PADP 6490 Chapter Notes - Chapter 5: Administrative Procedure Act (United States), Federal Communications Commission, Law Of Agency
8 Oct 2019
School
Department
Course
Professor
PADP 6490 Administrative Law
Martinez, Fall 2019
Require Reading 5, Part I!
Werhan, Keith. Principles of Administrative Law. Third Edition. St. Paul, MN: West Academic
Publishing, 2019. ISBN: 9781640201811
Werhan Chp 5, Formal Adjudication Under the Administrative Procedure Act
•Separation of Functions
-APA requires “an internal separation of the functions between the agency officials who
hear and decide and those who investigate and prosecute”
-Institutional Separation of Functions (Section 554(d))
-Limitations
•no consultation rule applies only to ALJs; ALJs cannot consult with a party on
fact in issues unless on the record in front of all parties
•agency law enforcement personnel cannot participate in decision making
•Formal Adjudication Process
(1) Pre-hearing Procedures
•notice of agency hearing specifies time, place, nature of hearing, & legal
authority and jurisdiction of agency
•intervention agencies must allow interested persons to intervene as parties
-Office of Communications of the United Church of Christ v. Federal Communications
Commission
•discovery Freedom of Information Act (individual’s right to obtain copies of
gov’t records
•settlement & pre-hearing conferences consent decrees settled w/o hearing
(2) Hearing
•Basic Parts
-Hearing Officer (ALJ) principal fact-finder & initial decision maker
-Right to Counsel any party to case; must provide own
-Right to Present Evidence orally or documentary evidence
-Right to Cross-Examination required for a full, true disclosure of facts
-Burden of Proof on proponent of an order, unless statue says otherwise
•equivalent to burden of persuasion — must convince decision maker
•equivalent to burden of going forward (production) — determines who
must provide evidence
-Standard of Proof preponderance of evidence, more likely than not
(Steadman v. SEC)
-Rules of Evidence relaxed — specialization & expertise of decision
makers eliminate need for formal rules
-Official Notice of a material fact not appearing in the evidence in the
record
•broad relative scope of authority to notice facts
