Formal Adjudications

Chapter 8

In GeneralLawyers and legal assistants play an

important role in the adjudication aspect of administrative procedure.

APA provides that all proceedings that result in an order are adjudications. Order is defined to include all actions, including licensing, tha tare not rulemaking.

NoticeAdjudications are the administrative

equivalent of court trials.Adversarial parties may present evidence,

may examine and cross-examine witnesses, and may make arguments to a presiding agency official.

Parties must be “timely informed” of the time, place and nature of the hearing.

The TestThe test for determining whether a party

has been given adequate notice of the nature of the case or issues to be considered is whether the information provided permitted the party to adequately prepare his or her case.

HearingThe agency may try new issues as long as

it is reasonable to do so. If a new issue is so unrelated to the issues described in the notice that a party could not have been prepared to address the, a continuance must be granted.

**Surprise by an agency violates due process.

Technical DefectsNotices will not be invalidated because of

technical defects. (misspelled name)

**An incorrect hearing date is not technical and would violate due process.

Parties and ParticipationNamed parties must participateParties in interest (parties that could be

effected by the outcome) may seek intervention: if a person is not a named party in an administrative proceeding or lawsuit but is a party in interest, he or she may become part of the proceeding.

Parties of Interest/StandingStanding: a person must be sufficiently affected by the matter at hand, and there must be a case or controversy that can be resolved by legal action.

**Those who suffer economic injury or loss pursuant to an agency action, even if that action is directed against another, qualify to intervene.

**Consumer advocacy groups occasionally intervene on behalf of all consumers.

Right to Participate cont.The right to participate has been extended

beyond obvious parties. Competitors and other parties who may suffer some form of economic harm are allowed to participate.

Existence of some other legitimate interestGeneral public concern exists

Other Methods of ParticipationWitness: someone who is interested in the

case, but not so far as to intervenePerson/Group can file an Amicus Curiae

brief: Permit a person or group to express a perspective or opinion without becoming a party.

DiscoveryPretrial process whereby the parties exchange

information about the case.Prevents, trial by surpriseEncourages settlement, as the parties learn the

facts of the case and each others’ legal theories early in the game.

Parties can make a realistic evaluation of their cases, and, therefore be in better positions to engage in settlement negotiations

**Parties may seek protective orders whenever discovery is unduly burdensome or encroaches on a privilege, such as attorney-client or work product doctrines.

6 Primary Tools of Discovery1. Interrogatories2. Depositions3. Requests for production of documents4. Requests for admissions5. Bills of particulars6. Subpoenas

Prehearing ConferenceThe prehearing conference is the equivalent

of a judicial pretrial conference.The parties may discuss and identify the

issues, discuss stipulations, review exhibits and other evidence, provide a list of witnesses expected to be called, and consider settlement.

Presiding official will review the format and procedure of the hearing with the attorneys.

Presiding official decides when the prehearing conference will take place.

Prehearing Settlement and Alternative Dispute ResolutionAPA requires agencies to entertain settlement

offers prior to the commencement of adjudicatory hearings if “time, the nature of proceedings, and the public interest permit.”

APA also encourages agencies to use alternative dispute resolution (ADR) to dispose of cases. ADR is generally regarded as less expensive and less time-consuming than formal adjudication or litigation.

Mediation, arbitration, and conciliations are commonly used forms of ADR.

The HearingThe APA only mandates trial-type procedures

whenever another statute specifically requires them.

Congressional mandates for a hearing is not likely to be construes as requiring a trial-type hearing.

Congress must clearly state that the right to a trial type hearing is granted.

If a full trial-type hearing is not required, an agency may use any other form of hearing within the limits of due process.

Evidence AdmissibilityIn state and federal courts, hearsay is not

admissible.Hearsay: A statement made outside of court that is

offered by a declarant to prove the truth about a matter asserted.

**A presiding officer of an administrative hearing may admit hearsay or other evidence that would be excluded from a judicial trial unless the agency has a rule of evidence that requires otherwise. Administrative law judges usually admit nearly all evidence offered, often with the qualification of “what it’s worth.”

They tend to look at its weight, reliability and value.

Prejudicial Error Rule and Legal Residuum RuleAn error is prejudicial if it had an impact on the

outcome of the case. Harmless errors are not reversible.

Legal doctrine stating that although agency decisions may be based in large part on evidence that would be in admissible in court, an agency’s decision may not be based entirely on such evidence; a minimal “residuum” of competent evidence must support he agency’s determination.

Privileged and Illegal EvidenceWell-established privileges may be invoked

in administrative proceedings.Husband-wifeParent-ChildPhysician-PatientAttorney-Client

**The person who can invoke the privilege is the person who the privilege is intended to protect.

Official NoticeParties may request that the court takes judicial

notice of the facts.Judicial Notice: method of avoiding the need to

prove the well known or obvious.Official Notice: A presiding officer’s declaration

that a fact is true without any proof of that fact being offered.

**Because officers of agencies are considered experts in their fields, official notice may be taken of any fact that is obvious not only to the average person but also to experts in the field being dealt with.

Burdens Burden of Production: Concerns who in a

proceeding has the duty to produce evidence or raise an issue

Burden of Persuasion: Concerns who in a proceeding has the duty of persuading the trier of fact that is position is correct.

In most cases, the person who carries the burden of production also carries the burden of persuasion.

In administrative law, the moving party has the burden of proof.

StandardsMost Demanding Standard

Beyond a Reasonable Doubt

A doubt that causes a reasonable and prudent person to question the truth of an allegation is reasonable. Used in criminal cases, rarely in administrative cases.

More Demanding Standard

Clear and Convincing Evidence

Less demanding than the beyond-a-reasonable-doubt standard, but more than the preponderance standard. Used in administrative cases only when an agency’s action encroaches on a legally protected right.

Least Demanding Standard

Preponderance of the Evidence

More likely true than not; any probability greater than 50%. Standard used in most administrative cases.

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