute or contract
a.    need MORE then a person’s desire or dependency
5.    MARSHALL – dissent
a.    Liberty to work is essence of property right secured by the 14th amendment
ii.      Perry v Sinderman. US Supreme 1972 (p95)
1.    HELD à VIOLATION of Due Process
2.    Clause in teacher’s manual said profs could assume tenure – implied contract for entitlement
iii.    Bishop v Wood. US 1976
1.    HELD – NO property interest
2.    Cop fired with no hearing – but he was told fired b/c failure to follow orders, poor training attendance
3.    RULE – in the absence of a claim that the employer intended to restrict constitutional rightsà it is a State and not Federal claim
4.    Court – claim has to be decided on state law à city ordinance says he held his position at the will and pleasure of the city à therefore no property interest
5.    Reason – federal court not forum to review personnel decisions of public agencies
6.    BRENNAN – Dissent
a.    Constitution, NOT state law, should determine the process to be applied