Chapter 3 Introduction to Adjudications Part 2

APA Provisions - Formal Adjudications Formal (APA) Adjudications under the US APA US - 554, et seq.

Formal (APA) v. Informal (Non-APA) Adjudications What is the language in 554 that triggers a formal adjudication? "on the record after opportunity for an agency hearing“ What are the subsequent provisions this triggers? 556, 557 Why do we call informal adjudications non-APA adjudications?

Formal Adjudications in the Real World Formal adjudications, triggered by 554 and conducted under 556 and 557, look like trials. Most are like simple trials. Since they can have multiple parties with the right to present evidence and cross examine, they can be very long and complex. Not as bad as formal rulemaking, as discussed in Chapter 5.

Practice Issues The book spends a lot of time on examples of arguments for and against the court ordering a formal adjudication. You do not need this level of detail for this course As with formal rulemaking, the courts are reticent to order formal rulemaking unless the statute is clear. If the statute is ambiguous, most circuits defer to the agency – Chevron deference discussed later. A few do not defer, reading the law themselves. In practice, if the issue has not been settled for your hearing type, you have to argue the issue to the court based on the circuit’s precedent. Louisiana judges and lawyers think adjudications are trials, despite our APA.

Informal (Non-APA) Adjudications The procedure for informal adjudications are determined by the legislature as part of the enabling law or left to the agency. These range from complex trials to inspections and other very simple procedures Most are simple proceedings that do not resemble trials Some are very like trials, it just depends on the legislation and agency regulations

The Nature of the Agency and Formality of the Process The broader the reach of the agency actions and the more controversial the agency function, the more formal the agency process Social Security Disability ALJs deal with individuals and their decisions do not set policy. National Labor Relations Board adjudications set policy for unionization for whole industries It usually does not use rules for these questions, so adjudications are even more important

Practical Considerations in Adjudications Except for the APA provision for formal adjudications, the agencies can set their own procedures for adjudications, or congress can set them in the enabling act Some agencies have developed rules based on the Federal Rules of Civil Procedure and Evidence, which make their hearings look like trials. As we will discuss later in the context of judicial review, even if the proceeding looks like a trial, the ALJ's power is much more limited than that of an Article III judge.

Ex parte Communications in Formal Adjudications No ex parte communications - 557(d) What is the extreme sanction for a party who violated this ban? What communications are allowed? 554(d)(1)(A-C)

Separation of Functions What is separation of functions? How does this mitigate the loophole of communication with agency personnel? Why do we care? Separation of function has very different results in a large federal agency than in small state agencies Federal - still in the agency and focused in one area States - often outside the agency (central panel), losing all expertise

EPA Example Can the EPA ALJ consult with an EPA scientist to better understand a case? What if it is about advice on facts in issue? Can the EPA ALJ consult with an agency lawyer about law? What about the lawyer prosecuting the case? Can the ALJ consult with a party in the case, outside of the proceeding, to get additional facts? How can these consultations be accomplished - what would you do in an Article III trial?

Consumer Product Safety Commission Example Can the commissioner consult with his staff? Are they considered legally the same person? What about the head of the prosecution staff? What is the key question? What about consulting with the heads of companies not currently before the agency? Can ex parte contacts occur before a proceeding? Why should the agency be cautious about ex parte contacts? Why do they invite remand from the courts?

Licensing and Permitting as Non-Trial Adjudications A license is defined as an agency permit, certificate, approval, registration, charter, membership, statutory exception, or other form of permission. ... In short, licensing is the process by which someone obtains, is denied, or has revoked any form of federal agency permission. A license/permit requires that the party show compliance with the law before undertaking the regulated activity.

Administrative Cost Issues What are the enforcement advantages of requiring a license as compared to having the agency look for violations in an ongoing activity? Health food supplements v. drugs? Dangerous dogs Law allows the agency to put special restrictions on dangerous dogs, but whether a dog is dangerous is decided case by case. Law provides for special restrictions on pit bulls How is the cost of enforcement different?

Licensing under the APA How are the legal standards for initial licensing different from a license review or revocation? Why? - (Who is the movant?) How are the potential parties different for a law license than for a TV station license? Competitive licensing How does this change the adjudication?

Disciplining License Holders - Section 558 Section 558 applies to licensing Notice and a hearing before revocation Exception for imminent threats to public health and safety

LA Law Note - Title 49, Chapter 13, §961. Licenses C. No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gives notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee is given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

Bias in Licensing Boards Who sits on state licensing boards? What about the ones for small industries? Why does the nature of state licensing boards potentially lead to bias? What due process problems does this pose?

Law Licenses Using lawyers as an example, what are the basic legal requirements for getting a license? Are there opportunities for due process hearings? What if you flunk the bar? What if they decide you do not have the character and fitness to take the bar?