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?

What is the role of juries in civil law countries?

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?

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

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.

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? 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)

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.

ALJs versus Article III Judges

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?

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

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?

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 CommunicationsArt III Trials v. Adjudications

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

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

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

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

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

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

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?