ELEMENTS OF THE
ADMINISTRATIVE PROCESS:
FORMAL, SEMI-FORMAL, AND
FREE-FORM MODELS*
L. HAROLD LEVINSON**
Page
873
875
875
877
INTRODUCTION .............................................
I.
CONCEPTUAL APPROACH .............................
A. Legal Requirements in Decisionmaking Proceedings
B. Elements ......................................
C. Distinction between Formal, Semi-formal and Freeform Proceedings ...............................
878
II.
OF SELECTED FORMAL AND
PROCEEDINGS ........................................
ELEMENTS
SEMI-FORMAL
Preliminary Inquiries, Submittals, Determinations
and Settlements ................................
1. Preliminaryinquiries and submittals ...........
2. Preliminary determinations and settlements .....
B. Preparationfor Further Proceedings ...............
1. Initiatingfurther proceedings .................
2. Notice .....................................
3. Intervention ...............................
4. Subpoenafor attendance of witnesses ..........
5. Discovery ..................................
6. Prior authorization, screening ................
C. Assembling Facts and Opinions ..................
1. Evidence limitations .........................
2. Investigation by decisionmaker ...............
3. Evidence presentations ......................
4. Cross-examination and access to adverse evidence .....................................
880
A.
881
882
885
887
887
890
892
893
894
895
896
896
898
900
901
* The author gratefully acknowledges research assistance rendered by George M.
Kryder III, J.D., 1977, Vanderbilt University, while be was a law student.
** B.B.A., LL.B., University of Miami; LL.M., New York University; J.S.D., Columbia
University. Professor of Law, Vanderbilt University.
872
19771
MODELS
5. Argum ent ..................................
6. Assistance of counsel and others ..............
7. Conversion of pending proceeding from one type
to another .................................
D . Decision ......................................
1. Decisionmaker ..........................
... 904
2. Impartiality of decisionmaker ..............
3. Submittals by parties .....................
4. Record .................................
5. Form, findings, reasons ...................
6. Filing, effective date .....................
7. Reconsideration .........................
E. Publicity ...................................
1. Open proceedings ........................
2. Public access ............................
3. Publication .............................
F . Review .....................................
1. Executive/administrativereview ............
2. Legislative review ........................
3. Judicialreview ..........................
III. FREE-FORM PROCEEDINGS ........................
A. An Endangered Species ......................
B. Controls over End Result .....................
IV.
MODEL BUILDING ...............................
A.
B.
C.
Comparisonswithin the Grid .................
Use of the Grid as Basis for Classifying Other t Iroceedings ...................................
Beyond Classification ........................
V. M ODEL GRIDS ..................................
APPENDIX A .........................................
APPENDIX B
.........................................
934
936
938
938
940
INTRODUCTION
The literature of administrative law classifies the decisionmaking
proceedings of agencies as being either "formal" or "informal." The
"formal" category consists of evidentiary, trial-type hearings, modeled
on the judicial process, leading to decisions based on the record. The
term "informal," as found in the literature, encompasses all types of
agency proceedings that do not fall within the "formal" classification. 1
1.
The term "informal" appears in three contexts in the literature of administrative
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:872
As long as the major concern of scholars was focused on the formal
proceeding, this binary distinction served the useful purpose of separating the relatively interesting formal proceeding from the relatively uninteresting residue of proceedings that were classified as
"informal." Now that scholarly attention has extended, belatedly,
beyond the formal proceeding, 2 the continued utility of the formal/
informal classification is questionable.
The present article proposes to recognize, instead, three categories
of agency proceedings: formal, semi-formal, and free-form. As the
terms are used here, "formal" retains its established meaning.
"Semi-formal" proceedings are those in which the agency is required
by law to follow some sort of prescribed procedure, which however
does not coincide with the formal model. "Free-form" proceedings
are those in which the agency is not subject to any legally binding
procedural requirement at all, and is therefore at liberty to adopt any
procedure it wishes, or no procedure at all.
In order to facilitate analysis and model-building, the article identifies a series of procedural stages and other ingredients, designated
here as the "elements" of the administrative process, that can serve
as a uniform set of headings, under which the components of any
type of administrative proceeding can be described. This series of
elements is used as the framework for the analytical description of a
law. First, it denotes adjudication by procedures other than the "formal," trial-type
evidentiary hearing. See, e.g., B. SCHWARTZ, ADMINISTRATIVE LAw 426 (1976) [hereinafter cited as SCHWARTZ]; Gardner, Procedures by Which Informal Action Is Taken, 24
AD. L. REV. 155 (1972); Gardner, The Informal Actions of the Federal Government, 26
Am. U.L. Rev. 799 (1977); Verkuil, A Study of Informal Adjudication Procedures,43 U.
Cm. L. REv. 739 (1976) [hereinafter cited as Verkuil, Informal Adjudication]. Second,
the term "informal" is used in reference to notice-and-comment rulemaking, in contrast
to those rare situations in which a statute requires rulemaking to be conducted in accordance with the procedures of formal adjudication. See, e.g., Hamilton, Proceduresfor
the Adoption of Rules of GeneralApplicability: The Need for ProceduralInnovation in
Rulemaking, 60 CALIF. L. REV. 1276, 1276-78 (1972); Verkuil, Judicial Review of Informal Rulemaking, 60 VA. L. REV. 185, 186-87 (1974) [hereinafter cited as Verkuil, Informal Rulemaking]. More often, the term "informal" is used in a third and broader sense
to include both of the above as well as everything else that an agency does other than
formal adjudication. See, e.g., K. DAVIS, DISCRETONARY JUSTICE 116-20 (1969); Wil-
liams, Securing Fairness and Regularity in Administrative Proceedings, 29 AD. L. REV.
1, 23 (1977).
2. In addition to sources cited in note 1 supra, see K. DAVIS, ADMINISTRATIVE
LAW OF THE SEVENTIES, CH. 4 (1976); Davis, Revising the Administrative Procedure
Act, 29 AD. L. REV. 35, 48-50, 56-57 (1977); Friendly, "Some Kind of Hearing," 123 U.
PA. L. REV. 1267 (1975) [hereinafter cited as Friendly]; Mashaw, The Supreme Court's
Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three
Factorsin Search of a Theory of Value, 44 U. Cm. L. REV. 28 (1976) [hereinafter cited
as Mashaw].
MODELS
19771]
number of selected types of proceedings. This description is followed
by a discussion of free-form proceedings, with special reference to the
controls that are imposed over the end results reached in such proceedings.
Finally, the article portrays agency proceedings graphically, as a
grid, 3 the left column consisting of a vertical listing of the elements.
Any type of administrative proceeding, actual or hypothetical, can be
represented in a vertical column beside the list of the elements.
Numerical coding and data processing become possible. Description,
comparison, evaluation, and model-building are facilitated.
I.
CONCEPTUAL APPROACH
Before selected types of administrative proceedings are analyzed in
terms of a series of elements, some conceptual and definitional questions require attention.
A.
Legal Requirements in DecisionmakingProceedings
The study is limited to agency proceedings 4 leading to decisionmaking, 5 together with such intimately related matters as the availability of external review of agency decisions by executive, legislative, or
judicial officers. Accordingly, the study excludes non-decisional activities involved in such functions as agency housekeeping, 6 routine compilation of statistics, and routine distribution of public documents and
information.
Legal requirements pertaining to selected agency proceedings are
examined, 7 without regard to the manner in which the proceedings
3. See Appendix A infra.
4. As used in this article, the term "agency" includes the President of the United
States and the Governors of states, as well as persons holding offices created by statute,
and the term "proceeding" includes the performance of functions under authority
granted directly by the constitution as well as authority delegated by the legislature.
The extent to which legal requirements can be imposed upon the chief executive in the
exercise of powers derived directly from the constitution is discussed in notes 320-28,
infra.
5. The term "decisionmaking" means the final outcome of rulemaking or adjudica-
tion, and does not mean the making of interlocutory decisions such as the decision to
prosecute, or to hold a hearing in a certain location, or to receive a certain item of
evidence.
6. Decisionmaking is involved in some types of agency housekeeping, including
personnel and procurement, and such decisional activities would fit within the type of
study explored in this article. The distinction between decisional and non-decisional
activities may be analogized to the distinction between discretionary and ministerial
acts of agencies.
7. Procedural requirements that are imposed by law may generally be enforced by
the courts. However, this generality is subject to a number of exceptions. For example,
THE AMERICAN UNIVERSITY LAW REVIEW
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may be conducted in fact. 8 A comprehensive study of legal requirements would have to examine all federal and state administrative procedure acts (APA's), as well as statutes establishing procedures for
specific administrative programs, procedural rules adopted by agencies, rules of court where applicable, and pertinent case law.
Recent decades have witnessed a proliferation of legal requirements pertaining to agency proceedings. Some of the new requirements result from the "due process revolution" of the early 1970's,
exemplified by Goldberg v. Kelly. 9 Additional requirements result
a statute or common law may preclude judicial review, or the alleged procedural irregu-
larity may be considered harmless error in the circumstances of a particular case, or the
question of procedural irregularity may be beyond the range of issues that the plaintiff
has standing to raise, or the legally required procedure may be contained in an unpublished manual that is unknown to the plaintiff or even to the court.
Whether or not judicial enforcement of procedural requirements is available, these
requirements may yet be enforced in some circumstances by chain-of-command supervision (within the same agency or from a superior agency), or by post-audit performed
by inspectors from other agencies. For a discussion of an extra-judicial quality control
system for monitoring the performance of agency personnel, see Mashaw, The Management Side of Due Process: Some Theoretical and Litigation Notes on the Assurance of
Accuracy, Fairness, and Timeliness in the Adjudication of Social Welfare Claims, 59
CORNELL L. REv. 772 (1974).
If neither judicial nor administrative enforcement is available, the procedural requirements are, in the language of jurisprudence, leges imperfectae. J. STONE, LEGAL
SYSTEM AND LAWYERS' REASONINGS 174, 180-88 (1964). The present author would still
regard procedural requirements as "laws," even if unenforceable.
8. The choice of legal requirements rather than agency practice as the basis for this
study reflects considerations of feasibility; the legal requirements are obviously easier
to unearth and classify than is agency practice. Utility is also taken into account, as the
analysis of legal requirements produces conceptual results and may also serve as a
building block for future studies of law as practiced.
9. The seminal case in this area is Goldberg v. Kelly, 397 U.S. 254 (1970), in which
the Supreme Court reviewed New York State's pretermination procedures for welfare
recipients and found them inadequate under the due process clause of the fourteenth
amendment. Goldberg required that a hearing must be afforded the welfare recipient
before termination of his benefits; and that a "fair hearing" would include such procedural elements as notice, an impartial decisionmaker, oral presentation of evidence
and arguments, confrontation and cross-examination of adverse witnesses, disclosure of
opposing evidence, and the right to retain counsel, to a determination on the record,
and to a statement of reasons for the decision. 397 U.S. 254, 267-71. Subsequent cases
have limited the broader implications of Goldberg by restricting it to its particular
facts. When a full post-termination hearing is provided, for example, neither the termination of federal employment nor of disability benefits requires a full antecedent hearing such as that required in Goldberg. See Mathews v. Eldridge, 424 U.S. 319 (1976);
Arnett v. Kennedy, 416 U.S. 134 (1974).
It seems clear in regard to the later decisions that the governmental agency need not
undertake a full Goldberg hearing wherever due process requires a hearing of some
kind. Constitutional requirements will vary with the type of interest involved. Wolff v.
McDonnell, 418 U.S. 539, 560 (1974). Recent federal cases following Goldberg are often
cited as the "due process revolution" of the 1970's. See, e.g., Friendly, supra note 2, at
MODELS
1977]
from another revolution, brought about by provisions in the federal
APA and in many state APA's, directing agencies to adopt and publish their own rules of formal and informal procedure.' 0
The codes of administrative rules of the federal and state governments constitute a vast catalog of procedural requirements concerning
many types of administrative proceedings. These rules have attracted
the attention of legal scholars only sporadically, in the context of litigation involving relatively narrow aspects of specific rules. Systematic
analysis of all the rules of the federal government and all states would
be a massive undertaking, and the anticipated benefits might not be
considered worth the cost. Selected analysis might be feasible, however, especially if data processing techniques were brought into play.
Unless reasonable attention is paid to federal and state administrative
rules of procedure, scholars can hardly claim to portray the legal requirements applicable to agency proceedings.
The present study makes no claims to exhaustive coverage. The
types of agency proceedings selected for examination are identified
below.
B.
Elements
Administrative proceedings go through various sequences of procedural stages that can be classified by such terms as notice, reception of evidence, rendition of decision, and so on. The specific type of
procedure at any stage-for example, the notice stage--differs from
one type of administrative proceeding to another, but many types of
proceedings share the requirement that some type of notice be given.
The notice stage is therefore analytically useful as a heading under
which the differing notice requirements of various types of administrative proceedings can be described, compared, and evaluated.
A systematic study of administrative proceedings should take account of all procedural stages, and also of certain other intimately
1268 ("due process explosion"); Mashaw, supra note 2, at 29 ("due process revolution");
McCormick, The Purpose of Due Process: Fair Hearing or Vehicle for Judicial Review,
52 TEx. L. REV. 1257 (1974) ("veritable explosion in the application of the due process
standard"); Tobriner and Cohen, How Much Process Is "Due"?: Parolees and Prisoners,
25 HAsTINcs L.J. 801 (1974) ("revolutionary expansion in the area of constitutional law
known as procedural process").
10. The federal APA provision is 5 U.S.C. § 552(a)(1)(B), (C) (Supp. V 1975). In the
Revised Model State Administrative Procedure Act, see note 13 infra, a similar requirement is imposed by § 2(a)(1)-(3). See also 1 F. COOPER, STATE ADMINISTRATIVE
LAW 167 (1965) [hereinafter cited as CoOPER]. No doubt compliance with these re-
quirements is uneven nationwide, as is judicial willingness to enforce them. See Verkuil, Informal Adjudication, supra note 1, at 795.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:872
related ingredients, such as rules of evidence, impartiality of decisionmaker, and availability of judicial review. The procedural stages
and the other ingredients are the "elements" in terms of which this
article analyzes various types of administrative proceedings.
The elements-" have been derived from statutes, agency rules of
procedure, case law and scholarly literature. When the study was undertaken, separate groups of elements were compiled, respectively,
for formal adjudication, informal adjudication, and notice-and-comment rulemaking. However, considerable overlap was discovered,
with many elements recurring in each of these groups. Accordingly, a
single set of elements was compiled, consisting of those found in formal as well as informal proceedings, rulemaking as well as adjudication, in selected provisions of state as well as federal law. The single
set consists of twenty-eight elements, and is used in the present study.
It is not offered as a definitive set. Additional elements may have to
be written in, upon discovery of stages or other ingredients that cannot be adequately analyzed by the twenty-eight elements used here,
and some of the existing twenty-eight elements may have to be subdivided if they turn out to be too broad for analytical purposes.
C. Distinction between Formal, Semi-formal
and Free-form Proceedings
Adjudication under the Federal APA1 2 is not identical to the contested case hearing under the Revised Model State Administrative
Procedure Act (RMA). 13 Yet administrative lawyers describe each of
11. The elements of the administrative process identified by this study are listed in
note 336 infra.
12. 5 U.S.C. §§ 554-557 (1970).
13. Revised Model State Administrative Procedure Act §§ 9-12, 13 Uniform Laws
Ann. (West Supp. 1977) [hereinafter cited as RMA]. The relatively minor contrasts between the Federal APA formal adjudication and the RMA contested case are indicated
in Part II of this article, since these two types of proceedings are included among the
seven that are subjected to analysis under the proposed 28 elements.
The Model State Administrative Procedure Act was developed by the National Conference of Commissioners on Uniform State Laws, in conjunction with various sections
and special committees of the American Bar Association. It was designed to assist states
in drafting legislation on administrative procedure. The original model act was adopted
in 1946. It was superseded in 1961 by the RMA. The great majority of states have
enacted administrative procedure legislation, including 27 states that have been identified, in Uniform Laws Annotated, as adopting all or part of the RMA, either verbatim
or with adaptations. These 27 RMA states are: ARK. STAT. ANN. §§ 5-701 to 715 (1976);
CONN. GEN. STAT. §§ 4-166 to 189 (1977); D.C. Code §§ 1-1501 to 1510 (Supp. 1977);
GA. CODE ANN. §§ 3A-101 to 124 (1975 & Cum. Supp. 1977); HAW. REV. STAT. §§ 91-1
to 18 (1968 & Supp. 2 1975); IDAHO CODE §§ 67-5201 to 5218 (1973 & Cum. Supp.
1977); ILL. ANN. STAT. ch. 127, §§ 1001-1021 (Smith-Hurd Cum. Supp. 1977); IOWA
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MODELS
them as "formal," based on their close similarity to the judicial model
in certain respects that are deemed crucial to the definition. This
established usage can be restated in terms of the set of twenty-eight
elements proposed in this article: in order to be classified as "formal,"
a type of administrative proceeding must be subject to legal requirements that conform, within a tolerable range, to certain specifications
with regard to certain elements, including notice, presentation of evidence, cross-examination, record, and others that are essential to the
"formal" classification. Thus the formal type of proceeding can be recognized by a characteristic pattern of specifications with regard to certain key elements.
Before the terms "semi-formal" and "free-form" are defined, the
twenty-eight elements must be divided into two categories, depending on whether or not they impose a procedural requirement in connection with the agency's decisionmaking process. For example, notice is regarded as a "procedural" element, while judicial review is
"non-procedural."
17A.1-.23 (West Gum. Supp. 1977-78); LA. REV. STAT. ANN. §§
49:951-:967 (West Cum. Supp. 1977); MD. ANN. CODE art. 41, §§ 244-256A (1971 &
Cum. Supp. 1976); MICH. Comp. LAWs ANN. §§ 24.201-.315 (West Cum. Supp. 1977);
Mo. ANN. STAT. §§ 536.010-.150 (Vernon 1953 & Cum. Supp. 1977); MONT. REV. CODES
ANN. §§ 82-4201 to 4225 (Cum. Supp. 1975); NEB. REV. STAT. §§84-901 to 919 (1976);
NEV. REV. STAT. § 233B.010-.160 (1965); N.H. REV. STAT. ANN. §§ 541-A:1 to :9 (1974 &
CODE ANN. §§
Supp. 1975); N.Y. STATE ADNMN. PROC. ACT §§ 110-501 (McKinney 1976); N.C. GEN.
STAT. §§ 15OA-1 to 64 (Supp. 1975); OKLA. STAT. ANN. tit. 75, §§ 301-327 (West 1976 &
Cum. Supp. 1976-77); R.I. GEN. LAws §§ 42-35-1 to 18 (1969 & Supp. 1976); S.D.
COMPMED LAWS ANN. §§ 1-26-1 to 40 (1974 & Supp. 1977); TENN. CODE ANN. §§ 4-507
to 527 (Cum. Supp. 1976); VT. STAT. ANN. tit. 3, §§ 801-820 (1972 & Cum. Supp. 1977);
WASH. REV. CODE ANN. §§ 34.04.010 to .940 (West 1965 & Supp. 1976); W. VA. CODE
§§ 29A-1-1 to 7-4 (1976 & Supp. 1977); WIs. STAT. ANN. §§ 227.01-.26 (West 1957 &
Supp. 1977-78); WYo. STAT. §§ 9-276.19 to .33 (Cum. Supp. 1975).
At its August, 1977 meeting, the House of Delegates of the Ameican Bar Association
adopted a proposal of the Section of Administrative Law, urging every state to adopt an
administrative procedure act implementing the following principles:
1. State agency rulemaking normally be preceded by notice and an opportunity
for interested persons to submit views or information;
2. Procedural rights in state agency adjudicative hearings be set forth by the statute with such particularity as may be feasible, in order to secure fairness coupled
with efficiency. Matters worthy of consideration in this connection include requirements of adequate notice, rules of evidence, contents of the record, basis for
the decision rendered, impartiality of the adjudicator, and the like;
3. State agency rules be published, and other state agency law or policy affecting
rights of the public be made available generally for public inspection;
4. State agencies adopt rules describing the procedural rights of members of the
public in their dealings with the agencies;
5. Adequate judicial review of state agency action be provided.
House of Delegates Adopts Advertising D.R. and Endorses a Package of Grand Jury
Reforms, 63 A.B.A.J. 1234 (1977).
THE AMERICAN UNIVERSITY LAW REVIEW
(Vol. 26:872
"Semi-formal" proceedings can now be defined as those in which
the agency is subject to legal requirements with regard to at least one
of the procedural elements, provided that the pattern of legal requirements does not qualify the proceeding to be classified as "formal." Thus such diverse proceedings as notice-and-comment rulemaking and the Goldberg v. Kelly pre-termination hearing are included
within the broad "semi-formal" category.
"Free-form" proceedings are not subject to legal requirements with
regard to any of the procedural elements, although legal requirements may exist with regard to nonprocedural elements. In free-form
proceedings the agency is therefore at liberty to adopt any procedure
it wishes, or no procedure at all.
II.
ELEMENTS OF SELECTED FORMAL
AND SEMI-FORMAL PROCEEDINGS
Using the proposed set of twenty-eight elements, this part of the
article analyzes seven types of administrative proceedings: formal ad15
14
judication as provided, respectively, in the Federal APA, the RMA,
and the Florida APA; 16 notice-and-comment rulemaking in the same
three statutes; 17 and "informal" adjudication in the Florida APA. 18 The
seven proceedings were selected because of the influential status of
the Federal APA and the RMA, and the innovative nature of the
Florida APA. References are made, where appropriate, to the due
process requirements of Goldberg v. Kelly 19 and subsequent cases,
insofar as these cases have a bearing on the elements of the administrative process.
The analysis of these selected proceedings is offered as an example
of the use of the proposed set of elements in describing formal and
semi-formal types of proceedings. The elements could also be used for
the description of free-form proceedings, but such an exercise would
produce a zero with regard to each of the procedural elements, and
does not appear especially useful. Any type of administrative proceeding, including, but not limited to the seven featured here, can be
14. 5 U.S.C. §§ 554-557 (1970).
15. RMA §§ 9-12.
16. FLA. STAT. § 120.57(1), .58, .59 (Harrison 1975 & Supp. 1976).
17. 5 U.S.C. § 553 (1970 & Supp. V 1975); RMA § 3; FLA. STAT. § 120.54-.545 (Harrison Supp. 1976).
18. FLA. STAT. § 120.57(2) (Harrison Supp. 1976). Informal adjudicative processes
are also found in the APA's of the following states: DEL. CODE ANN. tit. 29, § 6423
(Michie Supp. 1976); VA. CODE § 9-6.14:11 (Supp. 1977).
19. 397 U.S. 254 (1970). See note 9 supra.
19771
MODELS
analytically described under this set of elements, or under a modified
set if necessary. The twenty-eight elements are presented in six groupings: (A) preliminary inquiries, submittals, determinations, and settlements; (B) preparation for further proceedings; (C) assembling facts
and opinions; (D) decision; (E) publicity; and (F) review.
A.
Preliminary Inquiries, Submittals, Determinations,
and Settlements
Before an agency goes through a formal adjudicative process, it
must first assemble preliminary information and perform other
threshold functions. Agency personnel can then determine whether
formal proceedings are necessary and, if so, what position the agency
staff will take regarding the matters at issue. Sometimes these preliminary activities lead to a settlement, making further proceedings
unnecessary. At the preliminary stage, the Federal APA requires the
agency to give all interested parties opportunity for:
(1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and
(2) to the extent that the parties are unable to determine a controversy
by consent, hearing and decision on notice 0 and in accordance with [the
2
formal adjudicative provisions of the APA].
Two elements within the preliminary stage may be recognized, at
least with regard to formal adjudication: (1) preliminary inquiries and
submittals; and (2) preliminary determinations and settlements. These
elements are "preliminary," as they arise before the more complex
cycle of proceedings which are required for formal adjudication if the
preliminaries fail to produce settlement. In semi-formal proceedings,
the same two preliminary elements can often be discerned as "preliminaries" to the more complex cycle of proceedings required if settlement cannot be reached.
An hypothesis for future consideration is that a well designed preliminary stage, consisting of inquiries and submittals, and opportunity
for determinations and settlements, would be the functional equivalent of the essential procedural elements which would be required if
the more elaborate procedures of later stages were invoked. This hy20. 5 U.S.C. § 554(c) (1970). The "fair hearing" requirements of Goldberg v. Kelly
did not include any statement obliging the agency to consider preliminary submittals by
the parties. Such preliminaries were available under the statutes and rules at issue,
however, and were used in that very case before it reached the courts. 397 U.S. at
256-60.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:872
pothesis could be tested by subdividing the two elements of the preliminary stage into numerous components, representing miniaturized
or functionally equivalent versions of the later stages, and using these
subdivisions for the analysis of statutes, rules, and cases dealing with
the preliminary stage.
1. Preliminary inquiries and submittals
Preliminary inquiries and submittals are found in both adjudication
and rulemaking. Most, if not all, formal or semi-formal administrative
processes start with inquiries, submittals, or both, on a level "preliminary" to the more complex processes that will follow unless early
settlement is reached. Adjudicative functions often start with the
agency's receipt of a citizen application or complaint, or with an official inspector's report, followed by discussions between field agents
and affected citizens, investigations by agency staff, conferences with
agency supervisors, and other activities. The RMA 21 and Florida APA
provisions on formal adjudication 22 and the Florida APA on informal
adjudication 23 require the agency to give the parties an opportunity
to work out preliminary settlements, and imply that the parties must
have the related opportunity to submit facts, arguments, and offers of
settlement. The Federal APA24 expressly requires the agency to consider facts, arguments, and offers submitted by the parties at the preliminary stage.
All three statutes make special provision for preliminary submittals
by parties threatened with license revocation or suspension. Under
the Federal APA:
Except in cases of willfulness or those in which public health, interest
or safety requires otherwise, the withdrawal, suspension, revocation, or
annulment of a license is lawful only if, before the institution of agency
proceedings therefor, the licensee has been given-(1) notice by the
agency in writing of facts or conduct which may warrant the action; and
(2) opportunity to demonstrate or achieve compliance with all lawful
25
requirements.
The RMA and the Florida Acts are substantially similar, except that
the licensee is given an opportunity to "show compliance" under the
21.
RMA § 9(d).
22.
FLA. STAT. § 120.57(1)(b)4 (Harrison Supp. 1976).
23. Id. § 120.57(2)(a)1, 2.
24. See text accompanying note 20 supra.
25. 5 U.S.C. § 558(c) (1970) (emphasis added).
MODELS
19771
RMA, 2 6 or to "show that he has complied" under the Florida Act,2 7
instead of to "demonstrate or achieve compliance" as under the Federal Act.
The Florida Act makes additional provisions regarding preliminary
submittals in connection with license applications. 2 Within thirty days
after an application has been received, the agency is required to examine it, notify the applicant of any apparent errors or omissions, and
request any additional information the agency is permitted by law to
require. The applicant's failure to correct an error or omission or to
supply additional information shall not be grounds for denial of the
license unless the agency timely notified the applicant within this
29
thirty day period.
The preceding paragraphs are based on the models implied by the
Federal APA, the RMA, and the Florida APA, with a single "preliminary stage" followed by a single set of more elaborate procedures
if settlement is not reached at the preliminary stage. More complex
arrangements, making numerous procedural cycles available to dissatisfied parties, have been established by statute or rule for some
agency functions. It seems convenient, in such situations to identify
one of the cycles as the "most complex," as it features the greatest
procedural complexity, and to subject that cycle to analysis in terms
of the full range of elements discussed in this article. All procedures
available before this "most complex" cycle would then be regarded as
"preliminary," and all that are available afterwards would be regarded
as "review. '" This classification may therefore produce multiple cycles of proceedings within the "preliminary" stage and, less probably,
multiple cycles within the "revieV" stage, but, at any event, only one
"most complex" cycle. 3 '
Notice-and-comment rulemaking provides other examples of preliminary inquiries and submittals. Rulemaking proceedings may start
either on the agency's own motion or in response to a citizen's petition. The Federal APA confers upon an "interested person" the right
to petition for the issuance, amendment, or repeal of a rule.8 2 The
RMA contains similar language, and adds that each agency must
26. RMA § 14(c).
27.
28.
29.
30.
infra.
31.
32.
FLA. STAT.
§
120.60(4) (Harrison 1975).
Id. § 120.60(2).
Id.
Executive/administrative review is discussed in text accompanying notes 272-81
See notes 40-41 & accompanying text infra.
5 U.S.C. § 553(e) (1970).
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adopt rules prescribing the form for petitions and the procedure for
their submission, consideration, and disposition. Moreover, within
thirty days after submission of a petition for rulemaking, the RMA
requires the agency either to render a written, reasoned denial, or to
initiate rulemaking proceedings. 3 3 The Florida APA permits "any
person regulated by an agency or having a substantial interest in an
agency rule" to petition for rulemaking; the remainder of the Florida
34
provision closely follows the RMA.
All three Acts designate the materials that must be contained in
the agency's notice of proposed rulemaking, and imply that the
agency must conduct its own preliminary processes in order to prepare these materials before publication of the notice. The Federal
APA 35 and the RMA 36 permit the agency to publish either the proposed rule or the subjects and issues to be covered by rulemaking.
These publication requirements imply that the agency has a corresponding choice as to the amount of preliminary drafting undertaken
before comments are invited from the public. If the agency wishes to
publish the full text of the proposed rule at the time it publishes
notice inviting comments, the agency obviously must have drafted
the entire rule before this time. After considering any comments received, the agency may redraft the rule if it so desires. If the agency
wishes to publish only the subjects and issues to be covered by
rulemaking, however, the APA and RMA imply that the agency is
under no obligation to have drafted the full text of the proposed rule
before it publishes notice inviting comments.
By contrast, the Florida APA contains a number of implications
that the agency must have drafted the entire proposed rule before it
publishes notice inviting comments. First, the Florida Act requires
the notice of proposed rulemaking to include, among other items, a
summary of the proposed rule and of its estimated economic impact,
and the location where the text of the proposed rule or economic
impact statement can be obtained if the full text is not included in
the notice. 37 The implication is that the full text of the proposed rule
must have been written before publication of the notice. Second, the
Act authorizes any substantially affected person to seek an administrative determination of the validity of any proposed rule, by filing a
33.
34.
35.
RMA § 6.
FLA. STAT. § 120.54(5) (Harrison Supp. 1976).
5 U.S.C. § 553(b)(3) (Supp. V 1975).
36. RMA § 3(a)(1).
37.
FLA. STAT. § 120.54(1) (Harrison Supp. 1976).
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petition within fourteen days after publication of the notice of proposed rulemaking. 38 This implies that the petitioner will by then have
had an opportunity to read the full text of the proposed rule. Third,
the Act requires the adopting agency to file a copy of each proposed
rule and a copy of the notice of proposed rulemaking with the Administrative Procedures Committee of the legislature. 39 Again the
implication is that the full text of the rule must have been drafted
before publication of the notice.
Under all three statutes, proceedings to permit public comment
ensue only if eligible parties invoke their opportunity to bring these
proceedings about. If no further proceedings are requested, the
agency may move directly to its decisionmaking stage. If the agency
had completely written the proposed rule at the preliminary stage,
and if the agency received no comments, the finalization of the rule
would be a relatively simple process. If, however, the agency wrote
only a summary of the proposed rule, or if it merely identified the
subjects and issues to be covered, the finalization of the rule would
become more complex, even in the absence of comments.
2.
Preliminary determinations and settlements
The adjudicative provisions of the Federal APA, the RMA, and the
Florida APA all require the agency to give an opportunity for preliminary settlements. These provisions imply that statutes or rules
will identify those officials within the agency who possess authority to
enter into legally binding settlements, and will establish procedures
by which these officials will determine whether or not to settle
specific cases. Another implication is that the settlement process must
be exhausted (or waived) before the more complex procedures get
under way.
Sometimes the agency must make a preliminary determination, to
be submitted to the parties for settlement, before more complex proceedings may start. An example is found in the Occupational Safety
and Health Act (OSHA). 40 The statute provides that the Secretary of
Labor may inspect premises of employers, issue citations if he finds
violations, and issue a notice of a proposed penalty. The citation and
proposed penalty notice are served on the employer by mail. The
38. id. § 120.54(4).
39. Id. § 120.54(11)(a).
40. Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (1970). The
decisionmaking procedures of the statute were recently sustained in Atlas Roofing Co.
v. Occupational Safety and Health Review Comm'n, 430 U.S. 442 (1977).
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employer may pay the penalty and remedy the violation, or he may
demand a formal evidentiary hearing before an administrative law
judge (ALJ). The ALJ's findings are subject to review by the Occupational Safety and Health Review Commission, and, ultimately, by the
courts.
Rules expand this statutory framework. The inspection is carried
out for the Secretary by a Compliance Safety and Health Officer of
the Department of Labor. 4 1 At the conclusion of his inspection, the
compliance officer must confer informally with the employer and advise him of any apparent violations. During such a conference, the
employer is given an opportunity to bring any pertinent information
to the attention of the compliance officer. After the inspection and
conference, the compliance officer prepares a report that is reviewed
by the area director, who, if appropriate, confers with the regional solicitor. The area director then notifies the employer of the violation
and proposed penalty. The employer exercises his choice whether to
pay the penalty and remedy the violation, or to demand the formal
evidentiary hearing, which is subject to review by the Commission
and the courts.
The compliance officer carries out a series of "preliminary inquiries," including his choice of premises to inspect, his reaction to
information submitted by the employer during the informal conference at the conclusion of the inspection, his drafting of the report to
the area director, and his personal interaction, if any, with the area
director and other agency staff members. These steps could be isolated by subdividing the "preliminary inquiries and submittals" element into subunits.
The area director makes a "preliminary determination" when he
serves the employer with the citation and proposed penalty notice.
Again, more detailed analysis could isolate subunits, such as the
director's receipt of a report from his subordinate (the compliance
officer), the director's consultation with other agency personnel (the
regional solicitor), and the director's exercise of his own judgment as
a prosecutor.
The employer enters into a "settlement" if he decides to pay the
penalty and remedy the violation. If the employer offers to settle by
paying a smaller penalty than the director proposed, negotiations
comparable to plea bargaining in the criminal process may ensue.
This bargaining could be identified as still another subunit in a de-
41.
29 C.F.R. § 1903.3, .14, .15 (1976).
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tailed analysis of the "preliminary determinations and settlements"
stage.
In rulemaking, the proposed rule, summary, or list of subjects
and issues prepared by the agency at the preliminary stage may be
viewed as a "preliminary determination" resulting from the agency's
"'preliminary inquiries," and interested parties may be regarded as
"settling" if they refrain from requesting further proceedings at which
comments would be elicited.
B.
Preparationfor FurtherProceedings
If proceedings beyond the preliminary stage are required, preparatory measures are taken to pave the way for further proceedings.
Six elements have been identified in connection with these preparatory measures: (1) initiating further proceedings; (2) notice; (3) intervention; (4) subpoena for attendance of witnesses; (5) discovery; and
(6) prior authorization or screening.
1. Initiatingfurther proceedings
In adjudicative matters, the Federal APA permits "all interested
parties" to demand further proceedings, if preliminary processes do
not result in acceptable settlements. 42 This seemingly broad coverage
is reduced sharply when considered with other provisions of the Act.
A "party" is defined as one who is entitled "as of right to be admitted
as a party," 4 3 and the formal hearing described in the Act is available
"in every case of adjudication required by statute to be determined
on the record after opportunity for an agency hearing."4 The result
42.
5 U.S.C.
§ 554(c)
(1970). Goldberg v. Kelly held that the recipient of welfare
benefits had a due process right to a "fair hearing" before the benefits could be terminated, a right that is based upon the recipient's statutory entitlement to the benefits. 397
U.S. 254, 260-62. The exact form of this hearing is a variable one. The Court in
Goldberg, while stating that the hearing "need not take the form of a judicial or quasijudicial proceeding," id. at 266, proceeded to require almost all the elements of one.
Friendly, supra note 2, at 1299. In Matthews v. Eldridge, 424 U.S. 319 (1976), the
Court, holding that the procedures need only insure that the individual is given a meaningful opportunity to present his or her case, upheld termination of disability benefits
without a prior judicial-type hearing. See note 9 supra.
43. 5 U.S.C. § 551(3) (1970).
44. Id. § 554(a). Certain exceptions to this statement exist to the extent that there is
involved:
(1) a matter subject to a subsequent trial of the law and the facts de novo in a
court;
(2) The selection or tenure of an employee, except a hearing examiner appointed
under section 3105 of this title;
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of these narrowing provisions is that the Federal APA itself does not
confer upon any person the status of a party who could demand
further administrative proceedings. The Act merely prescribes the
procedures that shall unfold upon the demand of a person who qualifies under another statute as a party for such purposes.
An exception must be noted regarding licenses. The Federal APA
declares that applicants for licenses shall be afforded "proceedings required to be conducted" in accordance with the adjudicatory provisions of the APA "or other proceedings required by law," and that
licensees faced with withdrawal, suspension, revocation, or annulment of their licenses must be given "opportunity to demonstrate or
achieve compliance with all lawful requirements." 4 5 An adjudicatory
hearing would seem to be an "opportunity to demonstrate . . . compliance." It thus appears that the Federal APA is itself a source of the
right to an adjudicatory hearing in license applications and revocations.
Similarly, the RMA makes its contested case hearings available to
"all parties." 46 The RMA defines "party" as one entitled "as of right"
to be admitted as a party, 47 and defines "contested case" as a proceeding in which "the legal rights, duties, or privileges of a party are
required by law to be determined by an agency after an opportunity
for hearing."4 8 Thus, the RMA provisions on contested cases are triggered only by a "law" that guarantees a hearing in the particular
circumstances. 49 The RMA does not adopt the Federal APA's provision that confers the right to a hearing on applicants for licenses, but
the RMA does require that "an opportunity to show compliance" is
given to licensees faced with revocation, suspension, annulment, or
(3)
(4)
(5)
(6)
proceedings in which decisions rest solely on inspections, tests, or elections;
the conduct of military or foreign affairs functions;
cases in which an agency is acting as an agent for a court; or
the certification of worker representatives.
Id.
45. 5 U.S.C. § 558(c) (1970). Willfulness on the applicant's part or requirements of
public health, interest, or safety can negate the agency's obligation to provide notice
and an opportunity to achieve compliance. Id.
46. RMA § 9(a).
47. Id. § 1(5).
48. Id. § 1(2).
49. See Kopper Kettle Restaurants v. City of St. Robert, 439 S.W.2d 1, 3 (Mo. App.
1969) (APA defining a contested case as "a proceeding before an agency in which legal
rights, duties or privileges of specific parties are required by law to be determined after
hearing," means that there must be a statute, municipal charter, ordinance, or constitutional requirement for the hearing).
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withdrawal of their licenses, 50 thereby creating the right to a contested case hearing.
By contrast, the Florida APA contains the guarantee of a hearing
when an agency "determines the substantial interests of a party." 5'
This hearing is "formal" to the extent that a disputed issue of material
fact is involved; otherwise the hearing is "informal." 5 2 In order to
demonstrate standing to demand further proceedings after preliminary processes have failed to produce an acceptable result, a party
must therefore show that he qualifies, under the Florida APA itself,
as one whose substantial interests are subject to determination by the
agency.
The statutes impose neither a time limit within which the party
must invoke his right to demand further proceedings in adjudicatory
matters, nor any particular form in which the demand must be presented. These matters could be covered appropriately in the agencies'
procedural rules, subject to judicial controls to ensure that parties
have a reasonable opportunity to seek additional proceedings.
With regard to rulemaking, the APA's themselves confer standing.
The Federal APA and the RMA require agencies to give "interested
persons" an opportunity to participate;5 3 the Florida APA confers this
50.
51.
RMA § 14(c).
FLA. STAT. § 120.57 (Harrison Supp. 1976).
52. Id.
53.
5 U.S.C. § 553(c) (Supp. V 1975); RMA § 3(a)(2). Under the Federal APA, an
agency is exempt from rulemaking procedures "to the extent that there is involved:
(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to public property,
loans, grants, benefits, or contracts." 5 U.S.C. § 553(a)(1)(2) (1970). Except when notice or hearing is required by statute, the notice-and-comment subsection of the
federal APA does not apply:
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a
brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
5 U.S.C. § 553(b)(A)(B) (1970). Under the RMA,
If an agency finds that an imminent peril to the public health, safety, or welfare
requires adoption of a rule upon fewer than 20 days notice and states in writing its
reasons for that finding, it may proceed without prior notice or hearing or upon any
abbreviated notice and hearing that it finds practicable, to adopt an emergency rule.
The rule may be effective for a period of not longer than 120 days .
. .
I but the
adoption of an identical rule under subsections (a)(1) and (a)(2) of this section is not
precluded.
RMA § 3(b). In addition, the RMA gives interested parties an opportunity for an oral
hearing only in proceedings involving "substantive rules," and then only if requested
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right upon "affected persons." 54 The APA's do not specify directly the
time or manner in which an interested or affected person shall invoke
the opportunity to participate. These matters, to some extent, are
implied by the provisions of the Acts dealing with notice 55 and can be
amplified appropriately by agency rule, or by specific announcements
contained in the notice of proposed rulemaking itself.
2. Notice
In adjudicative matters, the Federal APA requires the agency to
give "timely" notice of the time, place, and nature of the hearing, the
legal authority under which it is to be held, and the matters of fact
and law asserted. 56 The RMA requires "reasonable" notice of these
matters, 57 and, in the case of formal adjudications, the Florida APA
requires fourteen days' (waivable) notice of the same matters. 5 8 The
informal adjudication provision of the Florida APA requires "rea-
by 25 persons, by a governmental unit, or an association with 25 or more members.
RMA § 3(2).
54. FLA. STAT. § 120.54(3) (Harrison Supp. 1976). If the intended action concerns
any rule other than one relating exclusively to organization, procedure, or practice, the
agency shall, on the request of any affected person received within fourteen days after
the date of publication of the notice, give affected persons an opportunity to present evidence and argument on all issues under consideration appropriate to inform the agency
of their cbntentions. Id. An exception is made if "an agency finds that an immediate
danger to the public health, safety, or welfare requires emergency action." Id. § 120.54(9).
55. See notes 56-65 & accompanying text infra.
56. 5 U.S.C. § 554(b) (1970). In addition, if the agency proceeding is a "meeting" of
an "agency," as these terms are defined in the Government in the Sunshine Act, Pub.
L. No. 94-409, § 3(a), 90 Stat. 1241 (1976) (adding 5 U.S.C. § 552b) public notice must
be given. For a discussion of the Act, see notes 237-41 & accompanying text infra.
Goldberg v. Kelly required "timely and adequate notice" detailing reasons for the proposed agency action. 397 U.S. 254, 267-68. "The essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him
and opportunity to meet it." Matthews v. Eldridge, 424 U.S. 319, 348 (1976), citing Joint
Anti-fascist Comm. v. McGrath, 341 U.S. 123, 171-72 (1956) (Frankfurter, J., concurring).
See also Friendly, supra note 2, at 1280-81; Verkuil, Informal Adjudication, supra note
1, at 789-90.
57. RMA § 9(a), (b). The RMA requires "a reference to the particular sections of the
statutes and rules involved," RMA § 9(b)(3), while the Federal APA requires notice of
the "legal authority and jurisdiction under which the hearing is to be held." 5 U.S.C.
§ 554(b)(2) (1970). The RMA requires "a short plain statement of the matters asserted,"
RMA § 9(b)(4); the Federal APA requires notice of "the matters of fact and law asserted." 5 U.S.C. § 554(b)(3) (1970).
"
58. FLA. STAT. § 120.57(1)(b)2 (Harrison Supp. 1976). The Florida APA requires "a
short and plain statement of the matters asserted by the agency and by all parties of
record at the time notice is given." Id. § 120.57(1)(b)2d.
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MODELS
sonable notice to affected persons or parties" of the agency's action,
whether it is proposed or already has been taken, or of a decision to
refuse action. A summary of the factual, legal, and policy grounds
59
therefor also must be included.
For rulemaking procedures, the Federal APA requires notice to be
published in the Federal Register, unless persons subject to the proposed rule are named, and either have been served personally or have
actual knowledge of the rule in accordance with law. 60 The RMA requires twenty days' notice to be mailed to all persons on the agency's
mailing list maintained for this purpose. Notice must also be published in the state's administrative register. 6 1 The Florida APA rulemaking provision is more elaborate. Notice must be mailed to the
Administrative Procedures Committee, a joint committee of both
houses of the legislature, with oversight responsibilities over rulemaking,6 2 and to all persons named in the proposed rule, as well as to all
63
persons on the agency's mailing list.
Under the Florida APA, the proposed rulemaking must be brought
to the attention of those classes of persons to whom the proposed
action is directed, for example, consumers of a utility company which
seeks rulemaking for purposes of obtaining rate increases. 64 Notice
must also be published in the FloridaAdministrative Weekly at least
twenty-one days before the intended action. 65 Thus, Florida requires
mailing to affected parties in addition to publication, in contrast to
the Federal APA which requires either one or the other. The RMA
59. Id. § 120.57(2)(a)1.
60. 5 U.S.C. § 553(b) (Supp. V 1975). The notice must include the time, place, and
nature of the proceedings, the legal authority under which the rule is proposed, and the
terms or substance of the proposed rule, or a description of the subjects and issues
involved. Id. § 553(b)(1)-(3) (1970 & Supp. V 1975).
61. "The notice shall include a statement of either the terms or substance of the
intended action or a description of the subjects and issues involved, and the time when,
the place where, and the manner in which interested persons may present their views
thereon." RMA § 3(a)(1).
62. See text accompanying notes 284-89 infra.
63. FLA. STAT. § 120.54(1) (Harrison Supp. 1976).
64. Id.
65. Id. § 120.54(1)(b). The contents of notice under the Florida APA are somewhat
more elaborate than under either the RMA or the Federal APA. Notice must include a
short and plain explanation of the purpose and effect of the proposed rules, a summary
of the proposed rule, citations to specific legal authority, a summary of the estimated
economic impact, and the location where the text of the proposed rule or economic
impact statement can be obtained if the full text is not included in the notice. Id.
§ 120.54(1).
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[Vol. 26:872
takes an intermediate position, requiring publication and mailing to
persons on the agency's mailing list.
3.
Intervention
After proceedings have been started, it is often possible for persons
to intervene, either as full or as limited participants. Notice-andcomment rulemaking, by its very nature, contemplates intervention
by persons satisfying the test of eligibility-"interested persons"
under the Federal APA6 6 and RMA, 6 7 or "affected persons" under
the Florida Act.68
With regard to adjudicative proceedings, the question of intervention requires more elaborate discussion. Some significant contrasts
are found by comparing the three statutes. Under the Federal APA69
and the RMA 70 a person may qualify as a party only by satisfying
standards external to the Act. Only the Florida Act provides that a
person is eligible to appear as a party if he satisfies criteria found in
7
the APA itself. '
The Federal APA recognizes that a "party" may be either a full or
a limited participant; 72 the RMA refers only to "party," without any
express or implied indication that limited participation is possible. 73
The Florida Act provides for full-participation parties, limited-participation parties, and limited-participation nonparties. 74 Other provi66. 5 U.S.C. § 553(c) (Supp. V 1975).
67. RMA § 3(a)(2).
68. FLA. STAT. § 120.54(3) (Harrison Supp. 1976).
69. " '[P]arty' includes a person or agency named or admitted as a party, or properly
seeking and entitled as of right to be admitted as a party, in an agency proceeding, and
a person or agency admitted by an agency as a party for limited purposes." 5 U.S.C.
§ 551(3) (1970).
70. "'[P]arty' means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party." RMA § 1(5).
71. The Florida APA contains a threefold definition; "party" means:
(a) Specifically named persons whose substantial interests are being determined in
the proceeding;
(b) Any other person who, as a matter of constitutional right, provision of statute or
provision of agency regulation, is entitled to participate in whole or in part in the
proceeding or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party;
(c)Any other person, including an agency staff member, allowed by the agency to
intervene or participate in the proceedings as a party. An agency may by rule authorize limited forms of participation in agency proceedings for persons who are not
eligible, to become parties.
FLA. STAT. § 120.52(9)(a)-(c) (Harrison 1975).
72. Supra note 69.
73. Supra note 70.
74. Supra note 71.
MODELS
1977]
sions of the Federal and Florida Acts deal further with the possibility
of limited participation. The Federal APA permits an "interested person" to appear before an agency, "[slo far as the orderly conduct of
public business permits, . . . for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding,
whether interlocutory, summary, or otherwise, or in connection with
an agency function." 75 As interpreted by the courts, this provision,
coupled with the definition of "party," is a liberal grant of the opportunity of "interested persons" to intervene as full or limited partici76
pants in agency proceedings.
The Florida Act includes separate provisions on limited participation with regard to formal and informal proceedings. In formal adjudicatory proceedings, the Act provides that "the general public may
be given an opportunity to present oral or written communications." 7 7 For informal adjudication, the Florida Act requires the
agency to give "affected persons or parties" an opportunity to present
evidence and argument. 78 The distinction within the Florida Act
merits comment. In formal adjudicatory proceedings, the general
public may be given an opportunity to make presentations when
appropriate, while in informal adjudication the agency is required to
extend this opportunity to "affected persons or parties." The interest
of the general public in formal adjudicatory proceedings requires less
procedural protection than does the interest of "affected persons or
parties" in informal adjudication.
4.
Subpoena for attendance of witnesses
The Federal APA states that "[a]gency subpoenas authorized by
law shall be issued to a party on request and, when required by rules
of procedure, on a statement or showing of general relevance and
reasonable scope of the evidence sought."7 9 Such subpoenas shall be
judicially enforced to the extent the court finds them to be "in accordance with law." 80 These provisions indicate that the Federal APA
itself does not entitle any party to a subpoena; the entitlement must
1
come from some "law" other than the APA.8
75. 5 U.S.C. § 555(b) (1970).
76. See SCHWARTZ, supra note 1, at 263-68.
77. "If the agency proposes to consider such material then all parties shall be given
an opportunity to cross-examine or challenge or rebut it." FLA. STAT. § 120.57(1)(b)4
(Harrison Supp. 1976).
78. Id. § 120.57(2)(a)2.
79. 5 U.S.C. § 555(d) (1970).
80. Id.
81. Goldberg v. Kelly did not involve the subpoena power. Some of the later four-
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The RMA contains no provisions concerning subpoenas. 82The
It
Florida APA contains a single set of provisions for subpoenas.
confers subpoena power upon the agencies, establishes the right of
parties to obtain agency subpoenas, outlines the defenses, and provides for enforcement. These provisions apply to formal adjudication,
informal adjudication, and notice-and-comment rulemaking. The Act
authorizes an agency or a hearing officer to issue subpoenas upon the
written request of any party or upon the agency's own motion. Any
subpoena issued to a member or employee of the legislature, however, must show on its face that the testimony sought does not relate
to legislative duties. The respondent, before compliance and upon
timely petition, may request the agency to invalidate the subpoena
"on the ground that it was not lawfully issued, is unreasonably broad
in scope, or requires the production of irrelevant material ...."83
5.
Discovery
The Federal APA authorizes the hearing examiner to "take depositions or have depositions taken when the ends of justice would be
served," and to "hold conferences for the settlement or simplification
of the issues by consent of the parties,"8 4 but the Act does not establish a general system of prehearing discovery. The RMA does not
address depositions, prehearing conferences, or discovery.
teenth amendment cases decided by the Supreme Court, however, have held that the
subpoena power may be an essential ingredient of due process. In Wolff v. McDonnell,
418 U.S. 539, 566 (1974), the Court noted that the right to present evidence is basic to a
fair hearing, but that the unrestricted right to call witnesses from among the prison
population carries "potential for disruption and for interference with the swift punishment that in individual cases may be essential to carrying out the correctional program."
The implication is that a party is presumptively entitled to issue subpoenas to compel
the appearance of witnesses, but this presumption can be overcome if the agency can
demonstrate, to the satisfaction of the court, a reason why subpoenas should not issue.
Along similar lines, the Court in Goss v. Lopez, 419 U.S. 565, 583-84 (1975), denied the
right to subpoena witnesses in connection with a student's "short suspension" of ten
days or less, but implied that the right might be available if longer suspensions were
involved. See also Friendly, supra note 2, at 1282-87. SCHWVARTZ, supra note 1, at
107-10, reports that the right of a respondent to issue subpoenas in agency proceedings
is recognized in a number of states, by statute or case law or both.
82. FLA. STAT. § 120.58(1)(b) (Harrison Supp. 1976).
83. Id. § 120.58(2) (Harrison 1975). Failure to comply with an agency subpoena, except while it is being subjected to orderly challenge, constitutes contempt of the
agency. Contempt is punishable by any penalties that the agency is authorized by law
to prescribe, or by court enforcement. In the absence of any other statute establishing a
remedy, the Florida APA provides a fine of up to $500.00. Id. § 120.58(3).
84. 5 U.S.C. § 556(c)(4), (6) (1970).
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The Florida APA does not mention prehearing conferences. s5 The
Act does establish a simple yet comprehensive system of discovery.
An agency or hearing officer is authorized, under the Act, "to effect
discovery on the written request of any party by any means available
to the courts and in the manner provided in the Florida Rules of
Civil Procedure."8 6 As with the subpoena power, discovery may not
relate to legislative duties.8 7 A discovery order may be invalidated on
the same grounds as a subpoena, and is subject to the same enforcement provisions.
6.
88
Prior authorization,screening
Among the procedures featured in this article, only the Florida
APA on rulemaking contains examples of prior authorization and
screening which may be invoked at preparatory stages of the agency
process. 8 9 First, any substantially affected person may seek an administrative determination of the validity of a proposed rule. 90 Second, each agency shall file a copy of its proposed rules with the
Administrative Procedures Committee, and that committee may conduct oversight proceedings before the proposed rules are adopted. 9 1
In a number of other states, proposed rules must be submitted to
the attorney general or the Governor for approval before promulga92
tion.
85. Although the Florida APA is silent with regard to prehearing conferences, the
topic is covered in the FLA. ADMIN. CODE § 28-5.11 (Supp. 56 1975). This provision
permits the hearing examiner, at his discretion, to determine whether to hold a prehearing conference.
86. FLA. STAT. § 120.58(1)(b) (Harrison Supp. 1976).
87. Id.
88. Id. § 120.58(2), (3) (Harrison 1975).
89. The availability of judicial review of interlocutory agency action could also be
viewed as a prior screening device. See Federal APA, 5 U.S.C. §§ 704-705 (1970); RMA
§ 15(a); Florida APA, FLA. STAT. § 120.68(1) (Harrison 1975).
90. See notes 272-73 & accompanying text infra.
91. See text accompanying notes 284-89 infra.
92. NATIONAL AssOCIATION OF ATTORNEYS GENERAL, COMMITTEE ON THE OFFICE
OF ATTORNEY GENERAL, REPORT ON THE OFFICE OF ATTORNEY GENERAL 340-42
(1971), reports that in at least 12 states, the attorney general is required by law to review administrative rules. Responses to questionnaires tabulated in the same report indicate that, in fact, the attorney general reviews some rules in 26 states, and reviews all
rules in 17 states. The report does not attempt to reconcile the 12 states where review is
required by law, with the 26-plus-17 states where review takes place in fact. The report
indicates that "only two states apparently require clearance of administrative rules by
the Governor, and then only in certain instances." Id. at 340. Further, "[oin the national
level, the rules of several federal administrative agencies are subject to Presidential
approval." Id. The attorney general exercises pervasive controls, including the screen-
THE AMERICAN UNIVERSITY LAW REVIEW
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C. Assembling Facts and Opinions
After preparations have been made, the decisionmaker conducts a
hearing to assemble the facts and opinions of the participants. Some
or all of the following elements are involved: (1) evidence limitations;
(2) investigation by decisionmaker; (3) evidence presentations; (4)
cross-examination and access to adverse evidence; (5) argument; (6)
assistance of counsel and others; and (7) conversion of a pending proceeding from one type to another.
1. Evidence limitations
The Florida APA has a single provision on evidence, applicable to
both formal and informal adjudication. 93 The Florida provision, like
the Federal APA94 and the RMA on adjudication, 9 5 requires the exclusion of irrelevant, immaterial, or unduly repetitious evidence. All
three Acts manifest a relatively permissive attitude toward the reception of evidence, but at the same time, they restrict the type of evi96
dence that can constitute the basis of a decision.
With regard to the reception of evidence, the Federal APA states
that "a]ny oral or documentary evidence may be received." 9 7 A stricting of proposed agency activities, in those jurisdictions where that official and his as-
sistants serve as staff counsel to administrative agencies. Id. at 271-308. See also note 281
& accompanying text infra.
93. FLA. STAT. § 120.58(i)(a) (Harrison Supp. 1976).
94. 5 U.S.C. § 556(d) (1970).
95. RMA § 10(1).
96. See text accompanying notes 189-207 infra.
97. 5 U.S.C. § 556(d) (1970). The decision of the agency must be supported by "reliable, probative and substantial evidence" under this section of the Federal APA. Id.
This section is supported by the requirement of "substantial evidence" in the judicial
review provision, 5 U.S.C. § 706(2)(E) (1970). An amendment to § 556(d), enacted in
1976, adds that
[tihe agency may, to the extent consistent with the interests of justice and the policy of the underlying statutes administered by the agency, consider a violation of
section 557(d) of this title (a new prohibition against ex parte communications, more
detailed than the provisions originally contained in the APA] sufficient grounds for
a decision adverse to a party who has knowingly committed such violation or knowingly caused such violation to occur.
Government in the Sunshine Act, Pub. L. No. 94-409, § 4(c), 90 Stat. 1247 (1976)
(amending 5 U.S.C. § 556(d) (1970). Enforcement of this amendment could therefore
result in a decision on the merits that would be unsupported by the evidence, and that
would result instead from the punitive application of section 557(d). This amendment
requires the ALJ or other recipient of an improper ex parte communication to place it in
the record of the proceeding, and authorizes him to require the party who is the author
of the communication to show cause why his claim or interest in the proceeding should
not be dismissed, denied, disregarded, or otherwise adversely affected on account of
such violation. Thus the improper ex parte communication would be part of the record
of the proceedings, and a decision adverse to a party because of such communication
1977]
MODELS
er approach is taken by the RMA, which provides that
when necessary to ascertain facts not reasonably susceptible of proof
under [the rules of evidence in non-jury civil litigation], evidence not
admissible thereunder may be admitted (except where precluded by
statute) if it is of a type commonly relied upon by reasonably prudent
men in the conduct of their affairs. 98
The Florida Act takes a position between the Federal APA and the
RMA. After excluding irrelevant, immaterial, or unduly repetitious
evidence, the Florida Act states:
[AIll other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether
or not such evidence would be admissible in a trial in the courts of
Florida. . . .Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but it shall not be sufficient in
itself to support a finding unless it would be admissible over objection
in civil actions. 99
The Federal APA authorizes an agency to take official notice of
facts not appearing in evidence in the record, provided that any
party, upon timely request, may have an opportunity to show the
contrary. 10 0 The RMA permits notice to be taken of "judicially cognizable facts," and of "generally recognized technical or scientific facts
within the agency's specialized knowledge," provided that the parties
have been afforded an opportunity to contest the material so noticed. 10 1 The Florida APA permits agencies to take official notice,
without any apparent limitation, as long as the parties are notified
02
and given an opportunity to examine and contest the material.'
The three Acts do not limit the type of evidence that participants
may present in rulemaking proceedings. The Federal APA, however,
10 3
limits the agency to considering "the relevant matter presented,'
would be a decision based on the record, even though it might not be supported by the
evidence. The 1976 amendment did not change the provision that requires the reviewing court to reverse an agency fact that is not supported by substantial evidence, 5
U.S.C. § 706(2)(E) (1970).
98. RMA § 10(1). The RMA requires that a reviewing court reverse an agency decision that is "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record." RMA § 15(g)(5).
99. FLA. STAT. § 120.58(1)(a) (Harrison Supp. 1976). The Florida APA requires the
court to set aside an agency finding of fact that is "not supported by competent substantial evidence in the record." Id. § 120.68(10) (Harrison 1975).
100. 5 U.S.C. § 556(e) (1970).
101. RMA § 10(4).
102. FLA. STAT. § 120.61 (Harrison 1975).
103. 5 U.S.C. § 553(c) (Supp. V 1975).
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and the Florida APA requires the agency to give affected persons an
opportunity to present "evidence . . .on all issues under consideration appropriate to inform it of their contentions." 10 4 The Florida
APA also states that in rulemaking proceedings, the agency may recognize any material which may be judicially noticed. The agency may
also provide that materials so recognized be incorporated into the
record of the proceeding, subject to the right of all parties to receive
a list of such materials and to have a reasonable opportunity to examine them and offer written comments or rebuttal. 0 5
2. Investigation by decisionmaker
10 7
0
The adjudicative provisions of the Federal APA,1 6 the RMA,
and the Florida APA i0 8 give the parties an opportunity to present
their cases to the decisionmaker. These statutes, however, do not
prohibit the decisionmaker from participating actively in eliciting evidence. Indeed, the spirit of the statutes seems to call for active participation by the decisionmaker if one or both of the parties is unrepresented by counsel, or if other circumstances indicate that the
parties cannot be expected to make effective presentations of their
own cases.
Significant adaptations of the APA are found, for example, in adjudicative hearings conducted by the Social Security Administration, 109 in which the ALJ plays such an active role that the proceedings
have b~en characterized as "inquisitorial" rather than adversarial. 110
104.
105.
FLA. STAT. § 120.54(3) (Harrison Supp. 1976).
Id. § 120.54(6).
106. 5 U.S.C. § 554(c) (1970).
107. RMA § 9(a).
108. FLA. STAT. § 120.57(1)(b)2 (formal hearing), (2)(a)(2) (Harrison Supp. 1976) (informal hearing).
109. 42 U.S.C. § 405 (1970 & Supp. V 1975).
110. SCHWARTZ, supra note 1, at 252. Professor Schwartz states that:
With all its faults, however, the inquisitorial type of procedure developed in SSA
hearings may represent a practical method of dealing with many of the problems
met with in agencies dispensing mass justice. The great need is to deal efficiently
and fairly with a horde of cases, rather than to preserve all the accoutrements of the
courtroom. Particularly in a case where a claimant is not represented by counsel,
the active development of the case on both sides by an independent judge may
actually be fairer to the claimant than the more traditional adversary procedure. In
addition, the elimination of the adversary element makes for greater efficiency;
nothing delays the administrative process more than the "trial by battle" permitted
in the more formal type of hearing.
Id. at 254.
1977]
MODELS
Recent federal cases have sustained the constitutional validity of the
"inquisitorial" processes of the Social Security Administration, 1 1 ' and
these processes must therefore be regarded as part of the gloss of the
"fair hearing" requirement announced in Goldberg v. Kelly.
The Social Security Administration does not have its own counsel
opposing the claimant at claims hearings. 112 The claimant is questioned, either by his counsel (if he is accompanined by counsel), or by
the ALJ. Further, the ALJ has the duty of examining the agency's file
before the hearing to extract those portions that he believes will be
relevant at the hearing. At the same time, he must preserve the confidentiality of the remainder of the file." l 3 No matter how active the
ALJ may be in adjudicative hearings, the evidence that he elicits
must be made part of the record, and the parties must have an op114
portunity to rebut or supplement it.
Notice-and-comment rulemaking under the Federal APA is structured upon two assumptions: that the agency has conducted preliminary investigations before publishing notice of proposed rulemaking
and that the agency will remain at liberty to conduct its own investigations, in addition to receiving inputs from the public. The "hybrid
rulemaking"" 5 decisions of the District of Columbia Circuit Court of
Appeals indicate the importance of the materials considered in connection with notice-and-comment rulemaking, since the court may
examine this record in order to determine whether the rule was "ar-
111.
E.g., Mathews v. Eldridge, 424 U.S. 319 (1976); Richardson v. Perales, 402 U.S.
389 (1971). See generally Mashaw, supra note 2.
112. SCHWARTZ, supra note 1, at 252.
113. An ALJ gave the following explanation:
In 99% of the cases, people come in without any representation. It is my job to
represent those people when they come in. It seems strange, but we use the ter-
minology that we "wear three hats." We put on the first hat, and we represent the
claimant, we present all the testimony on his behalf, and drag it out of him by
questioning. We then represent the government, the Social Security Administration,
and search the law-tha's the second hat. We search our minds, and we search
whatever other records are available, we search the evidence, and we present the
best case that the government has. Then we turn around and put on the third hat,
and we decide which evidence is most favorable, and in whose behalf.
Rausch v. Gardner, 267 F. Supp. 4, 6 (E.D. Wis. 1967).
114. See notes 180-83 & accompanying text infra.
115. "Agencies are always free to adopt 'hybrid procedures' beyond the minima
prescribed by 5 U.S.C. § 553, and commonly do." Natural Res. Def. Council v. United
States Nuclear Reg. Comm'n, 547 F.2d 633, 654 n.58 (D.C. Cir. 1976), cert. granted
sub nom. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 430 U.S.
944 (1977). See generally Williams, "Hybrid Rulemaking" under the Administrative
ProcedureAct: A Legal and Empirical Analysis, 42 U. Ci. L. REv. 401 (1975).
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:872
bitrary and capricious.- 11 6 A comparable result is suggested by the
Florida APA.11 7 The RMA does not include a provision to this effect.
3.
Evidence presentations
The Federal APA, 1 18 the RMA, 119 and the Florida APA120 give parties the opportunity to present evidence. The Acts deal in varying
ways with the question whether the evidence in adjudicative proceedings should be submitted in oral or in written form. The Federal APA
permits a party to "present his case or defense by oral or documentary evidence,"' 12 1 except that in "determining claims for money or
benefits or applications for initial licenses an agency may, when a
party will not be prejudiced thereby, adopt procedures for the sub12 2
mission of all or part of the evidence in written form."'
Under the RMA, any part of the evidence may be received in written form, apparently at the option of the agency, "when a hearing
will be expedited and the interests of the parties will not be prejudiced substantially.' 1 2 3 The Florida APA appears to give an option
l2 4
to the parties to present written or oral evidence, in both formal
116. See Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976); Amoco Oil Co. v. EPA,
501 F.2d 722 (D.C. Cir. 1974); Mobil Oil Corp. v. FPC, 483 F.2d 1238 (D.C. Cir. 1973).
See also Verkuil, Informal Rulemaking, supra note 1; Wright, The Courts and the
Rulemaking Process: The Limits of Judicial Review, 59 CORNELL L. REv. 375 (1974).
117. [T~he agency . . . may make such changes in the rules as are supported by
the record of public hearings held on the rule, technical changes which do not
affect the substance of the rule, or changes in response to a proposed objection by
the committee. Changes supported by the record of a hearing or made in response
to a proposed committee objection may include withdrawal of the rule in whole or
in part.. "
FLA. STAT. § 120.54(12) (Harrison Supp. 1076) (emphasis added). See note 183 infra.
118. 5 U.S.C. § 556(d) (1970). Goldberg v. Kelly guaranteed that the claimant have
the opportunity to present oral evidence. 397 U.S. 254, 268-69. See Friendly, supra note
2, at 1281.
119. RMA § 9(c).
120. FLA. STAT. §§ 120.57(1)(a)4 (formal hearing), (2)(a)2 (Harrison Supp, 1976) (informal hearing).
121. 5 U.S.C. § 556(d) (1970).
122. Id.
123. RMA § 10(1).
124. The Florida APA is not completely clear on this point. FLA. STAT. § 120.58(1)(a) (Harrison Supp. 1976), applicable to both formal and informal adjudications,
states: "Any part of the evidence may be received in written form." Section 120.57(1)(b)4, applicable only to formal adjudications, gives all parties an opportunity "to
present evidence." See. 120.57(2)(a)2, applicable only to informal adjudication, requires
the agency to give affected persons or parties an opportunity to present "written or oral
evidence ... or a written statement challenging the grounds upon which the agency has
chosen to justify its action or inaction." Thus the combined effect of the first two provisions appears to the the same as the effect of the third provision on its own, namely, to
give an option to the party to present evidence in either oral or written form.
19771
MODELS
and informal adjudication. 125
In rulemaking, as in adjudication, all three statutes permit participants to submit evidence, but the statutes vary with regard to the
question of written or oral presentations. The Federal APA calls for
1 26
written data, "with or without opportunity for oral presentation.'"
The RMA guarantees an oral hearing "if requested by 25 persons, by
a governmental subdivision or agency, or by an association having not
less than 25 members."' 12 7 The agency must consider all written and
28
oral submissions.'
The Florida APA gives affected persons the opportunity to present
evidence at the public hearing on proposed rules, "appropriate to
inform [the agency] of their contentions.' 1 29 The Model Rules of Procedure adopted under the Florida APA clarify that oral presentations
will be received at the public hearing on proposed rulemaking,
"within the reasonable conditions and limitations imposed by the
agency to avoid duplication, irrelevant comments, unnecessary delay
or disruption of the proceeding.' 130 Any person may submit written
statements to the agency. 13 1
4.
Cross-examinationand access to adverse evidence
All three statutes imply that, in adjudicatory proceedings, a party
must have complete access to all adverse evidence, in order to exercise his right to cross-examine. The Federal APA guarantees that a
party may "conduct such cross-examination as may be required for a
full and true disclosure of the facts."' 13 2 As interpreted by the Su125. Id. § 120.57(2)(a)2. See note 124 supra. The Federal APA, 5 U.S.C. § 556(d)
(1970), and the Florida APA, FLA. STAT. § 120.57(1)(b)4, (2)(a)2 (Harrison Supp. 1976),
expressly or impliedly guarantee the right to present rebuttal evidence. The RMA does
not address this matter.
126. 5 U.S.C. § 553(c) (Supp. V 1975).
127. RMA § 3(a)(2).
128. Id.
129. FLA. STAT. § 120.54(3) (Harrison Supp. 1976).
130.
FLA. ADMIN. CODE § 28-3.31(1) (Supp. 56 1975).
131. Id.
132. 5 U.S.C. § 556(d) (1970). Goldberg v. Kelly held that a party must have the right
to cross-examine and confront adverse witnesses; the implication is that the party must
have access to all adverse evidence. 397 U.S. 254, 269-70. See Friendly, supra note 2,
at 1283-86; Verkuil, Informal Adjudication, supra note 1, at 760. Professor Verkuil lists
"disclosure to the claimant of opposing evidence" as one of the ten ingredients mandated
in Goldberg v. Kelly. Verkuil describes this ingredient as a "discovery device." He
reports that Professor Clark Byse took a different view, interpreting this ingredient to be
"of no independent value (i.e. as a discovery device) but rather to be the inevitable
consequence of providing [oral presentation of arguments, oral presentation of evidence,
and cross-examination of adverse witnesses]." A possible reconciliation of the views of
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:872
preme Court, this does not guarantee that adverse evidence will be
presented through oral testimony-only that if adverse evidence is
presented through oral testimony, the witness may be cross-examined. 13 3 The language of the RMA is similar to the Federal APA on
this point.' 3 4 The Florida APA on formal and informal adjudication
permits a party to conduct cross-examination when testimony is taken
35
or when documents are made a part of the record.1
The rulemaking provisions of the Federal APA and the RMA do
not mention cross-examination.' 36 By contrast, the Florida APA provides the same right to cross-examine in rulemaking proceedings as in
37
adjudication.'
5. Argument
Argument is available in all the adjudicative and rulemaking proceedings featured in this analysis. Differences arise with regard to
the details. The Federal APA permits parties to submit "supporting
reasons" together with proposed findings or exceptions to recommended, initial, or tentative decisions.' 38 The Act does not expressly
guarantee argument at earlier stages of the adjudicative process, but
argument appears to be available by implication. The RMA guarantees the right to present argument on all issues involved.1' 9 The
same language appears in the Florida APA, with regard to formal
40
adjudication only.'
In informal adjudication under the Florida Act, the parties have
these two scholars is that the "discovery" implicit in Goldberg V. Kelly becomes available only at the time of the evidentiary hearing and not necessarily before.
133. Richardson v. Perales, 402 U.S. 389 (1971).
134. RMA § 10(3).
135. FLA. STAT. § 120.58(1)(e) (Harrison 1975).
136. It has been suggested by some courts that elucidation of certain types of issues
in rulemaking proceedings might require particular procedures including cross-examination. See, e.g., International Harvester v. Ruckelshaus, 478 F.2d 615, 631 (D.C. Cir.
1973) ("soft and sensitive subjects and witnesses").
137. FLA. STAT. § 120.58(1)(e) (Harrison 1975) (conferring the right to cross-examine
in an "agency proceeding for a rule or order").
138. 5 U.S.C. § 557(c) (1970). Goldberg v. Kelly guaranteed the right to oral argument. 397 U.S. 254, 268-69. Friendly has suggested, however, that "whether or not an
oral hearing is required should depend on the susceptibility of the particular subject
matter to written presentation, on the ability of the complainant to understand the case
against him and to present his arguments effectively in written form, and on the administrative costs." Friendly, supra note 2, at 1281. Subsequent federal case law indicates that the right to oral argument will be determined on a case by case basis. See
note 126 supra.
139. RMA § 9(c).
140.
FLA. STAT. § 120.57(1)(b)4 (Harrison Supp. 1976).
19771
MODELS
the right to present "written or oral evidence . . .. or a written
statement challenging the grounds upon which the agency has chosen
to justify its action or inaction.' 14 1 In rulemaking, the three statutes
4 2 or argument'4
permit participants to submit views or arguments
in the same form and under the same conditions as evidence may be
submitted under the respective statutes.
6.
Assistance of counsel and others
According to the Federal APA, a party in an agency proceeding is
entitled to be represented by counsel or to appear in person with
or without counsel or other duly qualified representative. A person
compelled to appear in person before an agency is entitled to be
accompanied, represented, and advised by counsel or, if permitted
by the agency, by any other qualified representative.' 4 4 This provision
applies to both adjudication and rulemaking. The RMA makes no reference to the assistance of counsel or others, except that the agency
is required, upon request, to deliver or mail a copy of the decision or
order to each party and to his attorney of record. 1 5 The Florida APA
requires the agency to deliver or mail a copy of the final order to
each party or to his attorney of record. 14 6 In addition, the Florida
APA provides that parties to a formal adjudication shall have the opportunity to be represented by counsel. 147 In informal adjudication,
the Florida Act permits evidence or statements to be submitted by
affected persons or parties, or by their counsel. 148 The Florida Act
makes no mention of counsel in rulemaking proceedings. A few state
149
APA's require agencies to provide interpreters when necessary.
7.
Conversion of pending proceedingfrom one type to another
The Florida APA provides two situations in which a pending proceeding is converted from one type to another. 150 First, during
141. Id. § 120.57(2)(a)2.
142. 5 U.S.C. § 553(c) (Supp. V 1975); RMA § 3(a)(2).
143.
FLA. STAT. § 120.54(3) (Harrison Supp. 1976).
144. 5 U.S.C. § 555(b) (1970). Goldberg v. Kelly guaranteed the party's right to be
represented by his own retained counsel. 397 U.S. 254, 270. See Friendly, supra note 2,
at 1287-91.
145. RMA § 12.
146. FLA. STAT. § 120.59(4) (Harrison 1975).
147. Id. § 120.57(1)(b)4 (Harrison Supp. 1976).
148. Id. § 120.57(2)(a)2.
149. ARiz. REV. STAT. ANN. § 41-1006 (West 1974); ARK. STAT. ANN. § 5-715 (1976);
IND. CODE ANN.
§ 4-22-1-22.5
(Bums 1974); ORE. REV. STAT. § 183A18 (1975).
150. Neither the Federal APA nor the RMA provides for the conversion of a pending
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rulemaking proceedings, a person may timely assert that his substantial interests will be affected in the proceeding. He must affirmatively
demonstrate that the notice-and-comment procedures of rulemaking
do not provide adequate opportunity to protect those interests.' 5 ' If
the agency sustains his contentions, it shall suspend the rulemaking
proceeding and convene a separate adjudicatory proceeding under
the formal or informal provisions of the Florida APA, depending on
whether or not a disputed issue of material fact is involved. Similarly
situated persons may be requested to join and participate in the adjudicatory proceeding. After its conclusion, the agency shall resume
the rulemaking proceeding. Second, an adjudicatory proceeding that
starts under the informal provisions, because it does not involve a
disputed issue of material fact, is subject to conversion into a formal
52
adjudication if such an issue emerges during the proceedings.1
D.
Decision
The decisionmaking stage of the agency process can be analyzed in
terms of the following elements: (1) decisionmaker; (2) impartiality of
decisionmaker; (3) submittals by parties; (4) record; (5) form, findings,
and reasons; (6) filing and effective date; and (7) reconsideration.
1. Decisionmaker
The Federal APA, the RMA, and the Florida APA on formal adjudication all permit the agency to choose either to conduct its own
hearing and render the decision, or to have the hearing conducted
by a person other than the agency, such as a hearing examiner or
an ALJ, subject to final decisional authority of the agency. 15 3 In the
proceeding from one type to another. Goldberg v. Kelly held, in effect, that if the in-
terests at stake are within the protection of the fourteenth amendment, and if the statutory procedures do not satisfy all the requirements of due process, the proceedings must
be converted to the extent needed under the circumstances to comply with the amendment.
151. FLA. STAT. § 120.54(16) (Harrison Supp. 1976).
152. The Florida APA does not establish a mechanism for converting an informal
into a formal adjudicative hearing. This omission in the Act is criticized in Levinson,
The FloridaAdministrative ProcedureAct: 1974 Revision and 1975 Amendments, 29 U.
MIAMI L. REv. 617, 666-68 (1975) [hereinafter cited as Levinson, The FloridaAPA].
153. 5 U.S.C. § 556(b) (1970); RMA § 11 (by implication); FLA. STAT. § 120.57(1)(a)
(Harrison Supp. 1976). As regards informal adjudication, the Florida APA states merely
that affected persons or parties may make their presentations to "the agency or hearing
officer." These presentations may take the form of either oral or written evidence in
opposition to the agency's action, or a written statement challenging the grounds upon
which the agency has chosen to justify its action or inaction. Id. § 120.57(2)(a)2 (Harrison Supp. 177).
19771
MODELS
latter situation, the parties are generally entitled to receive a draft
decision, and submit comments on the draft to the agency before
the agency finalizes its position. The draft decision takes various
forms under the respective statutes, but its basic purpose is to give
the parties an opportunity to submit comments for the agency's
consideration.
154
The Federal APA creates the office of ALJ and guarantees its
independence. 155 The Act authorizes the agency to select any one of
a number of available decisionmaking structures. 15 6 First, an ALJ
may conduct the hearing and make an "initial decision" that is bind157
ing upon the parties unless reviewed and overruled by the agency.
Second, the agency itself may conduct the hearing and make the
decision. 158 Third, an ALJ may conduct the hearing and make a recommended decision, which is certified to the agency. 159 The parties
are not bound by the recommended decision, but by the subsequent
action of the agency itself. Fourth, in initial license determinations
only, a "responsible employee" of the agency may make a recommended decision, or the agency may issue a "tentative decision"
without first having received a recommended decision.' 60 Alternatively, the agency may proceed without either a recommended decision or a tentative decision "in a case in which the agency finds on
the record that due and timely execution of its functions imperatively
161
and unavoidably so requires."'
The RMA recognizes that a contested case hearing may be conducted either by the agency or, by implication, a hearing examiner.
The RMA, however, does not define the status of this office. If the
hearing examiner presides, no decision adverse to a party other than
the agency shall be made until the examiner, or someone who has
read the record, prepares a "proposal for decision."' 162 The proposal
for decision, however, is not required under the RMA if a majority of
the agency officials who are to render the decision have heard the
case or read the record. 163 The RMA does not authorize a hearing
154.
155.
See notes 173-79 & accompanying text infra.
5 U.S.C. §§ 3015, 7521, 5362, 3344, 1305 (1970).
156. 5 U.S.C. § 557(b) (1970).
157. Id.
158.
159.
160.
161.
Id.
Id.
Id. § 557(b)(1).
Id. § 557(b)(2).
162. RMA § 11. The "proposal for decision" under the RMA is comparable to the
"recommended decision" under the Federal APA, that is, certified to the agency and
served on the parties for comment, but without binding effect.
163. See COOPER, supra note 10, at 445, 460, explaining the underlying policy, to the
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examiner to make an initial decision comparable to that available
under the Federal APA.
The Florida APA establishes a statewide organization of hearing examiners, who generally preside over agency hearings.1 64 If a hearing
examiner presides at a formal adjudicatory hearing, he renders a "recommended order" comparable to the "proposal for decision" under
the RMA. 165 If a hearing examiner does not preside, and if a majority
of those who are to render the final order have not heard the case or
read the record, the Florida Act, like the RMA, requires that a decision adverse to a party other than the agency itself shall not be made
until a "proposed order" has been served on the parties. 166 The Act
contains an emergency provision, which appears to permit agencies to
16
accelerate or bypass the normal processes. 7
The three statutes on rulemaking indicate that the agency itself is
the decisionmaker in rulemaking proceedings. Presumably, a person
other than the agency head may preside over some or all of the public hearings, but the Acts do not provide that the presiding officer
issue any initial, recommended, or proposed orders.
2.
Impartialityof decisionmaker
The Federal APA, 1 68 the RMA, 169 and the Florida APA170 all prohibit improper ex parte communications by the decisionmaker. In
addition, the Federal APA expresses the requirement that the ALJ
act impartially. 17 1 The Florida Act declares that any individual, serveffect that if a majority of the agency members have heard the case or read the record,
they are presumably capable of reaching a decision, without the benefit of the parties'
comments on a proposal for decision.
164. FLA. STAT. § 120.65 (Harrison 1975 & Supp. 1976) (creating the Division of
Administrative Hearing to employ hearing officers); § 120.57(1)(a) (Harrison Supp. 1976)
(requiring a hearing officer assigned by the Division to conduct all formal adjudicative
hearings subject to minor exceptions set forth in the section).
165. Id. § 120.57(1)(b)8, 9 (Harrison Supp. 1976).
166. Id. § 120,58(1)(d) (Harrison 1975). The proposed order must be prepared by the
individual who conducted the hearing, if available, or by one who has read the record.
The "proposed order" is in some respects similar to the "recommended order," and the
Florida Act states that no proposed order is needed in hearings in which a recommended order is issued. "'Proposed order' means the advance text, under § 120.58(1)(d), of the order which a collegial agency head plans to enter as its final order.
When a hearing officer assigned by the division conducts a hearing, the recommended
order is the proposed order." Id. § 120.52(11).
167. Id. § 120.59(3) (Harrison 1975).
168. 5 U.S.C. § 554(d) (1970); 5 U.S.C.A. § 557(d)(1) (West Supp. 1977).
169. RMA § 13. This section precludes litigious facts which have not been placed in
the record from reaching the decisionmakers without being placed on the record. It also
precludes ex parte discussions of the law with the party or his representative.
170. FLA. STAT. § 120.66 (Harrison 1975 & Supp. 1976).
171. 5 U.S.C. § 556(b) (1970). Goldberg v. Kelly required the decisionmaker to be
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MODELS
ing alone or with others as agency head, shall be disqualified for
bias, prejudice, interest, or other causes for which a judge may be
72
recused.'
3.
Submittals by parties
The Federal APA entitles parties to a reasonable opportunity to
make submittals prior to a recommended, initial, or tenative decision,
or before the agency makes a decision upon review of the decision of
subordinates. 1 73 These submittals include: proposed findings and conclusions; or exceptions to either tentative agency decisions or to the
decisions or recommended decisions of subordinates; and supporting reasons for the proposed findings and conclusions or for the
exceptions. 174
The RMA permits agencies to authorize submission of proposed
findings of fact. 175 If such submissions are made, the agency's decision includes a ruling on each proposed finding. 17 6 In addition, the
RMA affords parties who have been served with a proposal for decision an opportunity to file exceptions and to present briefs and oral
argument to the officials who are to render the decision.177
Under the Florida APA on formal adjudication, parties have the
opportunity to submit proposed findings of facts and orders to the
hearing officer and to file exceptions to any order or to a hearing
officer's recommended order. 178 If a proposed order is served on the
parties, they have an opportunity to file exceptions and present briefs
79
and oral arguments to those who are to render the decision.'
4.
Record
The Federal APA declares that, in adjudication, "the transcript of
testimony and exhibits, together with all papers and requests filed in
the proceeding, constitutes the exclusive record for decision."' 8 0 This
impartial. "Prior involvement in some aspects of the case will not necessarily bar a
welfare worker from activity as the decisionmaker. He should not, however, have par-
ticipated in making the determination under review." 297 U.S. 254, 271. See also
Friendly, supra note 2, at 1279-80.
172. FLA. STAT. § 120.71(1) (Harrison 1975).
173. 5 U.S.C. § 557(c) (1970).
174. Id.
175. RMA §§ 11, 12.
176. Id. § 11.
177. Id.
178.
FLA. STAT. § 120.57(1)(b)4 (Harrison Supp. 1976).
179. Id. The Florida APA does not provide for submittals for informal adjudication,
nor do any of the acts provide for submittals for rulemaking beyond the general opportunity for parties to present their evidence and arguments.
180. 5 U.S.C. § 556(e) (1970). See also note 97 supra. One of the essential ingre-
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record is supplemented by submittals made by the parties; by the
ruling on each finding, conclusion, or exception submitted; and by all
decisions, including initial, recommended, and tentative decisions. A
reviewing court shall review the whole record or those parts of it
cited by a party. 18 1 The RMA 182 and Florida APA 183 for formal as
well as informal adjudication have similar provisions although with
more detailed language.
For rulemaking, the Federal APA 184 and the RMA 185 require the
agency to consider all relevant matter presented, but neither Act
states that these materials are the exclusive basis for decision. The
Acts imply that the agency can consider sources outside of as well as
within the record.' 86 The Florida Act imposes somewhat greater control over agency sources which are outside the material presented by
the parties. 187 If the agency recognizes any material which may be
dients of a "fair hearing" in Goldberg v. Kelly is a decision based "solely on the legal
rules and evidence adduced at the hearing." 397 U.S. 254, 271. See also Friendly, supra
note 2, at 1282-83. According to one commentator, "[I]f there is one principle that is
fundamental in administrative law, it is that of exclusiveness of the record. In any proceeding that is judicial in nature, whether in a court or an agency, the process of decision must be governed by that principle." SCHWARTZ, supra note 1, at 357.
181. 5 U.S.C. § 706 (1970).
182. RMA §§ 9(e), (g), 15(f). Subsection 9(e) defines the record of a contested case
as:
(1) all pleadings, motions, intermediate rulings;
(2) evidence received or considered;
(3) a statement of matters officially noted;
(4) questions and offers of proof, objections, and rulings thereon;
(5) proposed findings and exceptions;
(6) any decision, opinion, or report by the officers presiding at the hearing;
(7) all staff memoranda or data submitted to the hearing officer or members of the
agency in connection with their consideration of the case.
183. FLA. STAT. § 120.57(1)(b)6, (2)(b) (Harrison Supp. 1976) defines the contents of
the record in formal and informal adjudication respectively. Section 120.68(5) (Harrison
1975), states that the record for judicial review of agency adjudication must consist of
the record under whichever of the above provisions is applicable, together with the
agency's written document expressing the order, and the statement of reasons therefor,
if issued. Section 120.68(10) (Harrison 1975) requires the reviewing court to set aside
agency findings of fact not supported by competent substantial evidence in the record.
184. 5 U.S.C. § 553(c) (Supp. V 1975).
185. RMA § 3(a)(2).
186. The "hybrid rulemaking" decisions of the District of Columbia Circuit Court of
Appeals, however, suggest that the courts will require the rule to be reasonably supported by the record. See note 115 supra.
187. Judicial review of rules must be confined to the record, which consists of the
agency's written document expressing its action, the statement of reasons therefor, if
issued, and the materials considered by the agency. FLA. STAT. § 120.68(b) (Harrison
1975). Further complications are considered in England and Levinson, Administrative
Law, 31 U. MIAMI L. REV. 749, 769 n.108 (1977).
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judicially noticed it must incorporate that material into the record of
18 8
the proceeding.
5. Form, findings, reasons
All the statutes featured in this study require that an agency's final
action include, in one format or another, the basis underlying its action. In adjudicatory proceedings, the Federal APA requires the decision to be part of the record. 1 89 The decision must include findings
and conclusions on all the material issues of fact, law, or discretion
presented on the record. 190 The agency also must give a brief explanation of the grounds for a denial, in whole or in part, of any written
application, petition, or other request made by an interested person
in connection with any agency proceeding. 19 1
The RMA requires a final decision or order adverse to a party in a
contested case to be in writing or stated in the record. 19 2 The latter
option would be satisfied by an oral ruling made by the presiding
officer and transcribed or made available for transcription as part of
the record. 19 3 The final decision must include findings of fact and
conclusions of law, separately stated. 194 If the findings of fact are set
forth in statutory language, they must be accompanied by "a concise and explicit statement of the underlying facts supporting the
findings."'19 5 If, in accordance with agency rules, a party submitted
proposed findings of fact, the decision must include a ruling upon
each proposed finding. 19 6 If, pending proceedings for revocation or
other action, the agency orders summary suspension of a license because the public health, safety, or welfare imperatively requires emergency action, the agency must incorporate a finding of the emergency
197
in its order.
The provisions on final orders in the Florida APA closely resemble
the RMA. 198 In addition, the Florida Act requires the final order to
188. Id. § 120.54(6) (Harrison Supp. 1976).
189. 5 U.S.C. § 557(c) (1970). Goldberg o. Kelly required the agency's decision to
include a statement of the reasons for the determination, and an indication of the evidence it relied upon. 397 U.S. 254, 271. See also Friendly, supra note 2, at 1292.
190. 5 U.S.C. § 557(c)(3)(A) (1970).
191. Id. § 555(e). "Except in affirming a prior denial or when the denial is selfexplanatory .... " Id.
192. RMA § 12.
193. Id. § 9(f).
194. Id. § 12.
195. Id.
196. Id.
197. Id. § 14(c).
198. FLA. STAT. § 120.59 (Harrison 1975).
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include a brief statement of the grounds for denying any written application or request filed by a party in connection with the proceeding. 1 99 Further, each agency, upon issuing or denying a license,
must state with particularity the grounds or basis for the issuance
or denial of the license, except where the issuance is a ministerial
act.2 0 0 The Flordia APA provisions on informal adjudication contain
an added requirement that the agency provide a written explanation
within seven days if the agency overrules the party's objections to the
20 1
agency's action or to its refusal to act.
In rulemaking proceedings, the Federal APA requires the rule, as
adopted, to incorporate a concise general statement of its basis and
purpose.2 0 2 Further, if the agency dispenses with the notice-andcomment process, on the grounds that such process would be "impracticable, unnecessary, or contrary to the public interest," the rule
must incorporate the agency's finding to this effect, together with a
20 3
brief statement of its reasons.
Under the RMA, if an interested person makes a request either
before the adoption of a rule or within thirty days after its adoption,
the agency must issue a concise statement of the principal reasons for
and against its adoption, and incorporate therein its own reasons for
overruling the considerations urged against its adoption. 20 4 If the
agency adopts an emergency rule which is effective immediately upon
filing because of "imminent peril to the public health, safety, or welfare," the agency's finding and a brief statement of the reasons there20 5
for must be filed with the rule.
The Florida APA imposes more elaborate requirements regarding
the content of rules. Each rule must be accompanied by "a reference
to the specific rulemaking authority pursuant to which the rule was
adopted, and to the section or subsection of law being implemented,
interpreted, or made specific." 206- The agency must also file with the
199. Id. § 120.59(2).
200. Id. § 120.60(2) (Harrison Supp. 1976). "'License'
means a franchise, permit,
certification, registration, charter, or similar form of authorization required by law, but it
does not include a license required primarily for revenue purposes when issuance of
the license is merely a ministerial act." Id. § 120.52(6) (Harrison 1975).
201. Id. § 120.57(2)(a)3 (Harrison Supp. 1976).
202. 5 U.S.C. § 553(c) (Supp. V 1975).
203. 5 U.S.C. § 553(b)(3)(B) (1970).
204. RMA § 3(a)(2).
205. Id. § 4(b)(2).
206. FLA. STAT. § 120.54(7) (Harrison Supp. 1976). In language similar to the Florida consitutional requirments regulating the format of statutes, FLA, CONST. art. III,
§ 6 (1968), the APA provides that:
Each rule adopted shall contain only one subject and shall be preceded by a
concise statement of the purpose of the rule and reference to the rules repealed or
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Department of State the rule it proposes to adopt, together with "a
summary of the rule, a summary of any hearings held on the rule,
and a detailed written statement of the facts and circumstances jus20 7
tifying the rule."
6.
Filing, effective date
The Federal APA requires the agency to conclude a matter presented to it "[w]ith due regard for the convenience and necessity of
20 8
the parties or their representatives, and within a reasonable time."
Further, "prompt notice" must be given of "the denial, in whole or
in part, of a written application, petition, or other request of an in20 9
terested person made in connection with any agency proceeding.When a licensee has made timely and sufficient application either for
a renewal of a license or for a new license for a continuing activity in
accordance with agency rules, the old license does not expire until
the application has been finally determined by the agency.2 1 0 In any
proceeding, the agency may postpone the effective date of its action
21
pending judicial review, upon finding that "justice so requires." '
The RMA requires that "[p]arties shall be notified either personally
or by mail of any decision or order. Upon request, a copy of the
decision or order shall be delivered or mailed forthwith to each party
and to his attorney of record." 21 2 The RMA's protection against
license expiration is similar to that in the Federal APA, except that
the RMA extends the protection until "the last day for seeking review
of the agency order or a later date fixed by order of the reviewing
court," in the event that the agency denies a license application or
imposes limitations upon a new license.2 1 3 If, based upon its finding of an emergency, the agency orders summary suspension of a
license, the agency must "promptly" institute proceedings for revocation or other action. 2 14 In any contested case proceeding, the agency
amended, which statement need not be printed in the Florida Administrative Code.
No rule shall be amended by reference only. Amendments shall set out the
amended rule in full in the same manner as required by the constitution for laws.
FLA. STAT. § 120.54(8) (Harrison Supp. 1976).
207. FLA. STAT. § 120.54(11)(b) (Harrison Supp. 1976).
208. 5 U.S.C. § 555(b) (1970). Goldberg v. Kelly did not address the question of
filing or effective date. Minimum procedural requirements were imposed partly in the
interest of speedy resolution. 397 U.S. 254, 267.
209. 5 U.S.C. § 555(e) (1970).
210. 5 U.S.C. § 558(c) (1970).
211. Id. § 705.
212. RMA § 12.
213. id. § 14(b).
214. Id. § 14(c).
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may grant a stay of enforcement of its decision "upon appropriate
terms."215
The Florida APA on formal and informal adjudication requires the
2 16
parties to be notified, either personally or by mail, of final orders.
The final order must be rendered within ninety days:2 17 (a) after the
conclusion of the hearing if the agency conducts the hearing; 218 or (b)
after a recommended order is submitted to the agency and mailed to
all parties, if a hearing officer conducts the hearing;219 or (c) after the
agency has received the written and oral material it has authorized to
be submitted, if there has been no hearing. 220 The ninety day period
may be waived or extended with the consent of all parties. The
Florida Act authorizes the agency to grant a stay "upon appropriate
terms," and the order granting the stay "shall specify the conditions
22 1
upon which the stay ... is granted."
The Florida provisions on nonexpiration and summary suspension
of licenses 2 22 are similar to those of the RMA. Regarding license applications, the Florida Act requires the agency to notify an applicant
if the activity for which he seeks a license is exempt from the licensing requirement. 223 In such cases the agency must return any tendered application fee within thirty days after receipt of the original
application, or within ten days after receipt of the timely requested
additional information, correction of errors, or omissions. 22 4 In addition, the Florida provisions on informal adjudication require the agency to furnish a written explanation within seven days if the agency
overrules a party's objections to the agency's action or refusal to
22 5
act.
The rulemaking provision of the Federal APA states that the required publication or service of a proposed rule must generally be
made not less than thirty days before its effective date. 226 The RMA
215.
Id. § 15(e).
216. FLA. STAT. § 120.59(4) (Harrison 1975). A copy must be delivered or mailed to
each party or his attorney of record (not and his attorney as in the RMA § 12), and this
shall be done unless waived under the Florida Act (not upon request as in § 12 of the
RMA).
217. Id. § 120.59(1).
218. Id. § 120.59(1)(a).
219. Id. § 120.59(1)(b).
220. Id. § 120.59(1)(c).
221.
222.
223.
224.
225.
.226.
Id. § 120.68(3) (Harrison Supp. 1976).
Id. § 120.60(3), (5) (Harrison 1975).
Id. § 120.60(2).
Id.
Id. § 120.57(2)(a)3 (Harrison Supp. 1976).
5 U.S.C. § 553(d) (1970), except:
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MODELS
requires each agency to file copies of the proposed rule with the secretary of state, and declares that rules are generally effective twenty
days after filing. 22 7 Under the Florida APA, the agency files the rule
and supporting materials with the Department of State. The agency
must file the rule not less than twenty-one nor more than forty-five
days after notice of proposed rulemaking, or not more than ten days
after conclusion of the final public hearing if the hearing extends
beyond the forty-five days. 228 The proposed rule is "adopted" upon
being filed in this manner, and generally becomes "effective" twenty
229
days thereafter.
7.
Reconsideration
Although all of the acts in this study contemplate that the agency
may be required to reconsider a matter upon remand from a reviewing court, 2 30 none of the acts spell out a procedure for an agency to
reconsider its action by rehearing before the initiation of judicial review. 23 1 The Federal APA mentions that a pending application for
(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and published with
the rule.
Id. § 553(d)(1)-(3).
227. RMA § 4(b). The twenty day provision applies unless a later date is specified
in the rule itself or by statute, or if an earlier date is required by an emergency.
228. FLA. STAT. § 120.54(11)(b) (Harrison Supp. 1976).
229. Id. § 120.54(12). The rule will become effective on a later date if specified in
the rule, or on another date required by statute, or earlier if required by an emergency.
Id. § 120.54(9).
230. This is inherent in the notion of judicial review. The provisions on judicial
review are discussed at notes 290-312 & accompanying text infra. In addition, the
Florida APA describes the process for agency reconsideration of rulemaking if the administrative procedures committee objects to the proposed rule. See notes 284-89 &
accompanying text infra.
231. Some state APA's establish a rehearing procedure. A party has the right to rehearing under the following statutes: Amuz. REV. STAT. ANN. § 41-1010(B) (West Supp.
1977); IND. CODE ANN. § 4-22-1-15 (Burns 1974) (contingent on the finding of newly
discovered evidence); LA. REv. STAT. ANN. § 49-959 (West Supp. 1977); OKLA. STAT.
ANN. tit. 75, § 317 (West 1976); TEx. REv. Civ. STAT. ANN. art. 6252-13a, § 16(e) (Vernon
Supp. 1976).
Limited rehearing, by way of petitions for reinstatement of license or reduction of
penalty after one year, is provided by: ALASKA STAT. § 44.62.550 (1962); CAL. GOV'T
CODE § 11522 (West 1966).
Agencies are given discretion to grant rehearings by: ALASKA STAT. § 44.62.540
(1962); CAL. GOV'T CODE § 11521 (West 1966); ILL. ANN. STAT. ch. 110, § 264 (SmithHurd Supp. 1977); IOWA CODE ANN. § 17A.16 (West Supp. 1977); N.D. CENT. CODE
§ 28-32-14 (1974); OR. REV. STAT. § 183.482(6) (1975); TENN. CODE ANN. § 4-520 (Supp.
1976).
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any form of reconsideration shall not deprive an agency order of finality for purposes of judicial review. 23 2 The RMA takes a different
approach; the period for seeking judicial review starts to run from
the date the final decision is mailed or, "if a rehearing is requested,
within [thirty] days after the decision thereon." 23 3 The Florida APA
does not mention agency rehearing of adjudicatory matters.
E.
Publicity
The publicity of administrative proceedings may be considered
from three perspectives: (1) open proceedings; (2) public access; and
(3) publication.
1. Open proceedings
Neither the Federal APA, the RMA, nor the Florida APA contains
a general requirement that all administrative proceedings be open to
public observation. The Florida APA contains some brief references
to public proceedings in specific situations. First, the Act requires
the Administration Commission to hold a "public hearing" in connec234
tion with agency applications for exemption from the Florida APA.
Second, the Act uses the term "public hearing" in some of its provisions regarding notice-and-comment rulemaking. 23 5 The implication
that rulemaking proceedings must be conducted publicly is made express in the Florida Model Rules of Procedure, which require the
agency, upon request, to conduct rulemaking by "a public hearing for
presentation of oral statements. "236
232.
5 U.S.C. § 704 (1970). A final order is not necessarily the very last order in an
agency proceeding nor is it final just because the agency might label it so. An agency
order is final for the purpose of judicial review when it imposes an obligation, denies a
right, or fixes some legal relationship. Fidelity Television, Inc. v. FCC, 502 F.2d 443
(D.C. Cir. 1974). Under the APA, finality does not depend on whether or not a petition
for reconsideration has been filed with the agency. But when such a petition is filed,
judicial review may be properly deferred until the petition has been acted on. Tallman
v. Udall, 324 F.2d 411, 416 (D.C. Cir. 1963), rev'd on other grounds, 380 U.S. 1 (1965).
233. RMA § 15(b).
234. FLA. STAT. § 120.63(2)(a) (Harrison Supp. 1976). See notes 274-77 & accompanying text infra.
235. Id. § 120.54(11)(b) requires the agency to file certain materials with the Department of State not more than ten days after conclusion of the "final public hearing" if
the hearing extends more than 45 days after the agency gave public notice of proposed
rulemaking. The section of the Florida APA dealing with transition from prior law to the
1974 revision of the APA declares all prior rules void unless "adopted following a public hearing as provided by statute." Id. § 120.72(4)(a) (Harrison 1975).
236. FLA. ADMIN. CODE § 20-3.31(1) (Supp. 56 1975).
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Some, but not all, agency proceedings are affected by "sunshine"
laws. The Government in the Sunshine Act, enacted in 1976 and
codified as an amendment to the Federal APA, 23 7 provides that
"every portion of every meeting2 38 of an agency 23 9 shall be open to
public observation,"2 40 subject to a number of exceptions spelled out
in the statute. 2 4 ' One of the exceptions states that formal adjudication
under the Federal APA is not subject to the open meeting requirement.2 42 Neither the RMA nor the Florida APA includes a "sun237. Government in the Sunshine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1241
(1976) (adding 5 U.S.C. § 552b and amending 5 U.S.C. §§ 551, 556, 557 (1970)).
238. "[T~he term 'meeting' means the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such
deliberations determine or result in the joint conduct or disposition of official agency
business .... " Id., 90 Stat. 1241 (adding 5 U.S.C. § 552b(a)(2)).
239. [A~ny agency, as defined in [the Freedom of Information Act, 5 U.S.C.
§ 552a(e) (Supp. V 1975] headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency.
Id. 90 Stat. 1241 (adding 5 U.S.C. § 552b(a)(1)).
240. Id. 90 Stat. 1241 (adding 5 U.S.C. § 552b(b)).
241. The exceptions listed in the Act are, in summary: (1) matters properly classified
pursuant to criteria established by Executive Order, to be kept secret in the interests of
national defense or foreign policy; (2) internal personnel rules and practices of an
agency; (3) matters specifically exempted from disclosure by statute; (4) trade secrets
and commercial or financial information; (5) accusation of crime, or formal censure; (6)
information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory records compiled for law enforcement purposes, or information which if written would be contained in such records, but
only if one of six criteria is satisfied; (8) reports of agencies that regulate or supervise
financial institutions; (9) information which, if prematurely disclosed, would be likely to
lead to financial speculation, or significantly endanger the stability of any financial institution; or "significantly frustrate implementation of a proposed agency action;" or (10)
specifically concerning
the agency's issuance of a subpoena, or the agency's participation in a civil action or
proceeding, an action in a foreign court or international tribunal, or an arbitration,
or the initiation, conduct, or disposition by the agency of a particular case of formal
agency adjudication pursuant to the procedures in section 554 of this title or otherwise involving a determination on the record after opportunity for a hearing.
Id. 90 Stat. 1241-42 (adding 5 U.S.C. § 552b(c)(1)-(10)). Regarding the last exception, see
text accompanying note 242 infra. These exceptions to the general rule of openness are
not mandatory. Subsection (c) also provides that if the public interest requires otherwise, a meeting falling within one of the exceptions shall not be closed. Government
in the Sunshine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1241 (1946) (adding 5 U.S.C.
§ 552b(c)).
242. See note 241 supra. The open meeting requirement does not apply to formal
adjudication, but does apply to rulemaking and agency meetings for other non-adjudicatory purposes. However, the Sunshine Act provides public access to the record or
minutes of closed meetings.
THE AMERICAN UNIVERSITY LAW REVIEW
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shine" provision, but Florida and all other states have enacted "sun243
shine" laws, codified with or separately from the state APA's.
The Florida Sunshine Law declares that except as provided by the
Florida Constitution, when any board or commission of any state
agency holds meetings at which official acts are to be taken, the
sessions must be open to the public. 2 44 The Act further provides that
no resolution, rule, regulation, or formal action shall be considered
binding except as taken or made at such meeting. 245 While this section appears to apply to rulemaking, it has not been held to apply
to quasi-judicial deliberations such as those following adjudicatory
246
proceedings.
2.
Public access
The elaborate procedures in the Federal APA allow the general
public to gain access to federal agency records, including the records
of adjudication and rulemaking. 247 The Act requires each agency to
make available for public inspection and copying all final opinions,
including concurring and dissenting opinions, and a record of the
final votes of each agency member; orders made in the adjudication
of cases; policy statements and interpretations (unless published in
the Federal Register); and administrative staff manuals and staff instructions that affect a member of the public. 248 As one mechanism to
243. Forty-nine states and the District of Columbia had enacted sunshine statutes by
1976. Comment, Government in the Sunshine Act: Opening Federal Meetings, 26 ANI.
U.L. REv. 154 n.3 (1976). An open meeting law for the fiftieth state, New York, became effective January 1, 1977. N.Y. PUB. OFF. LAW (McKinney Supp. 1977). The
Tennessee sunshine law is codified at TENN. CODE ANN. §§ 8-4401-4406 (Cum. Supp.
1976). The present author has taken the view that the Tennessee statute "means that
parties, as well as members of the public, have a right to be present during all stages of
contested case proceedings, including the deliberations among members of the agency,"
although the rules prepared by the Administrative Procedures Division provide for
agency deliberations to take place in executive session. Levinson, Contested Cases
under the Tennessee Uniform Administrative Procedures Act, 6 MEM. ST. U.L. REV.
215, 234 (1976).
244. The Florida sunshine law is codified at FLA. STAT. § 286.011 (Harrison 1975).
245. Id.
246. In State Dep't of Pollution Control v. State Career Serv. Comm'n, 320 So. 2d
846, 848-49 (1st Dist. Ct. App. Fla. 1975), the court held that the Career Service Commission's deliberations following an adjudicatory hearing "in the sunshine" are "quasijudicial" and, therefore, are not subject to the sunshine law.
247. 5 U.S.C. § 552(a)(2) (Supp. V 1975). Public access was not an issue in Goldberg
v. Kelly, but the case did imply that parties have the right to have access to adverse
evidence. The case did not address the right of the public to gain access to the agency
proceedings. For a discussion of the parties' access, see note 132 supra.
248. 5 U.S.C. § 552(a)(2) (Supp. V 1975). To the extent required to prevent a clearly
unwarranted invasion of personal privacy, an agency may delete identifying details, but
1977]
MODELS
enforce the requirement of public access to these materials and to
their indexes, the Act provides that a final order, opinion, or statement of policy which affects a member of the public may be used or
cited by the agency only if "it has been indexed and either made
available or published ... ; or the party has actual and timely notice
of the terms thereof."24 9 In addition, the Act contains other enforcement measures, including suits to enjoin agencies from withholding records and to compel the production of records improperly
250
withheld.
The Government in the Sunshine Act requires each agency to
"maintain a complete transcript or electronic recording adequate to
record fully the proceedings of each meeting, or portion of a meeting," that is closed to the public in accordance with the exceptions
listed in the Act. 2 51 With regard to some categories of closed meetings, however, the agency is required to provide a transcript, a recording, or a set of minutes. 252 These minutes must fully and clearly
describe all matters discussed, and they must also provide a full and
253
accurate summary of any actions taken, and the reasons therefor.
The description must include each of the views expressed on any
item, and the record of any rollcall vote reflecting the vote of each
member on the question. All documents considered in connection
2 54
with any action shall be identified in such minutes.
The Act includes a broad provision for public access to these
records. 2 55 The agency shall retain its transcript, minutes, or elecit shall make a written explanation to justify the deletion. Each agency must also maintain, and make available for public inspection and copying, current indexes of the materials mentioned in the text. Id.
249. Id.
250. Id. § 552(a)(4)(B).
251. Government in the Sunshine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1244
(1976) (adding 5 U.S.C. § 552b(f)(1)). The exceptions listed in the Act are summarized in
note 241 supra.
252. Id.
253. Id.
254. Id.
255. The agency shall make promptly available to the public,
in a place easily accessible to the public, the transcript, electronic recording, or
minutes . . .of the discussion of any item on the agenda, or of any item of the
testimony of any witness received at the meeting, except for such item or items of
such discussion or testimony as the agency determines to contain information which
may be withheld under subsection (c). Copies of such transcript, or minutes, or a
transcription of such recording disclosing the identity of each speaker, shall be furnished to any person at the actual cost of duplication or transcription.
Id. § 552b(f)(2). Subsection 552b(c), summarized in note 241 supra, contains the exceptions to the Act. The effect of these provisions appears to be that the public will not
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tronic recording for at least two years after the meeting, or for one
year after the conclusion of any agency proceeding with respect to
which the meeting was held, whichever is later.2 5 6 The Federal APA
2 57
requires rules to be published in the FederalRegister.
The RMA requires each agency to "make available for public inspection all rules and other written statements of policy or interpretations," and "all final orders, decisions, and opinions." 2 58 No rule,
order, or decision is valid or effective against any person or party, nor
may it be invoked by the agency for any purpose, until it has been
made available for public inspection. This provision, however, is not
applicable in favor of any person or party who has actual knowledge
of the rule, order, or decision.2 59 In contrast to the federal provisions, the RMA does not require the preparation of an index of decisions, nor does it require the deletion of material to prevent invasions
of personal privacy. Separate state statutes on public records or privacy may deal with the latter point. The Florida APA is similar to the
RMA, but the Florida Act does require the preparation of an index of
all orders and rules.2 60 In addition, the Florida Act requires the
agency to make the designated materials available for "public inspec261
tion and copying, at no more than cost."
3.
Publication
According to the Federal APA, each agency must separately publish statements and descriptions of its organization, rules, and procedures in the Federal Register.2 62 If the agency fails to publish a mathave access to the record or minutes of agency meetings in connection with formal
adjudication. Access to agency files maintained on individuals is also subject to the
privacy provisions of 5 U.S.C. § 552a (Supp. V 1975). See generally Hanus & Relyea, A
Policy Assessment of the Privacy Act of 1974, 25 AM. U.L. REv. 555 (1976).
256. Government in the Sunshine Act, Pub. L. No. 94-409, § 3(a), 90 Stat. 1244 (1976)
(adding 5 U.S.C. § 552b(f)(2)).
257. See notes 262-64 & accompanying text infra.
258. RMA § 2(a).
259. Id. § 2(b).
260. FLA. STAT. § 120.53(2)(c) (Harrison 1975).
261. Id. § 120.53(3).
262. 5 U.S.C. § 552(a)(1) (1970). Publication was not an issue in Goldberg v. Kelly.
Parties, however, would appear to have no more right to insist on publication of the
decision in their case, than to insist upon having the proceedings in their case open to
public observation. Different considerations arise with regard to publication of legal and
procedural standards before such standards are applied in specific cases. See note 334
infra.
In addition to the Federal APA, the Federal Register Act, 44 U.S.C. § 1510 (1970),
provides for the periodic compilation, in the Code of Federal Regulations, of selected
items that have been published in the Federal Register. The formal actions of many
federal agencies are published in volumes resembling the reports of appellate courts.
1977]
MODELS
ter that should have been published in the Federal Register, a person
may not in any manner be "required to resort to, or be adversely
affected by" such a matter, except to the extent that the person has
actual and timely notice of the terms thereof.2 63 In addition, each
agency must publish the index of its materials at least once each
quarter, unless the agency determines that publication would be unnecessary or impracticable. In that case the agency must provide
copies of the index at a cost not to exceed the direct cost of du2 64
plication.
The RMA requires the secretary of state to compile, index, and
publish all effective rules, a supplementation or revision as often as
necessary, and a monthly bulletin setting forth the text of all new
rules. 265 The secretary of state may omit the publication of any rule
which would be
unduly cumbersome, expensive, or otherwise inexpedient, if the rule in
printed or processed form is made available on application to the adopting agency, and if the bulletin or compilation contains a notice stating
the general subject matter of the omitted rule and stating how a copy
266
thereof may be obtained.
Under the Florida APA, the Department of State must publish a
compilation, entitled "Florida Administrative Code," containing all
rules adopted by each agency.2 67 The Code must cite the specific
rulemaking authority pursuant to which each rule was adopted, and
contain complete indexes to all rules found in the Code.2 68 Supplementation must be made as often as practicable, but at least
monthly.2 69 A compilation of, and index to, all rules omitted from the
263.
5 U.S.C. § 552(a)(1) (1970); Lewis v. Weinberger, 415 F. Supp. 653 (D.N.M.
1976) (the policy of the Indian Health Service which authorized denial of contract
health care to off-reservation Indians was held to have no effect because of lack of
publication in the Federal Register, and administrative actions taken pursuant to the
unpublished policy were held void with respect to persons adversely affected by them);
Northern Cal. Power Agency v. Morton, 396 F. Supp. 1187 (D.D.C. 1975), aff'd, 539
F.2d 243 (D.C. Cir. 1976) (rate increases promulgated by the Department of Interior
were set aside because the Bureau of Reclamation failed to publish any description of
its ratemaking procedures, and informal procedures which were outlined to plaintiffs
were inadequate to constitute actual notice).
264. 5 U.S.C. § 552(a)(2)(C) (Supp. V 1975).
265. RMA § 5(a), (b).
266. Id. § 5(c).
267. FLA. STAT. § 120.55(1)(b) (Harrison Supp. 1975). General rules applicable to
only one school district, community college district, or to the Florida School for the
Deaf and Blind are not to be published in the code. Id.
268.
Id.
269. Id.
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Code pursuant to the exceptions must be published at least annually. 2 70 In addition, the Department of State must publish the
Florida Administrative Weekly, containing a summary of and an index to all rules filed during the preceding week, and numerous other matters dealing with proposed rulemaking and other agency
27 1
functions.
F. Review
Agency action may be subjected to review by (1) executive or administrative officials, (2) the legislature or its committees, or (3) the
courts.
1. Executive/administrativereview
The Florida APA establishes a procedure, whereby any "substantially affected person" may seek an administrative determination of
the validity of a proposed rule while rulemaking proceedings are
pending, or of an existing rule after it has been adopted. 2 72 The determination must be made by a hearing officer, who conducts an adjudicatory hearing. It appears that the hearing should be conducted
in accordance with the "formal" adjudicative proceedings if it involves
a disputed question of material fact, or the "informal" adjudicative
proceedings if no such question is involved. The agency whose rule
or proposed rule is being attacked will be the named respondent.
Other substantially affected persons may join the proceedings as parties or intervenors on appropriate terms, provided that their intervention will not unduly delay the proceedings. The hearing examiner
may declare a rule or a proposed rule invalid on the sole ground that
it is "an invalid exercise of delegated authority." The hearing examiner's decision is "final agency action" directly reviewable by the
courts. The failure to proceed under this provision, however, does
273
not constitute failure to exhaust administrative remedies.
The Florida Act also empowers the Administration Commission to
exempt any process or proceeding from one or more requirements of
the APA. 274 Perhaps these exemption proceedings should not be regarded as "executive or administrative review," but they are noted
under this heading because they illustrate the supervisory role of an
270. Id.
271. Id. § 120.55(1)(c) (Harrison 1975 & Supp. 1976).
272. Id. § 120.54(4)(a) (Harrison Supp. 1976) (determination of validity of a proposed
rule); 120.56 (determination of validity of an existing rule).
273. See FLA. STAT. § 120.57 (Harrison Supp. 1976).
274. Id. § 120.63 (Harrison 1975).
19771
MODELS
executive/administrative agency over the proceedings of other agencies. The Commission must hold a public hearing, after giving public
notice. 275 The Commission may grant an exemption, but only for a
period which terminates ninety days after final adjournment of the
next regular legislative session. 276 The Commission may not confer
any exemption until it establishes "alternative procedures to achieve
the agency's purpose which shall be consistent, insofar as possible,
with the intent and purpose of the act."2 77
The Florida APA confers another type of supervisory authority
upon the Administration Commission. The Commission is required to
promulgate one or more sets of model rules of procedure, which shall
be the rules of procedure of each agency, to the extent the agency
does not adopt its own specific rule of procedure on any particular
2 78
procedural subject.
With the exception of the Florida procedures noted above, none of
the statutes featured in this study establishes a system under which
other executive or administrative officials review agency actions. The
Federal APA recognizes the possibility of review by a higher level
agency, providing that the first agency's action is final, for purposes
of judicial review, "whether or not there has been presented or determined an application for . . . an appeal to superior agency
authority. "279
The RMA makes judicial review of contested cases available to "[a]
person who has exhausted all administrative remedies available within
the agency ...... 280 The Florida APA does not contain any similar
language. Despite the silence of the APA's, states have passed other
275.
276.
Id. § 120.63( 2 )(a) (Harrison Supp. 1976).
Id. § 120.63(2)(b) (Harrison 1975). Exemption from this provision can be based
on any of the following grounds: (a) when compliance with the APA would conflict with
federal law; (b) in order to permit persons in the state to receive federal tax benefits or
funds; or (c) when conformity with the APA "would be so inconvenient or impracticable as to defeat the purpose of the agency proceeding involved or the purpose of this
act and would not be in the public interest in light of the nature of the intended action
and the enabling act or other laws affecting the agency." Id.
277. Id. § 120.63(2) (Harrison Supp. 1976).
278. Id. § 120.54(10). Agencies may adopt procedural rules differing from the model
rules only with permission of the Administrative Commission, which may only be
granted in limited situations.
279. 5 U.S.C. § 704 (1970). Goldberg v. Kelly did not make an issue of administrative
review, but the Court noted that if only the minimal requirements announced in that
case were made available before termination of welfare benefits, the recipient would be
entitled to a full-scale administrative hearing after termination; alternatively, the agency
could, if it wished, provide the full-scale hearing before termination, thereby avoiding
the need for a separate hearing after termination. 397 U.S. 254, 266-67.
280. RMA § 15(a).
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statutes which establish systems in which the "most complex" proceeding of an agency is subject to review, either at a higher level
within the agency, or by another agency that has superior power. 281
2. Legislative review
Legislatures exercise ultimate control over all administrative agencies, except for those agencies that derive their powers directly from
the constitution. 2 82 Various mechanisms have been established through
28 3
which the legislative power is deployed.
281. See generally Zamir, Administrative Control of Administrative Action, 57
CALIF. L. REV. 866 (1969); Zamir, Administrative Control of Adminstrative Action: The
Exceptions, 51 N.Y.U.L. REv. 587 (1976). Some APA's make agency rules subject to the
approval of the Governor: HAW. REV. STAT. § 91-3(c) (1968); IND. CODE ANN. § 4-22-2-5
(Burns Supp. 1977) (after submission to attorney general); NEB. REV. STAT. § 84-908
(1976).
282. Whitehead v. Rogers, 223 So. 2d 330 (Fla. 1969) presents an example of an
administrative agency created by the Florida Constitution and deriving powers from the
constitution. Defendant was arrested while hunting mourning doves on a Sunday, and
was charged with the misdemeanor of discharging firearms on Sunday. His defense was
that the Game and Fresh Water Commission, an agency created by the constitution, had
promulgated a rule setting the dates for open season on hunting mourning doves and
that the Sunday in question was within the open season. Defendant prevailed. The
court held that the Commission's rule superseded inconsistent provisions of statutes.
283. W. GELLHORN & C. BYSE, ADMINISTRATIVE LAW 54-127 (6th ed. 1974). The
authors discuss delegation and other legislative controls, of which they give the following "partial list:" appropriations; standing committees; watchdog committees; investigations; intercession in pending matters; participation in the appointment process; laying
before the legislature for approval or disapproval; and the legislative veto. Id. at 58-108.
See H. LINDE & G. BUNN, LEGISLATIVE AND ADMINISTRATIVE PROCESSES 519-634
(1976); Keeffe, The Legislative Veto: Now You See It, Now You Don't, 63 A.B.A.J. 1296,
1474 (1977).
Some states, like Florida, confer advisory functions upon the legislative oversight
committee: ALASKA STAT. § 24.20.460 (1962); ARK. STAT. ANN. § 4-619 (1976); DEL.
CODE ANN. tit 29, § 6455 (Michie Supp. 1976); FLA. STAT. ANN. §§ 11.61, 120.54 (Harrison Supp. 1976); IDAHO CODE § 67-5218 (Supp. 1977); IOWA CODE ANN. §§ 17A.4(4),
17A.8(8) (West Supp. 1977); KAN. STAT. ANN. §§ 46-1202, 77-426 (Supp. 1976); KY. REV.
STAT. §§ 7.090.120, 7.310, 7.320, 13.087, 13.090 (1971 & Supp. 1977); LA. REV. STAT.
ANN. § 49.968 (West Supp. 1977); MD. ANN. CODE art. 40, § 40A (Supp. 1977); MONT.
REV. CODES ANN. § 82-4203.5 (Supp. 1977); NEB. REv. STAT. §§ 84-90, 84-908.01
(1976); OR. REv. STAT. § 171.713 (1975); VT. STAT. ANN. tit. 3, §§ 817-820 (Supp. 1977);
WASH. REv. CODE ANN. §§ 34.04.160, 44.24.010-.070 (West 1970).
Other states, however, authorize the legislature or i~s committee to suspend or annul a
rule. Suspension by legislative committee is provided by: CONN. GEN. STAT. §§ 4170-171 (1977); MICH. COMP. LAwS ANN. §§ 24.235-.252 (West Cum. Supp. 1977); MINN.
STAT. ANN. § 3.965(2) (West 1977); TENN. CODE ANN. § 4-535 (Supp. 1976); W. VA.
CODE §§ 29A-3-11 to 13 (1976); WIS. STAT. ANN. §§ 13.56-,565, 227.018 (West Supp. 1977).
Disapproval of an agency rule by either house of the legislature is provided by:
OKLA.STAT. ANN. tit. 75, § 308(d) (West 1976).
Annulment of an agency rule by concurrent resolution of both houses of the legis-
1977]
MODELS
The Florida Act creates the Administrative Procedures Committee,
consisting of three members of each house of the legislature.2 84 This
Committee must examine each proposed rule, and it also may examine any existing rule. The Committee determines (a) whether the
rule or proposed rule is within the statutory authority upon which it
is based, (b) whether the rule or proposed rule is in proper form, and
28 5
(c) whether adequate notice was given prior to adoption.
If the Committee objects to a rule or proposed rule, it shall so
certify to the agency whose rule or proposed rule has been examined.
Within thirty days of the receipt of the Committee's objection, if the
agency is headed by an individual, or within forty-five days, if the
agency is headed by a collegial body, the agency shall react to the
Committee's objection in one of the following ways: if the Committee
objects to a proposed rule, the agency shall modify the rule to meet
the Committee's objection, withdraw the rule in its entirety, or refuse to modify or withdraw the rule.2 86 If the Committee objects to
an existing rule, the agency shall notify the Committee of its intention to initiate rulemaking proceedings to amend or to repeal the
28 7
rule, or of its refusal to initiate such proceedings.
The Committee's function is only advisory. If the agency refuses to
modify or withdraw a proposed rule, or to amend or repeal an existing rule, the Committee cannot compel the agency to take such action, nor can the Committee itself declare a rule or a proposed rule
invalid. 28 8 If the agency refuses to conform to the Committee's objections, however, these objections are filed with the Department of
State, and must be published in full in the Florida Administrative
Weekly, and noted by reference in the Florida Administrative Code
28 9
as part of the history of the rule.
3. Judicialreview
The Federal APA has a single chapter on judicial review of "agency
action," defined as "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure
lature is provided by: ALASKA STAT. § 44.62.320 (1967); AIuz.
§ 41-511.05(8) (West Supp. 1977) (state parks board only).
284. FLA. STAT. § 11.60 (Harrison 1976).
285. Id. § 120.545 (Harrison Supp. 1976).
286. Id. § 120.545(2)(a).
287. Id. § 120.545(2)(b).
288. Id. § 120.545(2)(b) 3 (by implication).
289. Id. § 120.545(8).
REV.
STAT. ANN.
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to act." 290 This definition extends to formal adjudication as well as
rulemaking and informal adjudication. The APA declares judicial review to be available to "[a] person suffering legal wrong because of
agency action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute," 2 91 but the Act contains
some important qualifications on this right to judicial review. First,
the Act applies only to the extent that statutes do not preclude judicial review. 2 92 Second, certain agencies and functions are expressly
excluded from the judicial review chapter of the APA. 2 93 Third, the
Act states that "[aigency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a court
is subject to judicial review." 294 Fourth, the form of proceeding for
judicial review under the APA is "the special statutory review proceeding relevant to the subject matter in a court specified by statute
or, in the absence or inadequacy thereof, any applicable form of legal
action .... -295
Not surprisingly, lower federal courts have rendered conflicting
interpretations. 29 6 In three decisions, the Supreme Court implied
that the APA was an independent grant of subject-matter jurisdiction
for federal court review of agency action. 29 7 But recently, in Califano
v. Sanders,2 98 the Court held that "the better view is that the APA is
not to be interpreted as an implied grant of subject-matter jurisdic-
290. Judicial review is provided by 5 U.S.C. §§ 701-706 (1970). Section 701(b)(2) incorporates, for the purposes of these sections, the same definitions of "person," "rule,"
"order," "license," "sanction," "relief," and "agency action" as are given in the definitional section of the APA, 5 U.S.C. § 551 (1970). Goldberg v. Kelly did not make an
issue of the availability or type of judicial review. The Court noted that review of the
agency's final decision was already available under New York's article 78, N.Y. Civ.
PBAC. LAw § 7805 (McKinney 1974). 397 U.S. 254, 260-62. That provision would also
authorize a judicial stay pending final outcome of the proceeding. Thus, the Supreme
Court did not need to address the question whether the availability of judicial review is
an essential ingredient of the Kelly procedure.
291. 5 U.S.C. § 702 (1970).
292. Id. § 701(a)(1).
293. Id. § 701(b)(1).
294. Id. § 704.
295. Id. § 703.
296. The conflict among federal circuits is noted, with citations to cases, in Califano
v. Sanders, 430 U.S. 99, 104 n.4 (1977).
297. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Abbott
Laboratories v. Gardner, 387 U.S. 136, 141 (1967); Rusk v. Cort, 369 U.S. 367, 372
(1962), all cited in Califano v. Sanders as the three decisions of the Court that "arguably have assumed, with little discussion, that the APA is an independent grant of
subject-matter jurisdiction." 430 U.S. at 105.
298. 430 U.S. at 105.
MODELS
1977]
tion to review agency actions." 299 The Court noted that its decision
was influenced significantly by legislation enacted in October 1976,
eliminating the requirement of a specific amount-in-controversy as a
prerequisite for suits brought against the United States, its agencies,
or officers or employees in their official capacities. 30 0 The Court
reasoned that Congress must have assumed that the new legislation
was needed in order to confer jurisdiction in situations where jurisdiction did not already exist, the implication being that neither the
APA nor any other statute in effect before October 1976 was a general grant of jurisdiction for judicial review of agency action.
The RMA has separate provisions dealing, respectively, with the
judicial review of rules 30 ' and of contested case adjudications.3 0 2 The
validity or applicability of a rule may be determined in a declaratory
judgment action, upon the allegation that the rule, or its threatened
application, "interferes with or impairs, or threatens to interfere with
or impair, the legal rights or privileges of the plaintiff."30 3 In contested cases,
[a] person who has exhausted all administrative remedies available
within the agency and who is aggrieved by a final decision .
.
. is enti-
tled to judicial review under this Act. This section does not limit utilization of or the scope of judicial review available under other means of
review, redress, relief, or trial de novo provided by law.30 4
The RMA contains almost no further provisions on the declaratory
proceeding regarding rules, but does contain details regarding the
scope of review and other aspects arising on judicial review of con30 5
tested cases.
The Florida APA expressly preserves the jurisdiction of the circuit
courts (the trial courts of general jurisdiction) under the Declaratory
Judgment Act.30 6 In addition, the Florida APA contains a single section on judicial review, stating that "a party who is adversely affected
by final agency action is entitled to judicial review."3 0 7 All proceedings must be instituted by filing a "petition for review" in the District
299. Id. at 105.
300. Act of Oct. 21, 1976, Pub. L. No. 94-574, § 2, 90 Stat. 2721 (amending 28
U.S.C. § 1331(a) (1970)).
301. RMA § 7.
302. Id. § 15(a).
303. Id. § 7.
304.
Id. § 15(a).
305. Id. § 15.
306. FLA. STAT. § 120.73 (Harrison Supp. 1976).
307. Id. § 120.68(1) (Harrison 1975).
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Court of Appeal (the intermediate appellate court), except in matters
30 8
for which judicial review in the Supreme Court is provided by law.
The APA contains detailed guidelines concerning the scope of review
30 9
and other matters arising on judicial review of agency action.
In addition, the Florida Act establishes a procedure for the enforcement of agency action. Except as otherwise provided by statute,
any agency may seek enforcement of its action by filing a petition for
enforcement in the circuit court.3 1 0 If the agency has not filed, or is
not diligently prosecuting its own petition for enforcement, any "substantially interested person" who is a resident of the state may file a
petition for enforcement, but only if he has waited at least sixty days
after giving notice of the alleged violation to the agency head, the
attorney general, and the alleged violator. 3 1 ' If one or more petitions
for enforcement are pending in the circuit court while a petition for
review of agency action is pending in the district court of appeal, the
latter court may order all litigation transferred to and consolidated in
one court.
3 12
III. FREE-FORM PROCEEDINGS
As indicated in the introduction to this article, free-form agency
activities need not conform to any particular procedures. Even
308. Id. § 120.68(2). Review proceedings must be conducted in accordance with the
Florida Appellate Rules. Only the Supreme Court has authority, under the state constitution, to promulgate such rules, and the current version of the Appellate Rules was
adopted before enactment of the 1974 revision of the APA. See England & Levinson,
Administrative Law, 31 U. MIAiM L. REv. 749, 775 (1977). Case law, however, has
developed some temporary adaptations of the old Appellate Rules, so as to harmonize
them with the revised APA. In Yamaha International Corp. v. Ehrman, 318 So.2d 196 (1st
Dist. Fla. 1975), the court announced that the Florida Appellate Rules would be considered as modified by the 1974 APA.
309. FLA. STAT. § 120.68 (Harrison 1975 & Supp. 1976).
310. Id. § 120.69 (Harrison 1975).
311. Id.
312. Id. § 120.69(1)(b). The Florida APA contains other provisions to avoid multiplicity of enforcement proceedings, and it specifies the defenses available in enforcement
actions:
In any enforcement proceeding the respondent may assert as a defense the invalidity of any relevant statute, the inapplicability of the administrative determination to respondent, compliance by the respondent, the inappropriateness of the remedy sought by the agency, or any combination of the foregoing. In addition, if the
petition for enforcement is filed during the time within which the respondent could
petition for judicial review of the agency action, the respondent may assert the invalidity of the agency action.
Id. § 120.69(5). The effect of the latter sentence is that the respondent is deemed to
have waived the defense of invalidity of the agency action if he fails to initiate proceedings for review during the time available for filing such proceedings.
19771
MODELS
though a free-form activity gives the agency complete procedural discretion, the agency, nevertheless, is subject to important controls with
regard to the end result it reaches on the merits in free-form activities. The trend of the American legal system in recent decades has
been to narrow the range of functions in which agencies enjoy discretion to conduct free-form decisionmaking activities. This trend has
progressed to the point where the free-form activity may be regarded
as an endangered species, and opinions differ as to the desirability of
preserving it from extinction.
A.
An Endangered Species
Free-form decisionmaking activity has come under assault from a
3 13
number of sources. Case law, exemplified by Goldberg v. Kelly,
has imposed procedural standards on a wide range of agency activities. No doubt many of these activities were semi-formal even before that decision. In fact, this was the situation in New York prior to
the Supreme Court's determination in Goldberg v. Kelly that the
state's pretermination procedure was inadequate.3 14 In this regard,
although the Court imposed more elaborate requirements than had
existed before, the original agency activity was left essentially where
it previously had been-in the semi-formal category. In other situations, Goldberg v. Kelly and similar cases may have imposed procedural requirements in situations where none previously existed,
thereby transforming the activity from free-form to semi-formal. 3 15
The state statute books contain numerous special purpose procedural statutes, relating to specific agencies or functions. An increasing number of states have enacted APA's; most of the statutes include
the requirement that agencies promulgate rules setting forth their
formal and informal procedures. 3 16 To the extent that agencies comply with the requirements to promulgate and publish procedural
rules, the procedures that previously have been free-form become semi-formal.
A trend away from uniformity may be developing in federal law, as
Congress continues to enact special purpose procedural statutes for
many agencies and functions. Some observers contend that the effective scope of the Federal APA has been reduced drastically. 317 At
313. 397 U.S. 254 (1970).
314. Id. at 258-60.
315. See notes 9-10 & accompanying text supra.
316. See COOPER, supra note 10, at 167.
317. The author has heard this observation from a number of lawyers in Washington.
The observation can be supported by a number of comments: With regard to rulemaking
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both the federal and state levels, the great volume of statutory and
rulemaking acitivity with regard to agency procedures can be viewed
as part of the movement away from free-form and toward semi-formal
or formal processes.
The only exceptions to the movement away from free-form activity
at both the federal and the state level are the activities that the legislature is unable to control, such as the functions of the executive in
the exercise of his constitutional powers, 31 8 and the activities that the
legislature has chosen not to control, generally including the functions
of local governments and public corporations.
APA's have only limited impact on the chief executive. The Federal APA does not exclude the office of the President from its coverage, but it does exclude a number of presidential functions. For example, the rulemaking provisions are declared inapplicable to "a
military or foreign affairs function of the United States." 3 19 It has
been argued that Congress could, if it wanted to, impose procedural
requirements upon the President with regard to the exercise of these
or any other of the President's constitutional functions, as long as the
required procedures would not interfere unreasonably with the Pres3 20
ident's capacity to carry out his responsibilities.
procedures, United States v. Florida East Coast Ry. Co., 410 U.S. 224 (1973), interprets
the APA in pari materia with the relevant provision of the Interstate Commerce Act, in
order to determine the type of rulemaking procedure needed. Thus the notice-and-
comment procedure of the APA provides a "minimal" model that may be supplemented
by the procedures required by statutes pertaining to the particular agency function involved. Friendly discusses the consequences, especially in light of some post-Florida
East Coast decisions by the District of Columbia Court of Appeals. Friendly, supra note
2, at 1305-15; note 115 supra.
With regard to adjudication, the procedures developed for social security determinations are significantly different from the apparent intent of the APA, although they are
still carried out in the name of the APA. See notes 109-13 & accompanying text supra.
Finally, some scholarly writers question the relevance of general statements about administrative procedure and stress the need to pay attention to the specific context in
which the particular agency process is required to function. E.g., G. ROBINSON & E.
GELLHORN, THE ADMINISTRATIVE PROCESS xi-xii (1974).
However valid the observation regarding the decreasing relevancy of the Federal APA
may be, the present author continues to attach considerable value to discussions of general principles of administrative procedure, derived from as many sources as can be
managed by the researcher. Levinson, Toward Principles of Public Law, 19 J. PuB. L.
327, 332-34 (1970).
318. See notes 319-28 infra.
319. 5 U.S.C. § 553(a)(1) (1970).
320. Bonfield, Military and Foreign Affairs Function Rulemaking Under the APA,
71 MICH. L. REV. 222, 335-47 (1972). Professor Bonfield takes a similar view of the
ability of a state legislature to impose procedural controls upon the Governor even
when he exercises functions derived from the state constitution. Bonfield, The Iowa
Administrative ProcedureAct: Background, Construction, Applicability, Public Access
MODELS
1977]
A contrary position may be asserted, to the effect that the principle
of separation of powers precludes Congress from interfering in any
3 21
way with the exercise of the President's constitutional functions.
Regardless of whether or not Congress could impose procedural requirements upon the President in the exercise of his constitutional
functions, the fact remains that Congress has shown little inclination
to do so. As a result, large areas of the President's constitutional
3 22
powers are untouched by congressional procedural requirements.
The RMA defines "agency' to mean each state board or commission, other than the legislature or the courts, "authorized by law to
make rules or to determine contested cases." 3 23 In this context, "law"
arguably could be limited to statutory law: the RMA, therefore,
would not apply to the Governor's powers under the state constitution. An alternative approach would include the constitutional as well
as the statutory functions of the Governor. 3 24 The courts, of course,
to Agency Law, The Rulemaking Process, 60 IOWA L. Rv. 731, 764 (1975) [hereinafter
cited as Bonfield, The Iowa APA].
321. The Administrative Conference of the United States has recommended that the
rulemaking provision of the APA be extended to military and foreign affairs functions,
which are expressly exempted from the Act as now written. 3 RECOMMENDATIONS AND
REPORTS OF
THE
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES,
Recommen-
dation 73-5, at 28 (1975). The recommendation does not explain whether the Conference contemplates that the APA's rulemaking requirements would extend to the President in the exercise of functions derived from the Constitution.
322. See Watson, Congress Steps Out: A Look at Congressional Control of the
Executive, 63 CALIF. L. REv. 983 (1975), indicating a post-Watergate increase in congressional attempts to control the President. These attempts, however, are by no means
a comprehensive system of controls over the White House.
323. RMA § 1(1).
324. State courts are generally reluctant to review actions of the Governor, especially
where review would involve service of process upon the Governor, or where the
petitioner seeks mandamus or other coercive relief against the Governor. See generally
39 AM. JuR. 2d, Governor § 10 (1968). Litigation involving the validity of official acts of
the Governor seems quite commonplace, however, when the only requested relief is a
judicial declaration and when the Governor is a nominal party, personifying the administrative agency that actually exercised its discretion. Judicial review of the chief
executives' actions may have been strengthened by United States v. Nixon, 418 U.S. 683
(1974), the most dramatic of the Watergate cases. Further, even if state courts are reluctant to issue coercive process against Governors, federal courts have not experienced
the same hesitancy when asked to issue such process against Governors. E.g., United
States v. Barnett, 376 U.S. 681 (1964); Harvest v. Board of Pub. Instruct. 312 F. Supp.
269 (M.D. Fla.), stays denied 425 F.2d 1224 (5th Cir.), 397 U.S. 1018 (1970). No reported case has been found in which a state court has subjected the Governor to the
requirements of a state APA. A partial explanation could be that the principle of separation of powers precludes the courts, no less than the legislatures, from encroaching upon the constitutional powers of the Governor. See Sullivan v. Askew, 348 So. 2d
312, 316 (Fla. 1977) ("prohibition against legislative encroachment upon the executive's
clemency power is equally applicable to the judiciary").
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:872.
may subject the Governor to standards such as due process and the
separation of church and state, which have been announced in the
state or federal constitutions.
The Florida APA deals directly with the chief executive. The definition of "agency" includes "[t]he Governor in the exercise of all ex' 32 5
ecutive powers other than those derived from the Constitution."
The Act therefore does not apply to the Governor's exercise of powers
326
which have been derived from the state constitution.
The courts impose some procedural controls upon the chief executive, as a matter of due process.3 27 The courts and legislatures, however, have left a broad range of activities which can be carried out in
any procedural way the chief executive sees fit. In short, many of the
chief executive's activities are free-form as far as the courts and legis328
latures are concerned.
The functions of local governments generally are not covered by
State APA's. The RMA deals with agencies of the state, 329 but not of
330
local government, and the states generally have followed this lead.
This does not necessarily mean, however, that all local government
decisions are reached through free-form processes. To the contrary,
special purpose statutes or rules of state agencies dealing with such
matters as zoning, tax assessment, and law enforcement impose procedural requirements upon local governments. City charters and
other organic texts of local governments, as well as local ordinances
or agency rules, prescribe other procedures. The courts also impose
some procedural standards as requirements of due process. It thus
appears that a substantial part of the business of local governments is
conducted by formal or semi-formal decisionmaking processes.
325.
326.
FLA. STAT. § 120.52(1)(a) (Harrison 1975).
This definition was formulated after Governor Askew vetoed, on separation of
powers grounds, an earlier version of the APA that purported to cover the Governor's
constitutional as well as statutory powers. FLA. H.R.J. 1299 (1973). The present author
agrees that the earlier version was a violation of separation of powers. See Levinson,
The FloridaAPA, supra note 152, at 623.
327. See note 324 supra.
328. In another article the present author has advocated that chief executives, to the
extent feasible, adopt executive orders setting forth procedural as well as substantive
standards. The orders would transform free-form decisionmaking activities into semiformal activities. The semi-formal activities would be based upon procedural standards
"voluntarily" adopted by measures that bind the chief executive until such time as they
are amended or repealed by appropriate procedures. Levinson, PresidentialSelf-Regulation Through Rulemaking: Comparative Comments on Structuring the Chief Executive's Constitutional Powers, 9 VAND. J. TRANSNAT'L L. 695, 699 (1976).
329. RMA § i(1).
330.
See Bonfield, The Iowa APA, supra note 320, at 762-63.
19771
MODELS
The APA's could possibly be interpreted to include public and
nonprofit corporations as "agencies"; but, even when such corporations perform functions similar to those carried out by the formal organs of government, the traditional interpretation seems to leave corporations outside the definition of "agencies." '33 1 Free-form activities,
therefore, may continue to flourish in public corporations created by
statute, and in nonprofit corporations established under general in3 32
corporation laws for the purpose of carrying out public functions.
As a consequence, if a function previously carried out by a governmental organ is transferred to a corporation, that function thereby is
removed from the controls of the APA. Indeed, one of the claimed
advantages of having public functions carried out by corporations is
that corporate management escapes the "red tape" that would be involved if government organs performed the same functions. Even
though not governed by APA's, the functions of many corporations
may be subject to procedural requirements imposed by statute, bylaw, case law, 3 33 or other sources.
B.
Controls Over End Result
Even if an agency is permitted to reach a decision on a free-form
basis, the end result reflected in that decision is subject to jurisdictional and substantive standards. In brief, an agency may act only in
situations within the jurisdiction conferred by law and may reach
only those results that come within the substantive standards provided by law. In this context, the "law" may be a statute, a constitutional provision, a controlling judicial precedent, or a binding rule or
precedent of the agency itself. 33 4 Although some vestiges of sovereign
331. E.g., O'Malley v. Florida Ins. Guar. Ass'n, 257 So. 2d 9 (Fla. 1971).
332. An example of a nonprofit corporation carrying out a public purpose is Florida
Legal Services, Inc., organized under the general statutes piertaining to nonprofit corporations by the Florida Bar, in consultation with the office of the Governor. The corpora-
tion assists agencies to provide legal services to the poor in civil matters. See Smith,
Development of FloridaLegal Services, Inc., 48 FLA. B.J. 733, 734 (1974).
333. E.g., McCune v. Wilson, 237 So. 2d 169 (Fla. 1970), holding that the right to a
fair hearing before expulsion was applicable, as a matter of state due process, to a
member of a voluntary association of real estate appraisers, even though the association
had no legal authority over the members' right to practice their profession. The court
held that the organization was "quasi-public," and therefore subject to due process,
since membership in the association may appear to the public to be a "tangible demonstration of professional competence and skill, professional responsibility, and acceptance by one's professional peers." Id. at 172.
334. Part of the teaching of Professor Davis is that agencies should adopt rules or
open precedents as a means of "voluntarily" confining their own discretion on matters
of substance, if other sources of law have not already established adequate standards.
K. DAVIS, DISCRETIONARY JUSTICE 216 (1969).
THE AMERICAN UNIVERSITY LAW REVIEW
(Vol. 26 872
immunity remain, government agencies and their officers generally
are subject to judicial review upon allegations that jurisdictional or
3 35
substantive standards were violated.
A major question for administrative law scholars is whether the interests of citizens and government are protected adequately by judicial control as it is currently exercised over the end result of the
agency process, especially when the agency has free-form discretion
in matters of procedure. If the existing control is inadequate, additional controls require consideration. One possibility would be to have
stricter jurisdictional and substantive prescriptions in the agency's enabling legislation. Substantive rules and controlling precedents of
courts and agencies also would help to restrict the range of jurisdictional and substantive discretion left to the agency and would give the
courts a more effective basis for keeping the agency confined within
the prescribed jurisdictional and substantive limits. Another possibility would be to develop more incisive types of judicial review, both to
reduce judicial deference to agency determinations and to increase
judicial probing into the motives as well as the record of the decisionmaker. Still another solution would be to transform certain
agency functions from free-form to semi-formal or formal thereby
compelling the agency, in such situations, to follow some prescribed
procedures, on the assumption that procedural regularity may have
some effect upon the quality of the agency's end result.
IV.
MODEL BUILDING
The classification of agency proceedings in the preceding pages is
portrayed graphically as a grid found in Appendix A. The left column
consists of a vertical listing of the twenty-eight procedural elements. 33 6 Across the top of the grid, seven additional columns are ar335. See note 324 supra.
336. A purely numerical system is suggested, rather than the combined letters and
numbers used as headings within this article. The elements corresponding to the headings of the article would be numbered as follows:
01. Preliminary inquiries and submittals
02. Preliminary determinations and settlements
03. Initiating further proceedings
04. Notice
05. Intervention
06. Subpoena for attendance of witnesses
07. Discovery
08. Prior authorization, screening
09. Evidence limitations
10. Investigation by decisionmaker
11. Evidence presentations
1977]
MODELS
rayed to the right of this listing, and these seven columns represent
the seven types of agency proceedings featured in the classification
system. 337 In order to facilitate processing, and especially the use of
data processing equipment, numerical headings are assigned to each
of the twenth-eight elements listed in the left column and to each of
the seven featured processes listed as headings across the page. The
grid then consists of twenty-eight times seven boxes, and each box is
identified by its numerical coordinates within the grid. For example,
box No. 12.03 describes the provision with regard to element No. 12
in featured process No. 03.338 A number of analytical tasks can then
be undertaken.
A. Comparisons within the Grid
One type of analysis would note similarities and differences of the
boxes within the grid itself. For example, this analysis might show
that boxes 12.01 and 12.02 were virtually identical, while box 12.03
was somewhat different, meaning in this case that the provisions on
12.
13.
14.
15.
16.
17.
18.
19.
20.
Cross-examination and access to adverse evidence
Argument
Assistance of counsel and others
Conversion of pending proceeding from one type to another
Decisionmaker
Impartiality of decisionmaker
Submittals by parties
Record
Form, findings, reasons
21. Filing, effective date
22. Reconsideration
23. Open proceedings
24. Public access
25. Publication
26. Executive/administrative review
27. Legislative review
28. Judicial review
337. The seven featured agency processes are:
1. Formal adjudication, Federal APA
2. Contested case, RMA
3. Formal adjudication, Florida APA
4. Notice and comment rulemaking, Federal APA
5. Notice and comment rulemaking, RMA
6. Notice and comment rulemaking, Florida APA
7. Informal adjudication, Florida APA
338. The process would be coded as "03" rather than "3," so that the grid could
accommodate up to 99 processes, rather than only up to nine. If the project were of
ambitious proportions, perhaps the symbol "003" would be preferable, so as to leave
room for 999 processes.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:872
cross-examination (element No. 12) are virtually identical in the Federal APA on formal adjudication (featured process No. 01) and in the
RMA on contested cases (feature t process No. 02), while different
provisions on this point are found in the Florida APA on formal
339
adjudication.
A more complex analysis within the grid could consider procedural
elements in groups. For example, the analyst could inquire whether
featured proceedings that are similar to one another with regard to
cross-examination (element No. 12) are also similar to one another
with regard to discovery (element No. 07), or assistance of counsel
(element No. 14), and so on. If an affirmative answer is found, the
indication is that certain group patterns of elements can be discerned.
So far, the discussion has been purely descriptive, seeking to discover similarities and differences. Beyond this descriptive phase,
questions of evaluation are likely to arise. Having discovered that
12.01 and 12.02 are virtually identical, while 12.03 is different, the
analyst will seek an explanation for the difference. Research may reveal that something else in the Florida APA (featured process No. 03)
requires cross-examination (element No. 12) to be treated in a unique
manner. On the other hand, the analyst may not find any factor that
imposes the difference between 12.03 and the neighboring boxes on
the grid, 12.01 and 12.02. In such a situation, questions of evaluation
arise.
B.
Use of the Grid as Basis for Classifying Other Processes
Two hearing officers on the staff of the Administrative Procedures
Division, Office of the Tennessee Secretary of State, recently conducted an interesting and effective analysis similar to the one proposed in this article. Their analysis was based upon a single model,
the State APA. 3 40 The governing boards of the state's colleges and
339. Cross-examination is discussed in text accompanying notes 132-37 supra.
340. The Tennessee Uniform Administrative Procedures Act locates the centralized
system of hearing examiners in the Administrative Procedures Division, Office of the
Secretary of State. TENN. CODE ANN. § 4-527 (Cum. Supp. 1976). The Bates and Vick
analysis was prepared for a meeting of a subcommittee of the House Committee on
Government Operations, and was presented at a public meeting of the subcommittee on
April 14, 1977 (letter from William N. Bates and Douglas Edwin Vick to author, May 6,
1977). The resemblance between the grids prepared, respectively, by Bates and Vick and
by the present author is coincidental, since no discussion on this topic occurred before
each grid was separately prepared. Bates and Vick prepared a grid, using the State APA
contested case provisions as the basis for classification. A condensed version prepared
by the present author is shown as Appendix B.
19771
MODELS
universities had submitted proposed legislation to exempt such institutions from the state's APA. 34 1 The officers undertook the analysis
to assist a legislative committee to evaluate the proposal. Each of the
twenty-one institutions had promulgated its own procedures regarding student discipline. The procedures were available if a student
waived the right to proceed under the contested case provisions of
the state APA. The gist of the proposal was that the institutions be
exempted from the APA, and that each institution be permitted to
use its own procedure exclusively.
The grid developed by the Tennessee study effectively demonstrates that each institution has indeed adopted some rules, thereby
making its student discipline procedures either formal or semi-formal,
as the terms are used in the present article. The grid indicates wide
variations in the packages of the several institutions. A few institutions have adopted packages that closely resemble the contested case
provisions of the RMA. At the other end of the spectrum, some institutions have adopted very sketchy rules, which leave a great deal
of procedural discretion in the hands of local institutional administrators, subject to procedural standards imposed by the courts as a
matter of due process. a342 Many of the institutions fall somewhere between these two extremes. Of course, the grid does not answer the
question whether the institutions should be exempted from the APA,
but it does provide descriptions and classifications that have assisted
343
the legislative committee in its deliberations.
The grid developed in the present article contains numerous mod341. The Tennessee Uniform Administrative Procedures Act is codified at TENN.
CODE ANN. §§ 4-507 to 4-535 (Cum. Supp. 1976). The Act is discussed in Symposium, The
Uniform Tennessee Administrative ProceduresAct, 6 MEM. ST. U.L. REv. 143 (1976).
342. One of the institutions (not selected for inclusion in the condensed version of
the grid in the appendix, infra) adopted, as a rule, the General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported
Institutions of Higher Education, 45 F.R.D. 133 (W.D. Mo. 1968). This statement appears as a rule of Volunteer State College, in Rules and Regulations of the State of
Tennessee, ch. 0240-6-14 (p. 264).
343. The Bates and Vick grid classifies a number of agency processes by comparison
to a single model-the State APA. The left column of the grid therefore contains a
description of the provision of the State APA with regard to each procedural element,
and the remaining columns reflect the result of comparing the processes of the respective institutions with the single model described in the left column. The same type of
single-model grid underlies the recent study by Professor Paul Verkuil of the "informal"
adjudicative procedures of a number of federal agencies. See Verkuil, Informal
Adjudication, supra note 1. Verkuil's single model is Goldberg v. Kelly, and his study
indicates the extent to which the agency processes under examination resemble Kelly
with regard to each of the ten elements that he identifies in that case.
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 26:872
els, consisting of the seven featured proceedings. The analysis of
agency processes might reveal that the same patterns of procedural elements recur in a number of proceedings. The recurrence of a
pattern of procedural elements could suggest the appropriateness
of assembling or promulgating a model pattern. The possibility of developing a new model would increase as the study was expanded to
344
examine an increasing number of agency processes.
C. Beyond Classification
Comparisons within the grid, and classifications of other proceedings on the basis of the grid, constitute essential first steps toward the
evaluation of administrative processes. Some suggestions for evaluation can arise from the classifications themselves. The recurrence of a
particular provision, regarding a single element or a pattern, indicates
that the provision has commended itself on a number of occasions to
those who had authority to adopt it in the respective contexts where
it is found. This recurrence itself tends to suggest a favorable evaluation of the provision involved. However, the development of law
would be stifled if it depended solely upon principles that had been
derived from factoring common elements out of the choices made in
the past. Other sources, outside the grid, are essential for purposes of
evaluation.
First, experience in the respective jurisdictions requires examination. Some aspects of experience can be expressed factually: for example, the average time taken to dispose of a particular type of proceeding, the percentage of agency decisions reversed by the courts,
and so on. A different type of fact-related experience involves attitudes, to the extent these can be factually described. For example,
a survey of agency lawyers may indicate that a large majority of them
consider that a particular provision is "unfair" or "too time consum-
344. The grid developed in the present article contains numerous models, consisting
of the seven featured processes. Perhaps an even wider range of models would be more
useful. As soon as a grid contains more than one model, it becomes impossible to insert
any descriptions into the left column. That column can only contain the title of an element, such as "Discovery," without any description of any particular type of discovery
provision. The description must be found within the boxes of the grid, indicating the
provisions on this subject found in each of the models. The numerical code, by which
each box on the grid may be designated for data processing purposes, is therefore a
shorthand description of the pertinent provision, and a narrative description of this provision is needed to accompany the code numbers.
19771
MODELS
ing." Although the opinions are subjective, the existence of these
opinions is a fact that can be expressed by a qualified researcher. Yet
another facet of experience can be found in reported court decisions,
legislative committee reports, law review articles, and other sources
containing commentary on agency workings. A second possible source
of evaluation is the expansion of the grid so as to include models or
proceedings from agencies or jurisdictions other than those currently
under examination. The comparative approach provides the perspective of a broader range of ideas, and of reported experience, than
could otherwise be found.
Classification, experience, and comparison do not, in themselves,
inevitably lead to any particular decision whether or not a particular
procedure or procedural proposal is satisfactory. Discretion resides in
such decisions, and this discretion is guided by subjective judgment
calls. 3 45 The proceedings featured in the grid result from the subjective judgments of the respective authors, and the same will be said of
any newly created models, or any revisions of the old ones. The literature on the "informal process" already presents the subjective views
of a number of distinguished authors, based partly upon their personal observation or participation in agency processes, and partly
upon their speculative inquiries. 346 This dialogue has spanned a considerable period of time, but has not, as yet, produced any widely
acclaimed solution to the many problems perceived in the "informal
process." The subjective dialogue may be more fruitful if it were
coupled with descriptions and classifications of formal, semi-formal,
and free-form proceedings.
345. On systems and values, see, e.g., Deutsch, Neutrality, Legitimacy, and the Supreme Court: Some Intersections Between Law and PoliticalScience, 20 STAN. L. REv.
169 (1968); Mayo & Jones, Legal-Policy Decision Process: Alternative Thinking and the
PredictiveFunction, 33 GEO. WASH. L. REv. 318 (1964); Wechsler, Toward Neutral Prin-
ciples of Constitutional Law, 73 HARV. L. REv. 1 (1959).
346.
See Davis, Revising the Administrative Procedure Act, 29 AD. L. REv. 155
(1977); Mashaw, supra note 2; Stewart, Reformation of American Administrative Law,
88 HARV. L. REv. 1667 (1975); Verkuil, Informal Adjudication, supra, note 1.
THE AMERICAN UNIVERSIIT LAW REVIEW
V.
[Vol. 26:872
MODEL GRIDS
Appendix A
Grid portraying elements of the administrative process based upon an analysis of three Administrative Procedure Acts.
1977]
MODELS
ELEMENTS
13. Argument
13.01
13.02 13.03
14. Assistance of counsel and others
15. Conversion of pending proceeding
from one type to another
16. Decisionmaker
17. Impartiality of decisionmaker
18. Submittals by parties
19. Record
14.01
14.02
15.01
16.01
17.01
18.01
19.01
15.02 15.03
16.02 16.03
17.02 17.03
18.02 18.03
19.02 19.03
20. Form, findings, reasons
21. Filing, effective date
22. Reconsideration
20.01
21.01
22.01
20.02 20.03 20.04 20.05 20.06 20.07
21.02 21.03 21.04 21.05 21.06 21.07
22.02 22.03 22.04 22.05 22.06 22.07
23. Open proceedings
24. Public access
23.01 23.02 23.03 23.04 23.05 23.06 23.07
24.01 24.02 24.03 24.04 24.05 24.06 24.07
25. Publication
26. Executive/administrative review
25.01
26.01
25.02 25.03 25.04 25.05 25.06 25.07
26.02 26.03 26.04 26.05 26.06 26.07
27. Legislative review
28. Judicial review
27.01
28.01
27.02 27.03 27.04 27.05
28.02 28.03 28.04 28.05
13.04
13.05
13.06 13.07
14.03 14.04
14.05
14.06
15.05
16.05
17.05
18.05
19.05
15.06 15.07
16.06 16.07
17.06 17.07
18.06 18.07
19.06 19.07
15.04
16.04
17.04
18.04
19.04
14.07
27.06 27.07
28.06 28.07
[Vol. 26:872
THE AMERICAN UNIVERSITY LAW REVIEW
Appendix B
Comparison of procedural rights afforded under the Tennessee Uniform Administrative Procedures Act and the Student Disciplinary Rules of Colleges
and Universities of Tennessee. Condensed, by present author, from analysis
of 21 institutions, prepared by William N. Bates and Douglas Edwin Vick,
April 14, 1977, for subcommittee of House Committee on Government
Operations.
University
Procedural Elements
1. Notice
X
X
X
X
X
X
X
X
X
X
X
lc. Nature of hearing
1d. Right to counsel
2. Statement of legal authority
2a. Particular section of statutes referred to
X
X
X
X
X
3. Short and plain statement of matters asserted
3a. More definite statement available
X
la. Time of hearing
lb. Place of hearing
X
X
X
X
X
X
4. Opportunity for all parties to respond in person
or by attorney
*X
X -X
-X
X
-X
4a. Opportunity to present appropriate responsive pleadings, evidence and argument on
all issues
5. Pre-hearing conference available
5a. Order entered by agency reciting action
taken at pre-hearing conference
6. Availability for informal disposition of case by
consent order, default, or agreed settlement
7. Complete record in contested case
8. Record (verbatim)
8a. Transcript possibility
X
X
-X
-X
-X
X
-X
X
X
X
X
X
X
X
X
X
-X
-X
Rules of Evidence
1. Admissible in court
la. Reasonable prudent man admissibility
X
?
-X?
2. Rules of privilege effective
3. Cross-examination of witnesses
?
X
X
X
X
X
-x
X
19771
MODELS
University
-v
1.
2.
3.
4.
5.
Discovery
Subpoenas available
Subpoenas duces tecum available
Discovery orders available
Depositions available
Admissions available
6. Right to inspect and copy from files
Final orders
1. In writing
la. Stated on record
lb. Has findings of fact
Ic. Conclusions of law
id. Reasons for ultimate decision
le. Notification of decision
Decisionmaker
1. Hearing officer (APA)
2. State agency (APA)
-X
X
X.X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
3. Dean
4. Committee
4a. Student-faculty
4b. Student
4c. Faculty
Appeal Procedure
1. Petition for re-hearing (APA)
X
X
X
X
X
X
X
X
X
X
X
X
2. Dean
3. Committee
3a. Student-faculty
3b. Student
3c. Faculty
4. University president
X Similar to Tennessee APA
*X Beyond Tennessee APA
-X Limited Right/Below Tennessee APA Standards
X
X
X
X