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

Admin Law Outline – Spring ‘10
I.                    1-11-10 – Introduction
a.       Administrative Procedure Acts
i.      Enacted in 1946 – made to establish the relationship between regulatory agencies and those whom  they regulate
ii.      §551(a) – a listing of exemptions from what constitutes an “agency”
iii.      §559 – Gives the agency express rulemaking authority – makes this the supreme statute unless expressly superseded in another statute – and applies agency rulemaking and procedures to apply to both the agency and the individuals being regulated
iv.      IAPA §17A.1 – lists the purposes for the IAPA (provide minimum procedural code – not a maximum), and says that no substantive rights of neither an individual or an agency are meant to be altered by this Act – this Act is limited to governance of procedural rights that better substantive results
v.      IAPA §17A.2(1) – set standards for an agency voting quorum – and enumerate a list of entities that does not fall under the definition of “agency”
vi.      IAPA §17A.23 – statute must expressly supersede (like §559)
vii.      Objectives of the APA:
1.       To insure adequate procedural protection for private rights
2.       To the extent possible, create some uniformity
3.       To make sure that agencies typically not elected (some statute exceptions) are responsible to the public will
4.       To ensure that agencies act fairly
5.       To ensure that agencies function efficiently, effectively, and economically
b.      Types of Agencies:
i.      Regulatory – OCEA
ii.      Benefactory – benefit dispersal – SSI, TANF, Medicare
c.       Agency Authority
i.      Investigate; adjudicate; make law; issue/revoke licenses/permits; require reports; set rates
ii.      Subject to judicial review and legislative and executive review
d.      Theories of Agency Legitimacy
i.      Transmission belt model – role of admin law is to protect private liberty and property interests by making agencies stay within statutory bounds and follow fair procedures (insufficient model – many statutes do not reach the policy issues with which agencies must grapple)
ii.      Pluralist or interest representation model – views the activities of agencies as legitimate if they engage in fair political process – judicial review then ensures fairness of interest representation
iii.      Civic republican model – role of government is to encourage a deliberative process in which the views of all citizens are respected in pursuit of the common good – no broad delegations to administrative agencies
iv.      Having no one clear model, often agencies rely upon procedural regularity and checks and balances – which endorses fairness through the APA’s notice and comment period
1.       Costly to monitor this model – thus not very effective and preventing abuses of discretion
II.                  1-12-10 – Hearings and Welfare Termination; Due Process and Mass Justice (Chapter 2 – The Constitutional Right to a Hearing)
a.       Goldberg v. Kelly – 397 U.S. 254 (1970)
i.      Procedural Due Process requires a hearing before the cessation of welfare benefits.
ii.      Reasoning: the hardship to the individual of individual loss must be weighed against the hardship to the government (e.g. of increased administrative expenses)
iii.      Once a hearing under Procedural DP is required, petitioner has the right to:
1.       Present evidence at least orally
2.       Present an oral argument
3.       An attorney (not agency funded)
4.       A hearing in a meaningful time and manner
5.       Timely notice
6.       An impartial decision maker
a.       This person must state reasoning behind the result and evidence relied on – although not necessary for it to be in the form of a formal report
iv.      This case did away with the right v. privilege distinction
v.      The passing of TANF declared welfare to be a non-entitlement – but still could be an entitlement under state law
III.                1-13-10 – Interests Protected by Due Process: Liberty and Property
a.       3 approaches to limiting the scope of PDP
i.      Excludes certain interests from the  categories of “liberty” and “property”
ii.      Provides contextual rather than absolute rules for the timing and the elements of due process hearings
iii.      Identifies the action in question as generalized rather than, individualized
b.      Board of Regents v. Roth – 408 U.S. 564 (1972)
i.      When a contract with no mention of rehire ends, there is no 14th A. DP liberty or property right created by the contract (i.e. a University does not need to cite reasons for non-renewal of contract and the affected party is entitled to nothing)
c.       New forms of “property”
i.      And right given in an entitlement is “property” after Roth
ii.      Perry held that an implied rehire in a Professor’s contract was “property”
iii.      “New property depends upon an entitlement created and defined by an independent source such as a state or federal statute.  We call this a ‘positivist’ approach to identifying property because no rights to new property exist in the absence of a specific statute or similar source of positive law.”
d.      Stigma as a liberty deprivation – more of a substantive due process issue
i.      Roth creates the requirement of a “stigma plus” standard
e.      Cleveland Board of Education v. Loudermill – 470 U.S. 532 (1985)
i.      Claim: deprivation of liberty and property when dismissed without property notice, and with no chance for a hearing
ii.      Held: had to be afforded due process in form of pre-termination opportunity to respond, coupled with post-termination administrative proceedings as provided by Ohio statute.
iii.      Lesson: When there is an entitlement created through positive law (e.g. “can be discharged only for cause”), the statute may not also create procedures for removal of the created right.  Procedures are to be left to agencies, with judicial review to ensure that DP requirement are met (only courts can declare whether  a procedure meets DP requirements).  If the legislature doesn’t like how the procedures come out, it can remove the right altogether. 
f.        Bishop v. Wood notes discussion – problems with legal standards that are ambiguous as to entitlement creation:
i.      Entitlements are often created with legal standards for granting or terminating the benefit (with some discretion to the administrator of the benefit) – there becomes a problem when trying to determine which benefits are “property” and “non-property”
ii.      E.g. Town of Castle Rock v. Gonzales – 2005 – DVRO giving a peace officer power to arrest a violator if the peace officer had probable cause to believe in an actual or attempted violation – when officers failed to arrest and 3 children were murdered – court held that statute did not create an “entitlement” to police enforcement – but rather the decision to arrest is discretionary. 
g.       De minimis deprivations – Goss v. Lopez – U.S. 1975
i.      10-day school suspension case holding as long as a deprivation of rights is not de minimis, then the gravity is irrelevant, and the length and severity of the deprivation, although a factor to be weighed in determining the appropriate form of hearing, also is not decisive in the basic right of some form of hearing
h.      Prisoner’s Rights
i.      No liberty right unless the action taken extends the prison sentence/affects opportunities for parole, or is atypical and a significant hardship on the inmate in relation to the ordinary incidents of prison life
IV.                1-19-10 – Timing of Trial-Type Hearings
a.       Matthews v .Eldridge – 424 U.S. 319
i.      SSI disability benefits case holding a hearing need not be conducted before the cessation of benfits
ii.      Reasoning – used Goldberg test to balance factors – ‘Matthews Balancing’:

agency – and the agency’s interpretation will be upheld as long as it is reasonable
i.      Overruled Seacoast – rebuttable presumption that in an adjudication using the word “hearing” or “public hearing” presumptively means a §554 hearing on the record – – now the decision is made by an agency’s reasonable interpretation
ii.      §551(6)-(7) – definition of “order” and “adjudication”
iii.      §554(a) (formal adjudication) – situations exempted from statutes requiring a hearing “on the record”
iv.      §558(c) – procedures necessary for the revocation, suspension, etc… of a license unless due to willfulness, or public health, interest, or safety requires otherwise
b.      Federal Law – Right to a Hearing Under the APA
i.      Dominion Energy Brayton Point, LLC v. Johnson – 1st Cir. 2006 – holding that the term “public hearing” was up to the EPA’s reasonable interpretation – solidifying Chevron’s control
ii.      Note: these cases effectively allow agencies to determine the scope of their own power – appears to present a possible danger
c.       Right to formal APA adjudication under the Constitution
i.      Wong Yang Sung v. McGrath – 339 U.S. 33 (1950) – holding the words “required by statute” in §554 were intended to include hearings required by the Constitution as well as hearings require by statute
ii.      This decision was overturned by Congress in the narrow instance of deportation cases – but the reasoning in Wong has also been ignored by all other courts – following Wong would require insurmountable administrative burdens in many cases.  Matthews balancing continues to be the standard used by courts in hearings required by DP. 
d.      Rights to a Hearing Under State Law
i.      IAPA §17A.2(5) – “contested case” definition – when an evidentiary hearing is required by the constitution or by statute
ii.      IAPA §17A.10A – when a party petitions for a contested case hearing over a matter that involves no factual dispute – all applicable sections of this act will still apply except those involving the presentation of evidence despite the existence of no factual dispute
iii.      IAPA §17A.12(1) – delivery of notice requirements for a “contested case” hearing
iv.      IAPA § 17A.18(1), (3) – applying “contested case” proceedings to license action when a license is required by Constitution or statute to be preceded by notice and opportunity for evidentiary hearing – – notice and contested case proceedings also required for license withdrawal
v.      IAPA § 17A.18A – emergency adjudicative proceedings
vi.      Greenwood Manor v. Iowa Dep’t of Public Health – Iowa 2002 – holding that no “contested case” hearing before the rejection of an application for a CON when the statute requires a “public hearing” was acceptable because no adjudicative facts existed, and no liberty interest was present.  Even if a hearing had been necessary, it would only have been a hearing governed by Matthews balancing
vii.      Metsch v. University of Florida – Fla. App. 1989 – holding a student’s “sincere desire to study law” was not a “substantial interest” as required by the FL statute, thus no hearing was required