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Administrative Law
University of Kansas School of Law
Lucas, Quinton D.

Administrative Law – Lucas – Spring 2016
Hybrid of Con. Law and Civ. Pro.
Social Security
Federal Environmental Regulation
Five Sources
Due Process Clause of Constitution
Can’t deprive rights, liberty, property without going through the right procedures
Substantive Due Process
Constitutional limit on what the government can take from a citizen what government can do to you
Procedural Due Processà
Constitutional limit on HOW the government can take from a citizen;
Procedures necessary before government deprives someone of life, liberty, or property.
To prove whether a government actor has committed a PDP violation, an individual must establish that:
Government Actor deprived the individual or entity of the right to life, liberty or property
Sometimes easty to show:
Capital punishment; basic criminal procedure
Sometime not:
Dear government official, you’re fire
Procedure shouldn’t be arbitraryàNO ARBITRARIANS!
Whether state or federal action deprived individual or entity to life liberty or property
Whether individual or entity is entitled to a greater amount of process
Administrative Procedure Act (1946)
Response to New Deal Agencies
Records of Agency Rules and Procedures
Requires public participation in rule-making
Rule is what an agency says how it will do something
Organic Statutes
Substantive content statutes defining agency contours and programs
Securities Act
Homeland Security Act
Executive Orders
Define procedures that exist
Agency’s Own Regulations
Courts generally give deference to the agency rules and regulations
Bailey v. Richardson
Bailey had a job with the U.S. government from 1939 to 1947 when she was let go.
1948 she was given an appointment in 1948.
Reinstatement of employment was conditioned on an investigation of the person within 18 months.
She was sent an interrogatory in the mail with question about whether or not she was a communist or had any association with the communist party.
She denied everything except having an association with the American League for Peace and Democracy. She requested an administrative hearing. She presented witnesses and affidavits. (no other evidence presented)
She was found to be disloyal to the U.S. and ineligible for federal employment; can’t take civil service exams for three years.
Appealed (no other evidence presented) and decision was upheld.
What she given due process?
She was an executive officer and as such the executive may remove her for any reason. The fifth amendment does not apply to a federal employee in this circumstance. Not liberty life or property. Government employment is a privilege and not a property interest.
They ignored her evidence and presented none against her.
Must be a right deprived (life, liberty, property)
Mere injury in fact does not give rise to right of hearing.
Cafeteria & Rest. Workers v. McElroy
P was a cook for a cafeteria run by M&M restaurants at the Naval Gun Factory. The factory was developing classified weapons tech. You needed a high level of clearance to get into the factory. Had to have a ID badge. P was required to give up her badge and so could not work there anymore. It was withdrawn by the CO. She wasn’t fired by her employer.
Did he have authority to deny her access?
Was she denied a right secured to her by the Constitution?
The regulations under which her badge was revoked were approved by the Presidentàhad the authority to deny her access.
“Where it has been possible to characterize that private interest (perhaps in oversimplification)8 as a mere privilege subject to the Executive's plenary power, it has traditionally been held that notice and hearing are not constitutionally required.” 895-896
“What, then, was the private interest affected by Admiral Tyree's action in the present case? It most assuredly was not the right to follow a chosen trade or *896 profession.”
“Brawner remained entirely free to obtain employment as a short-order cook or to get any other job, either with M & M or with any other employer. All that was denied her was the opportunity to work at one isolated and specific military installation.”
The court says no further inquiry of the reason for dismissal is required because the government said there was a reason (but didn’t state the reason)àBrennan says the government would have to be stupid to say there was a discriminatory reason behind the dismissal. Especially if the court is just going to be alright with “there is a reason”
Has the right not to be arbitrarily dismiss but can’t know the reason for the dismissal?
Having no ability to defend yourself and livelihood is a deprivation of due process
Balancing Test
Brawner’s interestàworking at that particular location
U.S. InterestàSecurity
Entitlement Analysis
Goldberg v

y other interest protected by the 14th amendment, his due process was not violated.
Perry v. Sindermann
Teacher taught in the Texas University System for 10 years.
Spoke out against board of regents and his contract was not renewed.
Had no official tenure system
Official faculty guide established a de facto tenure system under which he may qualify.
Because he may have tenure, he has a property interest and therefore is entitled to due process.
A person’s interest in a benefit is a “property” interest for due process purposes if there are rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.”
Expands the scope of property interests
Look to policies and past relationship behaviors
Kapps v. Wings
1) whether plaintiffs possess a liberty or property interest protected by the Due Process Clause; and, if so, 2) whether existing state procedures are constitutionally adequate.
a property interest arises only where one has a “legitimate claim of entitlement” to the benefit.
In determining whether a given benefits regime creates a property interest protected by the Due Process Clause, we look to the statutes and regulations governing the distribution of benefits.
Where those statutes or regulations “meaningfully channel[ ] official discretion by mandating a defined administrative outcome,” a property interest will be found to exist.
we must determine “what process plaintiffs were due before they could be deprived of that interest.”Sealed, 332 F.3d at 55. In doing so, we apply the Supreme Court's familiar Mathews v. Eldridge test. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Pursuant to this test, we conclude that the process due to applicants for HEAP benefits is notice of the reasons for the agency's preliminary determination, and an opportunity to be heard in response. Cf. Abuhamra, 389 F.3d at 320–21.