• Adjudication is a quasi-judicial process and is subject to the due
process requirements of the 5th
• Property rights (vs. privileges)
• Liberty and property have been broadly construed by the courts.
• Government jobs
• Post-termination hearings
• Guiding statutes of agencies often specify that agencies conduct
• The requirements for formal adjudication are then outlined in § 554 –
558 of the Administrative Procedure Act.
• The APA does not create a right to a hearing, it only defines
procedural rights when a formal hearing is required by statute.
3. The Adjudication Process
• Adjudication process – process to determine if a
regulated party or parties violated the law.
• Different agencies different procedures
• All must satisfy due process requirements.
• Two ways in which the adjudicatory process can start:
• Based on agencies own inspections (EPA, NRC)
• Based on a complaint from the public (NLRB)
4. Adjudication Based on Agency
Inspections (EPA, NRC)
1. Agency Inspection, Search, and Seizure
Inspections can be conducted in one of two ways:
• Inspection of facility to ensure that you are storing toxic substances correctly.
Amendment concerns about search and seizure
• Administrative searches are typically not subject to 4th
1. Notice of Inquiry (NOI)
Notification that the agency is going to conduct an investigation.
A preliminary inquiry into every complaint
NOI is published in the Federal Register
• NOI’s make up a sizable part of the Federal Register
The agency collects facts for evidence and possibly moves to the next step
if there is sufficient evidence against the charged party.
• Investigated party must provide evidence or go to jail (equivalent: subpoena)
• You may invoke your 5th
If the NOI demonstrates enough evidence…
5. Adjudication Based on Agency
Inspections (EPA, NRC)
3. Notice of Violation (NOV)/Formal Complaint/Determination of
Name depends on the agency.
Notice requirement – legal notification essential to be given to
interested parties before administrative or judicial action takes
place. (section 554 of the APA)
• A basic part of due process:
• Establish the time, place, and nature of the hearing to be held.
• What law did you violate
• Date of the hearing
• Proposed penalty
o Real penalties are attached to violations
Equivalent: being served/indictment
• You are formally charged with the crime
• Here you are formally served the complaint
NOV is published in the Federal Register
• < 20% go beyond NOI
6. Adjudication Based on Agency
Inspections (EPA, NRC)
4. Filing an Answer
Must have a clear admittance or denial to the
allegations in the complaint.
Opportunity to request a hearing.
Raise any affirmative defenses against the allegations.
Most do not go beyond this stage as the party will
admit to the charges in the complaint.
If it is challenged then it goes to the next stage…
7. Adjudication based on
complaint from the public
1. Complaint Letter from the Public
Employer or union files a complaint against
another for violating the National Labor
Relations Act (NLRA).
• Unfair labor practices
At the NLRB, the complaint is filed in one of
the 51 regional offices.
• Throw out frivolous complaints.
• A small investigation is conducted by an
agency attorney to ensure the validity of the
1. Serving the Complaint and Notice of
This step is similar to the Notice of Violation.
Serves the notice requirement.
1. Reply from Respondent
8. Shared Stages of the
1. Pre-Hearing Conference
Section 556 of the APA requires that the presiding officer hold
a pre-hearing conference for the purpose of:
• Attempted settlement
• Simplification of the issues (agreed upon facts)
1. Administrative Hearing
• Non-jury civil trial
If the charge by the agency is contested and pre-hearing
settlements fail, then there is an administrative hearing.
Many agencies have their own “courts” and judges.
Administrative law judge (ALJ) – officers appointed to hear
and determine controversies before administrative agencies of
10. Administrative Law Judges (ALJ)
Agency Number of ALJS
Department of Agriculture 3
Department of Justice 4
Department of Labor 44
Department of Energy 15
Department of Education 1
Department of Health and Human Services 70
Department of Homeland Security 7
Department of Housing and Urban Development 2
Department of the Interior 11
Department of Transportation 2
Department of the Treasury 1
Environmental Protection Agency 3
Federal Communications Commission 1
Federal Trade Commission 1
National Labor Relations Board 39
Securities and Exchange Commission 3
Social Security Administration 1448
Federal Labor Relations Authority 3
Commodities Futures Trading Commission 2
Federal Maritime Commission 2
National Transportation Safety Board 4
U.S. International Trade Commission 6
Occupational Safety and Health Review Commission 12
Federal Mine Safety and Health Review Commission 19
11. Administrative Law Judges (ALJ)
• Pay not determined by the agency.
• Permanent employee – cannot easily be removed
• Must have a hearing before the MSPB in order to be removed. (§7521)
• Must not have a financial interest in the case.
• Merit employee hired through OPM
• Lifetime appointment
• Role of the ALJ:
• ALJ can only decide based on the evidence
• Administer oaths and affirmations
• Issues subpoenas (call witnesses to testify)
• Determines the admissibility of evidence
• Make findings of fact
• Develop a record of evidence
12. Administrative Law Judges and the
Figure 1: Partisanship and ALJ Voting 1991 - 2006
Republican ALJ Democratic ALJ Independent ALJ
Pct Pro Business Pct Split Pct Pro Labor
13. Administrative Courts
• Courts just like real courts
• Adversarial legal style
• Burden of proof:
• Preponderance of evidence (civil suits)
• Statute may allow for higher burden (clear and convincing evidence)
• Not beyond a reasonable doubt (criminal)
• If there was criminal intent, the case usually does not stay within the agency, instead it
moves to the Department of Justice.
• The Right to Counsel
• Section 555 of the APA provides that “[a] person compelled to appear in person before
an agency or representative thereof is entitled to be accompanied, represented, and
advised by counsel.”
• Only applies to adjudication subject to APA
• Does not apply to investigatory procedures
• Government does not have to provide counsel
• Equal Access to Justice Act (Section 504 of the APA)
• A prevailing party can seek to have the government pay counsel fees and expenses if the
government’s position was not “substantially justified.”
14. Shared Stages of the
3. Initial Decision
• This is a determination of whether the charged party is liable.
• Results are given in a written opinion:
• Findings of fact
• Conclusions of law
• The penalties, if any, associated with the violation
• Decision may be appealed to the political appointees (board members or commissioners)
• If this occurs it is not a retrial, but an examination of the record of evidence developed by the ALJ
• ALJ decisions are seldom overturned
• This adds legitimacy to the initial decision.
3. Final Order
• When appealed to the political appointees, these members may either agree or disagree with
the initial decision.
• If they uphold the decision, the decision then becomes precedent
• So the challenger must decide if they want to challenge or not because they run the risk that if
they lose the initial decision could become agency precedent.
• Appointee decisions can be appealed to federal courts
• Exhaust all administrative remedies
• Few decisions ever reach the appointees
15. 5. Appealing Cases to the Federal Courts
The United States Supreme Court
United States Courts of Appeals
United States District Courts
Board Members of the NLRB
Administrative Court (ALJ)
NLRB Regional Office (51 Total)
Question of Law
Question of Fact
= Federal Courts
= National Labor