Chapter 3 Introduction to Adjudications

1. 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.

2. Adjudications in the Old Days • What did "jury of your peers" mean originally? • How has that changed? • Government regulation • Did you get a hearing when the King told you what to do? • Was there a right to a jury in civil trials?

3. Defining an Adjudication • Adjudications are the process used to make an order involving specific identified parties • What are examples of adjudications? • Why is your federal student loan application an adjudication? • What is the order? • What about social security disability determinations? (more later on due process) • These are examples of adjudications to find facts and apply law in individual cases

4. 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

5. Adjudications to Set Policy - California Dental Association • What did the FTC accuse the CDA of? • What was the sequence of the agency review? • Why are agency rulings appealed to the Circuit courts rather than district courts? • How does this adjudication set national policy, if the adjudication is not precedent? • Who will be deciding future cases?

6. 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 issues • While they can make rules, as we will see, that can be slow and cumbersome, while adjudications can be fast

7. Wetlands Example • Wetlands development requires a permit from the Army Corps of Engineers • The developer must submit proof that the land to be developed is not a wetland, or, if it is, that there will be appropriate mitigation • The Corps evaluates the application and makes a decision, which can then be appealed to an internal Corps appeals board • If 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

8. Inspections as Adjudications • Restaurants need a food handling permit to sell to prepare food and sell it to the public • Must show that you have the proper equipment • Must show proper training for employees • These permits provide for surprise inspections to assure that the conditions are still being met • The inspector views the facts • The owner can provide input during the inspection • The inspector provides written findings

9. Basic Procedure for Adjudications:Section 555 • Federal Administrative Procedure Act • Section 555 applies to all adjudications • Right to bring your own lawyer • No right to appointed counsel • Right to a record • Right to notice of the findings and reasons

10. Louisiana APA • Louisiana Provisions • LA - 955, et seq.

11. Who Gets to Appear Before the Agency? • What are the problems if interested persons who are not parties are allowed to intervene? • What is the problem if they are not allowed? • What about nuclear power plant licensing? • Who is interested? • How about permitting landfills?

12. APA Provisions - Formal Adjudications • Formal (APA) Adjudications under the US APA • US - 554, et seq.

13. Formal (APA) v. Informal (Non-APA) Adjudications • What is the language in 554 that triggers a formal adjudication? • "on the record after opportunity for an agency hearing“ • Remember formal rulemaking? • What are the subsequent provisions this triggers? • 556, 557 • Why do we call informal adjudications non-APA adjudications?

14. Formal Adjudications in the Real World • Formal adjudications, triggered by 554 and conducted under 556 and 557, look like trials. • Most are like simple trials. • Since they can have multiple parties with the right to present evidence and cross examine, they can be very long and complex. • Not as bad as formal rulemaking.

15. Informal (Non-APA) Adjudications • The procedure for informal adjudications are determined by the legislature as part of the enabling law or left to the agency. • These range from complex trials to inspections and other very simple procedures • Most are simple proceedings that do not resemble trials • Some are very like trials, it just depends on the legislation and agency regulations

16. Administrative Cost and Formal Adjudications • Administrative cost is a key concept in adlaw • Administrative agencies carry out huge numbers of adjudications • What would it cost if Medicare payment determination looked like a trial? • What sort of delays would you expect? • What if FEMA used trials to decide on compensation checks? • This is revisited next chapter in the tension between due process and agency costs

17. Practice Issues • The book spends a lot of time on examples of arguments for and against the court ordering a formal adjudication. • You do not need this level of detail for this course • As with formal rulemaking, the courts are reticent to order formal rulemaking unless the statute is clear. • If the statute is ambiguous, most circuits defer to the agency – Chevron deference. • A few do not defer, reading the law themselves. • In practice, if the issue has not been settled for your hearing type, you have to argue the issue to the court based on the circuit’s precedent. • Louisiana thinks adjudications are trials.

18. Practical Considerations in Adjudications • Except for the APA provision for formal adjudications, the agencies can set their own procedures for adjudications, or congress can set them in the enabling act • Some agencies have developed rules based on the Federal Rules of Civil Procedure and Evidence, which make their hearings look like trials. • As we will discuss later, even if the proceeding looks like a trial, the ALJ's power is much more limited than that of an Article III judge.

19. The Nature of the Agency and Formality of the Process • The broader the reach of the agency actions and the more controversial the agency function, the more formal the agency process • Social Security Disability ALJs deal with individuals and their decisions do not set policy. • National Labor Relations Board adjudications set policy for unionization for whole industries • It usually does not use rules for these questions, so adjudications are even more important