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Chapter 3Introduction to Adjudications
Every new tribunal, erected for the decision of facts, without the intervention of jury, . . . is a step towards establishing . . . the most oppressive of absolute governments.
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Adjudications in the Old Days
What did "jury of your peers" mean originally?How has that changed?Government regulationDid you get a hearing when the King told you what to do?Was there a right to a jury in civil trials?
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Defining an Adjudication
Adjudications are the process used to find facts involving specific identified parties and to make a decision, sometimes state as an order.Adjudications are enforcement proceedings and thus can only be done by executive branch agencies.Adjudications range in formality from an online form evaluated by a computer to years long proceedings that look like complex litigation trials.
Examples of Adjudications
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Social Security Disability Determinations
More than 80% of the federal administrative law judges (ALJs) do SSD determinations.Initial application reviewed by claims manager. If not approved, you get reasons and can amend the record.You can then appeal the initial denial to a higher level claims examiner. If denied again, you can get a de novo review by an ALJ.The ALJ’s decision becomes final after 30 days if not reviewed by the Secretary.You can appeal the final decision to the courts.
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Permits as Adjudications
Wetlands development requires a permit from the Army Corps of EngineersThe developer must submit proof that the land to be developed is not a wetland, or, if it is, that there will be appropriate mitigationThe Corps evaluates the application and makes a decision, which can then be appealed to an internal Corps appeals boardIf the application meets the standards, the Corps will issue a permit.In the absence of regulations, the decision reflects the Corps' policy on how it defines and regulates wetlands.
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Inspections as Adjudications
Restaurants need a food handling permit to sell to prepare food and sell it to the publicMust show that you have the proper equipmentMust show proper training for employeesThese permits provide for surprise inspections to assure that the conditions are still being metThe inspector views the factsThe owner can provide input during the inspectionThe inspector provides written findings
Limited Process (No Hearing) Adjudications
FAFSA (Free Application for Federal Student AidMedicare/Medicaid claims processingHunting and fishing licenses
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Adjudications to Make Policy
Are courts charged with making law and policy through legal opinions?Do their opinions make law and policy?What is happening with gay marriage?Are civil law courts bound by precedent?Why do we read civil court opinions?How do they set law and policy?Agency adjudications can work the same way
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Adjudications to Set Policy - California Dental Association v. FTC, 526 U.S. 756 (1999)
What did the FTC accuse the CDA of?What was the sequence of the agency review?Trial type hearing before an ALJDe novo review before the CommissionHow does this adjudication set national policy, if the adjudication is not precedent?Who will be deciding future cases?
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Why Make Policy Through Adjudications?
Why don't legislatures write laws that are specific enough that courts have no room to set policy?When might a legislature intentionally write an ambiguous law, knowing it will have to be resolved by a court or an agency?Agencies face the same issuesWhile they can make rules, as we will see, that can be slow and cumbersome, while adjudications can be fast.
Agency Adjudications v. ArticleIII Trials
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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 matterAs 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.
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Administrative law when the APA was passed in 1946
No Social Security Disability Insurance, Medicare, and Medicaid, thus few federal adjudications.Limited informal adjudications, thus the APA provides little guidance/restriction on the procedures of informal adjudicationsHistory of ratemaking procedures which were effectively multi-party negotiations, and which drive the formal adjudicationregs.Limited rulemaking, with the APA structured to encourage “informal” (notice and comment) rulemaking as a flexible adjunct to legislation.
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Administrative Procedure Acts
Federal APAhttps://biotech.law.lsu.edu/Courses/study_aids/adlaw/index.htmLouisiana APALA - 955, et seq.
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Federal Agency Adjudications versus Article III Trials
Inquisitorial rather than adversarialWhat does this mean?How does this change the nature of trials?Why is this the norm internationally?Expertise versus impartiality/cluelessnessDo 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?
Stopped here
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The Inquisitorial Judge and Evidence
See that justice is done, rather than that procedure was followed.The judge will question witnesses and intervene if the attorney is not presenting the case fairly or competently.In theory, this will reduce the advantage of wealth in the court room.The lawyer’s duty is to disclose all relevant information, not to hide it.Since the judge seeks justice, rather than relying on the lawyer for both side,the judge canrepresent the state’s interest in agency proceedings.
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ALJs versus Article III Judges
Article III JudgesProtectionsLifetime tenureCannot reduce salaryCannot fire, only impeachCannot disciplineWhy do we have these protections?How are state judges different?
ALJsCivil service protectionsCan be fired (Lucia)Can have salary lowered, but hard to do thisCan set work standards and disciplineHow are the pressures different than those on an Article III judge?What about contract ALJs that some states use?
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What is the Legal Status of an ALJ's Opinion?
The authority to make a final decision rests with the agency (secretary or commission).An ALJ initial decision is a decision that will become final if notreviewedby the agency.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?A recommended decision will not become final unless the agency acts to adopt it.We will discuss agency rejection of ALJ opinions in the chapter on judicial review.
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Basic Procedure for Adjudications:Section 555
Federal Administrative Procedure ActSection 555 applies to all adjudicationsRight to bring your own lawyerNo right to appointed counselRight to a recordRight to notice of the findings and reasons
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Notice
APA 554(b)Whatis notice?Why is it required?What has to be provided in the notice?What can complicate notice?What about in immigration?Welfare benefits?
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Burden of Proof
The movant has the burden of proof in an administrative proceeding.What is the Social Security Disability example?Sometimes the movant is not clear - SSI recertification.License revocation?This follows the judicial notion of burden of persuasion, which can be different from the burden of going forward or the burden of production.
Shifting the Burden
Old welfare system -GoldbergBeneficiary gets benefit until agency moves to disqualifyNew system - TANFBenefits have limited termNo action necessary to terminate benefits.Recertification schedulesShift the burden to recipient to show qualifications.License renewals can do thesame, if the presumption is that you have to show an entitlement to the license for each renewal.
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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.This does not mean that it is required for mental health.Congress is free to requirehigherstandards of proof.When we learn about judicial deference to agencies, we will rethink what preponderance of the evidence really means.
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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?
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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 RuleOnce prevented adjudications from being based solely on hearsay evidenceThis has been replaced by the "substantial evidence" standard used for all agency evidenceLA uses "sufficient evidence" - may not be the exactly same standard.
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Discovery
Not provided for by the APASome agencies allow discoveryFreedom of information/Open Records Acts make access to the information less of an issue than in Art. III trials.Parties may also be entitled to have the agency use its subpoena power on their behalf against otherthird parties,if the agency can order discovery for itself.

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Examples of Adjudications - biotech.law.lsu.edu