Adjudication

Question 1

Where/what is the definition of “order”?

Answer 1

551: “Final disposition . . . of an agency in a matter other than a rule making but including licensing.”

Question 2

What is adjudication?

Answer 2

The agency process for formulating an order. In other words, anything that isn’t rulemaking. Caveat: May not include investigation, which can be wholly independent from rulemaking or adjudication.

Question 3

What are the requirements of 555 re parties compelled to appear before an agency, which apply to all agency proceedings?

Answer 3

1) Right to be represented by counsel (or if agency allows qualified representative).
2) Right of interested parties to appear before an agency (intervention).
3) Right to have matter concluded in a “reasonable time.”
4) Right to retain/obtain copies of materials submitted to agency.
5) Right to utilize agency subpoena power if necessary.
6) For denied applications, petitions, or requests related to the hearing, right to prompt notice of denial/brief statement of grounds.

Question 4

When does APA require formal adjudication?

Answer 4

When adjudication is required by statute to be determined on the record after opportunity for an agency hearing.
If statute unclear, then Chevron for agency’s position.

Question 5

How do courts determine whether formal adjudication is required if the enabling statute doesn’t say hearings should be “on the record”?

Answer 5

The statute is ambiguous, and the court applies Chevron to the agency’s established procedures. Chemical Waste Management

Question 6

What are the notice requirements for formal adjudications under APA 554?

Answer 6

1) Time, place, and manner of hearing.
2) Legal authority for the hearing.
3) Matters of fact and law asserted by whoever is bringing the proceeding.
4) If there is a defendant, they are usually required to reply to the notice with issues controverted in fact or law.

Question 7

Who has a right to intervene in adjudications?

Answer 7

“Interested parties.”

Anyone who has standing to appeal the decision of the agency. DC Cir.

Some cases suggested that in some circumstances, parties may have a right to limited intervention even where they don’t have standing to appeal.

Question 8

Who does the APA say must preside over formal hearings (the taking of evidence) under 556?

Answer 8

1) The Agency (Administrator or body)
2) One or more members of the body that comprises the agency.
3) One or more ALJs.

556

Question 8

Who does the APA say must preside over formal hearings (the taking of evidence) under 556?

Answer 8

1) The Agency (Administrator or body)
2) One or more members of the body that comprises the agency.
3) One or more ALJs.

556

Question 9

What powers does an ALJ have in a hearing under 556?

Answer 9

Power to:
1) Administer oaths.
2) Issue subpoenas.
3) Rule on offers of proof and receive relevant evidence.
4) Take depositions.
5) Regulate the course of the hearing.
6) Hold settlement conferences.
7) Dispose of procedural requests.
8) Take other action authorized by agency rule.

Question 10

Who decides an agency hearing in formal adjudication with an ALJ?

Answer 10

Agency can decide whether the ALJ makes the decision or just a recommendation to the agency.

Question 11

What are agencies precluded from doing re ALJs?

Answer 11

They cannot rate, evaluate, discipline, reward, punish, or remove ALJs who work for them.

Disciplinary action can only be made by the Merit Systems Protection Board after formal APA adjudicaiton.

Question 12

What is the “separation of functions” rule under APA 554 (formal adjudications)?

Answer 12

Agency employees engaged in investigation or prosecution of a case may not participate or advise in the ALJ’s decision, recommended decision, or agency review of that decision.

Question 13

What are the exceptions to separation of functions under 554?

Answer 13

1) Initial licensing.
2) Proceeds involving the validity or application of rates or practices of public utilities or common carriers.
3) The agency or a member or members of the body comprising the agency.

Question 14

Which two agencies have a split enforcement model?

Answer 14

OSHA and MSHA.

Question 15

When can ALJs be disqualified from hearing a case?

Answer 15

Personal bias “or other reasons.”

Question 16

Who has the burden of proof in APA adjudications?

Answer 16

The proponent.

Question 17

What is the standard of review for an agency’s factual determinations in a hearing under 556?

Answer 17

Must be “supported by and in accordance with the reliable, probative, and substantial evidence.” 556.
- At least a preponderance of the evidence. Greenwich Collieres.
- “Substantial” refers to the quality of evidence.

Question 18

What are the rules re hearsay evidence in APA adjudications?

Answer 18

APA - Hearsay is admissible as long as it is not irrelevant, immaterial, or unduly repetitious.

SCOTUS - In some cases, hearsay evidence can form the sole basis of a decision where it is relatively “reliable, probative, and substantial.” Richardson v. Perales

Question 19

What are parties entitled to re testimony and documents (evidence) in a hearing under 556(d)?

Answer 19

APA:
1) Present their case by oral or documentary evidence.
2) Submit rebuttal evidence.
3) Conduct cross examination.
- only as may be required for a full and true disclosure of the facts. Citizens Awareness Network.
4) In adjudications involving claims for money or benefits or applications for initial licenses, the agency only has to provide for the submission of written evidence.

Question 20

What makes up the record in formal adjudications under 556(e)?

Answer 20

1) Transcript of testimony and exhibits.
2) Any papers filed in the proceeding.

Question 21

What is the definition of ex parte communications? Are they allowed in adjudications?

Answer 21

1) Communications to someone involved in the decisional process (the trinity or an employee who is or would likely be involved in the decisional process) from an interest person outside the agency (or from the agency to interested persons) with respect to the merits of a particular case that are not made on the public record as to which all parties had notice.

2)They are prohibited in formal (APA) adjudications.

Question 22

How are prohibited ex parte contacts cured in formal adjudication?

Answer 22

They must be placed on the public record with notice to all parties. Sanctions possible.

Question 23

What is included in an ALJ’s final decision or recommendation under 557?

Answer 23

1) Findings of fact and conclusions of law.
2) The reasons or basis for those findings and conclusions.
3) The appropriate order/recommendation.

Question 24

What is the standard of review for an administrative appeal? Can an agency appeal its own decision?

Answer 24

1) The agency has all the powers which it would have had in the initial decision. De novo on law and facts.

2) No.

Question 24

What is the standard of review for an administrative appeal? Can an agency appeal its own decision?

Answer 24

1) The agency has all the powers which it would have had in the initial decision.

2) No.

Question 25

Can an ALJ rely on post-hearing hearsay evidence to make a decision?

Answer 25

Only if the defendant is given an opportunity to cross-examine the witnesses.

Question 26

What happens if a party makes an ex parte communication to a decision-maker?

Answer 26

They must show cause as to why their claim or interest should not be dismissed, denied, disregarded, or otherwise adversely affected by the violation.

Question 27

What was the holding of PATCO regarding ex parte contacts?

Answer 27

They don’t necessarily void an agency decision. Rather, a court must determine whether the agency’s decisionmaking process was irrevocably tainted so as to make the ultimate judgment unfair.

Factors:
1) Gravity of the communication.
2) Whether the contacts influenced the ultimate decision.
3) Whether the party making the contact benefited from the agency decision.
4) Whether the contacts were unknown to opposing parties.
5) Whether vacating the agency’s decision would serve a useful purpose.

Question 28

What was the holding of Stone v. FDIC?

Answer 28

Ex parte communications that introduce new and material information (vs. cumulative) to a deciding official will violate the due process guarantee of notice, if a property or liberty interest are involved.

Factors:
1) Whether the employee knew of the error and had a chance to correct it.
2) Whether the ex part communications were likely to result in undue pressure upon the decision maker.

Question 29

What are the prerequisites for the application of due process?

Answer 29

1) Government action.
2) Individualized decision making on the basis of particular facts.
2) Deprivation of a property or liberty interest.

Question 30

What does due process require?

Answer 30

It requires the government to hold some type of hearing before it deprives an individual of life, liberty property based on the resolution of disputed factual issues pertaining to that person.

Question 31

Does loss of a government entitlement implicate due process?

Answer 31

Sometimes. Loss of welfare benefits can implicate due process (Goldberg), though this case was limited to its facts by later decisions. Welfare is the last safety net. Usually no right to cross examine (Richardson).

Question 32

When does loss of a job implicate due process?

Answer 32

When the person has a “legitimate claim of entitlement to it,” such as a tenure or a reasonable belief founded in the employer’s representations that the job will continue (Perry). Government employers may also violate a liberty interest if they imposes on the employee some sort of stigma or disability that makes it hard for her to find work. Board of Regents v. Roth

Question 33

Is damage to a reputation enough to implicate due process?

Answer 33

No. There must be a loss of some more tangible interest such as employment (stigma plus). Paul v. Davis.

Question 34

Can due process be implicated in the employment context when there is no factual dispute between the employer and employee?

Answer 34

No. There must be a factual dispute between employer and employee which has some significant bearing on the employee’s reputation. Codd v. Velger

Question 35

Does a general allegation of misconduct by an employer implicate due process for the employee’s liberty interest?

Answer 35

No. Stigma is usually implicated by accusations of dishonesty, immorality, criminality or racism. Shands v. City of Kennett.

Question 36

What due process was required in Goldberg v. Kelly?

Answer 36

1) Right to be represented by counsel.
2) A decision based solely on evidence adduced at the hearing.
3) An impartial decision maker.
4) Statement from decisionmaker explaining decision and evidence relied upon (not formal findings of fact and law).
5) Timely and adequate notice detailing the reasons for the proposed termination.

Question 37

What “minimal” due process was required before the loss of an entitlement to continued enrollment in public school in Goss v. Lopez? Also the due process required for termination of public employees from Loudermill.

Answer 37

1) Oral or written notice of the charges.
2) Explanation of the evidence that the authorities possess.
3) Opportunity to refute the evidence.

Question 38

What are the Matthews factors?

Answer 38

1) Private interest in the outcome. (value of the interest; social security benefits, welfare etc.)
2) Government’s interest in the outcome. (efficiency, time, money).
3) Risk of an erroneous deprivation under procedures used (how likely is it to happen?) and the value of adding more procedures.

Question 39

When would a pre-deprivation hearing be required/not required?

Answer 39

1) Absent exigent circumstances, at least some pre-deprivation hearing would be required before being deprived of a significant property interest is taken. It may not need to provide full protections if there is opportunity for a full due process hearing after the deprivation.
2) Exigent circumstances: Risk to public health or welfare. (Seizing misbranded drugs; closing an unsafe mine).
Employee termination if their continued employment raises a serious public concern (security guard charged with a felony).
Before the deprivation of disability benefits when notice is given and there is opportunity for an appeal. Not based on financial need. Matthews

Question 40

What are three possible issues that may arise re a neutral decision-maker?

Answer 40

1) If the decision-maker has a financial stake in teh outcome.
2) If the decision-maker has received personal abuse from a party before her.
3) Where the decision-maker has indicated that she has already reached a decision. Texaco

There is an assumption of honesty and integrity for boards performing both investigatory and adjudicatory functions. Withrow v. Larkin

Question 41

What is a liberty interest?

Answer 41

Those privileges long recognized as essential to the orderly pursuit of happiness to free men. Includes right to engage in common calling or profession.