AuthorBremer, Emily S.


Modern administrative law understands the Administrative Procedure Act (APA) to establish an informal and a formal procedural mode of two types of agency action: rulemaking and adjudication. This Article argues that this understanding, which is sound as applied to rulemaking, is wrong as applied to adjudication.

Revisiting the voluminous and long-neglected research that informed the APA, this Article argues the statute codified informal and formal stages--not modes--of adjudication. In this staged process, informal procedures such as investigations, examinations, inspections, and conferences are used in the initial stages of the process and are sufficient to finally dispose of the vast majority of cases. A statutory hearing requirement directs an agency to elevate the few remaining disputes to a subsequent hearing stage, which across agencies reflects a singular vision as to its purpose, timing, and procedural characteristics.

Understanding adjudication as a staged process makes the APA's regime coherent and offers new insights into the statute's conceptual foundation. It clarifies that an adjudicatory "hearing" under the APA is formal, while amplifying principles that appropriately can be used to cabin hearings and effectuate Congress's preference for agency over judicial resolution of administrative disputes. It provides a compelling explanation for the APA's failure to establish minimum procedural requirements for informal adjudication. And once hearings are removed from this category, it emerges that informal adjudication may be better characterized as executive than quasi-judicial. Modern administrative law admits of this possibility, but the APA is blind to it because the statute was founded upon a conception of administrative action as purely quasi-legislative and quasijudicial and fundamentally not executive. This Article thus identifies a serious, unacknowledged problem: the APA's conceptual foundation has become antiquated.

TABLE OF CONTENTS INTRODUCTION I. THE CONTEMPORARY UNDERSTANDING A. The Statutory Foundation B. Agency Procedural Discretion C. The Landscape in Light of Precedent and Practice II. THE HISTORICAL UNDERSTANDING A. The APA's Historical Foundation B. Formal and Informal Stages, Not Modes C. Apparent Deviations from the Staged Structure D. A Singular Vision of the Hearing Stage E. Legislative-Type Hearings F. The Staged Structure's Collapse III. REVIVING ADJUDICATION'S STAGED STRUCTURE A. The APA's No Longer Vexing Silence B. One Kind of Hearing C. Cabining Hearings IV. CLARIFYING THE APA'S CONCEPTUAL FOUNDATION A. A Narrowed View of Quasi-Judicial Action B. The Missing Category of Agency Action C. An Antiquated Conception of Administrative Action CONCLUSION INTRODUCTION

It is axiomatic that the Administrative Procedure Act (APA) divides the universe of agency action into rulemaking and adjudication and provides for each of these an informal and a formal procedural mode. (1) With respect to rulemaking, this understanding is sound. Section 553 provides procedures for the informal mode of rulemaking, while Sections 553, 556, and 557 provide procedures for a trial-like, formal mode of rulemaking. These are modes in the sense that they are mutually exclusive alternatives for taking the same kind of action. An agency adopting a regulation to implement its organic statute will use either formal rulemaking or informal rulemaking--but not both--to develop the regulation. This choice of procedural mode may be dictated by statute, although the Supreme Court has interpreted the APA so as to nearly eliminate the possibility that formal rulemaking will be required. (2) Thus, informal rulemaking is usually available to agencies, and, as a purely descriptive matter, most agencies choose to use it instead of its formal counterpart.

This Article argues that, as applied to adjudication, this contemporary modes-based understanding of the APA's procedural structure is wrong. When the APA was adopted, informal and formal adjudication were not viewed as alternative modes, but rather as consecutive stages. Agencies used informal techniques during the initial stage of the adjudicative process. In the vast majority of cases, the agency determination generated through the initial, informal stage was sufficient to bring the matter to a close. In the rare instances in which a dispute persisted, and the agency's statute contained a hearing requirement, the matter would proceed to the formal stage of adjudication. This stage involved an evidentiary hearing, conducted before a hearing examiner using trial-like procedures designed to protect individual interests and ensure the fair and reliable resolution of the dispute.

This Article rediscovers adjudication's staged structure by examining the voluminous and long-neglected research that informed the APA. (3) In 1939, as the political battle over the New Deal raged, it seemed increasingly likely that Congress would enact legislation to regulate administrative procedure. The principal proposal--embodied in the Walter-Logan bill--would have broadly judicialized the administrative process and was viewed by progressives as both ill-informed and potentially fatal to the New Deal administrative state. President Roosevelt responded by commissioning the Attorney General to conduct a "scientific" study of administrative procedure. The Attorney General convened a Committee on Administrative Procedure that, with the assistance of a team of attorney-investigators, prepared twenty-seven "monographs" examining the procedures and practices of existing federal agencies. These monographs informed a Final Report to Congress, which included proposals for legislative action. Altogether, this body of research provided the "intellectual foundation" for what became the APA. (4) Adjudication's staged structure emerges clearly in the Committee's work, as does a singular vision of the purpose, timing, and essential procedural elements of an adjudicatory "hearing."

The APA thus codified--but did not create--adjudication's staged structure. That structure emerged prior to the APA's enactment, in the many discrete administrative statutes enacted by Congress and implemented by federal executive agencies and independent establishments. Administrative statutes defined both the substantive scope of agency authority and the contours of the administrative process. (5) Congress instructed agencies to accept applications or complaints; to conduct examinations or inspections; to pay benefits, issue licenses, or sanction parties for unlawful conduct; and to conduct hearings to resolve otherwise intractable disputes. Each agency fleshed out the process outlined in its organic statute by exercising its interstitial procedural discretion, often finding ways to use informal techniques to achieve agreement and prevent the need to hold a hearing (if the statute required one). Although there were contexts in which the applicable statute or the agency's practices produced some anomaly, a general pattern of consecutive adjudicatory stages emerged across government. The essential elements of a hearing also emerged, both through their observance and through their harmful neglect. Informed by these pre-APA practices, the APA's architects viewed adjudication as a staged process that often but not always culminated in a particular kind of hearing. The statute codified this vision. (6)

As may be evident, this Article's subject is not a legal doctrine per se, but a conceptual framing that has significant consequences for understanding administration and applying certain core administrative law doctrines. This Article aims to separate out that conceptual framing, which is implicit and typically not subject to intentional evaluation, from the doctrinal and theoretical questions that are administrative law's conscious concern.

Shifting from a modes-based to a stage-based understanding of adjudication has significant consequences for the doctrine governing when an agency must use the APA's formal adjudication procedures. (7) From the modes-based perspective, it is sensible to ask whether an organic statute's requirement that an agency hold a "hearing" before making a decision requires a formal "on-the-record" hearing or permits an informal hearing not subject to the APA's procedures. (8) The inquiry changes if the APA contemplates that informal techniques are used in the initial stages of adjudication, with remaining disputes subject to a hearing, which by definition is a proceeding conducted on the record. From the stage-based perspective, the possibility of an informal hearing evaporates. The research underlying the APA strongly supports this conclusion. It treats a wide variety of non-hearing procedures as "informal" adjudication and understands "formal" adjudication to mean a "hearing." Constitutional due process may be so flexible as to allow for the possibility of many different kinds of hearings. (9) But in APA adjudication, there is only one kind of hearing. (10)

Reviving the stage-based conception of adjudication would mean subjecting some existing informal hearing programs to the APA's formal procedures, but it would also reinforce principles that appropriately can be used to cabin hearings. It offers a compelling explanation--and justification--for the APA's failure to establish minimum procedural requirements for informal adjudication. If a dispute persists at the conclusion of the informal stage of the process, robust procedural protections are available in a formal hearing or on judicial review. This in turn illuminates an underappreciated function of statutory hearing requirements: to effectuate a congressional preference for administrative disputes to be adjudicated in the first instance by the agency instead of by a court. The stage-based conception also reinforces the principles that: (1) Congress should determine whether (and to what extent) an agency must use hearing procedures...

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