Chapter 4
Part II
How Much Must the Agency Put in the
Record?
In the Matter of Ciba-Geigy Corp.
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NJ DEP issued Ciba a permit to dump treated
waste water into the Atlantic
Regulated by state and federal laws
Statutes required the agency to make decision
based on a list of factual determinations
Where did the agency's fact finding fall apart?
What did the court do?
Why not change the agency ruling?
Review of Requirements for the Record
Link between the Facts and the Law
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Must do more than just recite the evidence
Must explain why the agency reached its conclusions,
esp. if the are contrary to the evidence or involve expert
conclusions from the evidence
This is what happened in the Franz case
 Gross negligence is a term of art in CA with specific
elements
 The Board made a finding of gross negligence, but did
not explain how the elements were satisfied
 It also relied on undocumented expert analysis
Explanation and Discretion
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What is the relationship between requiring the
agency to explain its actions and interfering with
its discretion?
When can judicial requirements on the record
cross the line to interfering with the agency's
discretion?
Post Hoc Rationalizations
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Should the agency be allowed to supplement the
record in its briefs if the case is appealed to the
courts?
Findings at Every Level?
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Should the agency head have to make separate
findings if it rejects the ruling of the ALJ?
How much deference should the agency give the
ALJ?
What ALJ finding are entitled to more deference?
How is this different in LA?
Res Judicata and Collateral Estoppel
What is res judicata - claim preclusion?
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Plaintiff wins - the claim is gone and becomes a
judgment, attackable only as a judgment
Defendant wins - no more claims
What is collateral estoppel - issue
preclusion?
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Issues decided by the court, that are essential to
the judgment (not dicta), are settled as to
subsequent actions between the same parties on
the same facts.
Hard to apply against the Feds when one party is
the agency
State v. Arnold, 593 So.2d 1293, La.App. 1
Cir., 1991
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Does an administrative finding establish
collateral estoppel in a subsequent criminal
proceeding?
How are the standards of proof different?
In this case, the defendant lost his driving
license in an administrative proceeding and
the state is arguing that this also establishes
that he was guilty of the associated criminal
charges.
Are the Parties Really the Same?
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We disagree with defendant' argument that the
parties are the same since they are "arms of the
state". Furthermore, the previous ruling regarding
probable cause to stop defendant was not made
in a criminal prosecution. The administrative
hearing is conducted as a civil proceeding to
determine whether or not driving privileges
should be suspended. This criminal proceeding is
based upon a bill of information charging
defendant with a crime proscribed by the
legislature. The findings of the administrative law
Criminal Evidence in Administrative
Proceedings
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How does the differing standards of proof affect
the flip side – does a guilty plea or verdict in a
criminal case become binding in subsequent civil
proceedings?
What can the defendant plead to avoid this?
Are administrative findings binding in
later civil proceedings?
Ryan v. NY Telephone
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Fired for stealing
Contested it at comp hearing, with a union rep but
not a lawyer
Board upheld theft charge
Later sued for false arrest, defamation, and
wrongful discharge
Estopped - the agency findings were conclusive he should have had a lawyer, that was his problem
University of Tennessee v. Elliott
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What is the key factor about the defendant?
What is the stigma in this case?
Did he get a hearing?
Was it comprehensive?
What was the agency decision?
Why did plaintiff not file an action in the
state courts?
Federal Court Action
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What laws did plaintiff use to get into federal
court?
 42 USC 1983
 Title II
What policy did the court articulate about the use
of state administrative law decisions in federal
court?
 They get the same deference as the state court
would give them
Preclusion v. Deference
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What was the weight of the agency's decision in the:
Title VII claim?
 Substantial weight
1983?
 Preclusive effect
Why were they different?
 1983 is silent - why?
 Title VI specifies the standard
How might you attack the preclusion under 1983?
 Was the U as an agency violating 1983?
Non-acquiescence
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When a Federal agency ignores a court decision and relitigates it in other cases
Intracircuit v. Intercircuit
 A real problem because the circuits are very different
and plaintiffs can shop
 Cannot relitigate the issue against the same parties
 Can relitigate the issue against different parties
Splits in the circuits are a major area of United States
Supreme Court review
Consistent Decisionmaking: Stare Decisis
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UAW of America v. NLRB – 208
What did the NLRB do that was contested?
What did the court require?
What about if the agency is relying on notice
and comment rules in the adjudication, like
the ones promulgated in Heckler v. Campbell
to narrow the adjudications?
Can these be changed in an adjudication?
Estoppel - Foote’s Dixie Dandy, Inc. v.
McHenry – 211
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State court, State tax question
Can an agency be bound by mistakes of its
employees?
Why is this a problem?
When did the court say an agency might
be bound?
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Agent must know the facts
Must intend his advice to be followed
The party must not know the real law
The party must rely on the advice
Feds do not buy this
 IRS could not give any advice if it applied
 SC has said no, but not said Hell no!
This is a big deal if there are criminal penalties
Heckler v. Community Health Services 214
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Medicare reimbursement case
Much of the claims processing for Medicare and Medicaid
is done by private companies such as EDS, called third
party intermediaries - TPI
 CHS relies on the oral advice of the TPI as to whether
using federal job training money for some its services
would reduce its Medicare reimbursement
 TPI says no, but the agency disagrees and asks for
reimbursement
Court says: do not rely on oral advice, and if you have a
question, ask the agency
Penalties for guessing wrong?
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GE v. EPA, 215
 EPA promulgates a complicated rule on disposing of
PCBs
 GE thinks it is following the rule, but EPA disagrees
and fines them $25,000
 Court says it would uphold EPA's reading of the rule,
but would require that the defendant be warned about
the EPA interpretation before being fined
Does this make sense?
 What if the agency says the rule was clear?
 How gets to decide?
Declaratory Orders
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APA 554
 (e) The agency, with like effect as in the case of
other orders, and in its sound discretion, may
issue a declaratory order to terminate a
controversy or remove uncertainty.
Agency summary judgment
 Based on stipulated or uncontested facts
 Binds the parties and the agency