Rights to Employment Due Process: What You Need to Know

1. Chapter 4 - Adjudications Employment and Liberty

2. Employment Hearings • Only government employees have constitutional rights to a hearing and due process • States and congress can create rights to employment due process for private employees • State rights are defined by the state law, not the US constitution, and can be broader than the US rights • States cannot provide less than the US Constitutional minimum due process

3. Key Question: What is the purpose of the hearing? • Getting a hearing does not mean you keep the job • Getting a hearing means that the agency has to show on the record why it fired or disciplined you. • If the agency has built the record, you are likely going to get fired or disciplined. • However, many agencies, especially state and local government agencies, do not do a great job at building records, so the agency will not be able to show in the record their justification for the action. • This may get your client a second chance.

4. Perry v. Sinderman, 408 U.S. 593 (1972) • Facts • Taught for 10 years • University policy was to not fire without cause after 7 years • Fired without cause • What process did he want? • Why was the university policy on continued employment critical?

5. Boards of Regents v Roth, 408 U.S. 564 (1972) • What were the terms of the contract? • Why did he claim he was fired? • Is this before the court? • What process did he want? • Did the university claim he had done anything wrong? • Could this have changed the result? • Did he get the hearing?

6. Ivor van Heerden case • Ivor van Heerden case • Round II – LSU Settles on stigma + claims

7. New Property v. Old Property • How do these cases create the "new property" • How are the rights different for new property versus old property? • How is the process different if I take your medical license, versus taking your land? • What if I abolish your job or your welfare entitlement through legislation? • Through a regulation - a rule, not an adjudication. • How strong is the notion of new property?

8. Liberty Interests • What is a liberty interest? • What are examples? • How is a liberty interest different from a property interest? • In prison cases, at least, courts tend to talk about liberty interests when the plaintiff is about to lose • If it is not going to be protected, the court calls it a liberty interest.

9. Must There Be Facts at Issue to Get a Hearing? • What does Codd v. Velger, 429 U.S. 624 (1977) (suicidal policeman) tell us? • Why does it matter whether there are facts in dispute? • Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542- 544 (1985) • “Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.”

10. Melissa I • Melissa is charged with plagiarism, which can result in expulsion from the (state) law school • What is the purpose of granting her a hearing? • What issues should she raise? • What should the school present to support its case as the moving party? • What is the value of the record of the hearing? • Should she get a hearing? • What about cancelling her scholarship without a hearing?

11. Melissa II • Melissa admits she plagiarized, but claims extenuating circumstances. • Thinking about the reasons for a hearing from Melissa I, how are these factors changed by her admission? • How has the burden of proof shifted? • Is there any factual dispute to resolve? • What if the law school has discretion in the type of punishment for plagiarism?

12. Wisconsin v. Constantineau, 400 U.S. 433 (1971) • A state law required the posting of the names of “public drunkards” at places where alcoholic beverages are sold • Did Paul concede that he was a public drunkard? • Does this put facts in issue? • What were the provisions for challenging being on the list? • What did the United States Supreme Court hold?

13. Paul v. Davis, 424 U.S. 693 (1976) • Note that this is the same term as Matthews – think about whether they are related when we read Matthews. • The sheriff gave out a list of "active shoplifters," including persons who had been arrested but not convicted • How did the court distinguish Constantineau? • What did he claim as an injury in this case? • Was there stigma +? • How might the Internet change the analysis? • What did Rehnquist say was his remedy if the characterization was incorrect? • What are the limits of such a remedy? • Is this realistic for the plaintiff?

14. Perverts R Us WWW sites: Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003) • State is going to list all persons convicted of a list of sexually related crimes on a public registry • What does plaintiff want a hearing on before he is listed? • Why is this a relevant factual inquiry? • What did the court find? • Why isn't this an additional punishment? (Hint - Kansas v. Hendricks – an adlaw decision) • If you were writing the opinion, where would you argue that plaintiff got his due process? • (Also see: Smith v. Doe, 123 S.Ct. 1140 (2003))

15. Public Registries for Sex Offenders • Why are these popular? • What is the policy justification? • How does this affect the offender's ability to get a job or have a place to live? • How narrow are the grounds for being on the list? • How does this contribute to the guy in CA who was on the list but was able to keep a kidnap victim hostage for nearly two decades?

16. Codd v. Velger, 429 U.S. 624 (1977) • Plaintiff claimed that putting the information about suicide in his personnel file damaged his reputation and made it impossible for him to find other employment as a policeman. • Why didn't the court say that the plaintiff could just request that the file not be forwarded to a new employer? • The circuit court created a right to a hearing or the right to have the information excluded. • This is dicta, since the case was decided on other grounds by the United States Supreme Court: • “Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false.” at 627 • How does this modify the lower court’s opinion?

17. Stopped Here

18. Siegert v. Gilley, 500 U.S. 226 (1991) • Was he fired from the original job? • Unethical and incompetent • Why was he fired from the new job? • Bad recommendations from the previous job. • Key to understanding this case • Who is he suing? • Did this person fire him from the second job? • Is the firing the injury or the damages? • What is the injury? • Is that enough, on its own, for a due process claim? • When does stigma plus have to attach, according to this case? • What is his proper remedy?

19. Melissa III • Melissa was charged with plagiarism but was not provided any due process protections. • Fearful of a lawsuit, the law school did not expel her, but upon her graduation it sent a letter to the State Board of Bar Examiners informing the Board that Melissa had “engaged in plagiarism in Legal Writing during her first year.” • Have her due process rights been violated under Siegert? • Is this like a recommendation letter? • Is this fair? • What is her remedy?

20. Melissa IV • Melissa is charged with plagiarism, expelled from law school without a hearing, and the plagiarism is entered on her transcript. • She sues, saying this injury to reputation rises to the level of violation of her liberty interests. • The law school say that the transcript is confidential and no one will see it unless she releases it.

21. Homeland Security and the CIA • One of the big fights over the Homeland Security Bill was its limitation of employee hearing rights • National security agency personnel are subject to firing without stated cause and get no hearing. • The Homeland Security Act extends the definition of a national security job to many more employees, who thus lose civil service protection • Why do this? • Is this a good idea?

22. Prisons • Are prisons part of the criminal law system or the administrative law system? • Why have prison populations doubled and tripled relative to the population over the past 30 years? • Learning to think like an economist: • Who benefits from tough laws, esp. drug laws? • Who benefits from prisons? • What is the tradeoff for the increased prison budgets?

23. The LA Prison Blues • Why might the murder rates be higher than the general crime rate? • How does the dysfunctional public defender system contribute to the incarnation rate? • The release problem • Many are old and no threat to the public, but they cannot be released • Costs finally pushed the legislature to make some changes. • What are the long term implications of mass incarceration when people cannot get good jobs when they do get out?

24. State Prison Litigation:42 USC 1983 • Based on deprivations of civil rights. • Due process claims, such as Sandin • "Cruel and unusual punishment claims" which generally deal with conditions of confinement or medical care. • Prison Litigation Reform Act of 1995 requires exhaustion of remedies in prison litigation, even if the administrative system cannot provide the requested remedy, if the system can provide some remedy • Cases against Federal prisons are brought under Bivens or the FTCA.

25. Prisoners as Litigants • Successful litigation is mostly by NGOs - ACLU, prison rights organizations, AIDS organizations • Individual prisoners • Do prisoners have a lot to do with their time? • Do most prisoners have sophisticated legal talents? • Do prisoners like to give the prison grief? • What is most prisoner litigation going to look like?

26. Due Process Claims • Due process claims require the plaintiff to show that he had a liberty interest in the proceeding. • Even if the court finds a liberty interest, that just lets the prisoner get a hearing or get into court. • Courts generally defer to the prison on matters of discipline and security

27. Good Time Credits and Parole to Reduce Time Served • Are these constitutionally required? • Why have them? • The Sentencing Reform Act of 1984 eliminated parole and reduced good time credits in the federal system • Combined with the expansion of federal crimes, this has lead to an explosion of federal prisoners • States passed three strikes laws to fill up their prisons.

28. Cases that Affect Time Served • Why would procedures that affect release dates get the most legal protection? • Return to prison for a parole violation (Gagnon) • Should the prisoner get a hearing? • Why - what might be contested? • Decisions reducing good time credits or affecting parole (Morrissey/Wolff) • How do these look like Goldberg benefits?

29. Sandin v Conner, 515 U.S. 472 (1995) • Prisoner got 30 days in solitary as punishment. • Is this cruel and unusual? (remember, it has to be both) • Is he entitled to a hearing? • Only when discipline "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life" is due process implicated. • The Court rejected a claim that punishment of solitary confinement for 30 days was enough to trigger due process requirements. • What do many countries think of solitary confinement?

30. Wilkinson v. Austin, 125 S.Ct. 2384 (2005) • The Court concluded that indefinite placement in a "supermax" prison together with a disqualification from parole was enough to trigger due process requirements. • What does it mean to be in a supermax prison? • Why do we put inmates in them? • Wonder if the supermax mattered at all? • Does a hearing before the prison officials really mean much?

31. What rights does a prisoner retain? • Some freedom to exercise religion • Some limited right to communicate with the outside • A little bit of free speech • Some bodily integrity, at least in the area of medical care • Freedom from beatings and the like through FTCA/Bivens, 42 USC 1983, and state laws.

32. Trade-offs in Prison Regulations • Assume you have been hired to develop a new set of prison regulations for Angola. • What are the tradeoffs you must deal with? • What happens if prisoners have lots of rights? • What if prisoners have no rights? • Do more detailed regulations increase or reduce prison discretion? • Increase or reduce conflicts over rules? • Corruption of prison officials?

33. Mathews v Eldridge (1976) If you are Entitled to a Hearing:How Much Process is Due?

34. Social Security DisabilityBasic Procedure • Get a form the Social Security office • What is the illness, the work history, the doc? • SSI orders records • A doc at SSI at Disability Determination Service - run by state as contractor - makes a determination • Sends to regional office • Regional office approves the claim, ask for more info, or denies the claim. • Claimant can ask for reconsideration • This is all done with records

35. Social Security DisabilityBasic Procedure - Appeals • Most problems arise because of poor documentation • The agency has limited authority to reject the treating physician's evaluation. • After denial, you can ask for a hearing before an ALJ • 80% or more of all the federal ALJs • The agency treats the ALJ's decision as final • At this point you can appeal to the agency internal appeals process, then to the federal courts • Positive decisions are retroactive - critical due process issue • Generates the money to pay the attorney as well

36. Volume of Claims • Are there a lot of Social Security Disability claims every year? • Why is this important background for Matthews v. Eldridge? • Think about what this process looks like from the perspective of a disabled person tying to get benefits, or trying to avoid having benefits cancelled. • Will they usually have benefit of counsel?

37. Background of the Case • Was plaintiff already on SSI? • Bad back and diabetes • Did he develop a complicating condition? • The 1972 questionnaire • Did Eldridge complete the questionnaire? • What did he indicate about his condition? • Did the agency still think he was disabled at this point?

38. The Termination Process • What did the agency decide about his condition as outlined in the tentative determination letter? • Was Eldridge given a chance to respond before his benefits were terminated? • Did he dispute their analysis of his condition? • Did he provide any new evidence to support his position? • What was the agency's response?

39. The Agency Process • Did the SSA accept his rebuttal of their determination? • Did he get an in-person hearing? • Were his benefits terminated? • What was his recourse? • What does plaintiff claimGoldberg gives him a right to before his benefits are terminated?

40. How are SSI Determinations Different from Welfare Determinations • What sort of information was at issue in Goldberg? • What data is used for making disability determinations? • Who would be the witnesses and how is their information collected? • Is this different from the witnesses in Goldberg? • How is the value of the claimant's testimony different from that in Goldberg? • How does this change the equities of Goldberg? • Why is the administrative decisionmaker less prone to make errors in this case than in Goldberg?

41. The Accuracy of the Proceedings • Do the parties and the amici agree on the reversal rate of the initial determination by the post-termination hearing? [58] • Is this an open or closed file review, i.e., does the claimant have one shot and if he is unsuccessful he has to start over with a new claim? • How does this make it more difficult to determine if a reversal is due to initial error by the agency?

42. The Mathews Factors • First, the cost of an erroneous deprivation of the private interest at issue - (V) • Second, the probability of reducing the chance of error through more extensive or different procedures - (P) • Explicitly recognizes that there will be uncorrected errors. • Third, the government's interest in its procedures, i.e., the incremental cost of the additional or different procedures that might reduce errors - (C) • Look familiar? Hand Formula on the next slide.

43. The Hand Formula • B = PL • (P) the probability that an accident will occur • (L) the magnitude of the resulting harm, if any accident occurs • (B) the cost of precautions that would reduce the expected harm • United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)

44. The Mathews Factors as a Cost Benefit Analysis • What is the relationship between C and (P x V) • (C)ost of added process • (P)robability of increased accuracy • (V)alue of the benefit/cost of error. • C < P x V • What is the key to convincing the court that your client should get more process? • How does this transform the notion of fairness? • Is due process a good on its own in this analysis?

45. Apply these Factors to the Case • How would you apply these factors to the Matthews case? • Does plaintiff get his pre-termination hearing? • What about detaining a tuberculosis carrier? • A terrorist who might have information about a pending attack?

46. Matthews as a the End of the Warren Court • How is Matthews different from the ideal of due process in Goldberg? • How does it differ from the notion that every person for every crimes gets the same criminal due process rights, including counsel? • Would we do better in criminal law if we were forced to recognize costs and benefits? • Could the LA public defender system meet the Matthews test?

47. How Far Does Matthews Go?Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004) • The ordinary mechanism that we use for balancing such serious competing interests, and for determining the procedures that are necessary to ensure that a citizen is not "deprived of life, liberty, or property, without due process of law," U. S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge. Mathews dictates that the process due in any given instance is determined by weighing "the private interest that will be affected by the official action" against the Government's asserted interest, "including the function involved" and the burdens the Government would face in providing greater process. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of "the risk of an erroneous deprivation" of the private interest if the process were reduced and the "probable value, if any, of additional or substitute safeguards. http://biotech.law.lsu.edu/cases/nat-sec/hamdi.htm (at 65)

48. De Minimis Test • Some deprivations are too insignificant to trigger a right to a hearing • Putting a cop on paid sick leave did not trigger due process • Otherwise the courts will be in every employment action • This is a key issue in 42 USC 1983 actions - how hard/often can the prison guard hit the prisoner?

49. Alternative Remedies • Due process is not the only remedy for many actions • Contracts with the government are not property but are agreements governed by contract law. • The Court of Claims system deals with these. • Unger v. National Residents Matching Program • Failing to admit resident after signing the match contract did not trigger a hearing, but would support a breach of contract action. • Does you client really need a hearing, or do you have a contract action? • Which is better?