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Federal Practice Manual for Legal Aid Attorneys: 5.1.18 The “Special Relationship” Test

Unlike the above tests, which seek to use § 1983 to sue private parties as state actors, the special relationship test seeks to hold the government liable for the acts of a private party. Section 1983 can be used to sue a government agency for injuries caused by a non-governmental third-party if, as the result of the government’s “special relationship” with the victim, the latter has been put in a position that severely hampers his or her ability to protect themselves.

Federal Practice Manual for Legal Aid Attorneys: 5.2.3 Three Types of Due Process Claims

The Supreme Court has said that the Due Process Clause encompasses three types of claims: first, those founded on violations of “specific protections defined in the Bill of Rights” which apply to the states through the Fourteenth Amendment; second, “a substantive component that bars certain arbitrary, wrongful government action ‘regardless of the fairness of the procedures used to implement them”; and third, “a guarantee of fair procedure.”1620

Federal Practice Manual for Legal Aid Attorneys: 5.2.8 Assessing the Adequacy of the Procedures Used

With respect to litigation advancing claims of denials of procedural due process, once a plaintiff has established the existence of a liberty or property interest, the next step is to weigh the constitutional sufficiency of the procedures followed by the government.1727 Because due process is a flexible concept,1728 determining what is constitutionally “due” depends on the interests at stake at critical points in the dispute.

Federal Practice Manual for Legal Aid Attorneys: 5.2.12 Evidentiary Standards in Light of the Potential Deprivation

In subsequent cases, the Court has extended the Mathews balancing test beyond administrative hearings to gauge the sufficiency of particular procedures in court proceedings, including the standard of proof required in civil commitment and parental termination cases. Issues linger over aspects of administrative hearings, such as the evidentiary standard for terminations of need-based benefits and the tension between reliance on hearsay and the right to cross-examine adversarial witnesses.

Federal Practice Manual for Legal Aid Attorneys: 5.2.13 Hearsay and the Availability of Cross-examination

A key concern in administrative hearings has been the reliability of the evidence considered by the hearing officer. As the Mathews Court pointed out, the function of a hearing is “truthfinding.”1828 And in Goldberg, the Court stated that the right to contest the government’s case “is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.

Federal Practice Manual for Legal Aid Attorneys: 5.2.14 The Mathews Balancing Test and the Problem of Bias

The Mathews balancing test has been applied in many adjudicatory contexts, including cases involving equal access to the court system. For example, in M.L.B. v. S.L.J.1839, involving a father’s petition to terminate a mother’s parental rights to clear the way for adoption by his new spouse, the Court addressed a state’s practice of conditioning an appeal on prepayment of the cost of the trial court transcript and then denying the mother in forma pauperis status to waive that cost.

Federal Practice Manual for Legal Aid Attorneys: 5.2.15 Right to Counsel

The Goldberg Court emphasized the importance of the right to counsel to “help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the interests of the recipient.”1851 The Court stopped short, however, of requiring appointment of counsel in administrative benefits hearings.1852

Federal Practice Manual for Legal Aid Attorneys: 5.2.19 Borrowing State Law in a Section 1983 Action Brought in Federal Court

42 U.S.C. § 1988(a) requires that a federal court hearing a § 1983 claim apply state law where federal law is silent on the issue and the state law is not inconsistent with federal law. The court must first decide whether federal law is deficient or silent on the issue. If so, it must then determine whether (1) a controlling statute applies or (2) state common law applies to the claim.1878

Federal Practice Manual for Legal Aid Attorneys: 5.3.2 Suit for Judicial Review

In addition to providing an express cause of action for any person harmed by agency action, the APA instructs courts on how to review such cases.1886 Section 706(1) directs courts to “compel agency action unlawfully withheld or unreasonably delayed.”1887 Under Supreme Court precedent, a section 706(1) claim “can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.1

Federal Practice Manual for Legal Aid Attorneys: 5.3.3 Unreviewable Agency Discretion

Although the APA may provide a right to sue, agency action may escape judicial review either under section 701(a)(1), if it is exempted by statute from judicial review, or under section 701(a)(2), if it is committed to agency discretion by law. Section 701(a)(1) applies when a statute is sufficiently explicit and unequivocal to overcome the general presumption of reviewability first articulated in Abbott Laboratories v. Gardner.1890 The First Circuit, for example, held that a hospital’s challenge to the U.S.

Federal Practice Manual for Legal Aid Attorneys: 5.3.4 Timing

Should an agency decision be reviewable under section 701, a court may still decline to review it on the ground that agency action is not final, that the plaintiff failed to exhaust administrative remedies, or that the case is not ripe for review. There is considerable overlap among these doctrines.1914 Each is discussed briefly, and separately, below.