APA 5 U.S.C. 556-557 Adjudication KNOW your RIGHTS America

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  Occupythelaw.com / secretjustice.com occupythelaw.com / secretjustice.com T HE A DMINISTRATIVE P ROCEDURE A CT   5 U.S.C556- 557  F ROM : THE A MERICAN B AR A SSOCIATION :   www.americanbar.org/content/dam/aba/.../ apa /blackletter1101.doc   also see:http://www.gpo.gov/fdsys/granule/USCODE-2011-title5/USCODE-2011-title5-partI-   chap5-subchapII-sec557/content-detail.html  ADJUDICATION  Adjudication is the agency process for issuing an order which resolves particular rights orduties. It would be impracticable to canvass the entire subject of administrative adjudicationthroughout the range of its uses. The present treatment is bounded in two respects: it deals only withfederal administrative law, and it deals only with fundamental elements, as specified byconstitutional due process and by the Administrative Procedure Act.1.   DUE PROCESS REQUIREMENTS FOR A HEARING A. Basic principles  Due process analysis requires, first, a determination that there exists a constitutionallyprotected interest within the meaning of the constitutional Due Process Clauses; second, it requires adetermination that there has been a  deprivation  of those interests; third, it requires a determinationof what process is due in order to protect those interests. Due process attaches only to  stateaction.    B. Protected Interest  Procedural due process requires a  substantive predicate,  which is a substantive right to  life, liberty or property.  The substantive rights that are protected by due process must beindependently determined, apart from the demand for procedural protection itself.Substantive rights may be derived from a variety of sources. In the case of property, the rightor entitlement must be grounded outside the federal Constitution, which presupposes but does notitself create property rights. An entitlement requires the presence of substantive standards thatconstrain the discretion of governmental decisionmaker. Protected property rights are established bystate or federal law, including both statutory and common law. Liberty interests may be based onstate or federal law, or on the federal Constitution, including the due process clause itself. C. Deprivation    Occupythelaw.com / secretjustice.com occupythelaw.com / secretjustice.comTo constitute a deprivation for due process purposes, government action must adverselyaffect a protected interest. Negligent actions, however, even if tortious, do not amount to adeprivation for due process purposes. D. Process Due  The procedures required by due process involves consideration of three factors: (1) thestrength of the private interest, (2) the risk of error and the probable value of additional or substituteprocedural safeguards to avoid error, and (3) the strength of the Government  s interest. Theseconsiderations govern both the adequacy and timing of the procedures required. While therequirements of due process vary with the particulars of the proceeding, notice of the subjects of theagency proceeding and the opportunity to submit written comments or oral comments at alegislative-type hearing may be sufficient.5.   Legislative-type determinationsA hearing is not required, as a matter of constitutional due process, when agency action islegislative in character rather than adjudicatory.2.   RIGHT TO A HEARING UNDER THE ADMINISTRATIVE PROCEDURE ACT A.   Formal Hearings Under the APA  Subject to the set of exceptions set forth in  554(a) (see discussion exceptions in Subpart B),a formal hearing is required by the APA in  every case of adjudication required by statute to bedetermined on the record after opportunity for an agency hearing.  Where a federal statute requiressuch an on-the-record hearing, the hearing must comply with the provisions of   554, 556, and 557of the APA.Determining whether a statute that calls for a hearing triggers the formal adjudicationrequirements of the APA is a matter statutory interpretation. Courts differ over whether to defer toan agencys interpretation that a particular statute does not require formal adjudication. B. Agency Action Excepted from Adjudication Requirements  The APA does not require a formal hearing to the extent that there is involved a mattersubject to a subsequent trial de novo in a court; the selection or tenure of an employee; proceedingsin which decisions rest solely on inspections, tests, or elections; the conduct of military or foreignaffairs functions; cases in which an agency is acting as an agent for a court; or the certification of worker representatives.    33.   PROCEDURAL REQUIREMENTS FOR FORMAL HEARINGS UNDER THEADMINISTRATIVE PROCEDURE ACT A. Basic Requirements Hearings required to be conducted under the APA must follow the procedures required by  556 of the APA. B. Openness  Although  556 of the APA does not specifically state that hearings must be open, the veryconcept of a hearing comparable to a judicial proceeding entails norms of openness. Thus, agencyhearings generally must be open to the public.Notwithstanding the general policy favoring open hearings, agencies may close hearings forreasons of confidentiality or to protect potential spectators, witnesses or parties to a hearing. In suchcircumstances, the presiding administrative law judge  may take only the most limited actionnecessary to sufficiently protect the interest perceived to be paramount to the interest of the public inan open hearing.    C. Burden of Proof   Section 556(d) requires that, unless another statute provides authority for a differentallocation for the burden of proof, the burden of proof with respect to any decision rests with theproponent of that decision. For purposes of   556(d), the term  burden of proof   means the burdenof persuasion.5.   Rules of EvidenceThe APA requires that formal adjudicatory decisions be  supported by and in accordancewith the reliable, probative, and substantial evidence.  Agency adjudications need not conform withthe Federal Rules of Evidence, and agency adjudicators may consider evidence, such as hearsayevidence, that would be inadmissible in federal courts. Such evidence may form the sole basis foragency decisions. Under  556 of the APA, agency adjudicators must  provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.  Subject to that requirement, agencies havepower to prescribe their own rules of evidence, provided that those rules are consistent withconstitutional standards of due process.Though agency adjudications are not governed by the Federal Rules of Evidence as a generalmatter, the attorney-client privilege and like privileges may be asserted in an agency proceeding.    4Agencies may take official notice of facts not supported by record evidence. Where an agency hastaken official notice of a material fact, parties to the proceeding are entitled to an opportunity todemonstrate the contrary.6.   Oral Evidence and Cross ExaminationParties to formal adjudications are entitled under  556(d) of the APA to present their case ortheir defense  by oral or documentary evidence.  The right to present oral evidence does not apply,however, in formal rulemakings, determinations relating to claims for money or benefits, andapplications for initial licenses if the agency has adopted procedures for submitting all evidence inwritten form, to the extent that the parties are not prejudiced by those procedures. Also the agencymay require a party seeking a hearing to request the hearing and to make a threshold showing that ahearing would serve its purpose. The agency may deny a hearing if no issues of material fact are indispute.Parties to formal adjudications are entitled under  556(d)  to conduct such cross-examination as may be required for a full and true disclosure of the facts.   4.   INTEGRITY OF DECISIONMAKING PROCESS5.   Bias or Prejudgment of Adjudicatory DecisionmakersA decision by a biased decisionmaker may violate due process as well as the APA. Becauseagency adjudicators, particularly agency heads, have responsibilities broader than simplyadjudicating, the rules relating to disqualification of administrative adjudicators for bias do notentirely parallel the rules relating to judges.An adjudicative decisionmaker must disqualify him or herself, or be disqualified, fromdeciding any case in which the decisionmaker is biased. If a party fails to make a timely motion fordisqualification, the party has waived the right to do so.Bias or prejudgment exists when the decisionmaker has a pecuniary or other personal interestin the case, has prejudged the facts against a party or, prior to the commencement of the hearing, haddeveloped personal animus against a party, witness or counsel or a group to which they belong. Biasis not established merely because the decisionmaker has rejected the claims or the testimony of aparty or because the decisionmaker has fixed views about law, policy or factual propositions notrelated to specific parties.If a single member of a multi-member agency was biased and was not disqualified fromdeciding the case, the agency  s decision should be reversed, even though the biased member  s votewas not necessary to the decision.
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