Chapter 3

Part II

ALJs versus Article III Judges

Article III Judges Protections

Lifetime tenure Cannot reduce salary Cannot fire, only impeach Cannot discipline

Why do we have these protections?

How are state judges different?

ALJs Civil service protections

Can be fired Can have salary lowered,

but hard to do this Can set work standards

and discipline How are the pressures

different than those on an Article III judge?

What about contract ALJs that some states use?

Hearing Procedure

Discovery Not provided for by the APA Some agencies allow discovery Why is less of an issue than in Art. III trials?

ALJ's opinion v. Art. III judge's opinion How is the ALJ's opinion different? Keep this in mind when we read Wooley They do also decide matters of law, but it is not

binding on the agency

How does the Agency Treat the ALJ's Opinion?

What is an initial decision, in contrast to a recommended decision?

Why did the EPA switch to allowing ALJ decisions to be final decisions if the agency did not act and there were no internal appeals in 45 days? Keep this in mind when we read Wooley

We will discuss agency rejection of ALJ opinions in the chapter on judicial review

Ex Parte CommunicationsArt III Trials v. Adjudications

Why are these forbidden in Article III trials? Why are they less of a problem in agency proceedings?

How is the relationship between a litigant and the court different between a litigant and an agency?

Why is knowledge by the judge of the issues and parties treated differently from a trial?

Are the APA restrictions on ex parte communications like those for Article III trials?

Requirements of Formal Adjudications

No ex parte communications - 557(d) What is the extreme sanction for a party who

violated this ban? What is the loophole for agency personnel?

Right to present evidence and subpoena witnesses Generally like a trial

Must be presided over by an ALJ or the Secretary

Separation of Functions

How does this cure the loophole of communication with agency personnel? Why do we care?

Separation of function has very different results in a large federal agency than in small state agencies Federal - still in the agency States - often outside the agency (central

panel), losing all expertise

EPA Example

Can the EPA ALJ consult with an EPA scientist to better understand a case? 557(d)

Can the EPA ALJ consult with an agency lawyer about law?

What about consulting with the lawyer prosecuting the case?

Can the ALJ consult with a party in the case, outside of the proceeding?

Consumer Product Safety Commission Example

Can the commissioner consult with the ALJ in an ongoing case? What is the key question?

What are the issues if the commissioner consults with the head prosecutor of the agency?

What about consulting with the heads of companies not currently before the agency? Can ex parte contacts occur before a

proceeding?

Procedures for Informal Adjudications

Not specified in the APA Some are specified in the agency enabling law Key is that the agency has to follow whatever

procedures it sets up Due process is the main concern, which is the

subject of the next chapter Informal adjudications are generally heard by an

AJ, not an ALJ

Section 555

Section 555 applies to all adjudications

Who Gets to Appear Before the Agency?

Persons who are required or entitled to appear before the agency may be represented by counsel Who pays for counsel?

What are the problems if interested persons who are not parties are allowed to intervene? What is the problem if they are not allowed?

What about nuclear power plant licensing? Who is interested?

Licensing and Permitting

Using lawyers as an example, what are the basic legal requirements for licensing?

What are the enforcement advantages of requiring a license as compared to having the agency look for violations in an ongoing activity? Health food supplements v. drugs? Pit bull ordinances versus dangerous dog

laws?

Licensing under the APA

How are the legal standards for initial licensing different from a license review or revocation? Why?

How are the potential parties different for a law license than for a TV station license? How does this change the adjudication?

What is the basic due process requirement for revoking a license? When can it be done without this process? What process can be substituted?

Section 558

Section 558 applies to licensing Who sits on state licensing boards? What about the small ones? What due process problems does this pose? Does a central panel of ALJs solve this? Think about this with Wooley