Procedural Due Process - What process is due?

1. Procedural Due Process - What process is due? • Goldberg’s 2 critical requirements of due process: • Notice • Pre-deprivation opportunity to be heard Procedures determined by weighing state/P’s interests • To what extent has SCT refined it’s approach since Goldberg?

2. Mathews v. Eldridge • Eldridge received disability benefits under federal law (Social Security Act) during a period in which he was unable to work due to injury/illness. (1968-72) • After 4 years, SSA determined that Eldridge was no longer eligible for disability benefits and that his benefits were to be suspended. He was informed according to then-existing procedures. • Eldridge sued for due process violations. DCT/CTA agreed that he did not receive adequate process before disability benefits were terminated. They determined that he was entitled to an adversarial hearing under Goldberg v. Kelly. • Supreme Court reversed – existing procedures did not violate the Constitution.

3. Agency procedures during termination process in Eldridge: • Questionnaire to recipients • Agency obtains info from sources of medical treatment • Agency tentatively determines to terminate and 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

4. Mathews v. Eldridge – SCT’s 3-factor balancing test for determining process due • What is the private interest affected by the termination? • Continued disability benefits until final administrative decision • Not as significant as AFDC benefits but not insignificant (note Brennan) disagreement) • Determine importance by magnitude & length of deprivation • What is the risk of erroneous deprivation if current procedures are used and what is the utility of additional safeguards? • Current procedures are pretty good safeguards against mistakes & appropriately tailored for THESE beneficiaries who aren’t in the same position as AFDC beneficiaries • Additional procedures (oral presentation . . . ) would add little • What is the government’s interest? • Conserving fiscal/admin resources (specifically increased cost of paying out undeserved benefits while others who need aren’t getting them weighed against cost of holding more hearings)

5. Models of Due Process Hearing Requirements • Goldberg relied on an “adjudicative” model requiring a formal hearing before deprivation could occur. • Matthews moved away from that model: • “The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decision-making in all circumstances. . . . All that is necessary is that the procedures be tailored, in light of the decision to be made, to ‘the capacities and circumstances of those who are to be heard,” . . . to insure that they are given meaningful opportunity to present their case.” • SCT now approves pre-deprivation “hearings” that allow only written appearances or informal consultations if they think that such hearings fit “the capacities & circumstances of those who are to be heard” and if the overall balance of Eldridge factors warrants such procedures.

6. The Basic Requirements of Due Process – a summary: • The 2 critical requirements of due process are: • Notice – more in a minute • Pre-deprivation opportunity to be heard – with some exceptions • Oppt’y to be heard can take many forms – consultative meeting with officials, written appeal after access to evidence, oral hearing w/ informal testimony, oral hearing w/ more formal requirements • Form required depends on how the Eldridge factors balance in a particular case. • Process required increases as the balance tips in favor of the private interest (Goldberg) • Nature of existing procedures & post-deprivation procedures affects whether due process is satisfied (Eldridge)

7. Some Clean-Up Issues • Notice • Must be adequate re timing – i.e., provides enough 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?” • Pre-deprivation opportunity to be heard – emergency exception • If holding a hearing would endanger public health or is unrealistic due to some other emergency, then pre-deprivation hearing is unnecessary • Post-deprivation hearing still required • Note – if it’s possible to have even the most truncated of pre-deprivation hearings, though, it’s probably better to do so as a pragmatic matter – especially if that’s what procedures contemplate anyway

8. What is a deprivation of a protected interest? • Paul v. Davis & Ingraham v. Wright – availability of common law remedies for gov’t wrong alleviates need for pre-deprivation hearing • Availability of suit for tortious wrongdoing (negligence/libel) for gov’t action meant that gov’t officials could paddle/post stigmatic comments about individual w/out hearing • BUT it’s rarely the case that a court will hold that availability of a common law suit for damages/injunction REALLY means that a prior hearing is unnecessary if gov’t actually deprives an individual of a property interest • Example – gov’t cuts of your utility access without notice or informal hearing (i.e., contact us in writing by this date . . .) • What’s really at issue in cases like Paul & Ingraham: • Random, negligent acts & general defamatory comments simply don’t amount to a “deprivation” for purposes of due process analysis • Also – gov’t actors random failure to follow established procedures are not a “deprivation” and can be dealt with by common law remedies