Federal Administrative Appeals

[Admin]

https://www.ecfr.gov/current/title-25/chapter-I/subchapter-A/part-2



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PART 2—APPEALS FROM ADMINISTRATIVE ACTIONS
Authority:

R.S. 463, 465; 5 U.S.C. 301, 25 U.S.C. 2, 9.
Source:

54 FR 6480, Feb. 10, 1989, unless otherwise noted.
§ 2.1 Information collection.

In accordance with Office of Management and Budget regulations in 5 CFR 1320.3(c), approval of information collections contained in this regulation is not required.


§ 2.2 Definitions.

Appeal means a written request for review of an action or the inaction of an official of the Bureau of Indian Affairs that is claimed to adversely affect the interested party making the request.

Appellant means any interested party who files an appeal under this part.

Interested party means any person whose interests could be adversely affected by a decision in an appeal.

Legal holiday means a Federal holiday as designated by the President or the Congress of the United States.

Notice of appeal means the written document sent to the official designated in this part, indicating that a decision is being appealed (see § 2.9).

Person includes any Indian or non-Indian individual, corporation, tribe or other organization.

Statement of reasons means a written document submitted by the appellant explaining why the decision being appealed is in error (see § 2.10).

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]


§ 2.3 Applicability.

(a) Except as provided in paragraph (b) of this section, this part applies to all appeals from decisions made by officials of the Bureau of Indian Affairs by persons who may be adversely affected by such decisions.

(b) This part does not apply if any other regulation or Federal statute provides a different administrative appeal procedure applicable to a specific type of decision.

§ 2.4 Officials who may decide appeals.

The following officials may decide appeals:

(a) An Area Director, if the subject of appeal is a decision by a person under the authority of that Area Director.

(b) An Area Education Programs Administrator, Agency Superintendent for Education, President of a Post-Secondary School, or the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs), if the appeal is from a decision by an Office of Indian Education Programs (OIEP) official under his/her jurisdiction.

(c) The Assistant Secretary—Indian Affairs pursuant to the provisions of § 2.20 of this part.

(d) A Deputy to the Assistant Secretary—Indian Affairs pursuant to the provisions of § 2.20(c) of this part.

(e) The Interior Board of Indian Appeals, pursuant to the provisions of 43 CFR part 4, subpart D, if the appeal is from a decision made by an Area Director or a Deputy to the Assistant Secretary—Indian Affairs other than the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs).


§ 2.5 Appeal bond.

(a) If a person believes that he/she may suffer a measurable and substantial financial loss as a direct result of the delay caused by an appeal, that person may request that the official before whom the appeal is pending require the posting of a reasonable bond by the appellant adequate to protect against that financial loss.

(b) A person requesting that a bond be posted bears the burden of proving the likelihood that he/she may suffer a measurable and substantial financial loss as a direct result of the delay caused by the appeal.

(c) In those cases in which the official before whom an appeal is pending determines that a bond is necessary to protect the financial interests of an Indian or Indian tribe, that official may require the posting of a bond on his/her own initiative.

(d) Where the official before whom an appeal is pending requires a bond to be posted or denies a request that a bond be posted, he/she shall give notice of his/her decision pursuant to § 2.7.

[Admin]

§ 2.6 Finality of decisions.

(a) No decision, which at the time of its rendition is subject to appeal to a superior authority in the Department, shall be considered final so as to constitute Departmental action subject to judicial review under 5 U.S.C. 704, unless when an appeal is filed, the official to whom the appeal is made determines that public safety, protection of trust resources, or other public exigency requires that the decision be made effective immediately.

(b) Decisions made by officials of the Bureau of Indian Affairs shall be effective when the time for filing a notice of appeal has expired and no notice of appeal has been filed.

(c) Decisions made by the Assistant Secretary—Indian Affairs shall be final for the Department and effective immediately unless the Assistant Secretary—Indian Affairs provides otherwise in the decision.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]
§ 2.7 Notice of administrative decision or action.

(a) The official making a decision shall give all interested parties known to the decisionmaker written notice of the decision by personal delivery or mail.

(b) Failure to give such notice shall not affect the validity of the decision or action but the time to file a notice of appeal regarding such a decision shall not begin to run until notice has been given in accordance with paragraph (c) of this section.

(c) All written decisions, except decisions which are final for the Department pursuant to § 2.6(c), shall include a statement that the decision may be appealed pursuant to this part, identify the official to whom it may be appealed and indicate the appeal procedures, including the 30-day time limit for filing a notice of appeal.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

 their expense.

[Admin]

§ 2.8 Appeal from inaction of official.

(a) A person or persons whose interests are adversely affected, or whose ability to protect such interests is impeded by the failure of an official to act on a request to the official, can make the official's inaction the subject of appeal, as follows:

(1) Request in writing that the official take the action originally asked of him/her;

(2) Describe the interest adversely affected by the official's inaction, including a description of the loss, impairment or impediment of such interest caused by the official's inaction;

(3) State that, unless the official involved either takes action on the merits of the written request within 10 days of receipt of such request by the official, or establishes a date by which action will be taken, an appeal shall be filed in accordance with this part.

(b) The official receiving a request as specified in paragraph
(a) of this section must either make a decision on the merits of the initial request within 10 days from receipt of the request for a decision or establish a reasonable later date by which the decision shall be made, not to exceed 60 days from the date of request.

If an official establishes a date by which a requested decision shall be made, this date shall be the date by which failure to make a decision shall be appealable under this part.

If the official, within the 10-day period specified in paragraph (a) of this section, neither makes a decision on the merits of the initial request nor establishes a later date by which a decision shall be made, the official's inaction shall be appealable to the next official in the process established in this part.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

[Admin]

§ 2.9 Notice of an appeal.

(a) An appellant must file a written notice of appeal in the office of the official whose decision is being appealed. The appellant must also send a copy of the notice of appeal to the official who will decide the appeal and to all known interested parties. The notice of appeal must be filed in the office of the official whose decision is being appealed within 30 days of receipt by the appellant of the notice of administrative action described in § 2.7.

A notice of appeal that is filed by mail is considered filed on the date that it is postmarked.

The burden of proof of timely filing is on the appellant.

No extension of time shall be granted for filing a notice of appeal.

/// However if the Appellant does not receive the complete record upon which to appeal,
he/she needs to file a motion explaining that ans requesting an Extension till receives the record. ////

Notices of appeal not filed in the specified time shall not be considered, and the decision involved shall be considered final for the Department and effective in accordance with § 2.6(b).

(b) When the appellant is an Indian or Indian tribe not represented by counsel, the official who issued the decision appealed shall, upon request of the appellant, render such assistance as is appropriate in the preparation of the appeal.

(c) The notice of appeal shall:

(1) Include name, address, and phone number of appellant.

(2) Be clearly labeled or titled with the words "NOTICE OF APPEAL."

(3) Have on the face of any envelope in which the notice is mailed or delivered, in addition to the address, the clearly visible words "NOTICE OF APPEAL."

(4) Contain a statement of the decision being appealed that is sufficient to permit identification of the decision.

(5) If possible, attach either a copy of the notice of the administrative decision received under § 2.7, or when an official has failed to make a decision or take any action, attach a copy of the appellant's request for a decision or action under § 2.8 with a written statement that the official failed to make a decision or take any action or to establish a date by which a decision would be made upon the request.

(6) Certify that copies of the notice of appeal have been served on interested parties, as prescribed in § 2.12(a).

[Admin]

§ 2.10 Statement of reasons.

(a) A statement of reasons shall be filed by the appellant in every appeal, and shall be accompanied by or otherwise incorporate all supporting documents.

(b) The statement of reasons may be included in or filed with the notice of appeal.

(c) If the statement of reasons is not filed with the notice of appeal, the appellant shall file a separate statement of reasons in the office of the official whose decision is being appealed within 30 days after the notice of appeal was filed in that office.

(d) The statement of reasons whether filed with the notice of appeal or filed separately should:

(1) Be clearly labeled "STATEMENT OF REASONS".

(2) Have on the face of any envelope in which the statement of reasons is mailed or delivered, in addition to the address, the clearly visible words "STATEMENT OF REASONS".

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

[Admin]

§ 2.11 Answer of interested party.

(a) Any interested party wishing to participate in an appeal proceeding should file a written answer responding to the appellant's notice of appeal and statement of reasons.

An answer should describe the party's interest.

(b) An answer shall state the party's position or response to the appeal in any manner the party deems appropriate and may be accompanied by or otherwise incorporate supporting documents.

(c) An answer must be filed within 30 days after receipt of the statement of reasons by the person filing an answer.

(d) An answer and any supporting documents shall be filed in the office of the official before whom the appeal is pending as specified in § 2.13.

(e) An answer should:

(1) Be clearly labelled or titled with the words "ANSWER OF INTERESTED PARTY."

(2) Have on the face of any envelope in which the answer is mailed or delivered, in addition to the address, the clearly visible words "ANSWER OF INTERESTED PARTY," and

(3) Contain a statement of the decision being appealed that is sufficient to permit identification of the decision.

[Admin]

§ 2.12 Service of appeal documents.

(a) Persons filing documents in an appeal must serve copies of those documents on all other interested parties known to the person making the filing. A person serving a document either by mail or personal delivery must, at the time of filing the document, also file a written statement certifying service on each interested party, showing the document involved, the name and address of the party served, and the date of service.

(b) If an appeal is filed with the Interior Board of Indian Appeals, a copy of the notice of appeal shall also be sent to the Assistant Secretary—Indian Affairs. The notice of appeal sent to the Interior Board of Indian Appeals shall certify that a copy has been sent to the Assistant Secretary—Indian Affairs.

(c) If the appellant is an Indian or Indian tribe not represented by counsel, the official with whom the appeal is filed (i.e., official making the decision being appealed) shall, in the manner prescribed in this section, personally or by mail serve a copy of all appeal documents on the official who will decide the appeal and on each interested party known to the official making such service.

(d) Service of any document under this part shall be by personal delivery or by mail to the record address as specified in § 2.14. Service on a tribe shall be to the principal or designated tribal official or to the governing body.

(e) In all cases where a party is represented by an attorney in an appeal, service of any document on the attorney is service on the party represented. Where a party is represented by more than one attorney, service on any one attorney is sufficient. The certificate of service on an attorney shall include the name of the party whom the attorney represents and indicate that service was made on the attorney representing that party.

(f) When an official deciding an appeal determines that there has not been service of a document affecting a person's interest, the official shall either serve the document on the person or direct the appropriate legal counsel to serve the document on the person and allow the person an opportunity to respond.

[54 FR 6480, Feb. 10, 1989; 54 FR 7666, Feb. 22, 1989]

[Admin]

§ 2.13 Filing documents.

(a) An appeal document is properly filed with an official of the Bureau of Indian Affairs:

(1) By personal delivery during regular business hours to the person designated to receive mail in the immediate office of the official, or

(2) By mail to the facility officially designated for receipt of mail addressed to the official; the document is considered filed by mail on the date that it is postmarked.

(b) Bureau of Indian Affairs offices receiving a misdirected appeal document shall forward the document to the proper office promptly. If a person delivers an appeal document to the wrong office or mails an appeal document to an incorrect address, no extension of time should be allowed because of the time necessary for a Bureau office to redirect the document to the correct address.

(c) Notwithstanding any other provision of this section, an official deciding an appeal shall allow late filing of a misdirected document, including a notice of appeal, where the official finds that the misdirection is the fault of the government.

§ 2.14 Record address.

(a) Every interested party who files a document in connection with an appeal shall, when he/she files the document, also indicate his/her address. Thereafter, any change of address shall be promptly reported to the official with whom the previous address was filed. The most current address on file under this subsection shall be deemed the proper address for all purposes under this part.

(b) The successors in interest of a party shall also promptly inform the official specified in paragraph (a) of this section of their interest in the appeal and their address.

(c) An appellant or interested party failing to file an address or change of address as specified in this section may not object to lack of notice or service attributable to his/her failure to indicate a new address.

§ 2.15 Computation of time.

In computing any period of time prescribed or allowed in this part, calendar days shall be used.

Computation shall not include the day on which a decision being appealed was made, service or notice was received, a document was filed, or other event occurred causing time to begin to run.

Computation shall include the last day of the period, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

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§ 2.16 Extensions of time.

An official to whom an appeal is made may, upon a showing of good cause by a party and with notice to all other parties, extend the period for filing or serving any document; provided, however, that no extension will be granted for filing a notice of appeal under § 2.9 of this part or serve by itself to extend any period specified by law or regulation other than in this part.

[Admin]

§ 2.17 Summary dismissal.

(a) An appeal under this part will be dismissed if the notice of appeal is not filed within the time specified in § 2.9(a).

(b) An appeal under this part may be subject to summary dismissal for the following causes:

(1) If after the appellant is given an opportunity to amend them, the appeal documents do not state the reasons why the appellant believes the decision being appealed is in error, or the reasons for the appeal are not otherwise evident in the documents, or

(2) If the appellant has been required to post a bond and fails to do so.

[Admin]

§ 2.18 Consolidation of appeals.

Separate proceedings pending before one official under this part and involving common questions of law or fact may be consolidated by the official conducting such proceedings, pursuant to a motion by any party or on the initiative of the official.

§ 2.19 Action by Area Directors and Education Programs officials on appeal.

(a) Area Directors, Area Education Programs Administrators, Agency Superintendents for Education, Presidents of Post-Secondary Schools and the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs) shall render written decisions in all cases appealed to them within 60 days after all time for pleadings (including all extensions granted) has expired. The decision shall include a statement that the decision may be appealed pursuant to this part, identify the official to whom it may be appealed and indicate the appeal procedures, including the 30-day time limit for filing a notice of appeal.

(b) A copy of the decision shall be sent to the appellant and each known interested party by certified or registered mail, return receipt requested. Such receipts shall become a permanent part of the record.
§ 2.20 Action by the Assistant Secretary—Indian Affairs on appeal.

(a) When a decision is appealed to the Interior Board of Indian Appeals, a copy of the notice of appeal shall be sent to the Assistant Secretary—Indian Affairs.

(b) The notice of appeal sent to the Interior Board of Indian Appeals shall certify that a copy has been sent to the Assistant Secretary—Indian Affairs.

(c) In accordance with the provisions of § 4.332(b) of title 43 of the Code of Federal Regulations, a notice of appeal to the Board of Indian Appeals shall not be effective until 20 days after receipt by the Board, during which time the Assistant Secretary—Indian Affairs shall have authority to decide to:

(1) Issue a decision in the appeal, or

(2) Assign responsibility to issue a decision in the appeal to a Deputy to the Assistant Secretary—Indian Affairs.

The Assistant Secretary—Indian Affairs will not consider petitions to exercise this authority. If the Assistant Secretary—Indian Affairs decides to issue a decision in the appeal or to assign responsibility to issue a decision in the appeal to a Deputy to the Assistant Secretary—Indian Affairs, he/she shall notify the Board of Indian Appeals, the deciding official, the appellant, and interested parties within 15 days of his/her receipt of a copy of the notice of appeal. Upon receipt of such notification, the Board of Indian Appeals shall transfer the appeal to the Assistant Secretary—Indian Affairs. The decision shall be signed by the Assistant Secretary—Indian Affairs or a Deputy to the Assistant Secretary—Indian Affairs within 60 days after all time for pleadings (including all extensions granted) has expired. If the decision is signed by the Assistant Secretary—Indian Affairs, it shall be final for the Department and effective immediately unless the Assistant Secretary—Indian Affairs provides otherwise in the decision. Except as otherwise provided in § 2.20(g), if the decision is signed by a Deputy to the Assistant Secretary—Indian Affairs, it may be appealed to the Board of Indian Appeals pursuant to the provisions of 43 CFR part 4, subpart D.

(d) A copy of the decision shall be sent to the appellant and each known interested party by certified or registered mail, return receipt requested. Such receipts shall become a permanent part of the record.

(e) If the Assistant Secretary—Indian Affairs or the Deputy to the Assistant Secretary—Indian Affairs to whom the authority to issue a decision has been assigned pursuant to § 2.20(c) does not make a decision within 60 days after all time for pleadings (including all extensions granted) has expired, any party may move the Board of Indian Appeals to assume jurisdiction subject to 43 CFR 4.337(b). A motion for Board decision under this section shall invest the Board with jurisdiction as of the date the motion is received by the Board.

(f) When the Board of Indian Appeals, in accordance with 43 CFR 4.337(b), refers an appeal containing one or more discretionary issues to the Assistant Secretary—Indian Affairs for further consideration, the Assistant Secretary—Indian Affairs shall take action on the appeal consistent with the procedures in this section.

(g) The Assistant Secretary—Indian Affairs shall render a written decision in an appeal from a decision of the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs) within 60 days after all time for pleadings (including all extensions granted) has expired. A copy of the decision shall be sent to the appellant and each known interested party by certified or registered mail, return receipt requested. Such receipts shall become a permanent part of the record. The decision shall be final for the Department and effective immediately unless the Assistant Secretary—Indian Affairs provides otherwise in the decision.

[Admin]

§ 2.21 Scope of review.

(a) When a decision has been appealed, any information available to the reviewing official may be used in reaching a decision whether part of the record or not.


/// How can they consider what is not on the record? ///

(b) When the official deciding an appeal believes it appropriate to consider documents or information not contained in the record on appeal, the official shall notify all interested parties of the information and they shall be given not less than 10 days to comment on the information before the appeal is decided.

The deciding official shall include in the record copies of documents or a description of the information used in arriving at the decision.

Except where disclosure of the actual documents used may be prohibited by law, copies of the information shall be made available to the parties upon request and at their expense.

[Admin]

https://mitchellhamline.edu/minnesota-administrative-procedure/chapter-14-the-agency-decision/

    Minnesota Administrative Procedure



Download a PDF of Chapter 14

Chapter Contents

  14.1 Exceptions to the Administrative Law Judges's Reports and Argument to the Agency Before Final Decision
    14.2 Agency Review of the Record Before Decision
    14.3 The Agency Decision
    14.4 Rehearing and Reconsideration
    Footnotes

14.1 Exceptions to the Administrative Law Judges's Reports and Argument to the Agency Before Final Decision

The Administrative Procedure Act (APA) provides that all parties adversely affected by a report of an administrative law judge (ALJ) may "file exceptions and present argument to a majority of the officials who are to render the decision."[1]

The agency cannot make its final decision until the ALJ's report has been made available to the parties for ten days and an opportunity to file exceptions and to present argument has been afforded the parties.[2]

An agency's failure to respond to a request for an opportunity to file exceptions and present argument may violate due process.[3]

Individual agencies' procedural rules and statutes may contain additional procedures and requirements for filing exceptions and presenting argument.[4]

The APA does not specify that oral argument to the decision makers is required.

Since courts, particularly appellate courts, often decide cases without oral argument, it must be assumed that no oral argument is constitutionally required.

Either written or oral argument satisfies due process.[5]

The contested case rules of individual agencies may provide for oral argument,[6] or the agency may exercise its discretion to allow oral argument in particular cases.

Failure by agency staff to file exceptions to the recommended decision of the ALJ does not prevent the agency from issuing findings different than those contained in the recommended decision.[7]

A party's failure to object to an ALJ's discovery ruling in exceptions does not preclude that party from raising the discovery issue on judicial review.[8]


14.2 Agency Review of the Record Before Decision

When the ALJ issues his or her recommended decision,[9] the ALJ certifies the official record to the agency.[10]

Upon receipt of the record, the agency conducts its own quasi-judicial determination of the contested case.

In reaching its decision, the agency must rely solely on the record.

Both statute[11] and due process[12] require that the agency decisionmaker consider only factual information or evidence that is part of the record.

Consistent with this requirement, decisionmakers may not decide cases on the basis of information acquired from ex parte contacts.

Due process, in particular, generally forbids such contacts as inconsistent with the fundamental premises inherent in our concept of adversary hearings.[13]

Ex parte contacts with an agency decision maker may be regarded as fraud on the agency.[14]

But not all such contacts result in a due process violation.[15]

The issue is whether the contact has created a risk of actual bias.[16]

An ex parte contact has been found to not violate due process where those objecting to the contact had the opportunity to confront, cross-examine, or argue concerning the information received by the adjudicator in the contact.[17]

 A clandestine ex parte contact not made part of the record would afford the objector no such opportunity.[18]

The agency can take notice of facts of which judicial notice could be taken and also of general, technical, and scientific facts within its specialized knowledge, provided that before or during the hearing, parties have been given notice and an opportunity to contest any such facts.[19]

In evaluating the evidence in the record, however, the agency may utilize its experience, technical competence, and specialized knowledge.[20]


The Administrative Procedure Act (APA) governs the process by which federal agencies develop and issue regulations.

It includes requirements for publishing notices of proposed and final rulemaking in the Federal Register, and provides opportunities for the public to comment on notices of proposed rulemaking.

exception

n. 1) a formal objection during trial ("We take exception, or simply, "exception")" to the ruling of a judge on any matter, including rulings on objections to evidence, to show to a higher court that the lawyer did not agree with the ruling.

In modern practice, it is not necessary "to take exception" to a judge's adverse ruling, since it is now assumed that the attorney against whom the ruling is made objects.

This also keeps the transcribed record from being cluttered with shouts of "exception."

2) in contracts, statutes or deeds, a statement that some matter is not included.
14 CFR § 302.217 - Exceptions to administrative law judge's initial or recommended decision.


§ 302.217 Exceptions to administrative law judge's initial or recommended decision.

(a) Within seven (7) days after service of any initial or recommended decision of an administrative law judge, any party may file exceptions to the decision with the DOT decisionmaker.

(b) If timely and adequate exceptions are filed, review of the initial or recommended decision is automatic.

(c) In all other respects, the provisions of § 302.34 shall apply.

[Admin]

The ALJ's report is not ordinarily binding on the agency.[21] It is, however, entitled to some credence. Determinations of the credibility of witnesses by the ALJ are, for example, entitled to some weight.[22] On the other hand, inferences and conclusions drawn from the facts by the ALJ may be given less weight.[23] Moreover, it is within the particular expertise of the agency to evaluate the weight to be given expert testimony.[24] An agency might, for example, focus on certain witnesses' testimony, and give one witness's testimony more weight.[25] In fact, the agency decision maker owes no deference to the agency's own expert witnesses.[26] While the ALJ's report is part of the record for the agency's consideration,[27] it is only one part of the record and is usually only a recommendation to the agency.[28] Agency officials render the final decision under the APA.[29] The agency must conduct its own review of the record and reach its own independent determination of all issues, whether legal or factual. It may not rubber-stamp the findings and conclusion of the ALJ.[30]

The agency may make its own findings differing from those of the ALJ as long as the agency's findings are supported by substantial evidence in the record. It is not restricted to reviewing the findings of the ALJ and changing them only when they are not supported by substantial evidence.[31] In addition, an agency is not bound to adopt stipulations of fact and may look to other evidence in the record.[32] An agency, however, may not base its decision on evidence outside the record even where that evidence was part of the record in a previous contested case.[33]

Since 2000, the APA has required an agency that rejects or modifies a finding of fact, conclusion, or recommendation of an ALJ to state the reasons for each rejection or modification.[34] Before this amendment, case law had encouraged an agency to state its reasons for changing an ALJ recommended decision. If the agency rejects an ALJ's recommendations, the "better practice" is for the agency to articulate its reasons for doing so.[35] An agency's rejection of an ALJ's findings, or its significant departure from them, without any comment or explanation suggests that the agency exercised its will rather than its judgment.[36]

What constitutes a review of the record by the agency adequate to ensure that the agency is deciding independently and is not rubber-stamping the report of the ALJ is determined on a case-by-case basis. A ten-hour review by an agency head of a voluminous record, in which the agency head (1) reviewed the entire transcript, reading verbatim the areas of testimony he felt were of substance or in dispute, (2) examined every exhibit, and (3) received a four- or five-hour briefing from his staff reviewing the evidence and the arguments of the parties, has been held sufficient.[37] Where two of three decision makers acting as a commission had read the entire record before the hearing examiner and the third had read one-half of the record and all had considered the written and oral objections of the parties before decision, the review of the record was sufficient.[38] And where all of the agency decision makers had heard oral arguments, read briefs and appendices and the recommended decision of the ALJ but only one member and the advising assistant attorney general had read the whole transcript, the review of the record was consistent with due process.[39]

An agency decision maker may consult agency staff in arriving at a decision.[40] Due process may, however, prevent the decision maker from consulting an agency staff member involved in the investigation of the case if, under the circumstances, the consultation would result in biasing the decision maker.[41] Statutes governing the health-related and non-health-related licensing boards prevent a board member consulted during an investigation from voting on the decision in the case but allow the member to participate at the hearing.[42] The Minnesota Court of Appeals has commented that review of the agency's draft order before issuance by the attorney who represented the agency in the hearing as an advocate is objectionable, as it creates an appearance of possible prejudice and a risk of biasing the agency.[43]

If the agency decision maker is a group of persons, such as a board or commission, the Minnesota open meeting law[44] may sometimes apply. The open meeting law does not, however, require that decision makers who have independently reviewed the record and deliberated individually have a collegial discussion.[45] The individuals need not orally discuss in public a decision on which they have reached independent judgments.[46]
14.3 The Agency Decision

The agency's final decision must be in writing.[47] The APA requires that it contain findings of fact and conclusions on all material issues.[48] Whether a particular fact is so material to the proceeding as to require a finding will likely be judged by whether a court could, without that finding, conduct a judicial review of the decision.[49] The agency should state with clarity and completeness the facts and conclusions essential to its decision so that the reviewing court can determine if the facts found justify the action taken by the agency.[50] For example, an agency's findings consisting of a reference to certain pages in the transcript would be insufficient.[51] There is no hard-and-fast APA or due process rule concerning how detailed and particular findings should be.[52] There is rather a "zone of propriety" between the extremes of mere conclusion and undue particularity.[53] Whether a particular set of findings are adequate will depend on whether they enable the court on review to ascertain the facts on which the agency made its decision.

The APA requires that the agency decision contain findings of fact and conclusions on all material issues[54] but does not require a memorandum, opinion, or other statement of the agency's rationale in reaching its decision, or that the reasons or basis for the order be otherwise specified.[55] Due process does not require that the decision be accompanied by a written memorandum discussing each of the objections parties may have raised during the proceeding.[56] Nor does due process require the agency to discuss the weight given any part of the evidence.[57] The agency is not required to discuss the mental processes by which it reached its conclusion.[58] If there are no formal findings of fact and conclusions, due process may, at least in some circumstances, require a statement of reasons for the determination and the evidence relied on.[59] This assures that the decision is based on the record.[60]

The APA specifies that if an agency does not modify or reject an ALJ's recommended decision within 90 days of the close of the record, then the ALJ's recommended decision becomes final.[61] The record closes upon the filing of exceptions to the ALJ report and the presentation of argument, or upon the expiration of the deadline for doing so.[62] Apart from the APA, the statutes relating to particular agencies may contain decision deadlines.[63]

[Admin]

The agency must serve a copy of the agency's decision and any order on each party and on the ALJ.[64] The agency order may include an award of costs against an unsuccessful contested case litigant in favor of the agency if authorized by statute.[65] Under a statute authorizing an agency to require a licensee to pay "all costs" of the proceeding, disbursements may be taxed against the licensee; attorney fees and investigation costs of the attorney general's office may not, however, be taxed.[66] Costs recoverable by a successful contested case litigant against the agency are provided by statute.[67] They may include filing fees, subpoena fees, mileage, transcript costs, court reporter fees, expert witness fees, photocopying fees, printing costs, postage, delivery costs, and service of process fees.[68]
14.4 Rehearing and Reconsideration

The APA provides that a party seeking rehearing or reconsideration must file the request within ten days of the agency's order.[69] The APA, however, does not confer a right to rehearing or reconsideration on any party to a contested case. The statutes or rules specific to a particular agency may contain such a right.[70] Specific agency statutes or rules might contain procedural requirements for rehearing and reconsideration that would supplement those found in the APA.[71] The Office of Administrative Hearings (OAH) rules provide that any notice of and order for rehearing must be served on all parties in the same manner prescribed for the original notice and order for hearing.[72] They also provide that the rehearing must be conducted in the same manner as the original hearing.[73]

Although the APA provides no right to a rehearing, and accordingly agencies are not required to entertain requests for rehearing, agencies may exercise their discretion to do so.[74] Where through fraud, mistake, or misconception of facts, an agency enters an order, it may, with notice to the parties, correct its order.[75] An agency has the inherent authority to correct its prior decisions.[76] An agency may also reopen its own proceeding on the ground of an implied authority to deal with fraud on the agency resulting from ex parte contacts with agency decision makers.[77] An agency may exercise its discretion to reconsider a matter on the ground of newly discovered evidence.[78] Rejecting an application for rehearing on such ground will not, however, constitute an abuse of discretion where the proffered evidence is merely cumulative of that already in the record and was in existence at the time of the hearing.[79] The authority of an agency to rehear or reconsider lasts until its jurisdiction is lost on the filing of an appeal from its decision.[80] A rehearing may in some circumstances be summary and not include the taking of additional evidence.[81]

The APA provides that an application for rehearing or reconsideration is not a prerequisite to judicial review of a contested case.[82] The Court of Appeals has ruled that it could consider issues not addressed by an unemployment law judge in the initial decision but raised and addressed for the first time on a motion for reconsideration.[83]