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Administrative Hearings & Adjudication

Administrative agencies govern and control a wide variety of activities, from nuclear weaponry to licensing of medical professionals, from cable television to workplace safety, and countless other areas. Administrative law, in turn, sets forth and limits the power of these agencies to create rules and regulations, prohibit certain activities, allow individuals or businesses to obtain licenses to engage in various regulated activities, and punish or penalize behavior that is detrimental to the public good. Many agencies are powerful and wide reaching; others are very narrowly tailored to oversee specific, limited activities.

The procedures by which agencies hold hearings and adjudicate rights vary significantly depending on the agency in question and the issue in controversy. There also may be a large difference in how matters are handled between state and federal agencies. With respect to federal agencies, the Administrative Procedure Act (APA) sets forth some minimum procedures that must be followed in cases in which a statute, other than the APA, requires that the agency hold an evidentiary hearing. There are exceptions to application of these standards. For example, proceedings in which the determination is based solely on inspections, tests, or elections do not require a formal hearing. The importance of formal adjudication has declined in recent years in favor of rulemaking as a means of setting precedence and controlling policy. However, formal adjudications are still important for the fact that they allow agencies to make sometimes-crucial decisions on an individualized level.

In most circumstances, a formal administrative adjudication takes the shape of a trial-type hearing which may then be appealed to the agency head or other appropriate reviewing authority. The hearings are generally presided over by an administrative law judge (ALJ). The hearings, although conceptually similar to a civil trial, actually vary significantly in practice.

If a matter is not required to be adjudicated under the APA, then it is subject to informal adjudication which is often governed by a special procedure set forth in the particular agency's governing statute or the agency's own regulations. Informal adjudications are rarely presided over by ALJs, but are instead handled by presiding officers. A court will, in most circumstances, refrain from second-guessing a determination made in informal adjudication. Importantly, regardless of whether adjudication is formal or informal, the requirements of procedural due process must be met. Further, in almost every case, some type of judicial review of an agency determination is potentially available.

Parties to formal adjudication are entitled to receive notice of the adjudication process. Under the APA, parties entitled to notice must be "timely informed" of the time and place of the hearing, the authority on which the agency is relying, and the matters of fact and law which are in question. The APA authorizes notice pleading, which means that actual notice of facts and issues is sufficient so long as each party has a fair opportunity to be informed of and challenge the positions of the other parties. Notice pleading also allows parties to amend pleadings in order to conform with the proof.

An actual agency hearing generally resembles that of a court trial. First, the parties must participate in prehearing conferences where motions may be heard on the pleadings previously submitted. Once at the hearing stage, some agencies allow for an interval hearing in which the government will present its case and then the matter will be recessed, sometimes for months, to allow for the opposing party to prepare a defense. This differs substantially from civil trials in which there is generally no delay between the presentation of the cases. If the determination of the presiding ALJ or official is contested, it may be appealed to the agency head or other appropriate authority. The inner workings of the process often differ significantly from civil trials. For example, on some occasions, the agency may require that a hearing proceed based solely on written evidence, rather than allowing of oral testimony.

Individuals or organizations which may be affected by an agency ruling, but which are not parties to the proceeding, may seek to participate in some manner in the hearing. The involvement of these entities may vary between testifying at the hearing, supplying evidence, filing amicus curiae briefs, and actual intervention. Intervention has both positive and negative effects on a hearing. By intervening, the interested entity is able to control more precisely its involvement in the hearing, but the presence of an additional party may slow down the overall process or in some cases have an adverse effect on the interests of one of the actual parties.

Another significant difference between administrative adjudications and civil practice is the availability of discovery. In civil litigation, discovery is often intense and broad-reaching. In administrative adjudications, there are no real rules governing discovery against the agency with the exception of the Freedom of Information Act (FOIA). Therefore, the method and breadth of discovery is left to the discretion of the particular agency as expressed in the governing statutes and agency internal rules and, consequently, there is a notable difference in discovery practices between each agency. The limitation on discovery does not mean that no information is available to the parties. Most formal agency adjudications follow a staff investigation of the matter. Staff investigations are generally far-reaching and require that all relevant information that might assist the decision-makers be uncovered and shared. Individuals may also invoke the powers of the FOIA to obtain information contained in the agency's files.

With respect to evidentiary issues, administrative adjudications usually allow for the broad presentation of evidence. With respect to the problem of hearsay evidence, the APA is much more relaxed than the Federal Rules of Evidence and, as a matter of policy, allows for the admission of any evidence which is not irrelevant, immaterial, or unduly repetitious. Of course, an individual agency may have different rules for admissibility of evidence in practice. In fact, a few agencies have adopted the Federal Rules of Evidence as their own and therefore apply the stricter rules prohibiting hearsay evidence in their adjudications

Chronology of an EEOC Charge

If an employer discriminates against an employee while making hiring and firing decisions, the employee may choose to file a charge with an independent federal agency called the Equal Employment Opportunity Commission (EEOC). The EEOC handles all types of discrimination matters, including those relating to hiring and firing decisions. The following provides a chronology of how the EEOC handles complaints that it receives.

Filing the Charge

• Any individual who believes that he or she has been discriminated against in the course of a hiring or firing decision may file a charge of discrimination with the EEOC.

  Note: An individual who brings a charge is called the "charging party." The "charging party" may also be an agency or other entity acting on behalf of an individual in order to protect the individual's identity. Throughout this document, the charging party is referred to solely as the "individual."

• A charge may be filed either by mail or in person at the EEOC office nearest to where the individual is located. By calling 1-800-669-4000 or 1-800-669-6820 (TTD), an individual can be automatically put in touch with the local EEOC office.
  
  
• In order to file a charge, individuals must provide their name, address, and telephone number. The name, address, and telephone number of the employer who is accused of discriminatory practices must also be included. If known, the charge must also contain information on the number of employees retained by the employer.
  
  
• The charge must contain a short description of the alleged violation(s) or discriminatory act(s), including the date(s) of the violation(s).
  
  
• All laws that the EEOC enforces, with the exception of the federal Equal Pay Act, require that an individual first file an EEOC charge before a private lawsuit is filed in court.
  
  
• In most cases, a charge must be filed with the EEOC within 180 days from the date of the alleged violation.

  Note: If the charge is also covered by a state or local anti-discrimination law, the 180-day period is extended to 300 days. For Age Discrimination in Employment Act charges, only state (and not local) laws will extend the deadline to 300 days.

Employer Notification

• Once the charge is filed, the EEOC will notify the employer that a charge has been filed against it.

Investigation

• A charge may be assigned a priority investigation if the initial review appears to support a violation of the law. If the evidence is not as strong, a follow-up investigation may be conducted in order to determine whether it is likely that a violation occurred.
  
  
• The EEOC has the power to perform "discovery" during its investigation. This power includes the right to make written requests for information, interview people, review documents, and visit the location where the alleged discrimination took place, if necessary.
  
  
• Once the investigation is complete, the EEOC will discuss the evidence with both the individual and the employer.

Resolution of the Charge

• The EEOC can attempt to initiate a settlement of the charge at any time during its investigation if both the individual and the employer are interested in doing so.
  
  
• If both the individual and the employer express an interest, the charge may be selected for the EEOC's mediation program. Charges placed in the mediation program receive a limited investigation. If the mediation is not successful, the charge will be give further investigation.
  
  
• The EEOC has the power to dismiss a charge at any point if, in the EEOC's best judgment, further investigation will not establish a violation of the law.

  Note: A charge can even be dismissed at the time it is filed if an initial detailed interview does not produce evidence that would support the claim.

• When a charge is dismissed, the individual must be given notice in what is known as a "right to sue" letter. The individual has 90 days in which to commence a private lawsuit once the charge is dismissed.
  
  
• If evidence uncovered in the investigatory stage reveals that discrimination has occurred, the individual and the employer will be informed by a "letter of determination" which sets forth the findings of the EEOC.
  
  
• Once the letter of determination has been sent, the EEOC will attempt to develop a remedy for the discrimination with the employer. This is a process called "conciliation."
  
  
• If the case is successfully conciliated, or if a case has been earlier settled or mediated, neither the EEOC nor the individual may take the employer to court unless the employer fails to honor its part of the resolution bargain.
  
  
• If the EEOC is unable to conciliate the case with the employer, the EEOC must then decide whether to bring suit against the employer, on behalf of the individual, in federal court.
  
  
• If the EEOC decides not to sue it must provide the individual with notice of that decision. The notice provides the individual 90 days within which to commence a personal lawsuit. This notice is called a "right to sue" letter.

Filing a Personal Lawsuit

• The time limitations for filing a personal lawsuit vary depending upon the type of discriminatory action that is alleged.

  Example: Under Title VII (a federal law which prohibits discrimination on the basis of race, gender, religion, and national origin), an individual can request a notice of a "right to sue" from the EEOC 180 days after the charge is first filed, and can then bring suit within 90 days after receiving the notice. However, if there is a state or local anti-discrimination law, and a state or local agency is authorized to grant relief under that law, the charge must be presented to that agency first. In those situations, a charge may thereafter be filed with the EEOC within 300 days of the discriminatory act or within 30 days of receiving notice that the state or local agency is terminating its processing of the charge, whichever is earlier.

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