Statutory Hearing Rights

Question 1

What is the floor for statutory rights in Administrative Law?

Answer 1

The APA sets the floor for Administrative and statutory rules. Other statutes can add to this floor, but they cannot go lower.

Question 2

When does 557(d)(1) regarding ex parte communications apply?

Answer 2

Whenever 556 applies.

Question 3

What is the requirement of ex parte communications under 557(d)(1)?

Answer 3

No ex parte communications between interested persons and people who make the decisions. This applies whenever 556 applies.

Question 4

What are the questions required to ask to determine if 556 applies?

Answer 4

1) Is this meeting of the committee to determine the exemptions considered an “adjudication?” (Adjudication is a determining of disputed facts)
2) Is this meeting “on the record”?
3) Opportunity for an Administrative Hearing.

Question 5

What is considered an “interested person” for ex parte communications under 557?

Answer 5

This is a broad interpretation. The interest does not have to be monetary or a party to the suit. It includes parties, competitors, public officials, and organizations.

Question 6

Who are Administrative Law judges overseen by?

Answer 6

The Office of Personal Management

Question 7

Can ALJ’s be reviewed based on their allowance rates according to Association of ALJs v Heckler?

Answer 7

No. The Court held that allowance rates could not be the basis for investigation because it removes the ability of the judge to use their best judgement in every case. Their decision making is comprised. So there can be a review program, simply must be based on something else.

Question 8

Can the ALJ’s be forced to make a decision based on a very detailed chart provided to them under Heckler v. Campbell?

Answer 8

Yes. The ALJ was following the regulations and rules. Even though they remove a significant amount of discretion, this is still allowed.