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Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. __ (forthcoming), available at SSRN.

A couple years ago, Melissa Wasserman and I charted the new and old worlds of formal agency adjudication. The old world, we explained, consisted of the traditional formal adjudication framework under the Administrative Procedure Act (APA), with a trial-like hearing before an administrative law judge (ALJ). Drawing on the work of Michael Asimow, Kent Barnett, and others, we explained that the new world is more diverse and varied. Hearings do not take place just before the nearly 2,000 ALJs in the federal system, but also before more than 10,000 administrative judges, hearing officers, and examiners who are not governed by the APA’s formal provisions. We argued that, in both the old and new world, agency head final-decisionmaking authority remains the standard (and preferred) model—something the Supreme Court in United States v. Arthrex seemed to suggest may be constitutionally required earlier this year.

Another way to conceptualize the old and new worlds is that there is a type—or mode—of agency adjudication (Type B) between the APA’s “formal” (Type A) and “informal” (Type C) modes. In recent years, much scholarly inquiry has focused on the distinctions between Type A and Type B, including an entire issue of the Duke Law Journal. Despite this sustained attention, it turns out that our understanding of adjudication under the APA may be based on a historical misunderstanding. In The Rediscovered Stages of Agency Adjudication, Emily Bremer examines the historical record and concludes that, at the APA’s founding, “informal and formal adjudication were not viewed as alternative modes, but rather as consecutive stages.” It is not often that an article requires a field to fundamentally reconsider its foundations. Yet, Bremer’s Rediscovered Stages is such an article for administrative law (and agency adjudication in particular).

There is so much to like (lots) about this article. I’ll focus on four highlights in this Jot.

First, after Part I provides a helpful blackletter statement of the current understanding of federal agency adjudication, Part II conducts an exhaustive historical examination of the APA’s founding documents. Many have previously examined the Attorney General’s final report to Congress (as well as the ABA’s work) that influenced the passage of the APA. But few, if any, have examined in detail the 27 subject-matter/agency-specific monographs the Attorney General’s Committee staff (chaired by Walter Gellhorn and including Kenneth Culp Davis, among others) compiled to support the final report. Based on numerous interviews, site visits, and public and less-public sources, these monographs document the pre-APA administrative statutes, regulations, procedures, and practices at numerous independent and executive agencies.

Bremer’s major finding—that the formal-informal distinction for agency adjudication eventually codified by the APA is a matter of stages, not modes of agency action—can actually be found in the introduction (P. 5) to the Attorney General’s final report:

Administrative adjudication has two more or less distinct phases. The first…is the phase which we have called “informal adjudication,” where, in place of formal hearings, decisions are made after inspections, conferences, and negotiations. In most agencies, there is opportunity for these informal methods of considering issues which arise, and in all but a surprisingly small percentage of cases, these methods finally dispose of the matters at hand…

If informal methods do not succeed in ending a matter, or if they have not been utilized at all, the second phase, which we have called “formal adjudication” is reached. This phase is marked by hearings in which testimony is taken, subject to cross-examination, and embodied into a record. These relatively formal hearings are available in all but a handful of situations where special circumstances prevail. When formal hearings are held, the record is normally considered by officers of the agency and, after opportunity for oral argument before them, the agency heads themselves.

It is somewhat shocking that Bremer’s discovery was hiding in plain sight. But it is a field-shifting discovery nonetheless. And more importantly, Bremer documents how this informal/formal-stages framework is evident throughout the 27 monographs she reviewed. Part II exhaustively surveys the entrenched staged adjudication systems that predated the APA at federal agencies. It also confronts the potential exceptions to the staged framework. As she concludes in Part II.C, “What may appear at first to be deviations from the staged structure of adjudication are better understood as nuances that prove the overarching concept.”

Second, Bremer’s historical review does not just uncover the staged (as opposed to modal) framework for agency adjudication; it also sheds light on the contours of the hearing stage. In Part II.D, she documents how the Attorney General’s Committee found an overwhelmingly singular hearing model that predated the APA. Bremer identifies six key features of that model: (1) notice of hearing; (2) detailed powers of trial examiner; (3) detailed procedures for hearing; (4) hearing conducted on the record; (5) written decision; and (6) post-decisions procedures (noting more inter-agency variation on this sixth component). If these features sound familiar, that’s because they track the APA’s formal adjudication procedures.

Third, Bremer’s findings have important implications for administrative law, which she begins to explore in Parts III and IV. Most importantly, Bremer’s unearthing of the APA’s staged adjudication model underscores that the default for agency adjudication should include a formal, on-the-record hearing for aggrieved parties. Put differently, Congress’s failure to include detailed procedural protections for informal adjudication in the APA was not to write a blank check for agencies to adjudicate without a hearing or other procedural protections. The formal, on-the-record hearing was supposed to be the procedural backstop if a regulated entity was not satisfied with the outcome of the informal adjudication.

Congress can of course depart from this APA default in an agency’s governing statute. But if the APA’s staged default were fully appreciated, how sticky would it be in the legislative process? For instance, as Jennifer Koh has explored, the vast majority of noncitizens removed from the United States each year never get a hearing before an immigration judge. Instead, they are removed in the “shadows of immigration court,” through informal adjudications at the border and elsewhere. To be sure, this is by congressional design. But consider what Congress would have done if it had understood that the default required a second-stage formal hearing—if, as the Attorney General’s final report underscores, a formal hearing should be “available in all but a handful of situations where special circumstances prevail.”

Would Congress have so easily embraced a shadow removals process? Would it have narrowed the subset of noncitizens who could be subject to these shadow removals? Would it have considered enacting additional procedural safeguards short of a formal, on-the-record hearing? As Bremer observes, “What administrative law has lost over the decades is not the operational reality of adjudicatory stages, but rather the conscious recognition of those stages as an important element of the APA’s statutory design.”

Finally, although not fully developed in this article (which is already 74 pages long!), Bremer suggests that rediscovering the staged framework may help us better appreciate the executive-judicial divide in agency adjudication. As illustrated in Figure 2 in Part IV, the informal adjudication stage would be reconceived as executive action, with the formal stage continuing to be perceived as quasi-judicial. As reconceptualized, it is much easier to understand why the APA’s formal adjudication provisions normatively should govern any agency adjudication where a hearing is required by statute or regulation (so Type A and Type B). The much-less-formal, first-stage agency adjudications, by contrast, do not require all that quasi-judicial process, as they are purely executive in nature and, in any event, eventually would be subject to the formal adjudication stage for aggrieved parties.

Much more could be said about this landmark article. Indeed, Bremer’s article itself only begins the conversation regarding the implications of her findings. I look forward to reading the subsequent scholarship by Bremer and others on what this unearthing of the lost world of agency adjudication means for the future of administrative law and regulatory practice.

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Cite as: Christopher Walker, Unearthing the Lost World of APA Adjudication, JOTWELL (August 30, 2021) (reviewing Emily S. Bremer, The Rediscovered Stages of Agency Adjudication, 99 Wash. U. L. Rev. __ (forthcoming), available at SSRN), https://adlaw.jotwell.com/unearthing-the-lost-world-of-apa-adjudication/.