Chapter 3
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


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?
Defining an Adjudication


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


Allocate benefits
Stop unlawful activities
Setting Policy - California Dental
Association





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?
Licensing as an Adjudication




Wetlands development requires a permit from the Army
Corps of Engineers
The developer must submit proof that the land to be
developed is not a wetland, or, if it is, that there will be
appropriate mitigation
The Corps evaluates the application and makes a
decision, which can then be appealed within to a Corps
appeals board
If the application meets the standards, the Corps will
issue a permit
Inspections as Adjudications


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


Formal (APA) Adjudications under the US APA
 US - 554, et seq.
Louisiana Provisions
 LA - 955, et seq.
Formal (APA) v. Informal (Non-APA)
Adjudications



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





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



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


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
Practical Considerations in Adjudications



Within the constraint posed by APA for formal
adjudications, which is still more informal than a trial, the
agency can set their own procedures
Some agencies have developed rules based on the
Federal Rules of Civil Procedure and Evidence, which
make their hearings look like trials.
As we will discuss latter, even if the proceeding looks like
a trial, the ALJ's power is much more limited than that of
an Article III judge.
Types of Informal Adjudications





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.
The Nature of the Agency and Formality of
the Process



The broader the reach of the agency actions and the
more controversial the agency function, the more formal
the agency tends to me.
Social Security Disability deals with individuals and their
decisions do not reflect policy
Department of Labor adjudications set policy for
unionization for whole industries
 It usually does not use rules for these questions, so
adjudications are even more important
Notice




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



Who has the burden of proof in an administrative
proceeding?
 What is the Social Security Disability example?
 What is the order in this 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)



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


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.