2/21/02
A GUIDE TO FEDERAL AGENCY ADJUDICATION:
THE ABA'S HANDBOOK OF ADJUDICATION UNDER THE ADMINISTRATIVE PROCEDURE ACT
American Bar Association
Section of Administrative Law and Regulatory Practice
Michael Asimow
Professor of Law, Emeritus
UCLA School of Law
with the collaboration of
Jack M. Beermann, Professor of Law, Boston University School of Law
Phyllis Bernard, Professor of Law, Oklahoma City University School of Law
Steven P. Croley, Professor of Law, University of Michigan Law School
Glen O. Robinson, Professor of Law, University of Virginia School of Law
John Hardin Young, Sandler, Reiff & Young.
Introduction
This volume is intended as a handbook to assist government and private counsel engaged in administrative adjudication under the federal Administrative Procedure Act (APA).
The book is an outgrowth of a study of the federal APA that was launched by the ABA's Section of Administrative Law and Regulatory Practice. This study was a major effort, in which many people participated. It was intended to both describe the law of the APA and to prescribe a set of recommendations for changes in the APA. The study covered adjudication as well as rulemaking, judicial review, freedom of information, and government management. At this date, it has resulted in the completion of a large number of studies, mostly prepared by academics, and the adoption of a set of "black letter" summaries of the law adopted by the Section's Council on November 3, 2001. The black letter summaries of adjudication are reproduced at the beginning of each chapter of this book. All of this material can be found in updated form at the Section's website which is located at (click on APA project). The prescriptive portion of the project has not yet been completed.
As the Section's Project Overview pointed out: "At present, there is no reasonably comprehensive, credible, and readily accessible statement of administrative law as it now exists." This comment is particularly apt as it applies to administrative adjudication. The Section decided that the studies on adjudication might be published as a free-standing book that would serve as a companion to the Section's Guide to Federal Agency Rulemaking (3d. ed. 1998), written by Jeffrey S. Lubbers. Hence this volume. It is the collective effort of six authors and one editor.
Since the APA was adopted in 1946, many aspects of the administrative landscape have been transformed almost beyond recognition. Yet the core provisions of the APA relating to adjudication, rulemaking, and judicial review remains almost unchanged. Since 1946, rulemaking has become vastly more significant and judicial review of agency action has become considerably more available and more rigorous. Federal agency adjudication remains important today, affecting millions of people every year, although it is no longer the primary vehicle for articulation of government policy. Today "formal adjudication" under the APA consists primarily of disputes about Social Security and other benefactory programs. The traditional regulatory agencies (such as the NLRB, FTC, or the SEC) produce a relatively small number of decisions, although they are often quite important. A great deal of federal administrative adjudication, referred to by the misleading name "informal adjudication," is conducted partly or wholly outside the auspices of the APA. Certainly, the agenda for the future should be to bring more federal agency adjudication under the APA umbrella, perhaps modifying various provisions of the APA that make such transfers infeasible at the present time.
In this book, a number of authorities are cited repeatedly but, in the interests of brevity, are not cited fully each time they appear. For convenience, we supply full citations here.
Final Report of the Attorney General's Committee on Administrative Procedure (U. S. Gov't Printing Office, 1941)
Administrative Procedure Act Legislative History, S. Doc. 248, 79th Cong. 2d Sess. (1946).
William F. Funk, Jeffrey S. Lubbers, Charles Pou, Jr., Federal Administrative Procedure Sourcebook (3d ed. 2000). This book is published by the A.B.A.'s Section of Administrative Law & Regulatory Practice.
U. S. Department of Justice,. Attorney General's Manual on the Administrative Procedure Act (1947). The Attorney General's Manual is reproduced in the Federal Administrative Procedure Sourcebook pp. 33-171.
Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law Treatise (3d ed. 1994).
Morel E. Mullins, Manual for Administrative Law Judges (Interim internet ed. 2001). This work is available at
Paul R. Verkuil, Daniel J. Gifford, Charles H. Koch, Jr., Richard J. Pierce, Jr., and Jeffrey S. Lubbers, The Federal Administrative Judiciary, 1992-2 Recommendations and Reports of the Administrative Conference of the United States (1992).
The present volume is arranged into eleven chapters:
Chapter 1: Adjudication under the Administrative Procedure Act
Chapter 2: Hearings required by procedural due process
Chapter 3: The right to a hearing under the APA
Chapter 4: Pre-hearing requirements
Chapter 5: Hearing requirements
Chapter 6: Post-hearing requirements
Chapter 7: Integrity of the decisionmaking process
Chapter 8: Alternative dispute resolution
Chapter 9: Informal adjudication
Chapter 10: Administrative law judges
Chapter 11: Attorneys' fees under the Equal Access to Justice Act
Michael Asimow edited the entire book and wrote chapters 1, 7, 10, and 11. Asimow is Professor of Law Emeritus at UCLA School of Law.
Glen O. Robinson, wrote chapters 2 and 3. Robinson is Professor of Law at University of Virginia School of Law.
Jack M. Beermann wrote chapter 4, most of chapter 9, and part of chapter 5. Beermann is Professor of Law at Boston University School of Law.
Steven P. Croley wrote chapters 5 and 6. Croley is Professor of Law at University of Michigan Law School.
Phyllis Bernard wrote chapter 8. Bernard is Professor of Law at Oklahoma City University School of Law.
John Hardin Young wrote part of chapter 9. Young is past Section Chair and a partner in Sandler, Reiff & Young.
All of the authors welcome suggestions and criticisms from users of this book. Errors and omissions are inevitable in a work of this scope with multiple authors, but we hope that they will be corrected in future editions. Please send any input to the above-named authors of the chapter in question with a copy to Michael Asimow. The email addresses of the authors are:
Michael Asimow:
Glen O. Robinson:
Jack M. Beermann:
Steven P. Croley:
Phyllis Bernard:
John Hardin Young:
All of us who collaborated on this book hope that you, the user, will find it helpful in your work of engaging in federal administrative adjudication.
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