V5*’£(§§g§f
`
`as
`
`@&°§@é3 L [ f
`
`DMC Exhibit 2125 001
`
`

`
`ADMINISTRATIVE
`
`LAW
`
`AND PROCESS
`
`SECOND EDITION
`
`By
`
`RICHARD J. PIERCE, JR.
`Paul J. Kellner Professor of Law
`
`Columbia University School of Law
`
`SIDNEY A. SHAPIRO
`John M. Rounds Professor of Law
`
`University of Kansas School of Law
`
`PAUL R. VERKUIL
`President and Professor of Law
`
`College of William and Mary
`
`Westbury, New York
`THE FOUNDATION PRESS, INC.
`1992
`
`
`
`DMC Exhibit 2125_002
`
`

`
`
`
`INC.
`COPYRIGHT © 1985 THE FOUNDATION PRESS,
`COPYRIGHT © 1992 By THE FOUNDATION PRESS,
`INC.
`615 Merrick Ave.
`Westbury, N.Y. 11590
`
`Aii rights reserved
`Printed in the United States of America
`
`Library of Congress Cataloging-in-Pubiication Data
`Pierce, Richard J.
`Administrative law and process / by Richard J. Pierce.
`A. Shapiro, Paul R. Verkuii. —— 2nd ed.
`p.
`cm. —- (University textbook series)
`Inciudes index.
`ISBN O—88277—968v0
`2. Administrative
`1. Administrative iaw—United States.
`procedure——United States.
`I. Shapiro, Sidney A., 1947—
`ii. Verkuii. Paul R.
`iii. Title.
`IV. Series.
`KF5402.P53
`1992
`342.73’06——dc20
`
`.ir., Sidney
`
`(347,3o2s]
`P.. S. 8: V. Adrnin.Law 8. Proc. 2nd Ed. UTB
`
`91-44305
`
`I
`1
`
`DMC Exhibit 2125_003
`
`

`
`
`
`280
`
`JUDICIAL CONTROL—PROC'EDURAL ISSUES
`
`Ch. 6
`
`opposing evidence and to cross-examine opposing witnesses, resolu-
`tion of factual issues based exclusively on evidence admitted at trial,
`and written findings and conclusions.
`
`§ 6.4.3a The central role of the Administrative Law
`Judge
`the
`All
`formal adjudications must be presided over by (1)
`agency;
`(2) one or more members of the body which comprises the
`agency; or, (3) one or more Administrative Law Judges (ALJ).“‘3 As
`a practical matter, the presiding officer almost always is an ALJ,
`simply because most agencies have far too many cases to designate
`either the agency (usually a cabinet officer, commissioner or collegi-
`al body) or a member of the agency (usually one of several commis~
`sioners in a collegial body) to preside over any single adjudication.
`The ALJ presides over the entire trial stage of an adjudication,
`with the agency assuming a role roughly analogous to that of an
`appellate court. The ALJ regulates the course of the proceeding,
`including scheduling, resolution of procedural and evidentiary dis-
`putes, and ultimate issuance of an initial decision.
`Administrative law judges are almost entirely independent of
`the agencies at which they preside. Their pay is prescribed by the
`Office of Personnel Management independent of any evaluations or
`recommendations made by the agency.“ An agency can take no
`action against an ALJ without convincing a separate agency that
`good cause exists for doing so. The agency must use a formal
`adjudicatory proceeding to resolve the good cause issue!“ ALJ’s
`are assigned to cases by rotation, and an agency can omit the initial
`decision of the ALJ assigned to a case only if the ALJ becomes
`unavailable or the agency finds “that due and timely execution of
`its functions imperatively and unavoidably so requires”.15° Finally,
`an ALJ cannot be subject to supervision or direction by any agency
`employee with investigative or prosecutorial functions and cannot
`consult any person on any fact at issue in a proceeding without
`providing all parties notice and opportunity to participate!“
`In short, ALJ’s are very nearly as independent of federal
`agencies as federal trial judges are of the executive branch. This
`high degree of independence of ALJ’s from agencies is designed to
`protect the rights of individuals affected by agency adjudicatory
`decisions from any potential sources of bias. The high degree of
`153.
`5 U.S.C. § 55603).
`156.
`5 U.S.C.
`§§ 557(b)(2), 557(d),
`154.
`5 U.S.C. § 5372.
`3105-
`155.
`5 U.S.C. § 3105.
`157.
`
`5 U.S.C. § 554(d).
`
`DMC Exhibit 2125_004
`
`

`
`
`
`
`
`,~,v~—«.~«..»w.—;.:.«a.~4,».,.an»sv_-,w«mwmm..5...’-..
`
`
`
`
`
`281
`STATUTES
`§ 6.4
`independence of ALJs also can cause serious problems of inter-ALJ
`inconsistencies in decision—making, however.“
`
`§ 6.4.3b Notice
`All persons potentially affected by an agency’s resolution of a
`formal adjudication must be given notice of the time and place of
`the hearing, the legal and jurisdictional authority for the hearing,
`and the matters of fact and law asserted.” Opposing parties then
`* must be given an opportunity to indicate the factual and legal issues
`they intend to contest. Again, the analogy to a judicial trial is
`nearly perfect. The agency files a pleading in the nature of a
`complaint, and the respondent files a pleading in the nature of an
`BIISWBI‘.
`
`
`
`.~,-«..~,...,._,..
`
`T
`
`§ 6.4.3c Presentation of evidence
`A party to a formal adjudication can appear in person or
`through counsel and can present evidence in oral or documentary
`form.“‘° A party must be permitted “to conduct such cross-examina-
`tion as may be required for a full and true disclosure of the facts”.161
`This language seems to provide an ALJ some flexibility to limit
`cross-examination of opposing witnesses, but in practice ALJ’s rare-
`ly exercise this authority for fear of reversal of the agency’s final
`decision on procedural g'rounds.‘°2
`Agencies are not required to use the rules of evidence applicable
`to courts.
`Indeed, one of the reasons Congress allocates certain
`types of disputes to agencies instead of to courts is to eliminate some
`of the excessively technical aspects of court litigation. Compliance
`with all the technical formalities of proof would impose a substan-
`tial burden on agencies with large caseloads. Moreover, many of
`the rules of evidence are far more valuable in jury trials than in
`agency proceedings. Thus, for instance, agencies can admit and
`rely on hearsay evidence to a greater extent than courts!“
`In
`addition, agencies frequently permit or require parties to submit
`direct testimony in “canned” or pre-drafted written form.“ An
`agency is not entirely unfettered in its discretion to admit or
`158. See Pierce, Political Control uer-
`162. See, e.g., Reilly v. Pinkus, 338
`sus Impermissible Bias in Agency Deci- U.S. 269 (1949).
`sionmaking: Lessons from Chevron and
`63
`873 :'2dRff§f’f§‘§‘§§‘
`Mistretta, 57 U.Chi.L.Rev.481(1990).
`Ra1nd‘9:j1"e€r:..2f'ig';362
`159_
`5 U_s_C_ § 554(b)_
`cert. denied 304 U.S. 576 (1938).
`164. See Gellhorn, Rules of Evidence
`and Official Notice in Formal Adminis-
`161. 5 U.S.C. § 556(d).
`lrative Hearings, 1971 Duke LJ. 1, 87.
`
`NLRB
`
`»
`
`
`
`
`
`
`
`
`
`3
`
`~~-—~~--~v~~~rv~-vv—~.~-«<--re«~~.-~-«-««es...s.i-.-..y..w.m-_..~~..,--r...~....m...-.....«._.-.,....l.,,
`
`
`
`
`
`
`
`
`
`_.....,...,—.¢._....,.'7”N.......~i,...
`
`~
`
`E
`l
`
`160'
`
`5 U'S'C' §§ 555%)’ 556<d)'