In the previous lesson, we learned the difference between legislative rulemaking and non-legislative guidance. We also learned that, sometimes, it’s hard to determine whether an agency action is rulemaking or a mere interpretation or statement of policy that doesn’t bind regulated entities. Now, we are going to learn how to differentiate between agency actions that are legislative rulemaking and agency actions that are adjudicative (quasi-judicial). Before we learn about the differences between rulemaking and adjudication, we will learn what adjudication is, as well as the APA’s requirements for adjudication procedures.

Introduction to Adjudication

According to the APA, when an agency’s final disposition is not a rulemaking, it is an “order.” APA Section 551(6) defines order as “a final disposition [...] of an agency matter other than rulemaking but including licensing.” This definition divides agency’s final decisions into two categories: quasi-legislative rules, and quasi-judicial orders. Of course, agencies do other things, including investigating and information gathering, and issuing guidance. But agencies make binding decisions by promulgating rules and issuing orders.

APA Section 551(7) defines “adjudication” as the “agency process for the formulation of an order.” Adjudications cover a wide range of activity. Some adjudication proceedings look a lot like courtroom proceedings with agency attorneys who prosecute people that violate laws seeking agency orders conferring penalties before administrative law judges (ALJs). Other agency adjudications do not look like the ones that happen in courtrooms. When people qualify for social security or disability support, an agency order is made without a hearing, attorneys, or judges. In short, agency adjudications follow many different procedures that are either described in the agency’s enabling statutes, or codified by agencies themselves in their regulations.

In many instances, agency adjudications are routine, and they occur in great numbers. When agencies evaluate Mediare reimbursement claims, student loan awards, whether an employer’s action is an unfair labor practice, or whether an industrial plant exceeded a pollution threshold, agencies they work to achieve “mass justice.” They administer a huge number of claims every year, and work to do so as efficiently as possible.

Formal or Informal Adjudication?

Like rulemaking, the APA recognizes procedures for both formal and informal adjudication. The difference between “formal” and “informal” adjudication isn’t as cut and dry as it is in the rulemaking context. Some informal adjudication is quite “formal” (highly proceduralized). Procedures can be added through enabling statutes passed by Congress or procedural rules made by the agencies themselves. Rather than differentiating between formal and informal adjudication, some administrative law guides refer to APA adjudication and non-APA adjudication. APA adjudication is agency adjudication that follows APA procedural requirements in APA Section 554, 556, and 557. (Remember, courts have interpreted APA Section 553 to trigger 556 and 557 requirements when enabling statutes mandate rules be made “on the record” and “after opportunity for an agency hearing.”) 

Collectively, the requirements in 554, 556, and 557 require procedures like those in a court trial without a jury, and with an Administrative Law Judge (ALJ) presiding. When formal adjudication is not triggered by the statutory language ("on the record" "after opportunity for a hearing") or otherwise required by statute or regulation, the minimal procedural requirements in APA Section 555 apply to the proceeding. APA Section 555 applies to all agency proceedings and provides:

-The right to be represented by counsel in any proceeding or, another qualified representative if allowed by the agency

-The right to appear before an agency “so far as the orderly conduct of public business permits”

-The right to have an agency matter concluded within a “reasonable time”

-The right to obtain copies of materials required to be submitted to an agency

-The right to utilize agency subpoena power when relevant, so long as the scope of evidence sought is reasonable

-The right to receive prompt notice when an agency denies your request, accompanied by a brief statement of the grounds for denial

Agencies often supplement these minimal APA Section 555 procedural requirements with additional procedures through regulations. Additionally, Congress sometimes imposes procedures for specific types of enforcement and other adjudicative actions through statutes. 

Choice of Procedures: Rulemaking or Adjudication

Sometimes, in adjudicative undertakings, agencies make decisions that set precedents for non-parties without going through the rulemaking process. Some administrative law scholars call these types of actions “nonlegislative rules.” This name is appropriate because, while these decisions do not technically bind third parties or undergo the legislative rulemaking process described in APA Section 553, they are “rules” according to APA Section 551(4). They are agency statements “of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describ[e] the organization, procedure, or practice requirements of an agency.” 

If an agency has the authority to engage in both rulemaking and adjudication, it gets to determine which procedures it will use to make decisions. The agency can make rules that have future effect and bind large groups, or they can make decisions on a case-by-case basis that primarily affect only the parties involved. Each choice, rulemaking and adjudication, has its pros and cons:

Rulemaking provides for public participation and puts all regulated entities on notice about what is permissible by law. Rulemaking is also efficient because it binds all stakeholders to the same, uniform obligations. When an agency makes a rule, that rule settles debate between competitors about what is allowed and what is prohibited. Abright-line policy brings clarity and conclusiveness, avoiding a series of ad hoc decisions through drawn out, punitive adjudicative proceedings.

Adjudication, on the other hand, allows agencies to be more flexible and to resolve issues and questions that the agency did not foresee. Sometimes, agencies have to solve problems they did not contemplate in rulemaking processes. Adjudication also avoids rigid rules in situations where case-by-case evaluations are a better fit than a hard and fast rule.

The debate is complex, and in a few cases, regulated parties have tried to push courts to tell agencies that they must use one form of decisionmaking or another. As we see in National Labor Relations Board (“NLRB”) v. Bell Aerospace Co., courts generally defer to agencies’ choice of rulemaking or adjudication so long as Congress authorizes the agencies to utilize those decisionmaking methods.

National Labor Relations Board v. Bell Aerospace Co. 

416 U.S. 267 (1974)

MR. JUSTICE POWELL delivered the opinion of the Court.

This case presents two questions: first, whether the National Labor Relations Board properly determined that all “managerial employees,” except those whose participation in a labor organization would create a conflict of interest with their job responsibilities, are covered by the National Labor Relations Act; and second, whether the Board must proceed by rulemaking rather than by adjudication in determining whether certain buyers are “managerial employees.” We answer both questions in the negative.

I

Respondent Bell Aerospace Co., Division of Textron, Inc. (company), operates a plant in Wheatfield, New York, where it is engaged in research and development in the design and fabrication of aerospace products. On July 30, 1970, Amalgamated Local No. 1286 of the United Automobile, Aerospace and Agricultural Implement Workers of America (union) petitioned the National Labor Relations Board (Board) [to unionize] the 25 buyers in the purchasing and procurement department at the company’s plant. The company opposed the petition on the ground that the buyers were “managerial employees” and thus were not covered by the Act [...]

III

The Court of Appeals also held that, although the Board was not precluded from determining that buyers or some types of buyers were not “managerial employees,” it could do so only by invoking its rulemaking procedures under § 6 of the Act, 29 U.S.C. § 156. We disagree.

At the outset, the precise nature of the present issue must be noted. The question is not whether the Board should have resorted to rulemaking, or in fact improperly promulgated a “rule,” when in the context of the prior representation proceeding it held that the Act covers all “managerial employees” except those meeting the new “conflict of interest in labor relations” touchstone. Our conclusion that the Board applied the wrong legal standard makes consideration of that issue unnecessary. Rather, the present question is whether on remand the Board must invoke its rulemaking procedures if it determines, in light of our opinion, that these buyers are not “managerial employees” under the Act. The Court of Appeals thought that rulemaking was required because any Board finding that the company’s buyers are not “managerial” would be contrary to its prior decisions and would presumably be in the nature of a general rule designed “to fit all cases at all times.”

A similar issue was presented to this Court in its second decision in SEC v. Chenery Corp., 332 U. S. 194 (1947) (Chenery II). There, the respondent corporation argued that in an adjudicative proceeding the Commission could not apply a general standard that it had formulated for the first time in that proceeding. Rather, the Commission was required to resort instead to its rulemaking procedures if it desired to promulgate a new standard that would govern future conduct. In rejecting this contention, the Court [...] concluded that “the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”

And in NLRB v. Wyman-Gordon Co., 394 U. S. 759 (1969), the Court upheld a Board order enforcing a [...] requirement first promulgated in an earlier adjudicative proceeding [recognizing] that “[a]djudicated cases may and do . . . serve as vehicles for the formulation of agency policies, which are applied and announced therein,” and that such cases “generally provide a guide to action that the agency may be expected to take in future cases” [...] 

The views expressed in Chenery II and Wyman-Gordon make plain that the Board is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Board’s discretion. Although there may be situations where the Board’s reliance on adjudication would amount to an abuse of discretion or a violation of the Act, nothing in the present case would justify such a conclusion. Indeed, there is ample indication that adjudication is especially appropriate in the instant context. As the Court of Appeals noted, “[t]here must be tens of thousands of manufacturing, wholesale and retail units which employ buyers, and hundreds of thousands of the latter.” 475 F. 2d, at 496. Moreover, duties of buyers vary widely depending on the company or industry. It is doubtful whether any generalized standard could be framed which would have more than marginal utility. The Board thus has reason to proceed with caution, developing its standards in a case-by-case manner with attention to the specific character of the buyers’ authority and duties in each company. The Board’s judgment that adjudication best serves this purpose is entitled to great weight.

The possible reliance of industry on the Board’s past decisions with respect to buyers does not require a different result. It has not been shown that the adverse consequences ensuing from such reliance are so substantial that the Board should be precluded from reconsidering the issue in an adjudicative proceeding. Furthermore, this is not a case in which some new liability is sought to be imposed on individuals for past actions which were taken in good-faith reliance on Board pronouncements. Nor are fines or damages involved here. In any event, concern about such consequences is largely speculative, for the Board has not yet finally determined whether these buyers are “managerial.”

It is true, of course, that rulemaking would provide the Board with a forum for soliciting the informed views of those affected in industry and labor before embarking on a new course. But surely the Board has discretion to decide that the adjudicative procedures in this case may also produce the relevant information necessary to mature and fair consideration of the issues. Those most immediately affected, the buyers and the company in the particular case, are accorded a full opportunity to be heard before the Board makes its determination.

The judgment of the Court of Appeals is therefore affirmed in part and reversed in part, and the cause remanded to that court with directions to remand to the Board for further proceedings in conformity with this opinion.

If you are interested in an updated discussion of the NLRB’s choices between rulemaking and adjudication processes, here is an essay from 2015 discussing a few rules that NLRB promulgated through the APA Section 553 rulemaking process discussing the rationales and pros and cons of adjudication versus rulemaking in an NLRB context: Charlotte Garden, Towards Politically Stable Lawmaking: Rulemaking vs. Adjudication.

Beyond the procedural requirements for agency adjudication that we learned about in Class 11, there are constitutional requirements that agencies must satisfy. The Due Process Clause of the Fifth Amendment (and the 14th Amendment in state agencies) requires that agencies, as state actors, provide people notice and the opportunity to be heard by a neutral decisionmaking before being denied life, liberty, or property.

In LEDP, you learned about substantive due process, which protects certain fundamental rights from government interference. In administrative law (PI), we will discuss procedural due process, which requires that notice and hearing procedures must be available to those being denied life, liberty, or property by the government. A person adversely affected by an agency action could argue that they are being deprived of life, liberty, or property without due process. When a person sues an agency for violating their procedural due process, the court will determine:

1) Whether the agency action is one that triggers procedural due process

2) Whether the person’s property, liberty (and in very rare cases, life) is at stake due to the agency’s action

3) Whether the due process clause obligates the agency to use more procedures than it used when it took the action that deprived the person of their interest

4) If more due process is needed, the court will have to determine how much due process is required to satisfy the constitutional due process requirement

Procedural due process issues usually arise in administrative law contexts because the  government usually deprives people of liberty and property without adequate procedures through agency actions. Courts follow codes of civil and criminal procedure that ensure procedural due process is satisfied, but when agencies are not obligated to follow formal adjudication procedures described in APA Section 556 and 557, agencies sometimes deprive people of their constitutionally guaranteed procedural due process.

When Is Procedural Due Process Required?

In Class 12, we will learn how to determine whether an agency action triggers procedural due process. Before we evaluate how much due process people are owed, we need to determine whether due process is even required. Over 100 years ago, the Supreme Court determined that procedural due process is only required when the government is engaged in individualized decisionmaking. In the famous Londoner and Bi-Metallic cases, the Court differentiated between individualized deprivations of property  or liberty, which require due process, and policy-based deprivations affecting a class of individuals, which do not require due process.

Londoner v. Denver

210 U.S. 373 (1908)

MR. JUSTICE MOODY delivered the opinion of the court.

The plaintiffs in error began this proceeding in a state court of Colorado to relieve lands owned by them from an assessment of a tax for the cost of paving a street upon which the lands abutted. The relief sought was granted by the trial court, but its action was reversed by the Supreme Court of the State, which ordered judgment for the defendants. The case is here on writ of error. The Supreme Court held that the tax was assessed in conformity with the constitution and laws of the State, and its decision on that question is conclusive [...]

The tax complained of was assessed under the provisions of the charter of the city of Denver, which confers upon the city the power to make local improvements and to assess the cost upon property specially benefited [...] 

It appears from the charter that, in the execution of the power to make local improvements and assess the cost upon the property specially benefited, the main steps to be taken by the city authorities are plainly marked and separated: 1. The board of public works must transmit to the city council a resolution ordering the work to be done and the form of an ordinance authorizing it and creating an assessment district. This it can do only upon certain conditions, one of which is that there shall first be filed a petition asking the improvement, signed by the owners of the majority of the frontage to be assessed. 2. The passage of that ordinance by the city council, which is given authority to determine conclusively whether the action of the board was duly taken. 3. The assessment of the cost upon the landowners after due notice and opportunity for hearing.

[The landowner raises] the question whether the assessment was made without notice and opportunity for hearing to those affected by it, thereby denying to them due process of law. The trial court found as a fact that no opportunity for hearing was afforded, and the Supreme Court did not disturb this finding. The record discloses what was actually done, and there seems to be no dispute about it. After the improvement was completed the board of public works, in compliance with § 29 of the charter, certified to the city clerk a statement of the cost, and an apportionment of it to the lots of land to be assessed. Thereupon the city clerk, in compliance with § 30, published a notice stating, inter alia, that the written complaints or objections of the owners, if filed within thirty days, would be “heard and determined by the city council before the passage of any ordinance assessing the cost.” Those interested, therefore, were informed that if they reduced their complaints and objections to writing, and filed them within thirty days, those complaints and objections would be heard, and would be heard before any assessment was made. The notice given in this case, although following the words of the statute, did not fix the time for hearing, and apparently there were no stated sittings of the council acting as a board of equalization. But the notice purported only to fix the time for filing the complaints and objections, and to inform those who should file them that they would be heard before action. The statute expressly required no other notice, but it was sustained in the court below on the authority of Paulsen v. Portland, 149 U.S. 30, because there was an implied power in the city council to give notice of the time for hearing. We think that the court rightly conceived the meaning of that case and that the statute could be sustained only upon the theory drawn from it. Resting upon the assurance that they would be heard, the plaintiffs in error filed within the thirty days the following paper:

“Denver, Colorado, January 13, 1900.

“To the Honorable Board of Public Works and the Honorable Mayor and City Council of the City of Denver:

“The undersigned, by Joshua Grozier, their attorney, do hereby most earnestly and strenuously protest and object to the passage of the contemplated or any assessing ordinance against the property in Eighth Avenue Paving District No. 1, so called, for each of the following reasons, to wit: 

“That said assessment and all and each of the proceedings leading up to the same were and are illegal, voidable and void, and the attempted assessment if made will be void and uncollectible [...] Wherefore, because of the foregoing and numerous other good and sufficient reasons, the undersigned object and protest against the passage of the said proposed assessing ordinance.”

This certainly was a complaint against and objection to the proposed assessment. Instead of affording the plaintiffs in error an opportunity to be heard upon its allegations, the city council, without notice to them, met as a board of equalization, not in a stated but in a specially called session, and, without any hearing, adopted the following resolution:

“Whereas, complaints have been filed by the various persons and firms as the owners of real estate included within the Eighth Avenue Paving District No. 1, of the city of Denver against the proposed assessments on said property for the cost of said paving, the names and description of the real estate respectively owned by such persons being more particularly described in the various complaints filed with the city clerk; and

“Whereas, no complaint or objection has been filed or made against the apportionment of said assessment made by the board of public works of the city of Denver, but the complaints and objections filed deny wholly the right of the city to assess any district or portion of the assessable property of the city of Denver; therefore, be it.

“Resolved, by the city council of the city of Denver, sitting as a board of equalization, that the apportionments of said assessment made by said board of public works be, and the same are hereby, confirmed and approved.”

Subsequently, without further notice or hearing, the city council enacted the ordinance of assessment whose validity is to be determined in this case. The facts out of which the question on this assignment arises may be compressed into small compass. The first step in the assessment proceedings was by the certificate of the board of public works of the cost of the improvement and a preliminary apportionment of it. The last step was the enactment of the assessment ordinance. From beginning to end of the proceedings the landowners, although allowed to formulate and file complaints and objections, were not afforded an opportunity to be heard upon them. Upon these facts was there a denial by the State of the due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States?

In the assessment, apportionment and collection of taxes upon property within their jurisdiction the Constitution of the United States imposes few restrictions upon the States. In the enforcement of such restrictions as the Constitution does impose this court has regarded substance and not form. But where the legislature of a State, instead of fixing the tax itself, commits to some subordinate body the duty of determining whether, in what amount, and upon whom it shall be levied, and of making its assessment and apportionment, due process of law requires that at some stage of the proceedings before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, either personal, by publication, or by a law fixing the time and place of the hearing. It must be remembered that the law of Colorado denies the landowner the right to object in the courts to the assessment, upon the ground that the objections are cognizable only by the board of equalization.

If it is enough that, under such circumstances, an opportunity is given to submit in writing all objections to and complaints of the tax to the board, then there was a hearing afforded in the case at bar. But we think that something more than that, even in proceedings for taxation, is required by due process of law. Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature. But even here a hearing in its very essence demands that he who is entitled to it shall have the right to support his allegations by argument however brief, and, if need be, by proof, however informal. It is apparent that such a hearing was denied to the plaintiffs in error. The denial was by the city council, which, while acting as a board of equalization, represents the State. The assessment was therefore void, and the plaintiffs in error were entitled to a decree discharging their lands from a lien on account of it [...] 

Bi-Metallic Investment Co. v. State Board of Equalization of Colorado

239 U.S. 441 (1915)

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a suit to enjoin the State Board of Equalization and the Colorado Tax Commission from putting in force, and the defendant Pitcher as assessor of Denver from obeying, an order of the boards increasing the valuation of all taxable property in Denver forty per cent. The order was sustained and the suit directed to be dismissed by the Supreme Court of the State. The plaintiff is the owner of real estate in Denver and brings the case here on the ground that it was given no opportunity to be heard and that therefore its property will be taken without due process of law, contrary to the Fourteenth Amendment of the Constitution of the United States […] 

For the purposes of decision we assume that the constitutional question is presented in the baldest way — that neither the plaintiff nor the assessor of Denver, who presents a brief on the plaintiff's side, nor any representative of the city and county, was given an opportunity to be heard, other than such as they may have had by reason of the fact that the time of meeting of the boards is fixed by law. On this assumption it is obvious that injustice may be suffered if some property in the county already has been valued at its full worth. But if certain property has been valued at a rate different from that generally prevailing in the county the owner has had his opportunity to protest and appeal as usual in our system of taxation, so that it must be assumed that the property owners in the county all stand alike. The question then is whether all individuals have a constitutional right to be heard before a matter can be decided in which all are equally concerned [...]

Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. If the result in this case had been reached as it might have been by the State's doubling the rate of taxation, no one would suggest that the Fourteenth Amendment was violated unless every person affected had been allowed an opportunity to raise his voice against it before the body entrusted by the state constitution with the power […] There must be a limit to individual argument in such matters if government is to go on. In Londoner v. Denver, 210 U.S. 373, a local board had to determine ‘whether, in what amount, and upon whom’ a tax for paving a street should be levied for special benefits. A relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds, and it was held that they had a right to a hearing. But that decision is far from reaching a general determination dealing only with the principle upon which all the assessments in a county had been laid.

Judgment affirmed.

In Class 12, we learned that courts determine whether procedural due process is required by considering the following four-part inquiry:

1. Whether the agency action is one that triggers procedural due process (Is it individualized decisionmaking or legislative decisionmaking? Londoner and Bi-Metallic)

2. Whether the person’s property, liberty (and in very rare cases, life) is at stake due to the agency’s action

3. Whether the due process clause obligates the agency to use more procedures than it used when it took the action that deprived the person of their interest

4. If more due process is needed, the court will have to determine how much due process is required to satisfy the constitutional due process requirement

In Class 13, we will focus on the second question: whether a protected interest is at stake. Procedural due process is only required to protect life, liberty, and property interests, according to the Constitution. If the government is not depriving anyone of their rights to life, liberty, or property, the government does not have to provide procedural due process according to the 5th and 14th Amendments. Before the Supreme Court’s Goldberg v. Kelly decision, “life, liberty, and property” did not apply to “privileges” government provided like government employment and government welfare payments. Goldberg expanded the Due Process Clause to include government services, erasing the line between “rights” and “privileges.” The following cases, Goldberg and Roth, demonstrate how the courts treat government services and promises as “rights” afforded procedural due process.

Property Interests

The first two cases we read, Goldberg and Roth, demonstrate how the court assesses whether there is a property interest at stake that triggers procedural due process requirements.

Goldberg v. Kelly

397 U.S. 254 (1970)

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question for decision is whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the Fourteenth Amendment.

This action was brought in the District Court for the Southern District of New York by residents of New York City receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State’s general Home Relief program. Their complaint alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law. At the time the suits were filed there was no requirement of prior notice or hearing of any kind before termination of financial aid [...] 

I

The constitutional issue to be decided, therefore, is the narrow one whether the Due Process Clause requires that the recipient be afforded an evidentiary hearing before the termination of benefits. The District Court held that only a pre-termination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the state and city officials that the combination of the post-termination “fair hearing” with the informal pre-termination review disposed of all due process claims. The court said: “While post-termination review is relevant, there is one overpowering fact which controls here. By hypothesis, a welfare recipient is destitute, without funds or assets. . . . Suffice it to say that to cut off a welfare recipient in the face of . . . ‘brutal need’ without a prior hearing of some sort is unconscionable, unless overwhelming considerations justify it.” Kelly v. Wyman, 294 F. Supp. 893, 899, 900 (1968). The court rejected the argument that the need to protect the public’s tax revenues supplied the requisite “overwhelming consideration.” “Against the justified desire to protect public funds must be weighed the individual's over-powering need in this unique situation not to be wrongfully deprived of assistance . . . . While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process. Under all the circumstances, we hold that due process requires an adequate hearing before termination of welfare benefits, and the fact that there is a later constitutionally fair proceeding does not alter the result.” 

[...] The constitutional challenge cannot be answered by an argument that public assistance benefits are “a ‘privilege’ and not a ‘right.”” Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation; or to denial of a tax exemption; or to discharge from public employment. The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be “condemned to suffer grievous loss,” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant Workers Union v. McElroy, 367 U. S. 886, 895 (1961), “consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” 

It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing. But we agree with the District Court that when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process. For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. Thus the crucial factor in this context—a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended—is 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. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy,

Moreover, important governmental interests are promoted by affording recipients a pre-termination evidentiary hearing. From its founding the Nation's basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to “promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” The same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pre-termination evidentiary hearings are indispensable to that end.

Appellant does not challenge the force of these considerations but argues that they are outweighed by countervailing governmental interests in conserving fiscal and administrative resources. These interests, the argument goes, justify the delay of any evidentiary hearing until after discontinuance of the grants. Summary adjudication protects the public fisc by stopping payments promptly upon discovery of reason to believe that a recipient is no longer eligible. Since most terminations are accepted without challenge, summary adjudication also conserves both the fisc and administrative time and energy by reducing the number of evidentiary hearings actually held.

We agree with the District Court, however, that these governmental interests are not overriding in the welfare context. The requirement of a prior hearing doubtless involves some greater expense, and the benefits paid to ineligible recipients pending decision at the hearing probably cannot be recouped, since these recipients are likely to be judgment-proof. But the State is not without weapons to minimize these increased costs. Much of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities. Indeed, the very provision for a post-termination evidentiary hearing in New York's Home Relief program is itself cogent evidence that the State recognizes the primacy of the public interest in correct eligibility determinations and therefore in the provision of procedural safeguards. Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens. As the District Court correctly concluded, "[t]he stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal." 

II

We also agree with the District Court, however, that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial. We bear in mind that the statutory “fair hearing” will provide the recipient with a full administrative review. Accordingly, the pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department’s grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits. Thus, a complete record and a comprehensive opinion, which would serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination stage. We recognize, too, that both welfare authorities and recipients have an interest in relatively speedy resolution of questions of eligibility, that they are used to dealing with one another informally, and that some welfare departments have very burdensome caseloads. These considerations justify the limitation of the pre-termination hearing to minimum procedural safeguards, adapted to the particular characteristics of welfare recipients, and to the limited nature of the controversies to be resolved. We wish to add that we, no less than the dissenters, recognize the importance of not imposing upon the States or the Federal Government in this developing field of law any procedural requirements beyond those demanded by rudimentary due process.

“The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U. S. 385, 394 (1914). The hearing must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U. S. 545, 552 (1965). In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases such as those before us, where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.

We are not prepared to say that the seven-day notice currently provided by New York City is constitutionally insufficient per se, although there may be cases where fairness would require that a longer time be given. Nor do we see any constitutional deficiency in the content or form of the notice. New York employs both a letter and a personal conference with a caseworker to inform a recipient of the precise questions raised about his continued eligibility. Evidently the recipient is told the legal and factual bases for the Department’s doubts. This combination is probably the most effective method of communicating with recipients.

The city’s procedures presently do not permit recipients to appear personally with or without counsel before the official who finally determines continued eligibility. Thus a recipient is not permitted to present evidence to that official orally, or to confront or cross-examine adverse witnesses. These omissions are fatal to the constitutional adequacy of the procedures.

The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. It is not enough that a welfare recipient may present his position to the decision maker in writing or secondhand through his caseworker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The secondhand presentation to the decisionmaker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient's side of the controversy cannot safely be left to him. Therefore a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context due process does not require a particular order of proof or mode of offering evidence. 

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses [...] Welfare recipients must therefore be given an opportunity to confront and cross-examine the witnesses relied on by the department [...]

Affirmed.

Board of Regents of State Colleges v. Roth

408 U.S. 564 (1972)

MR. JUSTICE STEWART delivered the opinion of the Court.

In 1968 the respondent, David Roth, was hired for his first teaching job as assistant professor of political science at Wisconsin State University-Oshkosh. He was hired for a fixed term of one academic year. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969. The respondent completed that term. [Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administration for suspending an entire group of 94 Black students without determining individual guilt. He used his classroom to discuss what was being done about the suspensions and one day, instead of meeting his class, he went to a meeting of the Board of Regents to discuss the suspensions.] He was informed that he would not be rehired for the next academic year.

The respondent had no tenure rights to continued employment. Under Wisconsin statutory law a state university teacher can acquire tenure as a “permanent” employee only after four years of year-to-year employment. Having acquired tenure, a teacher is entitled to continued employment “during efficiency and good behavior.” A relatively new teacher without tenure, however, is under Wisconsin law entitled to nothing beyond his one-year appointment. There are no statutory or administrative standards defining eligibility for re-employment. State law thus clearly leaves the decision whether to rehire a nontenured teacher for another year to the unfettered discretion of university officials.

The procedural protection afforded a Wisconsin State University teacher before he is separated from the University corresponds to his job security. As a matter of statutory law, a tenured teacher cannot be “discharged except for cause upon written charges” and pursuant to certain procedures. A nontenured teacher, similarly, is protected to some extent during his one-year term. Rules promulgated by the Board of Regents provide that a nontenured teacher “dismissed” before the end of the year may have some opportunity for review of the “dismissal.” But the Rules provide no real protection for a nontenured teacher who simply is not re-employed for the next year. He must be informed by February 1 “concerning retention or non-retention for the ensuing year.” But “no reason for non-retention need be given. No review or appeal is provided in such case.”

In conformance with these Rules, the President of Wisconsin State University-Oshkosh informed the respondent before February 1, 1969, that he would not be rehired for the 1969-1970 academic year. He gave the respondent no reason for the decision and no opportunity to challenge it at any sort of hearing.

The respondent then brought this action in Federal District Court alleging that the decision not to rehire him for the next year infringed his Fourteenth Amendment rights. He attacked the decision both in substance and procedure. First, he alleged that the true reason for the decision was to punish him for certain statements critical of the University administration, and that it therefore violated his right to freedom of speech. Second, he alleged that the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to procedural due process of law [...] The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University's decision not to rehire him for another year. We hold that he did not.

I

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.

The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. It concluded that the respondent’s interest in re-employment at Wisconsin State University-Oshkosh outweighed the University's interest in denying him re-employment summarily. Undeniably, the respondent’s re-employment prospects were of major concern to him—concern that we surely cannot say was insignificant. And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the “weight” but to the nature of the interest at stake. We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.

“Liberty” and “property” are broad and majestic terms. They are among the “[g]reat [constitutional] concepts . . . purposely left to gather meaning from experience. . . . [T]hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” National Ins. Co. v. Tidewater Co., 337 U. S. 582, 646 (Frankfurter, J., dissenting). For that reason, the Court has fully and finally rejected the wooden distinction between "rights" and "privileges" that once seemed to govern the applicability of procedural due process rights. The Court has also made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money. By the same token, the Court has required due process protection for deprivations of liberty beyond the sort of formal constraints imposed by the criminal process.

Yet, while the Court has eschewed rigid or formalistic limitations on the protection of procedural due process, it has at the same time observed certain boundaries. For the words “liberty” and “property” in the Due Process Clause of the Fourteenth Amendment must be given some meaning.

II

“While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262 U. S. 390, 399. In a Constitution for a free people, there can be no doubt that the meaning of “liberty” must be broad indeed. 

There might be cases in which a State refused to re-employ a person under such circumstances that interests in liberty would be implicated. But this is not such a case.

The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U. S. 433, 437. In such a case, due process would accord an opportunity to refute the charge before University officials. In the present case, however, there is no suggestion whatever that the respondent’s “good name, reputation, honor, or integrity” is at stake.

Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. For “[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury . . . .” Joint Anti-Fascist Refugee Committee v. McGrath, supra, at 185 (Jackson, J., concurring). The Court has held, for example, that a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities “in a manner . . . that contravene[s] . . . Due Process,” Schware v. Board of Bar Examiners, 353 U. S. 232, 238, and, specifically, in a manner that denies the right to a full prior hearing. In the present case, however, this principle does not come into play.

To be sure, the respondent has alleged that the nonrenewal of his contract was based on his exercise of his right to freedom of speech. But this allegation is not now before us. The District Court stayed proceedings on this issue, and the respondent has yet to prove that the decision not to rehire him was, in fact, based on his free speech activities.

Hence, on the record before us, all that clearly appears is that the respondent was not rehired for one year at one university. It stretches the concept too far to suggest that a person is deprived of “liberty” when he simply is not rehired in one job but remains as free as before to seek another.

III

The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests—property interests—may take many forms.

Thus, the Court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Goldberg v. Kelly, 397 U. S. 254. Similarly, in the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, and college professors and staff members dismissed during the terms of their contracts, have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle “proscribing summary dismissal from public employment without hearing or inquiry required by due process” also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment.

Certain attributes of “property” interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.

Just as the welfare recipients’ “property” interest in welfare payments was created and defined by statutory terms, so the respondent’s “property” interest in employment at Wisconsin State University-Oshkosh was created and defined by the terms of his appointment. Those terms secured his interest in employment up to June 30, 1969. But the important fact in this case is that they specifically provided that the respondent's employment was to terminate on June 30. They did not provide for contract renewal absent “sufficient cause.” Indeed, they made no provision for renewal whatsoever.

Thus, the terms of the respondent's appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.

IV

Our analysis of the respondent's constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for nonretention would, or would not, be appropriate or wise in public colleges and universities. For it is a written Constitution that we apply. Our role is confined to interpretation of that Constitution.

We must conclude that the summary judgment for the respondent should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Liberty Interests

Besides property interests, liberty interests are sometimes at stake in agency actions.In Meyer v. Nebraska, 262 U.S. 390, the Supreme Court defined “liberty” to include privileges recognized as “essential to the orderly pursuit of happiness,” including the right to pursue a profession or interest. Thus, liberty interests often come up in employment situations. In the following three (short, I promise) cases, courts determine whether agency actions deprive people of liberty and trigger procedural due process requirements.

Paul v. Davis

424 U.S. 693 (1976)

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

We granted certiorari in this case to consider whether respondent’s charge that petitioners’ defamation of him, standing alone and apart from any other governmental action with respect to him, stated a claim for relief under [the] Fourteenth Amendment. For the reasons hereinafter stated, we conclude that it does not.

Petitioner Paul is the Chief of Police of the Louisville, Ky., Division of Police, while petitioner McDaniel occupies the same position in the Jefferson County, Ky., Division of Police. In late 1972 they agreed to combine their efforts for the purpose of alerting local area merchants to possible shoplifters who might be operating during the Christmas season. In early December petitioners distributed to approximately 800 merchants in the Louisville metropolitan area a “flyer,” which began as follows:

“TO: BUSINESS MEN IN THE METROPOLITAN AREA

“The Chiefs of The Jefferson County and City of Louisville Police Departments, in an effort to keep their officers advised on shoplifting activity, have approved the attached alphabetically arranged flyer of subjects known to be active in this criminal field.

“This flyer is being distributed to you, the business man, so that you may inform your security personnel to watch for these subjects. These persons have been arrested during 1971 and 1972 or have been active in various criminal fields in high density shopping areas.

“Only the photograph and name of the subject is shown on this flyer, if additional information is desired, please forward a request in writing . . . .”

The flyer consisted of five pages of “mug shot” photos, arranged alphabetically. Each page was headed:

“NOVEMBER 1972 CITY OF LOUISVILLE JEFFERSON COUNTY POLICE DEPARTMENTS ACTIVE SHOPLIFTERS”

In approximately the center of page 2 there appeared photos and the name of the respondent, Edward Charles Davis III.

Respondent appeared on the flyer because on June 14, 1971, he had been arrested in Louisville on a charge of shoplifting. He had been arraigned on this charge in September 1971, and, upon his plea of not guilty, the charge had been “filed away with leave [to reinstate],” a disposition which left the charge outstanding. Thus, at the time petitioners caused the flyer to be prepared and circulated respondent had been charged with shoplifting but his guilt or innocence of that offense had never been resolved. Shortly after circulation of the flyer the charge against respondent was finally dismissed by a judge of the Louisville Police Court [...]

I

Respondent’s due process claim is grounded upon his assertion that the flyer, and in particular the phrase “Active Shoplifters” appearing at the head of the page upon which his name and photograph appear, impermissibly deprived him of some “liberty” protected by the Fourteenth Amendment. His complaint asserted that the “active shoplifter” designation would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair his future employment opportunities. Accepting that such consequences may flow from the flyer in question, respondent's complaint would appear to state a classical claim for defamation actionable in the courts of virtually every State. Imputing criminal behavior to an individual is generally considered defamatory per se, and actionable without proof of special damages [...]

The words “liberty” and “property” as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law. While we have in a number of our prior cases pointed out the frequently drastic effect of the “stigma” which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either “liberty” or “property” by itself sufficient to invoke the procedural protection of the Due Process Clause [...] While not uniform in their treatment of the subject, we think that the weight of our decisions establishes no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment [...]

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs and MR. JUSTICE WHITE concurs in part, dissenting.

I dissent. The Court today holds that police officials, acting in their official capacities as law enforcers, may on their own initiative and without trial constitutionally condemn innocent individuals as criminals and thereby brand them with one of the most stigmatizing and debilitating labels in our society. If there are no constitutional restraints on such oppressive behavior, the safeguards constitutionally accorded an accused in a criminal trial are rendered a sham, and no individual can feel secure that he will not be arbitrarily singled out for similar ex parte punishment by those primarily charged with fair enforcement of the law. The Court accomplishes this result by excluding a person's interest in his good name and reputation from all constitutional protection, regardless of the character of or necessity for the government's actions. The result, which is demonstrably inconsistent with out prior case law and unduly restrictive in its construction of our precious Bill of Rights, is one in which I cannot concur [...]

Codd v. Velger

429 U.S. 624 (1977)

PER CURIAM.

[Respondent Velger alleged that he had been wrongly dismissed without a hearing or a statement of reasons from his position as a patrolman with the New York City Police Department, and under 42 U.S.C. § 1983, sought reinstatement and damages for the resulting injury to his reputation and future employment prospects. He held only a probationary position with the Penn-Central Railroad Police Department, so he had no property interest. Thus, Velger alleged that he was entitled to a hearing due to the stigmatizing effect of certain material placed by the City Police Department in his personnel file. He alleged that the derogatory material had brought about his subsequent dismissal from his position and that it had also prevented him from finding other employment of a similar nature for which his scores on numerous examinations otherwise qualified him.]

The case came on for a bench trial before Judge Werker, who [...] determined that the only issue  [up for discussion] was whether petitioners, in discharging respondent had “imposed a stigma on Mr. Velger that foreclosed his freedom to take advantage of other employment opportunities.” 

Among the specific findings of fact made by the District Court was that an officer of the Penn-Central Railroad Police Department was shown the City Police Department file relating to respondent’s employment, upon presentation of a form signed by respondent authorizing the release of personnel information. From an examination of the file, this officer “gleaned that plaintiff had been dismissed because while still a trainee he had put a revolver to his head in an apparent suicide attempt.” The Penn-Central officer tried to verify this story, but the Police Department refused to co-operate with him, advising him to proceed by letter. In rendering judgment against the respondent, the court also found that he had failed to establish “that information about his Police Department service was publicized or circulated by defendants in any way that might reach his prospective employers.”

Respondent successfully appealed this decision to the Court of Appeals for the Second Circuit. That court held that the finding of no stigma was clearly erroneous. It reasoned that the information about the apparent suicide attempt was of a kind which would necessarily impair employment prospects for one seeking work as a police officer. It also decided that the mere act of making available personnel files with the employee's consent was enough to place responsibility for the stigma on the employer, since former employees had no practical alternative but to consent to the release of such information if they wished to be seriously considered for other employment. 

We granted certiorari, and the parties have urged us to consider whether the report in question was of a stigmatizing nature, and whether the circumstances of its apparent dissemination were such as to fall within the language of Board of Regents v. Roth, 408 U. S. 564, 573 (1972) [...] We find it unnecessary to reach these issues, however, because of respondent’s failure to allege or prove one essential element of his case.

Assuming all of the other elements necessary to make out a claim of stigmatization under Roth [...], the remedy mandated by the Due Process Clause of the Fourteenth Amendment is “an opportunity to refute the charge.” [...] But if the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee's reputation. Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false. Neither the District Court nor the Court of Appeals made any such finding. When we consider the nature of the interest sought to be protected, we believe the absence of any such allegation or finding is fatal to respondent’s claim under the Due Process Clause that he should have been given a hearing.

If Procedural Due Process is Required, How Much Procedure is Needed?

If a life, liberty or property interest is at stake, and procedural due process is required, the question becomes “how much procedure is required?” The answer varies, depending on the situation. We’ve already seen that procedural due process does not necessarily grant every person deprived of property or liberty an in-person, trial-like adjudication process. In Goldberg v. Kelly, where someone’s welfare support was at stake, the Court decided that an evidentiary hearing was necessary before depriving the person of the “very means by which to live.” On the other hand, in Loudermill, the Court said that, while a civil servant requires “some kind of a hearing” before being fired, due process may not involve an evidentiary hearing. 

In Class 11, we learned that APA Section 555 provides some procedural requirements for agency hearings. Today, agencies usually do not have to provide additional procedural safeguards in most cases. Goldberg represents the height of procedural requirements, and although it has not been overruled, in the years since Goldberg, it has been limited to its facts.

Today, courts balance the harm caused by the liberty or property deprivation against the costs and benefits of adding more procedural safeguards. For instance, in Goss v. Lopez, 419 U.S. 565 (1975), a case where a public high school student was suspended for ten days, the Court held that procedural due process was satisfied by oral or written notice and an explanation of the evidence the authorities used to make the decision. The Court said that, while the student had a right to present “his side of the story,” the student did not have a right to call their own witnesses, confront or cross examine witnesses, to be heard before an impartial decisionmaker, or to a written decision based on the evidence in an adjudicative proceeding. The Court said less procedures were required because the harm caused by the deprivation was minimal and the number of student disciplinary actions was so large that it would be very costly for schools to provide full hearings for all students facing disciplinary actions.

The balancing approach in Goss v. Lopez was made explicit and given a formula in Mathews v. Eldridge, a case decided a year after the Goss decision. In Cleveland Board of Education v. Loudermill, the Supreme Court addresses the timing of these due process procedures, deciding that tenured public employees are due pre-termination hearings.

Mathews v. Eldridge

424 U.S. 319 (1976)

MR. JUSTICE POWELL delivered the opinion of the Court.

The issue in this case is whether the Due Process Clause of the Fifth Amendment requires that prior to the termination of So cial Security disability benefit payments the recipient be afforded an opportunity for an evidentiary hearing.

Cash benefits are provided to workers during periods in which they are completely disabled under the disability insurance benefits program created by the 1956 amendments to Title II of the Social Security Act. Respondent Eldridge was first awarded benefits in June 1968. In March 1972, he received a questionnaire from the state agency charged with monitoring his medical condition. Eldridge completed the questionnaire, indicating that his condition had not improved and identifying the medical sources, including physicians, from whom he had received treatment recently. The state agency then obtained reports from his physician and a psychiatric consultant. After considering these reports and other information in his file the agency informed Eldridge by letter that it had made a tentative determination that his disability had ceased in May 1972. The letter included a statement of reasons for the proposed termination of benefits, and advised Eldridge that he might request reasonable time in which to obtain and submit additional information pertaining to his condition.

In his written response, Eldridge disputed one characterization of his medical condition and indicated that the agency already had enough evidence to establish his disability. The state agency then made its final determination that he had ceased to be disabled in May 1972. This determination was accepted by the Social Security Administration (SSA), which notified Eldridge in July that his benefits would terminate after that month. The notification also advised him of his right to seek reconsideration by the state agency of this initial determination within six months.

Instead of requesting reconsideration Eldridge commenced this action challenging the constitutional validity of the administrative procedures established by the Secretary of Health, Education, and Welfare for assessing whether there exists a continuing disability. He sought an immediate reinstatement of benefits pending a hearing on the issue of his disability [...] In support of his contention that due process requires a pretermination hearing, Eldridge relied exclusively upon this Court’s decision in Goldberg v. Kelly, 397 U. S. 254 (1970), which established a right to an “evidentiary hearing” prior to termination of welfare benefits. The Secretary contended that Goldberg was not controlling since eligibility for disability benefits, unlike eligibility for welfare benefits, is not based on financial need and since issues of credibility and veracity do not play a significant role in the disability entitlement decision, which turns primarily on medical evidence [...]

“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail [...] 

Since a recipient whose benefits are terminated is awarded full retroactive relief if he ultimately prevails, his sole interest is in the uninterrupted receipt of this source of income pending final administrative decision on his claim. His potential injury is thus similar in nature to that of the welfare recipient in Goldberg [...]

Only in Goldberg has the Court held that due process requires an evidentiary hearing prior to a temporary deprivation. It was emphasized there that welfare assistance is given to persons on the very margin of subsistence:

“The crucial factor in this context—a factor not present in the case of . . . virtually anyone else whose governmental entitlements are ended—is 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.” 

Eligibility for disability benefits, in contrast, is not based upon financial need. Indeed, it is wholly unrelated to the worker’s income or support from many other sources, such as earnings of other family members, workmen’s compensation awards, tort claims awards, savings, private insurance, public or private pensions, veterans’ benefits, food stamps, public assistance, or the “many other important programs, both public and private, which contain provisions for disability payments affecting a substantial portion of the work force . . . .” 

As Goldberg illustrates, the degree of potential deprivation that may be created by a particular decision is a factor to be considered in assessing the validity of any administrative decisionmaking process. The potential deprivation here is generally likely to be less than in Goldberg, although the degree of difference can be overstated [...] 

An additional factor to be considered here is the fairness and reliability of the existing pretermination procedures, and the probable value, if any, of additional procedural safeguards. Central to the evaluation of any administrative process is the nature of the relevant inquiry. In order to remain eligible for benefits the disabled worker must demonstrate by means of “medically acceptable clinical and laboratory diagnostic techniques,” that he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . .” In short, a medical assessment of the worker’s physical or mental condition is required. This is a more sharply focused and easily documented decision than the typical determination of welfare entitlement. In the latter case, a wide variety of information may be deemed relevant, and issues of witness credibility and veracity often are critical to the decisionmaking process. Goldberg noted that in such circumstances “written submissions are a wholly unsatisfactory basis for decision.” 

By contrast, the decision whether to discontinue disability benefits will turn, in most cases, upon “routine, standard, and unbiased medical reports by physician specialists,” concerning a subject whom they have personally examined. [P]rocedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions. The potential value of an evidentiary hearing, or even oral presentation to the decisionmaker, is substantially less in this context than in Goldberg.

The decision in Goldberg also was based on the Court's conclusion that written submissions were an inadequate substitute for oral presentation because they did not provide an effective means for the recipient to communicate his case to the decisionmaker. Written submissions were viewed as an unrealistic option, for most recipients lacked the “educational attainment necessary to write effectively” and could not afford professional assistance. In addition, such submissions would not provide the “flexibility of oral presentations” or “permit the recipient to mold his argument to the issues the decision maker appears to regard as important.” In the context of the disability-benefits-entitlement assessment the administrative procedures under review here fully answer these objections.

The detailed questionnaire which the state agency periodically sends the recipient identifies with particularity the information relevant to the entitlement decision, and the recipient is invited to obtain assistance from the local SSA office in completing the questionnaire. More important, the information critical to the entitlement decision usually is derived from medical sources, such as the treating physician. Such sources are likely to be able to communicate more effectively through written documents than are welfare recipients or the lay witnesses supporting their cause. The conclusions of physicians often are supported by X-rays and the results of clinical or laboratory tests, information typically more amenable to written than to oral presentation. 

A further safeguard against mistake is the policy of allowing the disability recipient's representative full access to all information relied upon by the state agency. In addition, prior to the cutoff of benefits the agency informs the recipient of its tentative assessment, the reasons therefor, and provides a summary of the evidence that it considers most relevant. Opportunity is then afforded the recipient to submit additional evidence or arguments, enabling him to challenge directly the accuracy of information in his file as well as the correctness of the agency's tentative conclusions. These procedures, again as contrasted with those before the Court in Goldberg, enable the recipient to “mold” his argument to respond to the precise issues which the decisionmaker regards as crucial [...]

In striking the appropriate due process balance the final factor to be assessed is the public interest. This includes the administrative burden and other societal costs that would be associated with requiring, as a matter of constitutional right, an evidentiary hearing upon demand in all cases prior to the termination of disability benefits. The most visible burden would be the incremental cost resulting from the increased number of hearings and the expense of providing benefits to ineligible recipients pending decision. No one can predict the extent of the increase, but the fact that full benefits would continue until after such hearings would assure the exhaustion in most cases of this attractive option. Nor would the theoretical right of the Secretary to recover undeserved benefits result, as a practical matter, in any substantial offset to the added outlay of public funds. The parties submit widely varying estimates of the probable additional financial cost. We only need say that experience with the constitutionalizing of government procedures suggests that the ultimate additional cost in terms of money and administrative burden would not be insubstantial.

Financial cost alone is not a controlling weight in determining whether due process requires a particular procedural safeguard prior to some administrative decision. But the Government’s interest, and hence that of the public, in conserving scarce fiscal and administrative resources is a factor that must be weighed. At some point the benefit of an additional safeguard to the individual affected by the administrative action and to society in terms of increased assurance that the action is just, may be outweighed by the cost. Significantly, the cost of protecting those whom the preliminary administrative process has identified as likely to be found undeserving may in the end come out of the pockets of the deserving since resources available for any particular program of social welfare are not unlimited. 

But more is implicated in cases of this type than ad hoc weighing of fiscal and administrative burdens against the interests of a particular category of claimants. The ultimate balance involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness. We reiterate the wise admonishment of Mr. Justice Frankfurter that differences in the origin and function of administrative agencies “preclude wholesale transplantation of the rules of procedure, trial, and review which have evolved from the history and experience of courts.” The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decisionmaking in all circumstances. The essence of due process is the requirement that “a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.” 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 a meaningful opportunity to present their case [...] 

We conclude that an evidentiary hearing is not required prior to the termination of disability benefits and that the present administrative procedures fully comport with due process.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JUSTICE WHITE delivered the opinion of the Court.

In these cases we consider what pretermination process must be accorded a public employee who can be discharged only for cause.

I.

In 1979 the Cleveland Board of Education hired respondent James Loudermill as a security guard. On his job application, Loudermill stated that he had never been convicted of a felony. Eleven months later, as part of a routine examination of his employment records, the Board discovered that in fact Loudermill had been convicted of grand larceny in 1968. By letter dated November 3, 1980, the Board's Business Manager informed Loudermill that he had been dismissed because of his dishonesty in filling out the employment application. Loudermill was not afforded an opportunity to respond to the charge of dishonesty or to challenge his dismissal. On November 13, the Board adopted a resolution officially approving the discharge [...]

Under Ohio law, Loudermill was a "classified civil servant." Such employees can be terminated only for cause, and may obtain administrative review if discharged. Pursuant to this provision, Loudermill filed an appeal with the Cleveland Civil Service Commission on November 12. The Commission appointed a referee, who held a hearing on January 29, 1981. Loudermill argued that he had thought that his 1968 larceny conviction was for a misdemeanor rather than a felony. The referee recommended reinstatement. On July 20, 1981, the full Commission heard argument and orally announced that it would uphold the dismissal. Proposed findings of fact and conclusions of law followed on August 10, and Loudermill's attorneys were advised of the result by mail on August 21.

Although the Commission's decision was subject to judicial review in the state courts, Loudermill instead brought the present suit in the Federal District Court for the Northern District of Ohio. The complaint alleged that it was unconstitutional to not provide the employee an opportunity to respond to the charges against him prior to removal. As a result, discharged employees were deprived of liberty and property without due process [...]

III.

An essential principle of due process is that a deprivation of life, liberty, or property "be preceded by notice and opportunity for hearing appropriate to the nature of the case." We have described "the root requirement" of the Due Process Clause as being "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." This principle requires "some kind of a hearing" prior to the discharge of an employee who has a constitutionally protected property interest in his employment [...]

Some opportunity for the employee to present his side of the case is recurringly of obvious value in reaching an accurate decision. Dismissals for cause will often involve factual disputes. Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect. 

The foregoing considerations indicate that the pretermination "hearing," though necessary, need not be elaborate. We have pointed out that "[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." In general, "something less" than a full evidentiary hearing is sufficient prior to adverse administrative action. Mathews v. Eldridge, 424 U. S., at 343. Under state law, respondents were later entitled to a full administrative hearing and judicial review. The only question is what steps were required before the termination took effect.

In only one case, Goldberg v. Kelly, 397 U. S. 254 (1970), has the Court required a full adversarial evidentiary hearing prior to adverse governmental action. However, as the Goldberg Court itself pointed out, that case presented significantly different considerations than are present in the context of public employment. Here, the pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action [...]

In [Loudermill's case], neither can we say that a fully informed decisionmaker might not have exercised its discretion and decided not to dismiss him, notwithstanding its authority to do so. In any event, the termination involved arguable issues, and the right to a hearing does not depend on a demonstration of certain success [...]

We conclude that all the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures as provided by the Ohio statute. Because respondents allege in their complaints that they had no chance to respond, the District Court erred in dismissing for failure to state a claim. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

What is “Ex Parte” Communication?

Ex parte means one-sided. In adjudicative proceedings, ex parte communications are communications between judges and jurors, parties, or any other people involved in the case outside of the presence of the opposing party. Both oral and written communications can be ex parte if they are off the record communications that are related to the merits of the case. Ex parte communications can interfere with due process, because one-sided, off the record communications may violate notice requirements, failing to apprise parties of matters that deprive them of their life, liberty, and property

The APA prohibits ex parte communications in formal rulemaking/adjudication. APA Section 557(d)(1)(B) says that “no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding [...]” (Remember, formal adjudication and rulemaking are generally indistinguishable and we treat them the same, as procedures governed by APA Sections 556 and 557, in this class.) 

While 557 prohibits ex parte communications in formal rulemaking/adjudication, there are no rules that prohibit ex parte communications in informal rulemaking and informal adjudication. In a rulemaking context, ex parte communications are a regular part of the commenting process required by APA Section 553(c). The D.C. Circuit Court called “informal contacts between agencies and the public” the “‘bread and butter’ of the process of administration” in Home Box Office v. Federal Communications Commission, 567 F.2d. 9 (D.C. Cir. 1977). 

Informal adjudication, similarly, does not prohibit lobbyists, industry lawyers, and other interested parties from communicating with agencies off the record. One thing to keep in mind when considering the role of ex parte communications in agency adjudication: Agency adjudication is unlike hearings with two private parties arguing before a judge. In agencies’ adjudicative proceedings, there is usually one private party facing off against a government agency rather than another private party. So, ex parte communications in this context would likely involve either the party going before the agency, or parties that would be affected by the agency decision, discussing the matter with the agency. Sierra Club v. Costle gives us a glimpse of what ex parte communication looks like in informal rulemaking and adjudication, and describes the courts’ permissive stance on ex parte communications in informal agency proceedings.

Sierra Club v. Costle

657 F.2d 298 (D.C. Cir. 1981)

WALD, Circuit Judge:

This case concerns the extent to which new coal-fired steam generators that produce electricity must control their emissions of sulfur dioxide and particulate matter into the air. In June of 1979 EPA revised the regulations called “new source performance standards” (“NSPS” or “standards”) governing emission control by coal burning power plants. On this appeal we consider challenges to the revised NSPS brought by environmental groups which contend that the standards are too lax and by electric utilities which contend that the standards are too rigorous [...] 

D. Procedural History

In 1970 Congress for the first time authorized the federal government to set performance standards limiting emissions from newly built or modified sources of air pollution. These sources to be controlled were those that EPA determined emitted pollution contributing substantially to the endangerment of the public health or welfare. EPA decided that large coal-fired generators fell within that category. In 1976 the Sierra Club and the Oljato and Red Mesa Chapters of the Navajo Tribe petitioned EPA to revise the NSPS so as to require a 90 percent reduction in sulfur dioxide emissions. Eventually [...] final NSPS were promulgated in June 1979. Several parties petitioned EPA for reconsideration of the revised NSPS. In February of 1980 EPA denied all the petitions for reconsideration. The present appeal followed. 

V. THE 1.2 LBS./MBTU EMISSION CEILING

EPA proposed and ultimately adopted a 1.2 lbs./MBtu ceiling for total sulfur dioxide emissions [which limits the amount of sulfur dioxide that coal-fired generators can emit]. Environmental Defense Fund (“EDF”) challenges this part of the final NSPS on procedural grounds, contending that although there may be evidence supporting the 1.2 lbs./MBtu standard, EPA should have and would have adopted a stricter standard if it had not engaged in post-comment period irregularities and succumbed to political pressures[...]

EDF alleges that as a result of an “ex parte blitz” by coal industry advocates conducted after the close of the comment period, EPA backed away from adopting the .55 lbs./MBtu limit, and instead adopted the higher 1.2 lbs./MBtu restriction [...] Whether or not EDF’s scenario is credible, it is true that EPA did circulate a draft NSPS with an emissions ceiling below the 1.2 lbs./MBtu level for interagency comment during February, 1978. Following a “leak” of this proposal, EDF says, the so-called “ex parte blitz” began. “Scores” of pro-industry “ex parte” comments were received by EPA in the post-comment period, states EDF, and various meetings with coal industry advocates — including Senator Robert Byrd of West Virginia — took place during that period. These communications, EDF asserts, were unlawful and prejudicial to its position.

In order for this court to assess these claims, we must identify the particular actions and incidents which gave rise to EDF’s complaints. Aside from a passing reference to a telephone call from an EPA official to the Chief Executive Officer of National Coal Association, EDF’s procedural objections stem from either (1) comments filed after the close of the official comment period, or (2) meetings between EPA officials and various government and private parties interested in the outcome of the final rule, all of which took place after the close of the comment period.

1. Late Comments

The comment period for the NSPS began on September 19, 1978, and closed on January 15, 1979. After January 15, EPA received almost 300 written submissions on the proposed rule from a broad range of interests. EPA accepted these comments and entered them all on its administrative docket. EPA did not, however, officially reopen the comment period, nor did it notify the public through the Federal Register or by other means that it had received and was entering the “late” comments. According to EDF, most of the approximately 300 late comments were received after the “leak” of the new .55 lbs./MBtu proposal. EDF claims that of the 138 late comments from non-government sources, at least 30 were from “representatives of the coal or utility industries,” and of the 53 comments from members of Congress, 22 were either forwarded by the Congressmen from industry interests, or else were prepared and submitted by Congressmen as advocates of those interests.

2. Meetings

EDF objects to nine different meetings [...] EDF believes that the communications [...], when taken as a whole, were so extensive and had such a serious impact on the NSPS rulemaking, that they violated EDF’s rights to due process in the proceeding, and that these “ex parte” contacts were procedural errors of such magnitude that this court must reverse. EDF does not specify which particular features in each of the [...] communications violated due process or constituted errors under the statute; indeed, EDF nowhere lists the communications in a form designed to clarify why any particular communication was unlawful. Instead, EDF labels all post-comment communications with EPA — from whatever source and in whatever form — as “ex parte,” and claims that “this court has repeatedly stated that ex parte contacts of substance violate due process.”

At the outset, we decline to begin our task of reviewing EPA’s procedures by labeling all post-comment communications with the agency as “ex parte.” Such an approach essentially begs the question whether these particular communications in an informal rulemaking proceeding were unlawful. Instead of beginning with a conclusion that these communications were “ex parte,” we must evaluate the various communications in terms of their timing, source, mode, content, and the extent of their disclosure on the docket, in order to discover whether any of them violated the procedural requirements of the Clean Air Act, or of due process.

C. Standard for Judicial Review of EPA Procedures

This court’s scope of review is delimited by the special procedural provisions of the Clean Air Act, which declare that we may reverse the Administrator’s decision for procedural error only if (i) his failure to observe procedural requirements was arbitrary and capricious, (ii) an objection was raised during the comment period, or the grounds for such objection arose only after the comment period and the objection is “of central relevance to the outcome of the rule,” and (iii) “the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.” The essential message of so rigorous a standard is that Congress was concerned that EPA’s rulemaking not be casually overturned for procedural reasons, and we of course must respect that judgment.

Our authority to reverse informal administrative rulemaking for procedural reasons is also informed by Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. In its unanimous opinion, the Supreme Court unambiguously cautioned this court against imposing its own notions of proper procedures upon an administrative agency entrusted with substantive functions by Congress. The Court declared that so long as an agency abided by the minimum procedural requirements laid down by statute, this court was not free to impose additional procedural rights if the agency did not choose to grant them. Except in “extremely rare” circumstances, the Court stated, there is no justification for a reviewing court to overturn agency action because of the failure to employ procedures beyond those required by Congress [...]

D. Statutory Provisions Concerning Procedure

The procedural provisions of the Clean Air Act specifying the creation and content of the administrative rulemaking record are contained in section 307. [The] 1977 Amendments required the agency to establish a “rulemaking docket” for each proposed rule which would form the basis of the record for judicial review. The docket must contain, inter alia, (1) “notice of the proposed rulemaking ... accompanied by a statement of its basis and purpose,” and a specification of the public comment period; (2) “all written comments and documentary information on the proposed rule received from any person ... during the comment period[;] [t]he transcript of public hearings, if any[;] and [a]ll documents ... which become available after the proposed rule has been published and which the Administrator determines are of central relevance to the rulemaking....”; (3) drafts of proposed rules submitted for interagency review, and all documents accompanying them and responding to them; and (4) the promulgated rule and the various accompanying agency documents which explain and justify it.

In contrast to other recent statutes, there is no mention of any restrictions upon “ex parte” contacts. However, the statute apparently did envision that participants would normally submit comments, documentary material, and oral presentations during a prescribed comment period. Only two provisions in the statute touch upon the post-comment period, one of which states that “[a]ll documents which become available after the proposed rule has been published and which the Administrator determines are of central relevance to the rulemaking shall be placed in the docket as soon as possible after their availability.” But since all the post-comment period written submissions which EDF complains of were in fact entered upon the docket, EDF cannot complain that this provision has been violated [...]

[Since] this court can reverse an agency on procedural grounds only if it finds a failure to observe procedures “required by law,” we must first decide whether the procedures followed by EPA between January 15 and June 1, 1979 were unlawful. Only if we so find would we then face the second issue whether the unlawful errors were “of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.” We now hold that EPA’s procedures during the post-comment period were lawful, and therefore do not face the issue whether any alleged errors were of “central relevance” to the outcome.

E. Validity of EPA's Procedures During the Post-Comment Period

The post-comment period communications about which EDF complains vary widely in their content and mode; some are written documents or letters, others are oral conversations and briefings, while still others are meetings where alleged political arm-twisting took place. For analytical purposes we have grouped the communications into categories and shall discuss each of them separately. As a general matter, however, we note at the outset that nothing in the statute prohibits EPA from admitting all post-comment communications into the record; nothing expressly requires it, either. Most likely the drafters envisioned promulgation of a rule soon after the close of the public comment period, and did not envision a months-long hiatus where continued outside communications with the agency would continue unabated. We must therefore attempt to glean the law for this case by inference from the procedural framework provided in the statute.

1. Written Comments Submitted During Post-Comment Period

Although no express authority to admit post-comment documents exists, the statute does provide that:

All documents which become available after the proposed rule has been published and which the Administrator determines are of central relevance to the rulemaking shall be placed in the docket as soon as possible after their availability.

This provision, in contrast to others in the same subparagraph, is not limited to the comment period. Apparently it allows EPA not only to put documents into the record after the comment period is over, but also to define which documents are “of central relevance” so as to require that they be placed in the docket. The principal purpose of the drafters was to define in advance, for the benefit of reviewing courts, the record upon which EPA would rely in defending the rule it finally adopted; it was not their purpose to guarantee that every piece of paper or phone call related to the rule which was received by EPA during the post-comment period be included in the docket. EPA thus has authority to place post-comment documents into the docket, but it need not do so in all instances.

Such a reading of the statute accords well with the realities of Washington administrative policymaking, where rumors, leaks, and overreactions by concerned groups abound, particularly as the time for promulgation draws near. In a proceeding such as this, one of vital concern to so many interests — industry, environmental groups, as well as Congress and the Administration — it would be unrealistic to think there would not naturally be attempts on all sides to stay in contact with EPA right up to the moment the final rule is promulgated. The drafters of the 1977 Amendments were practical people, well versed in such activity, and we decline now to infer from their silence that they intended to prohibit the lodging of documents with the agency at any time prior to promulgation. Common sense, after all, must play a part in our interpretation of these statutory procedures.

EPA of course could have extended, or reopened, the comment period after January 15 in order formally to accommodate the flood of new documents; it has done so in other cases. But under the circumstances of this case, we do not find that it was necessary for EPA to reopen the formal comment period. In the first place, the comment period lasted over four months, and although the length of the comment period was not specified in the 1977 Amendments, the statute did put a premium on speedy decisionmaking by setting a one year deadline from the Amendments’ enactment to the rules’ promulgation [...]

If, however, documents of central importance upon which EPA intended to rely had been entered on the docket too late for any meaningful public comment prior to promulgation, then both the structure and spirit of section 307 would have been violated. The Congressional drafters, after all, intended to provide “thorough and careful procedural safeguards ... [to] insure an effective opportunity for public participation in the rulemaking process.” Indeed the Administrator is obligated by the statute to convene a proceeding to reconsider the rule where an objection of central importance to it is proffered, and the basis of the objection arose after the comment period had closed. Thus we do not hold that there are no circumstances in which reopening the comment period would ever be required.

The case before us, however, does not present an instance where documents vital to EPA’s support for its rule were submitted so late as to preclude any effective public comment. The vast majority of the written comments were submitted in ample time to afford an opportunity for response. Regarding those documents submitted closer to the promulgation date, our review does not reveal that they played any significant role in the agency's support for the rule. The decisive point, however, is that EDF itself has failed to show us any particular document or documents to which it lacked an opportunity to respond, and which also were vital to EPA’s support for the rule [...]

2. Meetings Held With Individuals Outside EPA

The statute does not explicitly treat the issue of post-comment period meetings with individuals outside EPA. Oral face-to-face discussions are not prohibited anywhere, anytime, in the Act. The absence of such prohibition may have arisen from the nature of the informal rulemaking procedures Congress had in mind. Where agency action resembles judicial action, where it involves formal rulemaking, adjudication, or quasi-adjudication among “conflicting private claims to a valuable privilege,” the insulation of the decisionmaker from ex parte contacts is justified by basic notions of due process to the parties involved. But where agency action involves informal rulemaking of a policymaking sort, the concept of ex parte contacts is of more questionable utility.

Under our system of government, the very legitimacy of general policymaking performed by unelected administrators depends in no small part upon the openness, accessibility, and amenability of these officials to the needs and ideas of the public from whom their ultimate authority derives, and upon whom their commands must fall. As judges we are insulated from these pressures because of the nature of the judicial process in which we participate; but we must refrain from the easy temptation to look askance at all face-to-face lobbying efforts, regardless of the forum in which they occur, merely because we see them as inappropriate in the judicial context. Furthermore, the importance to effective regulation of continuing contact with a regulated industry, other affected groups, and the public cannot be underestimated. Informal contacts may enable the agency to win needed support for its program, reduce future enforcement requirements by helping those regulated to anticipate and shape their plans for the future, and spur the provision of information which the agency needs. The possibility of course exists that in permitting ex parte communications with rulemakers we create the danger of “one administrative record for the public and this court and another for the Commission.” Under the Clean Air Act procedures, however, “[t]he promulgated rule may not be based (in part or whole) on any information or data which has not been placed in the docket….” Thus EPA must justify its rulemaking solely on the basis of the record it compiles and makes public.

Regardless of this court’s views on the need to restrict all post-comment contacts in the informal rulemaking context, however, it is clear to us that Congress has decided not to do so in the statute which controls this case [...] 

It still can be argued, however, that if oral communications are to be freely permitted after the close of the comment period, then at least some adequate summary of them must be made in order to preserve the integrity of the rulemaking docket, which under the statute must be the sole repository of material upon which EPA intends to rely. The statute does not require the docketing of all post-comment period conversations and meetings, but we believe that a fair inference can be drawn that in some instances such docketing may be needed in order to give practical effect to section 307(d)(4)(B)(i), which provides that all documents “of central relevance to the rulemaking” shall be placed in the docket as soon as possible after their availability. This is so because unless oral communications of central relevance to the rulemaking are also docketed in some fashion or other, information central to the justification of the rule could be obtained without ever appearing on the docket, simply by communicating it by voice rather than by pen, thereby frustrating the command of section 307 that the final rule not be “based (in part or whole) on any information or data which has not been placed in the docket....”

EDF is understandably wary of a rule which permits the agency to decide for itself when oral communications are of such central relevance that a docket entry for them is required. Yet the statute itself vests EPA with discretion to decide whether “documents” are of central relevance and therefore must be placed in the docket; surely EPA can be given no less discretion in docketing oral communications, concerning which the statute has no explicit requirements whatsoever. Furthermore, this court has already recognized that the relative significance of various communications to the outcome of the rule is a factor in determining whether their disclosure is required. A judicially imposed blanket requirement that all post-comment period oral communications be docketed would, on the other hand, contravene our limited powers of review, would stifle desirable experimentation in the area by Congress and the agencies, and is unnecessary for achieving the goal of an established, procedure-defined docket to enable reviewing courts to fully evaluate the stated justification given by the agency for its final rule.

Turning to the particular oral communications in this case, we find that only two of the nine contested meetings were undocketed by EPA. The agency has maintained that, as to the May 1 meeting where Senate staff people were briefed on EPA's analysis concerning the impact of alternative emissions ceilings upon coal reserves, its failure to place a summary of the briefing in the docket was an oversight. We find no evidence that this oversight was anything but an honest inadvertence; furthermore, a briefing of this sort by EPA which simply provides background information about an upcoming rule is not the type of oral communication which would require a docket entry under the statute.

The other undocketed meeting occurred at the White House and involved the President and his White House staff. Because this meeting involves considerations unique to intra-executive meetings, it is discussed in the section immediately infra.

(a) Intra-Executive Branch Meetings

We have already held that a blanket prohibition against meetings during the post-comment period with individuals outside EPA is unwarranted, and this perforce applies to meetings with White House officials. We have not yet addressed, however, the issue whether such oral communications with White House staff, or the President himself, must be docketed on the rulemaking record, and we now turn to that issue. The facts, as noted earlier, present us with a single undocketed meeting held on April 30, 1979, at 10:00 a.m., attended by the President, White House staff, other high ranking members of the Executive Branch, as well as EPA officials, and which concerned the issues and options presented by the rulemaking.

We note initially that section 307 makes specific provision for including in the rulemaking docket the “written comments” of other executive agencies along with accompanying documents on any proposed draft rules circulated in advance of the rulemaking proceeding. Drafts of the final rule submitted to an executive review process prior to promulgation, as well as all “written comments,” “documents,” and “written responses” resulting from such interagency review process, are also to be put in the docket prior to promulgation. This specific requirement does not mention informal meetings or conversations concerning the rule which are not part of the initial or final review processes, nor does it refer to oral comments of any sort. Yet it is hard to believe Congress was unaware that intra-executive meetings and oral comments would occur throughout the rulemaking process. We assume, therefore, that unless expressly forbidden by Congress, such intra-executive contacts may take place, both during and after the public comment period; the only real issue is whether they must be noted and summarized in the docket.

The court recognizes the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy. He and his White House advisers surely must be briefed fully and frequently about rules in the making, and their contributions to policymaking considered. The executive power under our Constitution, after all, is not shared — it rests exclusively with the President. The idea of a “plural executive,” or a President with a council of state, was considered and rejected by the Constitutional Convention. Instead the Founders chose to risk the potential for tyranny inherent in placing power in one person, in order to gain the advantages of accountability fixed on a single source. To ensure the President's control and supervision over the Executive Branch, the Constitution — and its judicial gloss — vests him with the powers of appointment and removal, the power to demand written opinions from executive officers, and the right to invoke executive privilege to protect consultative privacy. In the particular case of EPA, Presidential authority is clear since it has never been considered an “independent agency,” but always part of the Executive Branch [...]

We recognize, however, that there may be instances where the docketing of conversations between the President or his staff and other Executive Branch officers or rulemakers may be necessary to ensure due process. This may be true, for example, where such conversations directly concern the outcome of adjudications or quasi-adjudicatory proceedings; there is no inherent executive power to control the rights of individuals in such settings. Docketing may also be necessary in some circumstances where a statute like this one specifically requires that essential “information or data” upon which a rule is based be docketed. But in the absence of any further Congressional requirements, we hold that it was not unlawful in this case for EPA not to docket a face-to-face policy session involving the President and EPA officials during the post-comment period, since EPA makes no effort to base the rule on any “information or data” arising from that meeting. Where the President himself is directly involved in oral communications with Executive Branch officials, Article II considerations — combined with the strictures of Vermont Yankee — require that courts tread with extraordinary caution in mandating disclosure beyond that already required by statute.

The purposes of full-record review which underlie the need for disclosing ex parte conversations in some settings do not require that courts know the details of every White House contact, including a Presidential one, in this informal rulemaking setting. After all, any rule issued here with or without White House assistance must have the requisite factual support in the rulemaking record, and under this particular statute the Administrator may not base the rule in whole or in part on any “information or data” which is not in the record, no matter what the source. The courts will monitor all this, but they need not be omniscient to perform their role effectively. Of course, it is always possible that undisclosed Presidential prodding may direct an outcome that is factually based on the record, but different from the outcome that would have obtained in the absence of Presidential involvement. In such a case, it would be true that the political process did affect the outcome in a way the courts could not police. But we do not believe that Congress intended that the courts convert informal rulemaking into a rarified technocratic process, unaffected by political considerations or the presence of Presidential power. In sum, we find that the existence of intra-Executive Branch meetings during the post-comment period, and the failure to docket one such meeting involving the President, violated neither the procedures mandated by the Clean Air Act nor due process [...]

We are familiar with the appeals process in Article III courts, but what is the appeals process for agency adjudication?

According to the APA (5 U.S.C. Section 702), a person can sue an agency in federal court if they suffer a legal wrong or are aggrieved by an agency decision (so long as it is final according to 5 U.S.C. Section 704).

5 U.S.C. Section 706 provides a list of circumstances when a reviewing court can hold unlawful or set aside an agency action. (We will focus on these limitations in the "Judicial Review" section of our course.) As is true with rulemaking and adjudication processes, other statutes might set additional requirements or limitations on the judicial review process.

5 U.S.C. Section 706(2)(E) speaks to the review of formal adjudication decisions. It provides that, in cases subject to APA Sections 556 and 557, a reviewing court can declare unlawful and set aside an agency's finding or conclusion when it is "unsupported by substantial evidence." Even though Section 706 doesn't say anything specific about informal adjudication, the rest of 706 applies to final decisions from informal adjudication processes (so long as there are no statutes that preclude or limit the scope of review).

In Torres v. Mukasey, a court reviewed a Board of Immigration Appeals (BIA) order denying a petition for asylum under the Convention Against Torture. Immigration Court proceedings are, technically, informal adjudication (not subject to APA Section 556 and 557's procedural reequirements), but they are "formal-like." This case is an example of an instance where a Petitioner's attorneys successfully demonstrated that an Immigration Judge was not supported by substantial evidence.

KANNE, Circuit Judge.

Pedro Flores Torres, a native and citizen of Honduras, seeks asylum, withholding of removal, and relief under the Convention Against Torture. Torres claims that he was persecuted while a soldier in the Honduran army because of his membership in a social group — namely, his family, which included four older brothers, three of whom were military deserters. Torres asserts that he was tortured and abused as punishment for his brothers' actions. On May 31, 2006, Immigration Judge Carlos Cuevas declined Torres's primary requests for asylum, withholding of removal, and protection under the Convention Against Torture, granting instead his alternative prayer for voluntary departure. The IJ found that Torres lacked credibility because of, first, inconsistencies and omissions in Torres's written application for asylum and his testimony at a series of immigration hearings, and second, Torres's inability to establish the requisite nexus between Torres's mistreatment and his family's unfavorable reputation in the Honduran military. The Board of Immigration Appeals summarily affirmed the IJ's decision in an order issued February 15, 2008. We find that the IJ's credibility determination was tainted due to the IJ's improper conduct during the hearings and that there was not substantial evidence to support the IJ's conclusions. We vacate the decisions of the BIA and IJ and remand for further proceedings.

I. History

[...] Pedro's four older brothers were conscripted into the Honduran navy, where each spent at least some time at the naval base in Amapala, near the El Salvadoran border. While serving, each of the four older sons endured brutal mistreatment at the hands of his superiors. Three of the four ultimately deserted the navy to escape these abuses [...] The tale of the Flores Torres brothers has apparently gained some notoriety within Honduran military circles: the Flores Torres clan is known as a family of deserters [...] Pedro, the youngest son and the last to serve in the military, also was forced to pay for the perceived offenses of his four brothers.

Born September 26, 1979, Pedro Alfredo Flores Torres attended school in Comayagua until age eleven. For the next eleven years, he painted automobiles for car repair shops, earning money to help support his mother.

Pedro stated in both his written asylum application and his testimony before the immigration judge that in February 2002, two Honduran soldiers left notice at Guadalupe's home that Pedro had twenty-four hours to report for military duty. Although military service is no longer compulsory in Honduras, Pedro testified that he felt he "did not have any other option" but to enlist. If he did not, Pedro believed that he would be found and beaten, or worse, would simply "disappear." The next day, Pedro reported to the Primer Battalon de Artilleria, an inland army base near the town of Zambrano, where he became a member of the artillery corps.

According to Pedro's testimony, upon reporting for duty he was confronted by his commanding officer, Colonel Luis Martinez. Pedro testified that Martinez said to him, "I was waiting.... You are the last one in the family."

Pedro claimed that he was subjected almost immediately to physical and mental abuse from his superiors — mistreatment above and beyond anything suffered by other soldiers. Pedro stated that officers and other soldiers called him degrading names and violently beat him. According to his affidavit, Pedro's fellow soldiers and a superior officer told Pedro that his mistreatment was "because of [his] brothers."

Pedro mounted two unsuccessful escape attempts during his first six months of service. The first, which came approximately five months into Pedro's tenure, ended with a savage beating at the hands of military guards who apprehended Pedro in the act of fleeing. The second came only a week later and again ended with a beating from a guard's baton. Following the second attempt, Pedro was stripped of his clothing and locked in solitary confinement, a place Pedro called "the hole."

In his affidavit, Pedro said the hole was "what hell must be like." A darkened room measuring one meter on all sides, the hole provided no space for its captive to lie down. There was little ventilation, and the heat was intense. Because he could not leave, Pedro was forced to use the hole to relieve himself. For forty days, Pedro remained trapped, nude, in his own excrement; the stench was overwhelming. During those forty days, Pedro was given beans and tortillas once a day, as well as two small servings of water. When he finally emerged, Pedro had lost forty pounds, one-third of his body weight.

Seventeen months after he joined the Honduran army, Pedro succeeded in escaping during a military celebration. After a brief visit with his mother, whom the military had prevented Pedro from seeing during his time in the army, Pedro began his journey north to seek refuge with his family in the United States. He now lives near his brother and two sisters in Elkhart.

II. Analysis

An IJ's decision to deny a petition for asylum and withholding of removal is a finding of fact that we review for substantial evidence. We must affirm the immigration court's decision if it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole." When, as here, the BIA adopts the reasoning of the IJ, we review the IJ's decision under this deferential standard. 

The IJ rejected all three of Torres's claims — for asylum, withholding of removal, and protection under the Convention Against Torture — solely because the IJ found that Torres's evidence lacked credibility.

One of an immigration judge's primary functions is to assess the credibility of an applicant's evidence. When making a credibility determination, an IJ evaluates the applicant's claims "only for internal consistency, detail, and plausibility." The IJ's credibility finding is often paramount "[b]ecause direct authentication or verification of an alien's testimony and/or evidence is typically very difficult and often impossible." In lieu of direct evidence, [a petitioner for asylum's] credible testimony, by itself, is generally sufficient to sustain the alien's burden of proof. If the IJ finds an alien's testimony to be incredible, however, then the alien must provide either a convincing explanation for the noted discrepancies in his evidence or credible evidence that corroborates his claims.

If the IJ's credibility determination is supported by "specific, cogent reasons that bear a legitimate nexus to the finding," then this court will be highly deferential in its review of that conclusion. We will not, however, "defer to credibility determinations drawn from insufficient or incomplete evidence, nor shall we uphold adverse credibility determinations based on speculation or conjecture, rather than on evidence in the record."

In addition, we have recognized that an IJ's improper behavior while conducting an immigration hearing can render his credibility determinations unreliable. The record reveals that the IJ's conduct had that effect here. Thus, before beginning our substantive review of the specific reasons the IJ gave in support of his adverse credibility determination, we find it necessary to discuss our disapproval of the IJ's conduct during Torres's hearings.

1. The Immigration Judge's Conduct During the Hearings

For purposes of developing the record, an immigration judge may question an applicant for asylum during a hearing. In so doing, the IJ may not "demonstrate impatience, hostility, or a predisposition against the applicant's claim." We have overturned an IJ's credibility findings when the IJ does more than "ask ... a few questions," but instead "actively interject[s] himself into the proceedings, far exceed[s] his role of developing the record, and at times assume[s] an inquisitorial role." That is exactly what the IJ did here.

The transcripts of Torres's immigration hearings are littered with lengthy discourses by the IJ. In fact, it appears from the transcripts that direct questioning by the IJ occupied more than half of the hearings. The IJ's impatience with Torres was glaring, even through the emotionless pages of the hearing transcript. The IJ grew frustrated with the language barrier, a problem the IJ exacerbated by his unwillingness to give Torres the time he needed to compose his thoughts into meaningful sentences. Instead, the IJ assumed the role of inquisitor, incessantly interrupting Torres while he tried to assimilate his responses. The IJ's questioning was so pervasive that it was often difficult to determine who was representing the federal government with more fervor — the IJ or the government's attorney.

At times the IJ's comments crossed the line. During one particularly troubling exchange concerning the occasions on which Martinez forced Torres to run nude in front of his unit, the IJ, noting the heat in Honduras, said, "I guess my point is that if it was hot outside, you'd rather run with less clothes, not naked. But you'd rather run with less clothes because it's more comfortable." (R. at 224.) The IJ seemed to be implying that Colonel Martinez, by forcing Torres to run nude in extreme heat, was actually doing him a favor.

At other times during the hearings, the IJ drew wholly unsubstantiated comparisons between service in the Honduran and American militaries. In the course of his questioning, the IJ referred to "boot camp" and "drill sergeants," common American military concepts that were clearly unfamiliar to Torres. At one point, the IJ referenced a "signal man" in a question to Torres. When Torres's counsel asked the IJ to clarify the term, the IJ replied simply, "He would know."

Although we do not believe, as Torres argues, that the IJ's conduct was so egregious as to violate Torres's due process rights, we do find that the IJ's overactive role during the hearings, his demonstrated impatience, his improper lines of questioning, and his reliance on personal knowledge beyond the facts in the record tainted his credibility findings. This conclusion, by itself, is sufficient to remand the case. See id. Because the IJ made additional errors in his analysis, however, we turn briefly to his substantive findings [...]

3. The Nexus for Torres's Mistreatment as a Precondition to Credibility

A successful asylee must show that he was persecuted because of his race, religion, nationality, membership in a particular social group, or political opinion. Our prior opinions make it clear that we consider family to be a cognizable social group within the meaning of the immigration law [...]

Torres's testimony is rife with examples that provide his family's history as the nexus for his mistreatment. Throughout the hearing, Torres noted the numerous occasions on which Colonel Martinez, his primary persecutor, referenced Torres's family while inflicting harm on Torres [...]

The IJ disregarded these statements and numerous others like them scattered throughout Torres's testimony. Instead, the IJ focused on purported inconsistencies regarding Martinez's involvement in, and motivation for, the mistreatment of Torres. In particular, the IJ questioned (1) why Martinez, if he played such a pivotal role in Torres's mistreatment, was not named in Torres's written asylum application; (2) why Martinez would say he knew Torres's mother, while Guadalupe had no recollection of Martinez; (3) the plausibility of Torres's story about his family's military reputation in light of the different branches of military involved, the distance between the implicated military bases, and the length of time between the service of Torres's brothers and his own; and (4) whether Torres's mistreatment was punishment for his poor performance and his improper acts, not for his family's affronts to the Honduran military. None of these provides a sound basis for the IJ's adverse credibility finding.

This court has stated that "we will not automatically yield to the IJ's conclusions when they are drawn from insufficient or incomplete evidence." Similarly, we will not uphold credibility determinations "`based on speculation or conjecture, rather than on evidence in the record.'"

Keeping these things in mind, we turn first to Martinez's purported absence from Torres's affidavit. Other circuits have recognized that the "failure to file an application form that was as complete as might be desired cannot, without more, properly serve as the basis for a finding of a lack of credibility." A reading of the affidavit in this case reveals that although it does not mention Martinez by name, it does reference the role of Torres's "supervisors" and "officers" in his mistreatment. In the affidavit, Torres noted that he was singled out for mistreatment by his "supervisors." He also stated that "an officer who was training me told me directly that I received mistreatment because my last name was Flores Torres." We find this to be more than ample specificity for the affidavit and in no way contradictory with Torres's subsequent testimony. There is no basis here for an adverse credibility determination.

Next, we find it irrelevant to Torres's claim whether Martinez knew Guadalupe Torres. Again, what matters is whether Martinez knew of Torres's brothers and their history in the Honduran military. Martinez's relationship, or lack thereof, with Guadalupe has little or no bearing on this [...]

Third, the IJ speculated that Martinez did not know the history of the Flores Torres family. Without this information, Martinez would have no reason to persecute Torres on account of his membership in that family. In reaching this conclusion, the IJ found persuasive that Torres served in a different branch of the military (the Honduran army) than did his four brothers (all of whom served in the Honduran navy). He also noted the long distance between the naval base located in Amapala, where Torres's brothers served, and the army base near Zambrano, which is where Torres was stationed. Finally, the IJ discussed the length of time between when Mario, Torres's oldest brother, served, and when Torres served. The problem, however, is that the conclusion that Martinez was unaware of the Flores Torres family's reputation within Honduran military circles is wholly without support in the record. The only evidence is unequivocal on this point. It shows that Martinez was well-versed in the exploits of the Flores Torres boys. The IJ's attempts to cobble together a different story are based n nothing but speculation and conjecture [...]

By far the most troubling aspect of Torres's application for asylum is that he omitted three separate series of significant events from his written application for asylum. Torres described these events in detail during his hearings before the IJ, but he failed to mention them at all in his written application [...]

When, as here, a petitioner for asylum is faced with an adverse credibility finding based on material inconsistencies or omissions, the petitioner may counter with "a convincing explanation of the discrepancies or extrinsic — and credible — corroborating evidence." At many junctures during his testimony, Torres provided explanations for the omissions from his application. Torres stated that he remained afraid of Martinez and that the omitted events had been humiliating. He was hesitant to discuss such humiliations with his attorney, who was nothing more than a stranger at the time she helped him construct his initial application and accompanying affidavit. As Torres explained during the hearings, only after he became more familiar with his attorney and began to trust her did he come forward with the additional information.

The IJ chose to disregard these explanations. The IJ, without additional justification, said only that "the respondent could not offer any persuasive reason as to why he had not detailed [these events] in his affidavit." In reviewing this conclusion, we return to our earlier finding that the IJ's conduct during the hearing tainted his analysis. Applying that finding to this situation, we conclude that the IJ's opinion that these explanations were unpersuasive is incurably tainted by his improper conduct during the hearing and prejudiced by his continued reliance on facts either immaterial to Torres's claims or derived from the ether of the IJ's imagination. See Huang, 403 F.3d at 950-51. Although we will generally defer to the weight an IJ gives to a proffered explanation, we will not do so when the IJ's own conduct and flawed analysis serve to make the finding itself wholly unreliable.

III. Conclusion

We conclude that the IJ's credibility determination was not based on "specific, cogent reasons that bear a legitimate nexus to the findings," and was therefore in error. Accordingly, the decision to deny Torres's petition for asylum, withholding of removal, and protection under the Convention Against Torture was not supported by substantial evidence. We VACATE the BIA's order for voluntary departure and REMAND for further proceedings in accordance with this opinion. As we have done on prior occasions,  we encourage the BIA to assign a different judge to this case on remand.