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Administrative Law
University of Iowa School of Law
Bonfield, Arthur E.

Administrative Law-Bonfield 2014
Chapter 1: Introduction
o    Administrative agencies: bodies, other than the legislature and the courts, that affect, define, or determine private rights. All levels of government have administrative agencies.
o    Agencies have only those powers delegated to them (expressly or impliedly). Sources: the Constitution, the APA, particular agency enabling acts, and administrative common law.
o    Agencies:
§  Engagne in rule making, power to license, require reports, set rates, investigate, prosecute, and  adjudicateEngage in the making and application of laws.
·         Agencies put out more laws than the legislature and the courts combined.
·         Engage in judicial and legislative review – Federal: EPA, FCC, FTC, NLRB
o    Type of agencies:
o    Regulatory: issue rules and law. Tell you what you can do and what you cannot do.
§  Rulemaking, adjudication, and informal adjudication.
o    Benefactory: give things. University, welfare, unemployment. Agencies adjudicate disputes.
o    Most lawyers/citizens come in contact with more state admin law than federal.
o    State/local: education, restaurant licensing, health regulations (most), auto licensing.
o    Differences in State and Federal Agencies:
o    State agencies and their constituents are smaller than the federal agencies.
o    State agencies must have different processes because most of the people dealing with the agency are ordinary citizens (poorer, less educated, less resources), not attorneys. At the federal law, almost all entities are represented by counsel.
o    At the federal level, the economic value of the matters at stake is most likely much higher.
o    At the state level, multiple levels of political subdivision (county, city). Federal: only one.
o    Some state agencies are created by state constitution. Some state agency heads are directly elected and may work part time. No federal agency heads are elected and work full time.
o    State constitutions are different than the federal constitution. Federal constitution prohibits some things (like legislative vetoes) that state constitutions permit.
o    Administrative Procedure Act (APA): statutory code of procedure to regulate agency processes.
o    Federal APA (enacted in 1946) and state (IOWA)(enacted between 1945 and 1980)
o    3 Objectives of the APA:
§  To give adequate protection to private rights.
§  To seek as much uniformity in agency procedures as makes sense under the circumstances.
§  To ensure that agencies act in a manner both legal/legitimate and responsible to people’s will.
·         Goals should be balanced against the need for efficient, economic and effective gov.
o    Each state and the federal government have APAs that set out general principles which allow each agency to tailor the details by its own rules.
o    APAs generally cover: Usually considered comprehensive and general (wide coverage)
§  Access to the contents of agency law.
§  Rulemaking procedures (like statutes except created by agency).
§  Adjudication procedures.
§  Judicial, legislative, and executive review of agency action.
o    APAs are usually general acts which cover all/most agencies of the government that adopts them
§  State government APAs do not usually apply to city, county agencies so not that “general”
§  State APAs are politically difficult to get adopted at a local level – local prefer deregulation
o    Relationship of APA to other statutes:
§  Federal APA (§559) only applies to federal agencies.
·         Applies unless statute exempts
§  State APA (§17A.23) only applies to state agencies.
·         Automatically apply, unless a statute expressly exempts by name (IAPA)
§  APAs are meant to be floors, not ceilings, on the rights they confer and the duties they impose. If other statutes require more, than must do more – not just APA.
§  §559: Agency definition does not expressly exclude the President, but case law by the Supreme Court has declared that the President is not an agency (unless explicitly stated
·         (§551(1)) – Agency is everything but the courts, Congress, government of territories
§  §17A.2 – Agency is each board, commission, department, officer or other state admin office
§  §17A.23: General assembly, the governor, local gov, and the courts are excluded as agencies. “Exemptions are to be construed narrowly and inclusions broadly.”
·         Local agencies (political subdivisions) are not included. Rationale:
o    Substantive merits argument: Local governments are so varied that you could not impose regulations to apply to all.
o    Real argument: cities are so powerful that every time anyone suggests a minimum code of procedure be enacted, never gets through the legislature.
·         An agency can only get out of being covered by the APA by express legislation which specificically mentions exemption from IAPA (559/17A.12 and 17A.23 (IAPAmust also state applicable IAPA section exempt))
o    APAs are general and comprehensive:
§  General: apply to all or most agencies rather than to just one or a few.
§  Comprehensive: deal with the main problems in administrative law: public access to agency information, agency rulemaking procedure, agency adjudication procedure, judicial review.
o    Administrative Process: process by which we can get laws enforced by more effective and efficient manner than have a prosecutor go to court. Benefits: conforms w/ separation of powers theory, offers regular oversight, effective, flexible, efficient, speedy, less expensive v. judicial enforce, agency is expert.
o    Research/publicity: find out what the problems are and what solutions are available.
o    Rulemaking: agency enabling acts authorize agencies to enact statutes and issue interpretations.
§  Agency rules like statute b/c determine legal rules/duties. Interpretations not legally binding.
o    Licensing:  authorizes an individual or entity to engage in a specified activity.
§  Permit: form of license. Usually required before specified action can occur.
§  Clearance system: agency requires certain steps before party can take certain action. If agency does nothing, party may proceed. Agency must take affirmative steps to stop the project.
o    Investigation/law enforcement: investigate complaints and enforce laws.
o    Adjudication: resolution of disputes regarding applicability of their laws.
o    Ratemaking: regulate and create rates and prices.
o    Judicial review: courts can review final agency action (rules and adjudication) for errors of law and for reasonableness in finding facts or exercising discretion.
o    Legislative/executive review: legislative oversight, investigation of agency action, and amendment of agency enabling statutes when deemed desirable.
o    Duties of the agency:
o    Act lawfully, efficiently, effectively, and economically.
o    Is procedural overhead proportionate to issue being addressed by the agency – still achieve mission
o    To ensure an optimum level of discretion – Treat all affected persons fairly
o    Must act in matter that is legitimate – Be responsive to the wishes of the public.
o    Make accurate and sound determinations.
o    To act to the public’s benefit and not its own benefit
o    To ensure that the agency is not captured by special interest groups
Agency Law becomes Complex When:
o    Regulation gets in the way of enforcement because so complicated
§  The pro regulation people want strong regulations with procedures; but anti-regulation also want many procedures to screw up the regulatory scheme
o    People fight over conflicting interests and many groups pull in different directions
Part I: Agency Procedures
Chapter 2: The Constitutional Right to a Hearing
                Is overhead (salaries and processes to pay to facilitate doing something               
Agency Adjudication: Administrative determinations of the legal rights, duties, or privlieges of agency participants/beneficiaries
Want to examine the cost/benefits of a procedure to make sure procedural benefits outweigh costs
Hearings & Welfare Termination: Due Process and Mass Justice
o    Goals of administrative procedures:
o    Ensure that the agencies act lawfully since they are not elected.
o    The amount we spend on procedures should be proportionate to the value of the matter at stake. Procedural costs are overhead.
o    Ensure the optimum amount of discretion. Too much = means they can act arbitrary, capricious, and outrageous in their actions. Too little = means too much rigidity and can result in unfair acts because everyone is treated the same even though their circumstances are different.
o    Ensure that agencies act in a manner that is legitimate and consistent with the will of the community.
o    Ensure that agency decisions are accurate and technically sound.
o    Ensure that agencies are effective, efficient, and economic.
o    Issue
§  Danger of Agency Capture: fear that agencies may get into bed with the parties they deal with the most
§  Bureaucratic self interst- make sure that they don’t act in a way that is easiest for them then the peole they are established to protect
o    Why would you want a hearing?
o    Delay the process.
o    Force self-reflection by the government agency.
o    Opportunity to present your story instead of allowing a caseworker, etc. to present it for you.
o    Create a record to base an appeal on.
o    Bargaining power; force the agency to spend money.
o    Ensure the government is treating you with respect/dignity.
o    To get at the truth – Make sure the facts and law are correct
o    Ensure the government is exercising its discretion in the public interest.
o    Ensure the agency has thought carefully about the matter.
o    Goldberg v. Kelly [CB22]: HOLD: A pre-termination hearing required for a person receiving welfare benefits because interim hardship on a family wrongly deprived of benefits requires due process through hearing.
o    HOLDING: Court requires 1) an oral hearing 2) a chance to cross-examine 3) the right to counsel 4) eligibility must be based on the hearing’s holding and 5) the decision-maker must be impartial.
o    The due process clauses (14th – State, 5th – Fed) protect life, liberty, and property. The property interest was created by a NY statute saying that the welfare recipients are entitled to welfare benefits. NY decided to make welfare benefits a right, not a privilege. Therefore, they are property.
o    Whether or not a pre-termination hearing is required is decided by a balancing test between the potential loss to the individual if the government is wrong with the government’s interest in proceeding without a prior hearing (paying out funds which are not due). The recipient’s interest is continued benefits until the hearing and necessary money for food, shelter, etc. If the government pays out wrongfully, they have little/no chance of recovering the money because the person is likely judgment-proof and it costs to try to collect.
o    After Goldberg,  number of hearings goes up but the number of successful hearings went way down.
o    Goldberg got rid of rights/privileges distinction. Because statute granting right, due process applies.
o    Holdings: [END of Right v. Privilege Doctrine – now recognize statutory entitlement] §  The right to a continued flow of welfare benefits is an interest which is protected by procedural due process under the 14th amendment right via property . Due process requires a hearing before welfare benefits are terminated.
§  Welfare is a way to promote the general welfare, and those who are given it by statute are entitled to it.
·         An eligible recipient if denied benefit before righ to hearing will be gravely harmed, more than the gov
§  A pre-termination hearing must include specific ingredients listed above.
§  Resulted in more harm to the poor, as delayed eligibility process
§  Where there is an entitlement to welfare, there must be a pre-termination hearing (rejects defintion of right and privilege)
o    Purposes of due process:
o    A trial-type hearing serves dignitary function & affirms the value of fair procedure for its own sake.
o    A trial-type hearing helps individual understand a negative decision,  increases satisfaction with gov.
o    A trial-type hearing is a good way to reach an accurate decision.
o    Empowerment: a right to a hearing gets the attention of a bureaucratic agency.
o    Officials are more likely to act seriously and reflectively in front of an impartial decision-maker.
o    If the government spends a large amount deciding how much each person should get, there

n his position and let him keep embezzling.
9.       An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.
10.    FAPA §558(c): except in cases with health/safety/public interest concerns, you get notice by the agency and an opportunity to fix the problem. [this does not entitle you to a hearing] 11.    IAPA §17A.18A: agency can use emergency adjudication when there’s an immediate imminent danger to health/safety/public welfare that requires immediate agency action.
12.    PREMISE: A neutral inspection/application/paper proceeding can serve as Due Process
13.    Three ways law seeks to proportion procedures to the importance of matters at stake:
a.       Entitlement Doctrine:No entitlement, no due process. – Roth & Sanders
b.       De Minimus Doctrine: Entitlement but harm is de minimis, no due process. –
c.         Matthews Balancing and Proportioning: Entitlement and harm (not de minimis), some kind of hearing is appropriate. What kind depends on the weighing of the factors presented in Mathews.
1.       Goldberg: full hearing: discovery, testimony, record, etc.
2.       Walters: entitled to a lawyer, get a few procedural rights – medium
3.       Hewitt v. Helms: hearing is not even auditory. Paper only.
14.    Goss v. Lopez [CB68]: suspension for ten days or less gets some kind of notice and some kind of hearing. The student needs some kind of notice and, if he denies the charges, an explanation of the evidence and an opportunity to present his side of the story. More suspension =  more due process is required.
15.    Board of Curators, U of MO v. Horowitz [CB71]: Δ kicked out of medical school because she didn’t have the clinical ability to perform adequately as an MD. Court said no hearing because there are no facts to be decided at the hearing, simply judgment. Rulemaking Issue.
Elements of a Hearing
16.    Courts employ the balancing formula of Mathews to determine what process is due and when it’s due. IF no FACTUAL issues – no right to a hearing.
17.    Ingraham v. Wright [CB64]: HOLD: A student may be paddled without a hearing if the paddling is not abusive. The problem is, if you don’t give a hearing until after there is abuse, the harm has already been suffered and can’t be undone. If punishment is reasonable, there is no breach of a liberty interest.
a.       Test:
                                                                                                   i.      Ask whether the asserted individual interests are encompassed within the 14th Amendment protection of life, liberty or property.
                                                                                                  ii.      If protected interests are implicated, we then must decide when procedures constitute due process of law AND if the costs outweigh the benefits.[second part of test] 18.    Parratt v. Taylor [CB69]: the right to a subsequent tort action, in some cases, is sufficient to give you your due process. A merely negligent deprivation of property is not a due process violation at all. However, if a pre-deprivation hearing is feasible, Parratt doesn’t apply.
19.    Walters v. NARS [CB70]: government limits the payment of attorneys to $10 in the veteran’s proceedings so that the attorneys don’t get money meant for the veteran. HOLD: The court looks at an entire class of cases to come to the conclusion that the $10 limit is valid on its face because the value of the additional right is quite small and the cost to the government is a) providing attorneys to represent the government and b) increasing the benefits in order to allow for the attorney’s percentage of the award.
20.    Harken v. City of Chicago: under the Mathews balancing, you do not have a right to cross-exam, as there is a cost/benefit anaylis
21.    Federal §555 & IAPA §17A.12: you get counsel when compelled to appear before an administrative agency or when one is a party to a proceeding (Iowa: only in contested cases).[ask] 22.    The hearing itself can be waived. All that is required is that you have the opportunity to have a hearing. Can waive by conduct or by official action.
23.    Wolff – prisoner entitled to d.p. because has liberty interest in shorter sentence if deprived of good time. Balance of interest weighed in favor of providing process
24.    Objections to Mathews balancing test:
a.       This “waters down” due process because it is not a unitary result.
b.       Doesn’t always provide predictable results.
c.        Does facilitate value-laden personal judgments by the judge.
d.       This doesn’t give the parties advanced notice of what procedural rights they have.
e.        Tells you what to balance but not HOW to weigh the interests balanced.
                                                                                                   i.      Must have (1) entitlement, (2) not be de minimus, then (3) use Matthews