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Agency
files may be used like any other source of evidence where the agency is not bound to
decide on the basis of a closed record. Where a closed record decision is required, use of
outside evidence from any source, including agency files, would violate the whole record
requirement. If evidence is needed from the agency files, the record must be reopened with
notice and opportunity for comment given all parties. Where a party seeks discovery of the
contents of agency files that are not subject to open records requirements, the party may have
to demonstrate a specific need. |
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The
agency decision in an adjudication is based upon the whole record, including the ALJ
decision. The agency has essentially de novo decisionmaking authority when it receives the
ALJ decision. The final decision includes rulings on motions made at the ALJ hearing. The
APA usually provides that the parties have an opportunity to comment on the ALJ decision.
This comment may be written or oral, depending upon the procedural rules of the agency. |
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The
burden of proof lies upon the proponent of a position. The most common burden of proof
for agency level decisionmaking is the preponderance of the evidence test. In exceptional
situations, clear and continuing evidence may be needed. The agency level burden of proof
requirement should not be confused with the judicial scope of review test that is authorized by
most APAs, the substantial evidence test. |
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Agencies
usually have a delegation sufficiently broad to permit them to change policies over
time. In rulemaking, of course, a new rule usually means a change of policy. The agency
must
meet whatever statutory requirements there are for justifying the promulgation of a rule. In
adjudication, the agency may be required by case law or APA to give some reasons for a
policy shift. Without an agency explanation, the courts may remand the decision back to the
agency. An agency is required to follow its legislative rules until they are changed by new
legislative rulemaking procedures. The doctrine of estoppel is an equitable doctrine which the
courts may or may not apply to agency advice in a given situation. That is to say, the agency
is
not necessarily bound by what it has informally done or said in the past. When the agency
seeks to change its policy developed through adjudication, it must give reasons for the change.
Sanctions are not required to be consistent application from case to case so long as the
sanctions remain within the statutory delegation. |
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Findings
may be required in a number of decisions. Findings may be formal or informal. The
findings requirement is most common in formal adjudication. Where there is a change in policy
announced by formal adjudication, an explanation may be required. Where strong evidence is
rejected, there may be a requirement to explain the rejection. In due process hearings, findings
may be required, but not the complete type of findings required in a formal adjudication. An
adjudicatory decision must be accompanied by findings of fact and conclusions of law. In
informal adjudication, some findings may be required in order to provide a basis for judicial
review. Findings are needed to demonstrate that the agency has jurisdiction over a matter.
Findings must be based upon the considerations as they existed at the time of decisionmaking,
and post hoc rationalizations will generally be rejected. Findings are needed when it is
necessary to show that the decisionmaker took into account all of the factors required to be
weighed in the legislation. Demeanor credibility determinations may be required to be based
upon objective criteria, a general requirement of findings. Where multiple allegations were
made in the notice of hearing, findings must be used to demonstrate which particular allegations
were found to be proven. Oregon has a general judicial requirement of substantial reasons that
accompanies its use of the statutory substantial evidence rule in contested cases. |
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When
the decision must be made on the basis of a closed record, as in formal adjudication, the
decision must match the statutorily mandated factors with the facts in the record. If the decision
relies on facts obtained by ex parte contact outside of the record, such as influence or political
considerations it may be found to be in violation of whole record requirement. |
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Courts
often are quite differential to the agency's interpretation of its own statutes. Justification
for this deference is commonly found in the agency's experience and expertise compared to the
generalized, nonexpert experiences of the court. Where the statute is clear in its meaning or
where the court finds itself with comparable expertise, the court is likely to feel itself less bound
by the agency interpretation. The more vague the statute, the more interpretative discretion will
be given to the agency. |
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The
doctrine of nonacquiescence is primarily a feature of the federal system. A federal agency
is likely to have nationwide constituency which means that the agency may find itself in different
federal courts of appeal on essentially the same issues. The agency will frequently be
attempting to establish a single national policy, but one appeals court may find the policy to be
invalid. In another circuit court of appeals, the agency may not acquiesce in the prior circuit
decision. Instead it maintains its national policy. The practical impact is that similarly
situated
individuals may be treated differently depending upon the circuit in which they live, unless the
agency adopts a policy consistent with the dissenting circuits or the US Supreme court
eliminates the circuit conflicts. |
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Public
participation in the decisionmaking hearing process varies with the type of decision
involved. In legislative rulemaking, the general public has a right to comment. In formal
adjudication, the public may only have a discretionary intervention opportunity. Only the
parties have a right to participate in an adjudication hearing. In informal adjudication, rights
of
participation will vary greatly depending upon the terms of the statute involved and the
procedural rules promulgated by the agency. The language of the statute in question may give a
clue on participation. The word "parties" is usually used to designate individuals with
participation rights. The word "persons" is usually used to designate members of the
public
with an opportunity to participate. The word "intervenor" usually is used to designate
individuals who may participate in the discretion of the agency. |
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Where
a decision must be based solely upon the record created at an adversarial hearing, no
evidence outside of the record can be considered. This is generally the case in a formal
adjudication. Where no closed record is required, as is generally the case in rulemaking and is
frequently the case in informal adjudication, the decider can look to any source for information
right up to the moment of decision. Without a record, there is little for a court to do in judicial
review. Identifying the contents of the record in various types of agency actions can be a
difficult task. |
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Most
agency disputes are settled before the matter goes to formal adjudication, in the same
way that most legal disputes are settled before trial. Settlement is likely to be pressed by the
ALJ at the prehearing conference if it has not been reached prior to that point. Various ADR
techniques are receiving increasing attention by government agencies as aids in the settlement
process. |
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1. Adjudication, Formal
