Centre d’Etudes et de Recherches sur les Contentieux

CERC

Summary of lecture given on November 17, 2015

Conférence “Le Droit Administratif Américan” de W. J. Brudzinski

University of Toulon

by Walter J. Brudzinski1

Administrative Adjudication

Introduction

United States Administrative Law generally includes all actions by government agencies with 

respect to a citizen or an entity. It does not include criminal actions or actions between 

individuals and entities needing a neutral forum to settle their differences. 

Administrative adjudication is a process for the formulation of an agency decision and an order. 

It includes adversarial and non-adversarial actions among individual participants in the decision 

making process. An administrative adjudication action typically begins in a government agency 

with an adjudicator or an Administrative Law Judge making the initial decision. After an

agency’s final action on the initial decision and further administrative review if required by law,

the matter may then be appealed to the courts. Administrative adjudication exists federally and 

in the states. This talk will focus on federal administrative adjudication. 

The Administrative Procedure Act, 5 U.S.C. §§ 551-559 et seq., prescribes general rules for 

adjudication, among other things. Government agencies prescribe specific rules through 

regulations. In the United States there is a great deal more adjudication in administrative 

agencies than in the court system. If the courts were to adjudicate all matters now adjudicated by 

the administrative judiciary in the agencies, the court system would be severely overburdened. 

Administrative adjudication occurring within the agency promotes faster determinations and 

judicial economy. 

 

1 Chief Administrative Law Judge, U.S. Coast Guard. Prior to his original appointment as Administrative Law 

Judge he was a Deputy Commonwealth’s Attorney in Virginia. He previously served in the U.S. Coast Guard as a 

commissioned officer and as a Special Assistant U.S. Attorney in Virginia. He holds a B.A. from the University of 

Maryland, a J.D. (with distinction) from George Mason University, and an M.J.S. and Ph.D. from the University of 

Nevada. The views expressed in this lecture are the author’s and do not necessarily reflect the opinions or the 

policy of the Commandant of the U.S. Coast Guard. 
The fundamental, underlying principle in administrative adjudication is DUE PROCESS. I will 

briefly discuss the origins of due process, what due process is, and what process is due in the 

context of federal administrative adjudication in the United States.

Origins of Due Process

The logical place to start is with the Magna Carta of 1215. Clause 39 of the Magna Carta states, 

"[n]o free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed 

or exiled, or deprived of his standing in any other way, nor will we proceed with force against 

him, or send others to do so, except by the lawful judgment of his equals or by the law of the 

land." 

Clause 39 is the underlying principle behind notice and opportunity to be heard. It found its way 

through the Enlightenment and into American law in general and thence into American 

administrative law. Subsequent documents interpreted and expanded the Magna Carta concepts 

and added to the documents eventually comprising England’s “constitution.” For example, 

England’s Petition of Right (1628) concerned individual rights and set out specific rights and 

liberties the King was prohibited from infringing upon. In an era when “the Devine Right of 

Kings” was predominant, the Petition of Right was an objection to the King’s various actions 

without the consent of the governed. 

The English Bill of Rights (1689) further shaped England’s concept of individual rights such as 

free elections, free speech, due process, and a limited constitutional monarchy. It was a direct 

ancestor of America’s Bill of Rights. Sovereign power gradually shifted from the monarch to 

written documents eventually comprising England’s “constitution.” This process gave rise to a 

constitutional monarchy, the supremacy of parliament, the rule of law, and individualism as

envisioned by English Enlightenment philosopher John Locke (1632 – 1704), among others. 

In the American colonies, the Massachusetts Body of Liberties (1641) served as further 

recognition and acceptance of the Magna Carta. It outlined the first American “Bill of Rights” 

which provided the basic right to due process and free speech in courts and public assemblies.

George Mason’s Virginia Declaration of Rights (1776) helped influence Thomas Jefferson in 

drafting the Declaration of Independence (1776) and became one of the bases of the U.S. 

Constitution’s Bill of Rights. It also helped influence France’s Declaration of the Rights of Man 

& of the Citizen.

The philosophers of the French Enlightenment (1715-1789) were a big influence on the 

America’s founding documents, especially Montesquieu (1689-1755) who was a strong 

proponent of separation of powers as a check against despotism. Separation of powers is an 

important Constitutional principle and is the subject of much debate and litigation, especially in 

agency adjudication where agencies make rules, enforce the rules, and adjudicate applications or 

violations of the rules. Voltaire (1694-1778) was a proponent that all men are created equal and 

that Church and State must be separate. Rousseau (1712-1778), believed sovereign power 

existed in the people, not the King. English and French philosophers also influenced America’s 

Declaration of Independence. 
The U.S. Constitution was created in 1787 and ratified in 1789. The Constitution now has 27 

Amendments. The first Ten Amendments were ratified in 1791 and the Twenty-Seventh was 

ratified as recently as 1992. The Constitution’s first three Articles deal with Separation of Powers 

– Article I Legislative; Article II Executive; and, Article III Judicial. Federalism is covered in 

Article IV – the full faith and credit clause; privileges and immunities, and protection of states,

Article V – deals with how to propose and ratify amendments; and, Article VI – the supremacy 

clause which states the Constitution and U.S. laws and treaties are the supreme law of the land. 

Article VII - covers initial ratification requiring only nine states out of thirteen. The U.S. 

Constitution is a very simple document yet comprehensive to include all contingencies facing 

citizens and their elected officials in a federal, representative republic. 

Administrative power arose over the years as the government reacted to problems in American 

life which called for government decisions such as veterans’ pension claims, customs

enforcement, and steamboat inspections. In 1887, Congress created the Interstate Commerce 

Commission to regulate railroads and later trucking. As time went on, Congress created 

additional agencies which engaged in rulemaking and adjudication by personnel within the 

agency such as hearing officers, hearing examiners, and eventually Administrative Law Judges

within the agency. 

The Fifth and Fourteenth Amendments of the U.S. Constitution each contain a due process 

clause. The Fifth Amendment states, in pertinent part, “No person shall be . . . deprived of life, 

liberty, or property, without due process of law. . ..” The Fourteenth Amendment applies due 

process protections to actions by the states in section one which states, in pertinent part, “. . . nor 

shall any State deprive any person of life, liberty, or property with due process of law . . ..” 

What is due process?

Due process is fundamentally notice and an opportunity to be heard in an orderly proceeding in 

accordance with duly promulgated rules adapted to the particular type of case in the 

administration of justice. Due process guards against the arbitrary denial of life, liberty, or 

property by the Government and ensures rights and equality. 

The orderly proceedings referred to in this presentation are adjudications before federal agencies. 

Those proceedings will generally pertain to property interests and the amount of process due will 

depend on the extent of those property interests. The greater the property interest, the greater 

procedural due process is afforded to the individual. Fundamentally, agencies will provide notice 

of issues; an opportunity to present evidence orally or in writing; a decision by a neutral decision 

maker; and, a statement of reasons for the decision.

The legal basis and framework for federal administrative adjudication is the Administrative 

Procedure Act (APA), 5 U.S.C. §§ 551-559 et seq., enacted in 1946 in response to the 

tremendous increase in the number of agencies and the need to ensure fair hearings.2 The APA 

governs agency rulemakings, adjudications, and licensing. It created the independent position of

 2 The APA also encompasses additional administrative activities such as Freedom of Information (§552) and Privacy

(§552a), among other provisions, but adjudication is covered in §§ 554 – 558.
Administrative Law Judge to preside at formal adjudications as a check on agency actions 

contrary to due process, to protect public safety, and to ensure proper entitlements. 

Government agencies appoint Administrative Law Judges pursuant to 5 U.S.C. § 3105 and 

accompanying regulations that provide strict controls on employing agencies to ensure Judges’ 

decisional independence. Experienced attorneys desiring to become Administrative Law Judges 

undergo extensive screening, interviewing, and a written examination to qualify for placement on

a register of individuals eligible for appointment as an Administrative Law Judge. Once 

appointed, Administrative Law Judges are provided with special civil service protections and the 

expectation of lifetime careers. In the exercise of their judicial functions, Administrative Law 

Judges retain decisional independence within the limits of law, regulations, and agency appeal 

decisions. Decisional independence protects the due process rights of individuals against 

potential agency bias as well as pressures of the parties or officials within the agency. Agencies 

cannot control Administrative Law Judges’ salaries, nor conduct performance reviews, or provide 

monetary/honorary awards. 

There are over 1,600 Federal Administrative Law Judges in the USA. They conduct formal 

hearings in advertising, antitrust, banking, communications, energy, environmental protection, 

food and drugs, health and safety, housing, immigration, international trade, labor management 

relations, maritime credentials [USCG], securities and commodities markets, transportation and 

transportation security, social security disability, as well as other benefits claims. The Social 

Security Administration is authorized the most Judges (approx. 1,400 in 2015) and the Office of 

Financial Institution Adjudication, among others, has but one Judge. 

What process is due? 

Determining the process that is due in administrative adjudication depends on the type of 

adjudication. There are two types of adjudication under the Administrative Procedure Act:

(1) Formal Adjudication which requires an Administrative Law Judge (5 U.S.C. §§ 

554 - 557); and,

(2) Informal Adjudication which does not require an Administrative Law Judge (5 

U.S.C. § 555). 

The wording in the statute determines whether the adjudication is formal or informal. For formal 

adjudication, the statute must state the decision is to be determined on the record after 

opportunity for an agency hearing. 5 U.S.C. § 554(a). It requires an Administrative Law Judge 

(ALJ), unless the agency head, Board, or Commission conducts the adjudication. Sections 554 

through 557 describe formal adjudication which is very similar to the traditional, American civil 

trial safeguards. 

Those traditional civil trial safeguards are as follows:

(1) Timely and adequate notice of issues and contentions; 
(2) An effective opportunity to confront adverse witnesses; 

(3) Oral presentation of arguments; 

(4) Oral presentation of evidence; 

(5) Cross-examination of adverse witnesses; 

(6) Disclosure of opposing evidence; 

(7) The right to retain an attorney; 

 (8) A decision based solely on the evidence adduced at trial;

(9) A determination based on findings of fact and conclusions of law; 

(10) A decision by an impartial decision-maker.3

Formal Adjudication: The APA requires the following trial-type procedures when an 

“adjudication required by statute to be determined on the record after opportunity for an agency 

hearing.” 

(1) Notice of legal authority and matters of fact and law asserted (§ 554(b)); 

(2) An oral evidentiary hearing presided over by the agency, one of the members of 

the body that comprises the agency, or an Administrative Law Judge, each of 

whom must be impartial and can be disqualified for bias (§ 554(b)); 

(3) The presiding officer may not consult privately with a party with respect to a 

fact in issue; be responsible to someone with an investigative or prosecutorial 

function, or communicate privately with anyone outside the agency with respect 

to the merits of the case. (§§ 554(d) and 557(d) (1)); 

(4) A party can be represented by an attorney or other authorized representative 

(§555(b)); 

(5) The proponent of an order has the burden of proof (§556(d)); 

(6) A party is entitled to present oral or documentary evidence (§ 556(d)); 

(7) A party is entitled to conduct such cross-examination as may be required for a 

full and true disclosure of the facts (556(d)); 

(8) An order can be issued only on the basis of the record adduced at the hearing (§ 

556(d)); 

 3 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE, § 8.2 (5TH ed. 2010).
(9) A party is entitled to a transcript of evidence that shall be the exclusive record 

for decision (§ 556(e)); and

(10)The decision must include findings and conclusions, and the reasons or basis 

therefore, on all material issues of fact, law, or discretion presented on the 

record. (§ 557(c) (3) (A)).4

Before a recommended, initial, or tentative decision, or a decision on agency review of the 

decision of subordinate employees [e.g., ALJ], the parties are entitled to a reasonable opportunity 

to submit for the consideration of the employees participating in the decisions — (A) proposed 

findings and conclusions; or (B) exceptions to the decisions or recommended decisions of 

subordinate employees or to tentative agency decisions; and (C) supporting reasons for the 

exceptions or proposed findings or conclusions. (§ 557(c)).

In addition to including findings, conclusions, and the reasons or basis therefor on all material 

issues of fact, law or discretion presented on the record, the decision must also include an 

appropriate rule, order, sanction, relief, or denial thereof. (§ 557 (c)). 

The APA does not provide for discovery, nor does it prescribe evidentiary rules in accordance 

with the Federal Rules of Evidence. Concerning discovery, agencies are free to issue regulations 

prescribing as much discovery as necessary for a just, speedy, and inexpensive determination. 

Concerning evidence, the APA at § 556(d) provides only that “[a]ny oral or documentary 

evidence may be received, but the agency as a matter of policy shall provide for the exclusion of 

irrelevant, immaterial, or unduly repetitious evidence.” In their procedural rules, however, 

agencies may prescribe that the Federal Rules of Evidence are to be followed. 

To ensure the above protections are maintained, the Administrative Procedure Act gives the 

following powers to Administrative Law Judges:

“Subject to published rules of the agency and within its powers, employees presiding at hearings 

may—

(1) Administer oaths and affirmations;

(2) Issue subpoenas authorized by law;

(3) Rule on offers of proof and receive relevant evidence;

(4) Take depositions or have depositions taken when the ends of justice would be 

served;

(5) Regulate the course of the hearing;

 4 Id.
(6) Hold conferences for the settlement or simplification of the issues by consent 

of the parties or by the use of alternative means of dispute resolution as 

provided in subchapter IV of this chapter;

(7) Inform the parties as to the availability of one or more alternative means of 

dispute resolution, and encourage use of such methods;

(8) Require the attendance at any conference held pursuant to paragraph (6) of at 

least one representative of each party who has authority to negotiate 

concerning resolution of issues in controversy;

(9) Dispose of procedural requests or similar matters;

(10) Make or recommend decisions in accordance with section 557 of this title; and

(11) Take other action authorized by agency rule consistent with this subchapter.”

5 U.S.C. § 556(c)

Informal Adjudication: If adjudication is not within the narrow scope of § 554(a), i.e., that the 

decision is to be determined on the record after opportunity for an agency hearing, the only 

provision of the APA that prescribes procedures applicable to that determination is § 555 which 

requires only that the agency:

(1) Permit a party to be represented by an attorney or other authorized 

representative (§ 555(b)); 

(2) Permit a person to obtain a copy of any data or evidence he or she provides 

 (§ 555(c)); and,

(3) Provide a brief statement of the grounds for denying an application or petition

(§555(e)).5

Agency regulations may prescribe additional procedural protections for informal adjudication 

and most do so. For example, agencies may require the following procedural safeguards in their 

informal adjudication: 1) notice of issues resented; 2) opportunity to present data and arguments 

either in written or oral form; 3) a decision by a neutral decision maker; and, 4) a statement of 

reasons for the decisions.6

 Depending on the nature of the case, informal adjudication 

procedures can still provide the necessary due process that fits the interest affected. 

 5 Id. 6 Id. at § 9.1. 
Final Agency Action and Exhaustion of Administrative Remedies:

After final agency action in formal or informal agency adjudication and exhaustion of 

administrative remedies, if required, respondents, applicants, or claimants may appeal to the 

appropriate court as prescribed by statute and regulation. Those courts are as follows:

(1) One of 94 U.S. District Courts;

(2) One of 11 Circuit Courts of Appeal, the Court of Appeals for the District of 

Columbia, and the Court of Appeals for the Federal Circuit. 

Conclusion

The concept of due process has grown substantially in the 800 years since it first appeared in 

Clause 39 of the Magna Carta. The English Petition of Right (1628) and its Bill of Rights (1689)

continued that process in England. French Enlightenment philosophers Montesquieu, Rousseau, 

and Voltaire, among others, as well as the English Enlightenment philosopher John Locke, 

among others, further expanded those concepts. The 1641 Massachusetts Body of Rights and the 

1776 Virginia Declaration of Rights drew upon those principles in their written documents which 

also helped form the basis of the U.S. Declaration of Independence as well as the U.S. 

Constitution and its Bill of Rights.

Administrative power in the U.S. federal government grew as Congress created agencies in 

response to the new problems in American life requiring a government decision. The 

Administrative Procedure Act guarantees citizens and entities appropriate due process through 

formal or informal adjudication depending on the nature and level of interest protected. Formal 

adjudication procedures are time consuming and more demanding than informal adjudication 

procedures yet informal adjudication procedures can still provide the necessary due process that 

fits the interest affected.