Adjudication Roadmap
-Initiation – notice of time, place, nature of hearing and legal authority
-Opportunity to settle
-Impartial decision maker (usually ALJ)
-but has investigatory (for both sides) and decisional function
-doesn’t matter that fines increase budget/institutional livelihood
-American Cynamid v. FTC (6th Cir. 1966): vacated ruling because FTC chairman had been part of legislative history that addressed same issue
-Cinderella Career & Finishing Schools, Inc. (D.C. Cir. 1970): public statement that advertising was deceptive showed he had prejudged the case
-Decision-maker separate from prosecutorial functions
-supposed to be independent
-if not only thing you can do is remove – less than 10 ALJs have ever been removed
-e.g. labor dept. decides prosecutions under OSHA and commission (outside dept. hears case
-AG argues for internal separation
-BUT SC never said complete separation required
-Need record
-Decision must rely on evidence in record
-No ex parte contacts except with presiding officer and agency members
-Appearance personally or through parties
-Discovery – APA mostly silent but subpoenas may be available
-Can present evidence and cross-examine witnesses
-APA says entitled to cross-examination but don’t always get it
-Hearsay acceptable (See Richardson v. Perales (1971) : written medical reports adequate in disability case – no cross examination rights)
-case said they could have subpoenaed doctor but SSA almost never grants subpoenas
-rejects the residuum rule that “substantial evidence” requires record to contain at least a “residuum” of non-hearsay support for fact-finding
-Burden of proof
-on party proposing order (usually agency but person in license case)
-preponderance of the evidence (See Steadman v. SEC; APA is silent)
-Mashaw – Bureaucratic Justice
-Base adjudication on moral judgment – who deserves what; values OR
-Base on bureaucratic rationality – accurate, cost effective
-Product of hearing is final or tentative decision that agency must adopt
-Appeals as of right or discretion
-Agency has “all the powers which it would have had in making the initial decision (See  557(b))
-agency decision must be supported by substantial evidence – less than preponderance and more than scintilla
-can be hearsay (See Richardson v. Perales)
-examiner does not get same deference as trial court (See Allentown Broadcasting Corp. (1955), but reviewing entity should be careful in reviewing ALJ who heard witnesses when findings turn on credibility (See Universal Camera (1951))
-Res judicata has less force (e.g., can contest welfare denial multiple times)

*Equitable estoppel doesn’t apply to statements of admin employees