Procedural due process – returning back to what process is due

1. Procedural due process – returning back to what process is due Goldberg’s 2 critical requirements re procedures: • Notice • Pre-deprivation opportunity to be heard procedures required determined by weighing state/P’s interests To what extent has SCT refined it’s approach since Goldberg? Question arises again in Mathews v. Eldridge, which involves an individual who received disability benefits during a period when he was unable to work. After 4 years, SSA notifies him that he is no longer eligible for such benefits and suspends them according to then existing procedures.

2. Agency procedures during termination process in Eldridge: • Questionnaire to recipients re status of disability • Agency obtains info from sources of medical treatment & others • Agency tentatively determines to terminate; informs beneficiary by letter • Beneficiary is given reasons, summary of the evidence, opportunity to review file/to respond in writing/submit additional evidence • Agency makes final determination which is reviewed by SSA examiner • SSA notifies beneficiary in writing of termination – gives reasons & informs beneficiary of right to seek de novo reconsideration by the state agency • After state agency reconsideration, beneficiary is notified if benefits remain terminated • Beneficiary then has a right to a non-adversarial evidentiary hearing without counsel before an SSA ALJ • If that hearing results in an adverse decision to the beneficiary, he may request discretionary review by the SSA Appeals council and, finally, judicial review

3. Mathews v. Eldridge – SCT’s 3-factor balancing test for determining the process due • What is the private interest affected by the termination? • What is the risk of erroneous deprivation if current procedures are used and what is the utility of additional safeguards? • What is the government’s interest? • How does Eldridge’s due process claim fare under this approach?

4. The basic requirements of due process – a summary & some cleanup • Two critical requirements of due process: • Notice • Pre-deprivation opportunity to be heard – with some exceptions Re Notice: • Timing must be adequate – i.e., provide time for P to prepare opportunity to be heard – case-by-case determination re adequacy • Must be adequate re to whom directed – objective test • Is the method of notification “reasonably calculated under all the circumstances to provide actual notice to the person(s) whose rights are being adjudicated? • Ex: certified mail to last known address & publication

5. Basic req’mts of due process – opportunity to be heard • Goldberg relied on an “adjudicative” model requiring a formal hearing before deprivation could occur. • Mathewsmoved away from that – noting that pre-deprivation hearings need only be tailored to the capacities of those wanting to be heard • Such hearings can take many forms – consultative meeting with officials, written appeal after access to evidence, oral hearings … • The form required depends on how the Eldridge factors balancein a particular case • Process required increases as the balance tips in favor of the private interest (Goldberg) • Court also looks to existing pre-deprivation (and post-deprivation) procedures to determine whether they are good enough &/or whether more will help Ps (Eldridge)

6. Basic req’mts of due process – emergency exception • If holding a hearing would endanger public health or is unrealistic due to some other emergency, then pre-deprivation hearing is unnecessary • Example – seizing tainted meat • Note - post-deprivation hearing still required • If it’s possible to have even the most truncated pre-deprivation hearing, it’s better to do so as a pragmatic matter – especially if that’s what non-emergency procedures contemplate • Especially true after Eldridge and its intimation that even the most minimal pre-deprivation “consultation” might satisfy due process

7. What is a deprivation of a protected interest? • Paul v. Davis/Ingraham v. Wright – SCT seems to hold that common law remedies for gov’t wrong obviate need for hearing • Availability of libel/negligence lawsuit as a remedy meant gov’t officials could act w/out holding hearing • BUT courts RARELY hold that P’s ability to sue for damages/injunction REALLY means that a prior hearing is unnecessary if gov’t actually deprives an individual of a property interest • Ex: if gov’t cuts off your utilities without notice/informal hearing, the fact that you might have a common law action against them doesn’t mean that this wasn’t a deprivation requiring a hearing • What’s really at issue in cases like Paul & Ingraham: • Random, negligent acts, general defamatory comments or random failures to follow procedure simply don’t amount to a “deprivation” for purposes of due process analysis

8. Due process & the right to an impartial decision maker in adjudications • Goldberg v. Kelly: • An impartial decision maker is an “essential” element of due process • How can that “impartiality” be compromised? • Self-interest • Pre-judgment • Combination of Functions(?)

9. Due process, impartiality & self-Interest • An adjudicator with a personalinterest in the outcome of a decision is not impartial • Key Q: when is the adjudicator’s personal interest sufficient to compromise their impartiality • Tumey v. Ohio: Mayors sat as judges in criminal prosecutions. Ordinance allowed them to assess fines & keep costs as compensation. • SCT – mayor/judges’ direct, pecuniary interest in outcome of cases violates due process – temptation to rule in own interest is too great • Ward v. Monroeville: Statute allowed mayors to sit as judges. Fines assessed went into villages’ coffers. • SCT – Although mayors don’t have direct financial interest, their financial interest in city’s well-being may create “temptation.” Self-interest violates due process

10. Impartiality & self-interest: Gibson v. Berryhill • Alabama law amended or repealed existing law (§§210/211) so that corp’s practicing optometry were no longer allowed to do so. • AOA (composed entirely of non-corp optometrists) filed charges with Ala. Bd. Of Opt. against optometrists employed by Lee Optical. • Charges alleged that optometrists engaged in unprofessional conduct by accepting “unlawful” employment with corp. Sought revocation of accused optometrists’ licenses. • Board then filed own suit in federal court (with similar allegations) seeking injunction preventing Lee Optical from practicing optometry • After winning in DCT, Board proceeded with AOA charges – optometrists countered with lawsuit claiming that the statutory procedures violated due process. • SCT found due process violated due to lack of impartiality

11. Gibson v. Berryhill – why was the board not impartial? • What factors are important to the SCT’s finding that the Board’s action violates due process? • What if any of those factors change (especially the percentage of corp/independent optometrists in various roles)? • Does that change the impartiality analysis based on Tumey/Ward that the SCT seems to rely on?

12. Due process – impartiality & prejudgment • Standard for recusal of official due to prejudgment – Cinderella Finishing Schools (p. 641): • Agency member must recuse themselves when a disinterested observer would conclude that the member has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it. • Example: SEC order permanently barring petitioner from engaging in securities transactions was set aside due to pre-judgment. SEC commissioner made a public speech while the particular proceedings were pending before the commission that: • identified petitioner • claimed that he could “appropriately be termed a violator” and • claimed that “his bar from association with other broker dealers should be made permanent.”

13. Due process, impartiality & prejudgment – Cinderella Finishing Schools (a less obvious case) • FTC filed complaint charging CFS with false/deceptive ads. ALJ held hearing & recommended dismissal of charges. Counsel for FTC appealed to full Commission. • Pending that appeal, FTC Cmm’r Dixon gave a speech to a newspaper ass’n where he said: “How about the ethics on the business side of the paper? What standards are maintained on advertising acceptance? . . . What about carrying ads that offer college educations in five weeks, fortunes by raising mushrooms in the basement, getting rid of pimples with a magic lotion, or becoming an airline’s hostess by attending charm school?. . . Granted that newspapers are not in the advertising policing business, their advertising managers are savvy enough to smell deception when the odor is strong enough.”

14. Cinderella Finishing Schools (a less obvious case) - continued • D.C. Cir. found prejudgment. Does this fall on the wrong side of the standard? • Is it as bad as the SEC example in the earlier slide? • What does the court’s statement at p. 640 n.10 regarding the “reasonable inferences” a disinterested observer could draw from Dixon’s remarks add to the mix here?

15. Due process – prejudgment (a wrap-up) • “Pre-judgment” cases are decided based on extrinsic evidence – i.e., an agency official’s statements • LOTS of agency officials make LOTS of statements:(1) to Congress, (2) in newspaper interviews, (3) in speeches, (4) in scholarly/other writings or (5) as legislators before becoming gov’t officials • These statements often seem to run counter to any given litigants’ interests • Generally, courts are reluctant to overturn a proceeding due to lack of an impartial decision-maker unless there is clear evidence that pre-judgment has occurred • So, CCF Schools uses the right standard. But its application in the case is a closer call than it seems from the decision.

16. Due process – prejudgment & rulemaking (a comparison w/ adjudication) • Standard: • An agency official engaged in rulemaking is subject to recusal for bias only when there is “clear & convincing evidenceshowing that she has an unalterably closed mind on matters critical to the disposition of the proceeding.” • This standard is harder to meet than the one for adjudications. Why? Neutral, detached adjudicator isn’t appropriate for rulemakings where administrators must “translate broad statutory commands into concrete social policies. If an agency official is to be effective he must engage in debate and discussion about the policy matters before him.... [I]nformal contacts between agencies and the public are the ‘bread & butter’ of the process of administration.” Assn of Nat’l Advertisers v. FTC (Casebook, pp. 466)