This post is the first in a series that explores how the federal judiciary has referenced the Administrative Conference and its body of work in judicial opinions.  The focus of this post is the U.S. Supreme Court; future posts will examine the D.C. Circuit and other Courts of Appeals. (*Updated 5/20/13 to include City of Arlington, Tex. v. FCC, 569 U.S. (2013).*)

• In the last fifty years, Supreme Court Justices cited Administrative Conference work eight times in opinions of the Court, four times in dissenting opinions, and once in an opinion concurring in part and dissenting in part.
• Between 1963 and 2008, Conference works and recommendations were referenced in two opinions each by Justices Marshall and Rehnquist, and in one opinion each by Chief Justice Roberts and Justices Alito, Brennan, Blackmun, O’Connor, Powell, Stewart, and White.
• ACUS works have never been cited in Supreme Court opinions by our three Supreme Court Senior Fellows: Justices Stephen Breyer, Elana Kagan and Antonin Scalia.  Justice Scalia is also a former Chairman of the Conference.
• In May 2013, Chief Justice Roberts cited to the Administrative Conference’s 2012 Sourcebook of United States Executive Agencies, by David E. Lewis and Jennifer L. Selin in his dissenting opinion in City of Arlington, Tex. v. FCC, 569 U.S. __ (2013) (Roberts, C.J., dissent).
  • Justice Stephen Breyer’s concurrence in the same opinion cited to a law review article, Controlling Chevron-Based Delegations, prepared by the current Conference Chairman Paul Verkuil and the late Professor Ernest Gellhorn and published at 20 Cardozo L. Rev. 989 (1999). City of Arlington, Tex. v. FCC, 569 U.S. __ (2013) (Breyer, J., concurring in part).

Of special interest are two cases citing the Conference’s work during an important era in the country’s history, notable for the rapid expansion in procedural legal protections for private interests and heralded by the Supreme Court’s 1970 decision in Goldberg v. Kelly.[1]  This seminal decision rejected the historic “right-privilege” distinction in unambiguously extending due process protections to the “privilege” of government welfare benefits.  In the years that followed, the Court issued numerous opinions exploring whether particular interests in growing government “largess” (i.e., benefits, services, contracts, franchises, and licenses) merited due process protection.[2]  In two dissenting opinions issued during this era, Justice Thurgood Marshall—a renowned civil rights advocate who argued Brown v. Board of Education[3] as Chief Counsel for the NAACP, prior to his tenure as Solicitor General of the United States and ascension to the bench—relied on Conference work in making the case for due process protections for certain property and liberty interests.

In the 1973 case Arnett v. Kennedy the Supreme Court heard a due process challenge brought by a non-probationary federal employee after his removal from the competitive civil service without a pre-termination hearing.[4]  The Administrative Conference had previously examined this specific issue, in its study on  Procedures for Adverse Actions on Federal Employees, prepared for the Conference by Professor Richard A. Merrill and in Recommendation 72-8, Adverse Actions Against Federal Employees.  The underlying report (“the Merrill Report”) offered an in-depth and data-driven examination of the “adverse action process” in action, based on a survey of government agencies, as well as a review of agency “adverse action procedures.”  The recommendation urged agencies to provide their employees with a prompt evidentiary hearing before a proposed adverse action takes effect. 

The Court held that a pre-termination hearing was not required for such adverse actions, but was highly divided.  The Justices issued five separate opinions.  Three of those opinions, including the judgment of the Court, referenced empirical findings in the Merrill Report regarding agency termination hearings.[5]  Throughout his dissent, Justice Marshall relied on the "exhaustive study by the United States Administrative Conference on the problem of agency dismissals" as support for the proposition that the interests of a public employee in a secure Government job are as weighty as other interests the Court found to require at least rudimentary due process protections.[6]  Remarkably, Justice Marshall referenced the Merrill Report in fourteen separate footnotes, and twice noted the Conference’s Recommendation 72-8.[7]  He cited the Merrill Report’s finding that almost a fourth of all appeals from adverse agency actions in this area result in reversal as evidence of the "not insignificant" possibility of error, which he felt justified due process protections in the form of the pre-termination hearing recommended by the Conference.[8]

In the 1979 case of Greenholtz v. Inmates of Neb. Penal & Correctional Complex the Supreme Court heard a challenge by state inmates alleging that Nebraska statutes and parole board procedures denied them due process.[9]  The majority held that the mere statutory provision of the possibility of parole does not confer a liberty interest sufficient to warrant due process protections, but that some due process protections were appropriate in Nebraska, where the state parole statute also created an expectancy of release.  The Court found that the protections of that interest provided for by Nebraska law met constitutional muster.  

Justice Marshall dissented, arguing that all prisoners potentially eligible for parole have a liberty interest of which they may not be deprived without due process, regardless of the particular statutory language that implements the parole system.  In his opinion, Justice Marshall noted the 1973 testimony of Antonin Scalia—then Chairman of the Administrative Conference—advising Congress that courts in sentencing anticipate “that a prisoner who demonstrates his desire for rehabilitation will not serve the maximum term or anything approaching the maximum.”[10]  The Conference had previously articulated recommendations for reform of the Procedures of the United States Board of Parole in Recommendation 72-3, while Justice Scalia was Chairman and which were largely implemented by Congress in Pub. L. 94-233 and in subsequent agency regulations.

Up next, use of Conference works in opinions of the U.S. Court of Appeals for the D.C. Circuit…

 

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