Administrative Law - 24 Oct 2006

Agency Organization Traditional Government Functions Legislative (Rulemaking) Judicial (Adjudication) Executive (Prosecution) Why are the separated by the Constitution? What is the problem of combining them in an agency?

Constitutional v. APA Limits on Combining Functions in Adjudications The APA provides that should be some separation of functions in adjudications to reduce the conflict between prosecuting and judging a case This is not a constitutional requirement The United States Supreme Court will allow a decisionmaker to have other roles There are limits - you have to argue that the facts make the appearance of conflict overwhelming

Protections for ALJs Civil Service protections Cannot be assigned other duties - no cleaning the toilet if the Secretary does not like your rulings Nash v. Bown, 869 F2d 675 (Cir2 1989) Can have performance goals Cannot have decisional quotas What if quality control guidelines are biased toward supporting the agency position?

Bias by Agency Heads - Withrow v. Larkin 421 US 35 (1975) Medical board case Same agency investigated the case, then pulled the doc's license No problem, at the constitutional level Is there something special about a medical board case? Who usually sits on a medical board? What is the notice and record issue?

Criminal and Civil Law Parallels in Withrow Criminal law judges may rule on probable cause warrants and then also preside over the case resulting from the warrant Civil law judges make many decisions in pretrial proceedings that would bias their ruling in the case The problem is that there is a jury making the final decision in these cases, not the judge

Valley v. Rapides Parish School Bd., 118 F.3d 1047 (Cir5 1997)Rapides Parish School Bd., Firing a school superintendent In sum, the record in the case unfolds like a soap opera. The respective views of the parties were regularly aired out in the print and broadcast media in the Rapides Parish area. One need only make a cursory review of the exhibits and the testimony to get a clear impression of the rancor and deeply held views of the aforementioned school board members prior to the discharge hearing. Indeed, the district court's sparing recitation of the facts underlying its ruling was a tacit acknowledgment of the general public's and the school board's awareness of the details of the accusations in the case.

Court Ruling Upheld an injunction reinstating the superintendent until the board could give an unbiased hearing No hint from the court about how that might be done.

FTC v. Cement Institute, 333 US 683 (1948) FTC issued reports criticizing a certain method of cost analysis Plaintiff argued that this showed that the commissioners were biased against their business, which relied on this method Court said this would prevent the agency from carrying out its legilative mandate

American Cyanmid v. FTC, 363 F2d 757 (Cir6 1966) Chairman of the FTC had investigated drug company while counsel of a senate committee When the FTC investigated a complaint on the same subject against a drug company, the hearing examiner ruled for the drug company The Chairman participated in the commission's overturning of the hearing officer, but his vote was not critical The court found that his participation biased the outcome Would it have mattered if he had done the same at the FTC?

Association of National Advertisers, Inc. v. FTC FTC is adopting rules on TV advertising directed at children Chairman has written and spoken at length on the evils of TV ads aimed at children Plaintiffs seek to disqualify him because of bias What happened in Cinderella? Cinderella disqualified the same Chairman from participating in an adjudication because he had prejudged some of the facts.

Is the Standard Different for Rulemaking? Clear and convincing evidence that he has an unalterably closed mind on matters critical to the rulemaking.

Can the District Court make this into an Adjudication? Said there were aspects of an adjudication to this rule making because there was a limited statutory right of cross examination Did the circuit court buy this? Rejected because modifications of rulemaking procedures do not make them adjudications

How did the Court Characterize the Commissioner's Comments? Discussion and advocacy What is it going to take to disqualify an agency head from a rulemaking? Charlton Heston as head of BATF?

Pillsbury Co. v. FTC What was the FTC concerned about? Monopoly power in flour How did Congress interfere with the agency action? What did Senator Kefauver say? The court found this improper meddling Congress may not require testimony on ongoing adjudications Congress may request information as part of its congressional casework

Principle of Necessity What is the Principle of Necessity? Why is the important for small agencies?

Gibson v. Berryhill, 411 US 564 (1973) Optometry board was all independent practitioners Made it unprofessional for optometrists to work for employers Why? Court disqualified the whole agency Necessity does not cover illegal behavior What if they got the legislature to pass a law preventing employee optometrists?

Successor Cases Gibson was an extreme case Financial conflicts are only one factor to consider, not the determining factor Must make a strong factual argument

Morgan I Statute required a formal rulemaking Looks like a formal adjudication The Secretary had the power to make the decision Plaintiffs' submitted written briefs to the agency Asst. Secretary conducted the hearing and made recommendations to the secretary Secretary made the decision based on the recommendations

How is this Different from a Trial? What did plaintiffs claim about the Secretary's decision? Did the court allow the Secretary to make the decision if he did not conduct the hearing? What did it require him to do? Why would this be a problem in a modern cabinet level agency? This was limited in subsequent cases, which found that the court should not inquire into the thinking of the secretary, but only look at the record

What can the Secretary Do? Delegate the right to decide Not always permitted Adjudications often make policy, which the secretary should control Make the hearing officer's decision final after 30 and intervene if the case is important to policy Set up an internal appeal process to flag important cases Decide the case on an executive summary Approve regulations based on expert staff recommendations