Chapter 4
Part II
1
Quick Review
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1st question - do you get a hearing at all?
Assuming you are dealing with a governmental
agency, what do you have to show to get a
hearing?
 Why does Melissa not have a right to a hearing
when she confesses?
 Why no hearing in the Perverts-R-Us cases?
 What do you need to do as an attorney to solve
this problem?
2
If you are Entitled to a Hearing:
How Much Process is Due?
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Old days - Not much
APA - 1945 - Strong bias in favor of hearings
1955 (Warren Court) - hearing required before deportation
Congress changes that by statute (not a constitutional
issue)
1970 Goldberg
 Notion of a constitutionally required hearing before a
benefit is terminated
 Oral hearing, but no appointed counsel
3
Matthews v. Eldridge (1976)
4
Social Security Disability
Basic Procedure Drill - I
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Get a form the Social Security office
What is the illness, the work history, the doc?
SSI orders records
A doc at SSI at Disability Determination Service - run by
state as contractor - makes a determination
Sends to regional office
Regional office pays, QA, or denies
Ask for reconsideration
This is all done with records
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Social Security Disability
Basic Procedure drill - II
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At the state level, the examiner can call the patient's doc
At the fed level, the expert is bound by the patient's doc
Most problems arise because of poor documentation
Applicants can submit new info and get a new evaluation
After denial, you can ask for a hearing before ALJ
At the hearing stage, you ask for an expedited review if the case is
clear
ALJ's decision is final
 At this point you can appeal to the federal courts
Positive decisions are retroactive - critical DP point
 Generates the money to pay the attorney as well
6
Volume of Claims
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How many claims does SSA decide every year?
 How big is the disability system (SSD)?
 Why is this important background for Matthews
v. Eldridge?
Think about what this process looks like from the
perspective of a disabled person tying to get
benefits, or trying to avoid having benefits
cancelled
 Will they usually have benefit of counsel?
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Matthews v. Eldridge (1976)
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Why does SSD require periodic review of
benefits?
When does SSD provide an oral hearing?
What if the claimant is successful at the hearing?
How long can this take?
Why does the Court find this is less critical than
in Goldberg?
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What does plaintiff want?
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What data is used for making disability determinations?
Who would be the witnesses and how is their information
collected?
Does the claimant's testimony matter?
How does this change the equities of Goldberg?
Why is the administrative decisionmaker less prone to
make errors in this case than in Goldberg?
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The Mathews Factors
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First, one must consider the private interest that will be
affected by the official action. (V)
Second, one must consider the risk of an erroneous
deprivation of that interest under the required procedures
and the likely reduction of that risk by requiring more or
different procedures. (P)
Third, one must consider the government's interest in
using the required procedures, as opposed to more or
different procedures. (C)
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The Mathews Factors as a Cost Benefit
Analysis
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C=PxV
(C)ost = (P)robability of increased accuracy
versus (V)alue of the benefit
How would you apply these factors to the
Matthews case?
 Does plaintiff get his pre-termination hearing?
What about other administrative decisions?
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De minimis Test
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Some deprivations are too insignificant to trigger
a right to a hearing
Putting a cop on paid sick leave did not trigger
due process
Otherwise the courts will be in every employment
action
We will see this again with 1983 actions
12
Matthews as a the End of the Warren
Court
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How is Matthews different from the ideal of due
process in Goldberg?
How does it differ from the notion that every one
gets criminal due process rights, including
counsel?
Would we do better in criminal law if we were
forced to recognize costs and benefits?
 Could you afford first class criminal defense?
13
Alternative Remedies
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Due process is not the only remedy for many actions
Contracts with the government are not property but are
agreements governed by contract law.
Unger v. National Residents Matching Program
 Failing to admit resident after signing the match
contract did not trigger a hearing, but would support
a breach of contract action.
Does you client really need a hearing, or do you have a
contract action?
Which is better?
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Any Pre-Action Hearing Rights after
Matthews?
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Cleveland Board of Education v. Loudermill, 470
U.S. 532 (1985)
 Firing a teacher
Applying the Matthews factors, how do you argue
that an informal pre-termination hearing is
required
 How is this different from Matthews itself as
regards to the ability to cure problems with a
post-termination hearing?
15
Gilbert v. Homar, 520 U.S. 924 (1997)
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Who did the guard work for?
 Why did this make his arrest for marijuana possession
a particular problem?
Did he get any due process prior to this suspension from
the workplace?
 What was the importance of the decision by an
"independent body" and what was the body?
 What are the limits of this opinion?
Why does this being a temporary suspension matter?
16
Goss v. Lopez, 419 U.S. 565 (1975)
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High school student suspended from school
What due process did the court require?
What was the Mathews analysis?
17
Ingraham v. Wright, 430 U.S. 651 (1977)
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School paddling case
What due process did the court require?
What was the Mathews analysis?
How does the analysis differ from Goss?
 Why?
Do we still paddle students?
 Why not?
Is hauling them to jail more protective of their rights?
18
Board of Curators of the Univ. of Missouri
v. Horowitz, 435 U.S. 78 (1978)
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Academic suspension case for a medical student
What due process did the court require?
What was the Mathews analysis?
Would this analysis differ if this had been a
disciplinary suspension?
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Law School Disciple and Due Process
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In Mathews terms, what are the issues in providing due
process for academic issues?
How does this differ for a disciplinary suspension?
 How do we tell whether it is an academic or
disciplinary issue?
 What about plagiarism? Cheating?
Why is the Mathews basis for treating academic and
disciplinary issues differently?
 What is the role of special expertise and deference?
20
Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004)
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The ordinary mechanism that we use for balancing such serious
competing interests, and for determining the procedures that are
necessary to ensure that a citizen is not "deprived of life, liberty, or
property, without due process of law," U. S. Const., Amdt. 5, is the
test that we articulated in Mathews v. Eldridge. Mathews dictates
that the process due in any given instance is determined by
weighing "the private interest that will be affected by the official
action" against the Government's asserted interest, "including the
function involved" and the burdens the Government would face in
providing greater process. The Mathews calculus then
contemplates a judicious balancing of these concerns, through an
analysis of "the risk of an erroneous deprivation" of the private
interest if the process were reduced and the "probable value, if
any, of additional or substitute safeguards.
http://biotech.law.lsu.edu/cases/nat-sec/hamdi.htm (at 65)
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Bias in Administrative Hearings
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What does a Right to an Impartial Judge
Mean?
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What are sources of bias?
 How is the analysis different for agencies than
for Article III courts?
What does separation of functions mean?
 How does it reduce potential bias?
 This argument lead to the central panel of ALJs
in LA.
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The Problem of Proof of Bias
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We will see more about this in the chapter on
judicial review
The core problem is that you cannot judge bias by
only looking at the record, but the courts are
unwilling to allow discovery into the motives of
the judges
It would be like getting to depose an Article III
judge as part of the appeal of a summary
judgment.
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Exception to the Requirement of Separation of
Functions for the Heads of Agencies
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554(d)
 This subsection does not apply  ...
 (C) to the agency or a member or members of
the body comprising the agency.
25
Withrow v. Larkin, 421 U.S. 35 (1975)
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State medical licensing board
What were the functions?
What did the doc request?
Why did the court find that it was not necessary to separate them?
 The Supreme Court reiterated the fundamental importance of
the need for an unbiased decisiondecision maker, but it found
that the mere combination of investigatory, prosecutorial, and
adjudicatory functions in the same entity did not necessarily
make the entity biased in adjudicating.
Why would an independent ALJ be a particular problem for these
cases?
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Disqualifying an Administrative Law
Decisionmaker for Bias
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What is the United States Supreme Court standard?
 “irrevocably closed mind”
What does it take to show this?
 What happened in Texaco, Inc. v. FTC, 336 F.2d 754
(D.C. Cir. 1964)?
 Why does mean that the head of the EPA needs to be
circumspect in comments about BP?
 Would generalized statements, such as the FCC chair
deploring advertising to children, meet the standard?
What is the Doctrine of Necessity?
27
Kennecott Copper Corp. v. FTC, 467 F.2d
67 (10th Cir. 1972)
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Kennecott owned a small coal company, then
bought a big one - Peabody
FTC investigated this as an antitrust violation
 A commissioner gave an interview and
explained that the agency saw Kennecott as
removing itself as a competitor.
 Kennecott claimed this showed bias
The court said no, but warned the agency to be
more careful
28
Stopped here
29
Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir.
1966)
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Who was meddling in the FTC case?
 What did Senator Kefauver say?
 Did the Senator have an alter-ego?
What did the court find?
What is allowed for pending cases?
 Congressional case work
What is the analysis if it had been the president?
 How does this change the issues?
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Ex Parte Communication Review
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Why do ex parte communications impinge the
rights of the regulated party?
 Does it matter whether they come from inside
or outside the agency?
How can the harm be cured?
 5 U.S.C. 557(d) — placing the ex parte
communication in the record and affording the
parties a chance to respond to it.
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