Administrative Hearings: Are Your Procedural Rights Being Protected?

The APA governs formal adjudication through the trial-type hearing procedures of Sections 554, 556, and 557, which require notice of the specific charges, an opportunity to present evidence and argument, and a decision on the record made by an administrative law judge who is independent of the agency's prosecutorial staff, and the ALJ's initial decision becomes the agency's final decision unless the agency head reviews and modifies it.

Federal regulatory changes and federal court trial counsel can advise on ALJ procedures and APA framework and develop the administrative hearing preparation strategy.

Administrative hearings are not subject to the Federal Rules of Evidence, and the APA allows an agency to admit any reliable, probative, and relevant evidence ( including hearsay evidence that would be excluded in federal court ) but the agency must give the opposing party an opportunity to challenge or rebut the evidence, and the admission of hearsay evidence means that agency investigators can testify about third-party statements without those third parties appearing for cross-examination.

Civil litigation evidence and evidence preservation counsel can advise on administrative evidence rules and hearsay standards and develop the hearing evidence strategy.

The Supreme Court's decision in Mathews v. Eldridge established that the minimum procedures required by the Due Process Clause depend on three factors: the private interest at stake, the risk of erroneous deprivation, and the government's interest in the existing procedures, and a party who believes that an administrative proceeding is procedurally deficient must raise and preserve her due process objections in the administrative forum or risk waiving the right to raise them on judicial review.

Civil rights litigation and civil litigation counsel can advise on procedural due process rights and APA hearing requirements and develop the due process protection strategy.

The doctrine of exhaustion requires a party to pursue all available administrative remedies before seeking judicial review, and a federal court will typically dismiss a complaint seeking judicial review if the plaintiff has not first exhausted all available administrative remedies, including filing an administrative appeal within the agency, subject to exceptions for futility, irreparable harm, and cases in which the agency lacks jurisdiction.

Regulatory risk management and regulatory solutions counsel can advise on exhaustion of administrative remedies and exceptions and develop the exhaustion compliance strategy.

The substantial evidence standard requires the reviewing court to uphold the agency's factual findings if supported by substantial evidence in the record considered as a whole, giving deference to the agency's findings even if the court would have reached a different conclusion, while the arbitrary and capricious standard requires the reviewing court to determine whether the agency considered all relevant factors, relied on impermissible factors, or failed to offer a reasoned explanation consistent with the evidence.

Federal litigation and appellate litigation counsel can advise on judicial review standards and develop the judicial review challenge strategy.

A court that finds that an agency's decision fails the applicable standard of review may remand the case for further proceedings, vacate the agency's decision, or both, and a party seeking judicial review of an agency decision imposing an immediate burden may seek a stay of enforcement by demonstrating likelihood of success on the merits, irreparable harm, and that the public interest supports a stay.

Injunctive relief and federal appeals counsel can advise on remand, vacatur, and stay of enforcement requirements and develop the judicial review remedy strategy.

The administrative record forms the basis for judicial review, and a party that does not properly present and preserve arguments in the administrative forum may find that those arguments cannot be considered by the reviewing court, because courts are generally limited to the record that was before the agency, and a party should therefore make every argument it intends to pursue on judicial review in the administrative forum and preserve objections to the agency's procedures.

Business litigation and government contract disputes counsel can advise on administrative record building and argument preservation and develop the administrative record defense strategy.

A party that has received an adverse decision from an administrative law judge typically has the right to seek review by the agency's senior officials or by an internal appeals board before seeking judicial review in federal court, and the administrative appeal is a critical opportunity to identify and correct errors and build a more complete administrative record, after which the party may seek judicial review by filing a petition for review within the time limit specified in the agency's enabling statute or the APA.

Environmental compliance and litigation and criminal defense counsel can advise on agency decision appeal rights and develop the administrative appeal and judicial review strategy.