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Administrative Law
University of Pennsylvania School of Law
Lee, Sophia Z.

Lee – Admin Law – Spring 2015

Procedural Review of Agency Action

Procedural Due Process

The Due Process Clause (DPC) of the 14th Amendment is one source of procedural limitations on agency action. These limitations exist simultaneously with and parallel to procedural limitations from statute (both the Administrative Procedure Act (“APA”) and any procedure commanded by an organic statute). DPC process must always be considered at the same time as APA procedure

Due Process is constitutional and therefore SUPREME. Wherever the APA commands as much or more process than the DPC, the APA is all we need to care about. BUT, if the APA commands less, Due Process must still be met. It is best to think of DPC as providing a floor of process that can be built upon but never superseded.

What Triggers Procedural Due Process

Each of these tests must be met for due process to even apply to the entity’s action:

State Action

Due Process applies only against the states. This isn’t a problem when considering federal agency action, but when an institution less than an official agency is acting with administrative authority, Due Process is all the procedural protection an individual gets.


Teachers were fired w/o hearing, sued under 14A. School was funded by state and subject to regulations applicable to most schools.

There are four factors to determine whether a private entity is sufficiently state-like to be subject to the DPC:

Public funding
Extensive regulation
Entity performs a private function
“Symbiotic relationship”

However, there are two views on the application of these factors, one broad and one narrow (the broad, liberal view seeks to apply more constitutional protection, the narrow view seeks to keep from constitutionalizing private action). Neither view is dominant; a court may apply either:

Broad view (Rendell-Baker minority) – focuses on the actor, not the individual action at question. Each factor is applied w/regard to the entity as a whole (the whole school in Rendell-Baker, not the firing decision) à “Symbiotic relationship” is a conclusion of the first three, holistically applied, not a separate factor.

Brentwood Academy v. Tennessee Secondary School Athletic Ass’n (SCOTUS 2001) – Current authority for the broad view

Narrow view (Rendell-Baker majority) – focuses on the action at issue. Each factor applies to the actor, and each is viewed independently (that is, only state action if one factor is enough on its own to make a state actor, no cumulative weighing of factors).

Adjudication not Rulemaking

Only adjudications are subject to Due Process procedural limitations, not proceedings that amount to rulemaking. This general rule comes from Londoner v. Denver and Bi-Metallic Investment Co. v. State Bd. Of Equalization.

Londoner v. Denver (SCOTUS 1908)

Due process applied because the assessment affected specific individuals. Proceeding was essentially an adjudication to determine whether individuals were within the group legally assessed.

Bi-Metallic Investment Co. v. State Bd. Of Equalization (SCOTUS 1915)

Across the board increase of property taxes did not trigger due process because it did not target individuals exceptionally affected on individual grounds.

The major question is what makes a proceeding an adjudication for due process purposes?

Adjudication (individual processes due)

Rulemaking (no due process)

Particular application

General application

Bi-polar decision (concrete, winner takes all)

Polycentric decision (tradeoffs among groups)

Retrospective, applies existing law to present and past facts

Prospective, changes existing conditions by making new rule with future applicability

Pro-Eco (p. 44) – Even rulemaking obviously targeted at individual does not trigger due process because the rule still binds everyone à General applicability

Coniston (p. 44) – Zoning decisions an example of wide-ranging, open-ended decision making that is rulemaking. P

nure system, rather a de facto tenure system of reemployment. If there was an implied contract that created an interest in renewal, that would be a property entitlement that would trigger due process rights.

Interest does not have to be explicit to be protected property interest; evidence that establishes an implied contract is enough

Kapps v. Wing (2nd Cir. 2005)

πs denied housing benefits established under state program. πs did have a protected property interest because the state statute set fixed, objective eligibility requirements, used mandatory language, and removed all discretion in awarding the benefits.

No discretion in the statute at issue; unclear how much discretion is allowed to still be a property interest

Bishop v. Wood (p. 809) – retreats from finding property interest, seems in tension with Sindermann

Meachum v. Fano (p. 810) – no liberty interest in a certain level of incarceration

Paul v. Davis (p. 810) – no liberty interest in mistaken circulation of name and likeness because no source of law entitling an untarnished reputation.

How Much Process is Due?

Once it is clear that individual process rights are triggered by an agency action, the court must determine what procedures the constitution requires.

Goldberg v. Kelly initially introduced a balancing test, that was interpreted (and substantially narrowed) in Matthews v. Eldrige. Matthews is the current doctrine, and while it leaves Goldberg as good law, it is the outlier. A case would need to be close to factually identical to Goldberg to get that level of process (oral hearing before the loss of benefits, cross-examination of witnesses, impartial adjudicator).