Adjudication Flashcards
Adjudication - General Significance
- sets policy through application of policy to particular facts involving particular parties
- not abstract generalities about what policy will do to public at large
Agency Adjudication vs. Article III Adjudication
- different contexts, can’t compare the two
Administrative agencies are not charged with just trying to be blind appliers of the law (unlike Article III judges)
- admin agencies perform wide range of functions (prosecute violations through enforcement actions, decide cases, set policy) vs Art III more just adjudicating
- political appointees make policy decisions that can be reviewed by Art III judges for compliance w/ standards set by Congress
Safeguards for Adjudication
- Independence of decisionmakers
- Multimember decisionmakers
- Formal rules in APA for how adjudication must happen
Q of Whether Agencies Inherently Biased
- Generally depends on whether agency is unitary actor (less accurate) or many people (more accurate)
- concept that agencies have all the below functions,, but generally being carried out by different people
Functions w/in agencies:
- Investigated the situation; (General counsel)
- Became convinced there was wrongdoing; (regional directors who work for general counsel)
- Formally voted to bring charges; (NLRB Board and prosecutor making prosecutorial decision-> separation of powers concerns…)
- Presented, as prosecutor, the case against the companies; (attorneys who work with general counsel)
- Perhaps testified as an expert witness against the companies;
- Acted as the hearing examiner receiving the evidence;
- Made findings of fact and proposed rulings of law; (ALJs)
- Heard an internal appeal; (ALJs)
- Rendered the final decision (board members or commissioners)
Withrow v Larkin - Overview of Case
- 1975
- dr challenging revocation of med license on grounds of bias + corresponding violation of procedural due process (those who investigated allegations of misconduct would’ve presided at suspension hearing)
- more looking at state adjudications though
- court essentially decides it’s not a per se due process violation, but might be able to establish in certain cases
-> process itself is fair + constitutionally permissible
-> presumption of good nature of adjudicators
->combo of functions in Art III context is fine
Withrow v. Larkin - Holding
- “That the combination of investigative and adjudicatory functions does not, without more, constitute a due process violation, does not, of course, preclude a court from determining from the special facts and circumstances present in the case before it that the risk of unfairness is intolerably high.”
Adjudication vs. Rulemaking
- adjudication distinct b/c not exclusively forward-looking (resolving a particular dispute in a particular case)
- weird hybrid of enforcement and rulemaking
- agency can choose to set policy through adjudication (though somewhat complicated q arises of whether applies to parties before the agency)
Basics of Adjudication
- oral, trial-type proceedings
- parties must be allowed evidence and witnesses
- overseen by ALJ (must be accorded a certain level of independence)
- must comport w/ 5th Am dp when life, liberty or property at stake
- needs to result in a decision
APA and Adjudication
- adjudication is within sections 554, 556, and 557
Independence of ALJs
- 554(d) of APA deals with this -> imposes certain reqs designed to insulate ALJs
- ALJ makes the decision
- can’t consult w/ any person or party on fact in issue unless notice + opp for all parties to participate (i.e. out in the open, hearing)
- ALJ can’t be subject to supervision or discretion of any employee or agent engaged in agency’s investigative or prosecuting functions
- also imposes certain limits on participation of agency prosecutors/investigators (basically, seems like they’re not allowed to participate in the ALJ’s decision, but they can be witness or counsel at hearing)
Lucia v. SEC
- SCOTUS 2018
- made appointment of ALJs more complicated, although OMB working through precisely which ALJs it impacts (this case focused on SEC ALJs)
-> q of whether ALJs subject to Appointment Clause of Constitution - to be classified as an officer rather than an employee, a person needs to have a “continuing” position established by law, and must “exercis[e] significant authority pursuant to the laws of the United States.” - manner of dismissal for ALJs still only for cause (court has yet to opine on this)
Ex Parte Communications - Rulemakings vs Adjudications
- adjudications have VERY different rules - a lot less lax than the rulemaking ones
Ex Parte Communications for Adjudications - Overview
- governed by 557(d) of APA
- No interested person outside agency can make ex parte communication to anyone inside who is involved in decisional process of proceeding, if communication is relevant to merits of proceeding
- if ex parte communication occurs, info must be included in record and parties must be granted ability to challenge how the communication tainted the evidence
APA 557(d)
(1)In any agency proceeding which is subject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law—
(A)no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding;
(B)no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding;
(C)a member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communication prohibited by this subsection shall place on the public record of the proceeding:
(i)all such written communications;
(ii)memoranda stating the substance of all such oral communications; and
(iii)all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph;
(D)upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation; and
(E)the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge.
PATCO v. FLRA - Factual Background
- air traffic controller strike during Reagan Admin – went out on strike even though fed law made it illegal (right to unionize but can’t back it up with striking behavior)
- unfair labor practice against PATCO for calling illegal strike -> remedy from litigation is to strip PATCO of union status