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Hearings process:

- Notice

- Hearing officers

Discovery

Evidence

Decision standards

- Appeal process

480, Henkels, Section III: "Adjudication"

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

480, Henkels, Section III: "Adjudication"

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

480, Henkels, Section III: "Adjudication"

Essential Elements to Administrative Hearings

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

480, Henkels, Section III: "Adjudication"

Essential Elements to Administrative Hearings

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.

480, Henkels, Section III: "Adjudication"

Essential Elements to Administrative Hearings

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

480, Henkels, Section III: "Adjudication"

Essential Elements to Administrative Hearings

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

480, Henkels, Section III: "Adjudication"

Essential Elements to Administrative Hearings

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.

480, Henkels, Section III: "Adjudication"

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

480, Henkels, Section III: "Adjudication"

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

480, Henkels, Section III: "Adjudication"

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

480, Henkels, Section III: "Adjudication"

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

480, Henkels, Section III: "Adjudication"

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

480, Henkels, Section III: "Adjudication"

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

480, Henkels, Section III: "Adjudication"

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

480, Henkels, Section III: "Adjudication"

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.

480, Henkels, Section III: "Adjudication"

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

SECTION III - ADMINISTRATIVE ADJUDICATION

480, Henkels, Section III: "Adjudication"

SECTION III - ADMINISTRATIVE ADJUDICATION

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

480, Henkels, Section III: "Adjudication"

SECTION III - ADMINISTRATIVE ADJUDICATION

Oregon State process, continued

Standardized heading/evidence rules from DOJ

-Agencies fund operations by billing

- Movement towards a judicial model?

480, Henkels, Section III: "Adjudication"

Federal Court limitations on due process rights:

- investigations: Withrow v. Larkin (1973)

SECTION III - ADMINISTRATIVE ADJUDICATION