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The Last Frontier: Fair Procedures in Informal Administrative Adjudication

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The federal government engages in massive amounts of informal adjudication. Michael Asimow discusses the highly diverse world of federal informal adjudication and surveys the procedural requirements imposed on it by due process and federal statutes.

Image courtesy of interviewee. August 26, 2024

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This video is a transcription of a discussion regarding informal adjudication, focusing on its role within administrative law, specifically in the context of disputes involving government agencies. The conversation highlights that while formal trials are often emphasized, much of administrative adjudication occurs informally through means such as negotiations, presentations of data, and mediations.

The speaker notes that the field is vast and varied, leading to challenges in studying informal adjudication due to the lack of commonality across different governmental schemes. They emphasize the importance of recognizing this informal sector to critically examine the fairness and efficiency of the procedures used.

A consultancy project conducted for the Administrative Conference of the United States led to recommendations for improving informal adjudication practices. Key suggestions include ensuring proper notice to parties involved, providing opportunities for representation, minimizing conflicts of interest among decision-makers, and establishing a review process for decisions. Access to an ombudsman was also recommended to address issues informally without formal legal proceedings.

The discussion concludes with calls for administrative agencies to recognize the significance of their informal adjudication practices and to strive for improvements in fairness and efficiency, as these processes greatly impact many people's perceptions of justice in their dealings with the government.

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00:00.065 --> 00:01.725
In the subject of administrative law,

00:01.775 --> 00:05.485
which has been my kind of professional lifetime occupation.

00:06.705 --> 00:09.125
Um, there's an enormous field called

00:09.125 --> 00:10.645
administrative adjudication.

00:11.265 --> 00:15.645
So these are dispute settlements often through trials

00:15.795 --> 00:17.885
that occur within administrative

00:18.405 --> 00:19.925
agencies rather than courts.

00:20.305 --> 00:22.965
And there's vastly more adjudications

00:23.155 --> 00:25.725
that are administrative, than there are,

00:26.145 --> 00:27.165
cases in court.

00:28.505 --> 00:31.245
So we, in the administrative law field,

00:31.915 --> 00:35.045
usually think about administrative adjudication

00:35.185 --> 00:39.485
as requiring pretty formal trial type hearings,

00:40.225 --> 00:42.845
that aren't so different from the ones

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that you see in court, except the judges don't wear black

00:45.655 --> 00:48.605
robes and they, they don't do it in court, in,

00:49.225 --> 00:50.805
courtrooms.

00:52.475 --> 00:55.295
So that's what we mostly talk about when we do

00:55.295 --> 00:56.335
administrative law.

00:57.075 --> 00:58.135
Are these,

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quite formal trial type hearings presided over

01:00.755 --> 01:03.055
by someone called an administrative law judge.

01:04.435 --> 01:08.175
But that obscures the fact that a vast amount

01:08.595 --> 01:11.655
of state and federal administrative adjudication

01:12.545 --> 01:15.815
isn't in formal trial, trial type at all.

01:17.575 --> 01:20.675
It actu we have disputes between the private party

01:20.735 --> 01:22.675
and the government, but they are settled

01:22.815 --> 01:27.515
by very informal means, such as a presentation

01:27.515 --> 01:31.595
of data negotiations, conferences, public notice

01:31.695 --> 01:35.275
and comment, mediation, all all kinds of

01:35.955 --> 01:37.355
decision making methodologies

01:37.825 --> 01:39.835
that aren't trial type hearings.

01:40.215 --> 01:42.835
But no one really talks about that very much,

01:43.695 --> 01:45.875
and that's for a good reason.

01:46.965 --> 01:49.555
There are countless schemes

01:49.615 --> 01:52.435
of informal adjudication just now talking about the federal

01:52.675 --> 01:54.075
government rather than the states.

01:54.495 --> 01:56.235
But every one is different from the others.

01:57.065 --> 01:58.795
There's no commonality at all.

01:59.855 --> 02:01.795
So that makes it hard to study

02:01.975 --> 02:05.475
and hard to get a handle on this sector.

02:06.575 --> 02:10.755
So my article is designed to alert people to the fact

02:10.985 --> 02:15.595
that there is this enormous sector of informal adjudication.

02:17.465 --> 02:19.685
And once we recognize that, then we

02:19.685 --> 02:23.005
as administrative lawyers think, well, what are,

02:23.065 --> 02:24.925
are the procedures that are being used

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and are they fair and efficient?

02:28.475 --> 02:30.255
So I did a study

02:30.755 --> 02:33.295
for an agency called the Administrative Conference

02:33.295 --> 02:37.255
of the United States, so that most of your listeners

02:38.055 --> 02:40.375
probably have never heard of this agency, which we,

02:40.715 --> 02:42.455
we all call acus Administrative

02:42.455 --> 02:43.655
Conference of the United States.

02:44.155 --> 02:45.935
But it's the best little government agency

02:45.935 --> 02:47.015
that you've never heard of.

02:47.845 --> 02:51.295
It's nonpartisan as a very small budget.

02:52.035 --> 02:55.295
And among other things, it makes recommendations

02:55.475 --> 02:59.925
for good government that cut across party lines,

03:00.065 --> 03:02.005
and it often hires consultants.

03:02.025 --> 03:04.765
And I've worked for acas as a consultant for many years,

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and I did a consulting project on this subject

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of informal adjudication that came up with a series

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of recommendations for best practices that

03:15.285 --> 03:18.245
agencies could voluntarily follow in trying

03:18.245 --> 03:22.365
to improve their informal adjudication procedures.

03:23.265 --> 03:26.805
Um, now since every one of these is different, some of,

03:27.215 --> 03:30.045
those best practices have to be tailored

03:30.465 --> 03:32.365
to the specific circumstances involved.

03:32.365 --> 03:35.765
There's a vast array, there are thousands of different

03:36.325 --> 03:38.285
informal adjudication schemes just

03:38.285 --> 03:39.605
within the federal government.

03:39.905 --> 03:41.565
So I'll just mention a few of them.

03:42.545 --> 03:46.245
Um, if we're talking about federal grants and loans

03:46.505 --> 03:50.485
and benefits, most of the determinations are informal.

03:50.825 --> 03:54.565
So let's say you apply to the National Science Foundation

03:55.185 --> 03:57.605
for a grant for your particular scientific project

03:58.825 --> 04:00.045
and the government.

04:00.515 --> 04:01.645
It's a competitive process.

04:01.955 --> 04:03.565
Lots of people are applying for this money

04:03.865 --> 04:04.925
and they turn you down.

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And what can you do about it?

04:07.475 --> 04:10.655
Can you get a hearing where you try to demonstrate

04:10.655 --> 04:12.055
that your proposal is better

04:12.055 --> 04:13.295
than the ones that got accepted?

04:13.795 --> 04:15.135
No, there are no hearings.

04:16.245 --> 04:20.665
Um, but there is an informal process by which you can appeal

04:21.245 --> 04:24.905
the denial of your application in which you get another set

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of eyes looking at the problem.

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Maybe the initial reviewer was wrong or incompetent

04:30.385 --> 04:31.425
or biased or whatever.

04:31.685 --> 04:35.145
You do get a, a chance to make your case

04:35.575 --> 04:37.185
that you should have received this grant.

04:37.765 --> 04:40.145
Uh, but it's all through informal adjudication.

04:40.565 --> 04:42.865
Uh, the same is true as of applications

04:43.245 --> 04:44.425
for banking charters.

04:44.425 --> 04:46.185
You wanna open a new bank in your town,

04:46.605 --> 04:49.345
but the existing banks don't want you for obvious reasons.

04:50.205 --> 04:53.785
Um, this procedure is re this application very important.

04:53.905 --> 04:56.185
I mean, a lot of money is involved,

04:56.645 --> 05:00.225
is all handled informally, so that's one big area.

05:00.815 --> 05:03.065
Another might be visas.

05:04.165 --> 05:05.425
Uh, you apply for a visa

05:05.425 --> 05:06.985
to the United States in a foreign country.

05:07.085 --> 05:11.465
The the local council turns you down, can you get a hearing?

05:12.025 --> 05:14.345
'cause he turns you down because he thinks you're a

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security risk or whatever.

05:16.325 --> 05:17.425
Um, and you say you're not.

05:17.725 --> 05:19.425
No, there is no, there are no hearings.

05:20.005 --> 05:22.545
Um, but there is an informal procedure

05:22.765 --> 05:25.585
by which someone else within the agency can take a look at

05:25.605 --> 05:26.705
the council's decision.

05:28.245 --> 05:32.545
Uh, and there are just a vast number of other disputes

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between private parties

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and the government that are resolved

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through informal techniques.

05:36.965 --> 05:41.105
We think there should be a system of proper notice

05:41.365 --> 05:45.105
to the private party that is, or her application

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or whatever it happens to be of a sanctional

05:48.345 --> 05:50.425
or a benefit, has been denied

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and the reasons why, so

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that you have a chance to try to overturn them.

05:58.425 --> 06:01.245
We think there should be an opportunity to do that

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through the presentation of written evidence and discussions

06:06.005 --> 06:07.805
and negotiations, whatever it takes,

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but a, a process whereby there's a way you can challenge

06:11.715 --> 06:15.005
that, what we call a frontline decision that denied you

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what you wanted or suggested imposing a sanction on you.

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Uh, we think you should have a right to be represented

06:21.305 --> 06:24.845
by a lawyer or by a non-lawyer or lay advocate.

06:25.305 --> 06:29.805
Um, if you can't afford a lawyer, we think

06:29.875 --> 06:32.645
that the decision makers should be free from

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conflict of interest.

06:37.135 --> 06:41.435
Um, we feel there should be, if, if you lose, we call

06:41.435 --> 06:43.595
that the primary decision phase, where you,

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you actually have a chance to come in with written evidence,

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and to make oral arguments and negotiations.

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If that fails, there should be a review process

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within the agency.

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Someone else should put a second set of eyes on the problem.

06:59.055 --> 07:03.635
Um, we think there should be a statement of reasons as

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to why you're being rejected

07:05.655 --> 07:09.155
or sanctioned so that you have a, a possibility

07:09.155 --> 07:12.235
of challenging that, that decision in court.

07:12.575 --> 07:13.995
But you can't challenge them in court

07:13.995 --> 07:16.195
unless the court can figure out why the

07:16.195 --> 07:17.275
agency made the decision.

07:17.375 --> 07:19.195
So you need a a statement of reasons.

07:20.055 --> 07:22.915
Uh, we think there should be access to an ombuds.

07:23.455 --> 07:26.195
So lots of your listeners don't have never heard

07:26.195 --> 07:27.395
that funny sounding term.

07:28.015 --> 07:31.755
Um, but it is the ombuds were sometimes referred to

07:31.755 --> 07:32.875
as ombudsman, which is

07:32.875 --> 07:34.755
what they're called in Scandinavian countries.

07:34.975 --> 07:37.435
Uh, these exist all over the place in the government

07:37.495 --> 07:39.875
and we think there should be access to one.

07:39.875 --> 07:40.915
So an ombudsman

07:41.215 --> 07:45.235
or ombuds in has the power to investigate what happened

07:46.015 --> 07:49.235
and to make recommendations about what to do about it.

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The Ombuds has no formal power, can't force the agency to do

07:54.155 --> 07:57.475
what you want, but they're very powerful through, you know,

07:57.475 --> 07:58.675
what's called soft power.

07:59.255 --> 08:01.755
The agencies don't want to irritate the ombuds,

08:01.755 --> 08:03.675
so they usually follow what the Ombuds suggests.

08:04.255 --> 08:08.595
And there's lots of things that ombudsmen can look at

08:08.705 --> 08:09.955
that really aren't legal.

08:10.415 --> 08:13.195
For example, I was treated in a rude manner.

08:13.775 --> 08:16.195
Um, they weren't civil to me. They wouldn't explain.

08:16.195 --> 08:18.595
They gave me the brush off, they gave me the runaround.

08:18.925 --> 08:21.555
These, these kinds of complaints are

08:21.555 --> 08:23.675
what ombuds are good at looking into.

08:24.415 --> 08:26.595
So because you don't have the protection

08:26.595 --> 08:29.435
of a formal hearing, we think it would be a good thing

08:29.705 --> 08:31.915
that you'd have access, to an o.

08:32.615 --> 08:35.315
Uh, so those are some of the more important recommendations

08:35.315 --> 08:37.515
that the administrative conference made.

08:38.255 --> 08:40.595
Um, but we always have to realize that

08:41.635 --> 08:44.355
informal adjudication is, it's a huge range

08:45.295 --> 08:49.715
of very important issues like the banking charters,

08:49.895 --> 08:51.155
or denial of a visa.

08:51.895 --> 08:54.755
Um, and there are some really trivial

08:54.925 --> 08:59.325
Examples of the one that's always used is, if you

08:59.325 --> 09:00.325
and I both apply

09:00.945 --> 09:04.045
for the last campsite at a national forest campground,

09:04.105 --> 09:06.245
the forest ranger will say, I get it.

09:06.785 --> 09:08.445
And Sam, you can leave.

09:08.875 --> 09:10.925
Well, that's, that's an adjudication, right?

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That, that determined who was gonna have the right

09:14.645 --> 09:17.205
to occupy government property for a single night.

09:17.205 --> 09:19.205
That's not very important to the great scheme.

09:19.865 --> 09:23.285
You wouldn't wanna over proceduralize that the Ranger has

09:23.285 --> 09:24.925
to make a decision and move on.

09:24.925 --> 09:26.845
But even the Ranger should explain

09:27.225 --> 09:29.445
to you why you didn't get the site like

09:29.875 --> 09:31.045
Michael got there first.

09:31.985 --> 09:34.725
Um, but you wouldn't over proceduralize

09:34.725 --> 09:37.165
that, you probably

09:37.165 --> 09:38.725
Wouldn't have review by

09:38.725 --> 09:40.885
Another official 'cause the other official isn't there.

09:40.905 --> 09:43.485
It has to be decided on the spot. But when

09:43.485 --> 09:45.845
You're talking about Denial of bank charters

09:45.845 --> 09:47.805
or denial of an application for a grant,

09:48.105 --> 09:50.685
that's much more significant in money terms.

09:52.015 --> 09:54.915
So more procedures should be needed. So the agency

09:55.575 --> 09:58.555
Has to Decide for itself how to tailor

09:59.335 --> 10:02.315
Our best practices To the actual situation involved.

10:02.535 --> 10:05.915
The implications first are simply to alert all

10:05.915 --> 10:08.515
of us administrative lawyers, the people

10:08.535 --> 10:11.955
who teach this subject at all the law schools, as well

10:11.955 --> 10:13.435
as all the private lawyers

10:13.495 --> 10:16.955
and government officials, who are involved

10:16.985 --> 10:18.515
with administrative agencies.

10:18.515 --> 10:22.235
They need to think about informal adjudication in a holistic

10:22.235 --> 10:24.555
manner rather than just as a couple thousand,

10:24.605 --> 10:26.515
completely different and unrelated

10:27.335 --> 10:31.355
and pretty irrelevant, dispute settlement schemes.

10:31.385 --> 10:34.635
It's a lot more than that. Um, so part

10:34.635 --> 10:36.875
of the job here is simply to alert people,

10:37.295 --> 10:40.755
to tune them into the existence of this very large area

10:40.895 --> 10:43.435
of government dispute settlement that calls

10:43.615 --> 10:47.555
for more uniform approaches that have been available so far,

10:48.175 --> 10:51.555
but realizing that, that you can't solve this problem,

10:51.555 --> 10:53.275
through a new statute or something like that,

10:53.275 --> 10:55.275
because the, the various

10:55.345 --> 10:56.795
schemes are too different from each other.

10:57.335 --> 10:59.595
And then secondly, to encourage agencies

10:59.655 --> 11:03.355
to take a look at their informal adjudication practices,

11:03.355 --> 11:04.755
which they may never have done,

11:06.295 --> 11:07.675
and think about, well,

11:07.725 --> 11:10.115
could we improve this system of justice?

11:10.815 --> 11:13.395
You know, Sam, this is, these, these

11:13.955 --> 11:15.155
disputes are everywhere.

11:16.515 --> 11:21.415
And how the government acts when it has such a dispute.

11:22.085 --> 11:25.815
It's really the face of justice for vast numbers of people.

11:25.835 --> 11:29.495
And people Ag deserve to be treated fairly,

11:29.875 --> 11:31.695
but yet efficiently in this scheme.

11:31.715 --> 11:33.855
So it's designed to get agencies

11:33.875 --> 11:35.215
to take a look at this process,

11:35.875 --> 11:40.535
see whether they could really make it both more fair,

11:40.675 --> 11:41.775
but also more efficient.

"Understanding Administrative Adjudication: The Overlooked Landscape of Informal Dispute Resolution"

00:00:00 - In the subject of administrative law, which has been my kind of professional lifetime occupation. there's an enormous field called administrative adjudication. So these are dispute settlements often through trials that occur within administrative agencies rather than courts. And there's vastly more adjudications that are administrative, than there are, cases in court. So we, in the administrative law field, usually think about administrative adjudication as requiring pretty formal trial type hearings,
00:00:42 - that you see in court, except the judges don't wear black robes and they, they don't do it in court, in, courtrooms. So that's what we mostly talk about when we do administrative law. Are these, quite formal trial type hearings presided over by someone called an administrative law judge. But that obscures the fact that a vast amount of state and federal administrative adjudication isn't in formal trial, trial type at all. It actu we have disputes between the private party
00:01:22 - by very informal means, such as a presentation of data negotiations, conferences, public notice and comment, mediation, all all kinds of decision making methodologies that aren't trial type hearings. But no one really talks about that very much, and that's for a good reason. There are countless schemes of informal adjudication just now talking about the federal government rather than the states. But every one is different from the others. There's no commonality at all. So that makes it hard to study
00:02:06 - So my article is designed to alert people to the fact that there is this enormous sector of informal adjudication. And once we recognize that, then we as administrative lawyers think, well, what are, are the procedures that are being used and are they fair and efficient? So I did a study for an agency called the Administrative Conference of the United States, so that most of your listeners probably have never heard of this agency, which we, we all call acus Administrative
00:02:44 - But it's the best little government agency that you've never heard of. It's nonpartisan as a very small budget. And among other things, it makes recommendations for good government that cut across party lines, and it often hires consultants. And I've worked for acas as a consultant for many years, and I did a consulting project on this subject of informal adjudication that came up with a series of recommendations for best practices that agencies could voluntarily follow in trying to improve their informal adjudication procedures.
00:03:27 - those best practices have to be tailored to the specific circumstances involved. There's a vast array, there are thousands of different informal adjudication schemes just within the federal government. So I'll just mention a few of them. if we're talking about federal grants and loans and benefits, most of the determinations are informal. So let's say you apply to the National Science Foundation for a grant for your particular scientific project and the government. It's a competitive process. Lots of people are applying for this money

"Navigating Informal Adjudication: The Challenges and Recommendations for Fair Appeal Processes"

00:04:06 - And what can you do about it? Can you get a hearing where you try to demonstrate that your proposal is better than the ones that got accepted? No, there are no hearings. but there is an informal process by which you can appeal the denial of your application in which you get another set of eyes looking at the problem. Maybe the initial reviewer was wrong or incompetent or biased or whatever. You do get a, a chance to make your case that you should have received this grant. but it's all through informal adjudication. the same is true as of applications for banking charters.
00:04:46 - but the existing banks don't want you for obvious reasons. this procedure is re this application very important. I mean, a lot of money is involved, is all handled informally, so that's one big area. Another might be visas. you apply for a visa to the United States in a foreign country. The the local council turns you down, can you get a hearing? 'cause he turns you down because he thinks you're a security risk or whatever. and you say you're not. No, there is no, there are no hearings. but there is an informal procedure by which someone else within the agency can take a look at
00:05:28 - and there are just a vast number of other disputes between private parties and the government that are resolved through informal techniques. We think there should be a system of proper notice to the private party that is, or her application or whatever it happens to be of a sanctional or a benefit, has been denied and the reasons why, so that you have a chance to try to overturn them. We think there should be an opportunity to do that through the presentation of written evidence and discussions
00:06:07 - but a, a process whereby there's a way you can challenge that, what we call a frontline decision that denied you what you wanted or suggested imposing a sanction on you. we think you should have a right to be represented by a lawyer or by a non-lawyer or lay advocate. if you can't afford a lawyer, we think that the decision makers should be free from conflict of interest. we feel there should be, if, if you lose, we call that the primary decision phase, where you, you actually have a chance to come in with written evidence,
00:06:50 - If that fails, there should be a review process within the agency. Someone else should put a second set of eyes on the problem. we think there should be a statement of reasons as to why you're being rejected or sanctioned so that you have a, a possibility of challenging that, that decision in court. But you can't challenge them in court unless the court can figure out why the agency made the decision. So you need a a statement of reasons. we think there should be access to an ombuds. So lots of your listeners don't have never heard that funny sounding term.
00:07:31 - as ombudsman, which is what they're called in Scandinavian countries. these exist all over the place in the government and we think there should be access to one. So an ombudsman or ombuds in has the power to investigate what happened and to make recommendations about what to do about it. The Ombuds has no formal power, can't force the agency to do what you want, but they're very powerful through, you know, what's called soft power. The agencies don't want to irritate the ombuds, so they usually follow what the Ombuds suggests. And there's lots of things that ombudsmen can look at

"Enhancing Informal Adjudication: Recognizing Complaints and Improving Fairness in Government Dispute Resolution"

00:08:10 - For example, I was treated in a rude manner. they weren't civil to me. They wouldn't explain. They gave me the brush off, they gave me the runaround. These, these kinds of complaints are what ombuds are good at looking into. So because you don't have the protection of a formal hearing, we think it would be a good thing that you'd have access, to an o. so those are some of the more important recommendations that the administrative conference made. but we always have to realize that informal adjudication is, it's a huge range of very important issues like the banking charters,
00:08:51 - and there are some really trivial Examples of the one that's always used is, if you and I both apply for the last campsite at a national forest campground, the forest ranger will say, I get it. And Sam, you can leave. Well, that's, that's an adjudication, right? That, that determined who was gonna have the right to occupy government property for a single night. That's not very important to the great scheme. You wouldn't wanna over proceduralize that the Ranger has to make a decision and move on. But even the Ranger should explain to you why you didn't get the site like Michael got there first.
00:09:34 - that, you probably Wouldn't have review by Another official 'cause the other official isn't there. It has to be decided on the spot. But when You're talking about Denial of bank charters or denial of an application for a grant, that's much more significant in money terms. So more procedures should be needed. So the agency Has to Decide for itself how to tailor Our best practices To the actual situation involved. The implications first are simply to alert all of us administrative lawyers, the people who teach this subject at all the law schools, as well as all the private lawyers
00:10:16 - with administrative agencies. They need to think about informal adjudication in a holistic manner rather than just as a couple thousand, completely different and unrelated and pretty irrelevant, dispute settlement schemes. It's a lot more than that. so part of the job here is simply to alert people, to tune them into the existence of this very large area of government dispute settlement that calls for more uniform approaches that have been available so far, but realizing that, that you can't solve this problem, through a new statute or something like that, because the, the various
00:10:57 - And then secondly, to encourage agencies to take a look at their informal adjudication practices, which they may never have done, and think about, well, could we improve this system of justice? You know, Sam, this is, these, these disputes are everywhere. And how the government acts when it has such a dispute. It's really the face of justice for vast numbers of people. And people Ag deserve to be treated fairly, but yet efficiently in this scheme. So it's designed to get agencies to take a look at this process,
00:11:40 - but also more efficient.

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