admin SOS Flashcards
Youngstown Sheet & Tube Co. v. Sawyer (1952)
(steel seizure)
(unconstitutional)
(Youngstown categories)
6-justice majority, 6 options, all agreed that Sec.’s seizure power must come from grant of power from President in Constitution or constitutionally enacted statute
• Black: president needs explicit, not inherent, authority to order seizure
• Clark, Burton: in emergency, Prez might have seizure power under Art. II; but Congress had anticipated emergency and enacted statutes, none of which gave Prez power
• Jackson: 3 situations:
o (1) Prez acts, Congress approves, or Prez has all power à president has power
o (2) Prez acts, Congress is silent à guess reasons for silence and what Congress would have said
o (3) president acts, Congress disapproves à most dubious of president’s power
• Vinson, Reed, Minton (dissent): failure of legislative action not probative on executive
Marbury v. Madison (1803)
(delivering commissions)
(unconstitutional)
(political vs. legal acts)
Had a right to the commission (position created by Congress); law affords a remedy (presidential discretion only politically reviewable, but here individual rights depend on the performance, so there is a legal act); but SCOTUS doesn’t have jurisdiction
• Allows judiciary to order executive through mandamus BUT
• Distinguish between political vs. legal acts à hard if not impossible to get judicial review of political actions (exercise of discretion), but even some discretionary acts are susceptible to judicial review
SEC v. Chenery Corp. [Chenery I] (1943):
(stock sales during merger)
(unconstitutional)
(contemporaneous explanation; vacate & remand)
Pre-APA review of discretionary actions. First, SEC said reorg would violate common law fiduciary duty, but majority disagreed; then, SEC said past legal precedent supported ruling, which was the only reason they gave.
• Agency action must be judged on reason given. Court won’t intrude on weighing reasons for action that agency hasn’t explored
• Standard remedy for agency’s failure to explain is vacate & remand. Just saying agency didn’t act with force of law when it acted; may still have legitimate basis, so gets to try again
Art. I § 1 (Vesting Clause)
“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.”
• Root of 150 years of strong anti-delegation rhetoric but weakly applied
Marshall Field & Co v. Clark (1892)
(Tariff Act)
(constitutional)
(factual determination vs. legal consequence)
Upheld Tariff Act (suspending favorable tariff treatments for nations without reciprocal treatments) because it allowed Prez to make factual determinations about countries, which Congress put into effect
• Vesting clause à presidential action not effective without tacit congressional approval
• Findings of contingent facts
J.W. Hampton Jr. & Co. v. US (1928)
(another Tariff Act)
(constitutional)
(intelligible principle)
Most widely quoted formulation of old nondelegation doctrine. Tariff Act set some precise duties but left some up to president with a 30-day period for Congress to act to avoid effect. Congress didn’t have to prescribe all details
• **Intelligible principle à “If Congress shall lay down by legislative act an intelligible principle to which the person or body” authorized to set details is directed to conform, permissible delegation
Panama Refining Co. v. Ryan (1935)
(oil products from reserves)
(unconstitutional)
(begins anti-delegation)
“Hot oil” provision authorized Prez to remove some things from interstate commerce. Struck down because Congress had not set any “policy, has established no standard, has laid down no rule” for exercise of power
• No guidance at all
A.L.A. Schechter Poultry Corp. v. US (1935)
(poultry industry codes)
(unconstitutional)
(begins anti-delegation)
4 months later, struck down bill that gave Prez authority to approve industry codes re: fair competition submitted by trade groups because insufficient criteria
• No procedural safeguards
• Frequently discussed as private, rather than executive delegation (whether Congress can transfer Art. I power to private people)
• Since Schechter, Congress has not invalidated a single statute on the basis of excessive delegation.
Yakus v. US (1944)
(post-war price control)
(constitutional)
(back to intelligible principle)
Post-war price controls. Distinguished from Schechter because of narrower purpose, that basis was “sufficiently definite and precise” to allowed determination of whether Prez followed
• Back to “intelligible principle”; even a very general intelligible principle is constitutionally sufficient
Whitman v. American Trucking Ass’ns, Inc. (2001)
(EPA NAAQS)
(constitutional)
(no constitutional avoidance; within bounds of permissible delegation)
[modern non delegation]
2 questions were (1) where CAA delegates legislative power to EPA and (2) whether EPA can consider implementation costs. Court reached second question first (constitutional avoidance unavailable here) and said cannot consider cost; then found permissible delegation
• “Well within the outer limits of our nondelegation precedents…Even in sweeping regulatory schemes we have never demanded that statutes provide a ‘determinate criterion’ for saying ‘how much of the regulated harm’ is too much.”
• Scalia also considered the power exercised executive power, because it was permissibly delegated
- Stevens, Souter: concur in part, but would call the power legislative and still approve (Scalia says power is executive because of the delegation; but call it what it is)
- Thomas: (hints at non-delegation revival) concurring, noting that there are some cases where, even with intelligible principle, significance of delegated decision is so great as to make delegation impermissible
Industrial Union Dept. v. API [The Benzene Case] (1980)
(carcinogens in workplace)
(unconstitutional interpretation)
(constitutional avoidance à don’t assume congressional intent to delegate impermissibly)
OSHA allows Sec. of Labor to regulate occupational exposure to benzene; question of whether showing benzene to be carcinogen is sufficient basis for allowing most stringent regulation (“reasonably necessary” vs. “adequately assures”). Court holds that statute is ambiguous, Congress couldn’t possibly have intended to delegate so much power, so less restrictive standard applies
• Applying constitutional avoidance: “in the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Sec. the unprecedent power over American industry” that gov’t argues, because that would be a “sweeping delegation” (cites Schechter)
Gundy v. US (2019)
(SORNA applicability)
(constitutional)
(majority restates Whitman; other opinions show divide)
Whether AG gets to decide when to apply SORNA registry requirements apply to past offenders, or whether this is impermissible delegation to AG. Court holds that there was an intelligible principle for implementation/enforcement
• Alito, concurring: hints at willingness to reconsider 84 years of precedent (but in context of 8-member Court, concurs). “Would be freakish to single out the provision…for special treatment,” and this fits with precedent
• Gorsuch, Roberts, Thomas, dissenting: again hints at non-delegation revival; we’ve undermined democracy for decades, we need to stop excessive delegation. “We still regularly rein in Congress’s efforts to delegate legislative power; we just call what we’re doing by different names.” Single executive branch infringing liberty of individuals
• Non-delegation arguments after Whitman:
o Argue lack of intelligible principle
o Argue that canon of constitutional avoidance is present
o Rely on APA (not unconstitutional, but violates APA)
o Look at over-delegation of legislative power
o Look at delegation to private parties (Schechter)
o Change underlying statute
Nixon v. Administrator of General Services (1977)
(Nixon’s presidential papers)
(constitutional)
(Nixon balancing test)
Nixon made a deal on resignation that all his records would be destroyed; Congress promptly enacted a statute to prohibit that; screening with another executive official to return private and set terms for eventual public access to the rest. Nixon argued this violated separation of powers (legislative intruding on executive to determine what to do with executive docs)
• Test: “in determining whether this Act disrupts the proper balance, look to the extent to which it prevents the executive branch from performing its assigned constitutional functions.” Here, no problem à everyone viewing docs is executive, Nixon was rights to private materials
• Why wasn’t this applied in Whitman? Argument that Congress has undermined executive by burdening its ability to discard records; doing things to hobble other branch is the trigger for balancing test.
INS v. Chadha (1983)
(vetoing AG’s order suspending deportation)
(unconstitutional)
(no exercise of legislative power by one house)
Law allowed AG to suspend deportation, but then resolution by either house could veto AG’s decision.
• Majority (Burger): acted to alter someone’s legal status without bicameralism/presentment à House cannot act alone (few exceptions)
• Powell, concurring: should decide more narrowly (could say Congress deciding based on statute is judicial power, which only Art. III court may exercise)
• White, dissenting: Congress delegates power to agencies, why not to part of itself? But this doesn’t get support
Hayburn’s Case (1792)
(veterans’ benefits)
(unconstitutional)
(no admin review of court decisions)
Statute that gave courts ability to rule on veterans’ benefit issues but subjected court decisions to review by Secretary (admin review of judicial decisions). Held unconstitutional
• Judicial power belongs only to Art. III courts; not subject to review by another branch
• Outcome could be reviewed, but must be final and binding on parties; cannot be provisional judicial judgment subject to executive repudiation
Crowell v. Benson (1932)
(Longshoremen’s Comp to EEOC Art. I court)
(constitutional)
(private vs. public rights)
Act allowed EEOC to adjudicate claims under Longshoreman’s Act, statute created Art. I courts for these claims
• Public rights (individual vs. gov’t) can go to Art. I courts; private rights can only go to Art. III courts
• Upheld theory that agency decisions can be subject to review by Art. III courts
Northern Pipeline Const. Co. v. Marathon Pipe Line Co. (1982)
(Ch. 11 judges, civil cases)
(unconstitutional)
(only Art. III courts get private rights; 2-prong test)
Bankruptcy Act of 1978 gave much more power to bankruptcy courts (all civil proceedings related to Ch. 11 cases including state law); wide variety, everything but criminal. Jurisdiction squabble in a case tangentially related to bankruptcy proceeding. Art. III courts must retain their essential attributes of judicial power. Political independence of judiciary, which bankruptcy judges lack
• Only 3 categories of delegation to non-Art. III courts: (1) territorial courts; (2) court martial/military; (3) administrative adjudications and Congress for “public rights.”
• 2-element test for “public rights”: (1) gov’t has to be party; OR (2) matter has to be kind that would historically have been decided by legislature/executive (“public rights doctrine,” from Murray’s Lessee) (pt. 2 is not sufficient à ex. criminal).
o This is an easy case because gov’t is not a party
• Distinction from Crowell à gov’t was not a party, but it was about federal law, so the findings of the bankruptcy judge were reviewable by a district court judge
Thomas v. Union Carbide Agricultural Prods. Co. (1985)
(pesticide registration arbitration)
(constitutional)
(public vs. private rights)
Act allowed EPA to rely on test data from registrants for future competitors; competitors had to compensate original registrant, with binding arbitration for any disagreement; arbitrator’s decision reviewable only for fraud/misrepresentation/misconduct. Court held constitutional
• “Congress may create a seemingly ‘private’ right that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by Art. III judiciary”
• Ignored Northern Pipeline because
o Congress made complex regulatory scheme
o Didn’t threaten independent judiciary
o Limited judicial review satisfied due process
CFTC v. Schor (1986)
(agency adjudicating counterclaims from complaints)
(constitutional)
(balancing test, public vs. private only a factor)
CFTC empowered itself to adjudicate counterclaims arising from transactions under its authority for consumer vs. trader. Consumer argued that adjudication of counterclaim against trader by CTFC was permissible. Court resolved a jurisdictional issue and then held that this was permissible; won’t overturn entire congressional scheme. Public vs. private is pragmatic, not talismanic
• More like Crowell, unlike Northern Pipeline’s broad jurisdictional grants; counterclaim jurisdiction is limited to expertise of agency, jurisdiction only with consent of claimant
• Factors: (1) extent to which normal Art. III powers are saved to courts vs. exported to other bodies; (2) origins/importance of right to be adjudicated (public vs. private right); (3) concern that drove Congress to depart from Art. III requirements.
Art. II Sec. 2 cl. 2 (Appointments Clause)
“The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
• Distinction between principal vs. inferior officers à controls who gets to appoint/control
Buckley v. Valeo (1976)
(FEC appointments)
(unconstitutional)
(defines “officer”)
FEC members have powers of administering and enforcing the FEC Act (contribution limits, etc.). Question of constitutionality because of appointment. Court held unconstitutional because not appointed by Prez subject to Appointments Clause
• “Any appointee exercising significant authority pursuant to the laws of the US is an ‘Officer of the US’ and must, therefore, be appointed in the manner prescribed.”
• Extensive rulemaking and adjudicative powers (notes that Congress is allowed to put its investigative power into other bodies)
• FN for distinction between employees and officers but not raised
• Hypo: Congressional employees? Prez has responsibility “unless herein otherwise provided” and Art. I gives Congress power to appoint own officers; doesn’t preclude Congress from creating statutory provisions that its officers will carry out for it
Freytag v. Comm’r of IRS (1991)
(Tax Court CJ appoint judges)
(constitutional)
(Art. I Court not department)
Tax Act authorized Tax Ct. CJ to appoint “special trial judges” to assist judges. Can participate in enumerated category of cases. Questioned CJ’s power to appoint STJs/whether they were officers. Held constitutional
• They were (inferior) officers, but properly appointed by CJ because tax court is a “court of law” per Appointments Clause. Inferior officers can be appointed by a “department head,” Tax Court isn’t a department but is a “court of law” within Appointments Clause.
• Scalia, O’Connor, Kennedy, Souter, dissenting in part: would find Tax Court department; comes down to identity of officer, not the kind of power being exercised (department is broader definition than majority thinks)
Lucia v. SEC (2018):
(ALJ appointments)
(unconstitutional)
(defines “officer”)
Question of whether SEC ALJs are “officers” (and therefore improperly appointed because not under Art. III; appointed by SEC “staffers”). Held unconstitutional à they were officers and not properly appointed
• Officer is someone whose work is “continuing and permanent” and exercises “significant authority pursuant to the laws of the US.” à Extent and permanence of work. Freytag decides this case
• Thomas, Gorsuch, concurring: Freytag only defines what is sufficient to make someone an officer, does not define what is necessary (would resolve on original public meaning, including people who only exercise ministerial duties)
Art. II Sec. 3 cl. 5
Take Care Clause
“…[Prez] shall take care that the laws be faithfully executed…”
• Gives the Prez responsibility for and authority over the actions of Officers
• How far can this direction go? Different opinions from early AGs
Wirt, AG opinion (1823)
LESS intervention
Monroe sought advice on revising Treasury Department’s settlement of account of a former military officer. Wirt said Prez was powerless to review à Congress assigned the role, President can only ensure faithful execution
• President cannot intervene to correct improper subordinate analysis/change discretion
Taney, AG opinion (1831)
(MORE intervention)
Whether Prez could direct prosecutor to discontinue a prosecution he believed to be legally improper. Taney said Prez could do this à “must be derived from the general supervisory powers which belong to his office.”
• Reviewing officers’ discretion is necessary to ensuring faithful execution; right and responsibility to ensure that he thinks law is being followed faithfully
Myers v. US (1926)
(postmaster)
(constitutional)
(Prez can remove inferior officers by himself)
Myers was forced to resign; statute says postmasters “may be removed by the Prez by and with the advice/consent of Senate and shall hold their offices for 4 years unless sooner removed or suspended according to law.” Senate didn’t consent to removal, so if statute is valid, improperly removed. Court held Prez has power to remove inferior officers without a/c of Senate (statute unconstitutional, removal stands)
• Prez better informed than Senate about reasons for removal (knows his work)
• Unitary executive theory: single Prez, fortified as much as possible about Congress; must be able to control all execution or debilitated in a way Framers didn’t intend (// Taney)
• Might be some duties so peculiarly/specifically committed to discretion of particular officer (quasi-judicial)…Nager doesn’t know what this means but it’s interesting
• “The power to remove inferior officers, like that power to remove superior officers, is an incident of the power to appoint them, and is in its nature an executive power.”
Humphrey’s Executor v. US (1935)
(FTC Comm’r)
(unconstitutional)
(Prez does not have all power to remove quasi-legislative/quasi-judicial officers)
Significant 9 years (Great Depression, New Deal, court packing threat). Hoover appointed to FTC for 7 years, Roosevelt asked to resign 2 years later, then removed him. FTCA says comm’r may be removed “for inefficiency, neglect of duty, or malfeasance in office.” Court held statute limited Prez’s removal power and was constitutional
• Myers was about purely executive officers; this is a quasi-legislative/quasi-judicial position, so it is constitutional to limit Prez removal power à character of office is key
• FTC is a “separate body of experts,” has its own power (except in its selection), intention was to limit removal
o “Headless fourth branch” – agencies that are part of the gov’t that the Prez doesn’t control (people who aren’t exercising any executive power so Prez can’t remove”
Wiener v. US (1958)
(War Claims Comm’r)
(unconstitutional)
(Prez vs. independent comm’r)
War Crimes Comm’r removed 6 months before expiration of commission, but statute did not mention removal. Court held unconstitutional because intrinsic judicial nature of role.
• Congress made Comm’n independent, which precludes Prez from influencing particular claims, must also mean Congress didn’t want Prez to have removal power (cites Humphrey’s Executor)
• Functional approach in deciding whether agency is “independent”
Bowsher v. Synar (1986)
(Comptroller General removal and power)
(unconstitutional)
(Congress can’t have removal power of executive officers)
Gramm-Rudman-Hollings Act eliminating deficit required Comptroller General to send recommendations to Prez, who then had to issue sequestration order. CG was removable by Congress independently or Prez for specified reasons. Congressman Synar argued that this was unconstitutional for (1) non-delegation; (2) separation of powers, argument that CG was Executive by subject to removal by Congress, not Prez; (3) separation of powers, argument that CG was issuing orders to Prez
• “Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.” Effectively a legislative veto, can’t reserve that kind of power over executive
• Cannot give independent discretion to CG, removed from Prez. To the majority, doesn’t matter that duties are discretionary vs. ministerial, because still engaged in execution
• Stevens, Marshall, concurring: legislative officer exercising some legislative and some executive power (like other independent agencies) à “chameleon-like quality.” Cannot delegate legislative power to someone who can avoid separation of powers and checks by Executive. Cannot delegate power and retain independent control.
Morrison v. Olson (1988)
(IC after EPA Superfund/Reagan debacle)
(constitutional)
(inferior officer test; new test for removal limitations)
Challenge to independent counsel (post-Watergate version). Controversy over EPA’s administration of Superfund; claim that executive docs were subpoenaed by House committees, Superfund Administrator ultimately convicted of perjury. Morrison appointed as IC, and Olson challenged constitutionality of her appointment (she had “full power and independent authority to exercise all investigative and prosecutorial functions and powers” of DOJ). AG had no control over IC (only removal is impeachment, conviction, or “good cause, physical disability, mental incapacity”/other impairment of performance). Limited accountability to Congress.
• Appointments Clause: constitutional because IC is an inferior officer, so no appointment problem. Four factors for inferior officers (test #1; see also Edmond for test #2)
o (1) subject to removal by higher executive officials (at least in some way by AG)
o (2) performs only certain, limited duties (no policymaking, no administrative)
o (3) limited in jurisdiction (AG has to ask DC Cir to give her jurisdiction)
o (4) temporary appointment (single task, commission ends)
• Art. III: Congress can give appointment power to judiciary, so no issue here; not unlimited discretion, related to factual circumstances for seeking IC’s commission. Jud
• Removal limitations: leaves removal in the hands of the executive (// Humphrey’s, Wiener, unlike Myers, Bowsher), no aggrandizement. Doesn’t matter whether power is “purely executive” but how much it restrains the Prez (here, not that much – limited jurisdiction, tenure, little restriction on “faithfully execute”)
• Scalia, dissenting: (this dissent changed the debate; WashPo called for sunsetting the Act, Court adopts language in Free Enterprise). Interferes with presidential discretion, irrelevant how much à weakens presidency. Not an “inferior officer” because no supervisor to influence discretion. “Open invitation for Congress to experiment”
o Principal officer: someone independent of another elected official
Seila Law LLC v. Consumer Protection Bureau (2020)
(unconstitutional)
(distinguishes Humphreys and Morrison)
• Congress established the CFPB – independent regulatory agency tasked with ensuring consumer debt products are safe and transparent. Powers are rulemaking, enforcement, and adjudicative.
• CFPB lead by single director; 5 year term; President may remove from office only for “inefficiency, neglect of duty, or malfeasance in office”
• Decision: Violation of removal power (separation of powers)
• This is different than Humphreys because this is not like the FTC in that case
o The single director is not a “body of experts”
o Cannot be considered “non-partisan” in the same sense as a group of officials drawn from both sides of the aisle
• Logic of Morrison does not apply
o Director is not an inferior officer
o While the IC in Morrison had prosecutorial power, it was limited to certain government actors – here it affects millions of private citizens
• After this case***:
o President can remove principal officers at will
o Not clear on inferior officers
Free Enterprise Fund v. PCAOB (2010) (Sarbanes-Oxley Oversight Board) (unconstitutional) (double layers of protection) Free Enterprise Fund v. PCAOB (2010) (Sarbanes-Oxley Oversight Board) (unconstitutional) (double layers of protection)
PCAOB is 5 members with staggered 5-year terms, overseen and removable by SEC; a private non-profit, members neither “officers nor employees” by statute. But SEC Comm’rs are also insulated from presidential removal (double protections from presidential removal). Court held double protection unconstitutional
• Removable only for good cause, and Prez can’t decide whether good cause exists; diffuses electoral accountability, subverts faithful execution.
o Applies Edmond/Scalia test
• SEC is a department and SEC Comm’rs are department heads; Scalia’s Freytag dissent
Bd. of Regents of State Colleges v. Roth (1972)
(untenured poli sci prof)
(constitutional)
(no balancing test for application à look to nature of interest)
Roth was hired for 1 year, informed he wouldn’t be rehired at the end. No reason, no opportunity to challenge. He argued that this infringed on his DP rights because (1) not rehiring was punitive to statements criticizing university and (2) failed to give him DP. Court held no protected DP interest.
• District court used a balancing test but wrong; “to determine whether DP apply, we must look not to weight but to the nature of the interest at stake.” No wooden distinction, but still some boundaries
o Liberty à contract denial not based on a charge, not impugning his good name. Might be circumstances that implicate liberty but not here (finding liberty interest in Constitution). Reputation as interest.
o Property à “must have a legitimate claim of entitlement to” something to have property interest. Created & defined by existing rules/understandings from sources like state law (ex. Goldberg v. Kelly, state welfare recipients were entitled). Here, no property right. (Leaves definition of property rights to other bodies of gov’t)
Perry v. Sindermann (1972)
(teacher de facto contract?)
(remand)
(nature of interest)
Decided same day as Roth. Remanded to determine whether he did have a de facto contract such that he had a legitimate claim of entitlement (could be state law)
Londoner v. Denver (1908) (street paving tax)
(unconstitutional)
(small number, big effect)
-maybe not really covered??
Local board had to determine taxation for paving a street
• “A relatively small number of persons…all exceptionally affected, in each case upon individual grounds” à had right to a hearing
Bi-Metallic v. State Bd. of Equalization (1915)
(increased tax prices for whole city)
(constitutional)
(applies to more than a few people)
State Board increased valuation of all taxable property in Denver by 40%, with no right to a hearing; suit to enjoin.
o “When a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption.”
o Electoral power over rulemakers, so there is a remedy available, just not through this injunction
Goldberg v. Kelly (1970)
(welfare denial)
(unconstitutional)
(balancing test & what rights are due)
NY residents receiving aid under federally funded plan; state administrators terminated without prior notice or hearing rights. Gov’t argued they were entitled to process pre-deprivation, citizens argued they were still eligible but were unable to defend until after right was taken away. Court held this violated DPC. All parties agreed benefits were property, so court focused on interest-balancing
• Was process due? Individual benefits were subsistence, essential for life; gov’t benefits were cost/efficiency. Individual interest > gov’t interest in welfare context.
• What process was due? Didn’t need to be quasi-judicial trial, interests in efficiency. “Fundamental guarantee is to be heard, at a meaningful time and in a meaningful place à timely and adequate notice detailed reasons and effective opportunity to defend by confronting any adverse witnesses and presenting own witnesses and evidence orally.”
Mathews v. Eldridge (1976)
(disability denial)
(constitutional)
(factors in balancing private vs. gov’t interest) Modern test
Eldridge got disability benefits, but then dispute about continued entitlement. Process allowed him to submit additional info in a written response before notifying him of final decision to deny him benefits. Court held process was proper
• Three factors in process balancing: (1) nature of private interest affected by gov’t action; (2) risk of erroneous deprivation through procedures used and probable value, if any, of additional safeguards; (3) gov’t interest, including function involved and fiscal/admin burdens
• Application: (1) here, could get retroactive benefits, so only interest in uninterrupted benefits (small); (2) burden of adding pre-termination procedure would be substantial, would take money away from benefits (high); (3) erroneous deprivation low à good faith deference to administrative officials; here, regularly got written records from doctors, etc. (low)
• “All that is necessary is that the procedures be tailored in light of the decision to be made, the capacities and circumstances of those who are to be heard.” This comports with DP
Cleveland Bd. of Educ. v. Loudermill (1985)
(gov’t security guards fired)
(unconstitutional)
(DPC, not statute, defines process required)
Security guard stated he’d never been convicted of a felony, but 11 months later employer discovered he had. Dismissed for lying on employment app, not allowed to appeal charge, but he was a civil servant, could be terminated only on showing of cause. Gov’t argued that all the process guaranteed by statute had been satisfied. (related case of someone fired for failing eye exam)
• Court held that “property cannot be defined by procedures provided for its deprivation…The right to due process is not conferred by legislative grace, but by constitutional guarantee.” Then analyzed what process is due
• Must use balancing test laid out in Eldridge. “The essential requirements of due process are notice and an opportunity to respond.” (1) oral/written notice of charges, (2) explanation of employer’s evidence, and (3) opportunity to present own side.
• Rehnquist, dissenting: this was a gov’t entitlement, not a property right (so no DP applies)
North American Cold Storage Co. v. Chicago (1908)
constitutional
Seizing spoiled meat from warehouse. Unanimously holds no pre-deprivation process required
Federal Deposit Ins. Corp. v. Mallen (U.S. 1988)
constitutional
FDIC authorized to suspend summarily officer of insured bank who has been indicted for felony involving dishonestly or breach of trust; hearing need not be given until 30 days after suspension, may not be concluded 60
• No violation of due process; “important govt. interest + assurance deprivation is not baseless = justifies postponing oppt. to be heard
• Faith in bankers impt. to entire economy (could cause run on banks)
Gilbert v. Homar (1997)
constitutional
Suspension without pay of university police officer who was arrested and charged with felony.
• Cuts back on Loudermill. Court distinguished (severity, effect on employee à merely a suspension, didn’t have to be without pay); and he was charged, so employer wasn’t deciding whether there was sufficient evidence
Wong Yang Sun v. McGrath (1950)
(deportation to China)
(violates APA)
(pre-APA abuses; relationship to DPC)
Deportation of Chinese national conducted before immigrant inspector who was also involved in investigation leading to prosecution (combining prosecutory and adjudicative functions in same case). Question of whether APA applied. Court held APA applied and hearing requirements must be met
• Even though organic statute doesn’t say formal adjudication required, would be unconstitutional without formal adjudication, so applies constitutional avoidance (“otherwise compelled by law,” compelled by DPC)
• Purpose of APA: (1) greater uniformity of procedure & practice among diverse agencies; (2) to “curtail and change practice of embodying in one person the duties of prosecutor and judge.”
o Here, didn’t meet purposes of the APA because combined roles
NLRB v. Wyman-Gordon Co. (1969)
(employer duties to unions)
(meets APA)
(structure of APA)
NLRB tried to compel an employer to provide union organizers with roster; order was unreasoned, recited earlier decision in another case (Excelsior Underwear; announced the rule but didn’t apply it to Excelsior, said it was prospective). W-G claimed that NLRB was applying a rule that it had not adopted through rulemaking. Court held Excelsior had made a rule, not an adjudication, but still affirmed the application to W-G
• Definition of a rule: “agency statement of general applicability and future effect describing agency law.”
o Distinction is not the announcement of law, but whether applied immediately (adjudication) or prospectively only (rule)
• Board could decide to use rulemaking or adjudication to announce agency position.
o Chose not to remand because agency would just do the same thing; futile exercise
• Harlan, Douglas, dissenting: NLRB violated APA twice (promulgating rule without complying with APA; then summarily applying to W-G). 6 votes say invalid rule, but 7 votes say valid order.
o Invalid to apply to WG (Chenery I à evaluate NLRB’s action on basis it gave, which was invalidly following Excelsior)
Vermont Yankee Nuclear Power Corp. v. NRDC, Inc. (1978)
(nuclear plant rulemaking)
(meets APA)
(relationship to DPC/organic law)
Nuclear rulemaking re: environmental effect. Agency approved procedures it used at hearing (no discovery/cross, but docs available, all participants had opportunity to present position with counsel, written & oral statements received/incorporated to record, public transcript, 30 days to supplement). NRDC objected to outcome and procedure. Court held courts cannot add additional procedures not required by APA/organic law
• On the DC Cir., Judge Skelly Wright was requiring more procedure than the APA in rulemaking proceedings (cross-exam, discovery).
• “Absent constitutional constraints or extremely compelling circumstances, the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.”
o Reasons: (1) don’t want to force agencies into formal process; (2) have to rely on what was before agency at time of decision, no Monday morning quarterbacking; (3) adequate judicial review
o “Constitutional constraints/extremely compelling circumstances” à Londoner
US v. Florida East Coast Ry. (1973)
(railroad per diem rates)
(meets APA)
(“hearing” in statute doesn’t mean formal rulemaking)
2 RR companies sought to set aside per diem rates from ICC rulemaking (intended to get more freight-car workers). RRs objected at informal conference with agency, under impression formal hearings would follow. But ICC published tentative decision, allowed 60 days for written statements, and gave final rule without hearing (paper record only). Court held that “hearing” language of organic statute doesn’t require APA hearing/formal process (“hearing” is not a term of art).
• Statute written before APA, congress itself prescribed procedure, didn’t include oral exam/cross-ex/oral arg.
• Even within 553(c), agency can proceed on paper record if no party is “prejudiced thereby.” (Need (1) specific statutory mandate of formality and (2) prejudice to party). Cites Bi-Metallic, applies broadly
Seacoast Anti-Pollution League v. Costle (1st Cir. 1978)
(discharging heated water into estuary)
(violates APA)
(need not say “on the record” à public hearing is trigger for formality)
EPA allowed PSCO to discharge heated water (permit + exemption). In non-adjudicatory hearing before ALJ, recommended permit; regional administrator reversed; newly-appointed administrator appointed 6 in-house advisors for technical review panel. Panel granted permit. Administrator said hearing if both parties asked; P asked, but administrator denied hearing and announced final decision granting permit. Question of whether formal process was required. 1st Cir. held formal adjudication was required
• Don’t need the precise words “on the record”; SCOTUS rejected in Florida East Coast. Instead, “turns on the substantive nature of the hearing Congress intended to provide.”
o Administrator must make specific factual findings à adjudication
o Plaintiff was there to protect the public (constitutional avoidance à wouldn’t have intended without public hearing)
• Purpose of informal hearing = excluding gov’t functions that would not have been regarded as adjudicative, but just business programs (ex. loan programs)
Seacoast Anti-Pollution League v. Costle (1st Cir. 1978)
(discharging heated water into estuary)
(violates APA)
(because formal adjudication, improper to include info not properly in record)
(As above, held that formal process was required)
• Distinctions from rulemaking hearings: rulemaking carries presumption of informality (witnesses are not only source of evidence; bringing new info, but agency’s decision doesn’t have to rest on input). So less importance on absence of “on the record” in adjudicatory.
• Supplement submitted by single party: Administrator couldn’t rely on because not part of official record, and this was a formal proceeding. Also error not to hold hearing receiving responses to request for information, so supplement was not properly part of record.
• Participation of technical review panel board: their participation was proper, especially where highly technical, but cannot add things to Report that aren’t in record
• Remand because Report contained info not properly in record (supplement and review panel report)
Citizens Awareness Network Inc. v. United States (1st Cir. 2004)
(“formal” refers to hearings that need to be conducted pursuant to 5 USC 555-557)
[concurrence]
For an on-the record adjudication required by 554, the procedures can be reduced to 10 points
o Agency must give notice of legal authority and matter of fact and law asserted (554b)
o The oral evidentiary hearing must be presided over by an officer who can be disqualified for bias (556b)
o Presiding officers cannot have ex parte communications (554d, 557d(1))
o Parties are entitled to be represented by attorneys (555b)
o The proponent of an order has the burden of proof (556d)
o A party is entitled to present oral or documentary evidence (556d)
o A party is entitled “to conduct such cross-examination as may be required for a full and true disclosure of the facts” (556d)
o Orders can be issued only on consideration of the record of the hearing (556d)
o The transcript of testimony and exhibits is the exclusive record for decision and shall be made available to parties (556e)
o The decision must include “findings and conclusions, and the reasons for basis therefor, on all the material issues of fact, law, or discretion presented on the record” (557(c )(3)(A))
Withrow v. Larkin (1975)
(pulling medical license granted thru reciprocity)
(meets APA)
(commingling of roles under DPC)
State licensing board investigating and decertifying medical license granted through reciprocity because Wisconsin practice was performing abortions. Sought to enjoin proceedings after investigation determined “conduct unbecoming,” etc. Question of whether combination of investigative/adjudicatory functions in board violated separation. Court held different degrees of separation, and this degree was permissible
• No single answer to commingling because so much variety in agencies
• Cases do not stand for proposition that DPC bars all who participate in investigation from adjudication (opposite of Wong Yang Sun)
