A famous case in which the court required the administrator, Secretary of Transportation Volpe (former Governor of Massachusetts), to provide a "record" however informal to support his decision to wreak Overton Part by authorizing the construction of a highway through it.
The statute is at p. 571, n. 1. The Secretary is directed not to approve the use of public funds for highways that impact public parks etc. unless (1) there is no prudent alternative and the program includes "all possible planning to minimize harm to such park...."
Highway interests possibly got to the Secretary and he authorized the highway, stating that it was within his discretion to make the decision. But the court says that discretionary decisions under the APA are those where there is no law to apply, which is not the case here.
The clear statutory intent notes the court is to protect parkland and the environment. Although the Secretary's decision is entitled to the presumpton of regularity this does not shield it from "thorough, probing, in depth review."(p.575)
The judicial review is "to be based on the full administrative record that was before the Secretary at the time he made his decision."
Well, what kind of case is this in the Londoner/Bi-metallic context, adjudication or rulemaking, formal or informal? Importantly in deciding this the Secretary is not required to hold a hearing as in Seacoast which if adjudicative facts were to be determinative would make the case formal adjudication requiring a formal record and application of the substantial evidence test under the APA.
Here local officials are to hold a hearing to inform and to elicit views. p. 575. Justice Marshall for the Court finds the hearing to be "nonadjudicatory, quasi-legislative in nature." p. 575. The forgetful Marshall had just a few sentences before this written that the case "was plainly not an exercise of a rulemaking function."
Whatever the case is, which is probably best defined to be informal adjdication, the statute does not require a trial type hearing.
So the Court is left in a quandry of how to review the decision. How can it determine if the Secretary's action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law"? p.576.
The Secretary must give enough reasons so that the court can apply these APA standards for judicial review. If he fails the court may call before it administrative officials who participated in the decision to explain themselves. Pretty tough don't you think? Volpe did after the district court on remand conducted a 27-day trial after which it found that the Secretary failed to made the required determinations under the statute and misinterpreted the law to boot. The Secretary then gave up. p. 578.
Motor Vehicle Mfg. Assoc. v. State Farm (1983) p.591
This is a "hard look" review of agency rule-making.
First, the statute uses the APA #553 informal rule-making procedures for establishing automobile safety standards.
Second, the statute provides for judicial review under the APA # 706 of all "orders establishing, amending, or revoking a federal motor vehicle safety standard." p. 591.
OK, but now according to the Senate and House committee reports the agency's findings were to be supported by "substantial evidence on the record considered as a whole."
But committee reports are not necessarily definitive expressions of legislatve intent although they are of course important. Apparently the Supreme Court did not dwell upon the possible meaning of the report language and found that #706 governs review. Here "arbitrary and capricious" merges with "substantial evidence" as the review standard.
The Court 9-0 found one of the agency's actions to be "arbitrary and capricious," that it failed to take into account the possibility of meeting statutory standards through the use of airbags. The Court found "no findings and no analysis," comenting further that "expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion."
The Court was split on other aspects of the case. A majority found with regard to the possibility of automatic seatbelts that the agency's record contains "not one iota of evidence that there would not be sufficient increase in usage to justify the cost."
Finally, the agency failed to explain adequately its decision not to require nondetachable seatbelts.
Opportunity to be Heard
Monday Nov. 10
Note in reference to the title of the chapter that while it states the subject to be the constitutional requirement of an opportunity to be heard not all of the cases apply constitutional due process. The right to be heard is as much if not more a statutory right than a constitutional right. In fact many of the cases you have had sofar raise the issue of what kind of a hearing the statute involved requires, formal or informal. Unlike these cases where there is a constitutional right to a hearing it falls under due process and requires a trial type of hearing as in Londoner v Denver.
What triggers a constitutional right to a hearing? Either the due process clause of the fifth or fourteenth amendments must be applied which means that "life, liberty, or property," must be involved. The court must define liberty or property, definitions outside of the criminal law area in the case of liberty, and in the civil realm in the case of property, are often substantive, that is normative. For example, are entitlements a recipient's "property"? If a dismissed employee has been defamed through a public announcement that he/she is a subversive, preventing in effect further employment, is the employee's "liberty" at stake, requiring a hearing before (or after) dismissal? Is employment "property"? How do courts make these substantive judgments?
Cases
North American Cold Storage Co. V. Chicago (1908), p. 705
A Chicago ordinance requires meat and food inspectors to destroy putrid and other foods defined as dangerous. They do their job and upon finding North American's chicken to be putrid ( no hearing on this) they order it to be delivered to them for destruction. North American goes to court after, having refused to comply, the city cuts off deliveries to and from its premises and threatens to imprison anyone making such deliveries. The company goes to court seeking an injunction to prevent the city's actions on the grounds that the actions were an unlawful seizure of property and more importantly that the city must hold a hearing before seizing the chicken because the 14th amendment's due process clause requires it.
The common law of nuisance limits property rights by upholding the authority of officials to abate a nuisance, as in the killing of an allegedly diseased horse in Miller v. Horton, p. 707. But note that all such official actions constitute a tort unless the officials can successfully defend their actions in court after they have occurred.
The court upholds broad legislative authority to define nuisances and to take whatever action is needed to protect public health. p. 707. But any official action may subsequently be challenged in a common law suit for damages, and even if the court hearing takes place after the seizure and in this case destruction of the property "the owner of the food...is amply protected." p. 707, bottom. Well how can the owner prove the chicken was not putrid if it has been destroyed, that is the evidence is destroyed? The court concludes essentially that the legislative authority can order the destruction of allegedly dangerous food in the interest of public health, and that the public health outweighs the private interest of the owner in preserving the possibly dangerous evidence.
Phillips v. Commissioner (1931) and McKesson Corp. v. Division of Alcoholic Beverages and Tobacco (1990)
These are really interesting cases in light of recent taxpayer testimony about IRS abuses. Can Congress authorize property seizures for taxes without providing for a preaction hearing?
In Phillips Justice Brandeis wrote for a unanimous Court: "The right of the United States to collect its internal revenue by summary administrative proceedings has long been settled." The poor target (my words) of the IRS's wrath can always go to court afterwards to receive justice. Believe that and I have a great Bridge to sell you, in and near New York.
Then here comes the liberal Justice Brennan in the McKesson case and holds that "it is well established that a State need not provide predeprivation process for the exaction of taxes."
What is the taxpayer's recourse? Clearly a taxpayer movement that will change legislative action in the interests of taxpayer rights. Litigation doesn't do the trick here.
Bailey v. Richardson ( D.C. Cir., 1950, affirmed 341 U.S. 918, 1951) p. 711
A famous or perhaps infamous case in the view of some.
Bailey, a government employee in the 1940s, was first discharged due to reduction in force, the reinstated and fired again for disloyalty under President Truman's loyalty and security program, executive order 9835. Civil Service Commission regulations under the order provided that reinstatement would be denied for any employee if "on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States."
Charged with possible disloyalty Bailey was given a hearing before a Regional Loyalty Board during which she attempted to answer charges that she had been or was a Communist and had been or was a member of two other subversive organizations listed by the Attorney General ( see Joint Anti-Fascist p. 715 for a description of how the Attorney General's list worked). She testified in her own behalf and presented witnesses in her defense but had no opportunity to confront the sources of charges against her. She appealed the verdict to the Loyalty Review Board, which at here request granted a hearing in which she alone testified.
Did the hearing meet the requirements of due process? No but due process does not apply because government employment is not "property" within the meaning of the Fifth Amendment . p. 713. "In the absence of statute or ancient custom to the contrary, executive offices are held at the will of the appointing authority.... Due process is not applicable unless one is being deprived of something to which he has a right." p. 713
Judge Edgerton's vehement dissent argues that "dismissal for disloyalty is punishment and requires all the safeguards of a judicial trial."
Compare Holmes, J., in McAuliffe v Mayor of New Bedford, 155 Mass. 216, 220 (1892), note 2, p. 717
Holmes wrote regarding a city rule prohibiting policemen from soliciting money for political purposes that "There is nothing in the Constitution [that prohibits this rule]....The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." This is called the doctrine of privilege , that government employment is a privilege and not a right; therefore the government can impose whatever conditions, including "unconstitutional" conditions, on its employment. Government employees must take the bitter with the sweet. Cf. Loudermill, p. 798, White, J., and Rehnquist, J..
The Constitutional Rights versus the Balancing Approach in Determining the Right to a Hearing
Note how Judge Prettyman seems to waver between the constitutional rights and balancing approaches in deciding whether or not Bailey must be given a fuller hearing. He takes into account balancing the interests of the employee with those of the government in maintaining national security and comes down in favor of the government. Then he concludes with the constitutional rights test holding that Bailey has no constitutional right to government employment and therefore no constitutional rights in her job.
Joint Anti-Fascist Refugee Committee v McGrath (1951 p. 715
This is one of Frankfurther's most interesting and important concurring opinions that has broad ramifications for constitutional as well as administrative law.
Due process, writes Frankfurter, is defined by judges. There is no formula for due process. Judges apply their knowledge to the facts of particular cases and decide what is fair and just. In this case it is simply unfair to blacklist an organization with the dire consequences that follow without granting a hearing. Is liberty or property at stake? Frankfurther refuses to get into that area and decidedly abhors formulas for due process. Essentially he seems to be saying that defining due process on an ad hoc basis, using common law precedents to help but not in a determinative way, is what judges do, what they are trained to do. "Due process," he states, "unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place, and circumstances." Not only the courts but Congress too have generally recognized that individuals or groups should be given a hearing before "being condemned to suffer grievous loss [italics added] of any kind"
Cafeteria & Retaurant Workers Union v. McElroy (1961) p. 718
The Supreme Court rejects the rights/privileges approach and in its place uses the balancing approach. Which is more "substantive"? Note the date of the case, coming at a time when the national security issue was no longer in the realm of hysteria as it was during the McCarthy/Bailey era. Nevertheless the Court finds for the government. Why?
No hearing was granted to Rachel Brawner, the shortorder cook dismissed for failure to "meet security requirements" determined by the Naval gun factory's Security Officer.
Was the employee entitled to Fifth Amendment due process? No said the Court because due process "does not require a trial-type hearing in every conceivable case of government impairment of private interest." p. 719. The balancing test is used to determine what kind of a hearing is required, not the constitutional rights test. Note the great sounding at least quote from Homer v. Richmond, 292 F.2d 719, 722: "One may not have a constitutional right to go to Baghdad, but the Government may not prohibit one from going there unless by means consonant with due process of law." This makes no sense really and moreover the right to travel is a constitutional liberty.
Frankfurter's Anti-Fascist opinion is a bit mystical and the opinions in Cafeteria are also. Defining due process through a balancing test leaves much to be desired as no clear standards are created for future cases. And Justice Brennan in dissent is also entirely substantive (maybe this cannot be avoided) when he writes that the security risk designation is "odious" and "sinister," and that petitioner's exclusion from the Gun Factory " which summarily deprives her of a "valuable relationship" is fundamentally unfair, and therefore violative of the Due Process Clause of the Fifth Amendment."
Goldberg v. Kelly (1970) p. 722.
Welfare recipients in New York city brought an action in the federal district court claiming that New York state and city procedures failed to meet due process requirements for a full hearing before the termination of benefits. After the initial action the welfare administration installed elaborate pre-termination procedures to protect recipients but did not go so far as to require a full trial type hearing at that stage. However terminated recipients were granted a full post-termination hearing. p. 733.
Justice Brennan delivers the expected opinion, that essentially states welfare is an entitlement, by inference the property of recipients (see fn. 4, p. 724) , and they are entitled under due process to a full if not a full trial-type hearing before being cut off. "The city's procedures presently do not permit recipients to appear personally with or without counsel before the official who finally determines eligibility. Thus a recipient is not permitted to present evidence to that official orally, or to contront or cross-examine adverse witnesses. These omissions are fatal to the constitutitonal adequacy of the procedures." p.727.
Citing Joint Anti-Fascist Brennan holds that recipients who are cut of from welfare benefits suffer the kind of "grievous loss" Frankfurther said triggers due process requirements. p. 725.
Note Brennan's analysis at pp. 725-726. Is he legislating or adjudicating here? Isn't he basing his argument on legislative, not adjudicative, facts?
Justice Black dissents, stating that it "somewhat strains credulity to say that the government's promise of charity to an individual is porperty belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment." p.729.
Board Of Regents v. Roth and Perry v. Sindermann p. 739, 745
Essentially the bottom line here is Justice Stewart's attempt to apply the constitutional rights test to determine the right to a hearing, that is one has a right to a hearing if the administrative action affects the injured individual's life, liberty or property. That decides whether or not a hearing is required. Next a balancing test is used to define "due process," that is what kind of a hearing must be given.
Now that that is clear can we say that Stewart's approach is less "substantive" than that used in Cafeteria Workers? Note Marshall's dissent in Roth: " In my view, every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment. This is the 'proprty' right that I believe is protected by the Fourteenth Amendment and that cannot be denied 'without due process of law.' And it is also liberty--liberty to work--which is the 'very essence of the personal freedom and opportunity secured by the Fourteenth Amendment."
By contrast Justice Stewart finds the property interest in the terms of employment rather than in a higher or constitutional law. Statutory entitlements are property, and in some cases expectations of tenure can transfer a job into the property of the employee. Stewart writes in Roth (p. 744) , "Property interests...are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Roth had no such expectations but Sindermann did.
Mechum v. Fano, 427 U.S. 215 (1976) p. 756
Prisoners have no liberty interest that prevents prison transfers without due process. State law can create such an interest but not the Constitution. Cf. Wolff v. McDonnell (1974), cited at p. 758. There the liberty interest of the plaintiff was rooted in state law, and under such circumstances the state cannot arbitrarily abrogate it.
Well, note the 18th century view of Justices Stevens, Brennan, and Marshall in dissent. Justice Stevens writes for the dissenters that while statutory law defines property, liberty is in the higher law, natural law if you will (my words). Stevens states: " I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations." (p. 759) Thus courts define liberty on an ad hoc basis, and in this case the transfer involved "was sufficiently serious to invoke the protection of the Constitution." (
p. 760).
Board of Pardons v. Allen, 482 U.S. 369 (1987) p. 761
Justice Brennan while holding that a prisoner does not have a liberty interest in being paroled (why not?) such an interest was created in this case by the Montana state statute which provided that the parole board "shall" grant parole under certain defined circumstances.
Justice O'Connor disagrees and applies Roth to the effect that "the mere expectation of a benefit - even if tht expectation is supported by consistent government practice - is not sufficient to create an interest protected by procedural due process." (p. 761). Justice O'Connor requires a statutory entitlement before due process applies.
Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989) p. 761
Kentucky immates, having spent a lot of time in the prison law library, thought they might as well argue that due process covered their liberty to receive visitors. The Court held that they were not statutorily entitled to receive visitors, for example visitors who refused to be searched before entering.
Of course Marshall, Brennan, and Stevens dissented with Marshall writing the dissenting opinion: " I fail to see why mandatory language always is an essential element of a state-created liberty interest." Just because a statute says officials "may" rather than "shall" follow substantive criteria does not suggest the criteria are irrelevant and that officials customarily ignore the criteria. That is the use of the word "may" in statutory language fails to create, in the majority's view, an entitlement, but the dissenters think otherwise.
Morton v. Ruiz, 415 U.S. 199 (1974) p. 764.
A Native-American family moves off a reservation to work in a copper mine 15 miles away. Twenty-seven years later the miners strike and the family applies for welfare from the Bureau of Indian Affairs, a federal agency, because Arizona refuses general assistance to striking workers. The Bureau refuses the request on the grounds that its Manual limited general assistance to indians living on reservations. The Supreme Court unanimously found the administrative regulation to be too narrow, based on both vague statutory language that failed to limit general assistance to indians in this way and on the Bureau's repeated testimony before Congress that needy indians living "near" reservations were included in the general assistance program.
Now comes the interesting part of this case. Can the BIA through its Manual state a binding policy within the framework of a vague statute? Does the Manual supercede the above mentioned arguments of the Court that the appropriations for the BIA were intended to cover non-reservations indians living nearby? Justice Blackmun holds that the "Executive has long been empowered to promulgate rules and policies....This agency power to make rules that affect substantial individual rights and obligations carries with it the responsibility not only to remain consistent with the governing legislation, but also to employ procedures that conform to the law.[Emphasis supplied.] ... [T]he determination of eligibility cannot be made on an ad hoc basis by the dispenser of the funds." p. 765. Cf. Chenery. Presumably Blackmun would have the agency conform to the APA #553 to make rules that then could be reviewed under the APA #706.
The SSA, acting on the recommendation of the state agency under the disabiity program, cut off Eldridge's disability benefits. As a result "there was a foreclosure upon the Eldridge home and the family's furniture was repossessed, forcing Eldridge, his wife, and their children to sleep in one bed." p. 774. Does this hardship outweigh the government's interest in postponing a full hearing until after the termination of disability benefits? Are the adjudicative facts pertaining to Eldridge relevant here to prevent the general application of the pre and post-termination procedural protections?
Here the agency has elaborate procedures to protect disability claimants and recipients. The latter have about every chance imaginable to present their case before termination; however they do not have the opportunity for an oral hearing, which is left to a full post-termination hearing before an ALJ. At that stage if the decision goes again the recipient he/she may obtain judicial review. What more can be asked in the interests of fairness taking into account governmental efficiency interests?
Well it seems to come down to the need for a full oral hearing before termination to guarantee accuracy and fairness for the recipients. Brennan stated in Goldberg that "particularly where credibility and veracity are at issue, as they must be in many [welfare] termination proceedings, written submissions are a wholly unsatisfactory basis for decision."
The government argues in Mathews that written submissions are adequate for due process at the pretermination stage because the nature of the evidence is unlike the "rumor and gossip" involved in many welfare cases. Medical evidence does not require cross-examination to verify its accuracy.
The Court per Justice Powell holds for the government and in the process states the tripartite formula to be applied. Note that there is no question here of the right to a hearing as the statute grants a partial "hearing" before termination and a full hearing after benefits have been cut off. The question is what type of hearing does due process require?
First, what is the nature of the private interest at stake?
Second, what is the risk of erroneous deprivation of such interest?
Third, what is the government's interest in efficient public administration and fiscal responsibity?
Putting it all together the Court holds for the government.
Note at p. 771 the Court admits that it may take the government up to a year to restore benefits once terminated, and that this may impose an extreme hardship on the recipient. Nevertheless "the disabled worker's need is likely to be less than that of a welfare recipient." After all the terminated recipient can still apply for welfare !
Dissent
Justice Brennan at pp. 774-775 dissents noting that the Court's "consideration that disability benefits may [emphasis supplied] cause the recipient to suffer only a limited deprivation is no argument. It is speculative," as are other parts of the Court's argument.
Interestingly Brennan admonishes the Court for second-guessing the legislature, something he did in so many opinions! The legislative determination, he writes, "to provide disability benefits, without any prerequisite determination of need in fact, presumes a need by the recipient which is not this Court's function to denigrate." p. 774.
Ingraham v. Wright (1977) p. 783.
Justice again renders the Court's opinion, upholding a Florida corporal punishment law against a challenge that it did not meet due process requirements because it failed to provide a hearing before punishment was rendered. Moreover the law was challenged on the ground that corporal punishment is cruel and unusual punishment under the Eight Amendment as part of due process of the 14th Amendment.
The Court held that due process applies because a liberty interest is present, but that no preaction hearing is required because "traditional common- law remedies are fully adequate to afford due process." p. 784. School authorities inflicting excessive punishment may be "held liable for damages to the child and, if malice is shown, they may be subject of criminal penalties." p. 786.
Moreover the Eight Amendment does not apply because it was designed to apply only to those convicted of crimes.
Applying the Mathews test the Court first finds a liberty interest, second it concludes that error is unlikely because the teach will observe the child's behavior before administering punishment, and third the possibility of corporal punishment is in the governments interest to maintain school discipline and teachers' authority.
Dissent
Justices White, Brennan, Marshall, and Stevens dissent. White's opinion joined by the dissenters states that Florida's tort action "is utterly inadequate toprotect against erroneous infliction of punishment of two reasons. First, under Florida law, a student...has no remedy at all for punishment imposed on the basis of mistaken facts....Second, since the lawsuit is after the punishment the "infliction of physical pain is final and irreparable...." p. 789. Stevens in a separate dissenting opinion stresses that due process does not always require a hearing prior to the deprivation of a constitutionally protected interest. Sometimes a postdeprivation remedy is adequate for due process.
Cleveland Board of Education v. Loudermill (1985)
Under Ohio law the plaintiff, a school security guard, was a classified civil servant governed by the statute's conditions for removal which could only be for cause. Under the law civil servants are entitled to retain their positions during "good behavior and efficient service, " and cannot be dismissed except for "misfeasance, malfeasance, or nonfeasance in office." p. 800.
Rejecting the bitter with the sweet approach (the privilege/right doctrine) Justice White held that the statute created a property interest but that the pretermination hearing need not be "elaborate." The respondents should be given what they seek which are "notice and an opportunity to respond.... The tenured public employee is entitled to...notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." The balancing test dictates this due process formula.
Justice Rehnquist in Dissent
Public employees are entitled to what the law gives them, nothing more, nothing less. This is the bitter with the sweet approach which holds that an employee must accept the conditions of employment.