Practical Guidance
Time-saving Solutions
Knowledgeable Insights

Administrative Agency Litigation

Select a format

Print Book :Softbound, 200 pages
ISBN: 9781601561442
In Stock
Price
$75.00
QTY
eBook :epub
ISBN: 9781632813107
In Stock
Price
$75.00
QTY
eBook :mobi
ISBN: 9781632813107
In Stock
Price
$75.00
QTY
International Order Inquiry

Product details

View a sample of this title using the ReadNow feature

Whenever the government tries to deny a benefit or take away a license, the parties affected by the action have the right to a fair hearing before an impartial adjudicator. Protecting that right takes some planning. This book is designed to offer practical suggestions about how to prepare for agency hearings. It's a guide for lawyers, clinical assistants, law students, and laymen who want to gain an accurate understanding of what to expect in litigating with a local, state, or federal governmental agency.

Written by an experienced administrative litigator and judge, the book explains why preparing for agency litigation is different from civil or criminal litigation. It provides a brief summary of the constitutional principles controlling agency action, a comprehensive discussion about issues that are likely to arise in administrative hearings, and a thorough review of the best practices for effective advocacy before governmental bodies. It explains how to avoid the trial-by-fire process that is common among agency hearings, by giving specific suggestions on how to prepare your client, your judge, and yourself for agency adjudication. It also explains steps you can take before the hearing to discover the evidence likely to be used in these hearings, along with checklists of questions to ask both before and during the evidentiary hearing. With this information, you can be sure to fully exploit the constitutional protections that are designed to ensure a level playing field when challenging proposed governmental action.

Authors / Contributors

Table of Contents

CONTENTS

INTRODUCTION AND ACKNOWLEDGMENTS

CHAPTER ONE: UNDERSTANDING THE UNIQUE CHARACTERISTICS OF AN AGENCY-RUN HEARING


Practical Differences in Agency-Run Hearings
Jurisdictional Differences Based on Time
Differences in Access to Relevant Information
How the Scope of the Hearing Makes a Difference
Example—The Implied Consent Hearing
Why Is an Agency Hearing This Case?
How Do Agencies Control These Hearings?
Consider Who Will Serve as the Adjudicator
Find Out Who Will Represent the Government
Differences in the Burdens of Proof
The Role of Credibility Determinations
Realities of Practicing Before Agency Adjudicators
Use the Rationale Underlying the Rule
Differences in the Use of Procedural Rules
The Role of Administrative Procedure Acts
Example—License Revocation by the State Medical Board
Civil Rule 12: Defenses and Objections
Variations in Versions of the Model APA
Important Points

CHAPTER TWO: EVALUATING COMPETING ADJUDICATION STRUCTURES: KNOW YOUR JUDGE AND UNDERSTAND THE ADJUDICATION STRUCTURE

The Absence of Judicial Independence
Judicialized vs. Institutional Agency Hearings
How Different Structures Impact Your Hearing
ALJ Independence and Fairness
The "Central Panel" Concept
Hearings Conducted By the Agency Itself
Important Points

CHAPTER THREE: PREPARING YOUR CLIENT AND THE ALJ FOR AGENCY FACT-FINDING

Recognize the Relevant Governmental Functions
Striking the Most Effective Litigation Stand
The Advantages of Discovery-Free Litigation
Anticipating Your Client's Concerns
Collateral Uses for Agency Fact-Finding
Limits on Constitutional Challenges at the Agency Level
Using the Administrative Hearing as Preparation for Trial
Preparing for Entitlement Hearings
The Art of the Inquisition
The Litigator's Role in an Inquisition
Collaborating with the Inquisitor
Practical Limitations in Entitlement Inquisitions
The Worst of Both Worlds: Enforcement Inquisitions
Important Points

CHAPTER FOUR: PUBLIC RECORDS REQUESTS, IN CAMERA REVIEWS, SUBPOENAS DUCES TECUM, AND OTHER ALTERNATIVES TO DISCOVERY

The Importance of Transparency—Sunshine—in Governmental Action
Transparency in Fact-Finding and Applying Facts to Law
Three Pillars of Transparency: Public Records, Open Meetings, and Judicial Enforcement
Accessing Evidence through Public Records Requests
The Prophylactic Value of a Well-Phrased Public Records Request
Agency Deliberations Before, During, and After the Hearing
Rulemaking's Interface with Agency Adjudication
Open Meeting Laws: Effective Use of Agency Agendas and Public Meetings
Agency Reviews of the ALJ's Report
Enforcement of Sunshine Laws
The Tactical Value of Administrative Subpoenas
Enforcement of Administrative Subpoenas
Important Points

CHAPTER FIVE: RECOGNIZING THE LIMITS OF EVIDENTIARY HEARINGS BEFORE GOVERNMENT AGENCIES

Your Client's Perception of Fairness in the Administrative Process
Due Process Theories Applied in Administrative Adjudication
Creating a Due Process Checklist—The Mathews v. Eldridge Standard
The Constitution's Cost-Benefit Approach to Due Process
Identify the Source of the Property or Liberty Interest
Appreciating and Explaining the Risk of Harm
Demonstrate the Efficacy of Your Proposed Alternative Process
Assess the Costs Associated with the Procedural Safeguard Being Sought
Important Points

CHAPTER SIX: BEST EVIDENTIARY PRACTICES FOR AGENCY LITIGATION

The ALJ's Duty to Marshal the Evidence and Create a Record
A Cautionary Tale—The Litigator's Duty to Create a Clear Record
Transcripts and Recordings
Preparing Evidence for Admission at the Hearing
Consider Seeking a Prehearing Evidentiary and Procedural Order
Using Motions in Limine
Official or Administrative Notice
The Residuum Rule and Over-Reliance on Administrative Notice and Hearsay
Scientific and Technical Evidence, and the ALJ as Gatekeeper
Important Points

CHAPTER SEVEN: COLLATERAL CHALLENGES AND THE END-RUN AROUND THE AGENCY

Theoretical Bases for Bypassing the Agency
Identify the Non-Administrative Issues
Declaratory Judgments
Calculate the Costs and Benefits of Bypassing the Agency
The First Great Writ: Mandamus
Prohibition
Procedendo
Habeas Corpus
Important Points

CHAPTER EIGHT: SETTLEMENT TOOLS: ALTERNATIVE DISPUTE RESOLUTION, AND THE THREAT OF A FEE AWARD

Understand the Culture of Professional Courtesies
Good-Faith Negotiations with the Agency
Control Over the Government's Litigators
Alternative Dispute Resolution
Assessing the Mediators and Arbitrators Used in Administrative Agency ADR
Reasons to Avoid ADR
Attorney Fee Awards as an Inducement to Settlement
The Impact of Agency Structure on Attorney Fee Provisions
Fees from Entitlements
Important Points

APPENDICES

Appendix A Federal Administrative Procedure Act
Appendix B Request for Prehearing Order
Appendix C Prehearing Order (where the agency has subpoena authority)
Appendix D Prehearing Order Alternative (no APA and no subpoena authority)
Appendix E Revised Model State Administrative Procedure Act - on CD only

INDEX