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Administrative Law
University of Connecticut School of Law
Lindseth, Peter L.

Administrative Law


Fall 2014

Part One: Constitutional Constraints on Agency Action

II. Procedural Due Process

2 Principle modes by which agencies make policy:

1. rulemaking (rules that have general effect)

2. adjudication (agency takes some legal standard and applies it to a particular case, but outcome has the force of law)

The Due Process Framework

1) Trigger Issue

-are due process rights triggered in this instance?

-is this rulemaking or adjudication? (Londoner / Bi-Metallic)

-which interests are at stake?

-see if you can trigger Due Process under Property AND Liberty

(Roth / Perry analysis)

(mention Goldberg v. Kelly as the high water mark)

2) What Process is Due?

-once you determine that there is a protectable due process interest (whether liberty or property), the next question is what process is due

-go through the Matthews questions to determine whether the system/procedures afforded to the plaintiff satisfied due process requirements

2a) When is Process Due?

-does the government’s interest in immediate termination outweigh the interests of the plaintiff?

-Loudermill analysis

A. The Londoner/Bi-Metallic Distinction

Londoner v. Denver


-Court held that an agency, with delegated authority to tax property owners for street paving, was constitutionally required to hold individual hearings

-the agency taxed the property owners based on the benefit conferred on the particular piece of property

-because the agency’s decision was particularized to the situation of each property owner, àcourt held that due process requires a hearing with the right to present arguments with evidence

-a relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds



-Justice Holmes made it clear that the concept of due process simply does NOT apply to general law making

-“where a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct say in its adoption”

*the procedural safeguard of liberty and property in general lawmaking is the political process

àthe point of Londoner vs. Bi-Metallic is that due process is required when the proceeding is functionally an adjudication, as opposed to rulemaking

àthus, an administrative adjudication that deprives someone of liberty or property must provide due process

B. The Due Process Revolution

-the concept of what could be considered “liberty” and “property” under the DPC evolved into a somewhat broader form

Goldberg v. Kelly


-New York terminated welfare assistance to Mrs. Kelly because her landlord had reported that she had a live-in male friend (at a time when only single parents could qualify for welfare).

-New York provided a 2-step administrative procedure for the termination of welfare

1. an informal hearing procedure in which welfare recipient could tell her side of the story

-if state determined that person no longer qualified for welfare after hearing, the state would immediately terminate welfare

2. recipient could then seek de novo formal administrative hearing, with retroactive payments if the person’s benefits were found to have been erroneously terminated


-under traditional due process, welfare was “privilege” not a right, so no process was due

-but state didn’t make this argument

-state argued that its procedures satisfied due process

àthe Court made clear that loss of gov’t entitlement such as welfare benefit has the same impact as when gov’t deprives someone of traditional private property

àwhen welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process

*crucial factor was that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits – desperate situation

D. Entitlement Theory: “Which Interests”

Board of Regents v. Roth & Perry v. Sinderman


-Roth = assistant professor said that he would not be rehired next year

-Sinderman = full time professor who taught for ten years, but college did not have an explicit tenure system and professor was hired each year on a one-year contract

-in both cases, teachers were not rehired allegedly because they had alienated the authorities by spe

-notified him that benefits would terminate at end of the month and informed him that he could seek reconsideration of the decision

-the system mirrored that in place in Goldberg (which Court said did NOT satisfy due process)

-provided for informal determination based on exchange of written materials prior to termination of benefits

-opportunity for formal, full evidentiary hearing after termination with retroactive reinstatement


ànevertheless, Court found that in this case, the system DID satisfy due process

3 Factor Matthews v. Eldridge Test

1. One must consider the private interest that will be affected by the official action

-court found that interest in SSD was not as important as welfare in Goldberg

-welfare was the last social safety net; even temporary wrongful termination of payments in that circumstance would have disastrous consequences

-disability recipients however need not be poor; even if are poor, disability recipients could potentially qualify for other public assistance

2. One must consider the risk of erroneous deprivation of that interest under the required procedures and the likely reduction of that risk by requiring more/different procedures

-court said that in disability determinations, trial-type procedures would not be so useful; the decision would turn on routine, standard, unbiased medical reports

-however in Goldberg, disputes might involve witness credibility decisions where trial-type procedure would be useful

*i.e. whether credibility and veracity (truth) are at issue

3. One must consider the gov’ts interest in using the required procedures, as opposed to more/different procedures

-avoiding administrative burden and cost associated with an evidentiary hearing before termination of benefits

-Hamdi v. Rumsfeld (?)