Select Page

Administrative Law
University of Kentucky School of Law
Kightlinger, Mark F.

Administrative Law
Congress does not have the time, expertise, or resources to devote to what the agencies do. Efficiency.
Congress is elected and agencies are not. This is an underlying concern over who gets to make the decision. Because Congress could make it themselves or delegate or leave it to the open market economy or Congress could pass rules and make the courts enforce them.
Note that when power to regulate is vested elsewhere, as is the case of FDA v. Brown and Williamson-where the FDA did not have the power to regulate tobacco since it was vested in the ATF already.
Oral Hearing is better than written since it provides a better chance to sway the decision maker. Provides dignity. But it is not necessary if the agency can resolve it all through written documents.
When the legislature delegates their power for adjudication, that is when there is the need for Notice and the Opportunity to be Heard. Since the political process would correct the Legislature and not the agency.
Hearing purpose-increase accuracy of decision.
I. Rulemaking v. Adjudication
a) No hearing is required for rulemaking-remember only adjudication will affect individualized parties and will involve due process loss of property and liberty. Further, there are procedures in place for rulemaking.
b) Hearing MAY be required for adjudication. No need for a hearing on issues of law or policy-this involves large groups of people.
c) Adjudication-case by case decisions by agencies. APA § 554.
i) Decision to pave streets was adjudication that required a hearing b/c there was a question of how much each piece of property had been benefited (and the corresponding tax.) Londoner-Constitutional Right to a Hearing. Due Process requires Notice and Opportunity to be Heard. Due Process requires deprivation of life, liberty, or property. Have to have a right to it continuing.
ii) Characteristics:
(1) Involved individualized facts.
(2) Retroactive
(3) Singles out an individual
(4) Input only comes from parties to the case.
(5) Subject to restrictions regarding separation of functions and ex parte contacts.
d) Rulemaking-APA § 553
i) Decision to increase the valuation of all the land over Denver by 40% was rulemaking. Bi-metalic. A Denver taxpayer had no right to a hearing on reevaluation. it is impractical for everyone to be heard when there is a sweeping motion. Real possibility of political remedies with elections.
ii) Rulemaking: “Agency process for formulating, amending, or repealing a rule.” APA § 551(5).
iii) Rule: “the whole or a part of any agency statement of general or particular applicability and future effect . . . .” APA § 551(4).
iv) Characteristics:
(1) Involved generalized or legislative facts.
(2) Prospective
(3) Applies across the board
(4) Conducive to broad public input
(5) Not subject separation of functions and ex parte contacts restrictions.
II. Adjudication
a) Constitutional Right to a Hearing
i) Constitutional Right to a Hearing Exists when there has been a deprivation of liberty or property.
ii) This right comes from Fifth and Fourteenth Amendments.
iii) Deprivation Defined:
(1) Occurs when the state has taken action that “directly deprives” a person of liberty or property. Generally indirect deprivation will not count.
iv) Liberty Defined:
(1) The right to enjoy qualities of life recognized as essential to the pursuit of happiness (i.e. right to K, engage in common occupations, raise kids, worship freely, acquire useful knowledge, free from bodily restraint.)
(2) Specific Examples:
(a) Imposition of Stigma-Where a person’s name, reputation, or intergrity is at stake because of what the government is doing to him, notice and opportunity are essential.
(i) Must be both public and allegedly false.
Gov’t imposition of stigma must be accompanied by some further action (Stigma Plus.) Like stigma that will prevent you from further gainful employment. Gov’t can do it, just requires due process prior to it. Also mug shot of shoplifters
(b) Deprivation of Constitutional Rights
(c) Deportation of Aliens
(d) Deprivation of Physical Liberty
(e) Suspension/Expulsion from School
(f) In employment context: Dismissal from job plus (1) reputational harm, injury to good name; or stigma/disability that forecloses other employment.
v) Property Defined:
(1) Real property and chattels, but includes entitlements (such as welfare, or legally protected employment relationships). Must be an enforceable property interest. Prop interests are not created by the Constitution (can’t rely on the due process clause to get a property interest) but are derived from an independent source-statutory or state law. More than a unilateral expectation. Reliance interest can be legit. No abstract need or desire will qualify either.
(2) Specific Examples:
(a) Welfare
(i) Person receiving welfare benefits has an interest in continued receipt of the benefits. Termination requires notice and a hearing. Goldberg v. Kelly and availability of atty required. The balancing of the Gov’t’s interest in not paying out money to those who don’t deserve it vs. the need of living $ to those who do need it=rejection of pri

ory Hearing Rights-these are in addition to the Constitutional minimums. Organic statutes are agency specific and empower the agency. Administrative Procedure Acts apply to more than 1 agency.
APA divides world into rule making and adjudication. Differing procedures apply to each.
APA divides rule making and adjudication into formal and informal.
Formal Adjudication-APA §§ 556, 557 and 554 only apply when 554(a) is triggered.
Informal adjudication-very little procedural requirements in the APA.
i) For APA to apply, (1) the action must be adjudication, AND (2) another statute or the Constitution must require a hearing on the record.
ii) Adjudication: “Agency process to formulate an order.” APA § 551(7).
iii) Order: “Whole or part of a final disposition . . . of an agency in a matter other than rulemaking but including licensing” APA § 551(6).
Seacoast tells us that Any time there is an agency organic statute that requires a hearing, the court is going to presume that is a hearing on the record and that § 554 applies and that it is therefore a formal hearing. Here one of the organic statutes used “public hearing” and this was sufficient to trigger “on the record” language making 554 and the APA applicable. This is only in the 1st circuit. D.C. circuit relies heavily on Chevron and lets the agency interpret their organic statute and whether a hearing must be on the record. Here-once APA is invoked then the agency must determine if you have a right to cross, not that you automatically get to cross. 556d-cross exam-get it. Have to show 1st that this is formal adjudication and then you say under 556d that the cross is required for full and true disclosure-then you have a statutory right to cross.
Advice can be looked at off the record but facts you rely on must be on the record. Ex parte is only invoked outside the agency. 557d and 554d. consultating by the ALJ?
(1) The only way to defeat this is to find something in the statutes which says that it is not an organic hearing.
v) Requirements for formal adjudication provided in the APA: