A. The Line Between Rulemaking and Adjudication: An Overview

This semester, we have 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. 

We are now 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.

B. Introduction to Adjudication

According to the APA, when an agency’s final disposition is not 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 (rulemaking), and quasi-judicial orders (adjudication). 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 adjudications look like simple bureaucratic decisions while other adjudications look a lot like courtroom proceedings. 

For example, if Priya’s application for Supplemental Security Income* (SSI)—SSI is a federal entitlement program designed to provide supplemental income to disabled adults and children who fall below a certain income (likely living below the federal poverty level)—is denied, a few adjudications take place. 

First, Priya’s initial SSI (and any subsequent request for a determination on reconsideration of that denial) is a form of an adjudication. Meaning, the state agency that runs the SSI program reviewed Priya’s medical information, income, and other criteria and determined that she did not qualify for SSI. This decision is a form of an adjudication: the agency looked at all the facts of Priya’s case and determined whether she met the legal standards to receive SSI benefits. 

Second, Priya can then ask for a de novo hearing in the state agency that contracts with the Social Security Administration). This is usually called a “fair hearing,” which takes on many characteristics of a court proceeding. When Priya requests a fair hearing, she then has a right to receive all of the information (evidence) that the state agency relied on to make the determination to deny her SSI application. 

On the day of her hearing, Priya will  appear before an Administrative Law Judge (ALJ) at the fair hearing. Priya can present testimony and witnesses as to why her SSI application should be granted. Priya can also cross-examine any agency representative who provided information that is detrimental to her case. A decision is made by the ALJ based on the record presented at the hearing and a final written decision of the decision is issued.  In ALJ proceedings, the Federal Rules of Evidence do not apply. The agency also does not have an attorney to represent its interests, but generally uses an agent representative to present the evidence used to make the challenged determination. 

Other adjudication proceedings can look more prosecutorial with agency attorneys who prosecute people that violate laws seeking agency orders conferring penalties before administrative law judges (ALJs).

And some adjudication hearings don't feel like hearings, but just bureaucratic handlings. For example, when people apply for benefits, such as Medicaid, federal student loans, or unemployment, an agency order is made without a hearing, attorneys, or judges (similar to Priya’s initial SSI determination).

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

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.

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. 

Section 554 is triggered only in cases of (1) adjudication – as defined by the APA – where (2) Congress expressed its clear intent in the agency’s statute that the adjudication must be “determined on the record” and “after opportunity for an agency hearing.” This language should sound familiar (remember, in agency rule making, courts have interpreted APA Section 553(c), to trigger APA Sections 556 and 557 requirements only when enabling statutes passed by Congress mandate rules be made “on the record” and “after opportunity for an agency hearing.” See, e.g., Allegheny-Ludlum Steel Corp. and Florida East Coast Railway Co.).

When applied together (§§ 554, 556, and 557), results is a formal adjudicatory proceeding that resembles a court proceeding. Referred to in Administrative law as “formal adjudications.” In summary, Section 554 governs agency adjudications “required by statute to be determined on the record after opportunity for an agency hearing,” except as otherwise listed. Collectively, the requirements in Sections 554, 556, and 557 require procedures like those in a court trial without a jury and with an Administrative Law Judge (ALJ) presiding. Priya’s SSI hearing, as described above, is an example of a formal adjudication.

Below is a chart showing what APA Sections apply to formal and informal rulemaking and adjudication. For another helpful chart, see Jellum, page 71. 

When formal adjudication is not triggered by  Section 554 (magic language: "on the record after opportunity for an agency hearing") or otherwise required by statute or regulation, the minimal procedural requirements in APA Section 555 apply. Section 555 of the APA applies to all adjudications, but plays an important role in informal proceedings since the APA is silent on what (if any) further procedure is due in informal hearings. 

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. 

The terms formal and informal adjudication can be misleading in practice. Some informal adjudications are 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 (since the APA provides minimal guidance for informal adjudications). 

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. A bright-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)

1.     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.

The relevant facts adduced at the representation hearing are as follows. The purchasing and procurement department receives requisition orders from other departments at the plant and is responsible for purchasing all of the company's needs from outside suppliers. Some items are standardized and may be purchased ‘off the shelf’ from various distributors and suppliers. Other items must be made to the company's specifications, and the requisition orders may be accompanied by detailed blueprints and other technical plans. Requisitions often designate a particular vendor, and in some instances the buyer must obtain approval before selecting a different one. Where no vendor is specified, the buyer is free to choose one.

Absent specific instructions to the contrary, buyers have full discretion, without any dollar limit, to select prospective vendors, draft invitations to bid, evaluate submitted bids, negotiate price and terms, and prepare purchase orders. Buyers execute all purchase orders up to $50,000. They may place or cancel orders of less than $5,000 on their own signature. On commitments in excess of $5,000, buyers must obtain the approval of a superior, with higher levels of approval required as the purchase cost increases. For the Minute Man missile project, which represents 70% of the company's sales, purchase decisions are made by a team of personnel from the engineering, quality assurance, finance, and manufacturing departments. The buyer serves as team chairman and signs the purchase order, but a representative from the pricing and negotiation department participates in working out the terms.

After the representation hearing, the Regional Director transferred the case to the Board. On May 20, 1971, the Board issued its decision holding that the company's buyers constituted an appropriate unit for purposes of collective bargaining and directing an election. 190 N.L.R.B. 431. Relying on its recent decision [], the Board first stated that even though the company's buyers might be ‘managerial employees,' they  were nevertheless covered by the Act and entitled to its protections. The Board then rejected the company's alternative contention that representation should be denied because the buyers' authority to commit the company's credit, select vendors, and negotiate purchase prices would create a potential conflict of interest between the buyers as union members and the company.

In essence, the company argued that buyers would be more receptive to bids from union contractors and would also influence ‘make or buy’ decisions in favor of ‘make,’ thus creating additional work for sister unions in the plant. The Board thought, however, that any possible conflict was ‘unsupported conjecture’ since the buyers' ‘discretion and latitude for independent action must take place within the confines of the general directions which the Employer has established’ and that ‘any possible temptation to allow sympathy for sister unions to influence such decisions could effectively be controlled by the Employer.’ 

On June 16, 1971, a representation election was conducted in which 15 of the buyers voted for the union and nine against. On August 12, the Board certified the union as the exclusive bargaining representative for the company's buyers. That same day, however, the Court of Appeals for the Eighth Circuit denied enforcement of another Board order in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F.2d 602, and held that ‘managerial employees' were not covered by the Act and were therefore not entitled to its protections.³ Id., at 610.

Encouraged by the Eighth Circuit's decision, the company moved the Board for reconsideration of its earlier order.  The Board denied the motion, 196 N.L.R.B. 827 (1972), stating that it disagreed with the Eighth Circuit and would adhere to its own decision in North Arkansas. In the Board's view, Congress intended to exclude from the Act only those ‘managerial employees' associated with the ‘formulation and implementation of labor relations policies.’ Id., at 828. In each case, the ‘fundamental touchstone’ was ‘whether the duties and responsibilities of any managerial employee or group of managerial employees do or do not include determinations which should be made free of any conflict of interest which could arise if the person involved was a participating member of a labor organization’. Ibid. Turning to the present case, the Board reiterated its prior finding that the company had not shown that union organization of its buyers would create a conflict of interest in labor relations.

The company stood by its contention that the buyers, as ‘managerial employees,’ were not covered by the Act and refused to bargain with the union. An unfair labor practice complaint resulted in a Board finding that the company had violated ss 8(a)(5) and (1) of the Act, 29 U.S.C. ss 158(a)(5) and (1), and an order compelling the company to bargain with the  union. 197 N.L.R.B. 209 (1972). Subsequently, the company petitioned the United States Court of Appeals for the Second Circuit for review of the order and the Board cross-petitioned for enforcement. The Court of Appeals denied enforcement. […] We granted the Board's petition for certiorari. 414 U.S. 816, 94 S.Ct. 47, 38 L.Ed.2d 49.

We begin with the question whether all ‘managerial employees,’ rather than just those in positions susceptible to conflicts of interest in labor relations, are excluded from the protections of the Act. […] [We] conclude, as did the Court of Appeals, that Congress intended to exclude from the protections of the Act all employees properly classified as ‘managerial.’

[…]

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 s 6 of the Act, 29 U.S.C. s 156. We disagree.

At the outset, the precise nature of the present issue must be noted. […] [T]he 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 so far this semeseter, 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 state and federal agencies provide people notice and the opportunity to be heard by a neutral decisionmaking before being denied life, liberty, or property.

The Due Procress Clause provides certain procedural protections in state and federal informal adjudications (beyond what is provided under APA Sec. 555)

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, 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)

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 [of Colorado] 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 [...] 

The board of public works, upon the petition of a majority of the owners of the frontage to be assessed, may order the paving of a street. The board must, however, first) adopt specifications, mark out a district of assessment, *376 cause a map to be made and an estimate of the cost, with the approximate amount to be assessed upon each lot of land. Before action, notice by publication and an opportunity to be heard to any person interested must be given by the board.

The board may then order the improvement, but must recommend to the city council a form of ordinance authorizing it, and establishing an assessment district, which is not amendable by the council. The council may then, in its discretion, pass or refuse to pass the ordinance. If the ordinance is passed, the contract for the work is made by the mayor. The charter provides that ‘the finding of the city council, by ordinance, that any improvements provided for in this article were duly ordered after notice duly given, or that a petition or remonstrance was or was not filed as above provided, or was or was not subscribed by the required number of owners aforesaid, shall be conclusive in every court or other tribunal.

[…]

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 [of Colorado] 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,-- here, for instance, before a superior board decides that the local taxing officers have adopted a system of undervaluation throughout a county, as notoriously often has been the case. The answer of this court in the State Railroad Tax Cases, 92 U.S. 575 (1875), at least as to any further notice, was that it was hard to believe that the proposition was seriously made.

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.

Goldberg v. Kelly introduced the right to procedural due process. This case confronted the issue of what procedures are required before the government can terminate an individual's welfare benefits.  

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.” 

[...]

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 fiscal 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 fiscal 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.

In our study of procedural due process, 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.

We will next 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

Over the years, following the holding in Goldberg (which examined a statutory entitlement) courts consider whether there is an entitlement to a benefit that qualifies it as a property interest, and therefore warrants due process protections. Roth demonstrates how the court assesses whether there is a property interest at stake that triggers procedural due process requirements.

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.

■ Mr. Justice Douglas, dissenting.

Respondent Roth, like Sindermann in the companion case, had no tenure under Wisconsin law and, unlike Sindermann, he had had only one year of teaching at Wisconsin State University-Oshkosh—where during 1968–1969 he had been Assistant Professor of Political Science and International Studies. 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 also criticized the university’s regime as being authoritarian and autocratic. He used his classroom to discuss what was being done about the black episode; and one day, instead of meeting his class, he went to the meeting of the Board of Regents.

* * *

There may not be a constitutional right to continued employment if private schools and colleges are involved. But . . . when public schools move against faculty members . . . the First Amendment, applicable to the States by reason of the Fourteenth Amendment, protects the individual against state action when it comes to freedom of speech and of press and the related freedoms guaranteed by the First Amendment; and the Fourteenth protects “liberty” and “property” as stated by the Court in Sindermann.

No more direct assault on academic freedom can be imagined than for the school authorities to be allowed to discharge a teacher because of his or her philosophical, political, or ideological beliefs. The same may well be true of private schools, if through the device of financing or other umbilical cords they become instrumentalities of the State.

■ Mr. Justice Marshall, dissenting.

I would go further than the Court does in defining the terms “liberty” and “property.”
The prior decisions of this Court, discussed at length in the opinion of the Court, establish a principle that is as obvious as it is compelling—i.e., federal and state governments and governmental agencies are restrained by the Constitution from acting arbitrarily with respect employment opportunities that they either offer or control. Hence, it is now firmly established that whether or not a private employer is free to act capriciously or unreasonably with respect to employment practices, at least absent statutory or contractual controls, a government employer is different. The government may only act fairly and reasonably.
This Court has long maintained that “the right to work for a living in the common occupation of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41 (1915) (Hughes, J.).

* * *

In my view, every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment. This is the “property” right that I believe is protected by the Fourteenth Amendment and that cannot be denied “without due process of law.” And it is also liberty—liberty to work—which is the “very essence of the personal freedom and opportunity” secured by the Fourteenth Amendment.

* * *

Employment is one of the greatest, if not the greatest, benefits that governments offer in modern-day life. When something as valuable as the opportunity to work is at stake, the government may not reward some citizens and not others without demonstrating that its actions are fair and equitable. And it is procedural due process that is our fundamental guarantee of fairness, our protection against arbitrary, capricious, and unreasonable government action.
—————

Liberty Interests

Besides property interests, liberty interests are sometimes at stake in agency actions. In Meyer v. Nebraska, 262 U.S. 390 (1923) the Supreme Court defined “liberty” to include privileges recognized as “essential to the orderly pursuit of happiness.” In the following cases, courts determine whether agency actions deprive people of liberty and trigger procedural due process requirements in a variety of circumstances.

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.

Vitek v. Jones
100 S.Ct. 1254 (1980)

Argued December 3, 1979

Mr. Justice White delivered the 5-4 opinion of the Court, except as to Part IV-B.

The question in this case is whether the Due Process Clause of the Fourteenth Amendment entitles a prisoner convicted and incarcerated in the State of Nebraska to certain procedural protections, including notice, an adversary hearing, and provision of counsel, before he is transferred involuntarily to a state mental hospital for treatment of a mental disease or defect.

I

Nebraska Rev. Stat. § 83-176 (2) (1976) authorizes the Director of Correctional Services to designate any available, suitable, and appropriate residence facility or institution as a place of confinement for any state prisoner and to transfer a prisoner from one place of confinement to another. Section 83-180 (1), however, provides that when a designated physician or psychologist finds that a prisoner “suffers from a mental disease or defect” and “cannot be given proper treatment in that facility,” the director may transfer him for examination, study, and treatment to another institution within or without the Department of Correctional Services. Any prisoner so transferred to a mental hospital is to be returned to the Department if, prior to the expiration of his sentence, treatment is no longer necessary. Upon expiration of sentence, if the State desires to retain the prisoner in a mental hospital, civil commitment proceedings must be promptly commenced. § 83-180 (3). 

On May 31, 1974, Jones was convicted of robbery and sentenced to a term of three to nine years in state prison. He was transferred to the penitentiary hospital in January 1975. Two days later he was placed in solitary confinement, where he set his mattress on fire, burning himself severely. He was treated in the burn unit of a private hospital. Upon his release and based on findings required by § 83-180 that he was suffering from a mental illness or defect and could not receive proper treatment in the penal complex, he was transferred to the security unit of the Lincoln Regional Center, a state mental hospital under the jurisdiction of the Department of Public Institutions.

Jones then intervened in this case, which was brought by other prisoners against the appropriate state officials (the State) challenging on procedural due process grounds the adequacy of the procedures by which the Nebraska statutes permit transfers from the prison complex to a mental hospital. On August 17, 1976, a three-judge District Court, convened pursuant to 28 U. S. C. § 2281 (1970 ed.)  denied the State’s motion for summary judgment and trial ensued. On September 12, 1977, the District Court declared § 83-180 unconstitutional as applied to Jones, holding that transferring Jones to a mental hospital without adequate notice and opportunity for a hearing deprived him of liberty without due process of law contrary to the Fourteenth Amendment and that such transfers must be accompanied by adequate notice, an adversary hearing before an independent decisionmaker, a written statement by the factfinder of the evidence relied on and the reasons for the decision, and the availability of appointed counsel for indigent prisoners. Miller v. Vitek, 437 F. Supp. 569 (Neb. 1977). Counsel was requested to suggest appropriate relief.

In response to this request, Jones revealed that on May 27, 1977, prior to the District Court’s decision, he had been transferred from Lincoln Regional Center to the psychiatric ward of the penal complex but prayed for an injunction against further transfer to Lincoln Regional Center. The State conceded that an injunction should enter if the District Court was firm in its belief that the section was unconstitutional. The District Court then entered its judgment declaring § 83-180 unconstitutional as applied to Jones and permanently enjoining the State from transferring Jones to Lincoln Regional Center without following the procedures prescribed in its judgment.

[…]

III

On the merits, the threshold question in this case is whether the involuntary transfer of a Nebraska state prisoner to a mental hospital implicates a liberty interest that is protected by the Due Process Clause. The District Court held that it did and offered two related reasons for its conclusion. The District Court first identified a liberty interest rooted in § 83-180 (1), under which a prisoner could reasonably expect that he would not be transferred to a mental hospital without a finding that he was suffering from a mental illness for which he could not secure adequate treatment in the correctional facility. Second, the District Court was convinced that characterizing Jones as a mentally ill patient and transferring him to the Lincoln ^Regional Center had “some stigmatizing” consequences which, together with the mandatory behavior modification treatment to which Jones would be subject at the Lincoln Center, constituted a major change in the conditions of confinement amounting to a “grievous loss” that should not be imposed without the opportunity for notice and an adequate hearing. We agree with the District Court in both respects.

A

We have repeatedly held that state statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment. There is no “constitutional or inherent right” to parole, Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 7 (1979), but once a State grants a prisoner the conditional liberty properly dependent on the observance of special parole restrictions, due process protections attach to the decision to revoke parole. Morrissey v. Brewer, 408 U. S. 471 (1972). The same is true of the revocation of probation. Gagnon v. Scarpelli, 411 U. S. 778 (1973). In Wolff v. McDonnell, 418 U. S. 539 (1974), we held that a state-created right to good-time credits, which could be forfeited only for serious misbehavior, constituted a liberty interest protected by the Due Process Clause. We also noted that the same reasoning could justify extension of due process protections to a decision to impose “solitary” confinement because “[it] represents a major change in the conditions of confinement and is normally imposed only when it is claimed and proved that there has been a major act of misconduct.” Id., at 571-572, n. 19. Once a State has granted prisoners a liberty interest, we held that due process protections are necessary “to insure that the state-created right is not arbitrarily abrogated.” Id., at 557.

In Meachum v. Fano, 427 U. S. 215 (1976), and Montanye v. Haymes, 427 U. S. 236 (1976), we held that the transfer of a prisoner from one prison to another does not infringe a protected liberty interest. But in those cases transfers were discretionary with the prison authorities, and in neither case did the prisoner possess any right or justifiable expectation that he would not be transferred except for misbehavior or upon the occurrence of other specified events. Hence, “the predicate for invoking the protection of the Fourteenth Amendment as construed and applied in Wolff v. McDonnell [was] totally nonexistent.” Meachum v. Fano, supra, at 226-227.

Following Meachum v. Fano and Montanye v. Haymes, we continued to recognize that state statutes may grant prisoners liberty interests that invoke due process protections when prisoners are transferred to solitary confinement for disciplinary or administrative reasons. Enomoto v. Wright, 434 U. S. 1052 (1978), summarily aff'g 462 F. Supp. 397 (ND Cal. 1976). Similarly, in Greenholtz v. Nebraska Penal Inmates, supra, we held that state law granted petitioners a sufficient expectancy of parole to entitle them to some measure of constitutional protection with respect to parole decisions.

We think the District Court properly understood and applied these decisions. Section 83-180 (1) provides that if a designated physician finds that a prisoner “suffers from a mental disease or defect” that “cannot be given proper treatment” in prison, the Director of Correctional Services may transfer a prisoner to a mental hospital. The District Court also found that in practice prisoners are transferred to a mental hospital only if it is determined that they suffer from a mental disease or defect that cannot adequately be treated within the penal complex. 

This “objective expectation, firmly fixed in state law and official Penal Complex practice,” that a prisoner would not be transferred unless he suffered from a mental disease or defect that could not be adequately treated in the prison, gave Jones a liberty interest that entitled him to the benefits of appropriate procedures in connection with determining the conditions that warranted his transfer to a mental hospital. Under our cases, this conclusion of the District Court is unexceptionable.

Appellants maintain that any state-created liberty interest that Jones had was completely satisfied once a physician or psychologist designated by the director made the findings required by §83-180(1) and that Jones was not entitled to any procedural protections. But if the State grants a prisoner a right or expectation that adverse action will not be taken against him except upon the- occurrence of specified behavior, “the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed.” Wolff v. McDonnell, 418 U. S., at 558. These minimum requirements being a matter of federal law, they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action. 

In Morrissey, Gagnon, and Wolff, the States had adopted their own procedures for determining whether conditions warranting revocation of parole, probation, or good-time credits had occurred; yet we held that those procedures were constitutionally inadequate. In like manner, Nebraska’s reliance on the opinion of a designated physician or psychologist for determining whether the conditions warranting a transfer exist neither removes the prisoner’s interest from due process protection nor answers the question of what process is due under the Constitution.

B

The District Court was also correct in holding that independently of § 83-180 (1), the transfer of a prisoner from a prison to a mental hospital must be accompanied by appropriate procedural protections. The issue is whether after a conviction for robbery, Jones retained a residuum of liberty that would be infringed by a transfer to a mental hospital without complying with minimum requirements of due process.

We have recognized that for the ordinary citizen, commitment to a mental hospital produces “a massive curtailment of liberty,” Humphrey v. Cady, 405 U. S. 504, 509 (1972), and in  consequence “requires due process protection.” Addington v. Texas, 441 U. S. 418, 425 (1979); O’Connor v. Donaldson, 422 U. S. 563, 580 (1975) (Burger, C. J., concurring). The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement. It is indisputable that commitment to a mental hospital “can engender adverse social consequences to the individual” and that “[w]hether we label this phenomena 'stigma’ or choose to call it something else ... we recognize that it can occur and that it can have a very significant impact on the individual.” Addington v. Texas, supra, at 425-426. See also Parham v. J. R., 442 U. S. 584, 600 (1979). 

Also, “[a]mong the historic liberties” protected by the Due Process Clause is the “right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.” Ingraham v. Wright, 430 U. S. 651, 673 (1977). Compelled treatment in the form of mandatory behavior modification programs, to which the District Court found Jones was exposed in this case, was a proper factor to be weighed by the District Court. Cf. Addington v. Texas, supra, at 427.

The District Court, in its findings, was sensitive to these concerns:

“[T]he fact of greater limitations on freedom of action at the Lincoln Regional Center, the fact that a transfer to the Lincoln Regional Center has some stigmatizing consequences, and the fact that additional mandatory behavior modification systems are used at the Lincoln Regional Center combine to make the transfer a 'major change in the conditions of confinement’ amounting to a 'grievous loss’ to the inmate.” Miller v. Vitek, 437 F. Supp., at 573.

Were an ordinary citizen to be subjected involuntarily to these consequences, it is undeniable that protected liberty interests would be unconstitutionally infringed absent compliance with the procedures required by the Due Process Clause.  We conclude that a convicted felon also is entitled to the benefit of procedures appropriate in the circumstances before he is found to have a mental disease and transferred to a mental hospital.

Undoubtedly, a valid criminal conviction and prison sentence extinguish a defendant’s right to freedom from confinement. Greenholtz v. Nebraska Penal Inmates, 442 U. S., at 7. Such a conviction and sentence sufficiently extinguish a defendant’s liberty “to empower the State to confine him in any of its prisons.” Meachum v. Fano, 427 U. S., at 224 (emphasis deleted). It is also true that changes in the conditions of confinement having a substantial adverse impact on the prisoner are not alone sufficient to invoke the protections of the Due Process Clause “[a]s long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him.” Montanye v. Haymes, 427 U. S., at 242.

Appellants maintain that the transfer of a prisoner to a mental hospital is within the range of confinement justified by imposition of a prison sentence, at least after certification by a qualified person that a prisoner suffers from a mental disease or defect. We cannot agree. None of our decisions holds that conviction for a crime entitles a State not only to confine the convicted person but also to determine that he has a mental illness and to subject him involuntarily to institutional care in a mental hospital. Such consequences visited on the prisoner are qualitatively different from the punishment characteristically suffered by a person convicted of crime. 

Our cases recognize as much and reflect an understanding that involuntary commitment to a mental hospital is not within the range of conditions of confinement to which a prison sentence subjects an individual. Baxstrom v. Herold, 383 U. S. 107 (1966); Specht v. Patterson, 386 U. S. 605 (1967); Humphrey v. Cady, 405 U. S. 504 (1972); Jackson v. Indiana, 406 U. S. 715, 724-725 (1972). A criminal conviction and sentence of imprisonment extinguish an individual’s right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections.

In light of the findings made by the District Court, Jones’ involuntary transfer to the Lincoln Regional Center pursuant to § 83-180, for the purpose of psychiatric treatment, implicated a liberty interest protected by the Due Process Clause. Many of the restrictions on the prisoner’s freedom of action at the Lincoln Regional Center by themselves might not constitute the deprivation of a liberty interest retained by a prisoner, see Wolff v. McDonnell, 418 U. S., at 572, n. 19; cf. Baxter v. Palmigiano, 425 U. S. 308, 323 (1976). But here, the stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections.

IV

The District Court held that to afford sufficient protection to the liberty interest it had identified, the State was required to observe the following minimum procedures before transferring a prisoner to a mental hospital:

“A. Written notice to the prisoner that a transfer to a mental hospital is being considered;

“B. A hearing, sufficiently after the notice to permit the prisoner to prepare, at which disclosure to the prisoner is made of the evidence being relied upon for the transfer and at which an opportunity to be heard in person and to present documentary evidence is given;

“C. An opportunity at the hearing to present testimony of witnesses by the defense and to confront and cross-examine witnesses called by the state, except *495upon a finding, not arbitrarily made, of good cause for not permitting such presentation, confrontation, or cross-examination;

“D. An independent decisionmaker;

“E. A written statement by the factfinder as to the evidence relied on and the reasons for transferring the inmate;

“F. Availability of legal counsel, furnished by the state, if the inmate is financially unable to furnish his own; and

“G. Effective and timely notice of all the foregoing rights.” 437 F. Supp., at 575.

A

We think the District Court properly identified and weighed the relevant factors in arriving at its judgment. Concededly the interest of the State in segregating and treating mentally ill patients is strong. The interest of the prisoner in not being arbitrarily classified as mentally ill and subjected to unwelcome treatment is also powerful, however; and as the District Court found, the risk of error in making the determinations required by § 83-180 is substantial enough to warrant appropriate procedural safeguards against error.

We recognize that the inquiry involved in determining whether or not to transfer an inmate to a mental hospital for treatment involves a question that is essentially medical. The question whether an individual is mentally ill and cannot be treated in prison “turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.” Addington v. Texas, 441 U. S., at 429. The medical nature of the inquiry, however, does not justify dispensing with due process requirements. It is precisely “[t]he subtleties and nuances of psychiatric diagnoses” that justify the requirement of adversary hearings. Id., at 430.

Because prisoners facing involuntary transfer to a mental hospital are threatened with immediate deprivation of liberty *496interests they are currently enjoying and because of the inherent risk of a mistaken transfer, the District Court properly determined that procedures similar to those required by the Court in Morrissey v. Brewer, 408 U. S. 471 (1972), were appropriate in the circumstances present here.

The notice requirement imposed by the District Court no more than recognizes that notice is essential to afford the prisoner an opportunity to challenge the contemplated action and to understand the nature of what is happening to him. Wolff v. McDonnell, supra, at 564. Furthermore, in view of the nature of the determinations that must accompany the transfer to a mental hospital, we think each of the elements of the hearing specified by the District Court was appropriate. The interests of the State in avoiding disruption was recognized by limiting in appropriate circumstances the prisoner’s right to call witnesses, to confront and cross examine. The District Court also avoided unnecessary intrusion into either medical or correctional judgments by providing that the independent decisionmaker conducting the transfer hearing need not come from outside the prison or hospital administration. 437 F. Supp., at 574.

B

[This part is joined only by Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Stevens.]

The District Court did go beyond the requirements imposed by prior cases by holding that counsel must be made available to inmates facing transfer hearings if they are financially unable to furnish their own. We have not required the automatic appointment of counsel for indigent prisoners facing other deprivations of liberty, Gagnon v. Scarpelli, 411 U. S., at 790; Wolff v. McDonnell, supra, at 569-570; but we have recognized that prisoners who are illiterate and uneducated have a greater need for assistance in exercising their rights. Gagnon v. Scarpelli, supra, at 786-787; Wolff v. McDonnell, supra, at 570. 

A prisoner thought to be suffering from a mental disease or defect requiring involuntary treatment probably has an even greater need for legal assistance, for such a prisoner is more likely to be unable to understand or exercise his rights. In these circumstances, it is appropriate that counsel be provided to indigent prisoners whom the State seeks to treat as mentally ill.

V

Because Mr. Justice Powell, while believing that Jones was entitled to competent help at the hearing, would not require the State to furnish a licensed attorney to aid him, the judgment below is affirmed as modified to conform with the separate opinion filed by Mr. Justice Powell.

So ordered.

*

Mr. Justice Powell,

concurring in part.

I join the opinion of the Court except for Part IV-B. I agree with Part IV-B insofar as the Court holds that qualified and independent assistance must be provided to an inmate who is threatened with involuntary transfer to a state mental hospital. I do not agree, however, that the requirement of independent assistance demands that a licensed attorney be provided.

In Gagnon v. Scarpelli, 411 U. S. 778 (1973), my opinion for the Court held that counsel is not necessarily required at a probation revocation hearing. In reaching this decision the Court recognized both the effects of providing counsel to each probationer and the likely benefits to be derived from the assistance of counsel. “The introduction of counsel into a revocation proceeding [would] alter significantly the nature of the proceeding,” id., at 787, because the hearing would inevitably become more adversary. We noted that probationers would not always need counsel because in most hearings the essential facts are undisputed. In lieu of a per se rule we held that the necessity of providing counsel should be determined on a case-by-case basis. In particular, we stressed that factors governing the decision to provide counsel include (i) the existence of factual disputes or issues which are “complex or otherwise difficult to develop or present,” and (ii) “whether the probationer appears to be capable of speaking effectively for himself.” Id., at 790, 791.

Consideration of these factors, and particularly the capability of the inmate, persuades me that the Court is correct that independent assistance must be provided to an inmate before he may be transferred involuntarily to a mental hospital. The essence of the issue in an involuntary commitment proceeding will be the mental health of the inmate. The resolution of factual disputes will be less important than the ability to understand and analyze expert psychiatric testimony that is often expressed in language relatively incomprehensible to laymen. 

It is unlikely that an inmate threatened with involuntary transfer to mental hospitals will possess the competence or training to protect adequately his own interest in these state-initiated proceedings. And the circumstances of being imprisoned without normal access to others who may assist him places an additional handicap upon an inmate’s ability to represent himself. I therefore agree that due process requires the provision of assistance to an inmate threatened with involuntary transfer to a mental hospital.

II

I do not believe, however, that an inmate must always be supplied with a licensed attorney. “[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). See Mathews v. Eldridge, 424 U. S. 319, 334-335 (1976). Our decisions defining the necessary qualifications for an impartial decisionmaker demonstrate that the requirements of due process turn on the nature of the determination which must be made. “Due Process has never been thought to require that the neutral and detached trier of fact be law trained or a judicial or administrative officer.” Parham v. J. R., 442 U. S. 584, 607 (1979). In that case, we held that due process is satisfied when a staff physician determines whether a child may be voluntarily committed to a state mental institution by his parents. That holding was based upon recognition that the issues of civil commitment “are essentially medical in nature,” and that “ ‘neither judges nor administrative hearing officers are better qualified than psychiatrists to render psychiatric judgments.’ ” Id., at 607, 609, quoting In re Roger S., 19 Cal. 3d 921, 942, 569 P. 2d 1286, 1299 (1977) (Clark, J., dissenting). See also Morrissey v. Brewer, supra, at 489; Goldberg v. Kelly, 397 U. S. 254, 271 (1970).

In my view, the principle that due process does not always require a law-trained decisionmaker supports the ancillary conclusion that due process may be satisfied by the provision of a qualified and independent adviser who is not a lawyer. As in Parham v. J. R., the issue here is essentially medical. Under state law, a prisoner may be transferred only if he “suffers from a mental disease or defect” and “cannot be given proper treatment” in the prison complex. Neb. Rev. *500Stat. § 83-180 (1) (1976), The opinion of the Court allows a nonlawyer to act as the impartial decisionmaker in the transfer proceeding. Ante, at 496.2

The essence of procedural due process is a fair hearing. I do not think that the fairness of an informal hearing designed to determine a medical issue requires participation by lawyers. Due process merely requires that, the State provide an inmate with qualified and independent assistance. Such assistance may be provided by a licensed psychiatrist or other, mental health professional. Indeed, in view of the nature of the issue involved in the transfer hearing, a person possessing such professional qualifications normally would be preferred. As the Court notes, “[t]he question whether an individual is mentally ill and cannot be treated in prison ‘turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.’ ” Ante, at 495, quoting Addington v. Texas, 441 U. S. 418, 429 (1979). I would not exclude, however, the possibility that the required assistance may be rendered by competent laymen in some cases. The essential requirements are that the person provided by the State be competent and independent; and that he be free to act solely in the inmate’s best interest.

In sum, although the State is free to appoint a licensed attorney to represent an inmate, it is not constitutionally required to do so. Due process will be satisfied so long as an inmate facing involuntary transfer to a mental hospital is provided qualified and independent assistance.

[...]

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.

Mathews v. Eldridge

424 U.S. 319 (1976)

1. 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 Social 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 [...] 

The disability insurance program is administered jointly by state and federal agencies. State agencies make the initial determination whether a disability exists, when it began, and when it ceased. 42 U.S.C. s 421(a).13 The standards applied and the procedures followed are prescribed by the Secretary who has delegated his responsibilities and powers under the Act to the SSA. See 40 Fed.Reg. 4473 (1975).

In order to establish initial and continued entitlement to disability benefits a worker must demonstrate that he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . .” 

To satisfy this test the worker bears a continuing burden of showing, by means of “medically acceptable clinical and laboratory diagnostic techniques,” s 423(d)(3), that he has a physical or mental impairment of such severity that “he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” s 423(d)(2)(A).

The principal reasons for benefits terminations are that the worker is no longer disabled or has returned to work. As Eldridge's benefits were terminated because he was determined to be no longer disabled, we consider only the sufficiency of the procedures involved in such cases.15

The continuing-eligibility investigation is made by a state agency acting through a “team” consisting of a physician and a nonmedical person trained in disability evaluation. The agency periodically communicates with the disabled worker, usually by mail in which case he is sent a detailed questionnaire or by telephone, and requests information concerning his present condition, including current medical restrictions and sources of treatment, and any additional information that he considers relevant to his continued entitlement to benefits.

Information regarding the recipient's current condition is also obtained from his sources of medical treatment. DISM s 353.4. If there is a conflict between the information provided by the beneficiary and that obtained from medical sources such as his physician, or between two sources of treatment, the agency may arrange for an examination by an independent consulting physician.17 Ibid. Whenever the agency's tentative assessment of the beneficiary's condition differs from his *338 own assessment, the beneficiary is informed that benefits may be terminated, provided a summary of the evidence upon which the proposed determination to terminate is based, and afforded an opportunity to review the medical reports and other evidence in his case file.18 He also may respond in writing and submit additional evidence.

The state agency then makes its final determination, which is reviewed by an examiner in the SSA Bureau of Disability Insurance. 42 U.S.C. s 421(c); CM ss 6701(b), (c).19 If, as is usually the case, the SSA accepts the agency determination it notifies the recipient in writing, informing him of the reasons for the decision, and of his right to seek de novo reconsideration by the state agency. 20 CFR ss 404.907, 404.909 (1975).20 Upon acceptance by the SSA, benefits are terminated effective two months after the month in which medical recovery is found to have occurred. 42 U.S.C. (Supp. III) s 423(a) (1970 ed., Supp. III).

If the recipient seeks reconsideration by the state agency and the determination is adverse, the SSA reviews the reconsideration determination and notifies the recipient of the decision. He then has a right to an evidentiary hearing before an SSA administrative law judge. 20 CFR ss 404.917, 404.927 (1975). The hearing is nonadversary, the SSA is not represented by counsel. As at all prior and subsequent stages of the administrative process, however, the claimant may be represented by counsel or other spokesmen. s 404.934. If this hearing results in an adverse decision, the claimant is entitled to request discretionary review by the SSA Appeals Council, s 404.945, and finally may obtain judicial review. 42 U.S.C. s 405(g); 20 CFR s 404.951 (1975).21

Should it be determined at any point after termination of benefits, that the claimant's disability extended beyond the date of cessation initially established, the worker is entitled to retroactive payments. 42 U.S.C. s 404. If, on the other hand, a beneficiary receives any payments to which he is later determined not to be entitled, the statute authorizes the Secretary to attempt to recoup these funds in specified circumstances. 42 U.S.C. s 404.22

[...]

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 [...] [In the termination of disability benefits] there is little possibility that the terminated recipient will be able to find even temporary employment to ameliorate the interim loss.[…]

The Secretary concedes that the delay between a request for a hearing before an administrative law judge and a decision on the claim is currently between 10 and 11 months. Since a terminated recipient must first obtain a reconsideration decision as a prerequisite to invoking his right to an evidentiary hearing, the delay between the actual cutoff of benefits and final decision after a hearing exceeds one year.

In view of the torpidity of this administrative review process and the typically modest resources of the family unit of the physically disabled worker,26 the hardship imposed upon the erroneously terminated disability recipient may be significant. Still, the disabled worker's need is likely to be less than that of a welfare recipient. In addition to the possibility of access to private resources, other forms of government assistance will become available where the termination of disability benefits places a worker or his family below the subsistence level.27 See Arnett v. Kennedy, supra, 416 U.S., at 169, 94 S.Ct., at 1651-1652 … In view of these potential sources of temporary income, there is less reason here than in Goldberg to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action.

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.

Cleveland Board of Education v. Loudermill

470 U.S. 532 (1985)

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.

In 1979 the Cleveland Board of Education, petitioner in No. 83-1362, 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 [...] 

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 [...] 

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 [Ohio’s civil servant law] was unconstitutional on its face because it did 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 [...] 

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.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). 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. Board of Regents v. Roth, 408 U. S., at 569-570 [...] 

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 case before us illustrate[s] these considerations. [Respondent] had plausible arguments to make that might have prevented their discharge. [The] termination involved arguable issues, and the right to a hearing does not depend on a demonstration of certain success.

The governmental interest in immediate termination does not outweigh these interests. As we shall explain, affording the employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays. Furthermore, the employer shares the employee’s interest in avoiding disruption and erroneous decisions; and until the matter is settled, the employer would continue to receive the benefit of the employee’s labors. It is preferable to keep a qualified employee on than to train a new one. A governmental employer also has an interest in keeping citizens usefully employed rather than taking the possibly erroneous and counterproductive step of forcing its employees onto the welfare rolls. Finally, in those situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay.

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.” Boddie v. Connecticut, 401 U. S., at 378. In general, “something less” than a full evidentiary hearing is sufficient prior to adverse administrative action. Mathews v. Eldridge, 424 U. S., at 343 [...] 

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. 

The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. To require more than this prior to termination would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee [...]

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. 

So ordered.

KAPPS v. WING, 404 F.3d 105 (2d Cir. 2005)

Opinion

CALABRESI, Circuit Judge.

Defendants appeal from the judgment of the district court (Gershon, J.) granting plaintiffs partial summary judgment, and entering an award of declaratory and injunctive relief. […] We conclude that plaintiffs' due process arguments have merit, and accordingly affirm the judgment of the district court, insofar as it found violations of due process in defendants' administration of the HEAP program. […]

A. Statutory Framework

Congress enacted the Low Income Home Energy Assistance Act (“LIHEAA”) in 1981 in response to the rising costs of oil-based energy. See Marbley v. Bane, 57 F.3d 224, 227 (2d Cir.1995). LIHEAA was intended to, and has since its passage, assisted the states in providing home energy assistance to low income families. Id. Participating states are given a block grant, which may be used for two primary purposes: 1) to assist poor families in meeting their regular heating² costs (“regular HEAP benefits”); and 2) to intervene in energy crises to prevent any interruption in needy households' heat (“emergency HEAP benefits”). See 42 U.S.C. § 8624(b)(1). While state LIHEAA programs must comply with certain federal statutory requirements, the states are, as a general matter, afforded substantial discretion in defining the specific contours of their LIHEAA program. See generally 42 U.S.C. § 8624 (setting forth the requirements for participating in the LIHEAA block grant program).

Levels of LIHEAA funding are set by Congress on an annual basis. See 42 U.S.C. § 8621. Allocated funds are distributed among participating states on the basis of a complicated statutory formula. See 42 U.S.C. § 8623. States may, but need not, choose to supplement federal funds with state monies, in order to ensure that all eligible households are provided with benefits. New York, like some other states, has opted not to supplement federal funds, and hence provides benefits only to the extent that federal funding is available in any given program year. See N.Y. Soc. Serv. L. § 97[2]; see alsoWisc. Stat. Ann. § 16.27[3].

New York's Home Energy Assistance Program (“HEAP”) was created by the New York State Legislature in 1983, in order allow the state to take advantage of the LIHEAA block grant program. Like many of New York's other social services programs, HEAP is administered jointly by the state and by local social service districts. At the state level, the Office of Temporary and Disability Assistance (“OTDA”) annually sets standard eligibility criteria and benefits levels for the forthcoming year. See N.Y. Comp.Codes R. & Regs. tit. 18, § 393.4(c). The OTDA is also responsible for establishing a “program year,” within which all HEAP applications must be received. See N.Y. Comp.Codes R. & Regs. tit. 18, § 393.3(a). Local social service districts are responsible for the actual processing of HEAP applications, and for notifying applicants of benefits eligibility. See N.Y. Comp.Codes R. & Regs. tit. 18, § 393.2. Social service districts may also contract with community organizations, known as “alternative certifiers,” to process local applications for HEAP benefits. See N.Y. Comp.Codes R. & Regs. tit. 18, § 393.2(b).

Under regulations passed by the OTDA, there are two categories of households which may be eligible for regular HEAP benefits: 1) “[c]ategorically income eligible households”; and 2) “[i]ncome tested households.” See *110 N.Y. Comp.Codes R. & Regs. tit. 18, § 393.4(c). “Categorically eligible” households are those that include at least one household member who receives at least one of several specified federal or state benefits. See id.Households that are not categorically eligible may qualify for HEAP benefits by demonstrating income eligibility, in accordance with standards set by the state on an annual basis.³ Id. Once found eligible, a household's HEAP benefits allocation is determined in accordance with a complicated payment matrix, or point system. Id. This “payment matrix” takes into account such factors as family income, the energy burden ratio of the household, the amount of federal funds allocated for the year, and the presence of “vulnerable” household members.⁴ See id.; see also Ex. 39, Decl. of Peter Vollmer, No. 98 CIV 7734, Kapps v. Wing, 283 F.Supp.2d 866 (E.D.N.Y.2003) (reproduction of the defendants' “Heating Benefit Calculation Worksheet”).

The regulations in effect at the time of the district court's decision required the defendants to process all HEAP applications within 30 business days.⁵See N.Y. Comp.Codes R. & Regs. tit. 18, § 393.5. Historically, however, actual processing times have deviated considerably from this regulatory goal. During the pendency of this litigation, average processing times for New York City HEAP applications have varied between 21 and 122 days. At the time that the parties briefed the motion for summary judgment in the district court, most, but not all, New York City applications were being processed within the 30 day period mandated by the state.

HEAP applicants are notified of the granting or the denial of HEAP benefits in a notice issued by the social service district or by the alternative certifier. N.Y. Comp.Codes R. & Regs. tit. 18, § 393.5(a). If the applicant has been found ineligible for benefits, this notice usually, but not always, includes very basic information on why benefits have been denied. Applicants who have been found eligible for HEAP benefits are sometimes informed of the amount of benefits they will receive. But, apart from that, they are given no information, other than that their benefits application has been approved. In all cases, the notice advises applicants that they can obtain further information in a number of ways, including by calling the social service district, or by setting up a meeting with a benefits specialist.

Ordinarily, applicants have 60 days from the date of the HEAP notice, during which they may request an administrative “fair hearing” to challenge the agency's eligibility and/or benefits level determination. See N.Y. Comp.Codes R. & Regs. tit. 18, § 393.5(e). Under state regulations, however, fair hearings may not be requested *111 more than 105 days after the close of the HEAP program year. Id. As such, when HEAP applicants receive notice of the grant or denial of HEAP benefits more than 105 days after the termination of the program year, they are totally foreclosed from seeking a fair hearing. And, those applicants who receive notice of HEAP eligibility more than 45 days after the close of the program year will have less than the full 60 days within which to request a fair hearing.

B. Facts / Procedural History

Named plaintiffs Eileen Kapps, Geraldine Boyland, Alice Costello, Joan Ford, Joanne Karl and Margaret Riley filed this action in 1998. In their complaint, they alleged various violations inter alia of the LIHEAA and of the federal Due Process Clause in the defendants' administration of the New York City HEAP program. Specifically, as relevant to this appeal, plaintiffs contended below that the denial of the right to a fair hearing (by virtue of the operation of the 105 day rule, when combined with delays in providing notification of benefits) violated due process and the LIHEAA. Plaintiffs also claimed that the HEAP notices—by failing to provide information on how the applicant's benefits eligibility and allotment was calculated—did not meet the requirements of due process.

[...]

Judgment was entered [by the District Court] on September 22, 2003, awarding plaintiffs declaratory, injunctive, and Quern notice relief.¹⁰ In all other respects, the defendants were granted summary judgment. The defendants appealed.

II. DISCUSSION

[...]

B. Due Process

^[4] The plaintiffs have alleged that the defendants' practices in administering New York City's HEAP program violate the procedural requirements of the Due Process Clause of the Fourteenth Amendment. In adjudicating such a claim, we consider two distinct issues: 1) whether plaintiffs possess a liberty or property interest protected by the Due Process Clause; and, if so, 2) whether existing state procedures are constitutionally adequate. See Sealed v. Sealed, 332 F.3d 51, 55 (2d Cir.2003). The defendants¹¹ argue that the plaintiffs possess no property interest in HEAP benefits, and that we therefore need not consider the second step of the due process inquiry. They also contend that—even assuming the plaintiffs have some constitutionally protected interest—the plaintiffs were afforded all the process that is required. Because an award of HEAP benefits to qualified applicants is mandatory and not discretionary (at least to the extent the program is funded in any given year), we conclude that the plaintiffs possess a sufficient property interest in the receipt of HEAP benefits to warrant due process protection in their demonstration of eligibility. We also conclude that the district court properly found existing procedures to be inadequate as a matter of federal constitutional law.

 i. Property Interest

^{[5] [6]} Social welfare benefits have long been afforded constitutional protection as a species of property protected by the federal Due Process Clause. See Goldberg v. Kelly, 397 U.S. 254, 262 & n. 8, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). While not all benefits programs create constitutional property interests, procedural due process protections ordinarily attach where state or federal law confers an entitlement to benefits. See, e.g., Cook v. Principi, 318 F.3d 1334, 1351 (Fed.Cir.2002) (Gajarsa, J., dissenting) (“It is well established that recipients of statutory entitlements such as Social Security disability benefits have a property interest protected by the Due Process Clause ....”). A mere “unilateral expectation” of receiving a benefit is not, however, enough; a property interest arises only where one has a “legitimate claim of entitlement” to the benefit. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

^[7] In determining whether a given benefits regime creates a property interest protected by the Due Process Clause, we look to the statutes and regulations governing the distribution of benefits. See Kelly Kare, Ltd. v. O'Rourke, 930 F.2d 170, 175 (2d Cir.1991). Where those statutes or regulations “meaningfully channel[ ] official discretion by mandating a defined administrative outcome,” a property interest will be found to exist. Sealed, 332 F.3d at 56. Thus, to the extent that state or federal law “meaningfully channels” the discretion of state or local officials by mandating an award of HEAP benefits to applicants who satisfy prescribed eligibility criteria, plaintiff-applicants possess a property interest, protected by the federal Due Process Clause.

^[8] We agree with the defendants that the LIHEAA does not, by itself, create a property interest. The LIHEAA affords substantial discretion to the states, both in deciding whether to participate in the home energy program, and, if they choose to participate, in crafting their own state-level home energy laws. See 42 U.S.C. § 8624. While the Act does require participating states to certify that they agree to target certain populations, see, e.g., id.at §§ 8624(b)(2), (5), and to allocate at least some of their benefits to specified goals of the Act, see, e.g, id. at §§ 8624(b)(1), (16), it dictates no particular result as to any given benefits applicant.[...]

^[9] Property interests, however, do not arise only from federal law. To the extent that state law imposes “substantive predicates” that limit the decision-making of HEAP officials, it too may confer a constitutionally protected property right. [...] . As a result, we must also look to New York law to determine whether plaintiffs possess a property right in the receipt of HEAP benefits. Even a cursory examination of that law reveals that it provides precisely the type of discretion-limiting “substantive predicates” that are the hallmarks of protected property rights.

*114 ^[10] Like other statutory frameworks that we have found to create property interests¹², New York state law sets fixed eligibility criteria for the receipt of HEAP benefits.¹³ See N.Y. Comp.Codes R. & Regs. tit. 18, § 393.4(c) (setting forth standard eligibility criteria for the receipt of HEAP benefits, and indicating that “once determined eligible a household will receive a regular HEAP benefit”) (emphasis added); see also N.Y. Soc. Serv. L. § 97[2] (indicating that social service districts “shall be required ... to participate in the federal low-income home energy assistance program and to assist eligible households.”) (emphasis added). Similarly, the amount of benefits provided to eligible applicants is determined in accordance with a standard benefits matrix. … And, there has been no intimation in the course of this litigation that discretionary factors enter into the determination of HEAP eligibility or of benefits amount. On the contrary, it appears that all of the factors considered by the state in assessing individual HEAP eligibility are objective, and as such are ones over which HEAP administrators have no discretionary control.

Notwithstanding this mandatory statutory and regulatory framework, defendants contend that some characteristics of the HEAP program render the plaintiffs' receipt of HEAP benefits too uncertain to give plaintiffs a property interest subject to due process protection. Specifically, defendants allege that the fact that the plaintiffs are applicants for benefits, rather than current recipients of benefits, renders their interest in the benefits too tenuous to qualify for due process protection. Defendants also argue that the HEAP program's dependence on federal funds means that no individual plaintiff can be assured of receiving benefits, thus rendering any individual's anticipation of benefits a mere “unilateral expectation,” rather than a “legitimate claim of entitlement.” See Roth, 408 U.S. at 577, 92 S.Ct. 2701.

[...]

a) Applicants for Benefits

^{[11] [12]} The Supreme Court has repeatedly reserved decision on the question of whether applicants for benefits (in contradistinction to current recipients of benefits) possess a property interest protected by the Due Process Clause. … Indeed, we have explained that “[w]hether a benefit invests the applicant with a ‘claim of entitlement’ or merely a ‘unilateral expectation’ is determined by the amount of discretion the disbursing agency retains,” and “[t]he question of entitlement thus hinges on whether, ‘absent the alleged denial of due process, there is either a certainty or a very strong likelihood that the application would have been granted.’ ” Colson, 35 F.3d at 108–09 (quoting *116 Yale Auto Parts v. Johnson, 758 F.2d 54, 59 (2d Cir.1985)).¹⁴ More recently, however, we have concluded that, when the statutory scheme in question mandates award of the benefit upon satisfaction of specified criteria, an applicant has a limited but sufficient interest in the receipt of that benefit to “warrant some measure of due process protection” in demonstrating his eligibility.

The rationale for recognizing applicants' due process rights in these cases is apparent. Statutory language may so specifically mandate benefits awards upon demonstration of certain qualifications that an applicant must fairly be recognized to have a limited property interest entitling him, at least, to process sufficient to permit a demonstration of eligibility.

Defendants argue, however, that plaintiffs as applicants cannot possess a due process protected interest in the receipt of benefits, because they have not yet been shown to fulfill the eligibility criteria for HEAP benefits. This contention is without merit.

We note as an initial matter that, as to past violations of due process, all of the named plaintiffs were found eligible for benefits, and hence, even under defendants' argument, possessed a protected property interest in the receipt of benefits.¹⁵ See Kapps, 283 F.Supp.2d at 871. More fundamentally, the defendants' position misapprehends the purpose of requiring the state to afford adequate procedural due process protections in determining eligibility for benefits that state law makes a matter of entitlement. For, as the Tenth Circuit recently observed, the aim of proper procedures is precisely to allow the state to decide properly whether the applicant in fact has a legitimate claim of entitlement. See Gonzales, 366 F.3d at 1103 n. 7 [...]

^[13] It is for this reason that, in cases involving the termination of benefits, federal courts do not ask whether the plaintiffs are entitled to the continuation of benefits, or whether they are, as the agency found, no longer eligible. Instead, the focus of the federal courts is on the adequacy of the procedures used to make that determination. See Goldberg, 397 U.S. at 256 n. 2, 90 S.Ct. 1011; see also Roth, 408 U.S. at 577, 92 S.Ct. 2701(observing that the benefits recipients in Goldberg “had not yet shown that they were, in fact, within the statutory terms of eligibility.”) …

Comparably, our property interest analysis in the instant case extends only to the consideration of whether—were an applicant able to make out the requirements for HEAP eligibility—he or she would be entitled to benefits as a matter of law. If he or she would be so entitled, state law creates a property interest, and an applicant must be afforded procedural protections under the Due Process Clause to demonstrate his or her eligibility. We therefore reject the defendants' argument that plaintiffs' status as benefits applicants renders their interest in HEAP benefits insufficiently definite to constitute a “property” interest for the purposes of federal law.

b) Benefits Contingent on the Availability of Federal Funds

Under New York State law, no HEAP applicant can be certified as eligible for, and entitled to, HEAP benefits, if federal LIHEAA funds have been exhausted. See N.Y. Soc. Serv. L. § 97[2]. It follows that not all HEAP applicants who are technically “eligible” for state benefits, will be entitled to receive those benefits.¹⁶ The defendants contend that this fact renders plaintiffs' interest in the receipt of benefits too tenuous to constitute a property interest. Specifically, they contend that the fact that no individual applicant can be assured of the receipt of benefits renders the interest a mere “unilateral expectation,” rather than “a legitimate [claim of] entitlement.” See Roth, 408 U.S. at 577, 92 S.Ct. 2701.

[…]

Under state law, eligible HEAP applicants are entitled to receive benefits, so long as funding for such benefits remains available. See N.Y. Soc. Serv. L. § 97[2]; N.Y. Comp.Codes R. & Regs. tit. 18, § 393.4(c). To the extent that LIHEAA program funds are available, the fact that the HEAP program is, as a general matter, limited to the extent of federal funding does not matter. Plaintiffs' claim of entitlement—while funds remain available—is the same as it would be were the program not contingent on the availability of sufficient funds.

We therefore conclude that plaintiffs possess a valid property interest in the receipt of regular HEAP benefits.

ii. Process Due

^[15] Having determined that plaintiffs possessed a protected property interest, we must determine “what process plaintiffs were due before they could be deprived of that interest.” Sealed, 332 F.3d at 55. In doing so, we apply the Supreme Court's familiar Mathews v. Eldridge test. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Pursuant to this test, we conclude that the process due to applicants for HEAP benefits is notice of the reasons for the agency's preliminary determination, and an opportunity to be heard in response. Cf. Abuhamra, 389 F.3d at 320–21.

^[16] Under Mathews, three factors guide our decision: 1) the private interest affected; 2) the risk of erroneous deprivation, and the probable value, if any, “of additional or substitute procedural safeguards”; and 3) the government's interest, which may include the fiscal and administrative burdens that additional procedures would impose. See id. at 335, 96 S.Ct. 893. Because the plaintiffs have not appealed the district court's determination that they were not entitled to the full procedural relief requested below, we restrict our discussion to the propriety of the procedures ordered by the district court.

As the district court properly found, “the importance of the private interest at stake in this case is high.” Kapps, 283 F.Supp.2d at 875. While HEAP grants are small in dollar amounts, they are targeted to those households that “are among the poorest in America.” Sen. Rep. No. 103–251, 103rd Cong., 2d Sess. at *9 (1994). By design, the HEAP program affords relief only to those who might otherwise risk a shut-off in heating services. *119Thus, the erroneous denial of HEAP benefits may well result in a household being left without heat.

The adverse effects of an erroneous cut off of heat services are “self-evident.” Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). As noted by the Supreme Court in Memphis Light, “[u]tility service is a necessity of modern life ....[T]he discontinuance of water or heating for even short periods of time may threaten health and safety.” Id. The gravity of the health risks posed by a discontinuation of heating services is even greater for many HEAP recipients than for the general public, as the program specifically targets households which include potentially frail individuals. In addition, many other collateral effects may result from the termination of heat, including frozen plumbing, eviction and homelessness. See Sen. Rep. No. 103–251, 103rd Cong., 2d Sess. at *10 (1994). Clearly, then, the plaintiffs' interest in not being erroneously denied HEAP benefits is substantial.

In contrast, the government's interest in avoiding the procedures imposed by the district court is less significant. The district court ordered the defendants to modify their HEAP procedures in two respects: 1) by making post-determination fair hearings available to all HEAP claimants; and 2) by providing more extensive notice information to benefits claimants. See Kapps, 283 F.Supp.2d at 883.

As to the former, fair hearing requirement, the defendants have not alleged any governmental interest which would be harmed by the district court's award of relief. See City Defendants' Brief and State Defendant's Brief, Kapps v. Wing, No. 03–9117–cv(L), 04–1271–cv(CON), 2005 WL 752378 (2d Cir.2005). Indeed, post-determination fair hearings are already available to HEAP claimants¹⁸, except where benefits determinations are issued so late as to run afoul of the state's “105 day rule.”¹⁹ See Section I. A., supra. And, although defendants have argued that the district court's award of notice relief will be prohibitively expensive, this contention—as discussed in greater detail below—is unsupported by the record.

Given the strength of the plaintiffs' interest, and the weakness of that of the government, the defendants face an uphill struggle in arguing that the relief awarded by the district court was improper. Nevertheless, the forcefulness of the defendants' contentions require that we consider their arguments in detail. Because the defendants raise distinct arguments in opposing the fair hearing and notice relief mandated by the district court, we address the appropriateness of those procedural requirements seriatim.

a) Requirement of a Post–Determination Hearing

The district court, applying the traditional Mathews v. Eldridge factors, found that the plaintiffs were entitled to a fair hearing to contest a decision to deny them benefits, or, if benefits were granted, the amount of benefits awarded. See Kapps, 283 F.Supp.2d at 877. And it therefore held that—insofar as the defendants' processing delays resulted in plaintiffs being deprived of a meaningful (or of any) opportunity to request a fair hearing—defendants were in violation of the Due Process Clause. Id. It accordingly enjoined the defendants from issuing notice of determinations of HEAP eligibility more than 45 days after the close of the HEAP program year.²⁰

^[17] The requirement that the government afford individuals an opportunity to be heard is among the most fundamental requirements of the Due Process Clause. See, e.g., Goss v. Lopez, 419 U.S. 565, 576, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (the right to some type of hearing is a “basic right” of anyone possessing a due process property interest); see also Abuhamra, 389 F.3d at 321–23. As such, there ordinarily would be no question that, to the extent the plaintiffs possess a due process protected property right, they are entitled to some kind of a hearing.

[…] 

^[19] What is before us is plaintiffs' claim that they must be afforded a fair hearing prior to the agency's final determination of whether they are entitled to an award of HEAP benefits. Applying well-established law, the district court concluded that plaintiffs are entitled to such a hearing. Id. (A conclusion with which we agree.) Because some claimants were not being afforded such a merits hearing, the district court found that the defendants' operation of the HEAP program was in violation of the Due Process Clause. See id.

In fashioning a remedy for these due process violations, the district court could have taken either of two approaches: 1) it could have ordered the state to provide HEAP claimants with hearings, no matter how late a hearing request is made, where the delay was attributable to untimely notice; or 2) it could have ordered the state to issue benefits determinations promptly enough to allow claimants a reasonable time before [] seek[ing] a hearing. The district court—in electing the latter course—chose the alternative which minimizes disruption to the state's existing HEAP regulations.²⁴ The former option, however, would have been equally responsive to the district court's due process concern. In neither instance was there any reason for the court to consider the availability of Article 78 proceedings [an Article 78 proceeding is a challenge in state court of an  administrative agency decision] and pre-determination fair hearings, as those procedures would not afford plaintiffs the opportunity to contest the correctness (as compared to the timing ) of the agency's benefits determination.

Thus, we conclude that the district court's award of fair hearing relief was appropriate …

[…] 

b) Notice Relief

^[22] In addition to awarding fair hearing relief, the district court found the defendants' HEAP eligibility notices to be constitutionally inadequate. See Kapps, 283 F.Supp.2d at 878. Specifically, the court found that the defendants violated the requirements of due process by their failure to provide budgetary information²⁷, or other information which was sufficiently detailed as to allow HEAP applicants to understand the reasons for the defendants' benefits determination. Id. The defendants contend that existing HEAP notices are sufficient, or that, at a minimum, genuine issues of material fact exist as to whether more detailed notices were warranted.

^[23] In order to be constitutionally adequate, notice of benefits determinations must provide claimants with enough information to understand the reasons for the agency's action. See Goldberg, 397 U.S. at 267–68, 90 S.Ct. 1011; see also  *124 Escalera v. New York City Hous. Auth., 425 F.2d 853, 862 (2d Cir.1970). This requirement, like the right to a fair hearing, is a basic requirement of procedural due process. Claimants cannot know whether a challenge to an agency's action is warranted, much less formulate an effective challenge, if they are not provided with sufficient information to understand the basis for the agency's action. See, e.g., Vargas v. Trainor, 508 F.2d 485, 490 (7th Cir.1974). Thus, in the absence of effective notice, the other due process rights afforded a benefits claimant—such as the right to a timely hearing—are rendered fundamentally hollow. See Escalera, 425 F.2d at 862 (noting that a hearing would be of little value if the defendant could deny the claimants benefits based on reasons of which the claimants had no knowledge).

While claimants must, therefore, be afforded enough information to understand the basis for the agency's action in all instances, the specific type of notice required will vary depending on the circumstances of each given case. Under Mathews v. Eldridge, the cost to the government, the claimant's interest, as well as the availability of alternative means of obtaining information, must all enter into the analysis. See Mathews, 424 U.S. at 335, 96 S.Ct. 893; see also Henry v. Gross, 803 F.2d 757, 767–68 (2d Cir.1986) (applying Mathews v. Eldridge in determining whether improved notice was constitutionally required). As a result, what may be constitutionally required in one context, may not be in another.

In the instant case, the defendants suggest that two factors rendered the district court's award of notice relief improper: 1) the allegedly prohibitive cost of providing the notice mandated by the district court; and 2) the availability to claimants of additional means of seeking out information.²⁸ For the reasons set forth below, we disagree.

1) The Cost of Providing the Notice Mandated by the District Court

Much of the defendants' arguments against notice relief focus on the allegedly prohibitive cost of providing additional budgetary information. [...] Under Mathews, the cost to the defendants of providing improved notice is a relevant consideration. See Mathews, 424 U.S. at 335, 348, 96 S.Ct. 893.And we have, at times, relied on that consideration to place limits on the scope of due process notice relief. See, e.g.,  *125 Henry, 803 F.2d at 768.Where we have done so, however, there has been a well-supported factual basis in the record for concluding that costs of more detailed notice would in fact be unduly burdensome. See, e.g., id. (noting that “[t]he city demonstrated a significant administrative difficulty in including individualized information in each notice of intent.”)

Here, there is no evidence in the record from which we can conclude that the burden of affording improved notice would be unreasonable. The City Defendants' primary information technology expert, the Director of New York City's Office of Systems Development²⁹, testified in deposition that the HEAP computer system could be modified appropriately in 7–10 months, at the relatively modest cost of $75,000.³⁰ Plaintiff's Statement of Material Facts Pursuant to Local Rule 56.1(a), ¶¶ 120 n. 145, 144, No. 98 CIV 7734, Kapps v. Wing, 283 F.Supp.2d 866 (E.D.N.Y.2003). And, the defendants have not identified any evidence to the contrary that was introduced below. Under the circumstances, the district court properly concluded that the expense of automatically including budgetary information in HEAP notices would not be unduly high.

Nor is defendants' alternative contention—that the existence of alternative certifiers renders providing budgetary information impracticable—supported by the record. The record makes clear that while alternative certifiers continue to play some role in processing HEAP applications, they are no longer responsible for providing benefits notices. As a result, the ability of such certifiers to access the state's automated notice system is not relevant to the determination of whether providing additional budgetary information is feasible.³¹

[...]

III. CONCLUSION

We hold that the plaintiffs possess a property interest in the receipt of HEAP benefits, and that the defendants' current procedures are not adequate to protect that interest. We therefore Affirm the judgment of the district court, insofar as it granted the plaintiffs declaratory and injunctive relief on their due process claims. […]