A procedural due process claim under 42 U.S.C. § 1983 has two parts, and the first one is easy to get backwards. The gut instinct is that the Constitution gives you a right to a hearing before the government takes something away. It doesn’t. Not directly. The Constitution supplies the procedure. Whether there’s anything to protect in the first place is a question of state law.
Get the order right and the case is workable. Get it wrong and it gets tossed on a motion.
Step one: is there a protected property interest?
The passage that controls is in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). An untenured assistant professor wasn’t rehired after one year, and he claimed a right to a statement of reasons and a hearing. The Court said no, and here’s why:
“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”
Id. at 577. Then comes the sentence that flips the whole question around:
“Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”
Id.
So the first question in a Minnesota case isn’t “was this fair?” It’s this: what Minnesota statute, ordinance, rule, contract, or established practice gave this person an entitlement the government couldn’t take away at will? If the answer is none — the job was at-will, the benefit discretionary, the permit revocable at the agency’s pleasure — there’s no property interest and no procedural due process claim, regardless of how badly the government behaved.
The interest doesn’t have to be written into a formal contract. In Perry v. Sindermann, 408 U.S. 593 (1972), decided the same day, a professor at a college with no formal tenure system alleged a de facto tenure practice. The Court held that a benefit is property “if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.” Id. at 601. Practice, policy manuals, and course of dealing can create the entitlement.
There’s one important asymmetry. A state is free to decline to create a property interest. Once it creates one, though, it can’t define away the process. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), threw out the “bitter with the sweet” theory, the idea that an entitlement comes only with whatever procedures the legislature attached to it: “‘Property’ cannot be defined by the procedures provided for its deprivation any more than can life or liberty.” Id. at 541. What process is due is a question of federal constitutional law, even where the entitlement itself is a creature of state law.
Step one, continued: liberty interests and the “stigma-plus” problem
The liberty side is narrower than clients expect.
Roth acknowledged that a state’s stated reasons for a discharge can implicate liberty. If the government makes a charge “that might seriously damage his standing and associations in his community” — dishonesty or immorality, for example — then “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” 408 U.S. at 573 (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). Same thing where the state imposes “a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Id. But Roth itself found neither one, and said that “[i]t stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another.” Id. at 575.
Paul v. Davis, 424 U.S. 693 (1976), then shut the door on defamation as a due process claim. The Court held that its earlier stigma cases do “not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either ‘liberty’ or ‘property’ by itself sufficient to invoke the procedural protection of the Due Process Clause.” Id. at 701. What set the earlier cases apart was that in each one, “a right or status previously recognized by state law was distinctly altered or extinguished.” Id. at 711. When a state official damages your reputation, the fix, if there is one, is state tort law. Id. at 711–12.
That’s where the “stigma-plus” requirement comes from: a false and stigmatizing public charge, plus a change to a legal right or status. A press release accusing someone of misconduct, standing alone, isn’t a due process claim.
Step two: what process is due, and when
Only after you’ve found a protected interest does the Constitution answer “how much process.”
Mathews v. Eldridge, 424 U.S. 319 (1976), sets the framework. It starts from the proposition that “[t]he fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Then it lays out the three-factor balance:
“identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
Id. at 335.
Two cases show how far apart the results of that balance can land.
In Goldberg v. Kelly, 397 U.S. 254 (1970), the Court held that welfare benefits couldn’t be cut off without a prior evidentiary hearing: “when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process.” Id. at 264. The reason was where the recipient stood. For a qualified recipient, “welfare provides the means to obtain essential food, clothing, housing, and medical care.” Id.
In Mathews itself, applying the same principles to Social Security disability benefits, the Court came out the other way: “an evidentiary hearing is not required prior to the termination of disability benefits and . . . the present administrative procedures fully comport with due process.” 424 U.S. at 349. Same clause, same test, different balance.
For public employment, Loudermill gives the concrete answer. “[T]he root requirement” of the Due Process Clause is “that an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” 470 U.S. at 542 (quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971)). But the pre-termination proceeding is modest. It’s an “initial check against mistaken decisions,” not a full adjudication. Id. at 545–46. What’s required is that “[t]he tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. at 546. That holding rested in part on the availability of a full post-termination hearing under Ohio law. Id.
How it plays out in Minnesota
Public employment. In a public employment case, the entitlement has to come from somewhere specific. Three sources come up again and again.
The Veterans Preference Act, Minn. Stat. § 197.46, is the clearest. After any initial hiring probationary period, a covered veteran employed by the state or by “any county, home rule charter or statutory city, town, school district, or any other political subdivision in the state” may not “be removed from the position or employment except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, in writing.” The statute builds out the machinery: written notice of intent to discharge and of the right to request a hearing within 30 days, with failure to request constituting a waiver of the hearing and of “all other available legal remedies for reinstatement”; election of a civil service board, merit authority, or arbitrator; and appeal to district court on 15 days’ written notice. By its terms, the Act doesn’t apply to teachers, to a private secretary, a superintendent of schools, one chief deputy of an elected official or department head, or to a person in a strictly confidential relationship to the appointing officer.
The second source is a collective bargaining agreement or civil service rule that imposes a just-cause standard. The third is a statute or charter provision governing a particular office. Where none of those applies, the appointment’s own terms control. Roth shows what that means. Because the professor’s appointment “specifically provided that the respondent’s employment was to terminate on June 30,” did “not provide for contract renewal absent ‘sufficient cause,’” and wasn’t backed up by “any state statute or University rule or policy that secured his interest in re-employment,” the terms “secured absolutely no interest in re-employment for the next year.” 408 U.S. at 578. Years on the job, by themselves, aren’t an entitlement.
This analysis is separate from any speech claim. An employee may have a First Amendment retaliation claim with no property interest, or a property interest with no protected speech. The two are analyzed separately, as discussed in our article on public employee speech.
Licenses. A license that’s already been issued is a protected interest. Bell v. Burson, 402 U.S. 535 (1971), held that once licenses are issued “their continued possession may become essential in the pursuit of a livelihood,” so “the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Id. at 539. In Minnesota, professional and occupational licensing agencies generally supply that process through the contested-case machinery of the Administrative Procedure Act: an agency “shall initiate a contested case proceeding when one is required by law” and “shall decide a contested case only in accordance with the contested case procedures of the Administrative Procedure Act,” Minn. Stat. § 14.57(a), and every contested-case decision “shall be in writing, shall be based on the record and shall include the agency’s findings of fact and conclusions on all material issues,” Minn. Stat. § 14.62, subd. 1. When a state statute already provides a hearing, the constitutional question isn’t whether there was process. It’s whether the process you actually got matched what the statute and Mathews require.
Benefits. Minnesota-administered public assistance and similar programs create entitlements defined by their eligibility statutes and rules. Roth makes the point about Goldberg: the recipients there “had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them.” 408 U.S. at 577. The eligibility provision is the property interest. The procedural claim lives or dies on it.
The state constitution. Minnesota has its own due process guarantee. Article I, § 7 of the Minnesota Constitution provides in relevant part that no person shall “be deprived of life, liberty or property without due process of law.” A Minnesota state-court claim may be framed under that provision as well as under the Fourteenth Amendment, and the two aren’t automatically coextensive.
What a win is worth
One more thing before you file. A procedural due process violation, standing alone, isn’t a damages case. Carey v. Piphus, 435 U.S. 247 (1978), held that “in the absence of proof of actual injury, the students are entitled to recover only nominal damages” — one dollar. Id. at 248, 266–67. If the deprivation itself was justified and only the procedure was defective, the plaintiff has to prove the procedural failure caused the harm. What that means for case value, fee-shifting, and settlement is covered in what a § 1983 case is worth.
You still have to deal with who the defendant is and whether immunity applies. Who can be sued is covered in who can be sued under § 1983, and the individual defendant’s qualified immunity defense applies here just as it does in a force case.
The short version
Find the entitlement in Minnesota law before you argue about the hearing. If a statute, ordinance, contract, rule, or established practice gave the person a claim the government couldn’t simply decline to honor, there’s a property interest, and then the Constitution decides how much process was owed. If not, the claim dies at the front door no matter how unfair the process was.
Madgett Law, LLC handles civil rights litigation in Minnesota state and federal court, including procedural due process claims that come out of public employment, licensing, and benefit decisions, alongside the firm’s employment, personal injury, and general civil litigation practice. If a government body took something from you without a fair process, send us a message or call 612-470-6529.
Sources: Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 575, 577, 578 (1972) (liberty and the Constantineau quotation at 573; “stretches the concept too far” at 575; “legitimate claim of entitlement” and “Property interests, of course, are not created by the Constitution” at 577; description of the Goldberg entitlement at 577; the terms of Roth’s own appointment at 578). Perry v. Sindermann, 408 U.S. 593, 601 (1972) (“mutually explicit understandings”). Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 542, 545–46, 546 (1985) (rejection of the “bitter with the sweet” approach and “‘Property’ cannot be defined by the procedures provided for its deprivation”; “the root requirement,” quoting Boddie v. Connecticut, 401 U.S. 371, 379 (1971); the pre-termination proceeding as an “initial check against mistaken decisions”; notice, explanation of the evidence, and an opportunity to respond). Paul v. Davis, 424 U.S. 693, 701, 711, 711–12 (1976) (reputation alone is not liberty or property; the earlier cases involved alteration or extinguishment of a right or status recognized by state law; reputational injury left to state tort law). Mathews v. Eldridge, 424 U.S. 319, 333, 335, 349 (1976) (“at a meaningful time and in a meaningful manner,” quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965); the three-factor balance; holding that no pre-termination evidentiary hearing is required for disability benefits). Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (pre-termination evidentiary hearing required for welfare). Bell v. Burson, 402 U.S. 535, 539 (1971) (issued licenses may not be taken without procedural due process). Carey v. Piphus, 435 U.S. 247, 248, 266–67 (1978) (nominal damages absent proof of actual injury). Minnesota authorities: Minn. Stat. § 197.46 (Veterans Preference Act; removal only “for incompetency or misconduct shown after a hearing,” the 30-day request and waiver provisions, the hearing-forum election, the 15-day appeal, and the excluded positions); Minn. Stat. § 14.57(a) and § 14.62, subd. 1 (contested-case initiation and written decisions) (revisor.mn.gov). Minn. Const. art. I, § 7, quoted from the text of the Minnesota Constitution published at revisor.mn.gov. This article is general legal information about federal and Minnesota law, not legal advice; reading it does not create an attorney–client relationship, and no result is promised or implied. Whether a protected interest exists in any particular case depends on the specific source of law said to create it.