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Chapter 4

Part II

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If you are Entitled to a Hearing:How Much Process is Due?

Old days - Not much APA - 1945 - Strong bias in favor of hearings 1955 (Warren Court) - hearing required before deportation

Congress changes that by statute (not a constitutional issue)

1970 Goldberg Notion of a constitutionally required hearing before a

benefit is terminated Oral hearing, but no appointed counsel

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Matthews v. Eldridge (1976)

http://www.ssa.gov/policy/docs/chartbooks/disability_trends/overview.html

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Social Security DisabilityBasic Procedure Drill - I

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 pays, QA, or denies Ask for reconsideration This is all done with records

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Social Security DisabilityBasic Procedure drill - II

At the state level, the examiner can call the patient's doc At the fed level, the expert is bound by the patient's doc Most problems arise because of poor documentation Applicants can submit new info and get a new evaluation After denial, you can ask for a hearing before ALJ At the hearing stage, you ask for an expedited review if the case is

clear ALJ's decision is final

At this point you can appeal to the federal courts Positive decisions are retroactive - critical DP point

Generates the money to pay the attorney as well

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Volume of Claims

How many claims does SSA decide every year? How big is the disability system (SSD)? 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?

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What does plaintiff want?

What data is used for making disability determinations? Who would be the witnesses and how is their information

collected? Does the claimant's testimony matter? How does this change the equities of Goldberg? Why is the administrative decisionmaker less prone to

make errors in this case than in Goldberg?

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The Mathews Factors

First, one must consider the private interest that will be affected by the official action and cost of an error. (V)

Second, one must consider the risk of an erroneous deprivation of that interest under the required procedures and the likely reduction of that risk by requiring more or different procedures. (P)

Third, one must consider the government's interest in using the required procedures, as opposed to more or different procedures. (C)

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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 and cost of errors. 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?

Apply these Factors to the Case

How would you apply these factors to the Matthews case? Does plaintiff get his pre-termination hearing?

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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 key issue in 1983 actions - how hard/often

can the prison guard hit the prisoner?

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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 one gets 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?

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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?

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Any Pre-Action Hearing Rights after Matthews?

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) Firing a teacher

Applying the Matthews factors, how do you argue that an informal pre-termination hearing is required How is this different from Matthews itself as

regards to the ability to cure problems with a post-termination hearing?

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Gilbert v. Homar, 520 U.S. 924 (1997)

Who did the guard work for? Why did this make his arrest for marijuana possession

a particular problem? Did he get any due process prior to this suspension from

the workplace? What was the importance of the decision by an

"independent body" and what was the body? What are the limits of this opinion?

Why does this being a temporary suspension matter?

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Goss v. Lopez, 419 U.S. 565 (1975)

High school student suspended from school What due process did the court require? What was the Mathews analysis?

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Ingraham v. Wright, 430 U.S. 651 (1977)

School paddling case What due process did the court require? What was the Mathews analysis? How does the analysis differ from Goss?

Why? Do we still paddle students?

Why not? Is hauling them to jail more protective of their rights?

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

Academic suspension case for a medical student What due process did the court require? What was the Mathews analysis? Would this analysis differ if this had been a

disciplinary suspension?

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Law School Disciple and Due Process

In Mathews terms, what are the issues in providing due process for academic issues?

How does this differ for a disciplinary suspension? How do we tell whether it is an academic or

disciplinary issue? What about plagiarism? Cheating?

Why is the Mathews basis for treating academic and disciplinary issues differently? What is the role of special expertise and deference?

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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)

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Bias in Administrative Hearings

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What does a Right to an Impartial Judge Mean?

What are sources of bias? How is the analysis different for agencies than

for Article III courts? What is separation of functions?

How does it reduce potential bias? This argument lead to the central panel of

ALJs in LA.

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The Problem of Proof of Bias

We will see more about this in the chapter on judicial review

The core problem is that you cannot judge bias by only looking at the record, but the courts are unwilling to allow discovery into the motives of the judges

It would be like getting to depose an Article III judge as part of the appeal of a summary judgment.

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Exception to the Requirement of Separation of Functions for the Heads of Agencies

554(d) This subsection does not apply - ... (C) to the agency or a member or members of

the body comprising the agency.

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Withrow v. Larkin, 421 U.S. 35 (1975)

State medical licensing board What were the functions? What did the doc request? Why did the court find that it was not necessary to separate them?

The Supreme Court reiterated the fundamental importance of the need for an unbiased decision maker, but it found that the mere combination of investigatory, prosecutorial, and adjudicatory functions in the same entity did not necessarily make the entity biased in adjudicating.

Why is the record so important in these cases? Why would an independent ALJ be a particular problem for these

cases?

Stopped here

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Disqualifying an Administrative Law Decisionmaker for Bias

What is the United States Supreme Court standard? “irrevocably closed mind”

What does it take to show this? What happened in Texaco, Inc. v. FTC, 336 F.2d 754

(D.C. Cir. 1964)? Why does mean that the head of the EPA needs to be

circumspect in comments about BP? Would generalized statements, such as the FCC chair

deploring advertising to children, meet the standard? What is the Doctrine of Necessity?

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Kennecott Copper Corp. v. FTC, 467 F.2d 67 (10th Cir. 1972)

Kennecott owned a small coal company, then bought a big one - Peabody

FTC investigated this as an antitrust violation A commissioner gave an interview and

explained that the agency saw Kennecott as removing itself as a competitor.

Kennecott claimed this showed bias The court said no, but warned the agency to be

more careful

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Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1966)

Who was meddling in the FTC case? What did Senator Kefauver say? Did the Senator have an alter-ego?

What did the court find? What is allowed for pending cases?

Congressional case work What is the analysis if it had been the president?

How does this change the issues? Is he the decider?

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Ex Parte Communication Review

Why do ex parte communications impinge the rights of the regulated party? Does it matter whether they come from inside

or outside the agency? How can the harm be cured?

5 U.S.C. 557(d) — placing the ex parte communication in the record and affording the parties a chance to respond to it.