Mathews v Eldridge 1976 If you are entitled

Mathews v Eldridge (1976) If you are entitled to a hearing: When do you get it and how much process is due? 1

Post-Goldberg and Pre-Mathews n n n Goldberg expectations: n Pre-action hearing n Oral hearing Goldberg increases costs and delays in termination of welfare benefits. The court is asked to reconsider these expectations in a very different sort of proceeding. 2

What is the SS Disability Insurance Program? n n The Social Security Disability Insurance Program Information about SSI – CBPP – PDF of Charts (2019) 3

Social Security Disability Basic Procedure n n n Apply for benefits n The application process n Checklist for Online Adult Disability Application First level review approves the claim, askes for more info, or denies the claim. n Claimant can ask for reconsideration This is all done with records 4

Social Security Disability Basic Procedure - Appeals n n Most denials of legitimate claims arise because of poor documentation n The agency has limited authority to reject the treating physician's evaluation. After denial, you can ask for a hearing before an ALJ n 80% or more of all the federal ALJs The agency treats the ALJ's decision as final n At this point you can appeal to the agency internal appeals process, then to the federal courts Positive decisions are retroactive - critical due process issue n Generates the money to pay the attorney as well 5

Background of the Case n n Was plaintiff already on SSI? n Bad back and diabetes The 1972 questionnaire n Did Eldridge complete the questionnaire? n What did he indicate about his condition? n Did he provide information about his 6

The Termination Process n n Did the agency collect more information after hearing from plaintiff? What did the agency decide about his condition as outlined in the tentative determination letter? Was Eldridge given a chance to respond again before his benefits were terminated? 7 What was the agency's response?

Contrast with Goldberg n n n How is plaintiff different from the plaintiffs in Goldberg? What do we already know about his ability to deal with paperwork, or get help? What does he get if he prevails in the appeal? 8

How does the Evidence in SSI Determinations Differ from Goldberg? n n What sort of information was at issue in Goldberg? What data is used for making disability determinations? Who would be the witnesses and how is their information collected? n Is this different from the witnesses in Goldberg? The agency can and does order independent medical evaluations. 9

How does this evidentiary difference change the equities? n n n How is the value of the claimant's testimony different from that in Goldberg? n How does this change the equities of Goldberg? Does the witnesses need to be confronted in person in an oral hearing to crossexamine their testimony? Why is the administrative decisionmaker less prone to make errors in this case than in Goldberg? 10

Stopped here 11

The Accuracy of the Proceedings n n Do the parties and the amici agree on the reversal rate of the initial determination by the post-termination hearing? [58] Is this an open or closed file review, i. e. , does the claimant have one shot and if he is unsuccessful he has to start over with a new claim? n How does this make it more difficult to determine if a reversal is due to initial error by the agency? 12

Backing Down from Goldberg n n n What would the SSI disability system look like if it had to institute ALJ hearings at the beginning of the claims review process? Does this system have the same flaws as the pre-Goldberg welfare system? The court is looking for a more generalizable model for making admirative due process decisions. 13

The Mathews Factors 14

Blast from the Past - The Hand Formula n n B = PL n (P) the probability that an accident will occur n (L) the magnitude of the resulting harm, if any accident occurs n (B) the cost of precautions that would reduce the expected harm United States v. Carroll Towing Co. , 159 15 F. 2 d 169 (2 d Cir. 1947)

Cost of Errors - V n n This is an estimate of the harm done to the regulated party or plaintiff by an erroneous determination. Whethere is a pre or post-action hearing is part of the cost. n In Goldberg, the court found that the loss of benefits was so devastating that the plaintiff might not even be able to take advantage of the post-termination hearing. Another factor is whethere is irreparable harm, i. e. , the damage from the error cannot be corrected by a subsequent hearing. A high error cost is important, but not does not 16 end the inquiry.

Probability of Error - P n n n Will the required procedure reduce the probability of errors? What were the potential sources of error in Goldberg? How does the reliance on written expert reports reviewed by experts reduce the probability of errors? How does the one-shot process in Goldberg differ from the open file process in SSDI? What is the self-correction nature of the open file process? 17

The Cost of the Additional Procedures - C n n This is the cost of the additional procedures. Cost can be pure money – hiring more judges. Cost can be delay – allowing people who have lost their right to benefits to stay in the system and delaying the approval of new benefits. n The immigration judge system is years behind and creates both problems. The cost can be a risk to public and safety or even national security if it allows a tuberculosis carrier or a terrorist to stay at 18

The Mathews Factors as a Cost Benefit Analysis n n Trelationship between C and (P x V) n (C)ost of added process n (P)robability of increased accuracy n (V)alue of the benefit/cost of error. n C < P x V What is the key to convincing the court that your client should get more process? n How does this transform the notion of fairness? 19 n Is due process a good on its own in this

Apply these Factors to the Case n n n How would you apply these factors to the Matthews case? n Does plaintiff get his pre-termination hearing? What about detaining a tuberculosis carrier? A terrorist who might have information about a pending attack? 20

Matthews as the end of the Warren Court n n n How is Matthews different from the ideal of due process in Goldberg? How does it differ from the notion that every person for every crime gets the same criminal due process rights, including counsel? Would we do better in criminal law if we were forced to recognize costs and benefits? n Could the LA public defender system 21

How Far Does Matthews Go? Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004) n 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 22

De Minimis Test n n Some deprivations are too insignificant to trigger a right to a hearing n Putting a cop on paid sick leave did not trigger due process n Otherwise the courts will be in every employment action This is a key issue in 42 USC 1983 actions - how hard/often can the prison 23 guard hit the prisoner?

Alternative Remedies 24

Government Contracts n n n Due process is not the only remedy for many actions. Contracts with the government are not property or liberty subject to hearings, but are agreements governed by contract law principles. n The Court of Claims system deals with these. Government contracting law is one of the 25 most lucrative admin law specialties.

Unger v. National Residents Matching Program n n n 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 want a hearing instead of a contract action? Which is more likely to get a useful remedy? 26

Any Pre-Action Hearing Rights after Matthews? 27

The School Cases 28

What are the Special Factors in Public Schools? n n n Are public schools, on average, rich? Do they have more than enough staff? Are all students perfect citizens? How tolerant are politicians and parents of teachers who are suspected of being perverts or criminals? Is education a professional activity with professional standards? 29

Cleveland Board of Education v. Loudermill, 470 U. S. 532 (1985) n n n Firing a teacher Applying the Matthews factors, how do you argue that an informal pretermination hearing is required? n What is special about a teacher’s job that justifies a pre-termination hearing? How is this different from SSID as regards to the ability to cure problems with a post-termination hearing? 30

(1997) Has there been a substitute for a hearing? n n n Who did the guard work for? n 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? n What was the importance of the decision by an "independent body" and what was the body? Why does this being a temporary suspension 31 matter?

Goss v. Lopez, 419 U. S. 565 (1975) n n n High school student suspended from school n What is the impact of an improper suspension? n Can it be cured by later process? What due process makes sense? n A full hearing prior to suspension? What did the court require? n A chance to know the charge and rebut 32

Ingraham v. Wright, 430 U. S. 651 (1977) n n n School paddling case n How is this like discipling a dog? n What would a hearing accomplish? Do we still paddle students? n Why not? What is the impact of shifting what was once school discipline to the criminal law system? n What is the impact of a mistake? n Can it ever be corrected if the student is not rich? 33

Board of Curators of the Univ. of Missouri v. Horowitz, 435 U. S. 78 (1978) n n n Academic suspension case for a medical student The key Mathews question is how would you make the process more accurate? n Does the court or hearing officer have any applicable standards to evaluate the student’s academic performance? n How about regrading a law school exam? n Should every student with a low grade get a hearing? These problems make the courts very deferential to academic decisionmaking. 34

Academic Discipline and Due Process n n n Why does Mathews result in different standards for academic and disciplinary suspensions? How do we tell whether it is an academic or disciplinary issue? n Grading an exam? n Performance in a clinic? n What about plagiarism? Cheating? Theft? If you want a hearing for your client, how do you have to characterize the dispute? n Common sense standards v. academic 35

Bias in Administrative Hearings 36

What does a Right to an Impartial Judge Mean? n n What are sources of bias? n How is the analysis different for agencies than for Article III courts? What is separation of functions? n Investigation, prosecution, decisionmaking. n How separation reduce potential bias? n This argument led to the central panel 37

The Problem of Proof of Bias n n n 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. 38

Exception to the Requirement of Separation of Functions for the Heads of Agencies n n n 554(d) n This subsection does not apply. . . n (C) to the agency or a member or members of the body comprising the agency. The “agency” means the secretary in an agency with a single head. The “body comprising the agency” is the commissioners or board members of an 39 agency headed by a committee.

Withrow v. Larkin, 421 U. S. 35 (1975) n n State medical licensing board n Why is the doc worried that having the board run all aspects of the case will lead to bias? Why did the court find that it was not necessary to separate them? n 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? n What do you have for an appeals court to evaluate? Why would an independent ALJ be a particular 40

Disqualifying an Administrative Law Decisionmaker for Bias n n What is the United States Supreme Court standard? n “irrevocably closed mind” What happened in Texaco, Inc. v. FTC, 336 F. 2 d 754 (D. C. Cir. 1964)? n Why does this mean that the head of the EPA needed to be circumspect in comments about the BP oil spill fines? n Would generalized statements, such as the FCC chair deploring advertising to children, meet the standard? 41

Kennecott Copper Corp. v. FTC, 467 F. 2 d 67 (10 th Cir. 1972) n n n Kennecott owned a small coal company, then bought a big one - Peabody FTC investigated this as an antitrust violation n A commissioner gave an interview and explained that the agency saw Kennecott as removing itself as a competitor. n Kennecott claimed this showed bias The court said no, but warned the agency 42

Congressional Meddling Pillsbury Co. v. FTC, 354 F. 2 d 952 (5 th Cir. 1966) n n What did Senator Kefauver say? What the court was worried about: n However, when such an investigation focuses directly and substantially upon the mental decisional processes of a Commission in a case which is pending before it, Congress is no longer intervening in the agency's legislative function, but rather, in its judicial function. At this latter point, we become concerned with the right of private litigants to a fair trial and, equally important, with their right to the appearance of impartiality, which cannot be maintained unless those who exercise the judicial function are free from powerful external influences. 43

The Pillsbury Ruling n n What happens if the court disqualifies the commission because of the intimidation in the Senate hearing? The court’s solution: n Although we conclude that the course of the questioning before the Senate subcommittee in June 1955 deprived the petitioner of the kind of hearing contemplated by the Supreme Court. . . we are convinced that the Commission is not permanently disqualified to decide this case. We are convinced that the passage of time, coupled with the changes in personnel on the Commission, sufficiently 44 insulate the present members from any

What should Congress be able to do in Hearings and for Casework? n n n Congressional case work – doing things for constituents such as checking on Social Security Benefits or trying to get bank regulators to lay off. What should be allowed and what would be forbidden under Pillsbury and what you know about due process? What if the president is meddling? n What is the president tweets that he wants someone prosecuted? n That he wants an agency to go easy on a 45 friend?