Admin Law: Informal Adjudication Trigger and PDP

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sabina.kopusov
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Admin Law: Informal Adjudication Trigger and PDP

Postby sabina.kopusov » Wed Apr 24, 2013 9:37 pm

Hi all. I have an exam coming up and I have the following question:

How do you identify when adjudication is informal i.e. what language triggers it, and what process is due?

In a sample question, an agency creates a new body that adjudicates claims (that word is never used). Petitioners submit claims and the body analyzes them and returns an answer. A) I'm thrown by the external body created (is it relevant)? B) Formal rule making is triggered by "hearing on the record" right? but is there language for informal adjudication? And is constitutional DP the only thing that applies, or do some APA provisions apply? For that matter, if the petitioner demands formal adjudication, what process/steps is he asking for?

Thank you in advance. Hope you can help.

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ph14
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby ph14 » Wed Apr 24, 2013 9:50 pm

sabina.kopusov wrote:Hi all. I have an exam coming up and I have the following question:

How do you identify when adjudication is informal i.e. what language triggers it, and what process is due?

In a sample question, an agency creates a new body that adjudicates claims (that word is never used). Petitioners submit claims and the body analyzes them and returns an answer. A) I'm thrown by the external body created (is it relevant)? B) Formal rule making is triggered by "hearing on the record" right? but is there language for informal adjudication? And is constitutional DP the only thing that applies, or do some APA provisions apply? For that matter, if the petitioner demands formal adjudication, what process/steps is he asking for?

Thank you in advance. Hope you can help.


Informal adjudication is basically a "catch-all" for types of agency action. Anything that isn't an informal rulemaking, formal rulemaking, or formal adjudication falls under informal adjudication. It's defined with reference to what it is not.

What process is due will depend on whether due process applies. This depends on whether there is a property or liberty interest at issue, and whether the Mathews v. Eldridge balancing requires procedures, and if so, what and when.

A) It seems like it could be relevant for due process concerns depending on facts you haven't given us, such as perhaps bias, impermissibly mixing agency functions. I think there could also be a subdelegation issue, at least if the body is external to the agency (which is probably something you would have to discuss).
B) That is correct. It's the same thing for informal adjudication, except it would be statutory language along the lines of "the agency may issue an order pursuant to section 1(a) after a hearing." That would, arguably, trigger only informal adjudication provisions of the APA (I say arguably because there was a circuit split on the issue; but post Chevron an agency is likely to get deference in interpreting "hearing," and in all likelihood they would interpret hearing to mean that this provision requires only an informal adjudication). There are APA provisions that apply, I think section 555, but I can't recall off the top of my head, but it is not significant. Informal adjudication can be reviewed under APA 706(a)(2) the arbitrary and capricious standard.

When someone requests a formal adjudication they are looking for trial type procedures, such as an opportunity to present oral and written testimony in front of a disinterested administrative law judge, etc.
Last edited by ph14 on Thu Apr 25, 2013 12:09 am, edited 1 time in total.

sabina.kopusov
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby sabina.kopusov » Wed Apr 24, 2013 10:27 pm

Thanks for your prompt answer.

Sorry just to clarify, "the agency may issue an order pursuant to section 1(a) after a hearing." triggers formal or informal adjudication? the former? so if I dont see language like that, its informal? i dont have the hypo in front of me, but it definitely provided for some hearing but with non-specific language.


Also the property interest was something I would have to analyze in that hypo. Shareholders in a company that had an agency dilute their stock were petitioning the agency and I think it was a property interest and standing question. If i remember correctly there was some case in the Gilbert book that talked about how if there are collateral consequences to another entity being deprived of property you haven't been directly deprived and PDP doesn't apply. But you do have constitutional standing, right (three elements met)? Does the intervenor stuff apply? I have no clue about that. Clearly I am out of my depth....

EDIT: if you did mean that language triggers informal adjudication, then what language triggers formal? Is formal adjudication part and parcel of formal RM?

EDIT #2: One outline says the answer to my q has never been addressed, but the DC circuit has suggested that the presumption of informality re: rulemaking should extend to adjudication. But that doesn't answer the question of when formal adjudication is triggered, unless ^ that language is the answer. Sorry for being so verbose. Your one answer helped put a lot together.

Also I found the Dominion case which says agencies get Chevron deference for evaluating what "hearing" means in their statute. So does that mean no language can trigger formal adj?

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ph14
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby ph14 » Wed Apr 24, 2013 10:48 pm

sabina.kopusov wrote:Thanks for your prompt answer.

Sorry just to clarify, "the agency may issue an order pursuant to section 1(a) after a hearing." triggers formal or informal adjudication? the former? so if I dont see language like that, its informal? i dont have the hypo in front of me, but it definitely provided for some hearing but with non-specific language.


Also the property interest was something I would have to analyze in that hypo. Shareholders in a company that had an agency dilute their stock were petitioning the agency and I think it was a property interest and standing question. If i remember correctly there was some case in the Gilbert book that talked about how if there are collateral consequences to another entity being deprived of property you haven't been directly deprived and PDP doesn't apply. But you do have constitutional standing, right (three elements met)? Does the intervenor stuff apply? I have no clue about that. Clearly I am out of my depth....

EDIT: if you did mean that language triggers informal adjudication, then what language triggers formal? Is formal adjudication part and parcel of formal RM?

EDIT #2: One outline says the answer to my q has never been addressed, but the DC circuit has suggested that the presumption of informality re: rulemaking should extend to adjudication. But that doesn't answer the question of when formal adjudication is triggered, unless ^ that language is the answer. Sorry for being so verbose. Your one answer helped put a lot together.


"Hearing," "full hearing," "after a hearing," "present evidence at a hearing," etc. = informal adjudication
"Hearing on the record" = formal adjudication

For the stock hypo, it depends on the action. Due process only attaches in cases of an agency adjudication. So if it was a rulemaking, there is no due process issue. I would guess there would be a property right affected here, as you have a property right in your stock? There should be Article III standing based on the economic injury. It's hard to tell without looking at the specifics in front of me and how everything is being framed and such.

No clue on intervenor stuff.

sabina.kopusov
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby sabina.kopusov » Wed Apr 24, 2013 10:51 pm

So basically, formal adjudication always follows formal rulemaking, more or less? Thank you. Doesn't comport with Dominion, but I'll take your word over this outline. Is it alright if return to this thread in the coming week or so? Need more help with what is easily the worst class I've taken in law school. Taking it p/f but I don't know what the threshold is for passing...

EDIT: From my textbook (Admin Law, Mashaw, Merrill): "Dominon...overturned precedent in deference to EPA's determination that applicants for...permits were not entitled to formal hearings under that statute's requirement of an "opportunity for public hearing.""

Sorry to put you through all this. I hope I haven't foreclosed my opportunity to ask more questions.

sabina.kopusov
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby sabina.kopusov » Wed Apr 24, 2013 11:24 pm

I was being stupid. They're obviously not mutually exclusive. Your specific language triggers formal, otherwise reference "hearing" is at agency's discretion. Thanks for helping me work through this.

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Nelson
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby Nelson » Wed Apr 24, 2013 11:50 pm

ph14 wrote:
"Hearing," "full hearing," "after a hearing," "present evidence at a hearing," etc. = informal adjudication
"Hearing on the record" = formal adjudication

This isn't right. There's a circuit split. Some circuits have a presumption for formal adjudication (you get it unless statute or rule explicitly provides against), some have a presumption against (so it follows the magic words holding for formal rulemaking as you said), and the majority (including DC Cir.) apply Chevron-like deference to a permissible agency interpretation in the absence of unambiguous statutory or rule provisions.

sabina.kopusov
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby sabina.kopusov » Thu Apr 25, 2013 12:00 am

my textbook has what you said but with the circuits inversed: Chemical Waste (DC Cir.) = presumptive APA, Dominion (1st Cir.) Chevron deference. Will have to ask prof, really wanted to avoid that. Will definitely have more questions. Is it proper decorum to continue asking in a single thread or start a new one? Thx all for your help.

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ph14
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby ph14 » Thu Apr 25, 2013 12:03 am

Nelson wrote:
ph14 wrote:
"Hearing," "full hearing," "after a hearing," "present evidence at a hearing," etc. = informal adjudication
"Hearing on the record" = formal adjudication

This isn't right. There's a circuit split. Some circuits have a presumption for formal adjudication (you get it unless statute or rule explicitly provides against), some have a presumption against (so it follows the magic words holding for formal rulemaking as you said), and the majority (including DC Cir.) apply Chevron-like deference to a permissible agency interpretation in the absence of unambiguous statutory or rule provisions.


Yes, that's what I said in my first post... I was simplifying here for clarity's sake. I wouldn't quite characterize it as a "presumption," though, more like how that circuit has interpreted the word "hearing," i.e., whether it triggers formal adjudication or not. But after Chevron, I'd have to doubt the validity of a circuit interpreting "hearing" to clearly require formal adjudication (assuming the agency's interpretation satisfies the threshold question of whether the interpretation should receive Chevron deference).
Last edited by ph14 on Thu Apr 25, 2013 12:08 am, edited 1 time in total.

sabina.kopusov
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby sabina.kopusov » Thu Apr 25, 2013 12:07 am

Wow I got lost in the back and forth. Yeah you said all of that in the first post. I was distracted by the formal/informal distinction I asked about. It seemed counter-intuitive b/c I understood it as informal having specific triggering language whereas you followed immediately after with deference. Thx. I think with pass/fail I'm going to just throw out Dominion and Chemical hail-mary's and hope for the best. Hope I can turn to you guys for applicable APA provisions next week when I freak out about that. Thanks!

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Nelson
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby Nelson » Thu Apr 25, 2013 12:40 am

Yeah, my mistake, I didn't read your first post closely enough.

9th Cir. still has presumption that "hearing" alone triggers formal adjud., though most people do think it's probably doomed. 1st Cir. Dominion overturned Seacoast v. Costle and brings them in line with DC holding in Chem Waste. 7th Cir. gives formal proceedings only where on the record appears. But I'd still mention all three approaches on a non-specified jurisdiction exam.

sabina.kopusov
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby sabina.kopusov » Thu Apr 25, 2013 12:42 am

Wait Chemical Waste and Dominion are in line? I thought they were in conflict. One is deference, the other is presumptive?

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Nelson
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby Nelson » Thu Apr 25, 2013 12:46 am

sabina.kopusov wrote:Wait Chemical Waste and Dominion are in line? I thought they were in conflict. One is deference, the other is presumptive?

They're both Chevron deference to agency interpretation of hearing requirements.

sabina.kopusov
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby sabina.kopusov » Thu Apr 25, 2013 12:59 am

Ok, thanks guys. Might pass thanks to your good will. First all-nighter of many.

sabina.kopusov
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Re: Admin Law: Informal Adjudication Trigger and PDP

Postby sabina.kopusov » Thu Apr 25, 2013 1:51 am

I looked through older threads for sample exams/answers but all the links were dead. Are you guys aware of any current sample exams/answers out there? Google yielded nothing useful...




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