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Officer Grade Determination Act: Part II

Is the Officer Grade Determination Act [OGDA] constitutional? We argue that it is not.  The crucial issue is Constitutional  Due Process. We continue the survey begun in our last blog. 


  1. Two Types of Due Process


Substantive Due Process.  The principle of “Substantive Due Process of Law” has its origin in England.  It began as a protection against arbitrary actions by the Crown.  In this country, the requirement is intended to limit undue governmental power – to shield the citizen against arbitrary depravation of rights relating to life, liberty, or property.  See Vernon v. State, 245 Ala. 633, 10 So. 2d 388 (1944); Railway Mail Ass’n v. Corsi, 293 N.Y. 315, 56 N.E. 2d. 721 (1944) aff’d, 326 U S. 88 (1945). See generally Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944).  Neither lawmakers nor judges can act arbitrarily.   Snyder v.Com. of Mass., 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934).  The legislature, as well as the judiciary, is forbidden to act arbitrarily in contravention of fundamental principles of liberty and justice.  Palko v. State of Connecticut, 302 U.S. 319  (1937).


“Substantive due process” first appeared as a distinct concept in legal casebooks in the 1930s; by 1952, it had been twice mentioned in Supreme Court opinions.  See White, G. Edward, The Constitution and the New Deal. Cambridge, MA: Harvard University Press (2000) 259; Rosalie Levenson Reining, “Abuses of Executive Power through Substantive Due Process,” 60 Florida L R. (2008).

The core concept of Due Process is reflected in a much quoted-Supreme Court decision of Snyder v. Massachusetts, 291 U. S. 97 (1934), which involved a defendant whose demand to be present had been refused.  The Supreme Court commented that:

It is a rule as old as the law that no one shall be personally bound until he or she has had a day in court, by which is meant until he or she has been duly cited to appear and has been afforded an opportunity to be heard…. The Commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless, in so doing, it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. Twining v. New Jersey, 211 U. S. 78, 106, Rogers v. Peck, 199 U. S. 425, 434;  Maxwell v. Dow, 176 U. S. 581, 604; Hurtado v. California, 110 U. S. 516; Frank v. Mangum, 237 U. S. 309, 326; Powell v. Alabama, 287 U. S. 45, 67  What may not be taken away is notice of the charge and an adequate opportunity to be heard in defense of it. Twining v. New Jersey, supra; Powell v. Alabama, supra, pp. 287 U. S. 68 at 71 Holmes v. Conway, 241 U. S. 624. Cf. Blackmer v. United States, 284 U. S. 421 [emphasis added].

A fundamental requirement of Substantive Due Process is an opportunity to be heard.  That requires notice and proceedings adequate to safeguard the right for which the Constitutional  protection is invoked.  Richards v. Jefferson County, Ala., 517 U.S. 793 (1996).  See generally Taylor v. Sturgell, 553 U.S.  880 (2008) [endorsing the well-known concept that every litigant should have his/her day in court].


It follows that – except in emergency situations – the government must provide a hearing before depriving an individual of a protected interest.  U.S. v. James Daniel Good Real Property, 510 U.S. 43 (1993)[ even a nominal property owner is entitled to a pre-seizure hearing].   Judicially, Due Process precedents are often said to involve a two-stage analysis.  First, the Court must ask whether the asserted individual interests are encompassed within the Fourteenth Amendment’s protection of “life, liberty, or property.” Second, if such rights are implicated, the question becomes what procedures suffice to constitute “Due Process of law.” Ingraham v. Wright, 430 U.S. 651, 711(1977)[corporal punishment at school – issue of our notice and opportunity to be heard before spanking is imposed].

The United States Supreme Court looks to the nature of the interest at stake.  Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, (1979)[class action by Nebraska inmates – procedures found to provide sufficient Constitutional  protection].  The grieving party must have more than an abstract interest and more than a unilateral expectation of protection.  In short, there must be a legitimate, objective claim of entitlement which courts are willing to enforce.

Due Process protections extend to non-judicial matters as well.  Ballard v. Hunter, 204 U.S. 241, 255 (1907).  Administrative and executive proceedings must also satisfy the Due Process Clause. McMillen v. Anderson, 95 U.S. 37, 41 (1877).

Procedural Due Process.  Procedural  Due Process – as its name suggests – requires the government  to set appropriate procedures and follow them when it seeks to deprive anyone of life, liberty, or property.  This can be contrasted with Substantive Due Process, which prohibits arbitrary government action regardless of the procedures used.


  1. Interim summary


The requirements of Due Process vary with the type of proceeding.  Due Process in an administrative setting does not always require the stringent application of the judicial model.  Due Process is flexible; perhaps the best that can be said is that it requires whatever protections the particular situation demands.


And what satisfies fair play or “the law of the land” in a particular situation?  The issue turns on the need for both: [a] decent, fair dealing; and [b] minimizing the risk of error in decision-making.  Gilbert v. Homar, 520 US. 924 (1997);  Hewitt v. Helms, 459 U.S. 460, (1893).


Due process often requires balancing:


  • the private interest affected by official action;


  • the risk of erroneous deprivation of the interest through the procedures used;


  • the probable value, if any, of additional or substitute procedural safeguards; and


  • the government  interest involved.  See generally Buelna v. Department of Homeland Security, 2014 MS PB 45 (2014) [security clearance suspension].


Considering case law and commentary, Due Process rights in this area might be summarized as follows:


Due Process has been defined as the inquiry into how life, liberty, or property is taken.


Precedents call for two separate inquiries in evaluating an alleged Due Process violation. (1) Did the petitioner unfairly lose life, liberty or property? and (2) if so, did he/she receive at least minimal procedural protections warranted under the circumstances?  Brown v. Hot, Sexy, and Safer Productions, Inc., 68 F.3d 525 (1st Cir. 1995).  The first of these considerations is Substantive Due Process.  The second is Procedural Due Process.


Due Process dictates that an aggrieved party has at least these minimum rights in dealing with the government: Notice…an opportunity to defend…an impartial tribunal …and  a decision consistent with essential fairness.


This view of  Due Process was developed in Hannah v. Larche, 363 U.S. 4207 (1960), reh’g denied, 364 U.S. 855 (1960). Such rights are assuredly guaranteed when the governmental action is involved in the adjudication.  See also S Michael Bender v. Director, Patent and Trademark Office, __ Fed. Supp. 1243 (Fed.  Circuit 2007).


The Supreme Court pointed out in Hannah that Due Process embodies rules of fair play which — through the years — have been recognized in a variety of different proceedings.  Whatever the forum, Due Process requires the government to act in a fair manner.  U.S. v. Saleno, 481 U.S. 739(1987); Greene v. McElroy, 360 U.S. 474 (1959).


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