Module 5
Choice, Rulemaking Procedures, and Due Process
A. Choice of Decisionmaking Procedure Under The APA
The Administrative Procedure Act (APA) divides all administrative action into
two procedural categories, rulemaking and adjudication. See APA §551(4), (5), (6) and
(7). Rulemaking is the procedure for issuing a rule and adjudication is the procedure for
issuing an order. ‘‘Rule’’ is defined as ‘‘the whole or a part of an agency statement of
general or particular applicability and future effect designed to implement, interpret, or
prescribe law or policy. ‘‘Order’’ is defined as ‘‘the whole or a part of a final disposition,
whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter
other than rule making but including licensing.’’ The most natural understanding of this
dichotomy may be that when an agency wants to announce a general policy to be applied
more broadly than to particular parties before the agency, it must use rulemaking.
However, agencies make general policies in both rulemaking and adjudication, and these
definitions have not been construed to place serious constraints on this practice.
It should be noted at this point that there are two varieties of rulemaking and two
varieties of adjudication. The most frequently employed rulemaking procedure is
commonly referred to as ‘‘informal rulemaking’’ or ‘‘notice and comment rulemaking.’’
This type of rulemaking is governed by the procedures specified in APA §553, mainly
notice, opportunity for public comment, and decision accompanied by a concise general
statement of the basis and purpose of any rule adopted. The less commonly employed
form of rulemaking is referred to as ‘‘formal rulemaking’’ because it involves rulemaking
via formal adjudicatory procedures. The conditions under which formal rulemaking is
required are discussed below. On the adjudication side, there are also two varieties. The
first, which is what most of us think of when we conceive of adjudication, is best referred
to as ‘‘formal adjudication.’’
Formal adjudication is conducted pursuant to APA §§554, 556, and 557, and
includes the features of formal trials. The second variety of adjudication is known as
‘‘informal adjudication,’’ and consists of everything elsein administrativelaw,i.e.,
everything that is not a rulemaking or formal adjudication. The informal adjudication
label results from the APA’s division of all agency action into the rulemaking and
adjudication categories. It might have made more sense to create a third category of
agency action, perhaps called ‘‘informal agency action,’’ which wouldincludemost of
what is now referred to as informal adjudication.
The most basic prerequisite to agency rulemaking is statutory authority to make
rules. Absent statutory authority to make rules, an agency cannot do so. With such
authority, rulemaking is obviously an appropriate procedure for making policy. Because
rulemaking has several legal and policy advantages over adjudication and informal
decisionmaking, courts prefer policymaking by rule and in doubtful cases, courts are
likely to rule in favor of agency authority to make rules.
Formal rulemaking is a rulemaking proceeding conducted pursuant to the formal
adjudicatory procedures of APA §§556 and 557. Formal rulemaking is required when the
agency’s enabling act requires that rules are to be made ‘‘on the record after opportunity
for an agency hearing.’’ APA §553(c) states that ‘‘when rules are required by statute to
be made on the record after opportunity for an agency hearing, sections 556 and 557 of
this title apply instead of this subsection.’’ Sections 556 and 557 prescribe formal,
adjudicatory-type procedures. Rulemaking conducted under these provisions is referred
to as ‘‘formal’’ or ‘‘on the record’’ rulemaking. Because it is such an expensive and
cumbersome procedure, there is a strong de facto presumption against formal rulemaking.
Thus, unless it is absolutely clear from the statutory language that formal rulemaking is
required (usually through use of the formulation ‘‘on the record after agency hearing,’’ or
something very similar), courts will conclude that Congress intended that the agency be
free to use informal procedures under §553. See United States v. Florida East Coast Rwy.
Co., 410 U.S. 224 (1973).
Some agencies, most notably the NLRB, make policy primarily through an
adjudicatory process in which new rules of decision are announced in the course of
deciding particular cases in formal adjudicatory hearings. Because the APA’s definitions
appear to contemplate rulemaking as the procedure for formulating general rules,
promulgation of such rules in adjudication has been attacked as invalid due to the absence
of a proper rulemaking procedure. The Supreme Court has rejected these challenges,
although not definitively, stating that the choice between adjudication and rulemaking
lies largely within the discretion of the agency.
In summary, the decision whether to use rulemaking or adjudication lies largely
within the discretion of the agency. However, the Supreme Court has never definitively
approved the making of prospective general rules in an adjudicatory process. Because the
opinion in Bell Aerospace stresses the fact-specific nature of the inquiry into whether the
employees are managers, it is dangerous to generalize from the holding in Bell Aerospace
to a principle that agencies are free to make general rules in adjudication. However,
although the Court in Bell Aerospace specifically disavowed deciding the more general
issue, it seems very likely that the Court would approve this longstanding and widespread
agency practice of announcing general rules in the course of deciding particular cases in
adjudication.
B. Informal Decisionmaking
There are many situations in which agencies make decisions without using either
notice and comment rulemaking or adjudication. There are two general categories of
informal decisionmaking. The first category involves rules made without notice and
comment procedures either because the agency believes that the rule fits into an
exception to §553’s notice and comment requirements or because, for some reason, the
agency believes that §553 does not apply at all. The second category involves what is
called ‘‘informal adjudication.’’ This category includes a wide array of informally made
particular decisions such as the grant or denial of a permit or license when formal
adjudicatory procedures do not apply. In both categories, important agency policies may
be implicated, which provokes challenges on the basis that the agency should have
employed a more formal procedure to make policy.
Under some circumstances, agency action in the nature of rulemaking falls within
an exception to APA §553’s notice and comment requirements. In other cases, by statute
or traditional practice, agencies make what look like rules informally — making
decisions without any formalized procedure. Under some circumstances, however,
informal decisionmaking may violate the APA. In such cases, agencies must engage in a
more formal decisionmaking process before their rules can be given legal effect. There
are two different types of exceptions to the rulemaking provisions of APA §553. The first
set of exceptions, contained in APA §553(a), completely exempts certain categories of
rules from the coverage of §553. Section 553(a) states that §553 does not apply to
military or foreign affairs functions; to matters relating to agency management or
personnel; or to public property, loans, grants, benefits, or contracts. The list of exempt
rules has in common the notion that these are sensitive areas in which some privacy may
be desirable. Certainly, military and foreign affairs functions would be harmed by public
proceedings on many matters.
legislative rule is a rule that has legal effects in the sense that it adds to or changes
preexisting legal requirements. A legislative rule effects an actual change in existing law
or policy, and it creates new rights or duties. Coming at the issue from a different
perspective, a legislative rule has actual legal effect in subsequent agency and judicial
proceedings. A nonlegislative rule can have no such effect. Interpretive rules and general
statements of policy are the quintessential examples of nonlegislative rules. Because
notice and comment procedures take time and can excite public opposition to agency
proposals, agencies often attempt to avoid undertaking notice and comment on rules by
characterizing them as interpretive or policy statements. Therefore, we need to
understand the attributes of nonlegislative rules. Interpretive rules are rules thatinterpret
existinglegal duties and do not change or add to those preexisting duties. For a rule to be
considered an interpretive rule, it must not add anything to existing legal rules.
Agencies often make policy internally— in operations manuals and other agency
memoranda that are provided to agency personnel but are not made public or
promulgated pursuant to any APA procedure. Perhaps surprisingly, the requirements of
agency manuals are often not supported substantively by any statutory or regulatory
provision but rather embody the agency’s practices, often longstanding, that have never
been codified. Because such manuals and internal memoranda are usually prepared
without public input and are often not published, agencies encounter procedural problems
when such internal documents are challenged by a member of the public. In Morton v.
Ruiz, 415 U.S. 199 (1974), the Supreme Court addressed the procedural regularity of
‘‘policymaking by manual.’’
While the Secretary’s decision was only to approve the particular route, it
doubtless embodied the Secretary’s views on when parkland should be used for highway
routing. The statutory basis for the widespread practice of using informal procedures is
unclear because the APA appears to divide all agency action between rulemaking and
adjudication— with no third, informal, category. See APA §551(4)-(7). Thus, the
informal category is often referred to as ‘‘informal adjudication’’ and it is statutorily
authorized by default, when the APA does not require more formal procedures. (Note that
agencies must also satisfy constitutional due process norms, discussed below.) Informal
adjudication applies when an agency makes a particular decision that does not result in a
rule (and it does not affect an individual in a way that requires formal adjudication). In
essence, the agency is acting without following any APA procedural model. In Overton
Park, for example, the Secretary’s decision to approve the highway route and design was
not an order directed at any particular member of the public, and it was not a rule that
could be followed in other cases. The Court rejected the plaintiffs’ argument that the
Secretary was required to make formal findings, and there was no suggestion that the
informal procedure used was inappropriate for that type of decision.
C. Constitutional Constraints on Choice of Decisionmaking Procedure
As we have seen, the APA leaves decisions concerning the form and level of
agency procedure largely to the discretion of the agency. However, agencies are not
completely free to employ informal procedures whenever they find it expedient. Rather,
the choice between rulemaking and adjudication, and between formality and informality,
is influenced heavily by constitutional due process concerns. Under certain
circumstances, due process requires adjudication even at a relatively informal level of
procedure. In most cases, however, the choice between rulemaking and adjudication is
left to Congress or to the agency under delegation from Congress.
The constitutional rules governing when adjudication is required and when
legislative procedures are sufficient were developed in two Supreme Court decisions
from the early twentieth century, Londoner and Bi-Metallic. As elaborated below, the
Court has concluded that due process requires adjudication when individualized factual
determinations lead to adverse governmental action, while a legislative process is
sufficient for government to make an across-the-board determination regarding more
generalized matters.
Londoner v. Denver, 210 U.S. 373 (1908), established the basic principle that
when a government agency takes action based on the particular situation or circumstances
related to a regulated party, due process requires notice and an opportunity for the party
to be heard, i.e., adjudication. Londoner concerned the City of Denver’s method of taxing
property owners for street paving. This type of local improvement is often financed by
what are called ‘‘special assessments,’’ under which each property owner pays a pro rata
share of the cost of the improvement based normally on an objective factor such as the
number of feet of street frontage or the number of square feet of the lot or the building. In
this case, however, Denver decided to tax property owners based on an individualized
assessment of the benefit conferred upon each particular piece of property. Because the
agency’s decision was particularized to the situation of each property owner, the Court
held that due process requires a hearing with the right to present arguments and evidence
on the issue, i.e., the benefit to each particular parcel.
Due process does not require hearings when agencies make across-the-board
decisions based on general factual conditions and not the particular situation of any
particular regulated party. The legislative fact determinations relevant to these sorts of
across-the-board determinations are normally made legislatively. For example, a Virginia
statute gave the state Highway Commission the power to determine when public safety
required railroads to remove a grade crossing and build a railroad bridge over a highway.
This determination was made without notice or a hearing. The statute did not provide for
judicial review, although the Virginia Supreme Court had stated that equity review for
‘‘arbitrary’’ action was available. In Southern Railway v. Virginia, 290 U.S. 190 (1933),
the railway company challenged this statute as violating due process by not providing for
a hearing on the safety of each crossing in advance of the order that the railroad remove a
crossing and construct a bridge.
The Court held that this procedure violated due process and it rejected the
argument that administrative action without a hearing was constitutional because the
Virginia legislature might have taken the same action without a hearing. The Court held
that the fact that a legislature can act without an adjudicatory hearing does not mean that
an administrative officer (without the fact-finding and deliberative procedures or electoral
accountability of a legislature) was free to make such a determination without a hearing.
The Court also found that the power of a court of equity to overturn the decision as
‘‘arbitrary’’ was too uncertain to provide due process.
D. APA §553 Informal (“Notice and Comment”) Rulemaking Procedures
The bulk of agency rulemaking basically is done under (Administrative Procedure
Act (APA) §553, or so they for all intents and purposes thought, sort of contrary to
popular belief. This rulemaking is often referred to as ‘‘notice and comment’’ rulemaking
or kind of very ‘‘informal rulemaking’’ and should actually generally be distinguished
from ‘‘formal rulemaking,’’ which basically is conducted under the formal adjudicatory
procedures of APA §§556-557, or so they specifically thought. Section 553 mostly really
appears to kind of for all intents and purposes contemplate a fairly informal legislative
procedure, not a highly constrained, overproceduralized process in a subtle way in a
subtle way. Rulemaking procedures should generally be analyzed with three really kind
of separate concerns in mind in a very for all intents and purposes big way. The first
definitely particularly is openness and democracy, which mostly actually is quite
significant in a subtle way. Agency rulemaking often resolves important and
controversial issues, and thus the process should generally be kind of sort of open to
generally public scrutiny and influence.
The second concern is agency expertise. Agency rulemaking often deals with
technical matters that require agency expertise, and the process should allow for that
expertise to play a significant role. The third concern is politics. Agency rulemaking
often involves matters that are politically controversial, and the rulemaking process
should accommodate political involvement in agency decisionmaking, but only to the
extent that such involvement is consistent with democracy and the application of agency
expertise as intended by Congress. The challenge in applying §553 is to accommodate
these three disparate influences on agency rulemaking.
Publication of the notice of proposed rulemaking (and of final rules and other
agency action) in the Federal Register is central to the creation and maintenance of an
open, democratic, and accountable system of administrative law. Publication of all
important administrative documents in a central location allows the public, including all
regulated parties, to monitor the activity of the administrative state and become aware of
all possible administrative actions that might affect them.
If an agency fails to publish notice as required, any rule adopted will be invalid.
Further, if an agency fails to publish a final rule, the APA provides that unless the party
has timely notice some other way, anything that is legally required to be published in the
Federal Register but is not so published may not be used against that party. This
eliminates the possibility of secret law, because any rules that have not been published as
required cannot adversely affect someone without actual notice.
Section 553(c) provides that ‘‘the agency shall give interested persons an
opportunity to participate in the rulemaking through submission of written data, views or
arguments with or without opportunity for oral presentation.’’ Section 553 thus
contemplates paper proceedings, with comments submitted in writing. Further, the APA
allows oral hearings at the discretion of the agency. Some courts have interpreted §553(c)
to require a ‘‘meaningful’’ opportunity to participate, holding that the APA requires more
than merely the mechanical right to submit comments.
These courts have read into §553 a number of procedural requirements designed
to ensure that all interested persons have a meaningful opportunity to participate in
rulemaking. For example, courts have required agencies to provide notice of any data or
studies upon which the agency relies, reasoning that it is impossible to participate
meaningfully in the rulemaking process without sufficient notice of the information the
agency is considering.
Another procedural issue that has been brought under the umbrella of the
opportunity to comment is the problem of ex parte contacts that occur during the
rulemaking proceeding. Ex parte contacts consist of communications from interested
parties to administrators made outside the formalities of the normal comment process.
For example, an interested party may present information or arguments in person in the
administrator’s office, place a telephone call to an administrator, or write a letter directly
to an administrator without submitting the letter as a comment. Ex parte comments may
also occur in social settings, when an interested party presents his or her views to an
administrator over lunch or at some sort of social event. Ex parte contacts are made by
private parties and, very often, by Members of Congress (or their staff) expressing their
own interest or the interest of constituents.
A major difference between adjudication and legislation is that we expect judges
and others conducting adjudications to maintain an open mind until hearing the evidence
and legal arguments in the matter before them. In an adjudication, due process dictates
that the appearance of even a small measure of prejudgment may be sufficient to
disqualify a decisionmaker from participating.
The leading case on prejudgment in administrative adjudication is Cinderella
Career & Finishing Schools, Inc. v. FTC, 425 F.2d 583, 591 (D.C. Cir. 1970), in which
the court held that an administrative official is disqualified from participating in an
adjudication if it can be shown that the adjudicator ‘‘has in some measure adjudged the
facts as well as the law of a particular case in advance of hearing it.’’ By contrast,
legislators are often chosen because of their ideological views on subjects they will vote
on. Voters would be disappointed if a legislator did not vote as promised in the election
campaign. In the rulemaking context, the issue has arisen over which, if any, model
should apply to prejudgment by agency officials.
Courts have required that agencies, in their concise general statements, respond to
substantial comments on important issues in the rulemaking. See United States v. Nova
Scotia Food Prods. Corp., 568 F.2d 240 (2d Cir. 1977). This ensures that agencies pay
attention to the comments received during the comment period and is closely related to
the requirements of the arbitrary, capricious test— an agency acts unreasonably if it
cannot be discerned whether it considered alternatives or important challenges to the
wisdom of its proposal. For example, the D.C. Circuit has approved an agency’s concise
general statement on the basis that it ‘‘demonstrate[d] that the agency considered and
rejected petitioners’ arguments (and cited support) for adopting [its model.] This is all
that the APA requires.’’
Agencies must publish final rules, substantive and procedural, in the Federal
Register. APA §552(a)(1)(C) and (D). If a rule is not published in the Federal Register,
the rule is ineffective as to any party without actual notice of the rule. APA §552(a)(1).
Agency rules normally specify an effective date, and the APA provides that the effective
date may not be sooner than thirty days after publication of the final rule unless the
agency finds good cause to specify an earlier date. APA §553(d). In addition, the
Congressional Review Act provides that for major rules, the effective date cannot be less
than sixty days after publication, to allow Congress time to consider whether to reject the
rule. See 5 U.S.C. §801(a)(3).
E. Hybrid Rulemaking and Vermont Yankee: The Rejection of Judicial Power to
Require More Than §553 Procedures in Informal Rulemaking
Perhaps in reaction to the sparseness of the procedural requirements contained in
APA §553, in the 1970s some federal courts began requiring agencies to employ
procedures for informal rulemaking in addition to those specified in APA §553. This
practice went beyond expansive applications of the text of §553 and involved imposition
of procedures without any tie to the language of the APA, based on the importance or the
complexity of the rulemaking. The judicial instinct in these cases was similar to the
instinct behind the aggressive procedural decisions discussed above — courts imposed
elements of the adjudicatory model on the legislative rulemaking process. The resulting
rulemaking process was referred to as hybrid rulemaking because it combined legislative
rulemaking procedures with some elements drawn from formal adjudicatory procedures
such as cross-examination of adverse experts and more precise notice coupled with
additional comment periods so that interested parties could comment on adverse
comments submitted. Because courts were imposing procedures in addition to those
required by applicable statutes, judicially created hybrid rulemaking was always plagued
by a question of legitimacy — what power do federal courts have to require procedures in
addition to those prescribed by Congress?
There are two situations in which hybrid rulemaking does not pose a serious
question of legitimacy, namely statutory hybrids and due process requirements. Statutory
hybrids involve statutes that add some adjudicatory elements to §553 legislative
rulemaking. These statutory hybrids add procedures such as cross-examination, multiple
comment periods, and detailed agency explanatory memoranda to the more spare §553
process. Congress has also on occasion specified that the less deferential substantial
evidence test applies to review of informal rules rather than the more deferential arbitrary
and capricious standard. So long as courts are merely following the applicable statutes
and rules, statutory hybrids do not present a question of legitimacy of judicial action.
Congress is virtually always free to increase procedural requirements and prescribe less
deferential judicial review.
The Vermont Yankee decision arose out of litigation over the licensing of the
Vermont Yankee nuclear power plant. In its decision, the Supreme Court held that absent
unconstitutionality or extremely compelling circumstances, courts may not require
procedures in addition to those specified in the APA or other applicable statutes. Vermont
Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978). The Court held that the
APA is both the procedural floor and ceiling as far as courts are concerned, although
agencies remain free to voluntarily adopt procedures in addition to those specified in the
APA. The history of the Vermont Yankee litigation provides a good illustration of the
complexity of the hybrid rulemaking issue. In NRDC v. Nuclear Regulatory Comm’n,
547 F.2d 633 (D.C. Cir. 1976), the Court of Appeals rejected a Nuclear Regulatory
Commission (NRC) rulemaking on how the negative effects and costs of nuclear waste
should be considered in individual NRC licensing decisions.
The agency had adopted a rule providing that nuclear waste disposal would be
counted in licensing decisions but only as a very small cost factor in the overall licensing
decision. (The primary competing alternative in the rulemaking was to not count the cost
of nuclear waste at all.) The rule was based primarily on a relatively brief statement by an
agency scientist specifying a feasible method of nuclear waste disposal. This statement
was attacked by the opponents of the rule (environmentalists who wanted the waste issue
to count as much more of a negative in the licensing process) as too conclusory to support
such an important rule. They wanted to be able to cross-examine the expert or employ
some other method of probing the bases for his conclusions.
The Court also supported its rule against judicial imposition of additional
procedures with observations related to the fundamental nature of the legislative
rulemaking process that challenge the judicial tendency to impose adjudicatory norms on
the legislative rulemaking process. The Supreme Court noted that the Court of Appeals
‘‘uncritically assumed that additional procedures will automatically result in a more
adequate record.’’ The Supreme Court observed that reviewing courts should not expect
the substantive quality of the record to be what is normally produced in an adjudicatory
or hybrid process. Rather, the record is adequate if it is the sort of record that is normally
produced in the rulemaking process. ‘‘Thus, the adequacy of the ‘record’ in this type of
proceeding is not correlated directly to the type of procedural devices employed, but
rather turns on whether the agency has followed the statutory mandate of the
Administrative Procedure Act or other relevant statutes.’’ 435 U.S. at 547.
F. Formal Rulemaking Procedures: The Additional Requirements of APA §§556 and
557
Formal rulemaking means rulemaking done through an adjudicatory process in
which opposing interests present evidence, arguments, and cross-examine opposing
witnesses and where a decision is made under the strict procedural requirements of
adjudication. The situations in which agencies are required to use formal rulemaking are
detailed in Chapter 6. In brief, §553 requires formal rulemaking only in those rare
instances when an agency’s statute requires that rules be made ‘‘on the record after a
hearing,’’ or explicitly states that formal rulemaking is required.
In the rare instance when rules are made formally (‘‘on the record’’), APA §§556
and 557 prescribe trial-type procedures with regard to the submission of evidence, the
impartiality of the decisionmaker, the composition of the record, and the explanation of
the decision. Unless the agency’s statute provides otherwise, one or more of the agency
heads or one or more Administrative Law Judges preside at the formal rulemaking
hearing. APA §556(b). The official or officials presiding at the hearing have similar
powers, and are subject to constraints similar to those of a judge presiding over an
adjudication. APA §556(c).
When presenting evidence in a formal rulemaking, parties are entitled to present
their cases by oral or documentary evidence, they are entitled to conduct
crossexamination when appropriate, and they are entitled to present rebuttal evidence.
Nevertheless, an agency may adopt rules requiring written submission of evidence when
it is not prejudicial to a party’s ability to present the case. See APA §556(d). The record,
including transcripts of oral proceedings and documents admitted into evidence,
constitutes the exclusive record for decision in formal rulemaking. This is why formal
rulemaking is also referred to as ‘‘on the record’’ rulemaking. APA §557(e).
Agency officials presiding at formal rulemaking hearings, and other agency
officials expected to be involved in the decisionmaking process, are prohibited from
engaging in ex parte communications regarding the formal rulemaking with any
interested person. If such communications nevertheless take place, they must be placed
on the public record; the party making such communications may suffer sanctions —
including losing the case. APA §557(d). The decision in a formal rulemaking must
include findings and conclusions (with record support) on all issues of fact, law, and
discretion. When the agency itself did not preside at the hearing, the parties are entitled to
present proposed findings and conclusions and to take exception to any tentative or
recommended decision. APA §557(b)-(c).
G. Alternative Procedural Models for Rulemaking
In addition to informal and formal rulemaking, alternative rulemaking models
have been established, some established by Congress and others created by agencies. In
this section, we consider three such models, one established by Congress and two
fashioned by agencies. These three are negotiated rulemaking, which was established by
Congress, direct final rulemaking and interim final rulemaking, the latter two of which
were created by agencies without explicit approval by Congress.
In 1990, Congress passed the Negotiated Rulemaking Act, which allows agencies
to hold formal negotiations among interested parties to formulate rulemaking proposals
that have the support of the interested parties. The idea behind negotiated rulemaking is
that the process is likely to run more smoothly, and thus is less likely to result in rejection
on judicial review, if the major stakeholders in the rulemaking process have agreed in
advance to the rulemaking proposal. The Negotiated Rulemaking Act allows agencies,
under circumstances in which negotiations are likely to be fruitful, to form negotiating
committees composed of representatives of all interests in the potential rulemaking. The
Act contains detailed requirements for the conduct of negotiated rulemaking. See 5
U.S.C. §§561-570. The goal of the committee is to reach consensus among all competing
interests on the issues raised by the potential rulemaking, at which point the agency will
issue a notice of proposed rulemaking embodying that consensus. Normal §553
procedures follow the negotiations. An agency using negotiated rulemaking is not
statutorily bound to propose the rule agreed upon by the parties to the negotiation,
although there is obviously a strong incentive for the agency to do so if it expects parties
in the future to participate in negotiated rulemaking. See City of Portland, Oregon v.
E.P.A., 507 F.3d 706 (D.C. Cir. 2007). However, courts have not required agencies to
adopt the rule agreed to in negotiation. See USA Group Loan Services, Inc. v. Riley, 82
F.3d 708, 715 (7th Cir. 1996). If they did, the notice and comment rulemaking would be a
sham because the agency would be required to adopt the proposal agreed to during the
negotiation process.
When an agency expects no comments in response to a rulemaking proposal it
may issue what is called a ‘‘direct final rule.’’ Under this process, which has been used
mainly by the EPA, the agency publishes a final rule and specifies that it will go into
effect on a certain date unless the agency receives adverse comments. This procedure
speeds up the process of promulgating rules and collapses the notice and decision steps
into one step of promulgation of a final rule (unless adverse comments are received). If
the agency does receive adverse comments, the direct final rulemaking is canceled and
the agency conducts a normal notice and comment process. While there is no statutory
authorization for direct final rulemaking, as long as the receipt of adverse comments
triggers a notice and comment process, the method is likely to be upheld since no one is
prejudiced by the procedure. In fact, courts of appeals have reviewed at least two rules
that were initially promulgated as direct final rules, and in neither case did the court
comment unfavorably on the process.
In recent years, agencies have issued numerous ‘‘interim final rules.’’ ‘‘Interim
final rules’’ are final rules issued on a temporary basis, often because there are remaining
areas of uncertainty and the agency wants to engage in additional notice and comment
procedures before issuing a comprehensive permanent final rule. Sometimes interim final
rules are issued when the agency must act quickly to administer an ongoing program but
still wants the benefit of a full notice and comment period before issuing final, permanent
rules. Agencies claim authority to issue interim final rules without notice and comment
on APA §553(b)(3)(B), which allows agencies to dispense with notice and comment ‘‘for
good cause.’’
Agencies base good cause findings on factors such as a statutory deadline that
must be met or the existence of an ongoing program that must continue during the
pendency of rules that may have been necessitated by a new statute. Rules issued without
notice and comment are invalid without a finding of good cause. This process is distinct
from direct final rulemaking because even if negative post-promulgation comments are
received, interim final rules remain in effect until the promulgation of the permanent final
rule. Despite some discomfort with the process based on unjustified failure to hold notice
and comment proceedings before issuing interim final rules, interim final rulemaking has
become ubiquitous and courts have not viewed it with disfavor.
H. Due Process and The Adjudicatory Hearing
Due process is one of the most important and fundamental constraints on
government action, dating back at least to the Magna Carta, the cornerstone document
that was first promulgated in England in the year 1215. The Due Process Clauses of the
Fifth and Fourteenth Amendments to the Constitution of the United States provide that
government may not deprive any person of life, liberty, or property without due process
of law. State constitutions contain similar or identical provisions. In addition to the
obvious procedural element of due process, the Due Process Clauses have been
interpreted to create a host of substantive rights in areas such as economic freedom,
personal privacy, and reproductive rights. In administrative law we are concerned with
procedural due process, mainly how procedural due process affects administrative
processes for resolving disputes between the government and private parties, including
regulated entities, government employees, and recipients of, and applicants for,
government benefits.
The original meaning of the concept of due process is not clear. Professor (now
Judge) Frank Easterbrook concluded that the meaning of due process is something like
this: Government must follow the procedures established by law, and in cases involving
‘‘fundamental natural liberties,’’ the legislature may not abrogate wellestablished judicial
procedures. In other words, in most cases, due process did not mean that courts would
evaluate the sufficiency of procedures in every interaction between government and
citizen based on a standard of adequacy or fairness. Rather, the only issue, except in the
rare case involving fundamental liberties, would be whether government had provided all
the procedures required by the legislature. ‘‘Due’’ in due process meant something like
‘‘promised in advance.’’
As discussed, due process hearing rights attach when the government deprives or
threatens to deprive a person of life, liberty, or property. (In administrative law, we are
concerned mainly with liberty and property interests.) The first step in due process
analysis is to identify the protected interest— has the private party been subjected to a
deprivation of a protected interest? While this inquiry is often simple, for example when
government threatens to imprison or execute an alleged criminal, it frequently may be
less clear. The difficulty usually arises in cases involving controversies over private
parties’ interests in things such as government benefits, licenses, permits, and
employment. At one time, interests like these were thought of as privileges or gratuities
that could be withdrawn at any time without any process, except perhaps whatever
process the government had promised as part of the particular program.
Whether a protected interest exists in most cases is determined by what can be
referred to as ‘‘entitlement theory.’’ Entitlement theory looks at whether law external to
the Constitution creates an entitlement to the interest, by specifying the conditions under
which the interest must be legally recognized. This standard was first applied by the
Supreme Court in Board of Regents v. Roth, 408 U.S. 564 (1972). In that case, the
Supreme Court rejected the grievous loss test for the existence of a property right and
instead created a test that looks to positive law, usually state or federal statutes or
regulations, or state common law, for the existence of property interests.
Justice Rehnquist’s opinion for the Court in American Manufacturers
distinguished Goldberg, and other entitlement precedent, on the basis that in those cases,
a determination had been made that the claimant was entitled to benefits, and the
entitlement could not be halted without due process. But the exact same thing is true in
American Manufacturers — the employees had been receiving medical benefits, and the
benefits were halted pending a determination that further treatments were reasonable and
necessary. Similarly, the welfare recipient in Goldberg had been receiving benefits, and it
was held that he had a property interest in continued benefits even though it might later
be determined that he had at some point lost eligibility. Perhaps the best explanation of
the American Manufacturers decision is that Justice Rehnquist was not a fan of
entitlement theory. He wrote the plurality opinion in Arnett v. Kennedy that advocated
the ‘‘bitter with the sweet approach, and in another case, he refused to join the majority
opinion applying entitlement theory, but rather concurred on equal protection grounds.
Liberty interests are recognized under both entitlement theory and directly under
the Constitution. In other words, some liberty interests are created by positive law while
others are thought to fall under a purely constitutional definition of liberty. Traditional
liberty interests, such as freedom from bodily restraint and freedom from unwarranted
use of force by government officials such as police officers, are part of the Constitution’s
definition of liberty. These liberty interests exist regardless of the provisions of state law,
and due process must be afforded if the state wishes to deprive a person of one of these
interests. Entitlement-based liberty interests are created in the same way as the property
interests discussed above. We call some entitlement-based interests ‘‘liberty’’ because
they are more like traditional liberty interests than traditional property interests. For
example, if positive law contains criteria for early release from prison on parole, parole in
that jurisdiction would be an entitlement-based liberty interest even though, as a
constitutional matter, the prisoner does not have any liberty-based claim for release until
the end of the sentence. In this section, constitutionally-based liberty interests are
discussed first and then the discussion turns to entitlement-based liberty interests.
The Supreme Court has rejected the argument that merely branding someone as a
criminal without more constitutes a deprivation of liberty. Support for that argument can
be drawn from the Court’s decision in Wisconsin v. Constantineau, 400 U.S. 433 (1971).
In that case, state law authorized local officials, without notice or a hearing, to instruct
merchants not to sell alcoholic beverages to excessive drinkers. After a local chief of
police designated Constantineau an excessive drinker and instructed merchants in the city
not to sell alcohol to her, she sued to have the Wisconsin statute declared void as
violating due process for not allowing designees the opportunity, in advance, to contest
their designation as excessive drinkers.
More recent developments in entitlement theory establish that it is not always
possible to apply pure logic to determine whether an entitlement has been created.
Sometimes, the historical and legal context is relevant to whether the Court is likely to
find an entitlement-based protected interest. For example, in Town of Castle Rock v.
Gonzales, 545 U.S. 748 (2005), the Court rejected an entitlement-based claim of a liberty
interest in the enforcement of a restraining order. The plaintiff brought a claim against the
municipality in which she lived, claiming that she was deprived of liberty when town
police failed to enforce a restraining order against her ex-husband, who murdered her
three children.
The Court has also recognized constitutionally-based liberty interests in the prison
setting, and these appear to be more viable after Sandin, although it is still difficult to
establish a constitutional liberty interest in changed conditions of imprisonment. A
prisoner (who after conviction and sentence has only a limited residuum of liberty) has
been deprived of liberty only if a change in conditions or nature of confinement is beyond
the normal range of the deprivation of liberty inherent in incarceration. Movement from a
medium security prison to a higher level of security is not a deprivation of liberty. See
Meachum v. Fano, 427 U.S. 215 (1976). Further, no liberty interest is implicated when a
prisoner is transferred to an out-of-state prison. See Olim v. Wakinekona, 461 U.S. 238
(1983) (transfer from Hawaii to California was within the range of permissible
incarceration implicit in the conviction). See also Kentucky Dep’t of Corrections v.
Thompson, 490 U.S. 454 (1989) (inmate has no liberty interest in the number and identity
of visitors). However, in Vitek v. Jones, 445 U.S. 480 (1980), the Court did find that
incarceration in a mental hospital, including being labeled as mentally ill and subjected to
mandatory treatment, is qualitatively different from incarceration in a prison, and thus
constitutional liberty.
A final issue that arises in understanding the limits of constitutional protection of
liberty is the distinction between government action and government inaction. This goes
more to the meaning of ‘‘deprive’’ in the Due Process Clauses— does the government
deprive a person of life, liberty, or property by failing to take action to prevent privately
inflicted injuries or suffering not directly inflicted by government? The Supreme Court
has answered this question with a resounding ‘‘no.’’ In DeShaney v. Winnebago County
Dep’t of Social Servs., 489 U.S. 189 (1989), the Court held that social workers did not
deprive a child of liberty when they failed to prevent his father from injuring him
severely, even though the social workers knew that the child was in danger and had in
fact returned the child to his father’s custody after previous incidents of apparent child
abuse. The Court concluded that ‘‘the Due Process Clauses generally confer no
affirmative right to governmental aid, even where such aid may be necessary to secure
life, liberty, or property interests of which the government itself may not deprive the
individual.’’ Id. at 196. The Court did acknowledge that if a private person is in a special
relationship with the government, for example in government custody, the government
may owe a duty to take affirmative steps to preserve the person’s well-being. This means
that government may be required to protect prisoners and involuntarily committed
patients in state hospitals, among others. But in the ordinary case of people living in free
society, due process does not require the government to affirmatively protect the well-
being of the people.
Once it is determined that a person has been deprived of an interest protected by
due process, the next issue is whether the procedures that have been provided are
sufficient to satisfy due process. In other words, the issue becomes ‘‘what process is
due?’’ The determination of what process is due is made by applying federal due process
standards to the procedures already provided and asking whether those procedures are
adequate. If they are not, federal due process law mandates supplementing those
procedures to bring them up to constitutional standards. The discussion that follows is in
three parts. The first part briefly discusses some basic due process principles. The second
part sets out and elaborates the general balancing test that has come to govern the
determination of how much process is due. The third part discusses some situations in
which a categorical approach is taken instead of the more general balancing test
hen due process applies, it requires process, usually a hearing, at a meaningful
time. By meaningful, what is meant is that the hearing must be at a time when there is
still a realistic chance that the deprivation can be prevented or reversed. Sometimes this
hearing must be before adverse government action is taken, although under certain
conditions, the hearing can occur after government action is taken. The procedural rights
that are most often associated with due process include notice of the time and place of the
hearing and the subjects and issues involved, opportunity for a hearing in advance of
adverse government action, the right to present evidence and testimony at the hearing, the
right to confront adverse evidence and witnesses, the right to be represented by counsel at
the hearing, the right to a neutral decisionmaker, and the right to an explanation of any
adverse decision.
Whether due process requires procedures in addition to those already provided in
the particular program is determined under the three-part Mathews v. Eldridge balancing
test. Mathews v. Eldridge, 424 U.S. 319 (1976), involved the termination of disability
benefits. The process for terminating disability benefits includes written submissions in
advance of termination and, if the recipient disagrees with termination, the terminated
recipient can request an oral hearing. At the time Mathews was decided, the wait for the
full post-termination hearing was about a year. The claimant argued that under Goldberg
v. Kelly, due process requires a pre-termination hearing for disability benefits just as the
Goldberg Court required a pre-termination hearing for welfare benefits. The
SupremeCourt distinguished Goldbergon two bases and held that the process provided
under the disability benefits program, including an oral hearing only after the termination
of benefits, was sufficient to satisfy due process. The opinion in Mathews also
established a balancing test for determining what process is due.
On the first factor, the stronger the private interest, the more process is required
by due process. This factor explains why the Court found more process required in
Goldberg v. Kelly than in Mathews v. Eldridge. Because Goldberg involved welfare
benefits that by definition implicate the claimant’s very survival, the importance level of
the interest was very high, and the Court held that due process requires an oral hearing
before such benefits are terminated. By contrast, in Mathews itself, the Court held that
because eligibility for disability benefits is not based on need, it does not implicate
subsistence, and an oral pre-termination hearing is not required.
The second Mathews factor is the value of additional process to an accurate
determination. The greater the risk of an erroneous deprivation, the stronger the claim is
to additional procedures. As noted above, in Goldberg v. Kelly, one reason for requiring
an oral pre-termination hearing was that welfare recipients might be unable to state their
claims effectively in writing, thus increasing the risk of an erroneous deprivation. By
contrast, in Mathews v. Eldridge, the Court reasoned that no advance oral hearing was
required, in part because the objective, medical nature of the relevant evidence meant that
an erroneous determination was less likely than in Goldberg
The third and most controversial factor in Mathews is the consideration of the
government’s interest in not increasing process beyond that already afforded. The
government’s fiscal and administrative interests almost always favor minimizing process
and thus factoring in the cost of process could seriously undercut the value of due
process. This factor should have the greatest impact when reasons unrelated to the pure
costs of the hearing point toward minimizing process. For example, with regard to
disability benefits, the Mathews Court noted that if the government were required to
continue disability benefits until after an oral hearing, it would be very difficult if not
impossible for the government to recover benefits paid between the determination that
disability benefits should be terminated and the hearing. Further, due process has also
been flexible enough in emergencies such as the discovery of poisonous or rotten food to
allow government to act first and hold the hearing later.
Until now, the analysis has focused on the traditional model of pre-deprivation
process involving advance notice and adjudicatory hearings. There are, however, many
situations in which other procedures may satisfy due process. For example, recall that in
Ingraham v. Wright, although the Court recognized a liberty interest in being free from
corporal punishment, the Court found that post-punishment common law remedies under
Florida law were sufficient to satisfy due process. The common law of Florida limited a
teacher’s privilege to inflict the punishment, and the Court held that the existence of the
common law remedies, coupled with the low incidence of abuse, meant that due process
did not require a hearing in advance of inflicting the punishment.
Post-deprivation remedies have been most strongly approved when random and
unauthorized tortious conduct by a government official damages the victim’s property or
liberty. In the first in this line of cases, a state prisoner sued after his mailorder hobby
materials were lost somewhere in the prison before he received them. See Parratt v.
Taylor, 451 U.S. 527 (1981), overruled in part by Daniels v. Williams, 474 U.S. 327
(1986). He claimed that he had been deprived of property without due process of law,
since no hearing was held before his property was lost. The Supreme Court realized that
because the state could not, as a practical matter, hold a hearing before tortious conduct
by a state employee, accepting this reasoning would transform virtually all state official
torts into federal due process violations. To prevent this result, the Court held that in the
case of random and unauthorized tortious conduct by a government employee, adequate
post-deprivation remedies satisfy the Mathews v. Eldridge due process requirements. 451
U.S. at 542-44. In other words, in the case of such torts, post-deprivation tort remedies
provide all the process that is due.
The academic context and reasons for dismissal were important to the Court’s
acceptance of the informal consultative process. Injecting traditional due process
requirements into the academic setting would interfere with the ability of academic
institutions to control their core academic programs as they saw fit. Academic institutions
are better able to design academically oriented procedures than are judges. In Horowitz,
the Court appeared particularly reluctant to judicialize the academic review process at
state universities and did not feel that judges should secondguess whether a student’s
academic performance was up to par.
The Court distinguished dismissal for academic reasons from dismissal for
disciplinary reasons where an adversarial process might be more appropriate. Even there,
however, the Court noted a formal, advance hearing was not necessary as long as there
was some opportunity for an advance, informal oral discussion of the disciplinary matter.
See Goss v. Lopez, 419 U.S. 565 (1975).
Some due process issues have been decided without much attention to the
Mathews v. Eldridge balancing test. For example, in Loudermill, the Court established a
bright line rule requiring that government employees with a property interest in their
employment normally receive a hearing of some sort before they are deprived of that
employment. Although the Court did apply the Mathews v. Eldridge balancing test in
Loudermill, the discussion was cursory and seemed more like a categorical decision that
employment terminations should not occur without a hearing. Similarly, the Court has
analyzed cases involving challenges to the neutrality of the decisionmaker without
applying the balancing test. The right to a neutral decisionmaker is one of the most
important rights protected by due process. Neutrality is an acute problem in the modern
administrative agency because investigation, prosecution, adjudication, and legislation
are often conducted within a single agency. While the courts have not objected in
principle to the combination of functions within a single agency, they have developed
legal doctrines to safeguard the due process right to neutrality.
Due process is violated if the decisionmaker is biased. Bias means that the
decisionmaker favors one side over the other for reasons unconnected to the merits. For
example, if a decisionmaker has a pecuniary interest in the outcome of the adjudication,
the decisionmaker would be biased. An obvious violation would be a judge presiding
over a case involving a corporation in which the judge owns shares of stock. However,
less direct pecuniary interests may also violate due process.
The Court has gone even further in recognizing potential due process problems
with interested adjudicators. Capture of a regulatory agency by one segment of a
regulated industry can make agency proceedings seem predetermined and unfair. In a
controversy that culminated in the Supreme Court’s decision in Gibson v. Berryhill, 411
U.S. 564 (1973), the Alabama Board of Optometry came to be dominated by independent
optometrists who would benefit if they could eliminate competition from optometrists
practicing in a corporate setting such as optical departments in department stores. After
state law was amended to eliminate express permission for optometrists to practice in the
corporate setting, the Board filed a complaint in court alleging that corporate optometrists
were in violation of state statutes and rules regulating the practice. The Board also began
agency proceedings to penalize optometrists for practicing in the corporate form.
Due process and other notions of procedural fairness may be violated if it appears
that the decisionmaker is under pressure from superiors to decide cases in a particular
way. Pressure from supervisors can bias adjudicators. While they are somewhat
protected, Administrative Law Judges do not have the high degree of insulation from
external pressure that Article III judges have. Sometimes, agencies put pressure on ALJs
to decide their cases in line with agency priorities not reflected in statutes or regulations.
In Association of Administrative Law Judges v. Heckler, 594 F. Supp. 1132 (D.D.C.
1984), the court held it was improper to subject the decisions of particular ALJs to closer
scrutiny because they ruled in favor of social security claimants more often than other
ALJs. The court did not find a due process violation or even a violation of any section of
the APA. However, the court disapproved of review of ALJ performance based upon
allowance rates because of the pressure this would put on ALJs to allow fewer claims.
The standard for disqualification for prejudgment of an administrative adjudicator
was announced by the D.C. Circuit in Cinderella Career and Finishing Schools, Inc. v.
FTC, 425 F.2d 583 (D.C. Cir. 1970). In that case, a Federal Trade Commissioner had
publicly criticized certain business practices and referred to them as ‘‘deceptive’’ while a
case was pending before the FTC that would determine whether those practices were
legally deceptive under the FTC Act. The D.C. Circuit held that this commissioner could
not participate in the adjudication due to apparent prejudgment. The court stated that the
test for disqualification is ‘‘whether a disinterested observer may conclude that the
agency has in some measure adjudged the facts as well as the law of a particular case in
advance of hearing it.’’ Cinderella, 425 F.2d at 591. The court held that the
commissioner’s public reference to the practice at issue as ‘‘deceptive’’ met this test.
The Supreme Court held in Larkin that it would not violate due process for the
board to hear the case after its investigation and referral to the prosecutor. The Court held
that the combination of these functions did not constitute a per se violation of due
process. As noted with reference to Gibson v. Berryhill, had the Court held otherwise, it
would have amounted to a constitutional rejection of the combination of prosecutorial
and adjudicatory functions that is common in many regulatory agencies. The Court
suggested that a due process violation would be found only when some additional
evidence existed that the board had prejudged the ultimate outcome of the case. The
Court analogized to judges in criminal cases in which the same judge who issues a
warrant or finds probable cause to go forward after a preliminary hearing may ultimately
preside over a jury trial or even a bench trial. The Withrow decision validates the
structure of many administrative agencies under which the agency heads (e.g., FTC
commissioners) take part in deciding which prosecutions to bring and then sit as ultimate
adjudicators within the agency
I. Statutory Hearing Rights
In addition to procedural rights required by due process, agencies must follow the
procedures required by statutes and regulations. We are going to look at four issues that
arise under procedural statutes and rules. First, we will look at the distinction between
formal and informal adjudication and analyze when a statute should be construed to
require formal adjudication. Second, we will look at case law that requires that statutory
hearings be genuine in that the private party must have a real opportunity to prevail at the
hearing. Third, we will look at the relationship between agency rulemaking and
adjudication, specifically how the existence of substantive legislative rules affects the
scope of the adjudicatory hearing required by statute. Finally, we will look at a related
constitutional issue, the irrebuttable presumption doctrine that, when it existed, might
have restricted the ability of agencies or legislatures to limit the scope of hearings by
blanket rules.
In general, hearings under the APA can be divided into two types, formal
adjudication and informal adjudication. Formal adjudication resembles the judicial trial,
and is conducted under APA §§554, 556, and 557. These APA sections contain detailed
provisions governing trial-type hearings, including comprehensive notice of the nature of
the hearing; the opportunity to present evidence; arguments and offers of settlement; the
opportunity to present rebuttal evidence and cross-examine opposing witnesses; the
opportunity to review a transcript of the proceedings; and the opportunity to submit
proposed findings, conclusions of law, and exceptions to the agency’s proposed findings
and conclusions. There are also provisions assigning the burden of proof to the proponent
of any order and requiring the agency to place the transcript and all pleadings and
exhibits on a public record.
The federal courts of appeals have been divided on whether the term ‘‘hearing’’
in a statute referring to adjudication means formal or informal adjudication. Most
notably, the First Circuit for a long time presumed that ‘‘hearing’’ means formal
adjudication. Seacoast AntiPollution League v. Costle, 572 F.2d 872 (1978). In
distinguishing adjudication from rulemaking, where the Supreme Court requires more
than the word ‘‘hearing’’ to invoke formal proceedings, the First Circuit reasoned that
adjudications are more likely than rulemakings to involve particularized fact finding that
lends itself well to quasi-judicial procedures, and thus the court was ‘‘willing to presume
that, unless a statute otherwise specifies, an adjudicatory hearing subject to judicial
review must be on the record.’’ Id. at 876.
When a statute grants an applicant a hearing on an application for a government
benefit or license, the hearing must provide the applicant with a genuine opportunity to
prevail. The agency does not satisfy the hearing requirement by going through the
motions of a hearing process when, as a practical matter, the applicant has no chance of
prevailing at the hearing. The best example of this is the Supreme Court’s
implementation of the licensing process under the Telecommunications Act. The Act
requires the Federal Communications Commission (FCC) to provide an applicant with a
full adjudicatory hearing before an application can be denied. The FCC is allowed to
grant an application without holding an adjudicatory hearing. In Ashbacker Radio Corp.
v. FCC, 326 U.S. 327 (1945), two parties applied for a license to construct radio stations
that would operate on the same frequency in nearby communities. Because of potential
frequency interference, these two applications were mutually exclusive. Following the
letter of the statute, the FCC granted one application and set the other (Ashbacker’s) for a
hearing. Ashbacker sued, claiming that the hearing would not be genuine because its
application could not be granted without violating an FCC policy against interference
with the signal of the previously granted station in the nearby community.
Another issue regarding statutorily required hearings is the relationship between
hearing procedures and substantive rulemaking. As is discussed in Chapter 6, agencies
often use notice and comment rulemaking to make new law on issues that would
otherwise be determined in a hearing process. These substantive rules effectively narrow
the issues to be decided at statutorily required hearings, which are referred to in the
remainder of this discussion as ‘‘narrowing rules.’’ This narrowing leads to legal
arguments that the agency cannot rely on the rule, but rather must re-determine the issue
at the statutory hearing. The challenger points out that notice and comment rulemaking is
much less formal and provides a lower level of procedural protection to the private party
than the adjudicatory hearing required by the statute.
Another notable area in which narrowing rules have been used is in the context of
social security disability benefits. Two principal issues govern eligibility for social
security disability benefits: the applicant’s medical condition and whether the applicant is
employable in the national economy. The volume of social security disability hearings is
very high, giving the agency an incentive to use narrowing rules. It is difficult to imagine
how a narrowing rule could limit the claimant’s ability to present evidence of his or her
medical condition, but the Social Security Administration did conduct a rulemaking to
create a narrowing rule on the availability of jobs in the national economy for each level
of disability and skills. A rule, in the form of a grid, was promulgated that specified
whether jobs existed for each level of disability and skills. Under the grid rule,
entitlement to disability benefits is determined by quantifying the applicant’s condition
and skills and then plugging that information into the grid. This rule was challenged as
depriving applicants of the hearing required by the Social Security Act
Narrowing rules have a constitutional counterpart because some regulatory
subjects have argued that if a narrowing rule affects a hearing involving a constitutionally
protected interest such as liberty or property, the rule violates due process. For a short
while, the Supreme Court agreed with this argument in certain contexts and constructed a
constitutional rule that it referred to as the ‘‘irrebuttable presumption doctrine.’’ This
doctrine held that where there was a constitutionally protected interest at stake (such as
liberty or property), due process required a hearing on all issues and neither legislation
nor administrative rules could constitutionally narrow the issues to be determined at the
hearing. This doctrine was abandoned a few years after its genesis because of its potential
for striking down numerous classifications in statutes and regulations.
The Court recognized these problems with the irrebuttable presumption doctrine,
and the doctrine died a somewhat sudden death when the Court rejected a challenge to a
provision of the Social Security Act that excluded widows who were married to deceased
workers for shorter than nine months from eligibility for survivors’ benefits. Weinberger
v. Salfi, 422 U.S. 749 (1975). The widow challenging the statute claimed that the nine-
month rule was an invalid irrebuttable presumption that marriages lasting less than nine
months were shams entered into to procure survivors’ benefits.
There are, of course, many marriages shorter than nine months that are not shams,
but the statute represented Congress’s judgment that no benefits should be paid to the
surviving partner of a marriage shorter than nine months, perhaps because many are
shams and perhaps also because in a short marriage, the surviving partner is less likely to
have been dependent on the deceased spouse.
In Weinberger, the Court held that the nine-month durational rule was a valid
substantive eligibility requirement, and Congress was free to employ such a requirement
as a prophylactic, easy-to-administer rule against sham marriages that might be difficult
to prove. The nine-month rule would easily survive equal protection scrutiny. In its
opinion, the Court rejected the irrebuttable presumption doctrine, holding, in effect, that
requirements such as those rejected in Bell and Stanley should be upheld unless the
regulatory classification itself is substantively unconstitutional.
