The Due Process Clause grants the aggrieved party the opportunity to present the case and have its merits fairly judged.[i] Thus, some form of hearing is required before a finally deprivation.[ii]

Under certain circumstances, a hearing may be conducted after the initial deprivation.  In Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230 (U.S. 1988), the court held that the post-suspension procedure authorized by a statute is not unconstitutional on its face.

Whenever a delay in an administrative adjudication significantly or deliberately interferes with a party’s capacity to prepare or to present his case, the right to due process is violated.[iii] However, in G. H. Walker & Co. v. State Tax Com., 62 A.D.2d 77 (N.Y. App. Div. 3d Dep’t 1978), the court held that where the delay in the administrative adjudication of income tax deficiencies has not significantly or deliberately interfered with the taxpayers’ capacity to prepare or present their case, due process is not denied to the taxpayers.

In Torbeck v. Zoon, 1997 U.S. App. LEXIS 22822 (4th Cir. Md. Aug. 29, 1997), the court held that the three factors used for determining the constitutionality of a delay in a post-suspension hearing are:

• importance of the private interest and the harm to this interest occasioned by the delay,
• justification offered by the government for delay and its relations to the underlying governmental interest, and
• likelihood that the interim decision may have been mistaken.

A preliminary agency decision which does not cause irreparable harm need not be preceded by a hearing where a hearing is held before the final administrative order becomes effective.[iv] In Morris v. Commonwealth, 13 Va. App. 77 (Va. Ct. App. 1991), the court held that due process requires that an individual receive notice and an opportunity to be heard before s/he is deprived of life, liberty, or property by adjudication.  An individual is given an opportunity for hearing before s/he is to be deprived of any significant property interest.  However, in an administrative proceeding, the hearing need not be held at a preliminary stage in the proceeding so long as the requisite hearing is held before the final administrative order becomes effective.

[i] Logan v. Zimmerman Brush Co., 455 U.S. 422 (U.S. 1982)

[ii] Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976)

[iii] Gillette v. New York State Liquor Authority, 149 A.D.2d 927 (N.Y. App. Div. 4th Dep’t 1989)

[iv] State ex rel. Oklahoma Dept. of Agric. v. Yanes, 1987 OK 124 (Okla. 1987)