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480, Henkels, Section III: "Adjudication"

Adjudication and Rulemaking: orders differ from rules

Adjudication may set a precedent in variable contexts, but should not be purposeful pattern of policy-making: Wyman-Gordon (1969)

SEC and NLRB have to confront new situations that challenge purpose of law:

Chenery II – insider trading case showed court deference to agency being flexible in policy implementation

SECTION III - ADMINISTRATIVE ADJUDICATION

Social Security Disability Appeals

480, Henkels, Section III: "Adjudication"

Social Security Supplemental Income Appeals

The Social Security Administration manages millions of appeals each year.

From John Mann, Oregon’s Chief Administrative Law Judge:

“With 65 professional administrative law judges, we hold over 30,000 hearings a year for approximately 70 state agencies.

By statute, all administrative law judges are required to be ‘impartial in the performance of [their] duties and shall remain fair in all hearings.’”

480, Henkels, Section III: "Adjudication"

When is a hearing required?

Constitutional context

when required by statute or rule

- when required in contract

SECTION III - ADMINISTRATIVE ADJUDICATION

480, Henkels, Section III: "Adjudication"

SECTION III - ADMINISTRATIVE ADJUDICATION

Due Process claim: right to a fair hearing before suffering injury

Constitutional foundation built on:

5th Amendment: right to due process before being denied life, liberty, or property

14th Amendment: all citizens get “due process” and “equal protection of the law” from states (and therefore local gov’ts)

480, Henkels, Section III: "Adjudication"

SECTION III - ADMINISTRATIVE ADJUDICATION

Due Process claim: right to a fair hearing before suffering injury

Statutory Bases:

APA embodies common law concepts of due process in administration

Specific statutes may create right to hearing

Agencies may adopt procedural requirements that enhance due process requirements

480, Henkels, Section III: "Adjudication"

SECTION III - ADMINISTRATIVE ADJUDICATION

Rights verse privilege doctrine: when government benefits are viewed as “privileges” the government can place conditions on them and beneficiaries have no due process claim

If they are viewed as “rights”, then there are due process protections.

Changes since World War II have generally pushed courts to view more benefits as rights:

- more government-citizen interaction

Cold War/ Civil Rights revolution

Will analyze public employment context later

480, Henkels, Section III: "Adjudication"

Substantive due process: some rights cannot be taken regardless of procedures: speech, freedom of religion, right to travel

Can women be banned from working late?

- Marriage equality: Obergefell (2015)

Procedural due process: appropriate steps before harm may occur – these are more focus here

SECTION III - ADMINISTRATIVE ADJUDICATION

480, Henkels, Section III: "Adjudication"

Adjudication

Constitutional due process:

is there a state (meaning “governmental”) action?

is there the loss of constitutionally protected interests?

- life

- property

- liberty

- If there is a loss, how much process is due?

480, Henkels, Section III: "Adjudication"

Section 3: Adjudication

Variable Court views of rights:

Board of Regents v. Roth (1972): non-tenured Wisconsin adjunct had no property interest: needs “legitimate claim of entitlement”, not just “unilateral expectation”

Perry v. Sindermann (1972): a ten-year professor at a school without a formal tenure system but administrative statement that faculty should feel they have “permanent tenure” creates expectations from both sides – fostering possible property right

Both had potential liberty interests in free speech not considered by the court. Public speech covered later in class

480, Henkels, Section III: "Adjudication"

Section 3: Adjudication

Statutory property interests receive constitutional protections

Highwater mark:

Goldberg v. Kelly (1970): pre-termination oral hearing required before welfare benefits revoked

Generally courts have not held other programs to such strict standards: allow more balancing and denial of benefits before formal evidentiary hearing

480, Henkels, Section III: "Adjudication"

Section 3: Adjudication

Statutory property interests receive constitutional protections: cost-benefit analysis perspective developed by the courts regarding when those hearings must take place.

Mathews v. Eldridge (1976):

Due process Balancing Test:

1) private interest

2) risk of erroneous deprivation

3) public/governmental interest

480, Henkels, Section III: "Adjudication"

Mathews v. Eldridge (1976)

Admin Process Courts

1A. Paper hearing

2A. Denial, Benefits stopped

3A. Formal Hearing 1A. Due process hearing

4A. Approved , Benefits re-started 2A. Moot

1B. New Paper hearing

2B. Denial 1B. Due process hearing

3B. Formal hearing 2B. Wins restoration

4B. Approved, Benefits restarted 3B. Supreme Court review

Balancing test applied to Gilbert v. Homar (1997): should Homar have been suspended without pay before evidentiary hearing after being in a drug bust?

1) Private interest of continuing pay: suspension is not as serious as firing;

2) State interest: Felony charges affects public trust

– government need not to bear cost of continuing pay while also having to hire replacement

3) Risks of erroneous deprivation: were there reasonable grounds to think charges are true: yes – indictment by independent body

480, Henkels, Section III: "Adjudication"

Balancing of due process rights in school discipline

Goss v. Lopez(1975) opened new possibilities for contesting adequacy of due process

- 10 day suspension from school requires notice and brief hearing

Sometimes viewed as enabling lesser hearing for lesser punishment

480, Henkels, Section III: "Adjudication"

Administrative Adjudication

Liberty interests are less consistently recognized

Wisconsin v. Constantineau (1971): broad concept of liberty rights included reputation

Paul v. Davis (1976): narrowed Constantineau, - - Davis’s reputation not liberty or property interest here: “stigma-plus test”. But consequence must be immediate to decision, not later damage to reputation

Bishop v. Wood (1976): reputation not important if no specifics provided on firing. Context of at-will employment also affirms that property interest can depend on state law

480, Henkels, Section III: "Adjudication"

Irrebuttable Presumptions: contexts where facts create policy outcomes without hearing. Now generally viewed an unconstitutional.

- Stanley v. Illinois (1972)

But not if the legislature rationally chose such a line for a legitimate public purpose:

Weinberger v. Salfi (1975) – you can automatically be denied SS survivor benefits if married to SS recipient for less than 9 months when they die.

SECTION III - ADMINISTRATIVE ADJUDICATION

480, Henkels, Section III: "Adjudication"

Administrative Adjudication

Other restrictions to due process:

Due process applies only to deliberate actions, not to accidents or mere negligence

Only parties directly affected by decisions have due process: nursing home residents have no due process for actions taken against owners, may be allowed to participate in hearing

Generally does not apply to rulemaking: Bimetallic Investment (1915)

480, Henkels, Section III: "Adjudication"

Licensing is generally an adjudicative process: but FCC can use rulemaking to regulate distribution of licenses according to its interest in preventing “concentration of control” : Storer (1956) Doctrine

Examples of licensing: wetland infill, grazing permits, aviation licenses

Adjudication is process for various non-rulemaking decisions

SECTION III - ADMINISTRATIVE ADJUDICATION

Forest Service and BLM Examples of Adjudication in Disputes over Implementation

480, Henkels, Section III: "Adjudication"

Steps in the administrative hearing process: State Child Support

Process generally takes about 90 - 180 days.

1. A parent talks to their case manager about requesting a hearing.

2. The child support case manager sends the parent’s hearing request to Office of Administrative Hearings.

3. The Office of Administrative Hearings will contact the parents to schedule a hearing.

4. A hearing will occur with an Administrative Law Judge.

5. A final decision is made.

6. The Oregon Child Support Program will begin to enforce the order.

7. A parent may file an appeal in Oregon Circuit Court.

480, Henkels, Section III: "Adjudication"

Adjudication

Local and state governments operate under due process restrictions when they make decisions regarding specific individual parties

480, Henkels, Section III: "Adjudication"

Judicial Process: General Rights and Context

- notice of charge

- right to attorney

- rights and protections regarding evidence and testimony

- unbiased judge and jury

- at least one appeal

Administrative Proceedings

- notification

- less formal proceedings, looser admissibility

- lack jury

- appeal possible, but administrative path before judicial review

SECTION III - ADMINISTRATIVE ADJUDICATION

480, Henkels, Section III: "Adjudication"

Types of Hearings: Courts are reluctant to impose formal trial-type hearing requirements

1) Alternate dispute resolution: pre-hearing conferences

- consent decrees (Covered in Section 5 informal action)

2) Paper hearings: early parts of Eldridge case, grant applications

3) Simple oral hearing: Goss v. Lopez (1975)

Formal Hearings: Trial type hearing – Goldberg

- may be de novo consideration of less formal processes

- license removal

SECTION III - ADMINISTRATIVE ADJUDICATION

480, Henkels, Section III: "Adjudication"

Formal Hearings

“On the record hearings”, “evidentiary hearings”, “full hearings”, “trial type hearings”: APA Sec 554,556, 557 apply

Formal hearing generally required when stated in program’s organic or enabling act, but different federal circuits use varying standard

Not basically required in APA, like “notice and comment” is default in rulemaking

Agencies have much discretion in informal adjudication: useful to consider “Chevron Doctrine” for rulemaking as guide to adjudication requirements: if not explicitly required then it is discretionary

McPherson v. Lord (1987):

irreversible actions that have no appeal

Administrative Appeals in the Bureau of Land Management and the Forest Service

Congressional Research Service 18

Figure 13. Administrative Appeals Under Part 251 of District Ranger Decisions

Source: Congressional Research Service.

If the decision was made by the Forest Supervisor or the Regional Forester, only one level of

review is available under Part 251, to their immediate supervisor. 103

Figure 14. Administrative Appeals Under Part 251 of Forest Supervisor or Regional Forester Decisions

Source: Congressional Research Service.

Part 251 provides for oral presentation of the issues, if requested by the appellant. The regulations

provide that an oral presentation will automatically be provided if requested as part of the notice

of appeal. 104

The presentations may be open to the public. Mediation sessions of grazing permits,

however, are confidential, although the final decision resulting from the mediation is a public

document. 105

103

36 C.F.R. §251.87(b).

104 36 C.F.R. §251.97(b).

105 36 C.F.R. §251.103(d).

Administrative Appeals in the Bureau of Land Management and the Forest Service Congressional Research Service 18

Figure 13. Administrative Appeals Under Part 251 of District Ranger Decisions

Source: Congressional Research Service.

If the decision was made by the Forest Supervisor or the Regional Forester, only one level of

review is available under Part 251, to their immediate supervisor.

103

Figure 14. Administrative Appeals Under Part 251 of Forest Supervisor or

Regional Forester Decisions

Source: Congressional Research Service.

Part 251 provides for oral presentation of the issues, if requested by the appellant. The regulations

provide that an oral presentation will automatically be provided if requested as part of the notice

of appeal.

104

The presentations may be open to the public. Mediation sessions of grazing permits,

however, are confidential, although the final decision resulting from the mediation is a public

document.

105

103

36 C.F.R. §251.87(b).

104

36 C.F.R. §251.97(b).

105

36 C.F.R. §251.103(d).

Administrative Appeals in the Bureau of Land Management and the Forest Service

Congressional Research Service 5

Figure 1. Administrative Appeals of BLM Land Use Plans

Source: Bureau of Land Management.

As mentioned above, the protest process for land use plan decisions is different from the

administrative appeal for implementing decisions, such as timber sales, oil and gas lease sales,

and grazing decisions. It is not uncommon for BLM to combine the two decisions in one effort—

this would have the benefit of using one combined NEPA review. When it does so, however,

BLM is required to identify which decisions are land use plan decisions, and thus subject to

protests under the planning regulations, and which are implementation decisions that have

separate appeals regulations. 27

In the alternative, two decision documents can be used.

Appeals of Implementing Decisions

In broad strokes, the BLM appeals process for implementing decisions consists of two steps: a

challenge to an agency action, which is reviewed by an agency official; and then an appeal, which

is reviewed by the Interior Board of Land Appeals, or the Director of the BLM. Upon the decision

by the Board or the Director, the challenger may take the issue to federal court.

Administrative remedies for implementing decisions provide for an internal agency review before

the challenge can advance. The first step in the process is filing a protest or a request for review, which is reviewed by the deciding official of BLM, in many cases the State Director. This gives

the agency the chance to review the issues before the matter is brought before the Board. If the

challenging party is not satisfied with the result of the deciding officer’s decision, an appeal can

be brought to the IBLA.

Challenges before the Board are trial-type proceedings, with the presentation of evidence and

witnesses. Some challenges are brought before an administrative law judge (ALJ) who is isolated

from the decision-making area of the agency. 28

An ALJ functions as an independent, impartial

trier of fact, similar to a judge. 29

Review of a Board or ALJ decision is by a federal court.

There are exceptions to this general process, which shall be discussed during the review of the

individual categories.

Handbook, p. 30.

28 One requirement of FLPMA is that the administration of public lands include an “objective administrative review of

initial decisions.” 43 U.S.C. §1701(a)(5).

29 For more on ALJs, see CRS Report RL34607, Administrative Law Judges: An Overview, by Daniel T. Shedd.