Adjudication

Question 1

How does §551 define adjudication?

What is adjudication?

Answer 1

As the agency process for issuing an order.

Adjudication is a decision by an agency about a particular person or party that requires the application of law to the particular facts of the person’s situation

Question 2

What is…

1. An order
2. Licensing

Answer 2

1. An order is a final disposition of an agency in a matter other than rulemaking, including licensing
2. Licensing is an agency permit, certificate, approval, registration, charter, exemption, permission, etc.

Question 3

What type of proceedings does §555 apply to?

What does is say about…

1. Counsel
2. Interested persons
3. Time
4. Subpoena
5. Denial

Answer 3

Applies to ALL Proceedings

1. Counsel is allowed, not provided
2. Interested persons who are not parties may appear before an agency at the agency’s discretion
3. Agencies must conclude matters in a reasonable amount of time
4. A party has the right to have the agency issue a subpeona if the agency has that authority
5. Agencies must give prompt notice of denial of any request and include a brief statemtn of the grounds for denial

Question 4

PDP: When does PDP apply?

Answer 4

When the adjudication deprives someone of a protected interest: Life, Liberty, or Property

Question 5

What is a property interest?

Answer 5

A “legitimate claim of entitlement” grounded in some non-constitutional law that limits the state’s decision

Must a mutual understanding:
Must be more than an abstract need or desire for it, more than a unilateral expectation

Gounded in non-constitutional law: a statute, express or implied contract, unwritten custom creating sufficient reliance

Question 6

What is a liberty interest?

Answer 6

An interest protect by the constitution

Roth list: PDP applies when gov restrits your physical freedom, freedom to pursue profession, to contract, to acquire knowledge, to marry, to establish a home and bring up children, to worship God, and to enjoy privileges re ognized as essential to the orderly pursuit of happiness by free men.

Employment: where there is a stigma or damage to reputation bc of termination of employment, there may be a liberty interest

Question 7

If PDP does apply, how much process is due?

Answer 7

Loudermill says that the consitution, not state statutes, defines the PDP procedures required, and we determine how much on a case-by-case basis after balancing the interests at stake

Question 8

Goldberg v. Kelly (1970)

Does PDP require that a welfare recipient be given an evidenciary hearing prior to termination of government benefits?

Answer 8

Yes, a pre-termination oral hearing is due because he had a very importat property interest at stake

Property interest is implicated in statute

Interest balancing:state has an interest in conserving fiscal and administrative resources, but this is overweighed by the interetst of the recipient in uninterrupted reciept of public assistance

Court adheres to long-standing presumption in favor of judicial-type pre-termination hearings

Question 9

Board of Regents of State College v. Roth

PDP implicated?

Is additional procedure required for firing a teacher without tenure after contract ran out?

Answer 9

No, no additional procedure is required bc P did not have a property or liberty interest at stake

No liberty interest: Liberty is not deprived by denial of a single job, no stigma or damage to his reputation - still free to seek another job

No property interest implicated: no Legitimate Claim of Entitlement from a non-Constitutional source of law. 1st amendment right is not a sufficient property interest bc the constitution doesnt create property interest

Question 10

Perry v. Sindermann

Worked in Texas state college system for seven years, not rehired after contract ran out, given no statement of reasons or hearing.

Is his interest within the PDP protection of liberty or property?

Answer 10

Yes a pre-termination oral hearing may be due, may be a property interest if there is a de-facto tenure program at the school in the official faculty handbook and he was tenured under it.

Rule: unwritten custom can create sufficient reliance to constitute an LCE if the custom has engendered mutual reliance

Question 11

Loudermill

Is a post-termination hearing sufficient to protect PDP claims to libery and property?

Answer 11

No, some pre-termination is required because the Constitution defines the PDP process required when a property interest is implicated

“For Cause” language in statute gives sufficient reliance to create a LCE

Question 12

Mathews v. Eldridge (1976)

What is the balancing test?

Answer 12

To determine what process is due, court weighs three factors:

1. The private interest at stake
2. The risk of erroneous deprivation of the claimant’s rights through the current procedures
3. The government interests involved, such as controlling the administrative costs of agency programs

Question 13

What APA statutes apply to formal adjudication?

Answer 13

5554, 556, 557

Question 14

What are the notice requirements for Formal Adjudication?

Answer 14

554(b) requires that a person being brought before an agency ust be provided with notice of:

1. the time, place, and nature of the hearing
2. The legal authority and jurisdiction under which the hearing is to be held
3. and the matters of fact and law asserted

Question 15

True or false:

There is no opportunity for pre-hearing or settlement in formal adjudication procedures

Answer 15

FALSE. 554(c) gives the opportunity for both pre-hearing and settlement.

554(c)(2) kicks you over to 556 and 557 if you cannot settle

Question 16

The Role of the ALJ

556(b) provides that…

Answer 16

Provides that the “agency” one or more members of the body comprising the agency, or an ALJ may preside over Formal Adjudication impartially.

In practice, its almost always the ALJ

Question 17

What is the difference between an Initial Decision and a Recommended Decision by the ALJ?

Either way, what happens after the decision is made?

Answer 17

Initial Decision: one that becomes the decision of the agency authomaticaly unless appealed to the agency or the agency decides sua sponte to review

Recommended Decision: goes to the agency for final determination

Either way, the agency is free to accept or reject the ALJ’s conclusions of fact and law.

Question 18

Who has the buden of proof in formal adjudication?

Answer 18

The proponent of an order (the agency) has the burden of proof, whether or not they initiated the proceeding

Question 19

How does the APA efine Ex Parte Communications

Answer 19

Defined as oral or written communications not on the public record, with no reasonable prior notice given to all parties.

Question 20

Is Ex Parte communication allowed in formal rulemaking?

Answer 20

No Ex Parte contacts that are “relevant to the merts of the proceeding” between any “interested person outside the agency” and a decision maker (ALJ or Commissioner)

Question 21

Is congress considered an “outside party” for the sake of Ex Parte contacts in formal adjudication proceedings?

Answer 21

No, congress is not considered an outside party, information from Congress cannot be witheld

Question 22

What is the loop hole to the ban on ex parte communications in FA?

Answer 22

Ex parte communication prohibition only applies to communications with interested persons OUTSIDE of the agency, this does not stop agency personnel from communicating off the record

Question 23

What happens if an ex parte communication is made in a formal adjudication proceeding?

Answer 23

The agency/ALJ/employee who made the communication must give all parties notice and opportunity to respond to it.

May require that party to show why the communication should not be dismissed.

Question 24

554(d)(1) has a separate ex parte communication prohibition applying to the ALJ, banning him from….

What does this not apply to?

Answer 24

Banning the ALJ from consulting a person “on a FACT in issue” unless on notice to all parties with an opportunity to respond.

This extends to all people, in the agency and outside the agency, but only about facts at issue in the proceeding.

ALJ can still consult agency members about issues of law

DOES NOT apply to FAs involving applications for initial licenses; the validity for application of rates, facilities or practices of public utilities or carriers.

Question 25

True or False:

ALJs almost never preside over Informal Adjudication

Answer 25

TRUE