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

Ch 1. Introduction
A. Overview of the Work and Place of Administrative Agencies in Our System of Government
o Interstate Commerce Commission v. Cincinnati: ICC argued that congress gave power to pass on reasonableness of existing rates so there was an implied right to prescribe rates and that in passing the act, Congress intended for ICC to determine what were just and reasonable rates for the future. Court didn’t buy. No express power.
· Diff in legislative and judicial act
§ Legislative: Prospective
§ Judicial: Retrospective
· RR Rates
§ Determining reasonableness: Judicial
§ Prescribing future rates: Legislative
· Congress options in regulating RR rates
§ Regulate it themselves
§ Pass it onto subordinate tribunal (ICC)
§ Leave it to companies who would be subject to regulations and restrictions by judicial oversight
· DEFAULT in absence of legislative evidence to the contrary.
· Over time ct has been increasingly willing to infer agency power (not express).
o Pennsylvania v. West Virginia: Majority invalidated WV statute restricting ability of pipeline company to sell natural gas produced in state to consumers out of state. Dissent is important in this case.
· Court incompetent to delve into regulation of natural gas
§ Expertise, market, production and monitoring/overseeing problems
§ Questions of delving into market are always changing
· Brandies makes an argument for use of an expert (“cult of expertise”). Agencies are specialized and better able to handle these problems.
o National Broadcasting Co. v. US: National networks challenge regulations of Chain Broadcasting Regulations as beyond the power of FCC
· Ct: FCC had power to promulgate the regulations to correct abuses disclosed by its investigation of chain broadcasting
· Need for regulation:
§ Prevent monopolies
§ Manage scarce resources- not enough frequencies so overloaded and degradation of quality
· Traffic cop analogy. Criterion governing exercise of licensing power is the “pubic interest, convenience, or necessity”
· Compared with ICC v. Cincinnati
§ Progression: not huge shift from Cincinnati RR because Cong expressly authorized regulation of chain broadcasting; BUT: could still argue that regulation of chains limited to traffic control (interference/bandwidth); SO: need broader remit of power (public interesting, convenience, necessity) to justify regulating CONTENT of network broadcasting
o US v. Southwestern Cable Co.: Claim that the FCC lacked statutory authority to regulate cable. There was nothing in the statue about cable
· Ct: FCC can regulate cable industry since it goes with agency’s purpose and no evidence that Congress prohibited it
· Furthest step from Cincinnati. Court is willing to infer power to regulate from the fact that Congress never wrote anything to prevent it and statute was broad.
· Public interest problem here?
§ Issue is the fear that with the advent of cable, local markets will drop out altogether
o FDA v. Brown & Williamson Tobacco Corp.: After previously disavowing authority to do so, ,the FDA asserted jurisdiction to regulate tobacco products. Concluded nicotine was a drug within the meaning of the FDCA and promulgated regulations intended to reduce tobacco consumption by kids.
· Ct held FDA does not have power to regulate tobacco use.
· An agency can’t grant power to itself
· The statute has to authorize the agency before it can do something, but you don’t need an express grant of authority
§ It doesn’t need to spell everything out, but if you don’t stay w/in your bounds of congressional intent the courts will punish you.
· An administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority form congress.

Case

Rationale for Regulatory Action

ICC v. Cincinnati

Monopoly powers, discrimination, public trust?

PA v. WV

Public utility, public service

NBC v. US

Scarcity, monopoly power?

US v. SW Cable

Scarcity? Monopoly? Cable was solution to scarcity, but cable controlled what went out to TV. Now locals being eased out. If cable doesn’t pick up your signal you are eased out. Cable companies forced to carry local signals. Monopoly now

FDA v B&W

Public Health

Case

Who Wins if Agency Prevails

ICC v. Cincinnati

Mid sized and small freight shippers, small RR’s

PA v. WV

Large WV gas consumers

NBC v. US

Independent Stations? Content Producers?

US v. SW

Local TV

FDA v. B&W

Potential Smokers? Non smokers?

Case

Who Loses?

ICC v. Cincinnati

Dominant RRs? Large freight?

PA v. WV

?

NBC

Chain Broadcasters, ,Networks

US v. SW

CATV Companies

Subordinate body (agency), individualized decision

Yes

Ch. 2: Adjudiction
WHAT IS COVERED IN THIS CHAPTER:
· Constitutional Parameters
· Steps in DP Analysis
· When does a party have a right to hearing?
· How much process is due?
· Statutory Issues
· When does the APA apply
· Who may participate or intervene in adjudication?
· How flexible are the APA rules of evidence
· Challenges to fairness of decision maker
· Combination of functions
· Bias (actual, risk, appearance)
· Ex Parte Contacts
· Holding Government Accountable
· Estoppel
· Documenting disclosure/open meetings

1. Constitutional Right to a Hearing (When is there DP right to hearing?)
o Property
· Examples of property interests: Welfare benefits, gov’t office held under tenure, dismissal from gov’t job in volition of employment K or “for cause” provision, implied promise of continual gov’t employment, public education
· Bailey v. Richardson: Issue was termination of an at will employee
§ There is no property interest in at will employment. Could fire her for any reason. Hearing would only clear her name.
· Goldberg v. Kelly: Welfare benefits case. Claim they were terminated without DP. Letter sent informing of termination and informs of right to post termination fair hearing where recipient may appear before independent state hearing officer. Judicial review then available.
§ On the verge of deprivation when they are going to terminate benefits. Have a subsequent hearing, but at that point there have been months of deprivation.
§ Extent of DP rights seems to depend on severity of loss. Grievous loss test
· Rudimentary DP Rights (From Goldberg)
Pre-deprivation hearing
Notice, including basis for termination
Present evidence orally before official
Confront and cross-examine adverse witnesses (compulsory process?)
Retain/use counsel (≠ right to counsel)
Decision based on hearing record
Receive written statement of facts and reasons for decision
Impartial decision-maker
Roth and Sindermann
§ Board of Regents v. Roth: Professor was hired for fixed one year term. After his term he was not rehired without reason for decision
· Need a legitimate claim of entitlement for a DP hearing
Perry v. Sindermann: Teacher at a state college was hired for four successive years under series of one year K. Regents voted not to offer new K. Issued press release setting forth allegations