Chapter 3
Introduction to Adjudications
Part II
Adjudication Procedure
Federal Agency Adjudications versus
Article III Trials
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Inquisitorial rather than adversarial
 What does this mean?
 How does this change the nature of trials?
 Why is the norm internationally?
Expertise versus impartiality/cluelessness
 Do we choose federal judges based on expertise in the
matter before them?
 How does an expert judge and an inquisitorial system
change the nature of trials?
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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?
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The Core Importance of Expertise in
Understanding Agencies
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A primary reason for congress delegating rulemaking
powers to agencies is that the agency has experts in the
subject matter
As we will see later in the section on judicial review, the
courts generally defer to agencies. This is based in part
on agency expertise.
Agency adjudications have very different procedures and
due process requirements from Article III trials because
the decision is being made based on the judge's
expertise, not just the presentation of materials by the
parties.
We will see how state efforts to make ALJs impartial
undermine this core value.
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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?
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Burden of Proof

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Who has the burden of proof in an administrative
proceeding?
 What is the Social Security Disability example?
 What is the order in this example?
 Sometimes the movant is not clear - SSI recertification
This follows the judicial notion of burden of persuasion,
which can be different from the burden of going forward
or the burden of production.
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Shifting the Burden

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Old welfare system - Goldberg
 Beneficiary gets benefit until agency moves to
disqualify
New system - TANF
 Benefits have limited term
 No action necessary to terminate benefits.
Recertification schedules
 Shift the burden to recipient to show
qualifications.
 License renewals can do the same.
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Standard of Proof
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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
commitments.
 Congress is free to require even higher standards
of proof.
When we learn about judicial deference to agencies,
we will rethink what preponderance of the evidence
really means.
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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?
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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?
The Residuum Rule
 Once prevented adjudications from being based solely on
hearsay evidence
 This has been replaced by the "substantial evidence"
standard used for all agency evidence
 LA uses "sufficient evidence" - may not be the exactly
same standard.
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Discovery
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Not provided for by the APA
 Some agencies allow discovery
 Why is it less of an issue than in Art. III trials?
 Freedom of information/Open Records Acts
Parties may also be entitled to have the agency use its
subpoena power on their behalf, if the agency can order
discovery for itself.
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Federal ALJs
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What do most (75%) of federal ALJs do?
 Why the growth in this area?
 What do you think is happening during this
prolonged recession?
 This is the major due process problem/issue in
government benefits adjudications.
ALJs are such a “PIA/protective of individual rights”
that they become another reason agencies try to use
informal adjudications as much as possible.
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What is the Legal Status of an ALJ's
Opinion?
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What is an initial decision, in contrast to a
recommended decision?
 557(b)
Why did the EPA switch to allowing ALJ decisions
to be final decisions if the agency did not act and
there were no internal appeals in 45 days?
We will discuss agency rejection of ALJ opinions
in the chapter on judicial review.
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Stopped here
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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?
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Ex parte Communications in 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?
 ex parte communication prohibition only
applies to communications with interested
persons outside the agency
 Are agency personnel like adverse parties in a
trial?
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Separation of Functions
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What is separation of functions?
 How does this mitigate the loophole of
communication with agency personnel?
 Why do we care?
Separation of function has very different results in a
large federal agency than in small state agencies
 Federal - still in the agency and focused in one
area
 States - often outside the agency (central panel),
losing all expertise
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5 U.S.C. §554(d)
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http://biotech.law.lsu.edu/Courses/study_aids/adl
aw/554.htm
What proceedings are exempt from section (d)?
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EPA Example
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Can the EPA ALJ consult with an EPA scientist to better
understand a case?
 What if it is about advice on facts in issue?
Can the EPA ALJ consult with an agency lawyer about
law?
 What about the lawyer prosecuting the case?
Can the ALJ consult with a party in the case, outside of
the proceeding, to get additional facts?
 How can these consultations be accomplished - what
would you do in an Article III trial?
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Consumer Product Safety Commission
Example
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Can the commissioner consult with his staff?
 Are they considered legally the same person?
What about the head of the prosecution staff?
 What is the key question?
What about consulting with the heads of companies not
currently before the agency?
 Can ex parte contacts occur before a proceeding?
Why should the agency be cautious about ex parte
contacts?
 Why do they invite remand from the courts?
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Licensing and Permitting as Non-Trial
Adjudications

A license is defined as an agency permit,
certificate, approval, registration, charter,
membership, statutory exception, or other form of
permission. ... In short, licensing is the process by
which someone obtains, is denied, or has revoked
any form of federal agency permission.
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Administrative Cost Issues
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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?
Dangerous dogs
 Law allows the agency to put special restrictions
on dangerous dogs, but whether a dog is
dangerous is decided case by case.
 Law provides for special restrictions on pit bulls
How is the cost of enforcement different?
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Licensing under the APA
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How are the legal standards for initial licensing different
from a license review or revocation?
 Why? - (Who is the movant?)
How are the potential parties different for a law license
than for a TV station license?
 Competitive licensing
 How does this change the adjudication?
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Disciplining License Holders - Section 558
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Section 558 applies to licensing
 Notice and a hearing before revocation
 Exception for imminent threats to public health and
safety
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LA Law Note - Title 49, Chapter 13, §961.
Licenses
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C. No revocation, suspension, annulment, or withdrawal
of any license is lawful unless, prior to the institution of
agency proceedings, the agency gives notice by mail to
the licensee of facts or conduct which warrant the
intended action, and the licensee is given an opportunity
to show compliance with all lawful requirements for the
retention of the license. If the agency finds that public
health, safety, or welfare imperatively requires
emergency action, and incorporates a finding to that
effect in its order, summary suspension of a license may
be ordered pending proceedings for revocation or other
action. These proceedings shall be promptly instituted
and determined.
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Bias in Licensing Boards
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Who sits on state licensing boards?
 What about the ones for small industries?
Why does the nature of state licensing boards potentially
lead to bias?
 What due process problems does this pose?
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Law Licenses

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Using lawyers as an example, what are the basic
legal requirements for getting a license?
Are there opportunities for due process hearings?
 What if you flunk the bar?
 What if they decide you do not have the
character and fitness to take the bar?
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