Procedural due process – Goldberg v. Kelly

1. Procedural due process – Goldberg v. Kelly • SCT finds 2 basic requirements for due process to be satisfied re deprivation of AFDC benefits • Timely/adequate notice of termination with reasons • Effective opportunity to participate in hearing prior to termination • Failure to provide something akin to adjudicative hearing prior to termination of benefits violated due process • Note: • SCT acknowledges agency has an interest in conserving fiscal and administrative resources BUT in this instance the individual’s interest in maintaining subsistence benefits (which might mean survival) outweighs the agency’s interest • See the beginning of balancing of interests – govt’s interest vs. individual’s interest – to determine what process is due.

2. Board of Regents v. Roth -- the facts • Roth employed by WSU under a 1-year contract (9/1/68 to 6/30/69). • No tenure rights under the contract. Anyone employed four successive years under 1-year contracts acquired such rights & couldn’t be discharged except upon written charges pursuant to a hearing • Anyone employed under 1-year contract couldn’t be terminated during the term w/out review of the dismissal • Roth was notified that his contract would not be renewed. No reasons were given; no hearing was held. All of this was consistent w/ state law • Roth sued claiming that decision not to rehire him violated his due process rights • Failure to give notice/reasons of non-retention & opportunity for hearing • SCT said Roth had no liberty/property interest that triggered heightened procedural requirements under the Constitution.

3. Defining the protected interest in Roth, the importance of the interest at stake: • Goldberg established a balancing test to determine what process is due • State’s interest vs. P’s interest affected by deprivation • Should court also weigh the importance of P’s interest to determine if it arises to a protected liberty/property interest? • Answer : • Whether a protected liberty/property interest exists depends solely on the nature of the interest and not on its importance. • Importance of the interest is relevant only to the kinds of procedures that might be necessary once one gets to the question of the process due as in Goldberg

4. Roth & liberty interests • Roth gives us some idea of what “liberty” is: • Defines broadly (p. 596) • Source = US Constitution: fundamental liberty interests – freedom from bodily restraint, right to marry, right to bring up children & garden variety – right to contract, occupations of life • Realistically: most of the liberties SCT lists are fundamental rights, which are the ones most likely to trigger “liberty” finding • Roth’s interest in being rehired at WSU is NOT a liberty interest. Would Roth have a liberty interest if he was defamed? • Generalized deprivations re “reputation” don’t amount to protected liberty interests. Paul v. Davis (p. 607 n.4) • If a specific change in legal status accompanies statements it may amount to a protected due process interest. • Ex: If employer fired Roth and stated at the time to potential employers he was being fired for dishonesty or incompetence

5. Roth and property interests • A property interest is something to which a “person has a legitimate entitlement.” Not simply an abstract need or desire. • What is an entitlement? • State/P have a “mutual understanding” that P has a legitimate expectation of continued receipt based on objectively identified criteria. • Where do we look to determine when an individual has a “legitimate claim of entitlement” • State law: statutes, regulations, common law (contract especially) • Custom/practice: is there an unwritten/informal “common law” used by the agency that rises to the level of an entitlement? • Perry v. Sindermann – similar contract/statutes as Roth. But other docs suggested “mutual understanding” that P had tenure if did certain things • Faculty Guide –college “had no tenure system” but the “administration wishes the faculty member to feel that he has permanent tenure as long as his teaching services are satisfactory”

6. When seeking to define their “protected interest” must plaintiffs “take the bitter w/ the sweet?” • Roth involved a statute that created 1 year contracts and also said what process was due – no hearing or reasons need be given • If the state has created a property right can it define its contours by the procedures it gives as part of the process due? In other words, is part of the property right created, the procedures by which you can be dismissed? • Note – SCT seems to buy this argument in Arnett v. Kennedy & Bishop v. Wood (pp. 601-04) • Cleveland Bd. of Educ. v. Loudermill (p. 605): • School Board argued that Loudermill’s protected interest in his job was defined by the statute giving him a right not be dismissed “for cause” subject only to certain procedures as defined by statute. SCT rejected that notion. • Once a court finds that statutes create a protected property interest, the timing and nature of the required hearings are determined according to constitutional standards not state/federal law.

7. Indirect Beneficiaries – protectable interests? • Gov’t certified TCNC as “skilled nursing facility” to receive state/fed funds to provide nursing care to the elderly. TCNC lost that certification & elderly patients were to be transferred to other facilities. Patients claimed statutory entitlement in continued residence in home of their choice and to avoid transfer unless hearing was held. Do nursing home residents have a right to a hearing before the government revokes TCNC’s authority to provide them nursing care under Medicare statute? • SCT: Direct beneficiaries of gov’t programs have a protected interest warranting procedural protection. Indirect beneficiaries do not. • TCNC – direct beneficiary re “skilled nursing facility” status • Elderly patients – direct beneficiaries re receipt of Medicare benefits (but that is not what is at issue here) but indirect beneficiaries re TCNC’s status as approved operator

8. 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?

9. 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.

10. 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

11. 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)

12. Different models re 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.

13. The basic requirements of due process – a summary & some cleanup • The 2 critical requirements of due process are: • Notice – more in a minute • Pre-deprivation opportunity to be heard – with some exceptions • Re Notice: • 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?”

14. The basic requirements of due process – opportunity to be heard • Pre-deprivation opportunity to be heard: • Can take many forms – consultative meeting with officials, written appeal after access to evidence, oral hearing w/ informal testimony … • The 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) • 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 pre-deprivation hearing, it’s better to do so as a pragmatic matter – especially if that’s what procedures contemplate anyway

15. What is a deprivation of a protected interest? • Paul v. Davis/Ingraham v. Wright – common law remedies for gov’t wrong alleviate need for pre-deprivation hearing • Availability of to lawsuit (negligence/libel) for gov’t action meant that gov’t officials could paddle student/circulate stigmatic comments about individual w/out holding hearing before doing so • BUT courts rarely hold that availability of state lawsuit for damages/injunction REALLY means that a prior hearing is unnecessary if gov’t actually deprives an individual of a property interest • Example – if gov’t cuts off your utility access without notice or informal hearing (i.e., contact us in writing by this date . . .), 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 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