Amdt14.S1.5.4.2 Due Process Test in Mathews v. Eldridge

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The requirements of due process depend on the nature of the interest at stake and the weight of that interest balanced against the opposing government interests.1 The Supreme Court articulated the current standard for determining what process is required before the government may impair a protected interest in the 1976 case Mathews v. Eldridge.2 The Mathews Court explained:

Identification 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.3

Application of this standard is highly fact-dependent, as Mathews itself demonstrated. Mathews concerned termination of Social Security benefits. The Mathews Court compared the process required in the case before it with what was required in an earlier case involving termination of welfare benefits, Goldberg v. Kelly.4 The termination of welfare benefits in Goldberg, which affected “persons on the very margin of subsistence” and could have resulted in the challenger’s loss of food and shelter, had required a pre-deprivation hearing. By contrast, the Court held, the termination of Social Security benefits in Mathews required less protection because disability benefits are not based on financial need and a terminated recipient could apply for welfare if needed.5 Moreover, while the Court had found a significant risk of erroneous deprivation in Goldberg, it found that the determination of ineligibility for Social Security benefits more often turns on routine and uncomplicated evaluations of data, reducing the likelihood of error. Finally, the Court noted that the administrative burden and other societal costs involved in giving Social Security recipients a pre-termination hearing would be high. Therefore, the Court concluded that due process was satisfied by a post-termination hearing with full retroactive restoration of benefits if the claimant prevails.6

While more recent cases often cite Mathews for the test the Court announced in that case, other roughly contemporaneous cases also show changes in the Court’s approach to procedural due process in the 1970s. For instance, in cases involving debtors and installment buyers, the Court shifted its approach around the time of the Mathews decision, generally requiring less process before money or property could be seized. Earlier cases had focused upon the interests of the holders of the property in not being unjustly deprived of goods and funds in their possession and had thus leaned toward requiring pre-deprivation hearings. By contrast, newer cases look to the interests of creditors as well. In one 1974 case, the Court explained: “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.” 7

To illustrate, the 1969 case Sniadach v. Family Finance Corp. mandated pre-deprivation hearings before wages could be garnished.8 The Court appears to have limited Sniadach to instances when wages, and perhaps certain other basic necessities, are at issue and the consequences of deprivation would be severe.9 The 1972 case Fuentes v. Shevin struck down a replevin statute that authorized the seizure of household goods purchased on an installment contract upon the filing of an ex parte application and the posting of bond.10 The Court has also limited that case, holding that an appropriately structured ex parte judicial determination before seizure is sufficient to satisfy due process.11 Thus, laws authorizing sequestration, garnishment, or other seizure of property of an alleged defaulting debtor need only 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 opportunity be assured for an adversary hearing promptly after seizure to determine the merits of the controversy, with the burden of proof on the creditor.12

The Court has applied Mathews in a broad range of contexts. Applying the standard in the context of government employment, the Court considered the interest of an employee in retaining his job, the governmental interest in the expeditious removal of unsatisfactory employees, the avoidance of administrative burdens, and the risk of an erroneous termination and concluded that due process requires some minimum pre-termination notice and opportunity to respond, followed by a full post-termination hearing, including an award of back pay if the employee is successful.13 Where an adverse employment action does not rise to the level of termination of employment, the governmental interest is significant, and reasonable grounds for such action have been established separately, the Court has held that a prompt hearing held after the adverse action may be sufficient.14

In Brock v. Roadway Express, Inc., a plurality of the Court applied a similar analysis to governmental regulation of private employment, determining that an agency may order an employer to reinstate a whistleblower employee without an opportunity for a full evidentiary hearing, 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.15 The principal difference from the Mathews test was that 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.16

In other cases, the government may dispense with hearings providing even minimum procedures when establishing grounds for a deprivation of a protected interest is so pro forma or routine that the likelihood of error is very small.17 In a case dealing with state agency’s negligent 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.18

A delay in retrieving money paid to the government is unlikely to rise to the level of a violation of due process. In City of Los Angeles v. David, a citizen paid a $134.50 impoundment fee to retrieve an automobile that had been towed by the City.19 When he subsequently sought to challenge the imposition of the impoundment fee, he was unable to obtain a hearing until 27 days after his car had been towed. The Court held that the delay was reasonable, as the private interest affected—the temporary loss of the use of the money—could be compensated by the addition of an interest payment to any refund of the fee. The Court also considered the fact that a thirty-day delay was unlikely to create a risk of significant factual errors, and that shortening the delay significantly would impose an administrative burden on the city.

In another context, the Supreme Court applied the Mathews test to strike down a provision in Colorado’s Exoneration Act.20 That statute required individuals whose criminal convictions had been invalidated to prove their innocence by clear and convincing evidence in order to recoup any fines, penalties, court costs, or restitution paid to the state as a result of the conviction. The Court, noting that “[a]bsent conviction of crime, one is presumed innocent,” 21 concluded that all three considerations under Mathews “weigh[ed] decisively against Colorado’s scheme.” 22 Specifically, the Court reasoned that (1) those affected by the Colorado statute have an “obvious interest” in regaining their funds;23 (2) the burden of proving one’s innocence by clear and convincing evidence unacceptably risked erroneous deprivation of those funds;24 and (3) the state had “no countervailing interests” in withholding money to which it had “zero claim of right.” 25 As a result, the Court held that the state could not impose “anything more than minimal procedures” for the return of funds that occurred as a result of a conviction that was subsequently invalidated.26

In other areas, the balancing standard of Mathews has resulted in states having greater flexibility in determining what process is required. For instance, when a state alters previously existing law, no hearing is required if a state affords the claimant an adequate alternative remedy, such as a judicial action for damages or breach of contract.27 Thus, in considering corporal punishment in public schools, the Court held that the existence of common-law tort remedies for wrongful or excessive punishment, plus the context in which the punishment 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 unreasonable punishment), reasonably assured the probability that a child would not be punished without cause or excessively.28 The Court did not, however, inquire about the availability of judicial remedies for such violations in the state in which the case arose.29

The Court has required greater due process protection against property deprivations resulting from operation of established state procedures than those resulting from random and unauthorized acts of state employees.30 Thus, the Court has held that post-deprivation procedures would not satisfy due process if it is the state system itself that destroys a complainant’s property interest.31 Although the Court briefly entertained the theory that a negligent (i.e., non-willful) action by a state official was sufficient to invoke due process, and that a post-deprivation hearing regarding such loss was required,32 the Court subsequently overruled this holding, stating 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.” 33

In rare and extraordinary situations 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, the Court has held that the government can take action with no notice and no opportunity to defend, subject to a later full hearing.34 Examples—most of which predate Mathews—include seizure of contaminated foods or drugs or other such commodities to protect the consumer,35 collection of governmental revenues,36 and the seizure of enemy property in wartime.37 Citing national security interests, in a 1961 case the Court upheld an order issued without notice and an opportunity to be heard that excluded a short-order cook employed by a concessionaire from a Naval Gun Factory.38 While the Court was ambivalent about a right-privilege distinction, 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.39 In the 1979 case Mackey v. Montrym, the Court applied the Mathews test and upheld a Massachusetts statute that mandated suspension of a driver’s license because he refused to take a breath-analysis test upon arrest for drunk driving.40 The Court cited pre-Mathews cases involving health and safety measures for the proposition that the Court has “traditionally accorded the states great leeway in adopting summary procedures to protect public health and safety.” 41

The Court stated: “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.” Goldberg v. Kelly, 397 U.S. 254, 262–63 (1970), (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)). “The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886, 894–95 (1961). back
424 U.S. 319 (1976). back
Id. at 335. back
397 U.S. 254 (1970). back
Mathews, 424 U.S. at 340–41. back
Id. at 339–49. back
Mitchell v. W.T. Grant Co., 416 U.S. 600, 604 (1974). back
395 U.S. 337 (1969). back
N. Ga. Finishing v. Di-Chem, 419 U.S. 601, 611 n.2 (1975) (Powell, J., concurring). The majority opinion draws no such express distinction, instead emphasizing that Sniadach-Fuentes do require observance of some due process procedural guarantees. See id. at 605–06. But see Mitchell, 416 U.S. at 614 (opinion of the Court by Justice Byron White emphasizing the wages aspect of the earlier case). back
407 U.S. 67 (1972). back
Mitchell, 416 U.S. at 600; Di-Chem, 419 U.S. at 601. More recently, the Court has applied a variant of the Mathews 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). back
Mitchell, 416 U.S. at 615–18 (1974). Efforts to litigate challenges to seizures in actions involving two private parties may be thwarted by finding that the case involves no state action, but there often is sufficient participation by state officials in transferring possession of property to constitute state action and implicate due process. Compare Flagg Bros. 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). back
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. See also 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 ninety-day delay before decision resulting from post-suspension hearing). back
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). back
481 U.S. 252 (1987). back
Id. at 263. back
E.g., Dixon v. Love, 431 U.S. 105 (1977) (when suspension of driver’s license is automatic upon conviction of a certain number of offenses, no hearing is required because there can be no dispute about facts). back
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). back
538 U.S. 715 (2003). back
Nelson v. Colorado, No. 15-1256, slip op. (April 19, 2017). back
Id. at 1. back
Id. at 4. back
Id. In so concluding, the Court rejected Colorado’s argument that the money in question belonged to the State because the criminal convictions were in place at the time the funds were taken. Id. The Court reasoned that after a conviction has been reversed, the criminal defendant is presumed innocent and any funds provided to the State as a result of the conviction rightfully belong to the person who was formerly subject to the prosecution. Id. at 5 ( “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.” ). back
Id. at 5–6. In particular, the Court noted that when a defendant seeks to recoup small amounts of money under the Exoneration Act, the costs of mounting a claim and retaining a lawyer “would be prohibitive,” amounting to “no remedy at all” for any minor assessments under the Act. Id. at 9. back
Id. at 6. back
Id. back
See, e.g., Lujan v. G & G Fire Sprinklers, Inc., 523 U.S. 189 (2001) (breach of contract suit against state contractor who withheld payment to subcontractor based on state agency determination of noncompliance with Labor Code sufficient for due process purposes). back
Ingraham v. Wright, 430 U.S. 651, 680–82 (1977). back
Id. 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. back
Logan v. Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982). The Court emphasized that a post-deprivation hearing regarding harm inflicted by a state procedure 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.” 455 U.S. 422, 436–37 (1982). back
Id. at 436. back
More expressly adopting the tort remedy theory, the Court in Parratt v. Taylor, 451 U.S. 527 (1981), 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 that the claimant must initiate. Id. at 541, 543–44. It should be noted that Parratt was a property loss case, and thus may be distinguished from liberty cases, where a tort remedy, by itself, may not provide adequate process. See Ingraham, 430 U.S. at 680–82. back
Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving negligent acts by prison officials). 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. § 1983 for deprivation of rights deriving from the Constitution. Prisoners may resort to state tort law in such circumstances, but neither the Constitution nor § 1983 provides a federal remedy. back
Bd. of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972); Bell v. Burson, 402 U.S. 535, 542 (1971). See Parratt, 451 U.S. at 538–40. A person may waive his due process rights though, as with other constitutional rights, the waiver must be knowing and voluntary. D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972). See also Fuentes v. Shevin, 407 U.S. 67, 94–96 (1972). back
N. Am. 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 (1947). Cf. Mackey v. Montrym, 443 U.S. 1, 17–18 (1979). back
Phillips v. Commissioner, 283 U.S. 589, 597 (1931). back
Cent. Union Tr. Co. v. Garvan, 254 U.S. 554, 566 (1921). back
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961). back
Id. at 896–98. See Goldberg v. Kelly, 397 U.S. 254, 263 n.10 (1970); Bd. of Regents v. Roth, 408 U.S. 564, 575 (1972); Arnett v. Kennedy, 416 U.S. 134, 152 (1974) (plurality opinion), and 416 U.S. at 181–183 (White, J., concurring in part and dissenting in part). back
443 U.S. 1. back
Id. at 17–18. back