The Administrative Procedure Act, the Fifth Amendment and Due Process of Law

The Fifth Amendment guarantee

Lawtopolis publishes this discussion for informational and educational purposes, and as an exercise of the freedoms of speech, press, assembly, belief and religion protected by the First Amendment. It sets out what each statute and decision says and what courts have done with it. It is not legal advice and does not recommend any course of action.

… nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

U.S. Const. amend. V

The Fifth Amendment binds the federal government, and the Fourteenth Amendment imposes the same rule on the states. At its core, due process means notice and a chance to be heard: “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” (Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).

Beyond that, how much process is due depends on the private interest, the risk of error and the government’s interest (Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).

What the Administrative Procedure Act requires

• Scope. First, the APA governs federal agencies. An “agency” is “each authority of the Government of the United States,” and it excludes Congress and the courts (5 U.S.C. § 551(1)). Private persons and companies are “persons,” not agencies.
• Formal adjudication. Second, section 554 applies “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” In those cases, the agency must timely inform persons entitled to notice of the time, place and nature of the hearing, its legal authority and “the matters of fact and law asserted” (§ 554(b)), and parties may submit facts and arguments (§ 554(c)).
• Rulemaking. Third, section 553 generally requires notice of proposed rules in the Federal Register and an opportunity for public comment.
• Judicial review. Finally, “Final agency action for which there is no other adequate remedy in a court” is reviewable (§ 704), and courts “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (§ 706(2)(A)).

Private notices and the Administrative Procedure Act

For example, an essay compares private paperwork to the APA: a conditional acceptance as notice, a notice of default as the opportunity to respond, and a certificate of dishonor as the final record. Admittedly, the comparison describes a sensible sequence, but the APA and the Due Process Clauses do not apply to it. They bind government, not private parties: the Fourteenth Amendment offers no shield against “private conduct, ‘however discriminatory or wrongful'” (Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974)). A private person cannot create an agency record that binds a bank, a court or an official. See silence as consent.

Undenied allegations and affidavits in court

• Fed. R. Civ. P. 8(b)(6): “An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied.” It applies to pleadings in a pending lawsuit.
• Fed. R. Civ. P. 56(e): if a party fails to address another party’s assertion of fact on summary judgment, the court “may … consider the fact undisputed for purposes of the motion.” The decision is the court’s.
• 28 U.S.C. § 1746: a person may use an unsworn declaration under penalty of perjury in place of a sworn affidavit in federal matters. As a result, it gives the statement the force of sworn testimony; it does not make it true or binding on anyone else.
• United States v. Tweel, 550 F.2d 297, 299 (5th Cir. 1977): “Silence can only be equated with fraud where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading.” The court suppressed evidence an IRS agent obtained by hiding that an audit was a criminal investigation.

How to check the Administrative Procedure Act claim yourself

The best test of Administrative Procedure Act is simple: look for a court that accepted it. We have not found one in the reported decisions. Next, read the actual law the claim points to. For example, check the statute, the UCC section or the constitutional text it cites. Then compare that text with what the claim says it means. For a real problem with a debt, a court case or a tax bill, a licensed attorney can explain your actual options. Our directory is a good place to start.

Sources and further reading

Official sources used on this page:

• law.cornell.edu
• law.cornell.edu
• law.cornell.edu
• law.cornell.edu
• law.cornell.edu

Related reading on Lawtopolis:

• Does a Bank Have a Duty to Respond? Silence as Consent, Fiduciary Duty and the UCC
• Unrebutted Affidavits, Commercial Maxims and Discharge Bonds
• The Bill of Rights: How It Protects You, Amendment by Amendment
• Delegation of Authority: From the People to Government, and the Nondelegation Doctrine