1. Chapter 3 Introduction to Adjudications Part II

2. Adjudication Procedure

3. 3 Federal Agency Adjudications versus Article III Trials Inquisitorial rather than adversarial What does this mean? How does this change the nature of trials? Why is the norm internationally? Expertise versus impartiality/cluelessness Do we choose federal judges based on expertise in the matter before them? How does an expert judge and an inquisitorial system change the nature of trials?

4. 4 ALJs versus Article III Judges Article III Judges Protections Lifetime tenure Cannot reduce salary Cannot fire, only impeach Cannot discipline Why do we have these protections? How are state judges different? ALJs Civil service protections Can be fired Can have salary lowered, but hard to do this Can set work standards and discipline How are the pressures different than those on an Article III judge? What about contract ALJs that some states use?

5. 5 The Core Importance of Expertise in Understanding Agencies A primary reason for congress delegating rulemaking powers to agencies is that the agency has experts in the subject matter As we will see later in the section on judicial review, the courts generally defer to agencies. This is based in part on agency expertise. Agency adjudications have very different procedures and due process requirements from Article III trials because the decision is being made based on the judge's expertise, not just the presentation of materials by the parties. We will see how state efforts to make ALJs impartial undermine this core value.

6. 6 Notice What is notice? Why is it required? What has to be provided in the notice? What can complicate notice? What about in immigration? Welfare benefits?

7. 7 Burden of Proof Who has the burden of proof in an administrative proceeding? What is the Social Security Disability example? What is the order in this example? Sometimes the movant is not clear - SSI recertification This follows the judicial notion of burden of persuasion, which can be different from the burden of going forward or the burden of production.

8. Shifting the Burden Old welfare system - Goldberg Beneficiary gets benefit until agency moves to disqualify New system - TANF Benefits have limited term No action necessary to terminate benefits. Recertification schedules Shift the burden to recipient to show qualifications. License renewals can do the same. 8

9. Standard of Proof What is the standard of proof required in an agency proceeding, unless otherwise specified in the law? Are there other standards in administrative proceedings? The United States Supreme Court has upheld a clear and convincing standard in mental health commitments. Congress is free to require even higher standards of proof. When we learn about judicial deference to agencies, we will rethink what preponderance of the evidence really means. 9

10. Rules of Evidence in Administrative Proceedings (Formal and Informal) What is the purpose of the rules of evidence in Article III trials? What is the underlying theory of the rules? How does this change when there is no jury? Why would this be different in an inquisitorial proceeding? Does the APA set the standard of evidence? Do all agencies use the same standards? 10

11. 11 Hearsay What is hearsay? Why is it excluded in the rules of evidence, except for the zillion exceptions? Why would the hearsay rule not be as important in an agency proceeding? The Residuum Rule Once prevented adjudications from being based solely on hearsay evidence This has been replaced by the "substantial evidence" standard used for all agency evidence LA uses "sufficient evidence" - may not be the exactly same standard.

12. 12 Discovery Not provided for by the APA Some agencies allow discovery Why is it less of an issue than in Art. III trials? Freedom of information/Open Records Acts Parties may also be entitled to have the agency use its subpoena power on their behalf, if the agency can order discovery for itself.

13. Federal ALJs What do most (75%) of federal ALJs do? Why the growth in this area? What do you think is happening during this prolonged recession? This is the major due process problem/issue in government benefits adjudications. ALJs are such a “PIA/protective of individual rights” that they become another reason agencies try to use informal adjudications as much as possible. 13

14. 14 What is the Legal Status of an ALJ's Opinion? What is an initial decision, in contrast to a recommended decision? 557(b) Why did the EPA switch to allowing ALJ decisions to be final decisions if the agency did not act and there were no internal appeals in 45 days? We will discuss agency rejection of ALJ opinions in the chapter on judicial review.

15. Stopped here 15

16. 16 Ex Parte Communications Art III Trials v. Adjudications Why are these forbidden in Article III trials? Why are they less of a problem in agency proceedings? How is the relationship between a litigant and the court different between a litigant and an agency? Why is knowledge by the judge of the issues and parties treated differently from a trial?

17. 17 Ex parte Communications in Formal Adjudications No ex parte communications - 557(d)557(d) What is the extreme sanction for a party who violated this ban? What is the loophole for agency personnel? ex parte communication prohibition only applies to communications with interested persons outside the agency Are agency personnel like adverse parties in a trial?

18. 18 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

19. 5 U.S.C. §554(d) http://biotech.law.lsu.edu/Courses/study_aids/adl aw/554.htm http://biotech.law.lsu.edu/Courses/study_aids/adl aw/554.htm What proceedings are exempt from section (d)? 19

20. 20 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?

21. 21 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?

22. 22 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.

23. 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? 23

24. 24 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?

25. 25 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

26. 26 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.

27. 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? 27

28. 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? 28