Introduction to Adjudications
Every new tribunal, erected for the decision
of facts, without the intervention of jury, . . .
is a step towards establishing . . . the most
oppressive of absolute governments.
Evolution of Adjudications
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What types of disputes were early courts (1400s)
concerned with?
What is at issue in many modern administrative
adjudications that is fundamentally different from
the cases in 1400?
 Why does this make juries less effective?
 When is this a problem in Article III trials?
What is the role of juries in civil law countries?
Defining an Adjudication
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Adjudications are the process used to make an
order, other than rulemaking
What are examples of adjudications?
 Why is your federal student loan application an
adjudication?
 What is the order?
 Other examples?
Purposes of Orders
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Allocate benefits
Stop unlawful activities
Setting Policy - California Dental
Association
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What did the FTC accuse the CDA of?
What was the sequence of the agency review?
What court was this appealed to?
 Why do think agency rulings are appealed to
the Circuit courts rather than district courts?
How does this adjudication set national policy?
How is this like common law precedent?
Inspections as Adjudications
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Restaurants need a food handling permit to sell to
prepare food and sell it to the public
 Must show that you have the proper equipment
 Must show proper training for employees
These permits provide for surprise inspections to assure
that the conditions are still being met
 The inspector views the facts
 The owner can provide input during the inspection
 The inspector provides written findings
APA Provisions
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Formal (APA) Adjudications under the US APA
 US - 554, et seq.
Louisiana Provisions
 LA - 955, et seq.
Formal (APA) v. Informal (Non-APA)
Adjudications
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What is the language in 554 that triggers a formal
adjudication?
 "on the record after opportunity for an agency
hearing"
What are the subsequent provisions this triggers?
Why do we call informal adjudications non-APA
adjudications?
Costs of Formal Adjudications
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Monetary costs are high
Time costs are high
They reduce agency flexibility
Why might you want one for your client?
Why are administrative costs useful to lawyers?
Administrative Cost and Formal
Adjudications
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Administrative cost is a key concept in adlaw
Administrative agencies carry out huge numbers of
adjudications
 What would it cost if each of these looked like a trial?
 What sort of delays would you expect?
 What if FEMA used trials to decide on compensation
checks?
This is revisited next chapter in the tension between due
process and agency costs
Judicial Limitations on Formal
Adjudications
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Most of the circuits and the United States Supreme Court
are reticent to order formal adjudications.
Practice issues
 The book spends a lot of time on examples of
arguments for and against the court ordering a formal
adjudication
 You do not need this level of detail
 In practice, if the issue has not been settled for your
hearing type, this can be an important dilatory practice
 It can also be important if you want to intervene
Types of Informal Adjudications
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Social security disability determinations
Federal student loans
Medicaid eligibility determinations
In general, all government legal determinations
based on specific facts that are not judicial
decisions are adjudications
Rules that apply generally, even if the class of
parties is very small, are not adjudications.
Notice
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What is notice?
Why is it required?
What has to be provided in the notice?
What can complicate notice?
 What about in immigration?
 Welfare benefits?
Burden and Standard of Proof
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Who has the burden of proof in an administrative
proceeding?
 Why does it matter who is the proponent of the order?
 What is the Social Security Disability example?
What is the standard of proof required in an agency
proceeding, unless otherwise specified in the law?
Are there other standards in administrative proceedings?
 The United States Supreme Court has upheld a clear
and convincing standard in mental health
Rules of Evidence in Administrative
Proceedings (Formal and Informal)
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What is the purpose of the rules of evidence in
Article III trials?
 What is the underlying theory of the rules?
 How does this change when there is no jury?
Why would this be different in an inquisitorial
proceeding?
Does the APA set the standard of evidence?
 Do all agencies use the same standards?
Hearsay
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What is hearsay?
 Why is it excluded in the rules of evidence, except for
the zillion exceptions?
 Why would the hearsay rule not be as important in an
agency proceeding?
What was the Residuum Rule?
 This has been replaced by the "substantial evidence"
standard used for all agency evidence
 LA uses "sufficient evidence" - may not be the same
standard.
ALJs versus Article III Judges
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Article III Judges
Protections
 Lifetime tenure
 Cannot reduce salary
 Cannot fire, only impeach
 Cannot discipline
Why do we have these
protections?
How are state judges
different?
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ALJs
Civil service protections
 Can be fired
 Can have salary lowered,
but hard to do this
 Can set work standards
and discipline
How are the pressures
different than those on an
Article III judge?
What about contract ALJs that
some states use?
Hearing Procedure
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Discovery
 Not provided for by the APA
 Some agencies allow discovery
 Why is less of an issue than in Art. III trials?
ALJ's opinion v. Art. III judge's opinion
 How is the ALJ's opinion different?
 Why was this key to Wooley?
 They do also decide matters of law, contrary to what I
said about Wooly
How does the Agency Treat the ALJ's
Opinion?
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What is an initial decision, in contrast to a
recommended decision?
Why did the EPA switch to allowing ALJ decisions
to be final decisions?
Since the EPA provides internal agency appeals,
how is this different from final decisions by ALJs
in LA?
We will discuss agency rejection of ALJ opinions
in the chapter on judicial review
Ex Parte Communications
Art III Trials v. Adjudications
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Why are these forbidden in Article III trials?
Why are they less of a problem in agency proceedings?
 How is the relationship between a litigant and the
court different between a litigant and an agency?
 Why is knowledge by the judge of the issues and
parties treated differently from a trial?
Are the APA restrictions on ex parte communications like
those for Article III trials?
Requirements of Formal Adjudications
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No ex parte communications - 557(d)
 What is the extreme sanction for a party who violated
this ban?
 What is the loophole for agency personnel?
Separation of Functions
 How does this cure the loophole?
Right to present evidence and subpoena witnesses
 Generally like a trial
Must be presided over by an ALJ or the Secretary
EPA Example
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Can the EPA ALJ consult with an EPA scientist to
better understand a case?
Can the EPA ALJ consult with an agency lawyer
about law?
What about consulting with the lawyer
prosecuting the case?
Can the ALJ consult with a party in the case,
outside of the proceeding?
Consumer Product Safety Commission
Example
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Can the commissioner consult with the ALJ in an
ongoing case?
 Which prohibition does this violate?
What are the issues if the commissioner consults
with the head prosecutor of the agency?
What about consulting with the heads of
companies not currently before the agency?
 Can ex parte contacts occur before a
proceeding?
Procedures for Informal Adjudications
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Not specified in the APA
 Some are specified in the agency enabling law
 Key is that the agency has to follow whatever
procedures it sets up
 Due process is the main concern, which is the subject
of the next chapter
Inconsistent rules on third parties appearing/intervening
in agency actions
 Some statutes or agency procedures make this a right
Section 555 allows parties to have the agency issue
subpoenas for them, if the agency has the power
Licensing and Permitting
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Using lawyers as an example, what are the basic
legal requirements for licensing?
What are the enforcement advantages of requiring
a license as compared to having the agency look
for violations in an ongoing activity?
 Health food supplements v. drugs?
 Pit bull ordinances versus dangerous dog
laws?
Licensing under the APA
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How are the legal standards for initial licensing different
from a license review or revocation?
 Why?
How are the potential parties different for a law license
than for a TV station license?
 How does this change the adjudication?
What is the basic due process requirement for revoking a
license?
 When can it be done without this process?
 What process can be substituted?