CRS Annotated Constitution

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When Is Process Due.—“The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss,’ . . . and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication.”235 “The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.”236 Due process application, as has been noted, depends upon the nature of the interest; the form of the due process to be applied is determined by the weight of that interest balanced against the opposing interests. The currently prevailing standard is that formulated in Mathews v. Eldridge.237 “[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”

Whereas, in Goldberg v. Kelly,238 the effect of termination of welfare benefits could be “devastating,” a matter of loss of food and shelter, thus mandating a pre–deprivation hearing, the termination of Social Security benefits would be considerably different, inasmuch as they are not based on financial need and a terminated recipient would be able to apply for welfare if need be. Moreover, the determination of ineligibility for Social Security benefits more often turns upon routine and uncomplicated evaluations of data, reducing the likelihood of error, a likelihood found significant in Goldberg. Finally, the administrative burden and other societal costs involved in giving Social Security recipients a pre–termination hearing would be high. Therefore, a post– termination hearing, with full retroactive restoration of benefits, if the claimant prevails, was found satisfactory.239


Application of the standard and other considerations brought some noteworthy changes to the process accorded debtors and installment buyers. For example, the previous cases had focused upon the interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, in requiring pre–deprivation hearings. The newer cases looked to the interests of creditors as well. “The reality is that both seller and buyer had current, real interests in the property, and the definition of property rights is a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well.”240

Thus, Sniadach v. Family Finance Corp.,241 mandating a pre– deprivation hearing before wages may be garnished, is apparently to be limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of deprivation would be severe.242 Fuentes, which extended the Sniadach principle to all “significant property interests” and thus mandated pre–deprivation hearings, has been limited, so that when government provides certain procedural protections in structuring the ex parte judicial determinations that seizure should take place and provides for a prompt and adequate post–deprivation (but pre–judgment) hearing, the due process clause is satisfied.243 To be valid, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor must require that (1) the creditor furnish adequate security to protect the debtor’s interest, (2) the creditor make a specific factual showing before a neutral officer or magistrate, not a clerk or other such functionary, of probable cause to believe that he is entitled to the relief requested, and (3) an op[p.1737]portunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor.244 Efforts to litigate challenges to seizures in actions involving two private parties can be thwarted by findings of “no state action,” but there often is sufficient participation by state officials to constitute state action and implicate due process.245

Similarly, applying the tripartite test of Mathews v. Eldridge in the context of government employment, the Court has held, albeit by a combination of divergent opinions, that the interest of the employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination require the provision of some minimum pre–termination notice and opportunity to respond, although there need not be a formal adversary hearing, followed by a full post– termination hearing, complete with all the procedures normally accorded and back pay if the employee is successful.246

Supplement: [P. 1737, add to text following n.246:]

Where the adverse action is less than termination of employment, the governmental interest is significant, and where reasonable grounds for such action have been established separately, then a prompt hearing held after the adverse action may be sufficient.19

In other cases, hearings of even minimum procedures have been dispensed with when what is to be estab[p.1738]lished is so pro forma or routine that the likelihood of error is very small.247 In the case dealing with the negligent state failure to observe a procedural deadline, the Court held that the claimant was entitled to a hearing with the agency to pass upon the merits of his claim prior to dismissal of his action.248

In Brock v. Roadway Express, Inc., a Court plurality applied similar analysis to governmental regulation of private employment, determining that a full evidentiary hearing is not required to safeguard the interests of an employer prior to the ordered reinstatement of an employee dismissed for cause, but that the employer is entitled to be informed of the substance of the employee’s charges, and to have an opportunity for informal rebuttal.249 The principal difference with the Mathews v. Eldridge test was that here the Court acknowledged two conflicting private interests to weigh in the equation: that of the employer “in controlling the makeup of its workforce” and that of the employee in not being discharged for whistleblowing. Whether the case signals a shift away from evidentiary hearing requirements in the context of regulatory adjudication will depend on future developments.250

In another respect, the balancing standard has resulted in an alteration of previously existing law, requiring neither a pre– nor post–termination hearing in some instances when the State affords the claimant an alternative remedy, such as a judicial action for damages. Thus, passing on the infliction of corporal punishment in the public schools, a practice which implicated protected liberty interests, the Court held that the existence of common–law tort remedies for wrongful or excessive administration of punishment, plus the context in which it was administered (i.e., the ability of the teacher to observe directly the infraction in question, the openness of the school environment, the visibility of the confrontation to other students and faculty, and the likelihood of parental reaction to unreasonableness in punishment), made reasonably assured the probability that a child would be not punished without cause or excessively. The Court did not inquire about the availability of judi[p.1739]cial remedies for such violation in the State in which the case arose.251

More expressly adopting the tort remedy theory, the Court in Parratt v. Taylor252 held that the loss of a prisoner’s mail–ordered goods through the negligence of prison officials constituted a deprivation of property, but that the State’s post–deprivation tort– claims procedure afforded adequate due process. When a state officer or employee acts negligently, the Court recognized, there is no way that the State can provide a pre–termination hearing; the real question, therefore, is what kind of post–deprivation hearing is sufficient. When the action complained of is the result of the unauthorized failure of agents to follow established procedures and there is no contention that the procedures themselves are inadequate, the due process clause is satisfied by the provision of a judicial remedy which the claimant must initiate.253 Five years later, however, the Court overruled Parratt, holding that “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.”254 Hence, there is no requirement for procedural due process stemming from such negligent acts and no resulting basis for suit under 42 U.S.C. Sec. 1983 for deprivation of rights deriving from the Constitution. Prisoners may resort to state tort law in such circumstances, but neither the Constitution nor Sec. 1983 provides a federal remedy.

In Logan v. Zimmerman Brush Co.,255 the Court had distinguished between property256 deprivations resulting from random and unauthorized acts of state employees and those resulting from operation of established state procedures, and presumably this distinction still holds. Post deprivation procedures would not satisfy[p.1740]due process deprivations if it is “the state system itself that destroys a complainant’s property interest.”

In “rare and extraordinary situations,”257 where summary action is necessary to prevent imminent harm to the public, and the private interest infringed is reasonably deemed to be of less importance, government can take action with no notice and no opportunity to defend, subject to a full later hearing. Examples are seizure of contaminated foods or drugs or other such commodities to protect the consumer.258 Other possibilities are the collection of governmental revenues259 and the seizure of enemy property in wartime.260 Citing national security interests, the Court upheld an order, issued without notice and an opportunity to be heard, excluding a short–order cook employed by a concessionaire from a Naval Gun Factory, but the basis of the five–to–four decision is unclear.261 On the one hand, the Court was ambivalent about a right–privilege distinction;262 on the other hand, it contrasted the limited interest of the cook—barred from the base, she was still free to work at a number of the concessionaire’s other premises—with the Government’s interest in conducting a high– security program.263

Finally, one may waive his due process rights, though as with other constitutional rights the waiver must be knowing and voluntary.264


235 Goldberg v. Kelly, 397 U.S. 254, 262–63 (1970) , (quoting Joint Anti–Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Justice Frankfurter concurring)).
236 Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 894–95 (1961) .
237 424 U.S. 319, 335 (1976) .
238 397 U.S. 254, 264 (1970) .
239 Mathews v. Eldridge, 424 U.S. 319, 339–49 (1976) .
240 Mitchell v. W.T. Grant Co., 416 U.S. 600, 604 (1975) . See also id. at 623 (Justice Powell concurring), 629 (Justices Stewart, Douglas, and Marshall dissenting). Justice White, who wrote Mitchell and included the balancing language in his dissent in Fuentes v. Shevin, 407 U.S. 67, 99–100 (1972) , did not repeat it in North Georgia Finishing v. Di–Chem, 419 U.S. 601 (1975) , but it presumably underlies the reconciliation of Fuentes and Mitchell in the latter case and the application of Di–Chem.
241 395 U.S. 337 (1969) .
242 North Georgia Finishing v. Di–Chem, 419 U.S. 601, 611 n.2 (1975) (Justice Powell concurring). The majority opinion draws no such express distinction, see id. at 605–06, rather emphasizing that Sniadach–Fuentes do require observance of some due process procedural guarantees. But see Mitchell v. W.T. Grant Co., 416 U.S. 600, 614 (1974) (opinion of the Court by Justice White emphasizing the wages aspect of the earlier case).
243 Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974) ; North Georgia Finishing v. Di–Chem, 419 U.S. 601 (1975) . Fuentes was a decision of uncertain viability from the beginning, inasmuch as it was four–to–three; argument had been heard prior to the date Justices Powell and Rehnquist joined the Court, hence neither participated in the decision. See Di–Chem, supra, 616–19 (Justice Blackmun dissenting); Mitchell, supra, 635–36 (Justice Stewart dissenting).
244 Mitchell v. W.T. Grant Co., 416 U.S. 600, 615–18 (1974) , and id. at 623 (Justice Powell concurring). And see Arnett v. Kennedy, 416 U.S. 134, 188 (1974) (Justice White concurring in part and dissenting in part). More recently, the Court has applied a variant of the Mathews v. Eldridge formula in holding that Connecticut’s prejudgment attachment statute, which “fail[ed] to provide a preattachment hearing without at least requiring a showing of some exigent circumstance,” operated to deny equal protection. Connecticut v. Doehr, 501 U.S. 1, 18 (1991) . “[T]he relevant inquiry requires, as in Mathews, first, consideration of the private interest that will be affected by the prejudgment measure; second, an examination of the risk of erroneous deprivation through the procedures under attack and the probable value of additional or alternative safeguards; and third, in contrast to Mathews, principal attention to the interest of the party seeking the prejudgment remedy, with, nonetheless, due regard for any ancillary interest the government may have in providing the procedure or forgoing the added burden of providing greater protections.” Id. at 11.
245 Compare Flagg Brothers v. Brooks, 436 U.S. 149 (1978) (no state action in warehouseman’s sale of goods for nonpayment of storage, as authorized by state law), with Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (state officials’ joint participation with private party in effecting prejudgment attachment of property); and Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (probate court was sufficiently involved with actions activating time bar in “nonclaim” statute).
246 Arnett v. Kennedy, 416 U.S. 134, 170–71 (1974) (Justice Powell concurring), and id. at 195–96 (Justice White concurring in part and dissenting in part); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (discharge of state government employee). In Barry v. Barchi, 443 U.S. 55 (1979) , the Court held that the state interest in assuring the integrity of horse racing carried on under its auspices justified an interim suspension without a hearing once it established the existence of certain facts, provided that a prompt judicial or administrative hearing would follow suspension at which the issues could be determined was assured. FDIC v. Mallen, 486 U.S. 230 (1988) (strong public interest in the integrity of the banking industry justifies suspension of indicted bank official with no pre–suspension hearing, and with 90–day delay before decision resulting from post–suspension hearing).
247 E.g., Dixon v. Love, 431 U.S. 105 (1977) (when suspension of drivers’ license is automatic upon conviction of a certain number of offenses, no hearing is required because there can be no dispute about facts).
248 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) .
249 481 U.S. 252 (1987) . Justice Marshall’s plurality opinion was joined by Justices Blackmun, Powell, and O’Connor; Chief Justice Rehnquist and Justice Scalia joined Justice White’s opinion taking a somewhat narrower view of due process requirements but supporting the plurality’s general approach. Justices Brennan and Stevens would have required confrontation and cross–examination.
250 For analysis of the case’s implications, see Rakoff, Brock v. Roadway Express, Inc., and the New Law of Regulatory Due Process, 1987 Sup. Ct. Rev. 157.
251 Ingraham v. Wright, 430 U.S. 651, 680–82 (1977) . In Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19–22 (1987) , involving cutoff of utility service for non–payment of bills, the Court rejected the argument that common–law remedies were sufficient to obviate the pre–termination hearing requirement.
252 451 U.S. 527 (1981) .
253 Id. at 541, 543–44.
254 Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving negligent acts by prison officials).
255 455 U.S. 422, 435–36 (1982) . The Court also emphasized that a post–deprivation hearing in the context of this case would be inadequate. “That is particularly true where, as here, the State’s only post–termination process comes in the form of an independent tort action. Seeking redress through a tort suit is apt to be a lengthy and speculative process, which in a situation such as this one will never make the complainant entirely whole.” Id. at 436–37.
256 Parratt was a property loss case and while Ingraham was a liberty case the holding there was not that, standing alone, a tort remedy was an adequate process. It is not clear, therefore, that a tort remedy could ever be an adequate substitute for some kind of hearing in a liberty loss situation.
257 Board of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972) ; Bell v. Burson, 402 U.S. 535, 542 (1971) . See Parratt v. Taylor, 451 U.S. 527, 538–40 (1981) .
258 North American Cold Storage Co. v. City of Chicago, 211 U.S. 306 (1908) ; Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950) . See also Fahey v. Mallonee, 332 U.S. 245 (1948) . Cf. Mackey v. Montrym, 443 U.S. 1, 17–18 (1979) .
259 Phillips v. Commissioner, 283 U.S. 589, 597 (1931) .
260 Central Union Trust Co. v. Garvan, 254 U.S. 554, 566 (1921) . See also Bowles v. Willingham, 321 U.S. 503 (1944) .
261 Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961) .
262 Id. at 894, 895, 896.
263 Id. at 896–98. See Goldberg v. Kelly, 397 U.S. 254, 263 n.10 (1970) ; Board of Regents v. Roth, 408 U.S. 564, 575 (1972) ; Arnett v. Kennedy, 416 U.S. 134, 152 (1974) (plurality opinion), and id. at 181–83 (Justice White concurring in part and dissenting in part).
264 D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972) . See also Fuentes v. Shevin, 407 U.S. 67, 94–96 (1972) .

Supplement Footnotes

19 Gilbert v. Homar, 520 U.S. 924 (1997) (no hearing required prior to suspension without pay of tenured police officer arrested and charged with a felony).
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