1. Magnitude of Affected Interest Required Procedures Approaching life or death Follow Goldbert WeightyFollow Loudermill Neither weighty nor de minimus Follow Goss Interest weighty, but little value to administrative, as opposed to judicial hearing Follow Ingraham, if state judicial remedies protect all relevant individual interests

2. FEDERAL STATUTORY HEARING RIGHTS

3. STARTING PREMISE: THE APA CREATES NONE

4. FEDERAL STATUTORY HEARING RIGHTS STARTING PREMISE: THE APA CREATES NONE ENABLING ACT COMMANDS RULES TO BE WRITTEN

5. FEDERAL STATUTORY HEARING RIGHTS STARTING PREMISE: THE APA CREATES NONE ENABLING ACT COMMANDS RULES TO BE WRITTEN ADMINISTRATIVE HEARINGS ARE NOT COURTS ADMINISTRATIVE HEARINGS ARE NOT FORMAL TRIAL TYPE PROCEEDINGS MOST STATE EVIDENTIARY HEARINS ARE HANDLED INFORMALLY RULES OF EVIDENCE -- NOT APPLICABLE ELABORATE DISCOVERY –NOT MANDATED

6. MORE NOT ALL COMPONENTS OF THE FEDERAL GOVERNMENT ARE COVERED THERE IS NO MAGIC FORMULA MUST READ THE ENABLING ACT

7. MORE CANNOT PREDICT WITH CERTAINTY HOW COURTS ARE GOING TO RESOLVE STATUTORY AMBIGUITY ANY EXCEPTIONS MUST BE CONSTRUED NARROWLY

8. Federal Statutory Hearing Rights Starting point: The APA creates NONE What triggers the Rulemaking Process? How does an Agency begin the Process? Or maybe it just does nothing?

9. Federal Statutory Hearing Rights (cont’d) Enabling act commands rules to be written Congress writes interim rules Agency investigates: is there a need for regulatory activity? Interested party may have input: Occassionally, privite citizens can get into the act

10. RULEMAKING Rulemaking is the basic process to announce a new policy 553 sets out the “Scope” There are, however, limitations: Definition of agency Military or foreign affairs, or management or personnel or public property, lonas, grants, benefits, or contracts

11. NOTICE REQUIREMENT Time, place, and nature of proceedings legal authority under which agency proposes rule Language of the proposed rule or a description of the topics and issues Invitation to any interested persons

12. Notice Exceptions Interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice Good cause fining

13. Impact of Florida East Coast Railway ONLY ENTITLED TO A HEARING UNDER APA IF ANOTHER STATUTE REQUIRES THAT THE AGENCY DECISION BE MADE ON A RECORD AND AFTER OPPROTUNITY FOR AGENCY HEARING

14. The APA ROADMAP Tedious material, but IMPORTANT NEED TO UNDERSTAND WHAT APA PERMITS AND FORBIDS

15. The APA ROADMAP The Scope WHAT IS AN AGENCY? WHAT IS AN ORDER? WHAT PROVISIONS GOVERN TRIAL- TYPE PROCEEDINGS? WHAT IS AN ADJUDICATION?

16. The APA ROADMAP—THE SCOPE An agency: Section 551(1): NOT ALL COMPONENTS FO THE FEDERAL GOVERNMENT ARE COVERED BY THE APA EXCEPTIONS: CERTAIN PROCEEDINGS: MILITARY AND FOREIGN AFFAIRS, CERTAIN FEDERAL PERSONNEL MATTERS, ETC. EXCEPTIONS TO BE CONSTRUED NARROWLY

17. The APA ROADMAP—THE SCOPE PRE-HEARING MATTERS Section 554(b) requires that affected persons be given specific notice of the hearing Including time, place, nature of the hearing, legal authority for convening the hearing and Particularized information

18. The APA ROADMAP—THE SCOPE Section 554(d) provides for strict separation of functions: IMPORTANT Prohibits ex parte contacts

19. The APA ROADMAP—THE SCOPE Hearing requirements set forth in 556 Usually administrative law judge presides Usually, admitting documentary evidence, testimony under oath Usually permitting direct and cross examination Ruling on evidentiary objections This part most resembles a civil bench trial

20. The APA ROADMAP—THE SCOPE 556(d) Burden of proof on the “proponent of a rule or order” Hearing record is to be the sole basis for the ultimate decision

21. The APA ROADMAP—THE SCOPE Agency Decision includes: Order usually accompanied by formal findings of fact and conclusions of law Subject to judicial review