Welcome to the third installment of Ballotpedia’s Learning Journey on procedural due process rights in the context of the administrative state. Today we review the requirements and applications of procedural due process in administrative adjudication.
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What is administrative adjudication?
The APA defines adjudication as an "agency process for the formulation of an order." The agency adjudication process aims to resolve disputes between either agencies and private parties or between two private parties. The adjudication process results in the issuance of an adjudicative order, which serves to settle the dispute. Adjudication can encompass broad areas of agency determinations that take place outside of the rulemaking process.
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What does procedural due process look like in the adjudication process?
No one-size-fits-all procedural due process blueprint exists for agencies to follow during adjudication proceedings. Instead, the requirements of procedural due process in agency adjudication in practice tend to vary according to the specific circumstances of the case at hand. Administrative law scholar O. John Rogge provided the following description of the diversity of procedural due process in his 1973 law review article "An Overview of Administrative Due Process":
"The requirements of due process will vary with different situations. If an individual's profession, livelihood, or liberty is at stake - if, for instance, a lawyer or other professional person is in danger of losing his license; or a public employee or tenured teacher is in danger of losing his job; or a person on parole is in danger of losing his liberty - due process will require charges, the right to counsel, a hearing, confrontation with one's accusers, the examination and crossexamination of witnesses, and a reasoned determination.
On the other hand, if what is involved is a bar association's endorsement of a particular judicial candidate, the punishment of a prisoner for an infraction of prison regulations, termination of utility services, the payment of unemployment compensation, or the amount of a government subsidy, a simple hearing by a disinterested individual open to all parties may be sufficient."
In order to determine if an agency's unique adjudication procedures satisfy due process in a particular case, the U.S. Supreme Court held in Mathews v. Eldridge (1976) that the fairness and reliability of existing procedures must be evaluated in addition to the added value of further procedural safeguards.
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Model procedural due process requirements in agency adjudication
Judge Henry Friendly of the United States Court of Appeals for the Second Circuit created a model list of procedural due process protections during agency adjudication in his 1975 law review article "Some Kind of Hearing." The list, according to administrative law scholar Peter Strauss, "remains highly influential, as to both content and relative priority." Friendly's list features the following procedural due process protections, which apply equally to civil due process and criminal due process:
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An unbiased tribunal.
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Notice of the proposed action and the grounds asserted for it.
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The opportunity to present reasons for the proposed action not to be taken.
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The right to present evidence, including the right to call witnesses.
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The right to know the opposing evidence.
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The right to cross-examine adverse witnesses.
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A decision based only on the evidence presented.
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Opportunity to be represented by counsel.
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A requirement that the tribunal prepare a record of the evidence presented.
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A requirement that the tribunal prepare written findings of fact and the reasons for its decision.
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What’s next?
Tomorrow we’ll wrap up our Learning Journey on procedural due process in the context of the administrative state.
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