Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1980 Administrative Law: Procedural Due Process and Other Issues A. Dan Tarlock Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Administrative Law Commons Recommended Citation Tarlock, A. Dan, "Administrative Law: Procedural Due Process and Other Issues" (1980). Articles by Maurer Faculty. 2390. https://www.repository.law.indiana.edu/facpub/2390 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. ADMINISTRATIVE LAW: PROCEDURAL DUE PROCESS AND OTHER ISSUES A. DAN TARLOCK* Classic federal administrative law concerns itself with three great questions: the allocation of functions between the three constitutional branches of government and the extra-constitutional administrative agency, the procedures that an agency must follow in adjudication and rulemaking, and the proper role of the courts in reviewing administra- tive discretion.' Thus, the traditional role of the courts has been to delineate agencies' constitutional and statutory mandates, create and enforce procedural rights for private individuals enmeshed in the ad- ministrative process, and develop standards and procedures for judicial 2 review of administrative action. In the past decade, classic administrative law has been supple- mented by a "new" administrative law which expands the rights of in- dividuals to obtain judicial review of administrative action on behalf of the public generally and takes a more active role in supervising the manner in which administrative agencies exercise the discretion to reg- ulate and plan in the public interest. 3 The "new" administrative law is basically the province of the United States Court of Appeals for the District of Columbia and the United States Supreme Court since the cases which present courts with an opportunity to "reform" the process are generally litigated first in the District of Columbia. Classic administrative law issues, however, continue to dominate the work of the ten circuits, as this review of the important Seventh, Circuit administrative law cases illustrates. The administrative law work of a circuit court outside the District of Columbia basically con- sists of the demanding task of interpreting United States Supreme Court decisions imposing new procedural duties on informal adjudica- tion and the less demanding but important task of refining the statutory and constitutional procedural rights of regulated individuals and polic- * Professor of Law, Indiana University, Bloomington; LL.B, Stanford University; B.A., Stanford University. 1. See K. DAVIS, ADMINISTRATIVE LAW TREATISE § 1.5 (2d ed. 1978). 2. See Stewart, The Reformation ofAmerican Administrative Law, 88 HARV. L. REV. 1667 (1975) [hereinafter referred to as Stewart]. 3. See Stewart, supra note 2. See also W. GELLHORN & C. BYSE, ADMINISTRATIVE LAW 144-45 (6th ed. 1974). CHICAGO-KENT LAW REVIEW ing the routine exercises of discretion by administrative agencies. Dur- ing 1978-79, the Seventh Circuit rendered several important procedural due process opinions and decided some equally interesting cases on ex- haustion of administrative remedies, the retroactive effect of agency or- ders, and the availability of mandamus. These and other 1978-79 administrative law cases are discussed in this article. PROCEDURAL DUE PROCESS The principle judicial counter to the growing dependence of most citizens on the welfare state has been the recognition of procedural due process rights for public employees and benefits claimants. The United States Supreme Court has created these rights in a series of major precedents4 but no consistent theory has emerged as the Court has con- sistently, and correctly, refused to hold that citizens have an absolute entitlement to public employment or benefits5 and announce uniform due process standards. 6 It falls to the circuits and the state courts to 7 apply the delphic pronouncements of the Court. The Seventh Circuit in 1978-79 decided five important procedural due process cases involving informal agency adjudication. Three pub- lic employment cases were decided:8 one, a pathbreaking opinion, was written, withdrawn and later reissued 9 and the other two cases split on the question of the fairness of the agency procedure under review. In the two public benefits cases,' 0 the court showed more sympathy for welfare claimants than the United States Supreme Court has exhibited recently. The Seventh Circuit, in one case, refused to make a major extension of Supreme Court precedents after a careful analysis of the competing issues I and in the second case announced a significant, new 2 right to counsel rule for some welfare benefits claimants.' 4. See generally Paul v. Davis, 424 U.S. 786 (1976); Perry v. Sinderman, 408 U.S. 593 (1972); Board of Regents v. Roth, 408 U.S. 564 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970). 5. Bishop v. Wood, 426 U.S. 341 (1976). 6. See id.; Goldberg v. Kelly, 397 U.S. 254 (1970). 7. The Court's rapid twists and turns on what interests qualify for due process protection are set out in L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 10-9 (1978) [hereinafter referred to as TRIBE]. 8. Larry v. Lawler, 605 F.2d 954 (7th Cir. 1978); Winston v. United States Postal Service, 585 F.2d 198 (7th Cir. 1978); Paige v. Harris, 584 F.2d 178 (7th Cir. 1978). 9. Larry v. Lawler, 605 F.2d 954 (7th Cir. 1978). 10. Smith v. Secretary of HEW, 587 F.2d 857 (7th Cir. 1978); Wright v. Califano, 587 F.2d 345 (7th Cir. 1978). 1i. Wright v. Califano, 587 F.2d 345 (7th Cir. 1978). 12. Smith v. Secretary of HEW, 587 F.2d 857 (7th Cir. 1978). ADMINISTRATIVE LAW Public Employment Cases Procedural Due Process Rights Prior to Employment In Larry v. Lawler,'3 the Seventh Circuit wrote a procedural due process opinion which extended the United States Supreme Court's un- derstanding of what interests are entitled to procedural protection. The opinion, however, was withdrawn under the Seventh Circuit's Rule 3514 which prohibits citation of the case in any written document or oral argument filed or made in the circuit. Then, in a surprising move, the Seventh Circuit reissued and published the opinion. The decision was apparently initially withdrawn after the court had second thoughts about the precedent and the government planned to petition for an en banc hearing. Regardless of the reissuance, the initial decision to with- draw the opinion raises interesting questions about the public's right to know of important court decisions as well as questions about the merits of the decision. Larry v. Lawler15 was a suit by a rejected applicant for civil service eligibility, alleging that he had been deprived of procedural due process when he was not given a hearing to examine the evidence' 6 which formed the basis of the rejection. The district court granted summary judgment in favor of the government defendants. 17 The Seventh Cir- cuit determined that the applicant might well have been deprived of procedural due process.18 In so doing, the court found due process de- nied because "[i]n effect, Larry has been stigmatized throughout the entire federal government . [and] deprived of the opportunity to work in any capacity for any branch of the government." 19 Larry is the first case to recognize procedural rights prior to employment by the federal government 20 and is a significant extension of a recent United States Supreme Court opinion which gave increasing weight to the gov- ernment's interest in administrative efficiency in deciding what process, 13. 605 F.2d 954 (7th Cir. 1978). 14. 7TH CIR. R. 35(2)(iv). 15. 605 F.2d 954 (7th Cir. 1978). 16. The evidence which formed the basis of the rejection concerned a history of alcoholism. Id. at 959. 17. 413 F. Supp. 185 (N.D. 111.1976). 18. 605 F.2d at 962. 19. Id at 958. 20. The two cases decided since Board of Regents v. Roth, 408 U.S. 564 (1972), which have considered the issue, refused to recognize a right to procedural due process when a person is considered for public employment. Counts v. United States Postal Serv., 18 Empl. Prac. Dec. 8788, 17 Fair Empl. Prac. Cas. 1161, 1164 (N.D. Fla. 1978); Thompson v. Link, 386 F. Supp. 897, 899 (E.D. Mo. 1974). Cf. Jackson v. Nassau County Civil Serv. Comm'n, 424 F. Supp. 1162 (E.D. N.Y. 1976) (substantive due process). See generally Note, The Interests in Reputation and Employment-Paul v. Davis and Bishop v. Wood, 18 B.C. INDUS. & CoM. L. REV. 545 (1977). CHIC,4GO-KENT LAW REVIEW if any, is due.21 The narrow holding in Larry is not, however, of great significance since the Civil Service Reform Act of 197822 provides a right to an oral hearing in cases such as Larry. Nevertheless, the opin- ion is an important Seventh Circuit and national precedent for the ex- pansion of procedural due process at a time when the Supreme Court is limiting the situations in which the Constitution guarantees a right to a hearing with respect to low visibility administrative decisions. Thus, the decision to withdraw and then reissue the opinion is significant. Larry would seem to be a prime candidate for publication under the Seventh Circuit's Rule 35.23 Rule 35 provides that only opinions which meet the following criteria should be published: (i) Establish a new or change in existing rule of law; (ii) Involve an issue of continuing public interest; (iii) Criticize or question existing law; (iv) Constitute a significant and non-duplicative contribution to le- gal literature .