Legal Background for Administrative 

Adjudicative Law in the United States

Walter J. Brudzinski

Chief Administrative Law Judge

United States Coast Guard 
Administrative Law in the USA

Includes all actions by government with respect to a 

citizen or vice versa. 

Excludes criminal actions and actions between 

individuals and entities in which they need a neutral 

forum to settle their differences. 

Administrative Procedure Act, 5 U.S.C. §§ 551-559 

prescribes general rules. Agencies prescribe 

specific rules.

Much more adjudication in administrative agencies 

than in U.S. Courts. 
Administrative Adjudication

Includes actions among individual participants in 

the decision making process such as when an 

agency makes a decision with respect to an 

individual. 

Central to administrative adjudication is DUE 

PROCESS.
Due Process

Analysis:

Origins

 What is Due Process? 

 What Process is Due? 
Magna Carta 

1215

• Clause 39: "No 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." 
Magna Carta

1215

Clause 39 guaranteed the rights of due process: 

• Underlying principle behind notice and 

opportunity to be heard.

• Found its way through the Enlightenment and 

into American law in general and thence into 

administrative law. 

• Due process is the oldest American liberty 

with which we identify. 
English Petition of Right

1628

Further interpreted and expanded the concepts in 

the Magna Carta and added to the documents 

comprising England’s “constitution.”

The Petition of Right of 1628 is one of England's 

most famous Constitutional documents. It was 

written by Parliament as an objection to an 

overreach of authority by King Charles I. During his 

reign, English citizens saw this overreach of 

authority as a major infringement on their civil 

rights. Charles believed in the devine right of kings.
English Bill of Rights

1689 

• Huge influence on US colonies.

• It further shaped England’s conception of individual 

rights. [free elections, free speech]

• It was a direct ancestor of the United States’ Bill of 

Rights. [limited const monarchy]

• It put sovereign power of government into documents

instead of putting it all into the act of naming the king 

as the sovereign power. 

[Glorious Revolution, constitutional monarchy]

John Locke 1632-1704, classical liberalism; wrote Two 

Treatises of Gov’t and A Letter Concerning Toleration
First Charter of Virginia in 1606 and 

the Ordinances for Virginia in 1618

Outlined framework for colonial governance.

[Purpose was King James’ intention to spread 

Christianity but he kept a tight reign on the 

settlers – not much freedom. That would come 

later]
The Massachusetts Body of Liberties of 

1641

• Outlined the first “bill of rights” in America, 

and served as a ratification of the Magna 

Carta.

• The basic right to due process was once again 

defined.

• Gives the right to free speech in courts and 

public assemblies.
Virginia Declaration of Rights

1776

• Drawn upon by Thomas Jefferson in drafting 

the Declaration of Independence.

• Became one of the bases of the U.S. 

Constitution and its Bill of Rights.

• Basic rights of man, including right to abolish 

inadequate gov’t. Influenced Dec. of Indep., 

Bill of Rights, and France’s Declaration of the 

Rights of Man & of the Citizen.
French Enlightenment

1715-1789

Big influence on U.S. founding 

documents. 
Montesquieu (1689-1755)

[concerned with despotism]

Separation of Powers

Wrote Persian Letter, Considerations on the 

Causes of the Grandeur and Decadence of the 

Romans, 1734), and The Spirit of the Laws, 

Influenced James Madison
Voltaire (1694-1778)

All men are created equal. Church 

and state must be separate.
Rousseau (1712-1778) 

Sovereign power existed in the people, 

not the king. 

Wrote On the Social Contract as well as

Discourses on the Origin of inequality, Political

Economy, and the Science and the Arts
Declaration of Independence

1776

• John Locke (1632-1704) – life, liberty, pursuit of 

happiness; tolerance

• Montesquieu (1689-1755) – separation of powers [not 

in Declaration exactly but despotism was the theme]

• Rousseau(1712-1788) – social contract theory and 

consent of the governed

• Voltaire 1694-1778 – all men are created equal; free 

speech; separation of church and state

• Thomas Jefferson – (1743-1826) drafter

• Ben Franklin (1705-1790), John Adams (1735-1826, and 

other Founding Fathers - reviewers
U.S. Constitution

• Created in 1787

• Ratified in 1789

• Influence by 

– John Locke (1632-1704)

– Charles de Montesquieu (1689-1755)

– Virginia Declaration of Rights

– Founding Fathers
U.S. Constitution

Separation of powers

• Art. I - legislative power - Congress;

• Art. II - executive power - president and subordinates;

• Art. III - judicial power located in the courts; 
U.S. Constitution

Federalism

• Art. IV - full faith and credit clause; privileges 

and immunities; protection of states;

• Art. V - how to propose amendments;

• Art. VI – supreme law of the land;

• Art. VII – ratification.

• How does Administrative Law fit? 
Administrative Power

• Arose as a practical and necessary response to 

government agency involvement in new and 

complex practical problems in American life. 

• Congress passes laws establishing and 

empowering agencies to enforce laws, 

including adjudication within the agency.
Origins of U.S. Admin Law

• Early years – customs officers - war 

department clerks considering pension claims 

- ship's hull and boiler inspectors. 

• Interstate Commerce Commission in 1887;

• As time went on, Congress created more 

agencies – Bureau of Corporations (1903), 

later the Federal Trade Commission (1914).
Due Process Clauses of the U.S. 

Constitution

The Fifth and Fourteenth Amendments each 

contain a due process clause. 

• 5th Amendment: “No person shall be . . . deprived 

of life, liberty, or property, without due process of 

law. . .” 

• 14th Amendment, section one: ”. . . nor shall any 

State deprive any person of life, liberty, or 

property with due process of law . . ..” 
Due Process

• Notice and opportunity to be heard in an 

orderly proceeding adapted to the nature of 

the case in the administration of justice.

• Safeguards against arbitrary denial of life, 

liberty, or property by the Government 

outside the sanction of law. 
Due Process

Ensures rights and equality

Four Protections

• Procedural due process in civil and criminal 

proceedings;

• Substantive due process – protection of 

certain rights deemed fundamental;

• Prohibition against vague laws;

• As a vehicle for incorporating the Bill of Rights. 
Due Process

• This lecture’s focus is on procedural due 

process in civil law;

• Further broken down to civil administrative 

law; 

• Further broken down to the adjudicative 

process within government agencies.
Administrative Procedure Act (APA)

5 U.S.C. §§ 551-559

• Enacted in response to the tremendous increase 

in agencies and the need to ensure fair hearings. 

• Established Administrative Law Judges to check 

agency behavior contrary to due process, to 

protect public safety, and to secure proper 

entitlements. 

• The APA governs all three main agency functions: 

rulemakings, adjudications, and licensing.

• Our focus is adjudication.
Administrative Law Judges (ALJs)

• There are over 1,600 Federal Administrative Law Judges in the USA.

• ALJs 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?

Ref: Administrative Law Treatise, 5th

ed. § 8 (2010) by Prof. Richard J. 

Pierce, Jr.

• Depends on the type of adjudication. 

• Two types:

– Formal Adjudication - requires an ALJ.

– Informal Adjudication – does not require an ALJ.

• Determined by wording in the statute. 
Formal Adjudication

• Required only if statute says decision is to be determined 

on the record after opportunity for an agency hearing. 

See 5 U.S.C. § 554(a) 

• Requires an ALJ, unless adjudication performed by 

agency head, Board, or Commission.

• APA §§ 554 through 557 describe formal adjudication

• Similar to civil trail traditional safeguards. 
Civil trail traditional safeguards

• (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. 

See Administrative Law Treatise, 5th ed. (2010) by Prof. Richard J. Pierce, Jr., 

Section 8.2.
Elements of formal adjudication

• (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)); 
Elements of formal adjudication, cont.

• (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)); 

• (9) a party is entitled to a transcript of evidence that shall be the 

exclusive record for decision (§ 556(e)); 
Elements of formal adjudication, cont.

• (10) before a recommended, initial, or tentative decision, or a decision on agency review of 

the decision of subordinate employees [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 [ALJ] or to tentative agency decisions; and (C) 

supporting reasons for the exceptions or proposed findings or conclusions (§ 557(c)).

• (11) the decision must include findings and conclusions, and the reasons and basis 

therefor on all the material issues of fact, law, or discretion presented on the record (§

557(c)(3)(A)). 

• (12) the record shall show the ruling on each [proposed] finding, conclusion, or exception 

presented. All decisions, including initial, recommended, and tentative decisions, are a part 

of the record and shall include a statement of— (A) findings and conclusions, and the 

reasons or basis therefor, on all the material issues of fact, law, or discretion presented on 

the record; and (B) the appropriate rule, order, sanction, relief, or denial thereof (§ 557 (c)). 
Practical limitations of using formal 

adjudication 

• Millions of adjudications conducted each year. 

• Formal adjudication too elaborate, timeconsuming, and expensive. 

• Administrative adjudication would collapse if 

all were formal adjudications.

• Formal adjudication can be used to resolve no 

more than a small fraction of agency 

adjudications. 
Informal Adjudication

If an adjudication is not within the narrow scope of § 554(a), such as 

requiring a determination based on a hearing, the only provision of the 

APA that prescribes procedures applicable to that determination 

adjudication is § 555. That section 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)). 
Remedies after final agency action

• After final agency action, respondents may 

appeal to the appropriate court as prescribed 

by statute.

• One of 94 U.S. District Courts. 

• One of 12 Circuit Courts of Appeal and the 

Court of Appeals for the District of Columbia.
Conclusion

Informal adjudication procedures can be 

substantially less demanding than the formal 

adjudication procedures of the APA and still 

comply with due process, especially if an 

Administrative Law Judge presides. 

Procedural safeguards in APA formal 

adjudication exceed the maximum protection 

required by due process for almost all agency 

decisions.