Elements of an administrative hearing

1. Administrative LawAdministrative Law
Elements of anElements of an
Administrative HearingAdministrative Hearing

2. IntroductionIntroduction
• Adjudication is a quasi-judicial processAdjudication is a quasi-judicial process
and is subject to the due processand is subject to the due process
requirements of the 5requirements of the 5thth
and 14and 14thth
Amendments.Amendments.
• LibertyLiberty
• Property rights (vs. privileges)Property rights (vs. privileges)
• Liberty and property have been broadly construedLiberty and property have been broadly construed
by the courts.by the courts.
• Government jobsGovernment jobs
• LicensesLicenses
• BenefitsBenefits
• GrantsGrants
• Post-termination hearingsPost-termination hearings

3. Rulemaking, Adjudication, andRulemaking, Adjudication, and
Due ProcessDue Process
 RulemakingRulemaking
 If it is a rulemaking action, then under Londoner and Bi-If it is a rulemaking action, then under Londoner and Bi-
Metallic, due process is not required.Metallic, due process is not required.
 If an agency takes an action that can have an effect on thoseIf an agency takes an action that can have an effect on those
exceptionally affected,exceptionally affected, then courts may require agencies tothen courts may require agencies to
follow due process requirements.follow due process requirements.
 The guiding statute of the agency, however, may requireThe guiding statute of the agency, however, may require
that rules be made “on the record”that rules be made “on the record”
 In this instance, the agency must follow the formal adjudicationIn this instance, the agency must follow the formal adjudication
requirements of the APA.requirements of the APA.
 But in some instances, this language need not even appear forBut in some instances, this language need not even appear for
courts to require formal hearings.courts to require formal hearings.
 Courts can consult the congressional record to make a determination.Courts can consult the congressional record to make a determination.
 Even when the APA does not require “on the record”Even when the APA does not require “on the record”
rulemaking, § 553 of the APA does apply (notice andrulemaking, § 553 of the APA does apply (notice and
comment rulemaking).comment rulemaking).

4. Rulemaking, Adjudication, andRulemaking, Adjudication, and
Due ProcessDue Process
 AdjudicationAdjudication
 Guiding statutes of agencies often specify thatGuiding statutes of agencies often specify that
agencies conduct formal adjudication (i.e., a hearingagencies conduct formal adjudication (i.e., a hearing
“on the record”).“on the record”).
 The requirements for formal adjudication are outlined in §The requirements for formal adjudication are outlined in §
554 – 558 of the Administrative Procedure Act.554 – 558 of the Administrative Procedure Act.
 The APA defines the elements of a hearing when it is required.The APA defines the elements of a hearing when it is required.
 The APA does not create a right to a hearing; it onlyThe APA does not create a right to a hearing; it only
defines procedural rights when a formal hearing isdefines procedural rights when a formal hearing is
required by statute.required by statute.
 If the agency is not required to have a hearing on theIf the agency is not required to have a hearing on the
record, then the APA does not apply.record, then the APA does not apply.
 Rather, the vague due process requirements established byRather, the vague due process requirements established by
the courts would apply.the courts would apply.

5. The Adjudication ProcessThe Adjudication Process
 Adjudication processAdjudication process – process to– process to
determine if a regulated party or partiesdetermine if a regulated party or parties
violated the law.violated the law.
 Different agencies use different proceduresDifferent agencies use different procedures
 All must satisfy due process requirements.All must satisfy due process requirements.
 Two ways in which the adjudicatory process can start:Two ways in which the adjudicatory process can start:
 Based on agencies own inspections (EPA, NRC)Based on agencies own inspections (EPA, NRC)
 Based on a complaint from the public (NLRB)Based on a complaint from the public (NLRB)

6. The Adjudication ProcessThe Adjudication Process
 Notice requirementNotice requirement – legal notification– legal notification
essential to be given to interested partiesessential to be given to interested parties
before administrative or judicial action takesbefore administrative or judicial action takes
place. (section 554 of the APA)place. (section 554 of the APA)
• A basic part of due process:A basic part of due process:
• Establish the time, place, and nature of the hearing toEstablish the time, place, and nature of the hearing to
be held.be held.
• What law did you violateWhat law did you violate
• Date of the hearingDate of the hearing
• Proposed penaltyProposed penalty
 Equivalent: being served/indictmentEquivalent: being served/indictment
• You are formally charged with the crimeYou are formally charged with the crime
• Here you are formally served the complaintHere you are formally served the complaint

7. The Adjudication ProcessThe Adjudication Process
 Filing an AnswerFiling an Answer
 Must have a clear admittance or denial to theMust have a clear admittance or denial to the
allegations in the complaint.allegations in the complaint.
 Opportunity to request a hearing.Opportunity to request a hearing.
 Raise any affirmative defenses against theRaise any affirmative defenses against the
allegations.allegations.
 Most do not go beyond this stage as the partyMost do not go beyond this stage as the party
will admit to the charges in the complaint.will admit to the charges in the complaint.
 If it is challenged then it goes to the nextIf it is challenged then it goes to the next
stage…stage…

8. The Adjudication ProcessThe Adjudication Process
 Pre-Hearing ConferencePre-Hearing Conference
 Section 556 of the APA requires that the presiding officerSection 556 of the APA requires that the presiding officer
hold a pre-hearing conference for the purpose of:hold a pre-hearing conference for the purpose of:
 Attempted settlementAttempted settlement
 Simplification of the issues (agreed upon facts)Simplification of the issues (agreed upon facts)
 Administrative HearingAdministrative Hearing
 Legal Equivalent:Legal Equivalent:
 Non-jury civil trialNon-jury civil trial
 If the charge by the agency is contested and pre-hearingIf the charge by the agency is contested and pre-hearing
settlements fail, then there is an administrative hearing.settlements fail, then there is an administrative hearing.
 Many agencies have their own “courts” and judges.Many agencies have their own “courts” and judges.
 Administrative law judge (ALJ)Administrative law judge (ALJ) – officers appointed to hear– officers appointed to hear
and determine controversies before administrativeand determine controversies before administrative
agencies of government.agencies of government.

9. The Adjudication ProcessThe Adjudication Process
• Pre-Hearing ConferencePre-Hearing Conference
 Section 556 of the APA requires that the presiding officerSection 556 of the APA requires that the presiding officer
hold a pre-hearing conference for the purpose of:hold a pre-hearing conference for the purpose of:
• Attempted settlementAttempted settlement
• Simplification of the issues (agreed upon facts)Simplification of the issues (agreed upon facts)
1.1. Administrative HearingAdministrative Hearing
 Legal Equivalent:Legal Equivalent:
• Non-jury civil trialNon-jury civil trial
 If the charge by the agency is contested and pre-hearingIf the charge by the agency is contested and pre-hearing
settlements fail, then there is an administrative hearing.settlements fail, then there is an administrative hearing.
 Many agencies have their own “courts” and judges.Many agencies have their own “courts” and judges.
 Administrative law judge (ALJ)Administrative law judge (ALJ) – officers appointed to– officers appointed to
hear and determine controversies before administrativehear and determine controversies before administrative
agencies of government.agencies of government.

10. Administrative Law Judge Roy L. Pearson

11. Administrative Law Judges (ALJ)Administrative Law Judges (ALJ)
Agency Number of ALJS
Department of Agriculture 3
Department of Justice 4
Department of Labor 44
Department of Energy 15
Department of Education 1
Department of Health and Human Services 70
Department of Homeland Security 7
Department of Housing and Urban Development 2
Department of the Interior 11
Department of Transportation 2
Department of the Treasury 1
Environmental Protection Agency 3
Federal Communications Commission 1
Federal Trade Commission 1
National Labor Relations Board 39
Securities and Exchange Commission 3
Social Security Administration 1448
Federal Labor Relations Authority 3
Commodities Futures Trading Commission 2
Federal Maritime Commission 2
National Transportation Safety Board 4
U.S. International Trade Commission 6
Occupational Safety and Health Review Commission 12
Federal Mine Safety and Health Review Commission 19
Total 1703

12. Administrative Law JudgesAdministrative Law Judges
(ALJ)(ALJ)
• Characteristics:Characteristics:
• IndependentIndependent
• Pay not determined by the agency.Pay not determined by the agency.
• Permanent employee – cannot easily be removedPermanent employee – cannot easily be removed
• Must have a hearing before the MSPB in order to be removed. (§7521)Must have a hearing before the MSPB in order to be removed. (§7521)
• Must not have a financial interest in the case.Must not have a financial interest in the case.
• Merit employee hired through OPMMerit employee hired through OPM
• Lifetime appointmentLifetime appointment
• Role of the ALJ:Role of the ALJ:
• ALJ can only decide based on the evidenceALJ can only decide based on the evidence
• Administer oaths and affirmationsAdminister oaths and affirmations
• Issues subpoenas (call witnesses to testify)Issues subpoenas (call witnesses to testify)
• Determines the admissibility of evidenceDetermines the admissibility of evidence
• Make findings of factMake findings of fact
• Develop a record of evidenceDevelop a record of evidence

13. Administrative Law Judges and theAdministrative Law Judges and the
Attitudinal ModelAttitudinal Model
Figure 1: Partisanship and ALJ Voting 1991 - 2006
0%
10%
20%
30%
40%
50%
60%
Republican ALJ Democratic ALJ Independent ALJ
Percentage
Pct Pro Business Pct Split Pct Pro Labor

14. Administrative CourtsAdministrative Courts
• Courts just like real courtsCourts just like real courts
• Adversarial legal styleAdversarial legal style
• Burden of proof:Burden of proof:
• Preponderance of evidence (civil suits)Preponderance of evidence (civil suits)
• Statute may allow for higher burden (clear and convincing evidence)Statute may allow for higher burden (clear and convincing evidence)
• Not beyond a reasonable doubt (criminal)Not beyond a reasonable doubt (criminal)
• If there was criminal intent, the case usually does not stay withinIf there was criminal intent, the case usually does not stay within
the agency, instead it moves to the Department of Justice.the agency, instead it moves to the Department of Justice.
• The Right to CounselThe Right to Counsel
• Section 555 of the APA provides that “[a] person compelled toSection 555 of the APA provides that “[a] person compelled to
appear in person before an agency or representative thereof isappear in person before an agency or representative thereof is
entitled to be accompanied, represented, and advised by counsel.”entitled to be accompanied, represented, and advised by counsel.”
• Only applies to adjudication subject to APAOnly applies to adjudication subject to APA
• Does not apply to investigatory proceduresDoes not apply to investigatory procedures
• Government does not have to provide counselGovernment does not have to provide counsel
• Equal Access to Justice Act (Section 504 of the APA)Equal Access to Justice Act (Section 504 of the APA)
• A prevailing party can seek to have the government pay counsel fees andA prevailing party can seek to have the government pay counsel fees and
expenses if the government’s position was not “substantially justified.”expenses if the government’s position was not “substantially justified.”

15. The Adjudication ProcessThe Adjudication Process
 Initial DecisionInitial Decision
 This is a determination of whether the charged party isThis is a determination of whether the charged party is
liable.liable.
 Results are given in a written opinion:Results are given in a written opinion:
 Findings of factFindings of fact
 Conclusions of lawConclusions of law
 OrderOrder
 The penalties, if any, associated with the violationThe penalties, if any, associated with the violation
 Decision may be appealed to the political appointeesDecision may be appealed to the political appointees
(board members or commissioners)(board members or commissioners)
 If this occurs it is not a retrial, but an examination of theIf this occurs it is not a retrial, but an examination of the
record of evidence developed by the ALJrecord of evidence developed by the ALJ
 ALJ decisions are seldom overturnedALJ decisions are seldom overturned
 This adds legitimacy to the initial decision.This adds legitimacy to the initial decision.

16. The Adjudication ProcessThe Adjudication Process
 Final OrderFinal Order
 When appealed to the political appointees, theseWhen appealed to the political appointees, these
members may either agree or disagree with the initialmembers may either agree or disagree with the initial
decision.decision.
 If they uphold the decision, the decision thenIf they uphold the decision, the decision then
becomes precedentbecomes precedent
 So the challenger must decide if they want toSo the challenger must decide if they want to
challenge or not because they run the risk that if theychallenge or not because they run the risk that if they
lose the initial decision could become agencylose the initial decision could become agency
precedent.precedent.
 Appointee decisions can be appealed to federalAppointee decisions can be appealed to federal
courtscourts
 Exhaust all administrative remediesExhaust all administrative remedies
 Few decisions ever reach the appointeesFew decisions ever reach the appointees

17. Appealing Cases to the Federal CourtsAppealing Cases to the Federal Courts
The United States Supreme Court
United States Courts of Appeals
United States District Courts
Board Members of the NLRB
Administrative Court (ALJ)
NLRB Regional Office (51 Total)
Question of Law
Question of Fact
= Federal Courts
= National Labor
Relations Board

18. Marathon Oil Company v.
Environmental Protection
Agency, 564 F.2d 1253, (1977)

19. Walters v. National Association of
Radiation Survivors, 475 U.S.
305 (1985)

20. A Determination on the Record andA Determination on the Record and
Statement of ReasonsStatement of Reasons
 These fall under #’s 8 and 9 under the Goldberg reasoning.
 A determination on the record of the hearing
 A statement of reasons for the determination and an indication of the evidence relied
on
 Rulemaking under § 553 of the APA does not make such requirements.
 Formal adjudication does have such a requirement however.
 It is not enough to simply allow for appearance, presentation of evidence, and cross-
examination of witnesses.
 The agency must demonstrate that it has made the decision on the basis of the
evidence presented in the case.
 Substantial evidence test (reasonableness test)
 Not beyond a reasonable doubt
 Not a preponderance of the evidence
 Administrative Law Judges and Agency Members
 § 557(b) of the APA allows agencies to rely on administrative law judges to conduct
hearings and making findings, but it does not require it.
 Agencies can also rely upon the members to perform this function.
 In other instances, as we demonstrated, the members can review the ALJs decision.
 Most rely on the ALJ first.

21. Ex ParteEx Parte CommunicationsCommunications
 The APA prevents all off the record ex parte communications
in formal hearings.
 APA Definition:
 Oral or written communication not on the public record with respect
which reasonable prior notice to all parties is not given, but it shall not
include requests for status reports on any matter or proceeding covered
by this subchapter.
 § 557:
 Forbids, “an interested person outside the agency” from communicating
off-the-record with any agency official “who is or may be reasonably
expected to be involved in the decisional process of the proceedings.”
 ALJ cannot communicate with the members about the case.
 Members cannot communicate with the ALJ about the case.

22. Mazza v. Cavicchia, 15
N.J. 498 (1954)

23. Gibson v. Berryhill, 411
U.S. 564 (1973)

24. Cinderella Career Finishing Schools,
Inc. v. Federal Trade Commission,
425 F. 2D 583 (D.C.) (1970)

25. Ventura v. Shalala, 55 F.
3D 900 (3rd
Circuit) (1995)