Administrative Law
Chapter 2 - Part III
Alternative to Goldberg Hearing
HUD v. Rucker, 535 U.S. 125 (2002)
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State brings eviction proceedings against public housing
tenants who had drugs or a drug dealer in the house
Tenants say they cannot be evicted for what they did not
do themselves
Courts says, Yes you can, it is your responsibility to keep
drugs and drug dealers out of the projects
Where is the hearing?
 The hearing requirement was satisfied by the hearing
in the state court eviction process
Ingraham v. Wright
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Paddling school kids
What is the alleged harm?
What are the alleged constitutional law violations?
Why isn't paddling cruel and unusual?
Administrative Costs
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What do the plaintiffs really want?
How will requiring a hearing before paddling
advance their ultimate goal?
Goss Style Give and Take
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Goss was the suspension case
Got informal give and take before suspension
 No confronting witnesses
 No counsel
How is Goss distinguishable from Ingram?
How is the Mathews analysis used in
Ingraham?
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What is the cost of a hearing?
What is the potential benefit?
 Was there evidence of widespread problems?
 Why did the court talk about the open nature of
schools?
 Would paddling in prison be different?
Why is there little chance for error?
Why not even a Goss hearing in Ingram?
What are Alternative Remedies?
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Tort claims under state law
 Negligence
 Intentional torts
 May be immune
42 USC 1983 claims
What would you need to show to make an
alternative claim?
Tort Remedies as Due Process
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What are the limitations on a tort remedy as a
substitute for due process?
 How do you pay for tort law?
 What are the potential recoveries?
 What is the timeframe?
 What about governmental immunity?
 How would tort law work in these cases?
When is a Hearing Right Meaningless?
Parratt v. Taylor
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Prison negligently lost plaintiff's hobby kit
Why was a hearing meaningless in this case?
Is a state tort claim a meaningful remedy?
What remedy would you set up?
Hudson v. Palmer
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Guard intentionally destroyed prisoner's stuff
Why was a hearing meaningless in this case?
How can due process be satisfied?
What are the appropriate remedies?
 Should the prison pay for the inmate's stuff?
Daniels v. Williams
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Jail prisoner slips on pillow on stairs
Sues for 1983 due process deprivation for injury
What does the court say satisfies the due process
requirement?
NB - Things like negligent prison health care are
actionable as cruel and unusual punishment, not
due process violations
Zinermon v. Burch
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Negligence as sham to avoid due process
State fails to give mental patient statutory due process
before locking him up
Defendant hospital claimed this was negligent and thus
the only remedy was state tort law
Was he locked up for a long time?
How does this affect the defense?
What did the court say about the "I forgot to get him a
hearing defense?"
Lujan v. G & G, 121 S.Ct. 1446 (2001)
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State contract terms required contractors to pay
prevailing wage rates
If there was a dispute, the state would withhold
the payments until the dispute was settled
Plaintiff claimed this was deprivation of property
without a hearing
Do they get a hearing?
If not, what is the remedy?
Right to Counsel in Administrative
Hearings
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Was there a right to appointed counsel in
Goldberg?
Where there any limitations on her hiring a
lawyer?
Why was that unrealistic for her?
Can the government limit your ability to privately
retain counsel?
Walters v. National Ass'n of Radiation
Survivors
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Upholds $10 limit on attorney's fees in VA
proceedings
When was this passed?
What was the intent at the time?
What is the effect in 1985?
 No attorney representation
Why does the VA not like Attorneys?
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Just gum up the machine
Do not increase accuracy
Who does represent veterans?
 Lay persons from support organizations
Any evidence attorneys would do better?
Representing Veterans before the VA
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This case is still good law, making it very difficult for
veterans to fight claims denials.
You can get fees when you file in Ct Ap Vet Claims
 Limit of 20% in the regulations
 Review of fee agreements by the court of vet apps
 Fees available if position of DVA was not justified hard to prove
See: http://www.vetadvocates.com/ if you are interested
in representing veterans before the VA.
Academic decisionmaking
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Why is there a greater due process right for nonacademic discipline than for academic failure?
What does the Board of Curators of the U. of Mo.
V. Horowitz (Horowitz case) tell us about due
process rights for students who are flunked out
and why?
What should you do if you are representing such
a student?
Van Harken v. City of Chicago
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City decriminalized its parking ticket system
Why is this critical?
Administrative review by contractor lawyers
No right of confrontation
 The officer did not have to appear
 Ticket was the record of the officer's testimony
Hearing officer could subpoena the officer in unusual
cases
Hearing officer could cross-examine defendant.
What is the Mathews Analysis?
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How much police time did this save?
How big was the calculated savings per mistaken
determination?
How much was at stake for the innocent ticket
receiver?
Is this constitutional?
What else could it be used for?
What if there are no disputed facts?
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Altenheim German Home v. Turnock, 902 Fed 2nd
582 (Cir 7 1990)
 Hospital licensing dispute
What sort of issues could leave no disputed
facts?
What is the rationale for a hearing?
What would be the result in these cases?
Review of Adjudications
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Adjudications are like trials
They resolve the facts of specific disputes
Binding only on the specific parties
All of the hearing cases we have read fit this
model
Is it an Adjudication at All?
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If the agency is not determining facts in individual
cases, there is no individual right to a hearing
Do you get a hearing if you do not like a law
passed by the legislature?
What are your remedies for statutes you do not
like?
Rule Making v. Adjudication
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Rule making is like the legislature
 You get participation through notice and
comment
 No individual right to participation
Thus it is critical to determine whether an agency
action is an adjudication or a rule making
Londoner v. Denver
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What did the city do that lead to the case?
What was the procedure for determining the charge?
Did it depend on a standard rule?
Was there a hearing at any point in the charge setting
process?
Why did the court find that this was an adjudication
rather than a rulemaking?
Do you think it mattered what kind of property it was?
Bi-Metallic Investment Co. v. State Board
of Equalization
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How is this case different from Londoner?
What did the plaintiff want?
Rulemaking or adjudication and why?
Any right to a hearing?
Think back to Constitutional law - do taxpayers
ever get a hearing to contest tax RATES as
opposed to individual assessments?
Rules that Only Apply to One Entity
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You regulate copper smelters in Montana
There is only one smelter
The state passes a rule setting arsenic levels in
the effluent for copper smelters
Adjudication or rulemaking?
What are the factors?