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occupythelaw.com / secretjustice.comTo constitute a deprivation for due process purposes, government action must adverselyaffect a protected interest. Negligent actions, however, even if tortious, do not amount to adeprivation for due process purposes.
D. Process Due
The procedures required by due process involves consideration of three factors: (1) thestrength of the private interest, (2) the risk of error and the probable value of additional or substituteprocedural safeguards to avoid error, and (3) the strength of the Government
s interest. Theseconsiderations govern both the adequacy and timing of the procedures required. While therequirements of due process vary with the particulars of the proceeding, notice of the subjects of theagency proceeding and the opportunity to submit written comments or oral comments at alegislative-type hearing may be sufficient.5.
Legislative-type determinationsA hearing is not required, as a matter of constitutional due process, when agency action islegislative in character rather than adjudicatory.2.
RIGHT TO A HEARING UNDER THE ADMINISTRATIVE PROCEDURE ACT
Formal Hearings Under the APA
Subject to the set of exceptions set forth in
554(a) (see discussion exceptions in Subpart B),a formal hearing is required by the APA in
every case of adjudication required by statute to bedetermined on the record after opportunity for an agency hearing.
Where a federal statute requiressuch an on-the-record hearing, the hearing must comply with the provisions of
554, 556, and 557of the APA.Determining whether a statute that calls for a hearing triggers the formal adjudicationrequirements of the APA is a matter statutory interpretation. Courts differ over whether to defer toan agencys interpretation that a particular statute does not require formal adjudication.
B. Agency Action Excepted from Adjudication Requirements
The APA does not require a formal hearing to the extent that there is involved a mattersubject to a subsequent trial de novo in a court; the selection or tenure of an employee; proceedingsin which decisions rest solely on inspections, tests, or elections; the conduct of military or foreignaffairs functions; cases in which an agency is acting as an agent for a court; or the certification of worker representatives.