Presentation Transcript

1. Due process – impartiality & prejudgment Standard for recusal of official due to prejudgment – Cinderella Finishing Schools (p. 641): Agency member must recuse themselves when a disinterested observer would conclude that the member has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it. D.C. Cir. found prejudgment in CCFS. Does Dixon’s conduct fall on the wrong side of the standard? Is it as bad as the SEC example from Tuesday? What does the court’s statement at p. 640 n.10 regarding the “reasonable inferences”a disinterested observer could draw from Dixon’s remarks add to the mix here?
2. Due process – prejudgment (a wrap-up) “Pre-judgment” cases are decided based on extrinsic evidence – i.e., an agency official’s statements LOTS of agency officials make LOTS of statements:(1) to Congress, (2) in newspaper interviews, (3) in speeches, (4) in scholarly/other writings or (5) as legislators before becoming gov’t officials These statements often seem to run counter to any given litigants’ interests Generally, courts are reluctant to overturn a proceeding due to lack of an impartial decision-maker unless there is clear evidence that pre-judgment has occurred So, CCF Schools uses the right standard. But its application in the case is a closer call than it seems from the decision.
3. Due process – prejudgment & rulemaking (a comparison w/ adjudication) Standard: An agency official engaged in rulemaking is subject to recusal for bias only when there is “clear & convincing evidence showing that she has an unalterably closed mindon matters critical to the disposition of the proceeding.” This standard is harder to meet than the one for adjudications. Why? Neutral, detached adjudicator isn’t appropriate for rulemakings where administrators must “translate broad statutory commands into concrete social policies. If an agency official is to be effective he must engage in debate and discussion about the policy matters before him.... [I]nformal contacts between agencies and the public are the ‘bread & butter’ of the process of administration.” Assn of Nat’l Advertisers v. FTC (Casebook, pp. 466)
4. Due process – combination of functions Many agencies perform several functions: investigation, prosecution & adjudication (Gibson, CF Schools, Withrow). To what extent does the mere combination of different functions violate due process? This is a big issue for professional self-regulation. Most doctors, health professionals, accountants, and lawyers, have systems that essentially self-police. Professionals sit on a licensing board (e.g., Gibson) They adopt the rules applicable to getting the license & the rules of professional conduct necessary to keeping the license They investigate when allegations of violations occur They sit in judgmentwhen adjudications/hearings are held
5. Withrow v. Larkin (p. 643) – the law re due process & combination of functions Wisconsin medical licensing board investigated and adjudicated complaint about physician’s professional responsibility violations. SCT found no presumption of due process violation from combination of functions within an agency. What must a P claiming due process violation due to combination of functions show? NOTE: Many statutes (state and federal) require that regulatory agencies separate investigation/prosecution and adjudication functions – more later.
6. The consequences of the SCT’s Due Process jurisprudence – statutory procedural protections As a result of the Eldridge balancing, the pre-deprivation hearing required to satisfy due process need not be all that formal. You must be given such a “hearing” after adequate notice – but it might not look like an adjudicative hearing. Thus, most requirements that an agency have an adjudicative-type hearing come from statutes (APA or organic) or the agency’s own regulations.
7. Statutory procedural requirements for adjudications – the APA framework Formal – Sec. 554, 556, 557 Informal – Sec. 555(e) Prompt notice shall be given of denial in whole or part of a written application . . . of an interested person made in connection with any agency proceeding. Unless the agency is affirming a prior denial or the denial is self-explanatory, notice of denial must contain brief statement of the grounds for denial. Notice of agency hearing(§554(b)) Separation of investigation and adjudication functions (§554(d)) Right to submit oral/written evidence and to conduct cross-ex (§556(d)) Initial decision by an ALJ, the agency, or qualified agency employee (§556(b)& 557(b)) No ex parte contacts with interested persons (§557(d)) Decision based on findings of fact, supported by substantial evidence and conclusions of law (§557(c)) Decision is appealable to the agency head(s) (§557(b))
8. So when are the “formal” adjudicatory procedures of APA Sections 556 & 557 triggered? Section 554(a) – the formal requirements of Sec. 556 & 557 apply “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” Portland Audubon notes 3 things are required to trigger Section 554’s (and thus, Sec. 556/557’s) formal requirements Adjudication Required to be “on the record” After “opportunity for agency hearing” What do these terms mean & why does it matter in Portland Audubon? ESC granted BLM an “exemption” re several tracts of forest so logging could occur. Environmental group appealed because of harm to spotted owl and argued that proceeding was covered by formal provisions of APA
9. “Adjudication” – was there one in Portland Audubon? Endangered Species Act § 1536 : Any agency wanting to engage in actions otherwise prohibited by ESA (destruction of habitats of threatened species) must apply for an “exemption” from the ESA. “Exemption” application is submitted to Sec’y of Interior who “in consultation w/ E.S. Committee” must hold a formal hearing and prepare a report to the Committee regarding the issues The ESC must grant the exemption if it determines “on the record based on the report of the Sec’y, the record held of the Sec’ys] hearing,” and “such other testimony or evidence as it may receive” that exemption was warranted (§1536(h)(1)) Why is the exemption process an adjudication according to the 9th Circuit?
10. Portland Audubon – the requirements of “on the record” after “opportunity for agency hearing” Statutes usually clearly set out the “hearing” requirement in the text. In Portland Audubon, the term “hearing” wasn’t used directly re ESC’s “exemption” determination. BUT the court found that the exemption decision amounted to a hearing “at least in part.” Why was the exemption decision a “hearing”?
11. The “on the record” requirement “On the record” requirement Textually, §1536(h)(1) of the ESA required an “on the record” determination re the exemption, which the Portland Audubon court found triggered APA Sec. 554, 556, 557. That’s a relatively easy case for a formal adjudication once you determine a hearing is called for. In mostcases, statutes requiring adjudications clearly call for a “hearing” and the question is whether it sufficiently indicates an “on the record” requirement to trigger the APA’s formal adjudication requirements. Do courts follow the FECR/Allegheny-Ludlum Steel approach that SCT used to determine if formal rulemaking triggered?
12. Three competing judicial approaches to interpreting vague “hearing” requirements in statutes: Courts presume that the term “hearing” in a statute providing for adjudicatory hearings = formal “on the record” hearing under APA UNLESS there is clear congressional intent otherwise (Marathon Oil p. 660) Courts presume that the term “hearing” in a statute providing for adjudicatory hearings does not trigger formal APA hearing requirements unless language akin to “on the record” is used Essentially same as FECR/Allegheny-Ludlum Steel Courts will defer to agency interpretations of statutory “hearing” requirements if the courts deem the term “hearing” to be ambiguous and the agency’s interpretation of what procedures are required is reasonable Chevron deference approach (Chemical Waste Mgmt. p. 660)
13. The middle ground of procedural requirements in adjudications – organic statutes & regulations There are more formal adjudications than formal rulemakings. But courts still find that the formal requirements of the APA have NOT been triggered. Only one of the three approaches above PRESUMED that the words “hearing,” “public hearing,” etc. meant that the APA’s formal procedures were required. More often organic statutes or agency regulations are the primary source of procedural hearing requirements in adjudications So look to see if the organic statute provides detailed procedural requirements in hearings – e.g. SS Act p. 652 Or if a general statute requires only a “public hearing” maybe the agency has further fleshed out with regulations imposing procedural requirements
14. Hybrid procedural requirements imposed by the courts in adjudications As with Sec. 553 rulemakings, COURTS cannot graft on additional procedural requirements simply because they think more procedures would be better Vermont Yankee prohibition applies to informal adjudications too (see PBGC p. 664) BUT courts can force agencies to create contemporaneous records of decision-making process, which indirectly forces agencies to use certain procedures in informal adjudications to ensure adequate records – Overton Park (more after Spring Break) Courts can also require additional procedures in proceedings that are informal adjudications under the APA if they need to do so to satisfy constitutional due process concerns (as Vermont Yankee noted)
15. How a typicalformaladjudication hearing proceeds – a generalframework & timeline: Initiation of the Proceeding Identity of initiator depends on type of proceeding Licensing vs. benefits vs. enforcement Notice of agency hearing - Sec. 554(b): Must contain: Time/place of hearing, legal authority/jurisdiction, matters of fact/law asserted Individualized notice is required to affected parties Initiating documents can look somewhat different Enforcement hearings = “complaints” – delivered to affected party Licensing applications = lengthy application with law/facts. Application only delivered to agency. Notice published in Fed. Reg. - often invites competing licensing applications.
16. The Formal Adjudicatory Hearing Sometimes there are pre-hearing conferences – specifics usually governed by agency regulations. Agency (e.g., head(s) of agency), member of the agency (e.g., one of the commissioners), or an ALJ shall preside at the hearing - (Sec. 556(a)) Presiding individual shall provide opportunity for partiesto present Oral or documentary evidence, rebuttal evidence, cross-examination - Sec. 556(d) But FRE don’t apply and cross-ex can be limited Parties have right to have counsel at hearing – Sec. 555(b) Under Sec. 556(c) presiding officer has significant power to Take/have depositions taken – many agencies elaborate on this Issue subpoenas Rule on procedural issue Regulate the course of the hearing Allow 3rd parties to participate
17. The Decision and Appeals W/in the Agency When the agency did not preside at hearing (almost always the case), the person presiding shall issue either an initial or tentative decision Prior to these decisions, parties can submit proposed findings or exceptions – Sec. 557(b)&(c) If aninitialdecision, it becomes final if no appeal to the agency If there is an appeal to the agency, it will be treated much as a judicial appeal – i.e., based on a defined record - Sec. 556(e) BUT reviewing agency has the same powers as initial decision maker (unless it limits the issues by notice or rule). It can accept/reject findings as it wants - Sec. 557(b) If a tentative decision, it automaticallygoes to the agency for final decision Again, the agency will make its decision based on the record in Sec. 556(e) although it can accept and reject findings as it wants