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O'BANNON v. TOWN COURT NURSING CENTER ET AL.

SUPREME COURT OF THE UNITED STATES


decided: June 23, 1980.

O'BANNON, SECRETARY OF PUBLIC WELFARE OF PENNSYLVANIA
v.
TOWN COURT NURSING CENTER ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.

Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 790. Brennan, J., filed a dissenting opinion, post, p. 805. Marshall, J., took no part in the consideration or decision of the case.

Author: Stevens

[ 447 U.S. Page 775]

 MR. JUSTICE STEVENS delivered the opinion of the Court.

The question presented is whether approximately 180 elderly residents of a nursing home operated by Town Court Nursing Center, Inc., have a constitutional right to a hearing before a state or federal agency may revoke the home's authority to provide them with nursing care at government expense. Although we recognize that such a revocation may be harmful to some patients, we hold that they have no constitutional right to participate in the revocation proceedings.

Town Court Nursing Center, Inc. (Town Court), operates a 198-bed nursing home in Philadelphia, Pa. In April 1976 it was certified by the Department of Health, Education, and Welfare (HEW) as a "skilled nursing facility," thereby becoming eligible to receive payments from HEW and from the Pennsylvania Department of Public Welfare (DPW), for providing nursing care services to aged, disabled, and poor persons in need of medical care. After receiving its certification,*fn1 Town Court entered into formal "provider agreements" with both HEW and DPW. In those agreements HEW and DPW agreed to reimburse Town Court for a period of one year for care provided to persons eligible for Medicare or Medicaid benefits under the Social Security Act,*fn2 on the condition that Town Court continue to qualify as a skilled nursing facility.

On May 17, 1977, HEW notified Town Court that it

[ 447 U.S. Page 776]

     no longer met the statutory and regulatory standards for skilled nursing facilities and that, consequently, its Medicare provider agreement would not be renewed.*fn3 The HEW notice stated that no payments would be made for services rendered after July 17, 1977, explained how Town Court might request reconsideration of the decertification decision, and directed it to notify Medicare beneficiaries that payments were being discontinued. Three days later DPW notified Town Court that its Medicaid provider agreement would also not be renewed.*fn4

[ 447 U.S. Page 777]

     Town Court requested HEW to reconsider its termination decision. While the request was pending, Town Court and six of its Medicaid patients*fn5 filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that both the nursing home and the patients were entitled to an evidentiary hearing on the merits of the decertification decision before the Medicaid payments were discontinued. The complaint alleged that termination of the payments would require Town Court to close and would cause the individual plaintiffs to suffer both a loss of benefits and "immediate and irreparable psychological and physical harm." App. 11a.

[ 447 U.S. Page 778]

     The District Court granted a preliminary injunction against DPW and HEW, requiring payments to be continued for new patients as well as for patients already in the home and prohibiting any patient transfers until HEW acted on Town Court's petition for reconsideration. After HEW denied that petition, the District Court dissolved the injunction and denied the plaintiffs any further relief, except that it required HEW and DPW to pay for services actually provided to patients.

Town Court and the six patients filed separate appeals from the denial of the preliminary injunction, as well as a motion, which was subsequently granted, for reinstatement of the injunction pending appeal. The Secretary of HEW cross-appealed from the portion of the District Court's order requiring payment for services rendered after the effective date of the termination. The Secretary of DPW took no appeal and, though named as an appellee, took no position on the merits.

The United States Court of Appeals for the Third Circuit, sitting en banc, unanimously held that there was no constitutional defect in the HEW procedures that denied Town Court an evidentiary hearing until after the termination had become effective and the agency had ceased paying benefits.*fn6 The

[ 447 U.S. Page 779]

     Court of Appeals came to a different conclusion, however, with respect to the patients' claim to a constitutional right to a pretermination hearing. Town Court Nursing Center, Inc. v. Beal, 586 F.2d 280 (1978).*fn7

Relying on the reasoning of Klein v. Califano, 586 F.2d 250 (CA3 1978) (en banc), decided the same day, a majority of the court concluded that the patients had a constitutionally protected property interest in continued residence at Town Court that gave them a right to a pretermination hearing. In Klein the court identified three Medicaid provisions -- a statute giving Medicaid recipients the right to obtain services from any qualified facility,*fn8 a regulation prohibiting certified

[ 447 U.S. Page 780]

     facilities from transferring or discharging a patient except for certain specified reasons,*fn9 and a regulation prohibiting the reduction or termination of financial assistance without a hearing*fn10 -- which, in its view, created a "legitimate entitlement to continued residency at the home of one's choice absent specific cause for transfer." Id., at 258. It then cited the general due process maxim that, whenever a governmental benefit may be withdrawn only for cause, the recipient is entitled to a hearing as to the existence of such cause. See Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 11. Finally, it held that, since the inevitable consequence of decertifying a facility is the transfer of all its residents receiving Medicaid benefits, a decision to decertify should be treated as a decision to transfer, thus triggering the patients' right to a hearing on the issue of whether there is adequate cause for the transfer.*fn11

[ 447 U.S. Page 781]

     Applying this reasoning in Town Court, six judges held that the patients were entitled to a pretermination hearing on the issue of whether Town Court's Medicare and Medicaid provider agreements should be renewed.*fn12 The court thus reinstated that portion of the preliminary injunction that prohibited patient transfers until after the patients had been granted a hearing and affirmed that portion that required HEW and DPW to continue paying benefits on behalf of Town Court residents. It then remanded, leaving the nature of the hearing to be accorded the patients to be determined, in the first instance, by the District Court. Three judges dissented, concluding that neither the statutes nor the regulations granted

[ 447 U.S. Page 782]

     the patients any substantive interest in decertification proceedings and that they had no constitutionally protected property right in uninterrupted occupancy.*fn13

[ 447 U.S. Page 783]

     The Secretary of DPW filed a petition for certiorari, which we granted.*fn14 441 U.S. 904. We now reverse, essentially for the reasons stated by Chief Judge Seitz in his dissent.

[ 447 U.S. Page 784]

     At the outset, it is important to remember that this case does not involve the question whether HEW or DPW should, as a matter of administrative efficiency, consult the residents of a nursing home before making a final decision to decertify it.*fn15 Rather, the question is whether the patients have an interest in receiving benefits for care in a particular facility that entitles them, as a matter of constitutional law, to a hearing before the Government can decertify that facility. The patients have identified two possible sources of such a right. First, they contend that the Medicaid provisions relied upon by the Court of Appeals give them a property right to remain in the home of their choice absent good cause for transfer and therefore entitle them to a hearing on whether such cause exists. Second, they argue that a transfer may have such severe physical or emotional side effects that it is tantamount to a deprivation of life or liberty, which must be preceded by a due process hearing.*fn16 We find both arguments unpersuasive.*fn17

[ 447 U.S. Page 785]

     Whether viewed singly or in combination, the Medicaid provisions relied upon by the Court of Appeals do not confer a right to continued residence in the home of one's choice. Title 42 U. S. C. § 1396a (a)(23) (1976 ed., Supp. II) gives recipients the right to choose among a range of qualified providers, without government interference. By implication, it also confers an absolute right to be free from government interference with the choice to remain in a home that continues to be qualified. But it clearly does not confer a right on a recipient to enter an unqualified home and demand a hearing to certify it, nor does it confer a right on a recipient to continue to receive benefits for care in a home that has been decertified. Second, although the regulations do protect patients by limiting the circumstances under which a home may transfer or discharge a Medicaid recipient, they do not purport to limit the Government's right to make a transfer necessary by decertifying a facility.*fn18 Finally, since decertification

[ 447 U.S. Page 786]

     does not reduce or terminate a patient's financial assistance, but merely requires him to use it for care at a different facility, regulations granting recipients the right to a hearing prior to a reduction in financial benefits are irrelevant.

In holding that these provisions create a substantive right to remain in the home of one's choice absent specific cause for transfer, the Court of Appeals failed to give proper weight to the contours of the right conferred by the statutes and regulations. As indicated above, while a patient has a right to continued benefits to pay for care in the qualified institution of his choice, he has no enforceable expectation of continued benefits to pay for care in an institution that has been determined to be unqualified.

The Court of Appeals also erred in treating the Government's decision to decertify Town Court as if it were equivalent in every respect to a decision to transfer an individual patient. Although decertification will inevitably necessitate the transfer of all those patients who remain dependent on Medicaid benefits, it is not the same for purposes of due process analysis as a decision to transfer a particular patient or to deny him financial benefits, based on his individual needs or financial situation.

In the Medicare and the Medicaid Programs the Government has provided needy patients with both direct benefits and indirect benefits. The direct benefits are essentially financial in character; the Government pays for certain medical services and provides procedures to determine whether and how much money should be paid for patient care. The net effect of these direct benefits is to give the patients an opportunity to obtain medical services from providers of their choice that is comparable, if not exactly equal, to the opportunity available to persons who are financially independent. The Government cannot withdraw these direct benefits without

[ 447 U.S. Page 787]

     giving the patients notice and an opportunity for a hearing on the issue of their eligibility for benefits.*fn19

This case does not involve the withdrawal of direct benefits. Rather, it involves the Government's attempt to confer an indirect benefit on Medicaid patients by imposing and enforcing minimum standards of care on facilities like Town Court. When enforcement of those standards requires decertification of a facility, there may be an immediate, adverse impact on some residents. But surely that impact, which is an indirect and incidental result of the Government's enforcement action, does not amount to a deprivation of any interest in life, liberty, or property.

Medicaid patients who are forced to move because their nursing home has been decertified are in no different position for purposes of due process analysis than financially independent residents of a nursing home who are forced to move because the home's state license has been revoked. Both groups of patients are indirect beneficiaries of government programs designed to guarantee a minimum standard of care for patients as a class. Both may be injured by the closing of a home due to revocation of its state license or its decertification as a Medicaid provider. Thus, whether they are private patients or Medicaid patients, some may have difficulty locating other homes they consider suitable or may suffer both emotional and physical harm as a result of the disruption associated with their move. Yet none of these patients would lose the ability to finance his or her continued care in a properly licensed or certified institution. And, while they might have a claim against the nursing home for damages,*fn20 none would have any claim against the responsible governmental authorities for the deprivation of an interest in life, liberty, or property.

[ 447 U.S. Page 788]

     Their position under these circumstances would be comparable to that of members of a family who have been dependent on an errant father; they may suffer serious trauma if he is deprived of his liberty or property as a consequence of criminal proceedings, but surely they have no constitutional right to participate in his trial or sentencing procedures.

The simple distinction between government action that directly affects a citizen's legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally, provides a sufficient answer to all of the cases on which the patients rely in this Court. Thus, Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, involved the direct relationship between a publicly owned utility and its customers; the utility had provided its customers with a legal right to receive continued service as long as they paid their bills. We held that under these circumstances the utility's customers had a constitutional right to a hearing on a disputed bill before their service could be discontinued. But nothing in that case implies that if a public utility found it necessary to cut off service to a nursing home because of delinquent payments, it would be required to offer patients in the home an opportunity to be heard on the merits of the credit dispute. This would be true even if the termination of utility service required the nursing home to close and caused serious inconvenience or harm to patients who would therefore have to move. As in this case, such patients might have rights against the home, and might also have direct relationships with the utility concerning their own domestic service, but they would have no constitutional right to interject themselves into the dispute between the public utility and the home.*fn21

[ 447 U.S. Page 789]

     Over a century ago this Court recognized the principle that the due process provision of the Fifth Amendment does not apply to the indirect adverse effects of governmental action. Thus, in the Legal Tender Cases, 12 Wall. 457, 551, the Court stated:

"That provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals."

More recently, in Martinez v. California, 444 U.S. 277, we rejected the argument made by the parents of a girl murdered by a parolee that a California statute granting absolute immunity to the parole board for its release decisions deprived their daughter of her life without due process of law:

"A legislative decision that has an incremental impact on the probability that death will result in any given situation -- such as setting the speed limit at 55-miles-per-hour instead of 45 -- cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander." Id., at 281.

Similarly, the fact that the decertification of a home may lead to severe hardship for some of its elderly residents does not turn the decertification into a governmental decision to impose that harm.*fn22

[ 447 U.S. Page 790]

     Whatever legal rights these patients may have against Town Court for failing to maintain its status as a qualified skilled nursing home -- and we express no opinion on that subject -- we hold that the enforcement by HEW and DPW of their valid regulations did not directly affect the patients' legal rights or deprive them of any constitutionally protected interest in life, liberty, or property.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

Disposition

586 F.2d 280, reversed and remanded.

MR. JUSTICE BLACKMUN, concurring in the judgment.

Although the Court reaches the result I reach, I find its analysis simplistic and unsatisfactory. I write separately to explain why and to set forth the approach I feel should be followed.

The patients rest their due process claim on two distinct foundations. First, they assert a property interest in continued residence at their home. Second, they claim life and liberty interests tied to their physical and psychological well-being. According to the patients, because each of these interests is threatened directly by decertification, they are constitutionally entitled to a hearing on the propriety of that action. Unlike the Court, I find it necessary to treat these distinct arguments separately.

[ 447 U.S. Page 791]

     I

In my view, the Court deals far too casually with § 1902 (a)(23) of the Social Security Act, 42 U. S. C. § 1396 (a)(23) (1976 ed., Supp. II), in rejecting the patients' "property" claim.*fn1 That provision guarantees that a patient may receive nursing home care "from any institution . . . qualified to perform the . . . services . . . who undertakes to provide him such services." The statute thus vests each patient with a broad right to resist governmental removal, which can be disrupted only when the Government establishes the home's noncompliance with program participation requirements. Given this fact and our precedents, one can easily understand why seven judges of the Court of Appeals adopted the patients' argument. It would seem that, because the Government has generated a "justifiable expectation that [the patients] would not be transferred except for misbehavior or upon the occurrence of other specified events," Vitek v. Jones, 445 U.S. 480, 489 (1980), they are "entitled . . . to the benefits of appropriate procedures in connection with determining the conditions that warranted [their] transfer." Id.,

[ 447 U.S. Page 792]

     at 490. Especially since the patients assert an interest in a home,*fn2 I believe their claim to property has substantial force.

I agree with Judge Adams of the Court of Appeals that it "begs the question," Town Court Nursing Center, Inc. v. Beal, 586 F.2d 280, 287 (1978) (concurring opinion), to counter this argument with the observation that § 1396 (a)(23) expressly gives the patients only a right to stay in qualified facilities. See ante, at 785. We have repeatedly rejected as too facile an approach that looks no further than the face of the statute to define the scope of protected expectancies. See Vitek v. Jones, 445 U.S., at 490-491, and n. 6, citing Arnett v. Kennedy, 416 U.S. 134 (1974) (concurring and dissenting opinions); The Supreme Court, 1975 Term, 90 Harv. L. Rev. 56, 99 (1976) ("six Justices in Arnett must have looked outside the statute to consider the impact of government action on citizen expectations and reliance"). Here, as in numerous cases in which we have recognized protected interests, disqualification of the home is the very condition that alone permits disruption of the status quo and that the patients wish to contest. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978) ("Because petitioners may terminate service only 'for cause,' respondents assert a 'legitimate claim of entitlement' within the protection of the Due Process Clause") (footnote omitted).

Perhaps aware that its treatment of § 1396 (a)(23) is in some tension with our precedents, the Court launches another

[ 447 U.S. Page 793]

     line of analysis. It reasons that "decertification . . . is not the same for purposes of due process analysis as a decision to transfer a particular patient." Ante, at 786. I am left wondering why. Certainly, the "real world" effect of the two actions is the same. Thus the Court's assertion will come as cold comfort to patients forced to relocate because of this decision. I also wonder why this analytical differentiation matters in determining whether the patients possess a constitutionally protected interest. Certainly decertification results in the loss of exactly the same interest -- the ability to stay in one's home -- that a patient subject to an individual transfer suffers. The Court does not explain to my satisfaction why in the latter case, but not in the former, a constitutionally protected interest is affected.

I have no quarrel with the Court's observation that the Due Process Clause generally is unconcerned with "indirect" losses. I fear, however, that such platitudes often submerge analytical complexities in particular cases. Cf. Sherbert v. Verner, 374 U.S. 398, 404 (1963); Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (plurality opinion); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461 (1958); American Communications Assn. v. Douds, 339 U.S. 382, 402 (1950). I also question whether that generalization has relevance here.*fn3 Even assuming it does, the Court's treatment of it

[ 447 U.S. Page 794]

     leaves me unimpressed. To say that the decertification decision directly affects the home is not to say that it "indirectly" affects the patients. Transfer is not only the "[inevitable]," ante, at 786, clearly foreseeable consequences of decertification; a basic purpose of decertification is to force patients to relocate. Thus, not surprisingly, § 1396 (a)(23) specifically ties the patients' right to continued residence in a home to qualification of the facility. Under these circumstances, I have great difficulty concluding that the patients' loss of their home should be characterized as "indirect and incidental," ante, at 787, "consequential," Meyer v. Richmond, 172 U.S. 82, 94 (1898); "collateral," see Hannah v. Larche, 363 U.S. 420, 443 (1960); or "remote and indeterminate," Goodrich v. Detroit, 184 U.S. 432, 437 (1902).*fn4 To be sure, decertification-induced transfers are designed to benefit patients. See ante, at 787. But so are a wide range of other governmental acts that invoke due process protections for the intended beneficiary. See, e. g., Vitek v. Jones, supra; Parham v. J. R., 442 U.S. 584 (1979). See also In re Gault, 387 U.S. 1 (1967). Indeed a basic purpose of affording a hearing in such cases is to test the Government's judgment that its action will in fact prove to be beneficial.

[ 447 U.S. Page 795]

     In my view, there exists a more principled and sensible analysis of the patients' "property" claim. Given § 1396 (a)(23), I am forced to concede that the patients have some form of property interest in continued residence at Town Court. And past decisions compel me to observe that where, as here, a substantial restriction inhibits governmental removal of a presently enjoyed benefit, a property interest normally will be recognized.*fn5 To state a general rule, however, is not to decide a specific case. The Court never has held that any substantive restriction upon removal of any governmental benefit gives rise to a generalized property interest in its continued enjoyment. Indeed, a majority of the Justices of this Court are already on record as concluding that the term "property" sometimes incorporates limiting characterizations of statutorily bestowed interests. See Arnett v. Kennedy, 416 U.S. 134 (1974) (plurality opinion); Goss v. Lopez, 419 U.S. 565, 586-587, and n. 4 (1975) (dissenting opinion). See also Smith v. Organization of Foster Families, 431 U.S. 816, 856, 860-861 (1977) (opinion concurring in judgment). See generally Van Alstyne, Cracks in

[ 447 U.S. Page 796]

     "The New Property" Adjudicative Due Process in the Administrative State, 62 Cornell L. Rev. 445, 460-466 (1977). Common sense and sound policy support this recognition of some measure of flexibility in defining "new property" expectancies. Public benefits are not held in fee simple. And even if we analogize the patients' claim to "continued residence" to holdings more familiar to the law of private property -- even to interests in homes, such as life tenancies -- we would find that those interests are regularly subject to easements, conditions subsequent, possibilities of reverter, and other similar limitations. In short, it does not suffice to say that a litigant holds property. The inquiry also must focus on the dimensions of that interest. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972).

The determinative question is whether the litigant holds such a legitimate "claim of entitlement" that the Constitution, rather than the political branches, must define the procedures attending its removal. Id., at 578. Claims of entitlement spring from expectations that are "justifiable," Vitek v. Jones, 445 U.S., at 489; "protectible," Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979); "sufficient," Bishop v. Wood, 426 U.S. 341, 344 (1976); or "proper," id., at 362 (dissenting opinion). In contrast, the Constitution does not recognize expectancies that are "unilateral," Board of Regents v. Roth, 408 U.S., at 577, or "too ephemeral and insubstantial." Meachum v. Fano, 427 U.S. 215, 228 (1976).

To mouth these labels does not advance analysis far. We must look further to determine which set of labels applies to particular constellations of fact. Whether protected entitlements exist and how far they extend, although dependent on subconstitutional rules, see, e. g., Bishop v. Wood, supra, are ultimately questions of constitutional law. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S., at 9; Monaghan, Of "Liberty" and "Property," 62 Cornell L. Rev. 405, 435-436 (1977). Application of that law will seldom pose difficulties

[ 447 U.S. Page 797]

     when the Government has exercised its option to bestow a benefit wholly at will, see Bishop v. Wood, supra, or the litigant has identified a "for cause" condition resembling those held to be property-creating in past cases. Cases, however, will not always fit neatly into these categories. And when such cases arise, some new analysis is needed. In my view, that inquiry should be broad-gauged. Reason and shared perceptions should be consulted to define the scope of the claimant's "justifiable" expectations. Nor should constitutional policy be ignored in deciding whether constitutional protections attach. This approach not only permits sensible application of due process protections; it reflects the unremarkable reality that reasonable legal rules themselves comport with reasonable expectations.

In applying this analysis to this case, four distinct considerations convince me that -- even though the statutes place a significant substantive restriction on transferring patients -- their expectancy in remaining in their home is conditioned upon its status as a qualified provider.

(1) The lengthy process of deciding the disqualification question has intimately involved Town Court. The home has been afforded substantial procedural protections, and, throughout the process, has shared with the patients who wish to stay there an intense interest in keeping the facility certified. These facts are functionally important. Procedural due process seeks to ensure the accurate determination of decisional facts, and informed, unbiased exercises of official discretion. See, e. g., Fuentes v. Shevin, 407 U.S. 67, 81 (1972); Morrissey v. Brewer, 408 U.S. 471, 480 (1972). To the extent procedural safeguards achieve these ends, they reduce the likelihood that persons will forfeit important interests without sufficient justification. In this case, since the home had the opportunity and incentive to make the very arguments the patients might make, their due process interest in accurate and informed decisionmaking already, in large measure, was satisfied. This point embodies more than

[ 447 U.S. Page 798]

     an abstract argument of policy. "[The] rights of parties are habitually protected in court by those who act in a representative capacity." Voeller v. Neilston Warehouse Co., 311 U.S. 531, 537 (1941). See also New Orleans Debenture Redemption Co. v. Louisiana, 180 U.S. 320 (1901); Bernheimer v. Converse, 206 U.S. 516, 532 (1907). Thus, not surprisingly the Court heretofore has recognized that where known rules provide procedures through which we may expect others to protect a property holder's less directly threatened interests, that fact favors viewing compliance with those procedures as defining the outer limits of the property holder's expectancy. See Kersh Lake Dist. v. Johnson, 309 U.S. 485 (1940); McCaughey v. Lyall, 224 U.S. 558 (1912).

(2) Town Court is more than a de facto representative of the patients' interests; it is the underlying source of the benefit they seek to retain. Again, this fact is important, for the property of a recipient of public benefits must be limited, as a general rule, by the governmental power to remove, through prescribed procedures, the underlying source of those benefits. The Constitution would not have entitled John Kelly to a fair hearing if New York had chosen to disband its public assistance programs rather than to cut off his particular award. See Goldberg v. Kelly, 397 U.S. 254 (1970). Nor would Texas have had to afford process to Professor Sindermann had it decided for budgetary reasons to close Odessa Junior College. See Perry v. Sindermann, 408 U.S. 593 (1972). And we would be surprised to learn that Dwight Lopez had a constitutional right to procedures before the Ohio Department of Education suspended classes at Columbus High School for 10 days due to the discovery of faulty electrical wiring requiring that much time for repair work. See Goss v. Lopez, 419 U.S. 565 (1975). These observations comport with common understanding and shared expectations. A farmer may sue for conversion if his upstream neighbor improperly diverts his water. But both can

[ 447 U.S. Page 799]

     only grumble if the spring rains cease and the river runs dry.*fn6

(3) That the asserted deprivation of property extends in a nondiscriminatory fashion to some 180 patients also figures in my calculus. See Dent v. West Virginia, 129 U.S. 114, 124 (1889) (legislation comports with due process if, among other things, "it be general in its operation upon the subjects to which it relates"). "Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting

[ 447 U.S. Page 800]

     or an assembly of the whole." Bi-Metallic Investment Co. v. State Board, 239 U.S. 441, 445 (1915). See Bowles v. Willingham, 321 U.S. 503, 519-520 (1944); Goodrich v. Detroit, 184 U.S., at 438. When governmental action affects more than a few individuals, concerns beyond economy, efficiency, and expedition tip the balance against finding that due process attaches.*fn7 We may expect that as the sweep of governmental action broadens, so too does the power of the affected group to protect its interests outside rigid constitutionally imposed procedures.*fn8 Moreover, "the case for due

[ 447 U.S. Page 801]

     process protection grows stronger as the identity of the persons affected by a government choice becomes clearer; and the case becomes stronger still as the precise nature of the effect on each individual comes more determinately within the decisionmaker's purview. For when government acts in a way that singles out identifiable individuals -- in a way that is likely to be premised on suppositions about specific persons -- it activates the special concern about being personally talked to about the decision rather than simply being dealt with." L. Tribe, American Constitutional Law § 10-7, pp. 503-504 (1978) (emphasis in original). I agree with this general statement and find its "flip-side" informative here.

(4) Finally, I find it important that the patients' interest has been jeopardized not at all because of alleged shortcomings on their part. Frequently, significant interests are subjected to adverse action upon a contested finding of fault, impropriety, or incompetence. In these contexts the Court has seldom hesitated to require that a hearing be afforded the "accused." See, e. g., Dixon v. Love, 431 U.S. 105, 112-113 (1977); Goss v. Lopez, 419 U.S. 565 (1975); Wolff v. McDonnell, 418 U.S. 539 (1974); Arnett v. Kennedy, 416 U.S. 134 (1974). This tendency reflects due process values extending beyond the need for accurate determinations. Affording procedural protections also aims at "'generating the feeling, so important to a popular government, that justice has been done.'" Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980), quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 172 (1951) (concurring opinion). It may be that patients' participation in the decertification decision would vaguely heighten their and others' sense of the decision's legitimacy, even though the decision follows

[ 447 U.S. Page 802]

     extensive government inspections undertaken with the very object of protecting the patients' interests. Even so, that interest is far less discernible in this context than when a stigmatizing determination of wrongdoing or fault supplements removal of a presently enjoyed benefit. See, e. g., Goss v. Lopez, 419 U.S., at 574-575. See also Vitek v. Jones, 445 U.S. 480 (1980).

For these reasons, I am willing to recognize in this case that "the very legislation which 'defines' the 'dimension' of the [patient's] entitlement, while providing a right to [remain in a home] generally, does not establish this right free of [disqualification of the home] in accord with [federal statutory] law." Goss v. Lopez, 419 U.S., at 586-587 (dissenting opinion).*fn9

II

Citing articles and empirical studies, the patients argue that the trauma of transfer so substantially exacerbates mortality rates, disease, and psychological decline that decertification deprives them of life and liberty.*fn10 Although the

[ 447 U.S. Page 803]

     Court assumes that "transfer trauma" exists, see ante, at 784, and n. 16, it goes on to reject this argument. By focusing solely on the "indirectness" of resulting physical and psychological trauma, the Court implies that regardless of the degree of the demonstrated risk that widespread illness or even death attends decertification-induced transfers, it is of no moment. I cannot join such a heartless holding. Earlier this Term, the Court recognized that a liberty interest emanates even from the likelihood that added stigma or harmful treatment might attend transfer from a prison to a mental hospital. Vitek v. Jones, supra ; see also Parham v. J. R., 442 U.S., at 601. For me it follows easily that a governmental decision that imposes a high risk of death or serious illness on identifiable patients must be deemed to have an impact on their liberty.*fn11 Nor am I soothed by the palliative that this harm is "indirect"; in my view, where such drastic consequences attend governmental action, their foreseeability, at least generally, must suffice to require input by those who must endure them. See Brede v. Director for Dept. of Health for Hawaii, 616 F.2d 407, 412 (CA9 1980).*fn12

[ 447 U.S. Page 804]

     The fact of the matter, however, is that the patients cannot establish that transfer trauma is so substantial a danger as to justify the conclusion that transfers deprive them of life or liberty. Substantial evidence suggests that "transfer trauma" does not exist, and many informed researchers have concluded at least that this danger is unproved.*fn13 Recognition of a constitutional right plainly cannot rest on such an inconclusive body of research and opinion. It is for this reason, and not for that stated by the Court, that I would reject the patients' claim of a deprivation of life and liberty.

III

Few statements are more familiar to judges than Holmes' pithy observation that "hard cases make bad law." I fear that the Court's approach to this case may manifest the perhaps equally valid proposition that easy cases make bad law. Sometimes, I suspect, the intuitively sensed obviousness of a case induces a rush to judgment, in which a convenient rationale is too readily embraced without full consideration of its internal coherence or future ramifications. With respect,

[ 447 U.S. Page 805]

     I express my concern that that path has been followed here.

I concur in the judgment.

MR. JUSTICE BRENNAN, dissenting.

Respondents have a constitutionally protected property interest in their "'legitimate entitlement to continued residency at the home of [their] choice absent specific cause for transfer.'" Town Court Nursing Center, Inc. v. Beal, 586 F.2d 280, 286 (CA3 1978) (Adams, J., concurring), quoting Klein v. Califano, 586 F.2d 250, 258 (CA3 1978). The statutory and regulatory scheme gives a patient the right to choose any qualified nursing home. 42 U. S. C. §§ 1395a and 1396a (a) (23) (1976 ed., Supp. II). Once a patient has chosen a facility, the scheme carefully protects against undesired transfers by limiting the circumstances under which a home may transfer patients. 42 CFR § 442.311 (c) (1979). And a qualified nursing home, which must have met detailed federal requirements to gain certification, 42 U. S. C. §§ 1395x (j) (1976 ed. and Supp. II) and 1396a (a)(28), cannot be decertified unless the Government can show good cause. See 42 U. S. C. § 1395cc (b)(2) (1976 ed., Supp. II). Thus the scheme is designed to enable a patient to stay in the chosen home unless there is a specific reason to justify a transfer.

Respondent patients chose a home which was, at the time, qualified. They moved into the home reasonably expecting that they would not be forced to move unless, for some sufficient reason, the home became unsuitable for them. The Government's disqualification of the home is, of course, one such reason. Respondents have no right to receive benefits if they choose to live in an unqualified home. That does not mean, however, that they have no right to be heard on the question whether the home is qualified -- the answer to which will determine whether they must move to another home and suffer the allegedly great ills encompassed by the term "transfer trauma." See ante, at 784-785, n. 16. The Government's

[ 447 U.S. Page 806]

     action in withdrawing the home's certification deprives them of the expectation of continued residency created by the statutes and regulations. Under our precedents, they are certainly "entitled . . . to the benefits of appropriate procedures" in connection with the decertification. Vitek v. Jones, 445 U.S. 480, 490 (1980); Perry v. Sindermann, 408 U.S. 593 (1972).*fn*

The requirements of due process, to be sure, are flexible and are meant to be practical. See Mathews v. Eldridge, 424 U.S. 319 (1976); Morrissey v. Brewer, 408 U.S. 471 (1972). Here, the provider is entitled to formal proceedings in connection with the disqualification of the home. To the extent that patients want to remain in a home, their interests very nearly coincide with the home's own interests. The patients can count on the home to argue that it should not be disqualified. Nevertheless, the patients have some interests which are separate from the interests of the provider, and they could contribute some information relevant to the decertification decision if they were given an opportunity. See ante, at 784, n. 15. There is no indication that the patients have been accorded any opportunity to present their views on decertification. Because they were accorded no procedural protection, I dissent.

Counsel FOOTNOTES

* Briefs of amici curiae urging affirmance were filed by Michael H. Marcus, Gary Roberts, John L. Carroll, and Morris Dees for Jill Harris et al.; by Kalman Finkel, John E. Kirklin, and Philip M. Gassel for the Legal Aid Society of New York City et al.; and by Toby S. Edelman and Edward C. King for the National Citizens' Coalition for Nursing Home Reform.


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