Administrative Law Shipley Fall 2017
OVERVIEW & THEORIES OF ADMINISTRATIVE LAW
Adjudication vs Rulemaking
Advantages to Adjudication – case-by-case basis
Advantages to Rulemaking – generally applicable
Flexibility: leads an agency to make law on the step-by-step basis à can observe actual operation of the law
New and unexpected: ad hoc is better where the agency is not yet in the position to make a general approach to an issue
Resources Savings: often less expensive and time-consuming by attacking an individual case but leaving larger problem till later
Resolution of Disagreements: solve problems case-by-case and not have to tackle big problems
Residual Adjudication: no matter how good rule is, you will always need adjudication to clarify ambiguities
Participation by all Affected Parties: can allow everyone to be a part of the process through submitting comments
Apt Procedure: built to handle broad questions and alter policy
Retroactivity: rules normally apply prospectively only – giving fair warning
Uniformity: rulemaking affects everyone in the same class in the same way
Political Input
Agency Agenda Setting: can attack higher priority problems not limited to cases in controversy
Definitiveness: settles disputes in one proceeding, don’t have to litigate over and over
Accessibility: rules are published while case law isn’t usually published
Oversight: easier for executive and leg branches of the gov’t to check the rules made by agencies
Sources of Admin Law
Constitution à Due Process claims, structuring agencies & degree that Congress can delegate power
Enabling Acts, Organic Statutes à establishes an agency & prescribes its mission
If an agency’s enabling act is inconsistent with the APA, the enabling act governs!
Administrative Procedure Acts (APA’s)
These state and federal statues apply to agencies generally – comprehensively decide rule making, procedures, adjudication, and judicial review
Model State APA
Main source of administrative law à federal statutes that govern agency action generally, but not aimed at a specific agency
Agency created rules, regulations, decisions, bulletins, and other documents
Common law
Administrative Process & Issues
Processes
Reoccurring Issues to Look for:
Rulemaking
regulations/rules
Other docs – guidelines
Licensing, permits, issue orders
Investigate and prosecute
Adjudicate cases
Resolve disputes
Rate-making
Judicial review
Regular court or specialized court
Scope of review
Legislative and executive oversight
Set the budget
Appoint and remove agency heads
Veto rules and regulations
Source of power à statute/enabling act & implicit/explicit limits on power
Guidelines for use of agency power à agency must act in accordance with substantive standards established in governing statute
APAs, statutes, constitution specified agency procedures
Judicial review, standard of review, availability of review
Separation of powers
THE CONSTITUTIONAL RIGHT TO A HEARING
HEARINGS & WELFARE TERMINATION: DUE PROCESS & MASS JUSTICE
Due Process – Notice & Opportunity to be Heard
THREE BIG ISSUES RELATED TO DUE PROCESS:
Does due process apply?
What is a protected liberty interest?
What is a property interest?
State action? State action is required
Note – DP does not apply to rulemaking
If so, when does it apply? (timing)
If so, what kind of hearing?
Compare a trial-type hearing similar to a civil proceeding under the FRCP (Goldberg v. Kelly) with a high school principal’s informational give and take with a student before suspending him or her from school for several days b/c of conduct (Goss v. Lopez)
Look to statute – has to give at list minimum constitutional procedure
Requires reasoning given by a neutral decisionmaker
*Remember: Once we decide that PDP applies, it is only a floor – nothing stops a legislative body from providing more judicial safeguards than what the Constitution requires*
GOLDBERG V. KELLY (1970) – recipients of Aid for Families with Dependent Children could get welfare taken away with the opportunity to a hearing after they are taken away – process given when you get benefits taken away involves notice in a letter to the recipient and a right to request review accompanied with a written statement from the recipient.
This is the high water mark of Procedural Due Process
CENTRAL ISSUE: whether adversarial hearings are a good way to protect the rights of benefit recipients? Aren’t there alternative approaches? Timing of the hearing – if there’s brutal need, unfair to terminate prior to hearing & also wanted oral hearing with witnesses
BALANCING TEST: Extent of DP required depends upon whether the loss to the recipient outweighs the governmental interest in summary adjudication
Interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State’s interest that payments not be erroneously terminated outweighs states competing concern to prevent any increase in its fiscal and administrative burdens
Fn 8 – “new property” included entitlements and are protected and state is taking away
Hearing must be at a meaningful time & in a meaningful manner – recipient must have timely/adequate notice detailing reasons for proposed termination and effective opportunity to defend by confronting any adverse witnesses (cross-examination) and presenting own arguments and evidence orally
informal procedures will suffice: we don’t need a quasi-judicial proceeding – although it pretty much looks like one à opportunity to present position orally, especially when credibility/veracity are at issue, can have counsel if they want, base decision on record of the hearing, must state reasons for determination, impartial decision maker (a lot to ask of agency)
DISSENT J. Black: the more process, the more expensive, the delays that this process will have will actually be worse for the welfare recipients as a whole
OUTCOME OF GOLDBERG V. KELLY:
Right to a continued flow of welfare benefits is an interest protected by procedural DP (entitlements are property)
DP requires a hearing before welfare benefits are terminated
A pre-termination hearing must include ingredients specified in case opinion
INTERESTS PROTECTED BY DUE PROCESS – LIBERTY & PROPERTY
Liberty & Property as Defined In Roth
BOARD OF REGENTS V. ROTH (1972) –ISSUE: whether the respondent had a constitutional right to a statement of reasons and a hearing on the University’s decision not to rehire him for another year
There is not property interest in re-employment when a professor (1) does not yet have tenure; and (2) is not re-hired after his employment agreement has run its course
Different case, maybe, if π’s reputation in not being re-hired was on the line or if π could not receive work as a result (Ex: π’s honesty is called into question)
Here, π’s employment interest was rooted in, and defined by, the employment agreement with the University
That agreement did not have a re-hiring provision and it did have a termination date
b/c that date had passed, π’s property interest was ended
To determine whether due process requirements apply in the first place, we must look not to the weight but to the nature of the interest at stake – procedural DP requirements apply only to the deprivation of interests encompassed by the 14A protection of liberty & property:
Look to the nature of the interest at stake to see if it is within the 14A protection
Liberty interest – right to K, engage in common occupations of life, acquire useful knowledge, marry, establish a home & bring up children, worship God, generally enjoy those privileges long recognized as essential to orderly pursuit of happiness
Liberty implicated only if a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him & thus opportunity to be heard
Also, no stigma on him or other disability that foreclosed his freedom to take advantage of other employment opportunities – since he didn’t have to publically clear his name or reputation there’s no liberty interest – was still able to freely seek employment elsewhere
Property interest – new property / interest in a benefit (legit claim of entitlement to it)
to have a property interest in a benefit, a person clearly just have more than an abstract need or desire for it, more than a unilateral expectation of it
New property depends on an entitlement created and defined by an independent source of law such as a state or federal statute – this means state can modify or eliminate the property right by modifying or repealing its positive law source
Weighing process for form of hearing required
14th amendment covers the protection of liberty and property – you must be entitled to or currently receiving the property interests which you claim are unjustly taken without PDP
DISSENT: J. Douglas à Π is entitled to a hearing b/c he alleged that dismissal was based on expressions protected by 1A & due process requires a statement of reasons or a hearing once you lose your job
Compare Roth to Perry v. Sinderman
Decided same day as Roth and involved a professor getting fired as well
Held there WAS a property interest b/c there was implied contract when the professor relied on practice and guidelines of university to only fire based on good cause – unwritten common law without an explicit system
Free speech rights – Roth ultimately prevailed on his 1A claim in district court & was awarded damages
Speaking as an employee is not speaking as a citizen who is insulated from employer discipline
Free speech & public employees – speech on a matter of public concern is PROTECTED // speech about official duties is NOT protected
Deprivation – difference in being denied something you want but don’t have vs. getting something you already have taken away: DP only applies to the latter
Refining The Roth Approach to Property & Liberty
CLEVELAND BOARD OF EDUCATION V. LOUDERMILL (1985) Two employees of the city who were only supposed to be discharged for cause are discharged w/o opportunity to respond – city says that they met DP b/c statute laid out termination procedure which they stuck to (a post-termination hearing and judicial review)
ISSUE: can a statute that creates property also prescribe the procedure for taking it away?
A state can provide more than DP requires, but they cannot go below the minimum – while legislature may elect not to confer a property interest in public employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards
Once it is determined that th
response in writing
3) the gov’t has an interest to preserve resources
constitutionalizing gov’t procedures is very expensive and become huge administrative burdens
Something less than an evidentiary hearing is sufficient prior to adverse administrative actions – just must ensure meaningful opportunity to present their case
DISSENT: JJ. Brennan and Marshall: rhe court’s decision that limited deprivation results in the case of disability benefits is speculative at best – this is drastic for the Eldridge family
In a case of emergency, a state can deprive an individual of liberty or property without a prior hearing, even if a later remedy is inadequate – tort remedy is enough
* in those cases, the inspection or audit that triggered the summary action likely is an adequate substitute for the pre-deprivation hearing
Timing and employment decisions – the court has accepted abbreviated pre-termination procedures
City of LA v. David: delays in hearing timing are ok
Daniels v. Flick: very informal give and take – Court held this to be sufficient
Gilbert v. Homar – DP allows suspension of a tenured campus policeman charged with drug offenses without providing any process prior to the suspension and without pay
Risk of wrongful deprivation was low because charges were verifiable & provided reasonable basis for action
ELEMENTS OF A CONSTITUTIONALLY FAIR HEARING
INGRAHAM V. WRIGHT (1977) is paddling a violation of 8A and does it require notice / opportunity to be heard under the DP clause?
Two step DP analysis:
Whether the asserted individual interests are encompassed within the 14As protection of life, liberty or property (are there interests of life, liberty, or property at stake)
If protected interest, must decide what procedures constitute DP of law – balancing of interests, history, reason
Where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child & inflicting physical pain, the 14 A IS violated à so what process is due?
MATHEWS TEST for determining what procedure is due:
Student’s liberty interest in no physical intrusion – especially if malice is involved, BUT history comes into play – so interest is subject to historical limitations
Existing safeguards / risk of error – word of mouth exists as a check, civil lawsuit, this is rare
Cost of providing more protection – will lose its effectiveness. These decisions should be made by the school district – legislative decision that is not for the court.
HOLDING: no pre-punishment hearing required by DP – practice is limited by common law and traditional common-law remedies are fully adequate to afford DP
This determination should be left to the community & legislatures
DISSENT: tort does not protect against this – infliction of physical pain cannot be undone
Compare to Paul v. Davis – a stigma qualifies as a deprivation of liberty only if state makes it in connection with some other change of right or status recognized by state law, such as discharge from job
Stigma plus change of right/status
Judicial remedies as a form of DP
Judicial remedies provide DP when a prior administrative proceeding is infeasible (note that a merely negligent deprivation of property is not a DP violation at all)
May also provide DP in a contract dispute between the government & a private contractor – no prior administrative hearing is required; a state court breach of K remedy is sufficient
De novo judicial trial as DP – a statute might provide for a de novo judicial trial that occurs before the deprivation of a property interest – judicial remedy would satisfy DP requirements
University of MO v. Horowitz – a student dismissed for academic rather than disciplinary reasons is entitled to much less process than the disciplinary trial-type DP hearing
An academic judgment is more subjective & evaluative than factual questions in average disciplinary decisions
DP does not require a hearing unless there is a relevant issue of disputed fact
For example, those circumstances where narrowing rules are in place w/ safety valve
Statement of reasons – DP requirement that a decisionmaker state the reasons for his determination and indicate the evidence he relied on is sometimes stated as a right to “reasoned decisionmaking”
