Professional Documents
Culture Documents
Branches of US Gov’t – (1) Executive (includes admin tribunals), (2) Legislative (adopts laws), Judicial (the court)
Functions of an Agency – All functions are combined. An agency can have 3 functions (E, L, J), but there has to be a separation of
the 3 functions
Anatomy of the Written Decision – (1) Preliminaries (time, place of hearing, jurisdiction, etc.), (2) Findings of Fact, (3) Conclusions
of Law, (4) The Order, (5) Advisement of Appeal Rights
Agencies have been described as the “headless” fourth branch. Because they do not fit neatly in the scheme of Separation of Powers
Agencies are created to implement specific legislative purposes. As such, Agencies have a combination of functions
EXECUTIVE – Enforcement
LEGISLATIVE – Rulemaking
JUDICIAL – Adjudications
To do these functions, the agency must interpret any vague or imprecise language to:
Identify scope of its authority
Determine the exact meaning to be given to the imprecise language
Identify the specific legislative goals to be achieved
Identify the exact methods it is authorized to use to achieve the desired results
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Delegation
Admin agency has power to determine individual rights and responsibilities by deciding specific cases, the agency exercise a
portion of power of the judicial branch
Agency decisions are final and binding on the parties over whom the agency has jurisdiction unless set aside by a reviewing
court
Judicial review of agency decisions is generally limited in scope
De novo review is almost unheard of because it would undermine the entire administrative agency concept
You can have higher standards, but cannot have lower standards
APA sets a minimum – cannot have something lesser than the APA
***Exhaustion - Must exhaust all remedies before you go to court – unless agency has done something egregious.
2 principal applications of exhaustion doctrine:
1. A plaintiff may not forego the administrative procedure and file suit directly
2. Any claims or issues not presented in prior administrative proceedings may not be raised on judicial review
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Is the line of causation too attenuated
Is the prospect of obtaining relief as a result of a favorable ruling too speculative
Checklist of Reasons Supporting Judicial Intervention when there is a Failure to Adopt Rules
Failure to adopt rules is an abuse of discretion
Agency’s organic legislation requires rules
APA requires rules
CL or equitable consideration require rules
Substantive Rules
Opportunity for public participation is important because the substantive rules will have the force of law. They will contain
precise standards and criteria for compliance by those in the regulated community
To do this, agency must follow rulemaking procedures laid out in the APA
For Substantive Rule to have force of law, it must be:
Within authority of agency under its organic legislation
Promulgated according to procedures specified in the agency’s organic act or APA, and
Must not violate a superior source of law, (state or federal constitution)
If the rule meets these tests, one who violates it is in the same position as one who violated a statute enacted by the legislature
Interpretative Rule – agency’s statement of position You need to have a strong position to go against an interpretative rule
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Organic Legislation – original legislative statute of agency Ex. FBI – to enforce the laws
Judicial Review Unavailable When Agency Action Committed to Agency Discretion – 5 USC Sec 701a
Citizens of Overland Park v. Volpie
No law standard
Sec. of Transportation approved the construction of a highway that ran through a public park
Statute provided guidelines for Sec. discretion, unless there are standards for the exercise of discretion.
No feasible and prudent alternative and the program included all possible planning to minimize harm to the park. 2 standards
for the Secretary’s discretion.
Had standards – here is the evidence presented. There were other alternatives. Statute provided guidelines
SC ruled – actions committed to agency discretion was a “very narrow exception” applicable only when “there is no law to
apply.”
Judicial Review – short circuiting the exhaustion doctrine. When courts will intervene before exhaustion has been applied.
Londoner v. Denver – Due process required that the Bi-Metallic Inv. Co. v. State Bd. Of Equalization – Court
landowner must have had an opportunity to be heard. The concluded landowner given all the process that was due.
mere submission of objections and complaints did not satisfy Court noted the change adopted applied to every landowner in
due process the city. Property owners “all stand alike”
RULEMAKING
Advantages to Rulemaking
Consistency
Subjects agency to greater public scrutiny
Promotes equal treatment of all parties
Better assures a proper way of decisional criteria
Facilitates judicial review – court can review rule more easily
Compliance with the APA is required where an agency's interpretation of law established agency policy and procedure
Where APA requirements were not met the rule was not enforceable
Notice of Rulemaking
Must contain:
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Statement of time, place and nature of public rulemaking proceedings
Reference to legal authority under which the rule is proposed
Either the terms or substance of the proposed rule or description of the subjects and issues involved
The Courts will stand on their heads to try to review an agency’s decision
Skidmore Deference
Doctrine of “cautious deference” to agency interpretations of statutes
Chevron Deference
Deference to “any reasonable interpretations” of ambiguous statutory provisions
Court may not substitute own construction of a statutory provision for a reasonable interpretation
When Congress has not addressed a disputed issue of interpretation, the courts must presume that Congress has delegated
interpretative authority to the agency
Chevron deference does not apply to an administrative agency’s opinion letter interpreting a regulation of the agency
Negotiated Rulemaking
An agency may establish a Negotiated Rulemaking Committee (NRC) to negotiate and develop a proposed rule if the agency head
determines that its use is in the public interest
Determination is based on
Need for a rule
There are a limited number of interests involved that will be significantly affected by the rule
It is likely that the committee will reach a consensus within a fixed period of time
Procedure will not unduly delay the formal rulemaking process
Agency has adequate resources to support the effort and will commit them to the NRC
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Agency will to the “maximum extent possible” consistent with legal obligations use the committee consensus as the basis for
the rule ultimately proposed
Basics of Administrative Adjudication
Agency created (organic act) by Congress or state legislature [to regulate or administer benefits]
Agency enforces statute – promulgates substantive rules if it has statutory authority to do so; without a hearing, it can
promulgate interpretative rules
Issues involving violation of agency statute or substantive rule arises
Agency investigates
Agency gives notice of proposed action
Violator or benefit recipient does not agree and requests hearing
Violator or benefit recipient requests mediation – agency agrees
Mediation unsuccessful – agency causes formal complaint to issue and a formal hearing is set, or benefit recipient requests
formal hearing
Formal evidentiary hearing occurs
ALJ issues initial decision or full findings (workers comp)
Losing party files exceptions to agency or appeal to executive branch agency appellate body
Agency does not act in 30 days – ALJ decision becomes final agency action (FAA) or agency issues FAA modifying ALJ
initial decision
Dissatisfied party seeks timely judicial review in the judicial branch, having exhausted administrative remedies
Attempting to convince agency personnel that they meet requirements of legislation identifying those to be benefitted
Nature of adjudication process will be determined by
o Language of agency legislation
o Provisions of APA
o Relevant agency rules
If rejected - reconsideration at a higher lever
Citizen files a complaint -->Goes to DORA-->If case is slam dunk, non-controversial case-->DORA has process called ESP
(expedited settlement process)-->ESP has to be offered by DORA--> if not goes to licensing board-->Meets once a month and
considers complaints--> Can dismiss, agree to mediate, require AG to file formal complaint with OAC (Office of Administrative
Courts)--> Judge assigned and hearing set-->Issue an initial decision
If either side does not like initial decision can file appeal
Sovereign cannot sue the sovereign - one state agency cannot sue another.
Final Agency Action - judicial review goes to the district court. All licensing boards, worker's comp, all go to court of appeals as a
matter or right.
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Due Process Analysis Factors - Consider all factors when analyzing whether or not due process rights have been infringed upon
Deprivation
o Immediate, threatened, direct, indirect
Property
o Entitlement, expectation, sources
Liberty
o Stigma, good name, honor, integrity, opportunities foreclosed
Process
o Hearing, timing, scope, lawsuit
Standing/Justiciability
Injury (harm) must be specific and concrete
Injury must be personal (private) interest of complainant
Causation – injury must be proximately caused by conduct of offender
Redressability – relief must be likely to remedy injury
Interest must be different from those shared with general public (injury must be personal to be a justiciable matter)
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Award attorney fees for discovery abuse as provided by CRCP Rule 37
Once an agency refers a case to the central panel, as a practical matter, it can only take the case back to dismiss it or otherwise settle
with the Respondent-Licensee because the agency becomes a party opposing the Respondent after referral to the central panel. Also,
the agency would be violating the separation of investigative, prosecutorial and adjudication functions.
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Fourth Amendment still applies
Licensees ordinarily consent to reasonable inspection of their licensed facilities as a condition of licensure
Conditions of licensure must be reasonable
Immediate threat to public health, safety and welfare will allow immediate action
Licensees consent to reasonable inspection
You agree to certain things if you are licensed
The Accountancy Board - Privilege
Held - the Board's investigatory power does not create an exception to the accountant client privilege created in 13-90-107
[husband-wife, attorney-client, clergy member, physician-patient]
The Board must obtain client consent for disclosure of any information otherwise privileged
If Organic Act permits, agencies have the authority to compel reports, records and inspections in regulatory cases
Inspections and searched must be reasonable under the 4th amendment
Administrative inspections and searches are 4th Amendment searches
There are 3 exceptions to warrant requirements
1. Consent
2. Exigent circumstances (emergency)
3. Open to public access (in plain view)
2 Models in DORA for boards and commissions
Board Model
Director Model
Professional Licenses - Issuance, Suspension or Revocation Renewal
Notice has to be in writing and specific
Has to state objective facts
Opportunity to cure - except in case of deliberate and willful violation or of substantial danger to public health and safety, the
licensee must be given a reasonable opportunity to comply with all lawful requirements
Summary Suspension - potect the public - summarily suspend the license pending formal proceedings which shall be
promptly instituted and determined
License Renewal
Amended APA to provide that if an application for renewal is denied, it shall be treated in all respects as a denial and within
60 days the license may request a hearing before the agency. The State has argued that the burden of proof is then upon the
applicant for renewal
Medical Board - physicians have a lot invested. They are high stakes.
Unprofessional Conduct/Physicians
Fraud in seeking license
Aiding and abetting in procuring a criminal abortion
Conviction of an offense of moral turpitude (petty theft, case by case basis)
Administering controlled substances other than in the course of professional care
Conviction of violation of laws relating to controlled substances
Habitual intemperance
Aiding and abetting the unauthorized practice of medicine
Engaging in sexual act with patient during the course of care
Dispensing, injecting anabolic steroids for hormonal manipulation
Committing a fraudulent insurance act
Any act or omission that fails to meet generally accepted standards of medical practice (Biggie)
Burden of Proof
Licensing Agencies
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o Applicant for licensure has the burden of proving qualifications
o Agency may administratively revoke, subject to licensee’s request for a hearing
o Agency has the burden of proving misconduct of licensee
Benefits Program
o Applicant has the burden of proving qualification for benefits
o Agency must five notice of termination of benefits and if recipient makes a timely request for hearing, benefits must
continue
o Agency has the burden of proving that a termination of benefits is warranted
Disciplinary Action by Medical Board
Board divided into two panels of six members each, four of whom shall be physicians
Each panel shall act as both inquiry and a hearings panel
In no event shall any member who has considered a complaint as an inquiry panel (analogous to the grand jury) member, take
any part in the consideration of a formal complaint involving the same matter
Investigations shall be under the supervision of the panel to which they are assigned
Judge Felter likes the Marchetti case. Says it is one of his favorite cases
Rules are really tight in the State of Colorado
McCroskey Case - very important medical board case
Standing/Justiciability
Injury (harm) must be specific and concrete. CB p.409
Injury must be personal (private) interest of complainant. CB p.411
Causation: Injury must be proximately caused by conduct of offender. CB p.413
Redressability: Relief must be likely to remedy injury. CB p.414, 415. See Allen v. Wright, 468 U.S. 737 (1984).
Sources of Law
o Common Law Interest
o Constitutional Law Interest
o Statutory Right Interest
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o Interest Created by Substantive Rule (Principally Federal)
INTEREST MUST BE DIFFERENT FROM THOSE SHARED WITH GENERAL PUBLIC (the injury must be personal to create a
justiciable matter).
Presumption of Unlawful Discrimination
Intentional job discrimination may be presumed by establishing prima facie case that:
Complainant belongs to a protected class
The complainant was qualified for the job (by virtue of BFOQ) (bona fide occupational qualification)
Despite other qualifications, complainant suffered an adverse employment decision
The circumstances give rise to an inference of unlawful discrimination
Proven by looking at past hiring practices
Burden really shifts for employer to say no, I didn't discriminate and here is why I did not discriminate
See George v. Ute Water Conservancy Dist., 950 P.2d 1195 (Colo. App. 1997).
Some Discrimination Concepts
Constructive Discharge - concept is applicable in discrimination cases. Colo. Civil Rights Comm'n v. State, 30 Colo. App.
10, 488 P.2d 83 (1971).
A disabled person is "otherwise" qualified for employment if , with reasonable accommodations, he can perform the
reasonable, legitimate and necessary functions of the job. AT&T Technologies, Inc. v. Royston, 772 P.2d 1182 (Colo. App.
1989).
What are the parameters of "reasonable obligations"
In the 10th Circuit, exhaustion of administrative remedies is jurisdictional requirement to filing suit under Title VII of the
Civil Rights Act of 1964. Longo v. Regis Jesuit High School, 2006 U.S. Dist. LEXIS 4142 (D.C. Colo. 2006).
Theoretically, a complainant may proceed before the Colorado Civil Rights Commission or the Federal Equal Opportunity
Commission. However, one agency or the other may invoke the "doctrine of abstention" Abstain to hear what the state
agency does
Why it may be preferable to proceed before the Colorado Civil Rights Commission:
o Because the complainant gets a free lawyer, i.e., an assistant attorney general to prosecute the charges.
If Complainant establishes a Prima Facie Case of Employment Discrimination
The burden of production shifts to the Employer
To articulate some legitimate, nondiscriminatory reason for the employment decision
If the Employer meets its burden
Complainant must be given a full and fair opportunity that presumptively valid reasons for the employment decision were a
pretext for discrimination.
See Colo. Civil Rights Comm'n v. Big O Tires, 940 P.2d 397 (Colo. 1997).
Remedies
Employment Discrimination
Affirmative Action including:
Back Pay
Hiring
Reinstatement
Upgrading of employees, with or without back pay
Making of Reports to the Commission
Discrimination on the Basis of Disability: Americans with Disabilities Act, State Counterpart in Colorado Civil Rights Act
An Employer cannot refuse to hire on the basis of disability, if the prospective hire can perform the essential job functions if
reasonable accommodations are made.
What are essential job functions? What does it take to get the job done?
What accommodations are reasonable?
"Disability"
Disability means a physical impairment which substantially limits one or more of a person's major life activities and includes
a record of such an impairment and being regarded as having such an impairment (perceived impairment). 24-34-301(2.5)
(a), C.R.S.
Disability shall also include such person who has a mental impairment, but such term does not include any person currently
involved in the illegal use of or addiction to a controlled substance. 24-34-301(2.5)(b)(i)
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The term mental impairment shall mean any mental or psychological disorder such as developmental disability, organic brain
syndrome, mental illness, or specific learning disabilities. 24-34-301(2.5)(b)(iii)
Public Accommodations/Remedies
Forfeiture of $50 to $300 to the aggrieved person for each offense
Guilty of misdemeanor and upon conviction a fine of $10 to $300 or imprisonment of not more than one year or both
Relief under this section [24-34-602, C.R.S.] shall be an alternative to seeking relief from the Colorado Civil Rights
Commission.
Right to Sue in State or Federal Court/Housing Discrimination
Notwithstanding any provision of the Colorado Civil Rights Act, any aggrieved person may commence a civil action in an
appropriate US district court or state district court not later than two years after the occurrence or termination of an alleged
discriminatory housing practice or breach of a conciliation agreement. 24-34-505.6(1), C.R.S. See, however, 24-34-306(14),
which sets for an exhaustion doctrine and an avenue for extraordinary relief
Upon timely application, the attorney general may intervene in any civil action as provided above. 24-34-505.5
A conciliation agreement (mediation) between the respondent and charging party may provide for binding arbitration and
shall be made public unless disclosure is not required to further the purposes of housing anti-discrimination provision 24-34-
506.5
After filing of a charge with the Colorado Civil Rights Commission, the Commission, on behalf of the People of the State of
Colorado through the attorney general, may file for injunctive relief from the district court.
Unfair Housing Practices Remedies
Cease and Desist (can be done at administrative level as well)
Require reports of remedial action
Reimburse for actual expenses in obtaining comparable housing
Award actual damages and injunctive or other relief
Assess a civil penalty
o Not to exceed $10K if no adjudged prior housing discrimination
o Not to exceed $25K if any prior adjudged discriminatory housing practice during the last 5 years
o Not to exceed $50K if 2 or more adjudged discriminatory housing practices during 7 years preceding date of filing
present charge
Earl May v. Colorado Civil Rights Commission, 43 P.3d 750 (Colo. App. 2002).
"a party has an absolute right not to appear and defend in a civil case"
HELD - The ALJ erred in considering Mr. May's non-participation (stonewalling) in the hearing and, thus, remanded for
reconsideration of the $10,000 damages awarded.
The case settled before any hearing on remand.
Exhaustion of Administrative Remedies - Civil Rights - State Level
No person may file a civil action in district court in this state based on alleged discriminatory or unfair practice prohibited by
the Colorado Civil Rights Act without first exhausting the proceedings and remedies available under this Act unless he
shows, in an action filed in the district court, by clear and convincing evidence, his ill health would not provide timely and
reasonable relief and would cause irreperable harm. 24-34-306(14), C.R.S.
Charges/Responsibilities of Director of Civil Rights Division
The Director shall make prompt investigation, subpoena persons and documents, determine if probable cause exists
If probable cause does not exist, the Director shall dismiss the charges and advise that the charging party has the right to
appeal to the Commission within 10 days.
The charging party may file a civil action in the district court within 90 days.
If probable cause exists, respondents shall be served with written notice that states with specificity the legal authority and
jurisdiction of the Commission and matters of fact asserted by the Director
When the director is satisfied that further efforts to settle the matter by conference, conciliation and persuasion will be futile,
he shall so report to the Commission
If the circumstances warrant, the Commission shall issue a written notice and complaint by 24-4-105(2)
A hearing before an ALJ shall be commenced within 120 days after service
24-34-306(1)-(5), C.R.S.
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Settlement conference by a Judge
Arbitration (binding and non-binding)
Early neutral evaluation
Mini trial
Mediation
ADR can be used for:
Workplace disputes
Contract disputes
Personal injury claims
Domestic relations disputes
Government licensing disputes
Mediation is appropriate when/
Strained relationships must continue
Mis communication apparent – neutral can facilitate
Parties may be willing to settle (confidentiality is important)
Time factors are important
Mediation is a process that involves
Trained facilitator that is neutral
o Determines the parties underlying interests
o Helps them arrive at a mutually agreeable resolution
Who helps two or more parties
Collaboratively
Resolve their dispute
Parties to Mediation
Participate in good faith
Have full settlement authority
Bring the right people with them
Are prepared to be open and candid
Provide a written summary of the dispute in advance for the mediator (optional)
Mediation is an Informal Process
Voluntary – both parties must agree to be there
Rules of evidence do not apply
No sworn testimony – no witnesses
Both parties must agree on resolution
BATNA – Best Alternative to a Negotiated Agreement
WATNA – Worst Alternative to a Negotiated Agreement
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o Be Specific – No Surprises
o Establish time and complete conditions of agreement
o Be balanced and positive discussing terms
o Put the agreement in writing
o Get signatures
What do if an Impasse?
o Change the players and the perceptions of the parties
o Use time to your advantage
o Show relentless persistence and optimism
o Remind parties that the process is important
Closure and Mediator Evaluation
o Thank all parties for attending. Remind them that the process is important
o If successful, remind that the resolution is their product
Mediation Ethics
Ex Parte communications are OK
Confidentiality remains inviolate
o CRS 13-22-307 – the mediator shall not be required to disclose any information concerning any mediation
communication provided in confidence
Neutrality at all times
Trustworthiness to all Parties
Substantive due process – controlled at time right created (not retroactive – no ex post facto laws)
Procedural due process – controlled at time the changes in statutes or rules became effective (retroactive to time of adoption)
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Most state organic acts provide “triggers” for formal hearings under the state APA
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Important to determine if case is going to turn on facts or law
Boards goal by statute is protection of public interest
How to decide which cases to go forward on and which to not, use elements in McCroskey
Judge in best position to find findings of fact
- evidentiary fact is “raw, historical data” within ALJ discretion (what did Dr. McCroskey do?)
- ultimate fact is a “mixed question of law and fact” w/i agency discretion (make a finding that is dispositive of the case), ex. Applying
negligence standard to facts of case.
- pure questions of law are within the court’s discretion
- prudent practice requires matching the key issue to the decision-maker
When should conduct result in discipline? Up to Board to decide.
How much process is “due”? – Bd. of Med. Ex. v. Boyle, 924 P.2d 1113 (Colo. App. 1996)
- due process is the right to be heard “at a meaningful time and in a meaningful manner”
- In Colorado, if convicted of a crime, can have license revoked
- not necessarily the “right” to be present at the hearing
- or the “right” to – discovery, confrontation, strict rules of evidence (applied by statute), appointed counsel, etc.
Not necessarily bound by rules of evidence
Do I appeal? – the shifting standard of review – Morall v. DEA, 421 F.2d 165 (D.C. Cir. 2005) - Handled as defense counsel
- appellate standard of review of agency findings is not de novo
- findings of fact may be overturned if clearly erroneous
- ultimate findings may be overturned if unsupported by substantial evidence in the record as a whole
- questions of law are de novo, but an agency’s interpretation of its enabling statute is entitled to deference
- sanctions may be overturned if arbitrary and capricious or contrary to law (abuse of discretion)
Judges credibility determinations get deference
INITIAL DECISIONS
Under the Colorado APA, ALJ render Initial Decisions
Initial Decision shall include
o Statement of findings and conclusions
o Upon all material issues of fact, law or discretion presented by the record
o The appropriate sanction, relief or denial
The findings of evidentiary (basic) fact, as distinguished from ultimate conclusions of fact shall not be set aside unless such
findings are contrary to the weight of the evidence
Exceptions must be filed (unless time extended) within 30 days after service of the Initial Decision
If agency feels more evidence is necessary, it must remand to the ALJ
In absence of timely exceptions, Initial Decision shall become FAA and shall result in waiver of right to judicial review
With exception of human services and HCPF FAA (appeal to district courts), appeal is to Colorado Court of Appeals
EXHAUSTION OF REMEDIES
Premised on assumption that there are properly authorized remedies available within the agency and they are adequate to
provide requested relief
Permitting premature judicial review would undermine legislatively enacted administrative process
Courts must fashion exhaustion principles consistent with congressional intent and any applicable statutory scheme
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Exhaustion may be excused when administrative remedy is unavailable or inadequate
o Arbitrary and Capricious, Abuse of Discretion and Lack of Substantial Evidence – closely intertwined standards
o Arbitrary and Capricious if:
Unsupported by the evidence in the record
Erroneously interpreted the law (usually egregious)
Exceeded its constitutional or statutory authority
o Arbitrary and Capricious & Abuse of Discretion are coextensive. A court will look for:
Without reason (downright unreasonable)
Lack of substantial evidence
Mistake of law
Bad faith
Conflict of interest
o Substantial evidence – quantum of probative evidence which a rational fact finder would accept as adequate to
support a conclusion, without regard to the existence of conflicting evidence
o Arbitrary – think of no justification or expression
o Capricious – think of no factual development
Substantial Evidence
ALJ factual findings must be supported by substantial evidence in the record
The term substantial evidence has become a term of art to describe the basis on which an administrative record is to be
judged by a reviewing court
The standard goes to the reasonableness of what the agency did on the basis of evidence before it
Universal Camera Corp. v. NLRB – SCOTUS held that when reviewing a hearing officer’s fact findings in formal
proceedings, a court must ordinarily apply the “substantial evidence” standard of the federal APA. When credibility is
important, however, the evidence supporting an agency conclusion that differs from the hearing officer’s conclusion may be
less substantial because the agency has all the powers which it would have in making the initial decision so the agency was
entitled to make its own findings on the record compiled by the hearing officer.
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o Party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding
o There is final judgment on the merits in the prior proceeding
o Party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding
Doctrine of Issue Preclusion/Res Judicata also prohibits relitigation of issues that might have been decided
WORKER’S COMPENSATION
No Fault systems designed to assure injured workers disability payments and medical treatment
The Workers' Comp Act provides "a remedy where remedies do not exist at common law"
Take the worker as you find the worker, but if you have a worker who brings in an imported danger, no compensation
Look at what employer does
Workers' Compensation Basic Concepts
No fault system
To be covered, one must be a Colorado employee
Arising out of employment - proximate causality - Critical Issue - Compensability - Arising out of employment
Course and Scope of Employment
o Time
o Place
o Circumstances
Positional (Actual) Risk - but for being at work, injury would not have occurred
Idiopathic Injuries - unexplained fall that causes injury. There must be a special hazard of employment and not an imported
danger. Any special hazard may be enough.
Dual Purpose Doctrine - equal benefit to employer (drive to pick up something for both employer and yourself)
Personal Comfort Doctrine - a bathroom break
Going to can coming from work not covered (not within course of employment)
o Exception - eating lunch on employer's premises or parking in an employer parking lot
Recreational Activities - playing on company baseball team not covered unless a condition of continued employment
Horseplay. Employer condoned. (Is within the scope of employment)(most of the time not within the scope and course of
employment)
Sexual Harassment - an imported danger or widely tolerated. Horodyskj v. Karanian (2001) at center of article he wrote.
Going to and Coming From Rule - Frolic and Detour Rule - truck drivers on duty 24 hours a day - can be close rule, can
argue both ways.
Responsibility for Termination from Employment
Responsibility for termination from employment must be done through a volitional act by employee
Worsening of condition breaks the proximate causal chain between the volitional act that caused the temporary disability and
renewed temporary disability, thus, allowing a restoration of benefits
System designed to give a fixed and reliable source of income during an injured employee's disability
System is designed to give a fixed and reliable source of income during an injured employee's disability
Workers' Compensation is ordinarily "the exclusive remedy" for work related injuries
Jurisdiction
The law of the place of contract governs
Depending on circumstances, minimal contacts test of International Shoe may apply to a contract of employment
consummated over the telephone
Perryman Test for Jurisdiction requires
o Contract of employment created in CO
o Employment in Colorado under a K created outside the state
o Substantial employment in CO
Concepts of Compensability
Terms "arising out of" and "in the course and scope of employment" have separate and distinct meanings
o Arising out of - deals with proximate causal connection between the work and the injury
o Course of employment - deals with the time, place and circumstances of the injury
Another test for compensability is the "positional risk" doctrine
o Conditions and obligations of employment place the employee in a position where injury is incurred, this is the "but
for" test
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Injuries at work caused by "neutral forces" - neither work related nor personal are compensable
Just because someone is injured does not mean that the person sustained a compensable injury
Dual Purpose doctrine - injury sustained while an employee is performing an act for the mutual benefit of the employee and
the employer is compensable
The "personal comfort" doctrine - employees engaged in acts of personal comfort on the job do not leave the course of
employment
The "Going To and Coming From" Rule
Ordinarily, an injury while traveling to and from work is not compensable
There are many exceptions to the "going to and coming from" rule
Exception to Going To and Coming From Rule
Travel during work hours
Travel occurs on the employer's premises
Obligations or conditions of employment create a "special zone of danger" resulting in the injury
Traveling is part of service the employee provided the employer
Transporting the employer's supplies
Performing a service requested by the employer
Undertaking an action with concurrent business and personal purposes (Dual Purpose Doctrine)
Accepting transportation offered by the employer
Traveling between job assignments
Reimbursement for the employee's cost of commuting (can bring auto accident for reimbursement of mileage)
Being on "travel status" while working out of town
Deviations from Travel Status
In most situations an employee away from home on a business trip in under continuous coverage
A clearly identifiable deviation, however, from the business trip for personal reasons may remove the employee from
coverage
Lunch on the employer's premises is covered. Lunch off the premises is not covered.
5 part test for analyzing factors to determine coverage for recreational activities
Extent the employer benefitted from the activity, beyond better employee morale
Extent to which recreational activity represented remuneration for employment
Whether the activity created a special danger
Whether the activity was an inducement for employment
Whether the activity was contemplated by the employer and employee at the time of hiring
Worker's compensation is a no fault system with one exception - at fault termination
If worker gets himself fired through own volitional act, the right to continued indemnity benefits ceases
Test for whether initiation or participation in horseplay constitutes a deviation from employment is
Extent and seriousness of horseplay
Horseplay comingled with the performance of a duty
Extend did the horseplay become an accepted practice
Extent can the nature of the employment be expected to include some horseplay
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1st Violation – 12 month disqualification
2nd Violation – 24 month disqualification
Individuals who receive multiple benefits due to misrepresenting their identity or residence shall be ineligible for a 10 year
period
Food Stamp and IPV Code of Regulations
Initial decisions shall not be implemented pending review by the Office of Appeals (Dept. of Human Services) and the entry
of final agency decision
Household shall be allowed to request a local dispute resolution conference or state level fair hearing (before an ALJ( on any
Notice of Adverse Agency which occurred in the prior 90 calendar days
Prior to taking action to deny, terminate, reduce or recover food stamp benefits, the food stamp office at minimum shall
provide the household an opportunity for local dispute resolution conference
This conference held at county department by a person not directly involved in the initial determination in question.
Conference is informal
Person presiding at the local dispute resolution conference shall issue a written decision explaining the applicant or
recipient’s right to request a state level fair hearing before an ALJ
Weaver v. Colorado Department of Social Services
Court determined that notice failed to provide recipient accurate information as to the applicable regulations
o The point system had never been adopted as a formal regulation
Citing Goldberg v. Kelly – petitioner was initially determined to be eligible for benefits, his right to continued receipt was
similar to a “property” right for purposes of application of due process clause of the Fourteenth Amendment
A fair hearing before benefits can be denied
Written notice must set forth “the reasons for the intended action” and a statement of the “specific regulations that support the
action”
After Weaver – HCPF adopted regulations governing the point system
Moczygemba v. Colorado Department of Health Care Policy and Financing (HCPF)
The test is “in imminent need of nursing home placement if no HCBS benefits are provided.”
If applicant does not automatically qualify, second reviewer assesses the application. If applicant is denied admission to
HCBS, nurse reviewer may conduct an on-site evaluation of applicant. Thereafter, a physician reviews the matter.
If applicant determined ineligible – may request a hearing by an ALJ
ALJ used an “imminent risk of deterioration standard”
CRSA 26-6-106 - The administrative law judge may conduct hearings on appeals from decisions of county departments brought by
recipients of and applicants for public assistance and welfare which are required by law in order for the state to qualify for federal
funds, and may conduct other hearings for the state department. Notice of any such hearing shall be served at least ten days prior to
such hearing.
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While exception is controversial, APA scholars agree that investigators should not communicate with an agency body
member about the specific subject matter which will be subject of FAA
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