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Administrative Agency Litigation

Administrative Agency Litigation

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.


Availability: In Stock
Publisher :NITA
Format: Softbound, 200 pgs. , BOOK

ISBN: 9781601561442

2011
 
$65.00
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    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.

    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

     

    Christopher B. McNeil, JD, PhD


    Christopher B. McNeil has a Juris Doctorate from Kansas University (1981) and a PhD in Judicial Studies from the University of Nevada - Reno (2008). He is the first executive-branch adjudicator in the nation to hold this distinction. He has written extensively in the area of due process and fairness in agency hearings, and has taught administrative law and legal reasoning and writing at Capital University Law School and the Ohio State University Moritz School of Law. He has served as a deputy public defender (in Junction City, Kansas), and an assistant Ohio Attorney General (in Columbus, Ohio). He has been an administrative hearing examiner for state licensing agencies in Ohio, and is currently serving as a federal administrative law judge. Chris is a Senior Fulbright Specialist in administrative law, a member of the faculty of the National Judicial College, and the past chair of the Ohio State Bar Association's Administrative Law Section, as well as a past member of the board of governors of the National Association of Administrative Law Judges.

     

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