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The Spreading Umbrella: Extending the Apa's Adjudication Provisions to All Evidentiary Hearings Required by Statute

17 Pages Posted: 2 Aug 2004  

Michael Asimow

Stanford Law School


The Administrative Procedure Act controls the procedures of almost all federal government administrative agencies and it has achieved nearly constitutional status. The APA regulates all federal agency rulemaking and all judicial review of agency action and all government information (with narrowly drawn exceptions in each case).

However, only a small portion of agency adjudication is subject to the adjudication provisions of the APA. This article refers to these as Type A adjudications. Type A adjudications are the cases in which administrative law judges (ALJs) ordinarily preside - primarily benefits cases involving Social Security, Medicare, and Black Lung. In addition, Type A adjudication covers a wide array of regulatory adjudication, such as that conducted by the FTC, NLRB, SEC, and FERC. The APA provides significant protections to litigants in Type A adjudication. These include detailed provisions relating to the merit selection, independence, compensation, freedom from performance evaluation, and tenure of ALJs.

Numerous statutes that call for evidentiary hearings as part of regulatory or benefit programs that are not governed by the APA's adjudication provisions. The article refers to these as Type B adjudications. Presiding officers (POs) rather than ALJs conduct these hearings. Type B adjudication is distinguished from true informal adjudication, meaning schemes in which no statute requires an evidentiary hearing.

Type B adjudication includes such important federal regulatory and benefactory programs as deportation, patent claims, federal personnel cases, veterans' benefits, security clearances, tax collection due process hearings, and many others. There are probably as many or more Type B adjudications as Type A adjudications each year. Because of agency opposition to the statutory provisions protecting the independence of ALJs, Congress has repeatedly authorized new forms of Type B adjudication but rarely authorizes new forms of Type A adjudication.

This article contends that it would be in the public interest to extend certain APA provisions that prescribe fundamental norms of fair adjudicatory procedure to Type B adjudication. The article does not propose that the APA's specific provisions relating to the selection, compensation and tenure of ALJs be extended to POs in Type B adjudication since it is not politically feasible to do so.

Thus the article contends that such basic adjudicatory norms as separation of functions, prohibition of ex parte contact, impartiality of decisionmaker, exclusive record, notice, hearing, and findings requirements be applied to Type B adjudication. It contends that this fundamental reform can be achieved at little cost and without disruption of Type B adjudicatory schemes.

Keywords: Administrative law, administrative adjudication, administrative hearings, administrative law judges

Suggested Citation

Asimow, Michael, The Spreading Umbrella: Extending the Apa's Adjudication Provisions to All Evidentiary Hearings Required by Statute. Administrative Law Review, Vol. 56. Available at SSRN:

Michael R. Asimow (Contact Author)

Stanford Law School ( email )

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