LIBERTY UNIVERSITY SCHOOL OF DIVINITYExegetical Pape.docx

LIBERTY UNIVERSITY SCHOOL OF DIVINITY
Exegetical Paper
Submitted to Dr. Rene Lopez,
in partial fulfillment of the requirements for the completion of
NBST 610
Hermeneutics
by
Jeffrey Rybold
February 14, 2019
Contents
Main Idea and Outline 1
Introduction 2
Context 3
Content 5

Application 10
Bibliography 12
ii
Main Idea and Outline
This paper will examine and exegete Isaiah 6:1-13. Upon deep
critical examination, this passage speaks of Isaiah as he enters
into the God’s presence, where he realizes his unworthiness to
stand before the Lord causing him to repent and ask for
forgiveness leading him to accept God’s call for him to go
preach to the rebellious covenant people of Israel of the coming
judgment and their need to also repent and turn back to God.
I. Introduction to Isaiah’s Vision
II. Isaiah sees God (6:1-5)
a. Isaiah sees God in a vision (6:1-4)
b. Isaiah sees his sinfulness (6:5)
III. Isaiah sanctified for God (6:6-8)
a. Isaiah repents from his unrighteousness (6:6-7)
b. Isaiah responds to his commission from God (6:8)
IV. Isaiah submits to God (6:9-13)
a. God gives His instructions (6:9-10)
b. God gives His timeline (6:11-12)
c. God gives His results (6:13)
V. Conclusion
Introduction
The book of Isaiah is a prophetic book detailing the revelation
bestowed upon Isaiah the prophet. Much can be said and much
more is generally known about this prophet. Hindson mentions,
“In chap. 6 Isaiah recounts his call to the prophetic ministry
undoubtedly many years prior to this writing, although his use

of imperfect verbs indicates that he is describing the scene as it
happened.” [footnoteRef:1] Clearly, Isaiah had a remarkable
encounter with God. [1: Ed Hindson and Gary Yates, The
Essence of the Old Testament: A Survey (Nashville, TN: B&H
Publishing Group, 2012), loc 6343, Kindle.
]
Martin describes three problems that Bible students currently
debate about Isaiah’s account in chap. 6. First, the
chronological location of this account could be perceived as
being in the wrong place. One suggestion is that the vision and
commissioning came before the previous chapters, but it was
recorded here as a climax to a very piercing accusation. It is
likely that this is a recollection of his earlier calling.
[footnoteRef:2] As Isaiah enters into the God’s presence, he
realizes his unworthiness to stand before Him, he repents and
receives forgiveness then readily accepts the call to go preach
to the rebellious covenant people of Israel of the coming
judgment and need to repent and turn back to God. Only a
remnant would remain in the land. Second, Martin says, “Isaiah
‘saw the Lord’ (v. 1), whom he called ‘the Lord Almighty’ (v.
3) and ‘the king, the Lord Almighty (v.5). Because the Apostle
John wrote that Isaiah wrote that Isaiah ‘saw Jesus’ glory (John
12:41), Isaiah may have seen the preincarnate Christ, who
because of His deity is the Lord.”[footnoteRef:3] Finally,
Isaiah had his vision in the temple. Even with no statement in
scripture about Isaiah being a priest, it might be he was not a
priest but simply a worshipper who was not physically in the
temple but transported there in the vision.[footnoteRef:4] [2:
John A. Martin, “Isaiah,” in The Bible Knowledge Commentary:
Old Testament, ed. John F. Walvoord and Roy B. Zuck
(Colorado Springs: David C Cook, 1985), 1043-44.
] [3: Ibid.
] [4: Martin, 1044.
]

Context
Isaiah’s ministry was long and profound. Baxter says, “What
Beethoven is in the realm of music, what Shakespeare is in the
realm of literature, what Spurgeon was among the Victorian
preachers, that is Isaiah among the prophets” [footnoteRef:5]
So profound, his prophetic writings are some of the most quoted
in by New Testament authors. Isaiah’s ministry takes place in
the days of Uzziah, Jotham, Ahaz, and Hezekiah, kings of
Judah.[footnoteRef:6] Baxter mentions, “Jewish tradition says
that he lived into the reign of Manasseh, under whom he
suffered a horrible martyrdom for resisting that wicked king’s
doings, being placed in the hollowed trunk of a tree and then
‘sawn asunder.’”[footnoteRef:7] [5: J. Sidlow Baxter, Explore
the Book: A Basic and Broadly Interpretive Course of Bible
Study from Genesis to Revelation vol 6. (Grand Rapids:
Zondervan, 1977), 217.
] [6: Ibid.
] [7: Ibid., 218.
]
Isaiah’s clear vision in chap. 6 is set apart in that it declares a
flash autobiography of himself and his vision of God. Baxter
says, “The prophet’s new vision here is not of his nation, but of
God Himself; and it is meant to prepare him for larger
ministry…. But the big thing here is that Isaiah saw Jehovah as
KING. The high point is the awed exclamation: “Mine eyes
have seen the King – Jehovah of Hosts!”’[footnoteRef:8] With
the vision of God comes a clear calling to God’s chosen people
of Israel – the sins of the nation have condemned them to
desolation and captivity. Only a remnant of faithful believers
will return to the promised land. Kidner describes this time
saying, [8: Ibid., 240
]

In 740 B.C. the death of King Uzziah (6:1) marked the end of an
Indian summer in which both Judah and Israel had enjoyed some
50 years’ respite from large-scale aggression. The rest of the
century was to be dominated by predatory Assyrian kings…
their ambitions were for empire, not for plunder alone; and in
pursuit of it they uprooted and transplanted whole populations,
punishing any sign of rebellion with prompt and hideous
reprisals. [footnoteRef:9] [9: Derek Kidner, “Isaiah,” in The
New Bible Commentary: Revised, ed. Donald Guthrie et al. 3rd
ed. (Carmel: Guideposts, 1970), 588.
]
The time was coming for Israel to be punished for their sins
against God. It’s a transitory text, some might say, of the
events previous and the culmination in the texts after it. Cole
assumes, “He [Isaiah] finds the ‘broad issues’ such as sin of the
nation in chapters 1-5 finding a solution in the experience of
Isaiah in chapter 6, and the more specific occasions in 7-12 are
a fulfillment of what the prophet had seen in his call of chapter
6.” [footnoteRef:10] [10: Robert Luther Cole, “Isaiah 6 in Its
Context,” in the Southeastern Theological Review 2, no. 2
(Wint 2011): 166.
http://ezproxy.liberty.edu/login?url=http://search.ebscohost.com
/login.aspx?direct=true&db=
lsdar&AN= ATLA0001934130&site=ehost-live&scope=site.
]
Hindson describes the literary approach of Isaiah, saying,
“Isaiah’s literary efforts may rightly be termed the classical
period of Hebrew literature. The grandeur of style, the
liveliness of energy, and the profusion of forceful plays on
words, vivid descriptions, and dramatic rhetorical touches
undoubtedly make him the ‘Prince of
Prophets.’”[footnoteRef:11] The passage being examined
precedes the new king, Ahaz, and the deafness that the nation

will maintain towards God. Hindson continues, “Newly
cleansed and commissioned, Isaiah launches on his prophetic
ministry even though his audience in the time of Ahaz would
close their ears to the messages he would
deliver.”[footnoteRef:12] [11: Hindson, loc 6272.
] [12: Ibid., loc 6343]
Content
Introduction to Isaiah’s Vision
As Isaiah’s vision is written, it is clear this was an important,
life-altering event. Isaiah is detailed in his description of the
encounter he has with God. Isaiah writes, In the year that king
Uzziah died I saw also the Lord sitting upon a throne, high and
lifted up, and his train filled the temple” (Isa 6:1 KJV).
[footnoteRef:13] Martin says, “Three things struck Isaiah about
God: He was seated on a throne, He was high and exalted, and
the train of His robe filled the temple.”[footnoteRef:14] How
did this encounter affect Isaiah? [13: Unless otherwise noted,
all biblical passages referenced are in The Holy Bible: King
James Version. (2009). (Electronic Edition of the 1900
Authorized Version). Bellingham, WA: Logos Research
Systems, Inc.
] [14: Martin, 1044.
]
Isaiah sees God (6:1-5)
Isaiah sees God in a vision (6:1-4)
The consequential humility associated with a direct encounter
with God is difficult to explain because no one in modern times
has experienced it as Isaiah did. Though difficult for a modern
explanation, there have been encounters by other authors who

have experienced similar encounters with God. From their
experience, we can gain clarity of this particular encounter.
Exodus 3 details the encounter of Moses with God in the
burning bush. In stark comparison to Isaiah, God calls Moses
(3:4) who hid his face from the glory and holiness of God (3:6).
Moses, in humility, declares his unworthiness for such a task of
reaching God’s people. What both Moses and Isaiah are
displaying is the exalted position of a holy God. Moses was to
go and free God’s people, while Isaiah was to go and condemn
them. Both, however, were declaring the sovereignty of a just
and righteous God. Martin states, “God’s being ‘high and
exalted symbolized His position before the nation. The people
were wanting God to work on their behalf (5:19) but He was
doing so, as evidenced by His lofty position among
them.”[footnoteRef:15] The one true and holy God was shown
in the vision by the perpetual worship of the very present
seraphim’s declaring His thrice holiness. Isaiah becomes fully
aware of who God is in this visionary moment. Ackroyd
affirms, “He [Isaiah] becomes aware of the dread holiness of
God, conscious of the acclamation of that holiness by the
attendant beings; and this sense of God’s holiness is clearly a
marked characteristic of Isaiah’s understanding of him.”
[footnoteRef:16] The importance of the repetitive declaration
of the seraphim’s must be acknowledged. Chisholm says,
“Threefold repetition, though rare, is a particularly forceful way
of emphasizing an idea.” [footnoteRef:17] The importance of
Isaiah’s vision of God is clearly his acknowledgment of His
supreme holiness. Isaiah sees God and His holiness, which, in
turn, have him see himself in comparison. [15: Martin, 1044.
] [16: Peter A. Ackroyd, “The Book of Isaiah,” in The
Interpreter’s One-Volume Commentary, ed. Charles Laymon,
(Nashville: Abingdon Press, 1971), 336.
] [17: Robert B. Chisholm, Jr., Handbook on the Prophets:
Isaiah, Jeremiah, Lamentations, Ezekiel, Daniel, Minor Prophet,
(Grand Rapids: Baker Academics, 2002), 25.
]

Isaiah sees his sinfulness (6:5)
As Isaiah becomes more aware of God’s exalted holiness, he
simultaneously becomes more aware of his own personal
sinfulness. He says, “Woe is me! for I am undone; because I am
a man of unclean lips, and I dwell in the midst of a people of
unclean lips: for mine eyes have seen the King, the Lord of
hosts” (6:5). Martin clarifies, “When seen next to the purity of
God’s holiness, the impurity of human sin is all the more
evident. The prophet’s unclean lips probably symbolized his
attitudes and actions as well as his words, for a person’s words
reflect his thinking and relate to his actions. Isaiah identified
with his people who also were sinful (a people of unclean
lips).”[footnoteRef:18] Isaiah’s apparent sinfulness along the
sins of the nation bring him to a point of utter humility. In a
place where worship, honor, and praise should be ultimately
given, Isaiah can only tremble and confess his sins before the
Almighty. Chisholm mentions, “Though praise was the order of
the day, Isaiah was not qualified to praise the king. His lips
(instruments of praise) were ‘unclean’ because he is
contaminated by his sinful society, which had rejected the ‘Holy
One of Israel’ and his word.”[footnoteRef:19] What Chisholm
eloquently proposes is that the society in which Isaiah was a
part of (and contributor to in general) was unclean and sinful
before God. To continue before God, Isaiah must turn away
from the iniquity. [18: Martin, 1045.
] [19: Chisholm, 25.
]
Isaiah sanctified for God (6:6-8)
Isaiah repents from his unrighteousness (6:6-7)

When Isaiah declares his uncleanness, he does so in repentance.
This is clearly shown when the seraphim laid the coal upon
Isaiah’s mouth. Isaiah recalls, “And he laid it upon my mouth,
and said, Lo, this hath touched thy lips; and thine iniquity is
taken away, and thy sin purged” (6:7). Martin explains, “This
symbolic action signified the removal of the prophet’s guilt and
his sin.”[footnoteRef:20] Having a clear conscience toward
God opened his availability to be used by God. [20: Martin,
1045.
]
Isaiah responds to his commission from God (6:8)
Interestingly, Isaiah hears directly from God after he has his
sins purged and his relationship with Him restored. Martin
remarks, “Significantly he was not called to service till he had
been cleansed. After hearing the seraph’s words (vv. 3, 7) he
then heard the Lord’s voice.”[footnoteRef:21] The calling is
clear and given as a question, “Whom shall I send, and who will
go for us?” (6:8). The question is asked, but not because God
did not know the answer. Martin asserts, “The question ‘Who
will go?’ does not mean God did not know or that he only hoped
someone would respond. He asked the question to give Isaiah,
now cleansed, an opportunity for service.”[footnoteRef:22]
Isaiah, newly forgiven and right before God, accepts His call
from the Lord to go and do whatever the Lord commands. [21:
Martin, 1045.
] [22: Ibid.
]
Isaiah submits to God (6:9-13)
God gives His instructions (6:9-10)

When Isaiah accepts the call, notice he did not ask for details
first. He simply accepts and waits for further instruction. God
then gives His instruction, and it is not an easy or fun
commission. God’s mission for Isaiah is to foretell of their
impending doom. It seems like a mean message, but in reality,
it is a response of just and holy God toward an unrepentant
people living in sin. Chisholm says, “On the surface, it seems
to indicate that Isaiah’s hardening ministry would prevent
genuine repentance. But, as the surrounding chapters clearly
reveal, the people were hardly ready or willing to
repent.”[footnoteRef:23] The message that Isaiah is to give is a
sad one that is sure to bring sorrow. Ackroyd affirms, “There is
laid on him [Isaiah] the commission to proclaim disaster, to
speak a message which will fall on deaf ears, a message which
will reveal more clearly the disobedience of
Judah.”[footnoteRef:24] Even with a message of direness, there
is still a ray of hope that is given. The consequences that God’s
people have brought upon themselves will be temporary. [23:
Chisholm, 26.] [24: Ackroyd, 336.
]
God gives His timeline (6:11-12)
The message Isaiah is given, as stated above, is dreadful, but
temporary. Ackroyd says, “The detail is unspoken, but when its
grimness calls out from the heart of the prophet the lamentation,
so often the cry of the psalmists, How long, O Lord? (v. 11), he
is shown a picture of a desolated land, of exile and destruction,
of further ruthless judgment even on those who
survive.”[footnoteRef:25] Martin agrees, “The Lord answered
that Isaiah was to proclaim the message until His judgment
came, that is, till the Babylonian Exile actually occurred and the
people were deported from the land (v. 12), thus leaving their
ruined cities and fields (v. 11).” [footnoteRef:26] The message

from the Lord to His people is to continue until the land is
destroyed (v. 11-12) and the remnant returns (v. 13). [25: Ibid.
] [26: Martin, 1046.
]
God gives His results (6:13)
The remnant spoken of by God through the prophet can be seen
as the ray of hope to a sin-sick people. God promises to keep
His promise through a remnant while illustrating it with trees.
Martin explains, “A remnant would be left. God compared the
remnant to stumps of terebinth and oak trees. From this stump
or holy seed of a believing remnant would come others who
would believe. Though Judah’s population would be almost
totally wiped out or exiled, God promised to preserve a small
number of believers in the land.”[footnoteRef:27] This
declaration from God is a cause for hope to the people, even
though they do not deserve it. Chisholm concludes, “Some see
a ray of hope here. God’s people would be like a tree that has
been chopped down. But even chopped-down trees leave a
stump that can produce new growth (see Job 14:7-9). Israel’s
‘stump’ was the holy remnant, which offered promise for the
future.”[footnoteRef:28] [27: Martin, 1046.
] [28: Chisholm, 27.
]
Application
What can be learned from the calling and commission of Isaiah?
First, when God calls someone, He communicates to one willing
to humble and repent from their sinfulness. God did not
directly speak to Isaiah until after he humbled himself and
repented. From salvation to evangelistic ministry, an individual
must first realize their unworthiness and sinfulness to approach

God and communicate with Him directly. Isaiah writes, “But
your iniquities have separated between you and your God, and
your sins have hid his face from you, that he will not hear” (Isa
59:2). When sin is a barrier, John explains, “If we confess our
sins, he is faithful and just to forgive us our sins, and to cleanse
us from all unrighteousness” (1 Jn 1:9).
Second, the message God calls people to declare is not always a
fun one or a popular one. Often it is hard and those it is being
told to will reject it outright. When Stephen was declaring the
truth of God, he was stoned to death by Saul, who was later
converted by Jesus Himself on the road to Damascus (Acts 9).
Bertram and Tucker say,
The divine message – a message of melting pathos and of
startling warning, of beseeching entreaty and of terrible
threatening – must be delivered to men. ‘Go, and tell this
people’ is a command that shatters excuses and imposes an
imperative obligation. God’s speakers have no option – speak
they must (Jonah 3:2). The effects of God’s communications
correspond to the willingness or the willfulness of men.
[footnoteRef:29] [29: R.A. Bertram and Alfred Tucker,
“Isaiah,” in The Preacher’s Complete Homiletic Commentary
(Grand Rapids: Baker Book House, 1986), 146.
]
Finally, the message from God is never only about the
consequences of a thing, but of repentance of sin and restoration
to God. Just like Isaiah’s message was to declare that the sins
of the nation would bring them dire consequences, God
promised He would restore them again through His remnant.
Today, Christians are commissioned, like Isaiah, to declare the
dire consequences of sin while also declaring the saving grace
of God through repentance and faith in Jesus Christ. (Word
Count: 2915)
Bibliography

Ackroyd. Peter A. “The Book of Isaiah.” In The Interpreter’s
One-Volume Commentary, edited by Charles Laymon, 329-371.
Nashville: Abingdon Press, 1971.
Baxter, J. Sidlow. Explore the Book: A Basic and Broadly
Interpretive Course of Bible Study from Genesis to Revelation
vol 6. Grand Rapids: Zondervan, 1977.
Bertram, R.A. and Alfred Tucker. “Isaiah.” In The Preacher’s
Complete Homiletic Commentary. Grand Rapids: Baker Book
House, 1986.
Chisholm, Robert B. Jr. Handbook on the Prophets: Isaiah,
Jeremiah, Lamentations, Ezekiel, Daniel, Minor Prophets.
Grand Rapids: Baker Academics, 2002.
Cole, Robert Luther. “Isaiah 6 in Its Context.” In the
Southeastern Theological Review 2, no. 2 (Wint 2011): 161–80.
http://ezproxy.liberty.edu/login?url=http://search.ebscohost.com
/ login.aspx?direct=true&db=
lsdar&AN=ATLA0001934130&site=ehost-live&scope =site.
Hindson, Ed and Gary Yates. The Essence of the Old
Testament: A Survey. Nashville, TN: B&H Publishing Group,
2012. Kindle.
Kidner, Derek. “Isaiah.” In The New Bible Commentary,
edited by Donald Guthrie and J.A. Motyer, 588-625. Carmel:
Guideposts, 1970.
Martin, John A. “Isaiah.” In The Bible Knowledge
Commentary: Old Testament. Edited by John F. Walvoord and
Roy B. Zuck, 1044-46. Colorado Springs: David C Cook, 1985.
2

480, Henkels, Section III: "Adjudication"
1
Adjudication and Rulemaking: orders differ from rules
Adjudication may set a precedent in variable contexts, but
should not be purposeful pattern of policy-making: Wyman-
Gordon (1969)
SEC and NLRB have to confront new situations that challenge
purpose of law:
Chenery II – insider trading case showed court deference to
agency being flexible in policy implementation
SECTION III - ADMINISTRATIVE ADJUDICATION
Social Security Disability Appeals
2
Social Security Supplemental Income Appeals
The Social Security Administration manages millions of appeals
each year.
From John Mann, Oregon’s
Chief Administrative Law Judge:

“With 65 professional administrative law judges, we hold over
30,000 hearings a year for approximately 70 state agencies.
By statute, all administrative law judges are required to be
‘impartial in the performance of [their] duties and shall remain
fair in all hearings.’”
3
4
When is a hearing required?
Constitutional context
when required by statute or rule
- when required in contract
5
Due Process claim: right to a fair hearing before suffering
injury
Constitutional foundation built on:
5th Amendment: right to due process before being denied life,
liberty, or property
14th Amendment: all citizens get “due process” and “equal

protection of the law” from states (and therefore local gov’ts)
6
Due Process claim: right to a fair hearing before suffering
injury
Statutory Bases:
APA embodies common law concepts of due process in
administration
Specific statutes may create right to hearing
Agencies may adopt procedural requirements that enhance due
process requirements
7
Rights verse privilege doctrine: when government benefits are
viewed as “privileges” the government can place conditions on
them and beneficiaries have no due process claim
If they are viewed as “rights”, then there are due process
protections.
Changes since World War II have generally pushed courts to
view more benefits as rights:
- more government-citizen interaction
Cold War/ Civil Rights revolution
Will analyze public employment context later

8
Substantive due process: some rights cannot be taken regardless
of procedures: speech, freedom of religion, right to travel
Can women be banned from working late?
- Marriage equality: Obergefell (2015)
Procedural due process: appropriate steps before harm may
occur – these are more focus here
9
Adjudication
Constitutional due process:
is there a state (meaning “governmental”) action?
is there the loss of constitutionally protected interests?
- life
- property
- liberty
- If there is a loss, how much process is due?
10
Section 3: Adjudication

Variable Court views of rights:
Board of Regents v. Roth (1972): non-tenured Wisconsin
adjunct had no property interest: needs “legitimate claim of
entitlement”, not just “unilateral expectation”
Perry v. Sindermann (1972): a ten-year professor at a school
without a formal tenure system but administrative statement that
faculty should feel they have “permanent tenure” creates
expectations from both sides – fostering possible property right
Both had potential liberty interests in free speech not
considered by the court. Public speech covered later in class
11
Statutory property interests receive constitutional protections
Highwater mark:
Goldberg v. Kelly (1970): pre-termination oral hearing required
before welfare benefits revoked
Generally courts have not held other programs to such strict
standards: allow more balancing and denial of benefits before
formal evidentiary hearing
12
Statutory property interests receive constitutional protections:
cost-benefit analysis perspective developed by the courts
regarding when those hearings must take place.

Mathews v. Eldridge (1976):
Due process Balancing Test:
1) private interest
2) risk of erroneous deprivation
3) public/governmental interest
13
Mathews v. Eldridge (1976)
Admin Process Courts
1A. Paper hearing
2A. Denial, Benefits stopped
3A. Formal Hearing 1A. Due process hearing
4A. Approved , Benefits re-started 2A. Moot
1B. New Paper hearing
2B. Denial 1B. Due process hearing
3B. Formal hearing 2B. Wins restoration
4B. Approved, Benefits restarted 3B. Supreme Court review
Balancing test applied to Gilbert v. Homar (1997): should
Homar have been suspended without pay before evidentiary
hearing after being in a drug bust?
1) Private interest of continuing pay: suspension is not as
serious as firing;
2) State interest: Felony charges affects public trust
– government need not to bear cost of continuing pay while
also having to hire replacement
3) Risks of erroneous deprivation: were there reasonable

grounds to think charges are true: yes – indictment by
independent body
14
Balancing of due process rights in school discipline
Goss v. Lopez(1975) opened new possibilities for contesting
adequacy of due process
- 10 day suspension from school requires notice and brief
hearing
Sometimes viewed as enabling lesser hearing for lesser
punishment
15
15
16
Administrative Adjudication
Liberty interests are less consistently recognized
Wisconsin v. Constantineau (1971): broad concept of liberty
rights included reputation
Paul v. Davis (1976): narrowed Constantineau, - - Davis’s
reputation not liberty or property interest here: “stigma-plus
test”. But consequence must be immediate to decision, not later
damage to reputation

Bishop v. Wood (1976): reputation not important if no specifics
provided on firing. Context of at-will employment also affirms
that property interest can depend on state law
17
Irrebuttable Presumptions: contexts where facts create policy
outcomes without hearing. Now generally viewed an
unconstitutional.
- Stanley v. Illinois (1972)
But not if the legislature rationally chose such a line for a
legitimate public purpose:
Weinberger v. Salfi (1975) – you can automatically be denied
SS survivor benefits if married to SS recipient for less than 9
months when they die.
18
Administrative Adjudication
Other restrictions to due process:
Due process applies only to deliberate actions, not to accidents
or mere negligence
Only parties directly affected by decisions have due process:
nursing home residents have no due process for actions taken
against owners, may be allowed to participate in hearing

Generally does not apply to rulemaking: Bimetallic Investment
(1915)
19
Licensing is generally an adjudicative process: but FCC can use
rulemaking to regulate distribution of licenses according to its
interest in preventing “concentration of control” : Storer (1956)
Doctrine
Examples of licensing: wetland infill, grazing permits, aviation
licenses
Adjudication is process for various non-rulemaking decisions
Forest Service and BLM Examples of Adjudication in Disputes
over Implementation
20
Steps in the administrative hearing process: State Child
Support
Process generally takes about 90 - 180 days.
1. A parent talks to their case manager about requesting a
hearing.
2. The child support case manager sends the parent’s hearing

request to Office of Administrative Hearings.
3. The Office of Administrative Hearings will contact the
parents to schedule a hearing.
4. A hearing will occur with an Administrative Law Judge.
5. A final decision is made.
6. The Oregon Child Support Program will begin to enforce the
order.
7. A parent may file an appeal in Oregon Circuit Court.
21
22
Adjudication
Local and state governments operate under due process
restrictions when they make decisions regarding specific
individual parties
23
Judicial Process: General Rights and Context
- notice of charge
- right to attorney
- rights and protections regarding evidence and testimony
- unbiased judge and jury
- at least one appeal
Administrative Proceedings
- notification

- less formal proceedings, looser admissibility
- lack jury
- appeal possible, but administrative path before judicial
review
24
Types of Hearings: Courts are reluctant to impose formal trial-
type hearing requirements
1) Alternate dispute resolution: pre-hearing conferences
- consent decrees (Covered in Section 5 informal
action)
2) Paper hearings: early parts of Eldridge case, grant
applications
3) Simple oral hearing: Goss v. Lopez (1975)
Formal Hearings: Trial type hearing – Goldberg
- may be de novo consideration of less formal processes
- license removal
25
Formal Hearings
“On the record hearings”, “evidentiary hearings”, “full
hearings”, “trial type hearings”: APA Sec 554,556, 557 apply
Formal hearing generally required when stated in program’s
organic or enabling act, but different federal circuits use

varying standard
Not basically required in APA, like “notice and comment” is
default in rulemaking
Agencies have much discretion in informal adjudication: useful
to consider “Chevron Doctrine” for rulemaking as guide to
adjudication requirements: if not explicitly required then it is
discretionary
McPherson v. Lord (1987):
irreversible actions that have no appeal
Administrative Appeals in the Bureau of Land Management and
the Forest Service
Congressional Research Service 18
Figure 13. Administrative Appeals Under Part 251 of District
Ranger Decisions
Source: Congressional Research Service.
If the decision was made by the Forest Supervisor or the
Regional Forester, only one level of
review is available under Part 251, to their immediate
supervisor.
103

Figure 14. Administrative Appeals Under Part 251 of Forest
Supervisor or
Regional Forester Decisions
Part 251 provides for oral presentation of the issues, if
requested by the appellant. The regulations
provide that an oral presentation will automatically be provided
if requested as part of the notice
of appeal.
104
The presentations may be open to the public. Mediation
sessions of grazing permits,
however, are confidential, although the final decision resulting
from the mediation is a public
document.
105
103
36 C.F.R. §251.87(b).
104
36 C.F.R. §251.97(b).
105

36 C.F.R. §251.103(d).
the Forest Service Congressional Research Service 18
Figure 13. Administrative Appeals Under Part 251 of District
Ranger Decisions
If the decision was made by the Forest Supervisor or the
Regional Forester, only one level of
review is available under Part 251, to their immediate
supervisor.
103
Figure 14. Administrative Appeals Under Part 251 of Forest
Supervisor or
Regional Forester Decisions
Part 251 provides for oral presentation of the issues, if
requested by the appellant. The regulations
provide that an oral presentation will automatically be provided
if requested as part of the notice
of appeal.
104
The presentations may be open to the public. Mediation
sessions of grazing permits,
however, are confidential, although the final decision resulting
from the mediation is a public
document.
105
103
36 C.F.R. §251.87(b).
104

36 C.F.R. §251.97(b).
105
36 C.F.R. §251.103(d).
the Forest Service
Congressional Research Service 5
Figure 1. Administrative Appeals of BLM Land Use Plans
Source: Bureau of Land Management.
As mentioned above, the protest process for land use plan
decisions is different from the
administrative appeal for implementing decisions, such as
timber sales, oil and gas lease sales,
and grazing decisions. It is not uncommon for BLM to combine
the two decisions in one effort—
this would have the benefit of using one combined NEPA
review. When it does so, however,
BLM is required to identify which decisions are land use plan
decisions, and thus subject to
protests under the planning regulations, and which are
implementation decisions that have
separate appeals regulations.
27

In the alternative, two decision documents can be used.
Appeals of Implementing Decisions
In broad strokes, the BLM appeals process for implementing
decisions consists of two steps: a
challenge to an agency action, which is reviewed by an agency
official; and then an appeal, which
is reviewed by the Interior Board of Land Appeals, or the
Director of the BLM. Upon the decision
by the Board or the Director, the challenger may take the issue
to federal court.
Administrative remedies for implementing decisions provide for
an internal agency review before
the challenge can advance. The first step in the process is filing
a protest or a request for review,
which is reviewed by the deciding official of BLM, in many
cases the State Director. This gives
the agency the chance to review the issues before the matter is
brought before the Board. If the
challenging party is not satisfied with the result of the deciding
officer’s decision, an appeal can
be brought to the IBLA.
Challenges before the Board are trial-type proceedings, with the
presentation of evidence and

witnesses. Some challenges are brought before an administrative
law judge (ALJ) who is isolated
from the decision-making area of the agency.
28
An ALJ functions as an independent, impartial
trier of fact, similar to a judge.
29
Review of a Board or ALJ decision is by a federal court.
There are exceptions to this general process, which shall be
discussed during the review of the
individual categories.
27
Handbook, p. 30.
28
One requirement of FLPMA is that the administration of public
lands include an “objective administrative review of
initial decisions.” 43 U.S.C. §1701(a)(5).
29
For more on ALJs, see CRS Report RL34607, Administrative
Law Judges: An Overview, by Daniel T. Shedd.

Hearings process:
- Notice
- Hearing officers
Discovery
Evidence
Decision standards
- Appeal process
1
Notice in Adjudication
Notice of nature of action
Notice of how to participate: date, time, location or
participation process.
Most notices are by mail.
Notice must be timely or may violate due process. Morgan
(1938). Hearing may follow if situation demands immediate
action
2
3
Essential Elements to Administrative Hearings
Presiding Officer: Impartial decisionmaker: note there may be
changes due to 2017 Lucia case
1) Salaries set by Civil Service Commission

2) Hiring mediated by Office of Personnel Management (OPM)
which identifies 3 candidates
3) Agency cannot reward or punish ALJs
4) ALJs are entitled to formal adjudication for disciplinary
actions – removed for cause only
ALJ decisions are often recommendations sent to governing
board or agency directors
4
ALJ Roles:
To conduct hearings
Affirmative responsibility to ensure a more complete record
means ALJ may engage in investigation
To make initial decisions or recommended decisions, depending
on program
Decisions of more policy importance are more likely to be left
to agency heads so there is more accountability
5
Not every hearing officer is an ALJ. “Administrative judges”,
“hearing officers” and various other possibilities exist
depending on the agency and statutory requirements.

ALJ’s have special status founded in APA and reinforced by
tradition of independence.
6
Often ALJs or other hearing officers are making
recommendations rather than decisions.
Presiding Officer: Impartial decisionmaker: Includes board or
appointed official who reviews ALJ recommendation
Board members, such as on the SEC, often are appointed
according to ideological bias – values and public opinions on
general principles allowed
7
Presiding Officer: Impartial decisionmaker: Includes board or
appointed official who reviews ALJ recommendation
“Closed mind” rule
Should not have participated earlier in issue, although some
multiple roles allowed: Withrow v. Larkin (1975)
No overt comments that indicate pre-judgement of case
- General comments on “legislative facts” regarding meaning
and broad applicability of law are fine, comments on

“adjudicative facts” specific to case at hand indicate a “closed
mind”: Pete Rose case Baseball commissioner indicated he
believed the accuser before hearing: improper
8
Presiding Officer: Impartial decisionmaker
Conflict of interest: No direct financial stake in decision by
individual or their administrative unit
Improper if decision-makers might benefit from restraint of
trade occurring from decision: such as state boards regulating
specific trades
Personal bias: can involve hearing officer and specific party or
category of cases
Rule of necessity: in various states and some federal contexts
such as FTC, there are no alternative venues for hearings so
biased reviewers are allowable.
9
Formal Hearings
Parties in Interest and Intervention:
Intervenors common: third parties with interest in dispute may
participate in various ways
May control presentation of their evidence, cross-examine
witnesses, and appeal decision
Courts generally defer to agency determination of who can

intervene, but general practice is to be liberal in allowing them:
agencies can limit to promote “orderly conduct of business”:
standing theory
Intervenors must principally rely on own resources: some
money available through federal Equal Access to Justice Act if
they win an APA controlled case
10
Formal Hearings
Discovery: gathering evidence for hearing
Variable rights, depending on agency and enabling act
- Typically the outside party has whatever powers the agency
does (Remember this is a civil procedure.)
Key sources for outside parties:
Freedom of Information Act (FOIA)
Jencks Rule: disclosure required for any prior testimony
obtained by prosecution
11
Formal Hearings
Evidence: much more flexible, generally must be a basic amount
of legally acceptable evidence: “legal residuum rule”
Context of expert decision-maker rather than jury and disputes
based on technical grounds
Process of presentation is generally discretionary

Example: NRC limits process in effort to prevent use of system
to simply stall action
12
Formal Hearings
Evidence: much more flexible
Immigration and Naturalization Service(INS) v. Lopez-
Mendoza(1984)
Deportation is civil action: “The reach of the exclusionary rule
beyond the contest of criminal prosecution, however, is less
clear ….”
Balancing: deterrent effect of exclusionary rule on agency
misbehavior verse social costs of ongoing violations of law
– not intended to punish transgressors for past behavior but
prevent continuance of ongoing or future violations
- Large case load and INS systematic approach also favors this
streamlining
13
Formal Hearings
Evidence:
1) Greater reliance on written testimony: technical facts can
be better presented and cross-examined in writing
2) Looser rules on admissibility, particularly hearsay
evidence

- Richardson v. Perales (1971): allowed hearsay, “residuum
rule” exception
- “exclusionary rule” not consistent concern in administrative
due process, but well-established common law exceptions
recognized
Courts generally defer to agency policies regarding cross-
examination and admissibility: INS v. Lopez-Mendoza (1984):
state interest in stopping ongoing violation outweighs
deterrence effect
14
Formal Hearings
Decision Standards: What courts need to see to support or
reverse agency decision
Burden of production: obligation of party to produce evidence
or raise issue
Burden of proof: the obligation of party to prove its case
Burden of proof is generally on the proponent of the
order(APA): usually the private party is seeking change and
bears burden of persuasion
Those applying for benefits or licenses are seeking change
Whole Record must be considered
Exclusive record: decision can only be based on what is in
formal record
15

Formal Hearings
Decision Standards: Burden of proof levels
“Beyond reasonable doubt”: applies in criminal law
“Clear and convincing evidence”: used when agency action
encroaches on legally protected right - deportation
“Preponderance of evidence”: normal agency standard – more
than likely true
16
Formal Hearings
Ex parte contact with decision-makers in Formal Adjudication
Not allowed when:
Raised by involved parties and relevant to merits of case:
information must then be placed in formal record and outside
party must demonstrate why claim should not be dismissed or
otherwise adversely affected by violation
Improper political interference by legislators or political
appointees: consider Pillsbury (1966) decision when
Congressional committee raised pending adjudication case with
FTC: violated due process
Depending on agency enabling act, mixes or separates
prosecutorial functions with advising and judicial within agency
Ex parte considerations: EPA example
EPA ALJ considering whether a legal pesticide should be
banned because “generally causes unreasonable health effects”:

Can contact agency scientists only if other parties are notified
and can review and access scientists (Except in initial licensing)
2. Can consult with EPA lawyer not in prosecutorial position
about legal but not factual issues (such as what “generally”
means)
3. Cannot contact company official about how pesticide is used
since ALJs cannot do ex parte contact with outside parties
Appealing from adjudication process to the judicial system
requires formal standing requirement. Covered in judicial
review section.
18
19
State Process:
Pre-hearing conference: clarify and focus issues
- promote settlement
Must keep notes
Ex parte info is shared
No show, lose case, unless agency allows second chance

“Stays” may be allowed for 30 days to prevent harm before
hearing
20
State process, continued
Central Hearing Officer Panel Reform :
HB 2525(1999): Created the Office of Administrative Hearings
Pool of about 65 ALJs handles about 90% of cases, major
exclusions include Workmans Compensation and Land
Conservation and Development Commission
Faster and cheaper: 8.5 hours to 7 hours per referral, about 17
positions cut
21
Oregon State process, continued
Standardized heading/evidence rules from DOJ
-Agencies fund operations by billing
- Movement towards a judicial model?

22
Federal Court limitations on due process rights:
- investigations: Withrow v. Larkin (1973)
Federal Administrative (Agency) Decisions
Decisions of Administrative Bodies
Decisions of agencies can broadly be classified as
Advisory opinions
not binding
authoritative interpretations of statutes and regulations that
indicate agency policy and expectations
Informal Adjudications
governed by special statutory requirements or agency’s own
regulations
due process concerns apply
discretionary
generally not reviewable by a court
conducted by presiding officers and not by independent
Administrative Law Judges (ALJ)

Formal Agency Decisions
Formal Adjudications: Quasi-judicial decisions
adjudicate disputes arising out of the interpretation or violation
of enabling statutes or regulationsreported much as case law is
usually delivered in written formatthe role of the court is often
performed by an independent Administrative Law Judge (ALJ)
or agency commissioner(s).proceedings are usually fact-finding
inquiries into how regulations apply to a particular
situationagencies are not strictly bound by prior decisions but
the decisions have precedential value so attorneys who practice
before an agency can use the decisions as an important primary
source of the law.
Updating an Agency Decision
Precedent might not have as strong a role in updating an
administrative decision as it would in case law but you still
need to know
Whether judicial review has overturned an agency
decisionWhether later agency decisions have disapproved of the
decision the agency’s position on a particular issue
Judicial Review of Administrative Decisions: Common
IssuesConstitutionalityAgency acted outside the scope of
delegated authorityProcedural due process violations Arbitrary
and capricious decisionAbuse of agency discretionSeparation of
powersWhen original jurisdiction can be granted to the United
States District CourtInterpretation of the language of the
enabling statute or regulation
When Federal District Court has Original Jurisdiction over

Agency MatterWhen an agency is the plaintiff (See 28 USCA
1345) When there is a federal question (See 28 USCA
1331)When there is a mandamus action to compel an agency to
perform a duty owed to plaintiffWhen there is a specific statute
authorizing original jurisdiction in the federal district
courtSome examples of matters of original jurisdiction for the
district courtWhat constitutes an interpretive ruleAgency
compliance with Sunshine ActExhaustion of remedies under
Privacy ActWhat constitutes agency “action”, “order,”
decision,” final order,” or “final decision” within meaning of
statute authorizing judicial review
Judicial Review To Court of Appeals
if statute provides
for appeal To District Court if
there is no provision
for appeal
Decision by
Presiding Officer,
Commissioner, or
ALJ
Appeal to higher entity
within the Agency:
Exhaustion of Agency
Remedies
Original Jurisdiction
by District Court By statute Agency is plaintiff Federal
question Mandamus action
AGENCY ACTIONS
COURT ACTIONS
CONTROVERSY

HENKELS interference
The following slides discuss the older way of agency
recordkeeping and the services that Westlaw provides for those
seeking to access past decisions. All recent and contemporary
decisions can be found in digital format, but services like
Westlaw can still help people find what they need faster.
For example, the EPA’s adjudication decisions can be found at
“Filings, Procedures, Orders and Decisions of EPA's
Administrative Law Judges”.
https://www.epa.gov/alj
DO NOT BOTHER WITH THE REST UNLESS YOU ARE
REALLY CURIOUS ON YOUR OWN ABOUT TRACKING
DOWN ADJUDICATION DECISIONS.
Formal Decisions
Publication of Decisions
Official versions are available in most law and university
libraries that are official depositories of the U.S. Government
Printing Office
Usually issued first as a slip
opinion or advance sheet
Many agencies eventually bind
their decisions in permanently

numbered volumes
Some agencies publish only in pamphlet format, or only
on microfiche
In any format, most decisions have some sort of finding aids,
such as an index, table of cases, or tables of statutes or
regulations cited
Official decisions of the Federal Power Commission and the
Federal Trade Commission published by the United States
Printing Office.
Formal Decisions
Publication of decisions
Unofficial versions are reproduced in looseleaf services,
sometimes with sequentially numbered bound volumes.
Unofficial versions tend to be far more current and better
indexed than the official decisions.
Unofficial versions are also placed on Westlaw. Westlaw
contains the decisions of many federal and state agencies,
including;
Federal Communications Commission, Federal Labor and
Employment Commission, Equal Employment Opportunity
Commission, Internal Revenue Service, Interstate Commerce
Commission, National Mediation Board, Federal Trade
Commission, Federal Maritime Commission, Department of the
Interior, Attorney General, and Department of Agriculture.
Unofficial decisions of the Federal Energy Regulatory
Commission as published by CCH

Finding an Agency DecisionEach agency has its own method of
indexing decisions so few generalizations can be made.Official
versions are usually more poorly indexed and slower to be
indexed than unofficial versionsIndividual volumes may have
finding aids, such as a table of contents, a table of cases
reported, a list of opinions/decisions/orders, an index by type of
action, a topical index, or an index-digest.Some sets of
decisions may have finding aids, such as an index or digest for
the set. Secondary sources, such as the American Law Reports
or law review articles, often discuss agency decisions in the
context of discussing a court case or a statute.
Finding an Agency Decision on WestlawWestlaw is probably
the fastest way for an attorney who does not regularly practice
before a particular agency to find a decision or decisions that
discuss a particular topic.Database: TP-ALL (All Law Reviews
and Bar Journals)Query: f.c.c. f.c.c.r. /10 decision /p merger re-
organization /p radio television
At least one of the 31 documents retrieved with the above
search
cites to decisions of the
Federal Communications
Commission
KeyCite lists federal administrative decisions that have been
cited in court casesClick the Citing References link.Click the
Limit KeyCite Display button at bottom of screen.Deselect all
but Administrative Decisions check box.Click Apply.
Limit KeyCite Display

Apply
Admin. Dec.
Finding Orders and Decisions on WestlawWhen you know the
document’s citation, access the Find service and type
16 F.C.C.R. 16087
32 FCC 2d 360
When you know the parties name and the database
identifierDatabase: FCOM-FCC Search: ti(nynex & “new
england”) When you know the fact pattern, specific proper
names, or unique termsDatabase: FCOM-FCC
“captain kangaroo” /p child /s programming schedul!When you
want to retrieve documents that discuss an issueDatabase:
FCOM-FCC Search: Natural Language
misleading (deceptive false) advertising vitamins
It is possible to retrieve KeyCite History results for the
decisions of some agencies. See the above decision of the
Federal Communications Commission. It was vacated, in part.
Updating an Agency Decision
History
Vacated in Part
Decision in Question
A Partial List of Agencies Whose Decisions Can be Updated in
KeyCiteBoard of Immigration AppealsEqual Employment
Opportunity CommissionEnvironmental Protection
AgencyFederal Commerce CommissionFederal Communications
CommissionFederal Energy Regulatory CommissionFederal

Government Contracts BoardFederal Securities and Exchange
CommissionInternal Revenue Service (rulings and
memoranda)National Labor Relations BoardOffice of
Comptroller GeneralPatent OfficePublic Utility ReportsTax
Court
Updating Using Westlaw as a CitatorAccess a database
containing case law, administrative law, analytical materials, or
any other type of material that might contain a discussion of the
administrative decision.Devise a Terms and Connectors search
that will include some of the essential items in the citation of
the decision within a few words or the same sentence of the
party or agency name.Database: FENV-EPA
Query: “asbestos removal” /s e.a.d.
Judicial Review of Agency DecisionsOnce an Administrative
Law Judge has issued a decision, that decision can usually be
appealed to a higher entity within the agency.
Those appealing an agency decision must usually exhaust
agency remedies before moving the action to a federal court.
The final agency decision can usually be appealed to a federal
court of appeals if Congress has provided an appeals process to
the federal district court if no provision for appeal has been
specified
Judicial Review of Agency DecisionsThe appeal of these
decisions can be found in the Supreme Court Reporter®, the
Federal Reporter®, and the Federal Supplement® in print and in
the corresponding databases on Westlaw: Supreme Court cases
are in the SCT databaseFederal Reporter cases are in the CTA

databaseFederal Supplement cases are in the DCT database
Summaries of these cases can be found in West’s Federal
Practice Digests®, and the United States Supreme Court
Digest®
SCT-HN, CTA-HN, and DCT-HN are the corresponding
databases on Westlaw.
PS 480, Spring 2020, Dr. Mark Henkels
Essays should be 4-6 double-spaced pages. They should be
written using only lectures and reading materials provided on
Moodle. Identify the sources for specific facts, concepts, and
quotes by simple parenthetical references. Since you are only to
use class materials, the instructor should easily be able to
identify the source.
For the essays, you cannot “cut and paste”. Use the materials
from class only and be sure to provide a simple reference, such
as (Powerpoint) or (Library of Congress).
Answer all parts of the chosen question. Demonstrate that you
have reviewed and understand any relevant information in that
section’s materials.
When useful to the answer, incorporate details such as case
names, author’s names, facts, and particularly specific terms or
jargon important to that subject.
The essays should be thematic. Sentences should be complete.
ESSAY ON SECTION 3: ADJUDICATION (Due 5 pm, April
29)
One night you are approached by a friend, Ian A. Bind, who
knows you are a real student of administrative law. Ian explains
that he just received a letter stating that the unemployment

benefits he hoped to receive since he lost his job due to COVID
have been denied. Evidently his employer considers his release
a “hiatus” from work and not a termination. (“Hiatus” is not a
legal term. His boss simply does like the idea that their idle
workers will be paid by the government and might choose to
work somewhere else later.)
The denial letter indicated that there is an appeals process that
could at some point include an oral hearing.
After you very strongly note that your professor warned you
against giving any legal advice, you decide that you will answer
the following questions for your friend:
1) Can the government deny benefits without a formal
adjudication hearing? When are such hearings required,
according to case law?
- Ian believes the government must hold such oral hearing
before denying his benefits. Is he correct?
2) What might this hearing be like? Is it just like a court
hearing? How might it differ from a court hearing?
- If this is an Oregon agency, what would be distinctive about
the process?
3) In your opinion, is the general system for determining
when and how a hearing must take place fair? Why, or why
not?
Flowchart of the EEO Complaint Process

After the investigation is completed, you will receive
a copy of the investigation report. The Director of
EEO will notify you of the right to either request a
hearing before an EEOC Administrative Judge (AJ)
or receive a final FTC decision without a hearing.
If mediation is successful within 90 days, the
Director of EEO will inform the EEO
counselor that the claim was resolved.
The Director of EEO will
issue a final FTC decision
within 60 days of receiving

notice of the request for a
final FTC decision.
You may request an
EEOC hearing within 30
days of receiving the
report of investigation.
An EEOC AJ will make
a decision about the
matter.
If you are not satisfied with
the FTC’s final decision, you
may appeal to EEOC within
30 days of receipt.
Within 40 days of
receiving the AJ’s
decision, the FTC must
issue a final order.
If you are not satisfied with

EEOC’s appellate decision,
you may file a request for
reconsideration or you may
file in Federal district court
within 90 days of receipt.
If you are not satisfied
with the FTC’s final
order, you may appeal
to EEOC within 30 days
of receipt.
Formal Complaint Process
Incident Occurrence
Pre-complaint Counseling
You must contact an EEO counselor within
45 days of the incident. If you request
traditional counseling, the EEO counselor will
have 30 days to attempt resolution.
You may request to participate in the FTC’s

Alternative Dispute Resolution Program (i.e.,
Mediation Program), in which case the FTC
will have up to 90 days to resolve the matter.
If you choose mediation, pre-complaint
counseling will not occur. If mediation is not
successful and a resolution is not reached
within 90 days, the EEO counselor will issue a
notice of the right to file a formal complaint.
You will have 15 days to file a formal
complaint.
EEOC regulations require that you
seek pre-complaint counseling
before filing a formal complaint.
You must file a formal complaint within 15 days of
receiving the notice of the right to file a formal
complaint. The Director of EEO will acknowledge
receiving the formal complaint and notify you of
the claims accepted for investigation. If the claims

asserted and those accepted for investigation differ,
the Director of EEO will explain the reasons for
such differences, including whether the agency is
dismissing the entire complaint, or in part.
The Director of EEO will assign an investigator to
develop impartial and appropriate factual
information on the claims accepted for processing.
The FTC must complete the investigation, within
180 days of the date the formal complaint was
filed.
The 30-day counseling period may be
extended no more than 60 days if you and the
FTC agree to such an extension in writing. If
you choose traditional counseling and a
successful resolution is not reached, the EEO
counselor will issue a notice of the right to
file a formal complaint. You will have 15
days to file a formal complaint.

This is an actual written order, the written decision regarding a
compensation dispute between Amber Maynard. In this
decision, Leslie C. Rogall, Administrative Law Judge decided
that Maynard failed to provide the necessary paperwork in a
timely manner for compensation and was properly removed
from being eligible for SSA compensation in the future.
You do not need to know anything here. This is provided to give
you an actual example of a final outcome of a federal
administrative appeal.
From the Health and Human Services Website:
https://www..hhs.gov/about/agencies/dab/decisions/alj-
decisions/2018/alj-cr5100/index.html
Amber Maynard, DAB CR5100 (2018)
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
Amber Maynard
(PTAN: DR163Z; NPI: 1194033860)
Petitioner,
v.
Centers for Medicare & Medicaid Services.
Docket No. C-17-1048
Decision No. CR5100
May 16, 2018
DECISION
First Coast Service Options (First Coast), an administrative
contractor acting on behalf of the Centers for Medicare &
Medicaid Services (CMS), revoked the Medicare enrollment and
billing privileges of Petitioner, Amber Maynard, because
Petitioner failed to timely provide CMS’s Center for Program
Integrity (CPI) access to requested documentation for Medicare

beneficiaries. CMS upheld the revocation in a reconsidered
determination, and Petitioner requested a hearing to dispute the
revocation. For the reasons stated herein, I affirm CMS’s
determination revoking Petitioner’s Medicare enrollment and
billing privileges.
I. Background
Petitioner is a physician assistant who was enrolled as a
supplier in the Medicare program. CPI began investigating
Petitioner after she “was identified as ordering a large number
of [durable medical equipment, prosthetics, orthotics, and
supplies (DMEPOS)] for Medicare beneficiaries [with whom]
she had no prior relationship . . . .” CMS Exhibit (Ex.) 4 at 2.
Specifically, CMS was concerned because, from January 2014
to January 2017, Petitioner referred 602 beneficiaries for
DMEPOS items; she lacked a prior relationship with 85 percent
of those beneficiaries. As a result of these referrals, the
Medicare program “paid over $690,000” for DMEPOS supplies
provided to those beneficiaries. CMS Ex. 4 at 2.
Page 2
On January 26, 2017, CPI informed Petitioner that it would be
“reviewing Medicare benefits” for a number of Petitioner’s
patients “[i]n order to ensure claim(s) are/were processed
accurately.” CMS Ex. 3 at 1. CMS provided a list of just 20
patients out of 602 for whom it requested “a copy of . . . [their]
complete medical records which should include, Progress Notes,
Physician Orders/Prescriptions, Verbal Orders, Plans of Care
and Face-to-Face Sheets” dated from January 1, 2015, to the
date of the letter. CMS Ex. 3 at 1. CMS required Petitioner to
provide the requested documents no later than February 28,
2017. CMS Ex. 3 at 3.
CMS served its request on Petitioner via FedEx at 1314 Oak
Street, Melbourne, Florida 32901 (Oak Street address), and sent
an additional copy by facsimile.1 CMS Ex. 3 at 1, 4. Petitioner
had identified the Oak Street address as her correspondence
address dating back to at least 2010. CMS Ex. 9 at 7. An “N.
FOREST” signed for the request on Petitioner’s behalf. CMS

Ex. 3 at 4.
When CMS did not receive the records by March 16, 2017, it
requested that First Coast revoke Petitioner’s Medicare
enrollment and billing privileges. CMS Ex. 4 at 1-2. First
Coast notified Petitioner, by letter dated March 31, 2017, that it
had revoked her Medicare enrollment and billing privileges
pursuant to 42 C.F.R. § 424.535(a)(10) based on her failure to
provide CMS access to requested documentation involving 20
Medicare beneficiaries. First Coast discussed that even though
FedEx had confirmed delivery of the January 26, 2017 records
request at Petitioner’s correspondence address, she did not
provide all of the requested records. CMS Ex. 2 at 1.
Additionally, First Coast informed Petitioner it had established
a one-year re-enrollment bar. CMS Ex. 2 at 2. First Coast sent
the revocation notice to the Oak Street address. CMS Ex. 2 at
1.
Megan Arrington, an authorized representative, timely requested
reconsideration on Petitioner’s behalf, arguing that Petitioner
“[n]ever received any request for medical records,” and
requesting that First Coast “[forward] the [F]ed[E]x signature
page.” CMS Ex. 5 at 1; see CMS Ex. 1 at 1. Ms. Arrington
confirmed that the Oak Street address is Petitioner’s correct
address. CMS Ex. 5 at 1.
CMS’s Provider Enrollment & Oversight Group issued a
reconsidered determination on July 13, 2017, in which it
determined that First Coast properly revoked Petitioner’s
Medicare enrollment and billing privileges pursuant to 42
C.F.R. §§ 424.535(a)(10) and 424.516(f) because Petitioner
“failed to maintain and provide CMS access to the
documentation” CMS requested by the February 28, 2017 due
date. CMS Ex. 1 at 6. CMS explained that revocation was
appropriate pursuant to 42 C.F.R. § 424.535(a)(10), because
Petitioner “failed to comply with the maintenance and CMS’s
access
Page 3
requirements specified in [42 C.F.R.] § 424.516(f).” CMS Ex. 1

at 6. Specifically, the hearing officer noted:
Here, on January 26, 2017, CMS requested medical records for
20 beneficiaries for whom Ms. Maynard ordered DMEPOS.
However, Ms. Maynard failed to provide the requested
documentation or allow CMS access to the documentation by
the due date of February 28, 2017. While Ms. Maynard
submitted medical records for 14 of the 20 requested Medicare
beneficiaries . . . the submission of such records in her
reconsideration request is not wholly responsive to the original
request and is well beyond the due date of the original request
for medical records, February 28, 2017. The provision of these
records now, within the context of a reconsideration request
does not constitute providing CMS access to medical records
upon request as contemplated by 42 C.F.R. § 424.516(f).
CMS Ex. 1 at 5. CMS sent the reconsidered determination to
Petitioner’s Oak Street address. CMS Ex. 1 at 1.
Petitioner timely requested an administrative law judge (ALJ)
hearing on August 14, 2017. I issued an Acknowledgment and
Pre-Hearing Order (Pre-Hearing Order) in which I directed the
parties to submit their pre-hearing exchanges, to include pre-
hearing briefs and supporting exhibits, by specified deadlines.
Pre-Hearing Order, § 4.
Pursuant to my Pre-Hearing Order, CMS submitted a motion for
summary judgment and pre-hearing brief (CMS Br.), along with
nine proposed exhibits (CMS Exs. 1-9). Petitioner submitted
her pre-hearing brief (P. Br.) with one proposed exhibit (P. Ex.
1). In conjunction with her filing of her list of exhibits,
Petitioner, through counsel, filed an objection to CMS Ex. 3,
which is the January 26, 2017 request for documentation.
Petitioner argued the January 26, 2017 letter should be excluded
because it is “new evidence,” in that she “never received the
materials.” Though Petitioner does not specify the legal basis
for her objection, I presume that she may be erroneously
invoking the prohibition on suppliers submitting evidence for
the first time at the ALJ stage of review. 42 C.F.R.
§ 498.56(e); see Pre-hearing Order, § 6. I need not address

Petitioner’s argument because section 498.56(e) is inapplicable
to submissions by CMS.
Further, Petitioner acknowledges that P. Ex. 1 is “new
evidence,” which I am therefore required to exclude absent a
showing of good cause. See 42 C.F.R. § 498.56(e). P. Ex. 1 is
a copy of Petitioner’s October 3, 2017 email request for
information under the Freedom of Information Act (FOIA),
which Petitioner filed after CMS filed its pre-hearing
exchange. I observe that as of the date of Petitioner’s FOIA
request, CMS had
Page 4
already submitted as a proposed exhibit CMS Ex. 3, which is
the document Petitioner requested through her FOIA request
(describing this document as “a multi-page letter dated January
26, 2017 sent to me at above listed address from CMS
requesting medical records from a group of patients including
all of their information which is presumably attached to the
letter.”). See CMS Ex. 3; see also CMS Br. at 2 (describing the
content of CMS Ex. 3).2 I do not admit P. Ex. 1 because it is
not relevant to any issue I must decide; at most, it shows that
Petitioner made a FOIA request. Therefore, I admit CMS Exs.
1-9 into the record.
Neither party has submitted the written direct testimony of any
witnesses; therefore, a hearing for the purpose of
crossexamination is not necessary. See Pre-Hearing Order
§§ 8, 9, and 10. I consider the record in this case to be closed,
and the matter is ready for a decision on the merits.3
II. Issue
The issue is whether CMS had a legitimate basis for revoking
Petitioner’s Medicare enrollment and billing privileges pursuant
to 42 C.F.R. §§ 424.535(a)(10) and 424.516(f) because
Petitioner did not timely provide CMS access to requested
documentation.
III. Jurisdiction
I have jurisdiction to decide this issue. 42 C.F.R.
§§ 498.3(b)(17), 498.5(l)(2).

IV. Findings of Fact, Conclusions of Law, and Analysis4
The Social Security Act authorizes the Secretary of Health and
Human Services (Secretary) to establish regulations governing
the enrollment of providers and suppliers in the Medicare
program. 42 U.S.C. § 1395cc(j)(1)(A). The Secretary
promulgated
Page 5
enrollment regulations in 42 C.F.R. pt. 424, subpt. P. See 42
C.F.R. §§ 424.500-.570. Petitioner is a “supplier” for purposes
of the Medicare program. See 42 U.S.C. § 1395x(d); 42 C.F.R.
§§ 400.202 (definition of supplier), 410.20(b)(1). In order to
participate in the Medicare program, a supplier must meet
certain criteria to enroll and receive billing privileges. 42
C.F.R. §§ 424.505, 424.510. The regulations provide CMS with
the authority to revoke the billing privileges of an enrolled
supplier if CMS determines that the supplier failed to comply
with a provision in 42 C.F.R. § 424.535(a).
CMS may revoke a supplier’s enrollment if the supplier fails to
comply with the documentation or access to documentation
requirements specified in 42 C.F.R. § 424.516(f). 42 C.F.R.
§ 424.535(a)(10). Section 424.516(f) requires suppliers who
order DMEPOS to maintain and, upon request, provide CMS
access to documentation for a period of seven years, to include
“written and electronic documents . . . relating to written orders
and certifications and requests for payment . . . .” 42 C.F.R.
§ 424.516(f)(2)(i)-(ii).
1. CMS sent a request for documentation to the address it had
on file for Petitioner, and Petitioner did not provide the
requested documents within the time period CMS designated for
a response.
CMS notified Petitioner by letter dated January 26, 2017, that it
was reviewing “Medicare benefits” for 20 patients and
requested that Petitioner submit specified documentation no
later than February 28, 2017. CMS Ex. 3 at 1, 3. The requested
documents included “Progress Notes, Physician
Orders/Prescriptions, Verbal Orders, Plans of Care and Face-to-

Face Sheets . . . .” CMS Ex. 3 at 1. CMS sent the request for
documentation to the address that Petitioner listed as her
“Correspondence Address” in her September 2010 Medicare
enrollment application, which was the Oak Street address. CMS
Exs. 3 at 1; 9 at 7. It is undisputed that Petitioner did not
respond to CMS’s request for documentation by February 28,
2017. CMS Exs. 2, 3; CMS Ex. 1 at 4; P. Br. at 1-2 (Petitioner
was “unable to provide documentation to the satisfaction of
CMS.”).
Petitioner argues that she never received the January 26, 2017
request for documentation. She acknowledges that CMS has
offered proof that the request was delivered to the Oak Street
address; that “N. FOREST” accepted and signed for it at 10:35
a.m. on January 30, 2017; and that this person is a “former
employee.” P. Br. at 1 n.1; CMS Ex. 3 at 4. Yet, she maintains
that she “first learned of this request later when she was
informed by CMS that she was in violation of her requirements
to provide medical records when requested by CMS . . . .” P.
Br. at 1.
Petitioner does not offer any evidence, such as her own written
declaration, to support her argument that she never received the
January 26, 2017 request for documentation. See Order, §§ 8-
9. To date, Petitioner herself has not spoken to the
circumstances of this
Page 6
case; rather, she has acted through Ms. Arrington, who
requested reconsideration on her behalf, along with her present
counsel. Petitioner herself has not claimed she did not receive
the request, nor has she explained why she failed to act on the
duplicate copy of the letter that CMS sent to her by facsimile.
See CMS Ex. 3 at 1; P. Br. CMS has offered unrebutted
evidence that “N. Forest,” who Petitioner concedes was an
employee, signed for and received the request for
documentation. CMS Ex. 3 at 4; P. Br. at 1 n.1.
Petitioner cannot escape responsibility for her failure to respond
to CMS’s request for documentation by assigning blame to a

former employee. As a supplier in the Medicare program,
Petitioner is responsible for complying with the requirements of
42 C.F.R. § 424.516(f) and is responsible for the conduct of
employees. See Norpro Orthotics & Prosthetics, Inc., DAB No.
2577 at 6 (2014), quoting Norpro Orthotics & Prosthetics, Inc.,
DAB CR3081 (2014); cf. Louis J. Gaefke, D.P.M., DAB No.
2554 (2013). Petitioner cites no legal authority relieving a
supplier of the obligation to respond to a validly made request
for documentation that an employee undisputedly received. Cf.
Sandra E. Johnson, CRNA, DAB No. 2708 at 15 (2016); Howard
B. Reife, D.P.M., DAB No. 2527 at 7 (2013). In signing her
Medicare enrollment application, Petitioner attested that she
would “abide by the Medicare laws, regulations, and program
instructions,” including the requirement to respond to a properly
made request for documentation. CMS Ex. 9 at 25; see 42
C.F.R. § 424.510(d)(3). The Departmental Appeals Board
(DAB) has rejected an argument similar to Petitioner’s here,
that a former employee’s actions were beyond her control, and
upheld the revocation pursuant to 42 C.F.R. § 424.535(a)(10) of
a supplier who blamed a former employer who closed a business
and took certain records. George M. Young, M.D., DAB No.
2750 at 7 (2016). Petitioner cannot “shift the blame” to her
former employee, Johnson, DAB No. 2708 at 15, and Petitioner
certainly cannot claim that CMS misdirected the request for
documentation or that it was lost in transit.
Moreover, the evidence demonstrates that CMS sent other
correspondence to Petitioner at the same address, which
Petitioner received, to include the March 31, 2017 initial
determination revoking her billing privileges and the July 13,
2017 reconsidered determination upholding the revocation.
CMS Exs. 1-2. In requesting reconsideration, Ms.
Arrington again provided the Oak Street address, fewer than
three months after an employee at that very address purportedly
failed to provide her with a copy of the January 26, 2017
request for documentation. CMS Ex. 5 at 1. If Petitioner was
concerned that she did not receive correspondence sent to that

address, it seems unlikely that she would continue to list that
address. Petitioner does not dispute that she failed to timely
respond to CMS’s request for documentation sent to the Oak
Street address.
2. CMS had a basis to revoke Petitioner’s Medicare enrollment
and billing privileges pursuant to 42 C.F.R. §§ 424.535(a)(10)
and 424.516(f) because Petitioner failed to comply with CPI’s
request for documentation.
Page 7
Pursuant to 42 C.F.R. § 424.535(a)(10), CMS may revoke a
provider’s or supplier’s billing privileges and any
corresponding provider or supplier agreement if:
(i) The provider or supplier did not comply with the
documentation or CMS access requirements specified in
§ 424.516(f) of this subpart.
(ii) A provider or supplier that meets the revocation criteria
specified in paragraph (a)(10)(i) of this section, is subject to
revocation for a period of not more than 1 year for each act of
noncompliance.
Section 424.516(f) provides additional provider and supplier
requirements for enrolling and maintaining active enrollment
status in the Medicare program. Specifically, the regulation
provides:
(f) Maintaining and providing access to documentation.
* * * *
(2)(i) A[n] . . . eligible professional who orders items of
DMEPOS . . . is required to—
(A) Maintain documentation (as described in paragraph
(f)(2)(ii) of this section) for 7 years from the date of the
service; and
(B) Upon request of CMS or a Medicare contractor, to provide
access to that documentation (as described in paragraph
(f)(2)(ii) of this section).
The regulation further specifies that the ordering official must
maintain certain kinds of documents, including “written and
electronic documents . . . relating to written orders or

certifications or requests for payments for items of DMEPOS . .
. .” 42 C.F.R. § 424.516(f)(2)(ii).
Petitioner received a request for documentation on January 26,
2017. The request gave Petitioner until February 28, 2017, to
submit documentation for the identified patients. CMS Ex. 3 at
1-4. Petitioner did not submit the requested documents within
CMS’s deadline. Therefore, revocation is appropriate pursuant
to 42 C.F.R. § 424.535(a)(10).
Petitioner concedes that she did not furnish the requested
documentation in a timely manner, because, she argues, she
could not do so until she received “subsequent correspondence,”
presumably referring to the revocation notice on March 31,
2017, well after the February 28, 2017 deadline. See P. Br. at 2
(“Petitioner did receive some of the
Page 8
information from the [January 26, 2017 request for
documentation] letter in a subsequent correspondence . . . .”);
CMS Exs. 5 at 1 (request for reconsideration indicating that
Petitioner had “look[ed] over the enclosed request,” but that it
“doesn’t state what records they need.”); 7 at 1-3 (annotated list
of the patients for whom CMS requested documentation); 1 at 2-
4 (listing the patients for whom Petitioner submitted records,
but observing that Petitioner indicated she did not have records
for all 20 patients on the identified dates of service). Even
when she believed she had a second opportunity to submit the
requested documentation before the hearing officer at
reconsideration, Petitioner submitted records for only 14 of the
20 individuals whose records CMS requested, as well as an
annotated version of Attachment A.5 CMS Exs. 1 at 2-3; 7 at 1-
3; 2 at 1. When Petitioner indisputably had the full list of
patients for whom CMS sought patient records, she still did not
provide the complete requested documentation to CMS.
I conclude that CMS had a basis to revoke Petitioner’s Medicare
enrollment and billing privileges pursuant to 42 C.F.R.
§§ 424.535(a)(10) and 424.516(f) because Petitioner failed to
provide the requested documentation. Pursuant to 42 C.F.R.

§ 424.516(f), a supplier, such as Petitioner, is required to
provide documents “upon request.” Petitioner failed to provide
the documents upon CMS’s request. P. Br. at 2; see CMS Ex. 1
at 2. While Petitioner eventually provided some of the
requested documents, she still did not submit the complete
documents and indicated that she did not have records for
several patients. See CMS Ex. 7. Therefore, CMS and First
Coast had a legitimate basis to revoke Petitioner’s Medicare
enrollment and billing privileges pursuant to 42 C.F.R.
§ 424.535(a)(10). See Letantia Bussell, M.D., DAB No. 2196
at 13 (2008).
As previously discussed, Petitioner’s primary argument in both
her request for hearing and pre-hearing brief is that she was
unable to comply with CMS’s request in a timely manner
because she never personally received the January 26, 2017
request for documentation. Request for Hearing at 1; P. Br. at
1-2. Petitioner cites no authority relieving a Medicare supplier
of the obligation to respond to a request for documentation
properly submitted to the individual at her address of record,
and I am aware of none. To the contrary, the DAB has
repeatedly held that a supplier is liable for its staff’s acts or
Page 9
omissions. See, e.g., Sandra E. Johnson, CRNA, DAB No.
2708 at 15; Mark Koch, D.O., DAB No. 2610 (2014); Norpro
Orthotics & Prosthetics, Inc., DAB No. 2577; Louis J. Gaefke,
D.P.M., DAB No. 2554; Howard B. Reife, D.P.M., DAB No.
2527.
Petitioner also argues that the application of 42 C.F.R.
§ 424.535(a)(10) in the instant case runs contrary to “[t]he
intent behind this regulation.” P. Br. at 3. She argues that the
regulation is not intended to punish “merely mistakes,” and that
the “factors in the legislative intent [have] been bypassed or
ignored by CMS . . . .” P. Br. at 4. In support of her
arguments, Petitioner identifies a 2006 “Final Rule Summary,”
though she does not offer a citation to it. P. Br. at 4.6 In fact,
42 C.F.R. § 424.535(a)(10) did not exist in 2006. In a 2008

Notice of Proposed Rulemaking, the Secretary proposed to “add
a new § 424.516(f) that would” require physician and non-
physician practitioners who ordered or referred DMEPOS for
Medicare beneficiaries to “maintain written ordering and
referring documentation for 10 years from the date of service.”
73 Fed. Reg. 38,501, 38,539 (July 7, 2008). CMS explained
that it was “essential that . . . suppliers maintain documentation
regarding the specific service ordered or referred to a Medicare
beneficiary by a physician or [non-physician practitioner] . . .
(which includes but is not limited to nurse practitioners and
physician assistants),” such as Petitioner. Id. In light of
CMS’s belief that such documentation requirements were
“essential,” CMS further proposed to “add § 424.535(a)(10) that
would state that failure to comply with the documentation
requirements specified in § 424.516(f) as a reason for
revocation.” Id. (emphasis added). In the Final Rule, CMS
elaborated on the rationale for this new documentation
requirement and revocation basis. It explained that “upon
review, CMS or our contractor may validate the
ordering/referring documentation maintained by the billing
provider or supplier with the individual practitioner who
ordered/referred the beneficiary for these services.” 73 Fed.
Reg. 69,725, 69,781 (Nov. 19, 2008). CMS thus, to promote
program integrity, created the requirement that an ordering
practitioner (such as Petitioner) maintain the same information
that a supplier of DMEPOS maintains. When a practitioner fails
to provide that information, she impedes CMS’s program
integrity efforts, subjecting her to revocation.
Page 10
In the “Affordable Care Act,” Congress further promoted
program integrity measures and specifically authorized the
Secretary to:
revoke enrollment, for a period of not more than one year for
each act, for a physician or supplier under section 1866(j) of the
[Social Security] Act if such physician or supplier fails to
maintain and, upon request of the Secretary, provide access to

documentation relating to written orders or requests for
payment for [DMEPOS], certifications for home health services,
or referrals for other items or services written or ordered by
such physician or supplier . . . .
Patient Protection and Affordable Care Act, Pub. L. No. 111-
148, § 6406, 124 Stat. 769 (2010). Following enactment, the
Secretary expanded the documentation requirements in 42
C.F.R. § 424.516(f) “to include requirements for documentation
and access to documentation related to orders and referrals for
covered home health, laboratory, imaging and specialist
services.” 75 Fed. Reg. 24,437, 24,445 (May 5, 2010). The
Secretary also revised 42 C.F.R. § 424.535(a)(10), consistent
with section 6406 of the Affordable Care Act, to authorize CMS
to “revoke enrollment, for a period of not more than one year
for each act, for a provider or a supplier under section 1866(j)
of the Act if such provider or supplier fails to meet the
requirements of § 424.516(f).” Id. at 24,446. CMS’s actions are
entirely consistent with the Affordable Care Act and its
implementing regulations, and Petitioner’s argument is without
merit.
Moreover, my review is limited to whether CMS had a
legitimate basis for its action, which it did. See, e.g., Decatur
Health Imaging, LLC, DAB No. 2805 at 8-9 (2017) (“The
[DAB] has held that it does not review CMS’s exercise of
discretion to take other actions the regulations authorize
relating to the enrollment of suppliers and providers” (internal
citations omitted).); Letantia Bussell, M.D., DAB No. 2196 at
13 (review of CMS determination by ALJ addresses “whether
CMS had the authority to revoke . . .”).
V. Conclusion
For the reasons explained above, I affirm the revocation of
Petitioner’s Medicare enrollment and billing privileges.
/s/
Leslie C. RogallAdministrative Law Judge
Footnotes
· 1.↩ CMS did not indicate to what facsimile number it sent the

request; however, Petitioner did have a facsimile number on
file. See CMS Ex. 3 at 1; CMS Ex. 9 at 7.
· 2.↩ In page 2 of its brief, CMS describes CMS Ex. 3 as
follows: “On January 26, 2017, CMS requested that Petitioner
provide by February 28, 2017, the complete medical records for
20 beneficiaries, including progress notes, face-to-face sheets,
physician orders and prescriptions, verbal orders, and plans of
care for dates of services from January 1, 2015 to January 26,
2017. The request was sent by fax and by express mail to 1314
Oak St., Melbourne, Florida 32901-3111, the correspondence
address Petitioner has maintained since her enrollment in 2010.
Delivery . . . is evidenced by an express mail receipt bearing the
signature of ‘N. Forest.’”
· 3.↩ CMS argues that summary disposition is appropriate. It is
unnecessary to address the issue of summary disposition, as
neither party has requested an inperson hearing.
· 4.↩ My findings of fact and conclusions of law are set forth in
italics and bold font.
· 5.↩ The annotated version of Attachment A that CMS offered
into evidence indicates Petitioner was submitting records for 15
of 20 requested patients, whereas the hearing officer at
reconsideration acknowledged receiving records for only 14 of
20 requested patients. Compare CMS Ex. 7 with CMS Ex. 1 at
3-4. Petitioner does not address in her pre-hearing brief for
precisely how many patients she provided documentation with
her request for reconsideration. Regardless of the discrepancy,
it is undisputed that Petitioner did not submit all requested
records with her request for reconsideration, despite having the
full list of 20 patients from the January 26, 2017 documentation
request, and notwithstanding her argument that she “remains
willing and able to provide the documentation to CMS . . . .” P.
Br. at 4.
· 6.↩ Petitioner appears to be quoting 71 Fed. Reg. 20,753,
20,761 (Apr. 21, 2006). Though this passage did not reference
the specific documentation provisions at issue in this case
(which did not yet exist), Petitioner curiously omits discussion

of the documentation requests that CMS explained it would
make in order to verify compliance with enrollment
requirements. CMS stated, “We may request additional
documentation from the . . . supplier to determine compliance
if adverse information is received or otherwise found
concerning the provider or supplier. If requested documentation
we required under this or other statutory or regulatory authority
is not submitted within 30 calendar days of our request, we
would immediately begin revocation proceedings.” Id.
(emphasis added). As far back as 2006, CMS strictly required
suppliers to submit documentation upon request or face
revocation “immediately.”
1
Stanley v. Illinois
405 U.S. 645 (1972)
Annotate this Case
· Syllabus
· Case
U.S. Supreme Court
Stanley v. Illinois, 405 U.S. 645 (1972)
Stanley v. Illinois
No. 70-5014
Argued October 19, 1971
Decided April 3, 1972
405 U.S. 645
CERTIORARI TO THE SUPREME COURT OF ILLINOIS
Syllabus
Petitioner, an unwed father whose children, on the mother's
death, were declared state wards and placed in guardianship,
attacked the Illinois statutory scheme as violative of equal
protection. Under that scheme, the children of unmarried

fathers, upon the death of the mother, are declared dependents
without any hearing on parental fitness and without proof of
neglect, though such hearing and proof are required before the
State assumes custody of children of married or divorced
parents and unmarried mothers. The Illinois Supreme Court,
holding that petitioner could properly be separated from his
children upon mere proof that he and the dead mother had not
been married and that petitioner's fitness as a father was
irrelevant, rejected petitioner's claim.
Held:
1. Under the Due Process Clause of the Fourteenth Amendment
petitioner was entitled to a hearing on his fitness as a parent
before his children were taken from him. Pp. 405 U. S. 647-658.
(a) The fact that petitioner can apply for adoption or for custody
and control of his children does not bar his attack on the
dependency proceeding. Pp. 405 U. S. 647-649.
(b) The State cannot, consistently with due process
requirements, merely presume that unmarried fathers in general,
and petitioner, in particular, are unsuitable and neglectful
parents. Parental unfitness must be established on the basis of
individualized proof. See Bell v. Burson,402 U. S. 535. Pp. 405
U. S. 649-658.
2. The denial to unwed fathers of the hearing on fitness
accorded to all other parents whose custody of their children is
challenged by the State constitutes a denial of equal protection
of the laws. P. 405 U. S. 658.
45 Ill.2d 132, 256 N.E.2d 814, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, and MARSHALL, JJ., joined, and in
Parts I and II of which DOUGLAS, J., joined. BURGER, C.J.,
filed a dissenting opinion, in which BLACKMUN, J., joined,
post, p. 405 U. S. 659. POWELL and REHNQUIST, JJ., took no
part in the consideration or decision of the case.
MR. JUSTICE WHITE delivered the opinion of the Court.
Joan Stanley lived with Peter Stanley intermittently for 18
years, during which time they had three children. [Footnote 1]

When Joan Stanley died, Peter Stanley lost not only her but also
his children. Under Illinois law, the children of unwed fathers
become wards of the State upon the death of the mother.
Accordingly, upon Joan Stanley's death, in a dependency
proceeding instituted by the State of Illinois, Stanley's children
[Footnote 2] were declared wards of the State and placed with
court-appointed guardians. Stanley appealed, claiming that he
had never been shown to be an unfit parent and that, since
married fathers and unwed mothers could not be deprived of
their children without such a showing, he had been deprived of
the equal protection of the laws guaranteed him by the
Fourteenth Amendment. The Illinois Supreme Court accepted
the fact that Stanley's own unfitness had not been established,
but rejected the equal protection claim, holding that Stanley
could properly be separated from his children upon proof of the
single fact that he and the dead mother
Page 405 U. S. 647
had not been married. Stanley's actual fitness as a father was
irrelevant. In re Stanley, 45 Ill.2d 132, 256 N.E.2d 814 (1970).
….
We must therefore examine the question that Illinois would
have us avoid: is a presumption that distinguishes and burdens
all unwed fathers constitutionally repugnant? We conclude that,
as a matter of due process of law, Stanley was entitled to a
hearing on his fitness as a parent before his children were taken
from him, and that, by denying him a hearing and extending it
to all other parents whose custody of their children is
challenged, the State denied Stanley the equal protection of the
laws guaranteed by the Fourteenth Amendment.
II
Illinois has two principal methods of removing nondelinquent
children from the homes of their parents. In a dependency
proceeding, it may demonstrate that the children are wards of
the State because they have no surviving parent or guardian.
Ill.Rev.Stat., c. 37, §§ 702-1, 702-5. In a neglect proceeding, it
may show that children should be wards of the State because the

present parent(s) or guardian does not provide suitable care.
Ill.Rev.Stat., c. 37, §§ 702-1, 702.
The State's right -- indeed, duty -- to protect minor children
through a judicial determination of their interests in a neglect
proceeding is not challenged here. Rather, we are faced with a
dependency statute that empowers state officials to circumvent
neglect proceedings
Page 405 U. S. 650
on the theory that an unwed father is not a "parent" whose
existing relationship with his children must be considered.
[Footnote 4] "Parents," says the State,
"means the father and mother of a legitimate child, or the
survivor of them, or the natural mother of an illegitimate child,
and includes any adoptive parent,"
Ill.Rev.Stat., c. 37, § 701-14, but the term does not include
unwed fathers.
Under Illinois law, therefore, while the children of all parents
can be taken from them in neglect proceedings, that is only after
notice, hearing, and proof of such unfitness as a parent as
amounts to neglect, an unwed father is uniquely subject to the
more simplistic dependency proceeding. By use of this
proceeding, the State, on showing that the father was not
married to the mother, need not prove unfitness in fact, because
it is presumed at law. Thus, the unwed father's claim of parental
qualification is avoided as "irrelevant."
…..
These authorities make it clear that, at the least, Stanley's
interest in retaining custody of his children is cognizable and
substantial.
For its part, the State has made its interest quite plain: Illinois
has declared that the aim of the Juvenile Court Act is to protect
"the moral, emotional, mental, and physical welfare of the
minor and the best interests of the community" and to
"strengthen the minor's family ties whenever possible, removing
him from the custody of his parents only when his welfare or
safety or the protection of the public cannot be adequately

safeguarded without removal. . . ."
Ill.Rev.Stat., c. 37, § 701-2. These are legitimate interests, well
within the power of the State to implement. We do not question
the assertion that neglectful parents may be separated from their
children.
But we are here not asked to evaluate the legitimacy of the state
ends -- rather, to determine whether the means used to achieve
these ends are constitutionally defensible. What is the state
interest in separating children from fathers without a hearing
designed to determine whether the father is unfit in a particular
disputed case? We observe that the State registers no gain
towards its declared goals when it separates children from the
custody of fit parents. Indeed, if Stanley is a
Page 405 U. S. 653
fit father, the State spites its own articulated goals when it
needlessly separates him from his family.
In Bell v. Burson,402 U. S. 535 (1971), we found a scheme
repugnant to the Due Process Clause because it deprived a
driver of his license without reference to the very factor (there,
fault in driving, here, fitness as a parent) that the State itself
deemed fundamental to its statutory scheme. Illinois would
avoid the self-contradiction that rendered the Georgia license
suspension system invalid by arguing that Stanley and all other
unmarried fathers can reasonably be presumed to be unqualified
to raise their children. [Footnote 5]
Page 405 U. S. 654
It may be, as the State insists, that most unmarried fathers are
unsuitable and neglectful parents. [Footnote 6] It may also be
that Stanley is such a parent, and that his children should be
placed in other hands. But all unmarried fathers are not in this
category; some are wholly suited to have custody of their
children. [Footnote 7] This much the State
Page 405 U. S. 655
readily concedes, and nothing in this record indicates that
Stanley is or has been a neglectful father who has not cared for
his children. Given the opportunity to make his case, Stanley

may have been seen to be deserving of custody of his offspring.
Had this been so, the State's statutory policy would have been
furthered by leaving custody in him.
Carrington v. Rash,380 U. S. 89 (1965), dealt with a similar
situation. There, we recognized that Texas had a powerful
interest in restricting its electorate to bona fide residents. It was
not disputed that most servicemen stationed in Texas had no
intention of remaining in the State; most, therefore, could be
deprived of a vote in state affairs. But we refused to tolerate a
blanket exclusion depriving all servicemen of the vote, when
some servicemen clearly were bona fide residents and when
"more precise tests," id. at 380 U. S. 95, were available to
distinguish members of this latter group. "By forbidding a
soldier ever to controvert the presumption of nonresidence," id.
at 380 U. S. 96, the State, we said, unjustifiably effected a
substantial deprivation. It viewed people one-dimensionally (as
servicemen), when a finer perception could readily have been
achieved by assessing a serviceman's claim to residency on an
individualized basis.
"We recognize that special problems may be involved in
determining whether servicemen have actually acquired a new
domicile in a State for franchise purposes. We emphasize that
Texas is free to take reasonable and adequate steps, as have
other States, to see that all applicants for the vote actually
fulfill the requirements of bona fide residence. But [the
challenged] provision goes beyond such rules.
Page 405 U. S. 656
"
"[T]he presumption here created is . . . definitely conclusive --
incapable of being overcome by proof of the most positive
character."
Id. at 380 U. S. 96. "All servicemen not residents of Texas
before induction," we concluded, "come within the provision's
sweep. Not one of them can ever vote in Texas, no matter" what
their individual qualifications. Ibid. We found such a situation
repugnant to the Equal Protection Clause.

LIBERTY UNIVERSITY SCHOOL OF DIVINITYExegetical Pape.docx

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