Informality and formality in administrative law

1. Administrative Law
Informality and Formality
in Administrative Law

2. Introduction
 What is a legislative action?
 What is a judicial action?

3. 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.

4. 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).

5. Distinguishing Formal Procedures
from Informal Procedures
 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.

6. Distinguishing Formal Procedures
from Informal Procedures

7. 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.

8. Informal Administration in
Rulemaking and Adjudication

9. 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 14th Amendment?
 Holding:
 Yes. Reversed.
 Vote:
 7 (Moody, Harlan, Brewer, White, Peckham, McKenna, Day) – 2 (Fuller, Holmes)

10. 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.

11. Bi-Metallic Investment Co. v.
State Board of Equalization,
239 U.S. 441 (1915)

12. 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?

13. 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

14. Formal and Informal
Adjudication
# of Goldberg
Ingredients
# of Agencies Which Goldberg
ingredients omitted?
10 2 None
9 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, 8
5 1 1, 6, 7, 9, 10
4 9 2, 4, 5, 6, 7, 8
3 13 2, 3, 4, 5, 6, 7, 8
2 3 2, 3, 4, 5, 6, 7, 8, 9
1 0 N/A
0 2 1, 2, 3, 4, 5, 6, 7, 8, 9, 10

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

16. 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?

17. 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

18. 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?

19. Federal Crop Insurance
Corp. v. Merrill, 332 U.S. 380
(1947)