APA Project: Adjudication
Section ___ HEARINGS:
Some Issues Worthy of Consideration for Recommendations
Steven Croley
The following is a non-exhaustive list of topics relating to
formal adjudication that may be worthy of consideration for
reform recommendations:
1. Burden of Proof/Greenwich Collieries: Greenwich Collieriess
determination that burden of proof in the APA refers to the
burden of persuasion rather than merely the burden of production
surprised a lot of courts and commentators. There
wasissubstantial case law inconsistent with that holding. Is
the decision a welcome one? For one thing, as Justice Souter
points out in dissent, how is it compatible with the observation
that when more than one party is seeking a particular result,
like in a licensing for example, each party bears the burden?
More than one party cannot bear the risk of nonpersuasion, can
it? Second, what impact does GC have on the notion that a party
may bear a burden on some particular issue, but not another?
Does GC imply that now the party bears the burden of persuasion
on that particular issue?
In some cases, that might make sense,
where for example the party is offering some kind of affirmative
defense. On the other hand, where an agency has shifted the
burden to a party with better access to information, considering
that shifted burden one of persuasion rather than production
might not make sense. Third, and more generally, is the GC
approach a desirable one on the merits? On could make a strong
argument that the burden-of-persuasion issue really is a policy
question appropriately left to agency discretion. Davis and
Pierce collected examples (pre GC) of how different agencies
under different statutes allocate the burden differently
(sometimes by statute but sometimes not). Why a blanket default
rule, as GC contemplates instead?
2. Standard of Proof: Two issues relating to the standard of
proof in formal adjudication suggest themselves for possible
reform recommendations. The first concerns the relationship
between the preponderance of the evidence standard, on the one
hand, and language in APA section 556(d) describing the type of
evidence (reliable, probative, and substantial) that shall
guide the issuance of an order. In Steadman v. SEC, the Supreme
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Court read 556's language to refer largely to the quantity rather
than the quality of evidence. To what extent, then, are there
quality controls on the evidence upon which an agency can rely?
Undoubtedly so, but what exactly are those controls? Moreover,
exactly how is it to be determined when an agency has satisfied
the preponderance standard? Is the preponderance standard, given
the nebulousness concerning the quality of evidence upon which an
agency may rely, susceptible to general formulation? Or will
courts recognize its violation only when they see it, in the
context of a particular case? Second, what exactly is the
interplay between the preponderance of the evidence standard of
proof in adjudications, on the one hand, and substantial
evidence standard of judicial review, on the other hand?
Doesnt courts interpretation of substantial evidence undermine
the preponderance standard, given that an agency can survive
judicial challenge under the substantial evidence test without
needing to demonstrate that a preponderance of the evidence in
the record supports what the agency has done? Put differently,
what is to stop an agency from issuing an order supported by
substantial, but not a preponderance, of the evidence in the
record?
3. Agency Rules of Evidence: This is something of a perennial
issue, but might nevertheless (or therefore?) warrant some fresh
thinking by the Section. One does hear from time to time
frustrations by practitioners about inconsistencies across
agencies and, more seriously, across ALJs within a single agency.
Is there something that can be done to standardize agency
evidentiary rules somewhat? Applying the FRE plainly makes no
sense, and even the so far as practicable approach probably is
misguided, among other reasons, because the ever-malleable so
far as does not promote consistency so well. One alternative
might be to develop general recommendations about what agencydeveloped evidentiary rules should like, much like ACUS did in
1986. Another alternative, more modest still, would be to
require that each agency to promulgate its own evidentiary rules
that will be binding for its own ALJs/hearings. Such an approach
would preserve agency flexibility, but at the same time promote
intra-agency consistency, as well as notice values.
4. Cross-examination: Here too there may be room for improvement.
For example, lower courts have not approached Perales very
consistently. What should the rule about cross-examination be:
You are entitled so long as you ask for it? You are entitled to
it whenever the agency will rely/does rely heaving on a document
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or report whose author you want to cross? One problem with the
former approach is that some parties will ask for it too
muchnorms of administrative efficiency might counsel against a
categorical rule that says you are entitled to cross-examination
merely upon the asking. In this light, perhaps ALJs should have
a general power to dispense with cross-examination whenever it is
considered unnecessary. On the other hand, one problem with the
latter approach is that it will not always be clear before the
agencys decision how much an agency will end up relying on the
evidence in question. There is something chronologically
awkward, in other words, about a rule that says you get to cross
for evidence an agency weighs heavily in its decision. So what
other approach might be practical and feasible? Whatever that
is, would not more consistency by courts be desirable for its
own sake? For example, it may be possible to fashion some
general principle guiding abuse-of-discretion reviewability for
failure to allow requested cross-examination. Finally, it might
make sense to connect the issue of cross-examination to the
concept of prejudice associated with written evidence in
556(d). It appears there is not a great deal of case law
shedding light on the prejudice caveat specifically. But
clearly the idea of prejudice in this context and the
right/opportunity of cross-examination are linked.
5. Alternative Hearing Procedure: Of course, the APA now provides
for only one mode of formal hearings. Perhaps the introduction
of a second, less formal but not informal species of adjudication
is now in order. After all, there is a substantial distance
between the rigors of formal adjudication and the vagaries of
agency-prescribed informal adjudication. In between, an
alternative formal hearing process might entail, for example,
only written evidence, without opportunity for cross-examination
(but rather a right to respond to evidence in writing), but with
oral argument. One question a new formal hearing procedure would
immediately raise concerns which cases would be most suitable for
the alternative procedure. Even so, the APAs current two-tiered
approach to adjudication may be too crude for some types of
adjudicatory decisions.
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