Administrative LawAdministrative Law

Elements of an Elements of an Administrative HearingAdministrative Hearing

IntroductionIntroduction• Adjudication is a quasi-judicial Adjudication is a quasi-judicial

process and is subject to the due process and is subject to the due process requirements of the 5process requirements of the 5thth and and 1414thth Amendments. Amendments.• LibertyLiberty• Property rights (vs. privileges)Property rights (vs. privileges)

• Liberty and property have been broadly Liberty and property have been broadly construed by the courts.construed by the courts.

• Government jobsGovernment jobs• LicensesLicenses• BenefitsBenefits• GrantsGrants• Post-termination hearingsPost-termination hearings

Rulemaking, Adjudication, and Rulemaking, Adjudication, and Due ProcessDue Process

RulemakingRulemaking If it is a rulemaking action, then under Londoner and If it is a rulemaking action, then under Londoner and

Bi-Metallic, due process is not required.Bi-Metallic, due process is not required. If an agency takes an action that can have an effect on If an agency takes an action that can have an effect on

those those exceptionally affected, exceptionally affected, then courts may require then courts may require agencies to follow due process requirements.agencies to follow due process requirements.

The guiding statute of the agency, however, may The guiding statute of the agency, however, may require that rules be made “on the record”require that rules be made “on the record”

In this instance, the agency must follow the formal In this instance, the agency must follow the formal adjudication requirements of the APA.adjudication requirements of the APA.

But in some instances, this language need not even appear But in some instances, this language need not even appear for courts to require formal hearings.for courts to require formal hearings.

Courts can consult the congressional record to make a Courts can consult the congressional record to make a determination.determination.

Even when the APA does not require “on the record” Even when the APA does not require “on the record” rulemaking, § 553 of the APA does apply (notice and rulemaking, § 553 of the APA does apply (notice and comment rulemaking).comment rulemaking).

Rulemaking, Adjudication, and Rulemaking, Adjudication, and Due ProcessDue Process

AdjudicationAdjudication Guiding statutes of agencies often specify that Guiding statutes of agencies often specify that

agencies conduct formal adjudication (i.e., a agencies conduct formal adjudication (i.e., a hearing “on the record”).hearing “on the record”).

The requirements for formal adjudication are outlined The requirements for formal adjudication are outlined in § 554 – 558 of the Administrative Procedure Act.in § 554 – 558 of the Administrative Procedure Act.

The APA defines the elements of a hearing when it is The APA defines the elements of a hearing when it is required.required.

The APA does not create a right to a hearing; it The APA does not create a right to a hearing; it only defines procedural rights when a formal only defines procedural rights when a formal hearing is required by statute.hearing is required by statute.

If the agency is not required to have a hearing If the agency is not required to have a hearing on the record, then the APA does not apply.on the record, then the APA does not apply.

Rather, the vague due process requirements Rather, the vague due process requirements established by the courts would apply.established by the courts would apply.

The Adjudication ProcessThe Adjudication Process Adjudication processAdjudication process – process to – process to

determine if a regulated party or determine if a regulated party or parties violated the law.parties violated the law. Different agencies use different proceduresDifferent agencies use different procedures All must satisfy due process requirements.All must satisfy due process requirements. Two ways in which the adjudicatory process Two ways in which the adjudicatory process

can start:can start: Based on agencies own inspections (EPA, Based on agencies own inspections (EPA,

NRC)NRC) Based on a complaint from the public (NLRB)Based on a complaint from the public (NLRB)

The Adjudication ProcessThe Adjudication Process Notice requirementNotice requirement – legal notification – legal notification

essential to be given to interested essential to be given to interested parties before administrative or judicial parties before administrative or judicial action takes place. (section 554 of the action takes place. (section 554 of the APA)APA) A basic part of due process:A basic part of due process:

Establish the time, place, and nature of the Establish the time, place, and nature of the hearing to be held. hearing to be held.

What law did you violateWhat law did you violate Date of the hearingDate of the hearing Proposed penalty Proposed penalty

Equivalent: being served/indictmentEquivalent: being served/indictment You are formally charged with the crimeYou are formally charged with the crime Here you are formally served the complaintHere you are formally served the complaint

The Adjudication ProcessThe Adjudication Process Filing an AnswerFiling an Answer

Must have a clear admittance or denial to Must have a clear admittance or denial to the allegations in the complaint.the allegations in the complaint.

Opportunity to request a hearing.Opportunity to request a hearing. Raise any affirmative defenses against the Raise any affirmative defenses against the

allegations.allegations. Most do not go beyond this stage as the Most do not go beyond this stage as the

party will admit to the charges in the party will admit to the charges in the complaint.complaint.

If it is challenged then it goes to the next If it is challenged then it goes to the next stage…stage…

The Adjudication ProcessThe Adjudication Process Pre-Hearing ConferencePre-Hearing Conference

Section 556 of the APA requires that the presiding officer Section 556 of the APA requires that the presiding officer hold a pre-hearing conference for the purpose of:hold a pre-hearing conference for the purpose of:

Attempted settlementAttempted settlement Simplification of the issues (agreed upon facts)Simplification of the issues (agreed upon facts)

Administrative HearingAdministrative Hearing Legal Equivalent:Legal Equivalent:

Non-jury civil trialNon-jury civil trial If the charge by the agency is contested and pre-hearing If the charge by the agency is contested and pre-hearing

settlements fail, then there is an administrative hearing.settlements fail, then there is an administrative hearing. Many agencies have their own “courts” and judges.Many agencies have their own “courts” and judges. Administrative law judge (ALJ)Administrative law judge (ALJ) – officers appointed to – officers appointed to

hear and determine controversies before administrative hear and determine controversies before administrative agencies of government.agencies of government.

The Adjudication ProcessThe Adjudication Process• Pre-Hearing ConferencePre-Hearing Conference

Section 556 of the APA requires that the presiding Section 556 of the APA requires that the presiding officer hold a pre-hearing conference for the officer hold a pre-hearing conference for the purpose of:purpose of:

Attempted settlementAttempted settlement Simplification of the issues (agreed upon facts)Simplification of the issues (agreed upon facts)

1.1. Administrative HearingAdministrative Hearing Legal Equivalent:Legal Equivalent:

Non-jury civil trialNon-jury civil trial If the charge by the agency is contested and pre-If the charge by the agency is contested and pre-

hearing settlements fail, then there is an hearing settlements fail, then there is an administrative hearing.administrative hearing.

Many agencies have their own “courts” and Many agencies have their own “courts” and judges.judges.

Administrative law judge (ALJ)Administrative law judge (ALJ) – officers appointed – officers appointed to hear and determine controversies before to hear and determine controversies before administrative agencies of government.administrative agencies of government.

Administrative Law Judge Roy L. Pearson

Administrative Law Judges (ALJ)Administrative Law Judges (ALJ)Agency Number of ALJSDepartment of Agriculture 3Department of Justice 4Department of Labor 44Department of Energy 15Department of Education 1Department of Health and Human Services 70Department of Homeland Security 7Department of Housing and Urban Development 2Department of the Interior 11Department of Transportation 2Department of the Treasury 1Environmental Protection Agency 3Federal Communications Commission 1Federal Trade Commission 1National Labor Relations Board 39Securities and Exchange Commission 3Social Security Administration 1448Federal Labor Relations Authority 3Commodities Futures Trading Commission 2Federal Maritime Commission 2National Transportation Safety Board 4U.S. International Trade Commission 6Occupational Safety and Health Review Commission 12Federal Mine Safety and Health Review Commission 19Total 1703

Administrative Law Judges Administrative Law Judges (ALJ)(ALJ)

• Characteristics:Characteristics:• IndependentIndependent

• Pay not determined by the agency.Pay not determined by the agency.• Permanent employee – cannot easily be removedPermanent employee – cannot easily be removed

• Must have a hearing before the MSPB in order to be removed. (§7521)Must have a hearing before the MSPB in order to be removed. (§7521)• Must not have a financial interest in the case.Must not have a financial interest in the case.

• Merit employee hired through OPMMerit employee hired through OPM• Lifetime appointmentLifetime appointment

• Role of the ALJ:Role of the ALJ:• ALJ can only decide based on the evidenceALJ can only decide based on the evidence• Administer oaths and affirmationsAdminister oaths and affirmations• Issues subpoenas (call witnesses to testify)Issues subpoenas (call witnesses to testify)• Determines the admissibility of evidenceDetermines the admissibility of evidence• Make findings of factMake findings of fact• Develop a record of evidenceDevelop a record of evidence

Administrative Law Judges and the Administrative Law Judges and the Attitudinal ModelAttitudinal Model

Figure 1: Partisanship and ALJ Voting 1991 - 2006

0%

10%

20%

30%

40%

50%

60%

Republican ALJ Democratic ALJ Independent ALJ

Perc

enta

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Pct Pro Business Pct Split Pct Pro Labor

Administrative CourtsAdministrative Courts• Courts just like real courtsCourts just like real courts

• Adversarial legal styleAdversarial legal style• Burden of proof:Burden of proof:

• Preponderance of evidence (civil suits)Preponderance of evidence (civil suits)• Statute may allow for higher burden (clear and convincing evidence)Statute may allow for higher burden (clear and convincing evidence)

• Not beyond a reasonable doubt (criminal)Not beyond a reasonable doubt (criminal)• If there was criminal intent, the case usually does not stay If there was criminal intent, the case usually does not stay

within the agency, instead it moves to the Department of within the agency, instead it moves to the Department of Justice. Justice.

• The Right to CounselThe Right to Counsel• Section 555 of the APA provides that “[a] person compelled to Section 555 of the APA provides that “[a] person compelled to

appear in person before an agency or representative thereof is appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by entitled to be accompanied, represented, and advised by counsel.”counsel.”• Only applies to adjudication subject to APAOnly applies to adjudication subject to APA• Does not apply to investigatory proceduresDoes not apply to investigatory procedures• Government does not have to provide counselGovernment does not have to provide counsel

• Equal Access to Justice Act (Section 504 of the APA)Equal Access to Justice Act (Section 504 of the APA)• A prevailing party can seek to have the government pay counsel fees A prevailing party can seek to have the government pay counsel fees

and expenses if the government’s position was not “substantially and expenses if the government’s position was not “substantially justified.”justified.”

The Adjudication ProcessThe Adjudication Process Initial DecisionInitial Decision

This is a determination of whether the charged This is a determination of whether the charged party is liable.party is liable.

Results are given in a written opinion:Results are given in a written opinion: Findings of factFindings of fact Conclusions of lawConclusions of law OrderOrder The penalties, if any, associated with the violationThe penalties, if any, associated with the violation

Decision may be appealed to the political Decision may be appealed to the political appointees (board members or commissioners)appointees (board members or commissioners)

If this occurs it is not a retrial, but an examination If this occurs it is not a retrial, but an examination of the record of evidence developed by the ALJof the record of evidence developed by the ALJ

ALJ decisions are seldom overturnedALJ decisions are seldom overturned This adds legitimacy to the initial decision.This adds legitimacy to the initial decision.

The Adjudication ProcessThe Adjudication Process Final OrderFinal Order

When appealed to the political appointees, When appealed to the political appointees, these members may either agree or disagree these members may either agree or disagree with the initial decision.with the initial decision.

If they uphold the decision, the decision then If they uphold the decision, the decision then becomes precedentbecomes precedent

So the challenger must decide if they want to So the challenger must decide if they want to challenge or not because they run the risk that challenge or not because they run the risk that if they lose the initial decision could become if they lose the initial decision could become agency precedent.agency precedent.

Appointee decisions can be appealed to federal Appointee decisions can be appealed to federal courtscourts

Exhaust all administrative remediesExhaust all administrative remedies Few decisions ever reach the appointeesFew decisions ever reach the appointees

Appealing Cases to the Federal CourtsAppealing Cases to the Federal Courts

The United States Supreme Court

United States Courts of Appeals

United States District Courts

Board Members of the NLRB

Administrative Court (ALJ)

NLRB Regional Office (51 Total)

Question of LawQuestion of Fact

= Federal Courts

= National Labor Relations Board

Marathon Oil Company v. Environmental Protection

Agency, 564 F.2d 1253, (1977)

Walters v. National Association of Radiation Survivors, 475 U.S.

305 (1985)

A Determination on the Record and A Determination on the Record and Statement of ReasonsStatement of Reasons

These fall under #’s 8 and 9 under the Goldberg reasoning. A determination on the record of the hearing A statement of reasons for the determination and an indication of the

evidence relied on Rulemaking under § 553 of the APA does not make such

requirements. Formal adjudication does have such a requirement however.

It is not enough to simply allow for appearance, presentation of evidence, and cross-examination of witnesses.

The agency must demonstrate that it has made the decision on the basis of the evidence presented in the case.

Substantial evidence test (reasonableness test) Not beyond a reasonable doubt Not a preponderance of the evidence

Administrative Law Judges and Agency Members § 557(b) of the APA allows agencies to rely on administrative law judges to

conduct hearings and making findings, but it does not require it. Agencies can also rely upon the members to perform this function.

In other instances, as we demonstrated, the members can review the ALJs decision. Most rely on the ALJ first.

Ex Parte Ex Parte CommunicationsCommunications The APA prevents all off the record ex parte

communications in formal hearings. APA Definition:

Oral or written communication not on the public record with respect which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter.

§ 557: Forbids, “an interested person outside the agency” from

communicating off-the-record with any agency official “who is or may be reasonably expected to be involved in the decisional process of the proceedings.”

ALJ cannot communicate with the members about the case.

Members cannot communicate with the ALJ about the case.

Mazza v. Cavicchia, 15 N.J. 498 (1954)

Gibson v. Berryhill, 411 U.S. 564 (1973)

Cinderella Career Finishing Schools, Inc. v. Federal Trade Commission,

425 F. 2D 583 (D.C.) (1970)

Ventura v. Shalala, 55 F. 3D 900 (3rd Circuit) (1995)