Consolidated Slides for Feb 14 Make Up
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Chapter 4
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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
This is key issue in 1983 actions - how hard/often
can the prison guard hit the prisoner?
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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.
 The Court of Claims system deals with these.
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)
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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?
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Gilbert v. Homar, 520 U.S. 924 (1997)
Has there been a substitute for a hearing?
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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?
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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?
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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?
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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?
 What would be the costs of having due process
for every failing student?
 What would be the facts at issue?
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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Why does Mathews result in different standards for
academic and disciplinary suspensions?
 How do we tell whether it is an academic or
disciplinary issue?
 What about plagiarism? Cheating?
What is the role of special expertise and deference?
 Is this just judicial deference to agency expertise and
policy making, with the school as agency?
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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 is separation of functions?
 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.
The “agency” means the secretary in an agency
with a single head.
The “body comprising the agency” is the
commissioners or board members of an agency
headed by a committee.
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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 decision 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 is the record so important in these cases?
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?
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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.
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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?
What the court was worried about:
 However, when such an investigation focuses directly
and substantially upon the mental decisional processes
of a Commission in a case which is pending before it,
Congress is no longer intervening in the agency's
legislative function, but rather, in its judicial function. At
this latter point, we become concerned with the right of
private litigants to a fair trial and, equally important, with
their right to the appearance of impartiality, which
cannot be maintained unless those who exercise the
judicial function are free from powerful external
influences.
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The Pillsbury Ruling
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What happens if the court disqualifies the commission
because of the intimidation in the Senate hearing?
The court’s solution:
 Although we conclude that the course of the questioning
before the Senate subcommittee in June 1955 deprived
the petitioner of the kind of hearing contemplated by the
Supreme Court ... we are convinced that the
Commission is not permanently disqualified to decide
this case. We are convinced that the passage of time,
coupled with the changes in personnel on the
Commission, sufficiently insulate the present members
from any outward effect from what occurred in 1955.
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What should Congress be able to do in
Hearings and for Casework?
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Congressional case work – doing things for
constituents such as checking on Social Security
Benefits or trying to get bank regulators to lay off.
What should be allowed and what would be
forbidden under Pillsbury and what you know
about due process?
What if the president is meddling?
 How does this change the issues?
 Is he the decider?
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Rulemaking
Introduction to The Regulators
Jargon Alert
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Rule, legislative rule, or regulation
 They all mean the same thing
 Has the same effect as a statute passed by the
legislature
Non-Legislative rule
 Has no legal effect, but shows what the agency thinks
the law is
 Many names - interpretive rule, guidelines, guidance
document, anything but rule or regulation
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The Agency as Legislature
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The modern rulemaking process got started
in the 1950s and really accelerated in the
1970s
 Parallels the growth of federal agencies
In theory, the federal courts encourage
agency rulemaking.
 It reduces litigation and simplifies the
litigation that ensues.
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The Power to Make Rules
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The power to make rules must be delegated by the
legislature.
 If the enabling legislation (the legislation
creating an agency) is silent, the agency cannot
make rules
The delegation may be broad, allowing the agency
great discretion, or very narrow.
 We will look at the standards for reviewing this
delegation later in the course
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Must the Agency Make Rules?
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If the agency has the power to make rules, it has the
discretion on what rules to make and when to make them.
The legislature can put provisions in the agency
legislation requiring that certain rules be made, and the
timeframe for making them.
 The Clean Air Act required rulemaking to flesh out
detailed technical standards
Unless there is a legislative directive, it is difficult to get
the courts to force an agency to make rules
 Not impossible, as we will see latter.
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Why Make Rules?
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Many statutes have too little detail to be enforced
without additional rules.
Rules can be used to tailor a statute to new
circumstances.
Rules provide a chance for the for the public to
participate in the regulatory process
Once promulgated, a rule in binding on every
party, reducing the need for adjudications.
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Uniformity
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Rules set up a general framework that treats
all parties uniformly
Rules are the fairest way to make big
regulatory changes
If the agency does not have rules, it can
change enforcement policy from case to
case, and is also at the mercy of judges to
accept or reject agency standards
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Adoption of National Standards
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National standards can be adopted through
agency rules, harmonizing practice across
jurisdictions
 National building codes
 CDC guidelines on food sanitation
 Recommendations of the Advisory Committee
on Immunization Practices
LA and building codes
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Agency Efficiency
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While a rulemaking can be expensive and time
consuming, it can settle issues which might
otherwise have to be litigated in every
enforcement case
Rulemaking can also eliminate many hearings by
resolving factual questions
 In disability cases, rules can be used to
establish what constitutes a disability, rather
than making it as case by case determination.
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Agency Oversight
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You can control the outcome of rulemaking
much easier than that of adjudications
 Not dependent on ALJs (administrative law
judges)
 This especially important in LA
More input from across the agency
 Input from the public as well
Directly controlled by agency policy makers
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The Politics of Rulemaking
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Congress often dodges the hardest issues and leaves
them to agency rulemaking
Most of these involve cost-benefit analysis
 How do you trade off automobile safety with price and
fuel efficiency?
 Are you more worried about delaying the entry of new
drugs or the about allowing the sale of a drug with
dangerous side-effects?
 Do you want cheap power at the cost of lots of asthma
and the Grand Canyon full of smoke?
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Downside of Rulemaking
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Trials (adjudications) involving single parties can
be more flexible in the individual cases
Adjudications are useful when you are not sure
what the rule should be and need more info and a
chance to experiment
Rules can be so abstract or overbroad that they are
expensive or difficult to follow
 Like statutes
Agencies can promulgate rules that Congress
would never pass - Green House Gas Regulations.
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Rulemaking Ossification
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The courts and legislatures have increased the
burden on rulemaking, especially in states
 Rulemaking has gotten so complex and time
consuming it has lost some of its value
 Complicated by regulatory conflict and
incompetent agency practice
Rulemaking can go on for years
 What is the legal value of a proposed rule that
has not been finalized?
 The Medicare anti-kickback regulations were
delayed for years between the proposed rule
and the final rule
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Definition of a Rule
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APA 551(4)
 (4) 'rule' means the whole or a part of an agency statement of
general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or describing
the organization, procedure, or practice requirements of an
agency and includes the approval or prescription for the future
of rates, wages, corporate or financial structures or
reorganizations thereof, prices, facilities, appliances, services
or allowances therefor or of valuations, costs, or accounting,
or practices bearing on any of the foregoing;
Not a clear definition
Things that are not adjudications or licensing
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LA Definition
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6) "Rule" means each agency statement, guide, or requirement for
conduct or action, exclusive of those regulating only the internal
management of the agency and those purporting to adopt, increase, or
decrease any fees imposed on the affairs, actions, or persons regulated
by the agency, which has general applicability and the effect of
implementing or interpreting substantive law or policy, or which
prescribes the procedure or practice requirements of the agency.
"Rule" includes, but is not limited to, any provision for fines, prices or
penalties, the attainment or loss of preferential status, and the criteria or
qualifications for licensure or certification by an agency. A rule may be
of general applicability even though it may not apply to the entire state,
provided its form is general and it is capable of being applied to every
member of an identifiable class. The term includes the amendment or
repeal of an existing rule but does not include declaratory rulings or
orders or any fees.
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Functional Definitions
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General applicability, as opposed to specific
parties
Prospective
Binding on the agency as well as on the public
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Notice-and-Comment Rulemaking
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APA Procedures
http://biotech.law.lsu.edu/Courses/study_aids/adl
aw/553.htm
The Register
 The Federal Register
 LA Register
Electronic Notice
http://www.regulations.gov
Why Have Public Participation?
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Public participation has great political benefit in broadening the
acceptability of the rules.
Public comments can identify technical and legal problems with
the rules
Publication of proposed rules allows politicians to become
involved to protect the interests of their constituents
Public participation limits executive power and makes it more
palatable to the courts to have agencies making laws
While the agency may take comments at public hearings, it is
usually done in writing.
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Attacking Rulemaking
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Once a rule has been properly promulgated
through notice and comment, it can only be
attacked by attacking the published basis for the
rule, and that must be done relatively soon after
promulgation.
We will see in the movie how the opponents of the
rule work to get their changes made before the
rule is finished.
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