dissenting in part.
Section 405 of the Surface Transportation Assistance Act of 1982, 49 U. S. C. App. §2305, is an extraordinary piece of legislation. In most organized industries employees are adequately protected against wrongful discharge by the arbitration machinery that has been established pursuant to collective-bargaining agreements, and by their unions. In the motor carrier industry, however, §405 provides every driver with a special statutory right to reinstatement if an agent of the Secretary of Labor determines that there is “reasonable cause to believe” that the driver was discharged because he reported a safety violation. It was on the basis of this statute that the Department of Labor conducted an 11-month ex parte investigation which culminated in its ordering Roadway Express to reinstate Jerry Hufstetler to his job as a driver. The Department heard testimony of witnesses in the course of the investigation, but Roadway was never given a record of the evidence or a list of the witnesses, much less afforded the opportunity to confront the witnesses. Yet, based on a “preliminary” decision reached through these procedures, Roadway was required to continue employing Hufstetler, who it claims is a dishonest employee, for an indeterminate period pending an eventual hearing at which the truth might eventually be established.
The Government’s compelling interest in highway safety adequately justifies the creation of a special statutory right to protect truck drivers who share the public’s vital interest in strict enforcement of motor vehicle safety regulations. That interest, however, does not justify the use of patently unfair procedures to implement that right. Specifically, it does not justify the entry of reinstatement orders on the basis of secret evidence that is neither disclosed to the employer nor tested in an adversary proceeding before the order becomes effective.
The plurality attempts to legitimate this departure from the traditions of due process by asserting that it is essential *274for the Department of Labor to be able to act swiftly; any delays in reinstatement, it is feared, will deter drivers from reporting safety violations. There are, of course, situations in which the threat of irreparable injury justifies the entry of temporary orders that are not preceded by an adequate hearing.1 Similarly, government’s special interest in the efficient management of programs that it administers sometimes makes it appropriate to briefly postpone an adjudication of the rights of an employee, a program beneficiary, or a licensee, until after an initial determination has been made.2 In this case, however, it is ludicrous for the Secretary to rely on an “emergency” or “necessity” justification for a reinstatement order entered 14 months after the discharge. It is clear *275that the Department of Labor does not attempt to take immediate action to reinstate fired employees. Rather, “preliminary” investigations often drag on for months and months. In the case of Jerry Hufstetler, for example, there was an 11-month delay between the filing of his complaint and the Department’s decision that he deserved temporary reinstatement pending an eventual determination of why Roadway Express discharged him.3 Obviously, ample time is available for full and fair predeprivation process under these circumstances,4 and the plurality’s reliance on the Secretary’s vague assertion that providing a more meaningful hearing would cause delay is misguided.5
In conducting its balancing, the plurality concludes that allowing the parties to test the witnesses through cross-*276examination would not “increase the reliability of the preliminary decision sufficiently to justify the additional delay.” Ante, at 266. Aside from exaggerating the element of delay, this reasoning unduly minimizes the critical role that cross-examination plays in accurate factfinding. The plurality suggests that “the primary function of the investigator is not to make credibility determinations, but rather to determine simply whether reasonable cause exists to believe that the employee has been discharged for engaging in protected conduct.” Ibid. Yet, how is the investigator possibly to decide between conflicting accounts of witnesses without making credibility determinations? Should the testimony of one witness who could easily be impeached (if cross-examination were allowed) be sufficient to establish “reasonable cause”?
Cross-examination is a critical element in the truth-determining process. This elementary proposition bears repetition:
“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty, or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.” Greene v. McElroy, 360 U. S. 474, 496 (1959).
See also Morrissey v. Brewer, 408 U. S. 471, 489 (1972); Goldberg v. Kelly, 397 U. S. 254, 269 (1970).6 In the words of Dean Wigmore:
*277“The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience. ” 5 J. Wigmore, Evidence § 1367 (J. Chadbourn rev. 1974).
Even if there were merit in the plurality’s novel view that the possibility of delay outweighs the value of confrontation, this reasoning does not justify the Department’s refusal to provide the parties with a list of the witnesses and a summary of each witness’ testimony, which would at least enable the parties to make oral or written arguments about why the investigator should not credit the witness’ testimony. This would certainly not cause any intolerable delay. This type of hybrid safeguard, although not optimal, is far better than nothing. “Secrecy is not congenial to truth-seeking.” AntiFascist Committee v. McGrath, 341 U. S. 123, 171 (1951) (Frankfurter, J., concurring). As I understand the plurality’s holding, the requirement that the Department disclose the “substance of the evidence” certainly incorporates the disclosure of the witnesses’ names and a summary of their testimony.
The plurality’s willingness to sacrifice due process to the Secretary’s obscure suggestion of necessity reveals the serious flaws in its due process analysis. It is wrong to approach the due process analysis in each case by asking anew what procedures seem worthwhile and not too costly. Unless a case falls within a recognized exception, we should *278adhere to the strongest presumption that the Government may not take away life, liberty, or property before making a meaningful hearing available. The flexibility on the fringes of due process cannot
“affect its root requirement that an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” Boddie v. Connecticut, 401 U. S. 371, 379 (1971) (footnote omitted).
Such a hearing necessarily includes the creation of a public record developed in a proceeding in which hostile witnesses are confronted and cross-examined.
Traditions of fairness that have been long honored in American jurisprudence support the strongest possible presumption against ex parte proceedings. There is no support for the plurality’s approval of the entry of a reinstatement order of indefinite duration7 based on uncross-examined and untested evidence. Therefore, although I agree with the Court to the extent that it affirms the District Court, I, like Justice Brennan, believe that the District Court’s decision should be affirmed in tdto.
See Ewing v. Mytinger & Casselberry, Inc., 339 U. S. 594 (1950); North American Cold Storage Co. v. Chicago, 211 U. S. 306 (1908). Federal Rule of Civil Procedure 65(b) provides a sense of the narrow circumstances in which such action may be taken. That Rule allows a judge to grant a temporary restraining order (TRO) only “if it clearly appears” that “immediate and irreparable injury, loss, or damage will result” otherwise. The TRO expires after 10 days or less, and an adversarial hearing must be scheduled “at the earliest possible time,” taking precedence over “all matters.”
See, e. g., Cleveland Board of Education v. Loudermill, 470 U. S. 532 (1985); Mathews v. Eldridge, 424 U. S. 319 (1976); Barry v. Barchi, 443 U. S. 55 (1979); Dixon v. Love, 431 U. S. 105 (1977). Cases dealing with the pretermination procedures that must be made available to those deprived of employment, benefits, or other forms of “new property,” are not necessarily controlling on the level of procedures required when the government exercises its classic police power to interfere with transactions and matters involving private parties. We have explained that “the precise nature of the governmental function involved” is a relevant factor in due process analysis, Cafeteria Workers v. McElroy, 367 U. S. 886, 895 (1961), and have recognized the unique burdens that face the Government in its roles as employer and distributor of benefits. See Arnett v. Kennedy, 416 U. S. 134, 168 (1974) (opinion of Powell, J.). In expanding the type of property interests protected under the Due Process Clause, we must be cautious to avoid diluting the procedural protections the Clause has traditionally guaranteed when the Government takes action such as that under § 405.
The Secretary contends that this delay was unusual. According to the Secretary’s statistics, §405 investigations are now quicker — the average length of recent investigations has been 102 days. Moreover, recently promulgated regulations provide that a decision is to be reached within 60 days of the filing of the complaint. See 51 Fed. Reg. 42093 (1986) (proposed 29 CFR § 1978.104). No matter which of these figures is considered, these types of delay fly in the face of the Secretary’s claim that immediate action is necessary to mitigate the impact of a wrongful termination.
The Speedy Trial Act, for example, demands that a criminal defendant be tried within 70 days of his indictment, or his first appearance before a judge or magistrate. See 18 U. S. C. § 3161 et seq. (1982 ed. and Supp. III). Is it possible that expedited trials are feasible in the criminal context, but affording carriers a predeprivation confrontational hearing is impossible?
The plurality is concerned about the financial implications that any delay may have on the discharged driver. Ante, at 267. While I share in this concern, the answer is for the Department of Labor to avoid these delays by devoting sufficient resources to its § 405 program. The carriers should not be forced to bear the burden of the agency’s lethargy. It is also worth pointing out that short delays will not necessarily wreak havoc with a driver’s ability to make do. In this case, for example, Hufstetler’s annual earnings were in the $50,000 range, App. to Juris. Statement 37a, and a driver is, in any event, guaranteed full backpay with interest if the Department actually finds that he or she was discharged in violation of § 405.
The cases in which this requirement has been relaxed have typically involved objective issues, where the Court has deemed cross-examination *277a bit less essential than in other contexts, see Dixon v. Love, 431 U. S., at 113 (records of previous traffic convictions); Mathews v. Eldridge, 424 U. S., at 344-345 (“routine, standard, and unbiased medical reports”), or have involved contexts where cross-examination poses undue hazards to health and .safety, see Wolff v. McDonnell, 418 U. S. 539, 567-568 (1974) (prison disciplinary hearings), or other unique institutional considerations, see Goss v. Lopez, 419 U. S. 565, 577-584 (1975) (school suspensions).
Additionally, the Secretary offers no excuse for the inordinate delay that occurs between a preliminary finding (when an employee is temporarily reinstated) and an actual decision on the merits. In this case, the Administrative Law Judge did not even submit a recommended decision for over seven months, and a 19-month period elapsed before the Department of Labor announced its final decision. As Justice BRENNAN explains, ante, at 270-271, this apparently routine and unjustified delay in the postdeprivation decision is an independent reason for striking down the scheme.