informality and formality in administrative law

Administrative Law

Informality and Formality in Administrative Law

Introduction What is a legislative action? What is a judicial action?

Introduction Formal Procedures:

It is here that we get into the heart of administrative decision making and administrative law:

Adjudication Rulemaking

However, they are not the bulk of the actions that agencies can take.

Informal procedures: The bulk of administrative decisions are made

through informal procedures. In other words, day to day decisions are often made

informally.

Distinguishing Formal Procedures from Informal Procedures

Formal Procedures: More formal procedures are more legalistic (court-like) and

elaborate. Trial-type procedures – procedures used in formal agency rulemaking

and/or adjudication which resemble a civil trial in a court of law. Interested parties can testify Witnesses are presented Evidence is presented Cross-examination of opposing witnesses Presentation of arguments

There are more strict procedures that administrators are legally required to follow.

These requirements come from: Statutes Court decisions

Due to the strict requirements, administrators have decreased discretion in decision making (although my research demonstrates this is not true).


Informal Procedures: Informal procedures are those that are the least

constrained by law. This means that administrators have a great deal

of discretion. Examples of Very Informal Procedures:

Advisory opinions Memoranda Hotline responses

Many of these examples are decisions NOT to use formal procedures or regulations for decision making.

Informal Administration in Rulemaking and Adjudication

Adjudication Here the Court says that more formal procedures are

required from agencies. The Courts reason that the due process clauses of the

5th and 14th Amendment require such procedures in a court-like setting.

Rulemaking When it comes to rulemaking, the Constitution does not

require any legal procedures according to the Courts. In fact, Section 553 of the Administrative Procedure Act

exempts some classes of rulemaking from its legal requirements.

Informal Administration in Rulemaking and Adjudication

Londoner v. Denver, 210 U.S. 373 (1908)

Facts: The city of Denver was given the power by the Colorado legislature to assess

taxes to make local improvements. The assessment of taxes as it relates to local improvements can be laid upon

“property specially benefited.” Thus, only a portion of the city is affected.

In this present case, a tax was assessed on specific property owners to cover the paving of a road.

The Board provided an opportunity for the affected parties to submit written comments, but provided no oral hearing.

Legal Question: Does the failure of the Board of Equalization to provide a hearing to parties on

whom a tax would be assessed violate the due process clause of the 14 th Amendment?

Holding: Yes. Reversed.

Vote: 7 (Moody, Harlan, Brewer, White, Peckham, McKenna, Day) – 2 (Fuller, Holmes)

Londoner v. Denver, 210 U.S. 373 (1908)

Legal Reasoning: Who is conducting the tax assessment in this case?

A subordinate body (agency) is conducting the estimate. Why does this matter?

The Constitution does not impose many restrictions on the states, but when the state delegates the responsibility to a subordinate body, more is required.

Why is more required in Colorado? The law does not afford citizens the opportunity to challenge

assessments in court. So what process is therefore due?

“…shall have the right to support his allegations by argument, however brief: and, if need be, by proof, however informal.”

In other words, a hearing of some sort is required. The assessment is therefore null and void as it violates the due

process clause of the 14th Amendment.

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

239 U.S. 441 (1915)

Discussion Is this inconsistent with Londoner?

No, in Londoner the individuals were exceptionally affected (singled out) so due process is triggered.

In Bi-Metallic no one is treated exceptionally so due process is not due. So what are these cases highlighting, why are we going over

them? They highlight various agency procedures or the way to distinguish

between rulemaking and adjudication. Questions that emerge:

Does the agency action affect a small specifically identified number of people whom the agency can feasibly hear without sinking under this burden?

Does the agency decision depend at least in part on facts about specific people and their cases such than an individual, if given some right to be hear, might show the agency it made a factual mistake?

Formal and Informal Adjudication Formal Adjudication

Formal adjudication represents resembles federal trial procedure: Conducted before an impartial referee Non-jury trial This will be discussed in depth when we talk about elements of an

administrative hearing. Formal adjudication is primarily guided by:

Sections 554, 556, and 557 of the APA outline the procedures of formal adjudication

The Court’s pronouncement in Goldberg v. Kelly. Procedural requirements for adjudication:

The opportunity to be heard (orally, not written) Hearing must be at a meaningful time and in a meaningful manner. The opportunity to confront witnesses and cross-examine The opportunity to present evidence in their favor Decision must be based on the evidence Decision maker should state the basis for their decision Decision maker should be impartial

Formal and Informal Adjudication

# of Goldberg Ingredients

# of Agencies Which Goldberg ingredients omitted?

10 2 None9 4 2 (8), 2 (6)8 2 1 (2 and 5), 1 (6 and 8) 7 4 1 (3, 6, 10), 1(2, 5, 6), 1

(2, 5, 8), 1 (2, 4, 5)6 1 2, 4, 5, 85 1 1, 6, 7, 9, 104 9 2, 4, 5, 6, 7, 83 13 2, 3, 4, 5, 6, 7, 82 3 2, 3, 4, 5, 6, 7, 8, 91 0 N/A0 2 1, 2, 3, 4, 5, 6, 7, 8, 9,

10

Board of Curators of the University of Missouri et al. v. Horowitz, 435 U.S. 78 (1978)

Discussion Do you think a hearing of some sort

should be required when dismissals are based on academic evaluations?

Does this deserve less protection than when the government cuts off welfare benefits? Is her harm more long term? Was she aware of her situation much

prior to dismissal?

Informal Rulemaking Courts require no legal formalities when it comes to

rulemaking (see Bi-Metallic). § 553 of the Administrative Procedure Act requires a certain

level of formality. Exceptions to § 553 of the Administrative Procedure Act:

Some guiding statutes exempt agencies from § 553 Some guiding statutes provide alternative procedures from § 553

A guiding statute may require that a rule be made “on the record.” This would require the agency to follow § 554, 556, and 557 of the APA

Agencies not required to follow notice and comment rulemaking when it involves:

A matter of public property A matter relating to grants Interpretive rules (notice not required)

Interpretive (explanatory statements) – administrative rules that interpret or clarify an agency’s position as to its duties or responsibilities based on a controlling statute or promulgated legislative rule.

When notice and comment rulemaking would be in conflict with the public interest

Legal Problems in Informal Administration

Issues that arise out of informality (pg. 189): What if an agency gives a person informal

advice that turns out to violate agency policy? What if an agency reneges on its advice, even

though it was accurate when given? Can the disappointed citizen require an administrative

agency to act consistently with its informal advice, even if that advice is mistaken or superseded?

Does giving incorrect advice informally estop, that is, preclude, the government from enforcing its actual policies on the misinformed citizen?

Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380

(1947)