Climate Change Project

Table of Contents



Administrative Law, Winter/Spring 2003

2.4 Elements of Hearing - 64

Ingraham v. Wright - 64

What is the regulated activity?

What is the alleged harm?

What are the alleged constitutional law violations?

What do the plaintiffs really want?

What is the desired remedy?

How will that advance their ultimate goal?

What happened with the 8th amendment claim and why?

What are alternative remedies?

What would you need to show to make an alternative claim?

How is the Mathews analysis used in this case?

Why is there little chance for error?

What would Justice White have required?

Notes and Questions - 68

1 - Due process at school - 68

How is Goss distinguishable from Ingram?
Why not even a Goss hearing in Ingram?

2 - Tort Remedies as Due Process - 69

What are the limitations on a tort remedy as a substitute for due process?
Hint - how do you pay for tort law?
How would tort law work in these cases in this note?
Parratt v. Taylor
Why was a hearing meaningless in this case?
What was the remedy?
Is this a meaningful remedy?
What remedy would you set up?
Hudson v. Palmer
NB - Things like negligent prison health care are actionable as cruel and unusual punishment, not due process violations
Zinermon v. Burch - negligence as sham to avoid due process
What happened to plaintiff?
What did the court rule?
Paul v. Davis (shoplifting poster) revisited
Is the real reason behind there being no due process violation is that there was an adequate state defamation remedy?
P. 69. Substitute for N.3:

3. State contract remedies as due process. Suppose the government plans to withhold payments due under a contract with a private contractor because the government believes the contractor is in breach. Such withholding, arguably, is a deprivation of property. Must the government provide a prior hearing before doing so? Normally, a plaintiff suing for breach of contract is limited to a suit for damages; specific performance is the rare exception. If a party to a government contract is entitled to a prior hearing to determine the breach of contract issue, the effect is to provide a form of specific performance. The Supreme Court resolved the issue in the following case.

LUJAN v. G & G FIRE SPRINKLERS, INC., 121 S.Ct. 1446 (2001)

Rehnquist, C. J.:

[The California Labor Code requires contractors and subcontractors on state contracts to pay employees the wages prevailing in the private sector. This term is incorporated into all contracts with the state. If the State Division of Labor Standards Enforcement (DLSE) believes that a subcontractor has failed to pay prevailing wages, it is authorized to withhold payments equal to the difference (plus a penalty) from the general contractor; the general, in turn, withholds the same amount from its payment to the sub. No hearing is provided before such withholding occurs, but the sub is permitted to contest the matter in court. In this case, DLSE believed that G & G had violated the prevailing wage statute and ordered withholding of $135,000 from payments to the general contractor. The latter withheld $135,000 from its payments to G & G. The Ninth Circuit held that this procedure deprived G & G of a property right without a prior hearing and thus violated due process.]

In [several prior] cases, the claimant was denied a right by virtue of which he was presently entitled either to exercise ownership dominion over real or personal property, or to pursue a gainful occupation. Unlike those claimants, respondent has not been denied any present entitlement. G & G has been deprived of payment that it contends it is owed under a contract, based on the State's determination that G & G failed to comply with the contract's terms. G & G has only a claim that it did comply with those terms and therefore that it is entitled to be paid in full. Though we assume for purposes of decision here that G & G has a property interest in its claim for payment, it is an interest, unlike the interests discussed above, that can be fully protected by an ordinary breach-of-contract suit. . . .

We hold that if California makes ordinary judicial process available to respondent for resolving its contractual dispute, that process is due process. [The Court held that California does make such process available--or at least that G & G had failed to sustain its burden of proof to show that it was not available.] Respondent complains that a suit under the Labor Code is inadequate because the awarding body retains the wages and penalties "pending the outcome of the suit" which may last several years. A lawsuit of that duration, while undoubtedly something of a hardship, cannot be said to deprive respondent of its claim for payment under the contract. Lawsuits are not known for expeditiously resolving claims, and the standard practice in breach-of-contract suits is to award damages, if appropriate, only at the conclusion of the case. . .

Accordingly, the judgment of the Court of Appeals is reversed.

Why would the plaintiff in Lujan prefer a hearing before the withholding of payments?

Why does the court say that the delay is not really a legal problem?

4 - Right to Counsel in Administrative Hearings

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?
Who does represent veterans?
Do they do OK?
Why does the VA not like attorneys?
This case is still good law, making it very difficult for veterans to fight claims denials. Service organizations such as the VFW help a lot, and there are attorneys who fight the VA. See: http://www.vetadvocates.com/ if you are interested in representing veterans before the VA.

5 - Academic decisionmaking - 70

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?

6 - Confrontation - 71

Van Harken v. City of Chicago
City decriminalized its parking ticket system
Why is this critical?
They set up an administrative review by contractor lawyers
The officer did not have to appear - the ticket served as a record of the officer's testimony - no right of confrontation
Hearing officer could subpoena the police officer in unusual cases
Hearing officer could cross-examine defendant.
Why did they do this?
How big was the calculated savings per mistaken determination?
How much was at stake for the innocent ticket receiver?

7 - Paper Hearings

What is the value of live testimony? Here is what the lawyers argues in Altenheim:
The Altenheim complains that it was denied a right to a full evidentiary hearing before the measures constituting the deprivation of its property were put into effect. It is correct that there was no evidentiary hearing in the usual sense. There was instead the following. When the Department's [*584] inspector discovers a violation of the safety or health regulations with which a licensed nursing home is required to comply, the inspector on her way out of the facility informs the manager in writing of what she has found and the facility has ten days within which to file written comments with the Department, which then issues a written order. Ill.Rev.Stat. ch. 111 1/2, para. 4153-212(c). Afterward the nursing home is entitled to a full evidentiary hearing, paras. 4153-301, -303, and -703 to -712, and the Altenheim is pursuing that route. But before, all it is entitled to is a paper hearing. [**5] Somerset holds that such a hearing is good enough, but without explicit discussion of the possibility that there might in a particular case be sharply contested issues of fact turning on questions of credibility that could not rationally be answered without live testimony. Perhaps this is such a case, but the Altenheim has made no effort to show that it is, instead arguing that regardless of the circumstances a nursing home is entitled to a full evidentiary hearing, with live witnesses and cross-examination and all the rest of the procedural hoopla treasured by Anglo-American lawyers, before its license is made conditional or a notice of repeat violation is issued.
Remember SSI proceedings from Mathews?
If an oral presentation will not help resolve the dispute, is there a reason to have one?
What did Justice White say in Loudermill?
Do you think this is good law in other contexts?
If there are no facts in issue, you can still get a hearing if the right is sufficiently important and there are issues of how discretion will be exercised. This really means if whining, whimpering, and snarfing will matter. The doc's license revocation is an example - demeanor means a lot, depending on what the charge is.

2.5 The Rulemaking - Adjudication Distinction - 73

Key concept

Adjudications are like trials in that they resolve the facts of specific disputes are binding only on the specific litigants and through precedent

Thus you can establish general rules through adjudications, just as common law courts establish general rules through precedent, but it is better to do it through legislation .

Rule making is like the legislature

You get participation through notice and comment, but no individual rights to participation.

Londoner v. Denver - 73

What did the city do that lead to the case?

What was the procedure for determining the charge?

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?

What other factor strongly inclined the court to grant a hearing?

Saying it is an adjudication does not mean that you get an oral hearing ahead of time - Mathews, but if it is a rulemaking, you never get a hearing.

Bi-Metallic Investment Co. v. State Board of Equalization - 75

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?

Notes and Questions - 76

N1. Do you think Londoner would still get an oral hearing in the wake of Mathews?

N2. Londoner and Bimetallic

US v. Florida East Coast RR
Agency used rulemaking with notice and comment to set the rates that railroads paid to use the track of other railroads
Court said this was a classic legislative type action that applied to all parties
No right to a trial type hearing

N3. Legislative v. adjudicative facts

Rehnquist - Says Londoner was about a very small group who were affected based on individual grounds
Davis - Londoner was about facts about specific property, Bimetallic was about general facts
Neither is perfect - we will discuss both in future cases

Cunningham v. Department of Civil Service - 78

Why did plaintiffs lose their jobs?

What did the rules give them?

Why didn't they get new jobs?

What was their property right?

Is this a Constitutional right?

Where does it come from?

Does it apply to every government job?

What were the facts to be adjudicated?

Notes and Questions - 80

Rules that only apply to one entity

You regulate copper smelters in Montana, and there is only one smelter
You pass a rule setting arsenic levels in the effluent
Adjudication or rulemaking?
What are the factors?


Elm City wants to adopt a comprehensive zoning plan that limits high rises
Plaintiff (property owner) wants to cross-examine the city planner to show that the plan is more restrictive than has been presented
Do they have to let him?
The ordinance is adopted
Plaintiff wants to build a shopping center, which requires an exemption
Exemptions can only be granted for unusual hardship
Plaintiff says he could make 5x as much money
Does he get a hearing?
If they are going to grant the exemption, does Mary, who lives next door, get to be heard?


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