Administrative Law

1. Administrative Law Chapter 2 - Part III

2. Alternative to Goldberg Hearing

3. HUD v. Rucker, 535 U.S. 125 (2002) • 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

4. Paddling school kids What is the alleged harm? What are the alleged constitutional law violations? Why isn't paddling cruel and unusual? Ingraham v. Wright

5. Administrative Costs • What do the plaintiffs really want? • How will requiring a hearing before paddling advance their ultimate goal?

6. Goss Style Give and Take • Goss was the suspension case • Got informal give and take before suspension • No confronting witnesses • No counsel • How is Goss distinguishable from Ingram?

7. How is the Mathews analysis used in Ingraham? • 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?

8. What are Alternative Remedies? • 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?

9. Tort Remedies as Due Process • 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?

10. When is a Hearing Right Meaningless?

11. Parratt v. Taylor • 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?

12. Hudson v. Palmer • 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?

13. Daniels v. Williams • 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

14. Zinermon v. Burch • 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?"

15. Lujan v. G & G, 121 S.Ct. 1446 (2001) • 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?

16. Right to Counsel in Administrative Hearings • 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?

17. Walters v. National Ass'n of Radiation Survivors • 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

18. Why does the VA not like Attorneys? • Just gum up the machine • Do not increase accuracy • Who does represent veterans? • Lay persons from support organizations • Any evidence attorneys would do better?

19. Representing Veterans before the VA • 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.

20. Academic decisionmaking • Why is there a greater due process right for non-academic 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?

21. Van Harken v. City of Chicago • 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.

22. What is the Mathews Analysis? • 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?

23. What if there are no disputed facts? • 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?

24. Review of Adjudications • 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

25. Is it an Adjudication at All? • 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?

26. Rule Making v. Adjudication • 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

27. Londoner v. Denver • 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?

28. Bi-Metallic Investment Co. v. State Board of Equalization • 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?

29. Rules that Only Apply to One Entity • 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?