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.

As a general matter, procedural due process requires an opportunity for a meaningful hearing to review a deprivation of a protected interest.1 The Supreme Court has held that “some form of hearing is required before an individual is finally deprived of a property [or liberty] interest.” 2 This right is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment.” 3 Thus, the notice of hearing and the opportunity to be heard must be granted at a meaningful time and in a meaningful manner.4 However, the type of hearing required, and when the hearing must occur, depend on the specific circumstances at issue.

The Court has held that it is a violation of due process for a state to enforce a judgment against a party to a proceeding without having given him an opportunity to be heard sometime before final judgment is entered.5 However, due process does not necessarily require affording a party the opportunity to present every available defense before entry of judgment. A person may be remitted to other actions initiated by him,6 or an appeal may suffice. Accordingly, in one case the Court held that a company objecting to the entry of a judgment against it without notice and an opportunity to be heard on the issue of liability was not denied due process where the state provided the opportunity for a hearing on appeal from the judgment.7 Nor could the company show a denial of due process based on the fact that it lost the opportunity for a hearing by inadvertently pursuing the wrong procedure in the state courts.8 On the other hand, where a state appellate court reversed a trial court and entered a final judgment for the defendant, the Supreme Court held that the plaintiff was denied due process because he did not have an opportunity to introduce evidence in rebuttal to testimony that the trial court deemed immaterial but the appellate court considered material.9

In interpreting the analogous Due Process clause of the Fifth Amendment, the Court has held that due process does not require a trial-type hearing in every conceivable case of governmental impairment of private interest. For instance, the Court held that the summary exclusion on security grounds of a concessionaire’s cook at the Naval Gun Factory, without hearing or advice as to the basis for the exclusion, did not violate due process.10 In Hannah v. Larche, the Court upheld rules of procedure adopted by the Civil Rights Commission, under which state electoral officials and others accused of discrimination were not apprised of the identity of their accusers or accorded a right to confront and cross-examine witnesses or accusers testifying at such hearings.11 In upholding the procedures, the Court opined that the Commission acts solely as an investigative and fact-finding agency and makes no adjudications. It further noted that additional procedural protections have not been granted by grand juries, congressional committees, or administrative agencies conducting purely fact-finding investigations that do not determine private rights.

With respect to actions taken by administrative agencies, the Court has held that the demands of due process do not require a hearing at the initial stage, or at any particular point in the proceeding, so long as a hearing is held before a final order becomes effective.12 In Bowles v. Willingham, the Court sustained orders fixing maximum rents issued without a hearing at any stage, saying that “where Congress has provided for judicial review after the regulations or orders have been made effective it has done all that due process under the war emergency requires.” 13 But in another case where the National Labor Relations Board undertook to void an agreement between an employer and a union after consideration of charges brought against the employer by an independent complaining union, the Court held that the union that formed the agreement was entitled to notice and an opportunity to participate in the proceedings.14 Although a taxpayer must be afforded a fair opportunity for a hearing in connection with the assessment of taxes,15 collection of taxes through summary administrative proceedings is lawful if the taxpayer is later afforded a hearing.16

When the Constitution requires a hearing, it requires a fair one, held before a tribunal that meets currently prevailing standards of impartiality.17 A party must be given an opportunity not only to present evidence, but also to know the claims of the opposing party and to respond to them.18 In administrative proceedings, a variance between the initial charges and the agency’s ultimate findings will not invalidate the proceedings where the record shows that there was no misunderstanding as to the basis of the complaint.19 The admission of evidence that would be inadmissible in judicial proceedings does not vitiate the order of an administrative agency.20 An administrative hearing may consider hearsay evidence, and hearsay may constitute by itself substantial evidence in support of an agency determination, provided that there are assurances of the underlying reliability and probative value of the evidence and the claimant before the agency had the opportunity to subpoena the witnesses and cross-examine them.21 However, a provision that an administrative body shall not be controlled by rules of evidence does not justify the issuance of orders without a foundation in evidence having rational probative force. Although the Court has recognized that in some circumstances a “fair hearing” implies a right to oral argument,22 it has refused to lay down a general rule that would cover all cases.23

Footnotes

1

E.g., Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).

2

Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Parties whose rights are to be affected are entitled to be heard. Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).

3

Fuentes v. Shevin, 407 U.S. 67, 80–81 (1972). See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170–71 (1951) (Frankfurter, J., concurring).

4

Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

5

Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 476 (1918); Baker v. Baker, Eccles & Co., 242 U.S. 394, 403 (1917); Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900).

6

Lindsey v. Normet, 405 U.S. 56, 65–69 (1972). However, if a person would suffer too severe an injury “between the doing and the undoing,” he may avoid the alternative means. Stanley v. Illinois, 405 U.S. 645, 647 (1972).

7

Am. Surety Co. v. Baldwin, 287 U.S. 156 (1932).

8

Id. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 429–30, 432–33 (1982).

9

Saunders v. Shaw, 244 U.S. 317 (1917).

10

Cafeteria & Rest. Workers v. McElroy, 367 U.S. 886 (1961). In so holding, the Court considered the historical power of a commanding officer summarily to exclude civilians from the area of his command and applicable Navy regulations that confirm that authority, together with a stipulation in the contract between the restaurant concessionaire and the Naval Gun Factory forbidding employment on the premises of any person not meeting security requirements.

Manifesting a disposition to adjudicate on non-constitutional grounds employee dismissals under the Federal Loyalty Program, in Peters v. Hobby, 349 U.S. 331 (1955), the Court invalidated, as in excess of delegated authority, a Loyalty Review Board’s finding of reasonable doubt as to the petitioner’s loyalty that reopened his case on its own initiative after it had twice cleared him.

In Cole v. Young, 351 U.S. 536 (1956), also decided on the basis of statutory interpretation, the Court intimated that grave due process issues would be raised by applying to federal employees, not occupying sensitive positions, a measure which authorized, in the interest of national security, summary suspensions and unreviewable dismissals of allegedly disloyal employees by agency heads. In Service v. Dulles, 354 U.S. 363 (1957), and Vitarelli v. Seaton, 359 U.S. 535 (1959), the Court nullified dismissals for security reasons by invoking an established administrative law rule that an administrator must comply with procedures outlined in applicable agency regulations, notwithstanding that such regulations conform to more rigorous substantive and procedural standards than Congress required or that the agency action is discretionary. In both of the last cited decisions, the Court set aside dismissals of employees as security risks because the employing agency failed to conform the dismissal to its established security regulations. See Accardi v. Shaughnessy, 347 U.S. 260 (1954).

Again avoiding constitutional issues, in Greene v. McElroy, 360 U.S. 474 (1959), the Court invalidated the security clearance procedure the Defense Department required from defense contractors as being unauthorized either by law or presidential order. However, the Court suggested that it would condemn, on grounds of denial of due process, any enactment or Executive Order that sanctioned a comparable department security clearance program, under which a defense contractor’s employee could have his security clearance revoked without a hearing at which he had the right to confront and cross-examine witnesses. Justices Felix Frankfurter, John Marshall Harlan, and Charles Whittaker concurred without passing on the validity of such procedure, if authorized. Justice Tom Clark dissented. See also the dissenting opinions of Justices William O. Douglas and Hugo Black in Beard v. Stahr, 370 U.S. 41, 43 (1962), and in Williams v. Zuckert, 371 U.S. 531, 533 (1963).

11

363 U.S. 420, 493, 499 (1960). Congress subsequently amended the law to require that any person who is defamed, degraded, or incriminated by evidence or testimony presented to the Commission be afforded the opportunity to appear and be heard in executive session, with a reasonable number of additional witnesses requested by him, before the Commission can make public such evidence or testimony. Further, any such person, before the evidence or testimony is released, must be afforded an opportunity to appear publicly to state his side and to file verified statements with the Commission which it must release with any report or other document containing defaming, degrading, or incriminating evidence or testimony. Pub. L. 91-521, § 4, 84 Stat. 1357 (1970) (codified as amended at 42 U.S.C. § 1975a(e)). Cf. Jenkins v. McKeithen, 395 U.S. 411 (1969).

12

Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941).

13

321 U.S. 503, 521 (1944).

14

Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938).

15

Cent. of Ga. Ry. v. Wright, 207 U.S. 127 (1907); Lipke v. Lederer, 259 U.S. 557 (1922).

16

Phillips v. Commissioner, 283 U.S. 589 (1931). Cf. Springer v. United States, 102 U.S. 586, 593 (1881); Passavant v. United States, 148 U.S. 214 (1893). The collection of taxes is, however, very nearly a wholly unique area. See Perez v. Ledesma, 401 U.S. 82, 127 n.17 (1971) (Brennan, J., concurring in part and dissenting in part). On the limitations on private prejudgment collection, see Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969).

17

Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950). See also Amdt14.S1.5.4.5 Impartial Decision Maker.

18

Margan v. United States, 304 U.S. 1, 18–19 (1938). The Court has applied this principle with differing results to administrative hearings and subsequent review in selective service cases. Compare Gonzales v. United States, 348 U.S. 407 (1955) (conscientious objector contesting his classification before appeals board must be furnished copy of recommendation submitted by Department of Justice; only by being appraised of the arguments and conclusions upon which recommendations were based would he be enabled to present his case effectively), with United States v. Nugent, 346 U.S. 1 (1953) (in auxiliary hearing that culminated in a Justice Department report and recommendation, it is sufficient that registrant be provided with resume of adverse evidence in FBI report because the “imperative needs of mobilization and national vigilance” mandate a minimum of “litigious interruption” ), and Gonzales v. United States, 364 U.S. 59 (1960) (finding no due process violation when petitioner at departmental proceedings was not permitted to rebut statements attributed to him by his local board, because the statements were in his file and he had opportunity to rebut both before hearing officer and appeal board; likewise finding no violation where petitioner at trial was denied access to hearing officer’s notes and report, because he failed to show any need and did have Department recommendations).

19

NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 349–50 (1938).

20

W. Chem. Co. v. United States, 271 U.S. 268 (1926). See also United States v. Abilene & So. Ry., 265 U.S. 274, 288 (1924).

21

Richardson v. Perales, 402 U.S. 389 (1971).

22

Londoner v. Denver, 210 U.S. 373 (1908).

23

FCC v. WJR, 337 U.S. 265, 274–77 (1949). See also Inland Empire Council v. Millis, 325 U.S. 697, 710 (1945). See Administrative Procedure Act, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C §§ 1001–1011). Cf. Link v. Wabash R.R., 370 U.S. 626, 637, 646 (1962), in which the majority rejected Justice Black’s dissenting thesis that the dismissal with prejudice of a damage suit without notice to the client and grounded upon the dilatory tactics of his attorney, and the latter’s failure to appear at a pre-trial conference, amounted to a taking of property without due process of law.