Part One: Adjudication

• Pages: 5-20

Adjudication is the agency process for issuing an order that

resolves particular rights or duties. It would be impracticable to can-

vass the entire subject of administrative adjudication throughout the

range of its uses. The present treatment is bounded in two respects: it

deals only with federal administrative law, and it deals only with fun-

damental elements, as specied by constitutional due process and by

the Administrative Procedure Act (APA).

I. DUE PROCESS REQUIREMENTS FOR A H EARING

A. Basic P rinc iples

Due process analysis requires, rst, a determination that there

exists a constitutionally protected interest within the meaning of the

constitutional Due Process Clauses; second, a determination that there

has been a “deprivation” of one of those interests; third, a determi-

nation of what process is due in order to protect those interests. Due

process attaches only to “state action.”

B. Protected Interest

Procedural due process requires a “substantive predicate,” which is

a substantive right to “life, liberty or property.” The substantive rights

that are protected by due process must be independently determined,

apart from the demand for procedural protection itself.

Substantive rights may be derived from a variety of sources. In

the case of property, the right or entitlement must be grounded out-

side the federal Constitution, which presupposes but does not itself

create property rights. An entitlement requires the presence of sub-

stantive standards that constrain the discretion of governmental

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PART ONE

ADJUDICATION

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decisionmakers.Protected property rights are established by state or

federal law, including both statutory and common law. Liberty inter-

ests may be based on state or federal law, or on the federal Constitution,

including the due process clause itself.

C. Deprivation

To constitute a deprivation for due process purposes, government

action must adversely affect a protected interest. Negligent actions,

however, even if tortious, do not amount to a deprivation for due pro-

cess purposes.

D. Process Due

Determining the procedures required by due process involves

consideration of three factors: (1) the strength of the private interest,

(2) the risk of error and the probable value of additional or substitute

procedural safeguards to avoid error, and (3) the strength of the gov-

ernment’s interest. These considerations govern both the adequacy and

timing of the procedures required. The requirements of due process

vary with the particulars of the proceeding. While in some circum-

stances an individualized adjudicatory hearing is required, in other

cases notice of the subjects of the agency proceeding and the opportu-

nity to submit written comments or oral comments at a legislative-type

hearing may be sufcient.

E. Legislative-type Determinations

An adjudicatory hearing is not required, as a matter of constitu-

tional due process, when agency action is legislative in character rather

than adjudicatory.

A Blackletter Statement of Federal Administrative Law6

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