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Hearing Requirement

There is no substantive right to hearing under the Administrative Procedure Act.  The Administrative Procedure Act set out the procedure for hearing when the statute, agency rules, ordinance or the constitution mandates a hearing.  A party has a due process right to hearing before a final deprivation of a constitutionally protected right.

The term “hearing” does not have a fixed meaning and hence when a hearing is required by law, the question is not whether a hearing should be held, but rather what type of proceeding is appropriate to the nature of the case.  The type of hearing that is required depends upon several factors like the “private interests that will be affected by official action, the risk of the erroneous deprivation of such interests through the use of informal procedures, the probable value of additional or substitute procedural safeguards, and the government’s interest, including the burdens that additional or substitute procedural requirements would entail.”

Due process is not a technical conception with a fixed content unrelated to time, place and circumstances.[i]  Due process is a flexible rule of law which calls for such procedural protections as the particular situation demands.[ii]  Accordingly, resolution of the issue whether the administrative procedures are constitutionally sufficient requires analysis of the governmental and private interests that are affected.[iii]  Before a party can be considered to have a substantial interest in the outcome of a proceeding entitling it to a hearing, the party must show that it will suffer injury in fact which is of significant immediacy to entitle it to a hearing and that the substantial injury is of a type or nature which the proceeding is designed to protect.[iv]

In the matter of granting licenses, some courts have held that the statute requires full adjudicatory hearings before granting a license.  However, other courts have held that the statute does not independently require an adjudicative hearing, but a decision has to be made within a reasonable time and with due regard for the interests of the parties.  It has been held in a number of cases that an agency can impose restrictions on the hearing requirements by rulemaking, so that no adjudicatory hearing is required if there is no contested issue.

5. U.S.C.S. § 554, provides for hearings to be conducted in accordance with 5 U.S.C.S. § 556.  Section 554, however, does not affect all adjudications, but applies only in cases of adjudication which are required by statute to be determined on the record after an opportunity for an agency hearing.  Thus, to determine whether a 5 U.S.C.S § 556 hearing is required, the court must examine the relevant statute to see if it requires the permit application to be determined on the record after an opportunity for an agency hearing.[v]  5 U.S.C.S. § 554(c)(2) provides that an agency shall give all interested parties a hearing pursuant to 5 U.S.C.S. § 556 when the parties are unable to determine a controversy by consent.

Although the hearing provisions of the Federal Administrative Procedure Act do not apply to temporary licenses, the provisions relating to license extensions are applicable to temporary licenses.

[i] Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)

[ii] Morrissey v. Brewer, 408 U.S. 471, 481 (1972)

[iii] Arnett v. Kennedy, 416 U.S. 134 (U.S. 1974)

[iv] Gilliland v. FAA, 48 F.3d 316 (8th Cir. 1995)

[v] Taylor v. District Engineer, U. S. Army Corps of Engineers, 567 F.2d 1332, 1336 (5th Cir. Fla. 1978)

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