Administrative Law
Prof. Daniel Gifford
Spring 2012
You picked a bad class, but this is the best outline you will find anywhere.
Procedural Due Process
1. Is issue apt for a hearing?
Issues are apt if. Londoner.
Issues not apt if
· small number of people are affected
· effect is exceptional
· decision made on individual grounds
· decision is made on adjudicative, not legislative facts
§ parties have something important to contribute to decision
· person is actually affected by the issue
· Decision is an across the board rule not involving individualized determinations
§ individuals doesn't have information useful for the decision.
· Impractical b/c huge numbers of people affected.
· affected people can participate through democratic processes
· Change in substantive law, not application of law
· Apt case
Londoner v. Denver (US 1908)
City Board assessed paving tax to landowners based on frontage; no oral hearing provided. Held, violated PDP b/c lacking notice & opportunity to be heard. Reason, tax assessment based on individualized facts. At least some orality required.
· Not apt cases
Bi-Metallic (US 1915)
State board increased tax for county. Held, PDP not violated. Reason, large groups of people treated similarly by tax increase. Would be impracticable to allow everyone to participate in decision.
Atkins v. Parker (US 1985)
State welfare agency posted notice telling food stamp recipients of change in eligibility criteria and that their benefits may be reduced. Held, PDP not violated. Reason, PDP does not restrict Congress from making substantive changes in the law, even if the recipient has a claim of entitlement. If recipients do not understand the notice, they will make appropriate inquiry.
O'Bannon v. Town Court Nursing (1980)
Nursing home decertified as a skilled nursing facility, requiring Medicare patients to move out. Upheld. patients have a property interest in staying in the home, but because the decertification extends to such a large class, balance weighs against providing individual hearings.
2. Is a protected right at issue?
a. Modern Rule. PDP is only implicated if gov't action affects property or liberty interests
i. Property interests = legitimate claims of entitlement dependent on other law, rules, or understandings.
ii. Liberty interests = inter alia, damage to reputation and SDP rights (Sinderman, free speech)
· Look to “nature” and not “weight” of the interest. (grievous loss question goes to required procedures.) Roth
Liberty & Property before Goldberg : P can argue ambiguous statute should be interpreted to avoid constitutional issue.
i. Constitutional avoidance. SCOTUS avoided ruling on the constitutional issues by saying that agency lacked statutory authority to do what it did
Joint Anti-Fascist v. McGrath (1951)
executive order told AG to list subversive orgs used to evaluate EE loyalty. Orgs had not opportunity to rebut. Gov't demurred, conceding that orgs were not actually subversive. Held, executive order does NOT authorize AG to make a list including these non-subversive orgs or arbitrary decisions. Concur. PDP applies b/c P suffers a grievous loss.
ii. PDP limited to protected interests
Bailey v. Richardson (1951)
P classified civil servant fired b/c “reasonable grounds to doubt” her loyalty; P couldn't confront witnesses. Held, PDP not violated. Reason, PDP only protects life, liberty, and property. It does not protect a person's ability to retain their gov't job. That's not even a contract. Stigmatized isn't a deprivation of life.
iii. Conception of protected interests expanded
Green v. McElroy (US 1959)
Facts. P private sector engineer fired when gov't revoked security clearance. P did not know adverse evidence or witnesses. P argues his property (employment) and liberty (ability to do his chosen profession) was taken w/o PDP. Held, agency lacked authority by executive order to abridge the right to examine witnesses. Reason, right to choose job is within “liberty” and “property”. Dept was not authorized to use a system that deprived this right w/o procedural safeguards.
iv. Liberty includes right to pursue a profession
Bailey
liberty does not include the right to keep your job.
Greene
liberty does include right to pursue your chosen profession.
Cafeteria Workers (1961)
Naval Gun Factory barred worker from operating a cafeteria in Gun Factory on the grounds that she lacked security req's. Held, PDP not violated. Reason, Commandant did not seriously impair P's ability to work in the cafeteria business.
a. Property Interests
i. Court abolished rights/privileges distinction.
Goldberg v. Kelly
NYC provided only post-termination oral hearing for welfare beneficiaries. Held, PDP violated. Reason, We don't distinguish b/t “privileges” and “rights”. [under balancing test, hearings required b/c grievous loss outweighed public interest.
Reich Thesis (1964)
Argues, gov't largess is a matter of right. There should be presumption that people can keep their licenses, welfare payments, old age insurance, etc. Reason, misfortune results from forces outside a person's control. Only by conceptualizing these benefits as rights can society provide a minimum basis for individual well being and autonomy.
ii. Property Interests include “claims of entitlement” created by an independent source such as state law, rules, or tacit understandings
Board of Regents v. Roth
Professor on one-year EE K not rehired, without hearing. Held, PDP not violated. Reason, property interests depend on existing rules or understandings that stem from an independent source such as state law, rules or understandings that support claims of entitlement. He P's interest in employment was limited by his EE contract– AND there were no implicit tenure policies
· Does not include discretionary benefits
· Can include wholly implicit understandings
Perry v. Sinderman (US 1972)
Teacher on term contract at school with implied tenure policy not rehired w/o hearing. Held, PDP violated. Reason, property interests are not limited to rigid, technical forms and may include implicit understandings.
b. Liberty Interests
i. Infringements of constitutional rights
Perry v. Sinderman
Alternate reason, PDP triggered whenever a constitutional protected interest like freedom of speech is penalized by the state.
ii. Damage to reputation is not protected, unless accompanied by an alteration in legal status
· Pure defamation cases can only be vindicated under state tort law.
e.g. Roth.
Early cases suggest that any damage to reputation, especially if related to employment, impinges on a liberty interest
Paul v. Davis (1976)
Police flyer shoplifters. Held, mere defamation tort by state actor not a violation of PDP. Reason, while precedent said stigmatization triggered PDP, damage to reputation alone, apart from any tangible interest such as employment, is not a liberty or property interest.
Wis. v. Constantieau
PDP violation for public “posting” of drunkards. Reason, under Paul v. Davis analysis, the deprivation of the right to buy liquor combined with reputational damage created PDP claim.
· Alternate explanation for Paul v. Davis
Ingraham v. Wright, Dissent
damage to reputation does violate a liberty interest, but CL defamation remedies protect this interest.
iii. Physical harm always implicated liberty interest
Ingraham v. Wright (1977)
Paddled students liberty interest infringed
iv. Liberty in Prison Rule. Liberty infringement required PDP process if
1. Punishment exceeds sentence in such an unexpected manner as to give rise to a PDP claim of its own force
2. Infringement is an atypical, significant hardship, as measured by the ordinary hardships of prison life.
· Court will not infer “liberty rights” from prison regulations
Sandin v. Conner (US 1995)
P put in solitary confinement for using foul language– and later was exonerated. Regs suggested prison committee had non-discretionary duty to find guilt/innocence. Held, (see rule). Reason, using “mandatory”-type language in prison regs to infer rights is problematic because that was not the intent of the drafters; it discourages use of regulations; and it wastes judicial resources. Here, solitary confinement is not the kind of atypical, significant deprivation that implicated PDP; punishment was in range of reasonableness for a convicted murderer
· Matthews determines what procedures are required.
Wilkinson v. Austin (US 2005)
Supermax prisons. Held, Liberty interest at stake, but PDP not violated. Reason,
s pass Matthews balancing test, since risk for abuse is minimal and requiring procedures would effectively prohibit paddling altogether. Dissent, Deprivations of property can be remedied by monetary damages. However, where a bodily integrity-liberty interest is involved, a post deprivation remedy may not make the person whole.
ii. Academic decision-making meets PDP req's. Formal hearings are not required for academic decision making because not helpful
Univ. of Missouri v. Horowitz
P flunked out of med school. Held, assuming a liberty interest was involved, school procedures provided adequate process. Reason, educators are best positioned to make subjective evaluations. Unlike discipline, there would not be much benefit giving a student a chance to defend their schoolwork.
4. Constitutional Fairness & Prejudgment. Generally, PDP violation if “a disinterested observer may conclude that the agency has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it”. Cinderella Career
Violates PDP
No Violation of PDP
Decisionmaker has pecuniary interest in case. Berryhill.
Mere combo of adjudication & investigation. Withrow
Decisionmaker was active plaintiff in related case. Berryhill.
Agency expressed view on general issue. Cement Institute.
Public comment shows prejudgment. Cinderella Finishing school.
**Despite bias, disqualification would make it impossible to continue the case. Cement Institute.
a. Mere combo of investigatory & adjudicatory functions does not violate of PDP. P must how the circumstances create actual bias or unfairness and a court presumes integrity of decision-makers.
Withrow v. Larkin (US 1975)
state medical board held hearing to see if there was probable cause of unprofessional conduct, then ruled on charges at a hearing. Held, no PDP violation. Reason, there is a presumption that adjudicators are honest. To violate PDP, P must show the psychology of combining functions or “special facts” make the risk of unfairness “intolerably high”.
b. Pre-decision on a legal issue or legislative facts does not disqualify decisionmaker
FTC v. Cement Institute (US 1948)
Adjudicator FTC found cement makers used unfair method of competition by using multiple-base-point pricing. P argues FTC prejudged case b/c it had reported to Congress saying that the method was equivalent to illegal price fixing. Held, no PDP violation. Reason, 1) FTC member's minds are not made up. D can still show its price method is fair. 2) if FTC can't adjudicate on the matter, no one could.
c. Procedures may be challenged under PDP if adjudicator has a pecuniary interest in the case, or is clearly on one side of the controversy (e.g. suing the D separately for the same reason)
Gibson v. Berryhill (1973)
State law banned optometrist corps. Ass'n sued individual optometrists before AL Board of Optometry. At the same time, Board sued the same corp in court. Held, violates PDP because adjudicator is a P in substantially the same case. Board members had a pecuniary interest in case b/c, as solo optometric practitioners, they benefit limiting competition.
d. One-sided public comments made during adjudication may show prejudgment. However, court distinguished cases where agency must give public notice that a person may have broken the law.
Cinderella Career & Finishing Schools v. FTC (DC Cir. 1970)
School was charged with misleading advertising for a newspaper ad. While case was pending before FTC, Comm made a public speech related to case facts. Held, Comm making public comment should have disqualified himself.
e. Rule of Necessity. Adjudicator may not be disqualified, despite bias, if it would lead to unfair results, e.g. no one would be able to hear the case. Cement Institute
