Administrative Law

Question 1

Administrative Procedure Act, 5 U.S.C. § 551. Definitions

Agency . . .

Answer 1

. . . means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include–
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia;
or except as to the requirements of section 552 of this title–
(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war or in occupied territory

Question 2

Citizens for Responsibility and Ethics in Washington v. Office of Administration

Answer 2

WH lost emails; OA said not required to disclose b/c acted as office of President = outside the APA’s term of “agency.” Ct says can’t call President’s office agency b/c would not have productive discussions. Rule – agency when entity has substantial independent authority: (1) adjudicate; (2) make rules; (3) initiate independent litigation: cannot be too much under the control of the President.

Question 3

Quasi . . .

Answer 3

(1) Adjudication
(2) Legislative

We fail to have “(3) bureaucratic” definition – used by rest of world and not bad term
• Attributed to JERRY MASHAW (Pierce’s Administrative Law Professor)
• Agencies resemble bureaucratic functions and processes in their norms

Question 4

Adjudication

Answer 4

Agency process for formulation of an order; Licensing is adjudication

Question 5

Rulemaking

Answer 5

Agency process for formulating a rule; agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy

Question 6

5th Amendment, Due Process Clause

Answer 6

“No person shall be deprived of life, liberty, or property without due process of law.”

Question 7

When Due Process Applies

Answer 7

Due Process applies to adjudication only if it deprives a person of “life, liberty, or property”

Question 8

Londoner v. Denver

Answer 8

ADJUDICATION - Tax assessment ^ 40% on a few people; taking $ is deprivation of property. Rule – when subordinate body (agency) subjects tax to specified/few people, due process of law requires that the taxpayer have opportunity for hearing after notice provided before tax becomes fixed, especially when small # of people are affected

Question 9

Bi-Metallic Investment Co. v. State Board of Equalization

Answer 9

RULEMAKING/LEGISLATION - Tax rate was increased for whole community, not just specific few. Rule – Individuals don’t have standing merely as members of the public or general taxpaying population to challenge gov’t tax b/c they have the political process to fall back on as a collective unit – too much cost to give everyone a voice

Question 10

Adjudication

Legislation (agency rules)

Answer 10

“life, liberty, and property” – subject to Due Process – individual remedy

not subject to Due Process – political remedy – class of people – no hearing

Question 11

Goldberg v. Kelly

Answer 11

Receiving welfare in NY; (1) investigation to eligibility, (2) if not eligible, sent notice and request for written evidence, (3) no evidence = will end benefits; allowed post-termination hearing. Rule – statutory entitlements are ‘property’ for those who meet eligibility requirements from the statute – “matter of entitlement for those qualified to receive them.” Rule 2 – beneficiaries are entitled to an oral (little ability to write) pre-deprivation hearing b/c benefits are very means by which to live in immediately desperate situation

Factors: (1) Grievous loss; (2) Individual interest balanced against gov’t interest

Question 12

Hearing requirements from Goldberg v. Kelly

Answer 12

• Notice
• Oral presentation
• Confront/cross-examine witnesses
• Retain counsel
• Impartial decision-maker
• Decision based solely on formal record
• Written findings and conclusions

Question 13

Wisconsin v. Constantineau

Answer 13

Forbid the purchase of alcohol. Rule – Where a gov’t action will impact a person’s reputation in the community, procedural Due Process is required, because reputation is a liberty interest to be protected under Due Process. Rule 2 – Freedom from official stigmatization is liberty interest to be protected.

Question 14

Board of Regents of State Colleges v. Roth

Answer 14

One-year contract; didn’t have tenure; didn’t rehire, and gave no reason for the decision. Rule – the 14th Amendment’s procedural protection of property (including tenure) is a safeguard of security interests that a person has already acquired in specific benefits and doesn’t extend to future interests they hoped to get, but didn’t. Rule – where there is no tangible harm, there is no Due Process concern

Question 15

Perry v. Sindermann

Answer 15

Teacher employed under successive one-year contracts; handbook that treated teachers as tenured. Rule – where an expectation in a property interest (tenure) is created from implied factors (handbook), a person’s interest in a benefit is a ‘property’ interest for Due Process purposes if there are rules/understandings that support his claim of entitlement = he is entitled to a hearing

Question 16

Paul v. Davis

Answer 16

Police hung mug shot of individual and said was shoplifter. Rule – right to be free from official stigmatization only if coupled with simultaneous deprivation of something tangible; reputation alone is not sufficient as seen in this case – was coupled with inability to purchase alcohol in Constantineau = tangible effect.

Question 17

Procedures Required by Due Process

Answer 17

Due Process Clause does not preclude gov’t from depriving person of life, liberty, or property, but only requires that such a deprivation be accomplished through “due process of law”