Study Guide for Adminstration law
SECTION III - ADMINISTRATIVE ADJUDICATION
Adjudication and Rulemaking: orders differ from rules
Adjudication may set a precedent in variable contexts, but should not be purposeful pattern of policy-making: Wyman-Gordon (1969)
SEC and NLRB have to confront new situations that challenge purpose of law:
Chenery II – insider trading case showed court deference to agency being flexible in policy implementation
Agency use of rulemaking can foreclose adjudication- the right for administrative appeal
U.S. v. Storer Broadcasting (1956) – FCC rule limiting companies to owning only five stations limited right to full hearing to company already having maximum, although agency must consider individual petitions about whether additional stations might serve the “public good”
Heckler v. Campbell (1983): SSA rules limit disability appeals: disability case. If there’s a job out there that you can do you do not get disability. Their was a mathematical thing saying you can do this or that but she said that’s not right because it does not match my individuality. This map does not really work because I cannot really do those jobs even though the grid says I could. She said I deserve a personal appraisal courts said no. Its rational. He thinks we will see these in the future.
Due Process claim: right to a fair hearing before suffering injury. to get due process to a hearing there is a ground.
Constitutional foundation built on:
5th Amendment: right to due process before being denied life, liberty, or property
14th Amendment: all citizens get “due process” and “equal protection of the law” from states (and therefore local gov’ts). This was to protect the freed slaves, to make sure the states did not discriminate.
The first reason why we get a hearing/due process is because the constitution the second are statues and APA.
Due Process claim: right to a fair hearing before suffering injury.
Statutory Bases:
APA embodies common law concepts of due process in administration. Section 554.
Specific statutes may create right to hearing
Agencies may adopt procedural requirements that enhance due process requirements
When is a hearing required?
Constitutional context / things
when required by statute or rule
when required in contract – when would contract matter, ex, WOU teachers are hiredd by contract. Union.
Rights verse privilege doctrine: when government benefits are viewed as “privileges” government can place conditions on them and beneficiaries have no due process claim.
This was status of “charity”, such as welfare, and Social Security.
If government benefits are “rights”, as Robert Reich in 1960s argued, there are due process protections and bias in favor of keeping benefit
– Reich argued that only benefits going to poor seemed to lack property right protections.
Rights verse privilege doctrine:
Since World War II, courts have generally moved to view benefits as rights:
- more government-citizen interaction
Cold War/ Civil Rights revolution
Government employment dealt with later
Substantive due process: some rights cannot be taken regardless of procedures: speech, freedom of religion, right to travel
Procedural due process: appropriate steps before harm may occur – these are more focus here
Where we are:
Rules applies to many people generic. Done with that
Now we are talking about adjudication- specific parties. Its all about providing due process, a fair trial. When we talk about due process the courts are in the background that’s why we will talk about the courts in due process. But the courts say not everything requires a due process. Speech can be regulated. Ex, hate speech
Judicial standard of review for government actions affecting individuals based on:
constitutional significance of the action
the affected parties
Three levels:
“rational relationship”
“strict scrutiny”
Strict scrutiny:
- If government action affects fundamental rights
- If actions deny equal protection against suspect classes
Under “strict scrutiny: government must have compelling interest and action must be narrowly tailored for purpose.
(We look at discrimination later.)
“Intermediate Level of scrutiny”(less clear): “substantial relationship”
Most government actions must simply have a “rational relationship” to state interest:
Government regulates private behaviors of identifiable groups all the time:
hunters, landowners, various businesses, ranchers, and students
congress cannot change a statue on speech or race without having a compelling reason but they can change it on gender.
Economic regulations very rarely overturned
Homosexuality is evolving concept: singles out specific identifiable group for discrimination.
Romer v. Evans (1996): overturned explicit banning of any legal protection of homosexuals: no rational relationship to legitimate governmental purpose
Obergefell v. Hodges (2015): marriage is a fundamental right, state needs a compelling interest to deny it on the basis of gender
Constitutional due process:
is there a state (meaning “governmental”) action?
is there the loss of constitutionally protected interests?
Life (not important in admin law)
Property (these two are)
liberty
- If there is a loss, how much process is due?
Due process considerations:
Is a hearing due? (What is being lost?)
When is hearing due?
What type of hearing is due?
Variable Court views of rights:
Board of Regents v. Roth (1972): non-tenured adjunct Wisconsin adjunct had no property interest: needs “legitimate claim of entitlement”, not just “unilateral expectation” sometimes people hire people on a adjunct, probationary period and they have no property rights. Day by day people. Term by term. No hearing even though he got fired he thought they were violating his rights.
Perry v. Sindermann (1972): a ten-year professor at a school without a formal tenure system but administrative statement that faculty should feel they have “permanent tenure’ creates expectations from both sides – fostering possible property right. : they evaluated him and saw if he had property rights and said he didn’t have any. The point was that they could fire him without having a hearing. You don’t get to argue if you are an adjunct. States employees like this are called “At will” employees. In this case the school did not have a formal tenured system. But the courts said he has been there for ten years so he needs a hearing.
Both had potential liberty interests in free speech not considered by the court. Public speech (as in Garcetti v Ceballos (2006)DA): covered later in class.
Statutory property interests receive constitutional protections
Highwater mark:
Goldberg v. Kelly (1970): pre-termination oral hearing required before welfare benefits revoked
Kelly represented some welfare recipients in this case. They would basically send letters out and say we determined you are not eligible for welfare. You need to apply, you need to have a written hearing essentially. Saying you have been cut off now you got to go in. no due process before they too it away. The courts said that they needed a due process. That was called a pre determination hearing. Before you got determined they made a decision. A that point it was the high water mark. Eventually it evolved into a different rule.
Generally courts have not held other programs to such strict standards: allow more balancing and denial of benefits before formal evidentiary hearing
Statutory property interests receive constitutional protections: cost-benefit analysis perspective developed by the courts.
Mathews v. Eldridge (1976): Breadwinner of family. This guys back going out periodically and getting disability benefits and veteran benefits. He happens to get letter in mail saying you have to apply for this good to continue. You have to prove your disabled still. The right forms are called a paper hearing. They tell him that he has to have a formal hearing and in the meantime his benefits have stopped but in the meantime he files for a due process. They say that’s a property right they take him to a due process hearing then he gets approved and benefits restart. One year later the identical letter shows up. Case goes on see chart below. Someone was helping him out but the case got to the supreme court. Then unfortunately for him he got the balancing test.
Due process Balancing Test:
1) private interest – (case specific.) State interest. They said the private interest isn’t as great as it is for private property here. Welfare v. disability right or wrong conversatin.
2) risk of erroneous deprivation – is something right or wrong
3) public/governmental interest
Mathews v. Eldridge (1976)
Admin Process Courts
1A. Paper hearing
2A. Denial, Benefits stopped
3A. Formal Hearing 1A. Due process hearing
4A. Approved , Benefits re-started 2A. Moot
1B. New Paper hearing
2B. Denial 1B. Due process hearing
3B. Formal hearing 2B. Wins restoration
4B. Approved, Benefits restarted 3B. Supreme Court review
Balancing test applied to Gilbert v. Homar (1997): should Homar have been suspended without pay before evidentiary hearing after being in a drug bust? Got suspended from school and he said you can’t just suspend me and take my paycheck away from me.
1) Private interest of continuing pay: suspension is not as serious as firing; so they got away with that. suspension until they knew what would happen.
2) State interest: Felony charges affects public trust
– government need not to bear cost of continuing pay while also having to hire replacement
3) Risks of erroneous deprivation: were there reasonable grounds to think charges are true: yes – indictment by independent body. They said if people have been charged with a crime theirs a good reason at least.
Eventually homor lost his case but he did get rehired. If the government thinks you should not have benefits in between the case solution and accusation they will do the balancing test. (The welfare program does not exists anymore.)
Balancing of rights in national security:
Court has utilized model similar to Eldridge for determining due process rights of detainees under anti-terrorism law. The model
- Hamdi (2004) case: US citizen held as enemy combatant from Afghanistan capture has right to hearing. Lots of combatants are held up without any trial initially. He said as a u.s. citizen I should get a hearing but eventually they found out that everyone should have a hearing.
Model also applied to case below.
Balancing of due process rights in school discipline
Goss v. Lopez(1975) opened new possibilities for contesting adequacy of due process
- 10 day suspension from school requires notice and brief hearing. Just the normal your suspended no reason. They said that a ten-day suspension from school requires a hearing. But they didn’t say you need a full hearing but they do have to say what the story is and ask them what they think is going on and have to listen then they can think whatever they want and do whatever they want. This is kind of a simple hearing out of the many types of hearings. An expulsion would be different that would be a full hearing because it’s a termination.
Sometimes viewed as enabling lesser hearing for lesser punishment
Feldman(author of textbook): Excessive due process in education and welfare is costly in terms of privacy, efficiency, and distributive justice since the costs could be resources. He says if you have too many hearings it becomes a hassle. He says when you have hearings things that can be resolved simply are no longer resolved simply. Ex, with suspension, other things might come up about the student in the hearing.
His analysis of medical school expulsion is an analysis of substantive criteria, not due process. Author says they shouldn’t have given him due process. Henkel’s found it confusing because its not that good of an example. Doesn’t know why he bring sit up there
Basically the denial of due process was correct since the decision was not arbitrary or capricious – accepted the need to defer to academic expertise
That was about property interests liberty interests are more complex.
Liberty interests are less consistently recognized
Wisconsin v. Constantineau (1971): Constantineau had an alcohol problem. Sot he government said don’t sell alchol to this person he has an alcohol problem. He would go into stores and of course they would not sell him alcohol. But the courts said you can’t do that. there was not a fair hearing. Ex, like taking a bum in slaem and saying don’t sell alcohol to him but without a hearing its not right. Thers a strong liberty interest here. If you are going to deny services to someone you must have a hearing. broad concept of liberty rights included reputation. He got property right because they said you can’t sell v. case below was only his reputation and odnt know how that could affect him.
Paul v. Davis (1976): narrowed Constantineau, - - Davis’s reputation not liberty or property interest here: “stigma-plus test”. But consequence must be immediate to decision, not later damage to reputation. This guy was a shoplifter he was a photographer and people posted flyers of his picture saying theif. The city handed those out to the merchants. But that affected his ability to do business there. What they say about constatineau is that yes it harmed his reputation but it stopped his behavior but here this just plain embarrassed him. You need more than that to have a right to due process.
Bishop v. Wood (1976): reputation not important if no specifics provided on firing. Context of at-will employment also affirms that property interest can depend on state law. Police officeirs are at will employees. They fired him and he said you firing me is going to ruin my reputation. He got the idea from constntineau. When they fired him they didn’t give him a reason. The courts said no, because they didn’t say anything. The rule you get from that is that if you have at will employees you just say that’s it we are not going forward with you and that’s it. don’t say more because it can open other stuff up.
So if its ruining your behavior it’s a property right but its reputation you don’t have the same due process laws.
Irrebuttable Presumptions: contexts where facts create policy outcomes without hearing. Now generally viewed an unconstitutional. Irrebuttable means no argument, no opportunity to challenge it.
- Bell v. Burson (1971) this guy was out to breakfast on Sunday someone hit him and got injured and he lost if his license because they had this presumption that lack of insurance meant that you are at fault. Sort it out later. What did the courts say to that? did they say that he should have a hearing before the presumption. Yes they said you can’t have this stuff going on because fundamentally its unfair. You need a due process before they take away your license. Even though original law said you are guilty without insurance and lose your license.
- Stanley v. Illinois (1972): un unwed father. Illinois use to have a law that said if you are unwed father you are not a good father, your unfit. They broke up and they said you’re a father your not married you don’t get that kid. But the supreme court overturned it and said you got to have a hearing at least for the father. It use to be an acceptable law even though it was not that long ago. Totally biased, women for custody. Father nothing.
Irrebuttable presumptions are rare but still exists today, ex, alcohol drunk driving
Other restrictions to due process:
Government workers can be negligent but in those cases you can’t file a due process. Ex, if a government worker hits you with there car you can’t say geez I need my due process.
Due process applies only to deliberate actions, not to accidents or mere negligence
Only parties directly affected by decisions have due process: nursing home residents have no due process for actions taken against owners, may be allowed to participate in hearing
Generally does not apply to rulemaking: Bimetallic Investment (1915), which case did this contrast with. In London v Denver there was a small street and they were charging them so much to fix it up but it had due process protections.
Licensing is generally an adjudicative process: but FCC can use rulemaking to regulate distribution of licenses according to its interest in preventing “concentration of control”, particularly in taking licenses away: Storer (1956) Doctrine
When it comes to licensing you have due process rights.
Examples of licensing: wetland infill, grazing permits, aviation licenses. Al kinds of corporate licenses.
Forest Service and BLM reading
Many possible adjudicative hearings are possible. These are statutory models adopted by Congress in 2011 and 2013 for specific programs in these agencies
The actual outcomes are similar to rules but apply to specific administrative decisions.
“Protest” is submission of formal opposition to agency decision.
….Slide 30 picture..
Steps in the administrative hearing process:
State Child Support (a more typical case you would get in Oregon) a case where one parent thinks the other isn’t paying there dues.
Process generally takes about 90 - 180 days.
1. A parent talks to their case manager about requesting a hearing.
2. The child support case manager sends the parent’s hearing request to Office of Administrative Hearings.
3. The Office of Administrative Hearings will contact the parents to schedule a hearing.
4. A hearing will occur with an Administrative Law Judge.
5. A final decision is made.
6. The Oregon Child Support Program will begin to enforce the order.
7. A parent may file an appeal in Oregon Circuit Court. Most states would actually get to pallet court.
Point is there is a long process before we get to the courts.
Local and state governments operate under due process restrictions when they make decisions regarding specific individual parties
Types of Hearings: Courts are reluctant to impose formal trial-type hearing requirements
1) Alternate dispute resolution: pre-hearing conferences. Don’t go to the courts right away. Try to find alternate ways to solve the problem.
- consent decrees (Covered in Section 5 informal action)
2) Paper hearings: early parts of Eldridge case, grant applications. When they are reviewing your case. Usually used for simple hearing. A financial aid application for a pell grant could be a hearing technically. This order is not quite linear the paper work can happen at anytime on its own.
3) Simple oral hearing: Goss v. Lopez (1975). Have discipline things on campus, ex get caught cheating you get a simple oral hearing. Kind of mix the paper hearing into it.
4) Formal Hearings: Trial type hearing – Goldberg
- may be de novo consideration of less formal processes. De novo means that in a formal hearing you can present that case all over again. Like a new hearing. Because before you get to a new hearing you have been though many steps again. Here you can really re argue everything and re introduce everything. Not like in trial order where you have to make sure to have everything in the beginning.
- license removal
“On the record hearings”, “evidentiary hearings”, “full hearings”, “trial type hearings”: APA Sec 554,556, 557 apply. If these words are not in the law then the agencies have more responsibility. Has seen it argued that it does have an economic interest. They are well represented so theyare going to want to put that language in there.
Formal hearing generally required when stated in program’s organic or enabling act, but different federal circuits use varying standard
Not basically required in APA, like “notice and comment” is default in rulemaking
Agencies have much discretion in informal adjudication: useful to consider “Chevron Doctrine” for rulemaking as guide to adjudication requirements: if not explicitly required then it is discretionary
Essential Elements to Administrative Hearings
1) Notice - written
2) Hearing - in formal process, affected party has same rights as agency
- rules of evidence are looser
3) Presiding Officer
4) Appeal: may be automatic. “Exclusive record” essential for appeal to be effective
Notice of nature of action
Notice of how to participate: date, time, location or participation process.
Most notices are by mail.
Notice must be timely or may violate due process. Morgan (1938). Hearing may follow if situation demands immediate action.
Counsel: basically allowed, but rarely publicly paid for
exceptions mostly regarding issues of institutionalization
Presiding Officer: Impartial decisionmaker (for US)
these guys try to be independent from the agencies.
1) Salaries set by Civil Service Commission
2) Hiring mediated by Office of Personnel Management (OPM) which identifies 3 candidates
3) Agency cannot reward or punish ALJs (Administrative Law Judge)
4) ALJs are entitled to formal adjudication for disciplinary actions – removed for cause only
ALJ decisions are often recommendations sent to governing board or agency directors
ALJ Roles:
To conduct hearings
Affirmative responsibility to ensure a more complete record means ALJ may engage in investigation
To make initial decisions or recommended decisions, depending on program
Decisions of more policy importance are more likely to be left to agency heads so there is more accountability
Presiding Officer: Impartial decisionmaker
Includes board or appointed official who reviews recommendation of ALJ.
Board members, such as on the SEC, often are appointed according to ideological bias – values and public opinions on general principles allowed
“Closed mind” rule – these are not allowed.
Should not have participated earlier in issue, although some multiple roles allowed: Withrow v. Larkin (1975) (don’t need to know this case)
No overt comments that indicate pre-judgement of case
- General comments on “legislative facts” regarding meaning and broad applicability of law are fine, comments on “adjudicative facts” specific to case at hand indicate a “closed mind”. Whenever you see adjudicative it means specific parties. Adjudication how is this policy going to be applied to you. Once you do this you are biased.
Presiding Officer: Impartial decisionmaker
Can’t have Conflict of interest: No direct financial stake in decision by individual or their administrative unit. All administration runs into this.
Improper if decision-makers might benefit from restraint of trade occurring from decision: such as state boards regulating specific trades
Personal bias: can involve hearing officer and specific party or category of cases
Rule of necessity: in various states and some federal contexts such as FTC, there are no alternative venues for hearings so biased reviewers are allowable.
Parties in Interest and Intervention:
Intervenors common: third parties with interest in dispute may participate in various ways
May control presentation of their evidence, cross-examine witnesses, and appeal decision
Courts generally defer to agency determination of who can intervene, but general practice is to be liberal in allowing them: agencies can limit to promote “orderly conduct of business”: standing theory
Intervenors must principally rely on own resources: some money available through federal Equal Access to Justice Act if they win an APA controlled case
Discovery: gathering evidence for hearing
Variable rights, depending on agency and enabling act
Key sources for outside parties: things parties will use
Freedom of Information Act (FOIA)
Jencks Rule: disclosure required for any prior testimony obtained by prosecution
Hearings process:
Notice
Hearing officers
Discovery
Evidence
Decision standards
Evidence: much more flexible, generally must be a basic amount of legally acceptable evidence: “legal residuum rule” – but less rigorous evidence allowed as well (such as hearsay)
Context of expert decision-maker rather than jury and disputes based on technical grounds
Process of presentation is generally discretionary
Example: NRC limits process in effort to prevent use of system to simply stall action
Evidence: not worrying about evidence too much just wants to talk about the guiding rules.
1) Greater reliance on written testimony: technical facts can be better presented and cross-examined in writing
2) Looser rules on admissibility, particularly hearsay evidence
- Richardson v. Perales (1971): allowed hearsay, “residuum rule” exception – this means you have to have some real evidence too. Hearsay evidence is evidence being presented from what somebody said. They said this to that person. They heard it from another person. But the courts said you have to have direct evidence. Richardson v. perales, courts said according to this paper he is not disabled because they got their sources from some other thing. The courts allowed it and ever since the courts say you can use a third party source because they say that it could outweigh evidence. People doing the hearing are experts that can say who is saying what.
- “exclusionary rule” not consistent concern in administrative due process, but well-established common law exceptions recognized. Not used consistently. Exclusionary rule – excluding evidence that may have been gathered illegally. They want people to play by the rules so they are denying them a benefit for not playing by the rules.
3) Courts generally defer to agency policies regarding cross-examination and admissibility: INS v. Lopez-Mendoza (1984): state interest in stopping ongoing violation outweighs deterrence effect
Decision Standards: What courts need to see to support or reverse agency decision
Burden of production: obligation of party to produce evidence or raise issue
Burden of proof: the obligation of party to prove its case
Burden of proof is generally on the proponent of the order(APA): usually the private party is seeking change and bears burden of persuasion
Those applying for benefits or licenses are seeking change
Whole Record must be considered
Exclusive record: decision can only be based on what is in formal record
Decision Standards: Burden of proof levels ( skipped over this a little)
“Beyond reasonable doubt”: applies in criminal law
“Clear and convincing evidence”: used when agency action encroaches on legally protected right - deportation
“Preponderance of evidence”: normal agency standard – more than likely true (civil case standard)
APA: “substantial evidence” – in practice it is “preponderance”
“Review standard”: what is adequate for the courts to defer to the agency
“Substantial evidence” – if there is more than a scintilla of evidence, the courts should defer to the expertise of the agency regarding what is reasonable (stick with substantial evidence kind of stuff)
Ex parte contact with decision-makers in Formal Adjudication (should have some sense of Ex Parte) means only talking to one side.
Not allowed when:
Raised by involved parties and relevant to merits of case: information must then be placed in formal record and outside party must demonstrate why claim should not be dismissed or otherwise adversely affected by violation
Improper political interference by legislators or political appointees: consider Pillsbury (1966) decision when Congressional committee raised pending adjudication case with FTC: violated due process
Depending on agency enabling act, mixes or separates prosecutorial functions with advising and judicial within agency
EPA ALJ considering whether a legal pesticide should be banned because “generally causes unreasonable health effects”:
1. Can contact agency scientists only if other parties are notified and can review and access scientists (Except in initial licensing)
2. Can consult with EPA lawyer not in prosecutorial position about legal but not factual issues (such as what “generally” means)
3. Cannot contact company official about how pesticide is used since ALJs cannot do ex parte contact with outside parties
Licensing
Licensing is when agencies give, take away or condition permission: operating power plants or radio stations, commercial fishing, logging on public lands
Initial licensing is considered a neutral act and agency has no separation of powers concerns.
Licensing application must be handled in reasonable time
Licensing revocations cannot occur without hearing, except for emergencies or cases of willfulness
Licenses do not expire while renewal process is under consideration
State Process:
Pre-hearing conference: clarify and focus issues
- promote settlement
Must keep notes
Ex parte info is shared
No show, you lose case, unless agency allows second chance
“Stays” may be allowed for 30 days to prevent harm before hearing if you make if before deadline.
State process, continued
Central Hearing Officer Panel Reform : this is a big deal because we are one of the few states that have it.
HB 2525(1999): Created the Office of Administrative Hearings
Pool of about 65 ALJs handles about 90% of cases, major exclusions include Workmans Compensation and Land Conservation and Development Commission (all of Oregon is planned)
Faster and cheaper: 8.5 hours to 7 hours per referral, about 17 positions cut
Oregon State process, continued
Standardized heading/evidence rules from DOJ
-Agencies fund operations by billing
- Movement towards a judicial model?
