Professional Documents
Culture Documents
Administrative Law Outline
Administrative Law Outline
Administrative Law – body of law dealing with the functions of administrative agencies, how decisions are made by
those agencies, and the methods of review by the courts
Branches of US Gov’t – (1) Executive (includes admin tribunals), (2) Legislative (adopts laws), Judicial (the court)
No CL of Admin Law
Specific Law always controls the General Law
protection
• Central Panels of ALJ’s or Hearing Officers • Hearing Officials within the Agencies
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
Congress can create inferior, statutory courts within the judicial branch
Congress can also create statutory courts within the executive branch
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:
Delegation
Admin agency has power to determine individual rights and responsibilities by deciding specific cases, the
agency exercise a
Agency decisions are final and binding on the parties over whom the agency has jurisdiction unless set
aside by a reviewing
court
•••••••
You can
APA sets a minimum – cannot have something lesser than the APA
• Nevertheless, one can argue that there is a default to the APA when a specific statutory scheme (sui generis) is
silent
Agency must take action to implement the legislatively mandated program • Executive – through assertion of
executive power, the agency may:
Legislative – agency may promulgate substantive rules that have the force of law
Judicial – agency may adjudicate specific disputes that arise in the course of its administration of the
program
• Internal to Agency
• External to Agency
oooo
***Exhaustion -
2 principal applications of exhaustion doctrine:
Must exhaust all remedies before you go to court – unless agency has done something egregious.
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
Checklist of Reasons Supporting Judicial Intervention when there is a Failure to Adopt 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
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
Substantive rules are sometimes called “little statutes” because they have the force of law
Some argue that interpretative rules, policy statements, guidance documents, guidelines or bulletins are
nothing more than
Ignoring these interpretations in the “secure” feeling that the courts will vindicate you may be extreme folly
because courts
SUBSTANTIVE RULE
• Describes
• Guidance to public/not legally binding
• States a construction, clarification or explanation of an
Organic Legislation – original legislative statute of agency Ex. FBI – to enforce the laws 3
Judicial Review Unavailable When Agency Action Committed to Agency Discretion – 5 USC Sec 701a
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.”
US DC ruled that it lacked jurisdiction because the decision as to whether to bring an enforcement action
was an
is confined to an examination of the Secretary’s “reasons” statement and whether it indicated that the
Secretary’s decision is so irrational as to make the decision arbitrary and capricious.
Judicial Review – short circuiting the exhaustion doctrine. When courts will intervene before exhaustion
has been applied.
Londoner v. Denver – Due process required that the landowner must have had an opportunity to be heard. The mere
submission of objections and complaints did not satisfy due process
Bi-Metallic Inv. Co. v. State Bd. Of Equalization – Court concluded landowner given all the process that was due.
Court noted the change adopted applied to every landowner in the city. Property owners “all stand alike”
RULEMAKING
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
• Any rule that is inconsistent with or contrary to statute is void ab initio (from the beginning)
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
Statement of basis and purpose assures that the administratively perceived necessity of rule will be
explicated
It serves to provide a reference point against which the validity of the rule can be measured
It removes the review process from the realm of speculation and provides a context within which
meaningful judicial review
can occur
hearing.
Look at Legislative History or the Rule Folder and Record of the Rulemaking Hearing
Considering the plain language of the General Assembly or Agency
Assessing whether the provision was ambiguous
The Courts will stand on their heads to try to review an agency’s decision
Did General Assembly or Agency intend the challenged provision to operate retroactively
If so, is the challenged provision unconstitutionally retrospective or is retrospective application of the rule
beyond the
statutory permission and/or jurisdiction and authority of the agency Skidmore Deference
Chevron Deference
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
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
formal hearing
initial decision
Dissatisfied party seeks timely judicial review in the judicial branch, having exhausted administrative
remedies
Licensing Boards
o Application denial
o Suspension or revocation
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 Doing nothing
o Doing too little
o "soft" on members
o Captive of the industry regulated
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.
Due Process Analysis Factors - Consider all factors when analyzing whether or not due process rights have been
infringed upon • Deprivation
• Property
o Entitlement, expectation, sources
• Liberty
o Stigma, good name, honor, integrity, opportunities foreclosed
• Process
o Hearing, timing, scope, lawsuit
Basing a conclusion as to benefit eligibility solely on legal rules and evidence presented at hearing
A statement of the reasons for the determination, indicating the evidence relied on and
An impartial decision maker (differs from an independent decision maker)
Goldberg provided right to an evidentiary hearing prior to termination of welfare benefits (isolated case)
Matthews Court determined that due process did not require a hearing prior to termination
3 Factor Balancing Test
§ Opportunity to present the other side of the story • This may take place almost immediately
Standing/Justiciability
Interest must be different from those shared with general public (injury must be personal to be a justiciable
matter)
CL doctrine that permits a biased decision maker to decide because an agency is the only game in town
Rule of Necessity is strongly disfavored by the courts
3 alternatives to invoking the Rule of Necessity
§ In many cases central panel ALJs render initial decisions that go to the agency for final agency action
• In the case of a biased agency head or board that renders FAA, the agency can delegate FAA authority to the
central panel
ALJ
Why Central Panels in the First Place?
both
If adjudicator within agency, an impenetrable wall between it and the adjudicator must be constructed to
foster public
Best impenetrable wall is the central panel. An organization of adjudicators that is a separate agency from
the agencies that
are required to provide a fair hearing at the end of the administrative line Central Panels a Good Idea for
Governments
CP offers an efficiency of scale because only function is to hear and decide contested cases
CP projects being an independent, executive branch judiciary
Public perceptions of fairness are similar to perceptions of the judicial branch
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.
• Procedural due process not violated by merely combining investigative and adjudicative functions
If a citizen wants to file a complaint with DORA they can send a letter to them and then an investigator will be
appointed
Investigator said something there and recommend to board that they do something. The board can refer to Attorney
General or file an admonition. If goes to AG, then formal complaint and ALJ.
Enforce statutes regulating sale and transfer of firearms by federally licensed dealers
Enforce federally regulated alcoholic beverage licenses
Drug testing of licensees, employees, trainee workers (FELA), flight crews
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 8
Licensees consent to reasonable inspection You agree to certain things if you are licensed
Held - the Board's investigatory power does not create an exception to the accountant client privilege
created in 13-90-107
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
Board Model
Director Model
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
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
• A preponderance is that a quantum of evidence that makes a fact more reasonably probable than not
Burden of Proof
Licensing Agencies
Benefits Program
o Applicant has the burden of proving qualification for benefits
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o Agency must five notice of termination of benefits and if recipient makes a timely request for hearing, benefits
must continue
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
Disability
Race
Creed
Color
Sex
Sexual Orientation
Religion
Age
National Origin
Ancestry
Persons with Disabilities (Colorado ADA)
o Visually Impaired
o Deaf
o Otherwise Physically Disabled
Standing/Justiciability
INTEREST MUST BE DIFFERENT FROM THOSE SHARED WITH GENERAL PUBLIC (the injury must be
personal to create a justiciable matter).
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Intentional job discrimination may be presumed by establishing prima facie case that:
See George v. Ute Water Conservancy Dist., 950 P.2d 1195 (Colo. App. 1997).
Constructive Discharge - concept is applicable in discrimination cases. Colo. Civil Rights Comm'n v. State,
30 Colo. App.
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).
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.
Employment Discrimination
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
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
The term mental impairment shall mean any mental or psychological disorder such as developmental
disability, organic brain
Public Accommodations/Remedies
• Relief under this section [24-34-602, C.R.S.] shall be an alternative to seeking relief from the Colorado Civil
Rights Commission.
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.
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
• 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.
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
When the director is satisfied that further efforts to settle the matter by conference, conciliation and
persuasion will be futile,
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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Workplace disputes
Contract disputes
Personal injury claims
Domestic relations disputes
Government licensing disputes
• Joint Session
• Private Caucus
o Some mediators do their most effective work in private caucus
• Information Gathering and Developing Interests
o Meet privately – establish trustworthiness of Mediator o Open ended questions
o Venting by party (it is legitimate)
o Clarify and narrow issues
• Generate Options
o What does each side want?
o Be creative
• Evaluate and Select Options
o Reality Testing – get party to acknowledge weaknesses in his/her case o Discuss the BATNA and WATNA
o Emphasize uncertainty of litigation and loss of control over outcome
• Reaching Agreement
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
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Mediation Ethics
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)
Federal APA defines agency to include each authority of the government of the US
Federal APA presumptively applies to all federal agencies
Presumptively, all federal agencies are subject to the APA’s minimum requirements commonly known as
“informal” or
Agency organic statutes and agency procedural rules are the primary sources of any prescribed rulemaking
procedures
Estimated that 90% of adjudications at the federal level are conducted informally
To activate the formal hearing requirements of the federal APA, the language of another statute must
trigger it
NOT necessarily so at the state level
o The specific agency statute must specifically exclude the APA formal hearing provisions
o Generally by providing an acceptable alternative (acceptable to the general Assembly and the courts)
APA applies to all formal hearings when agency legislation triggers applicability of formal hearing
provisions
Most state organic acts provide “triggers” for formal hearings under the state APA
Initial Decision
Recommended Decision (beware) [ALJ decision may be advisory only, depending on particular agency
organic act]
Tentative Decision (an agency decision involving rulemaking or initial licensing
In some states, including one central panel state, an ALJ may only render a “recommended” decision
depending on the specific organic act of an agency
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Wide range of licensees: health care (doctors, dentists, pharmacists, nurses, etc), business (real estate
brokers, appraisers,
insurance agents, motor vehicle dealers, securities dealers, mortgage brokers, accountants, etc.),
construction (engineers,
architects, electricians, etc), and more (teachers, bail bond agents, mortuaries, outfitters, etc.)
FAA, etc)
The agencies’ problem of combining the roles of investigator and adjudicator – Withrow v. Larkin, 421
U.S. 35 (1975)
Picking the right case to take to trial - questions of law v. fact– Bd. of Med. Ex. V. McCroskey, 880 P.2d
1188 (Colo. 1994)
How much process is “due”? – Bd. of Med. Ex. v. Boyle, 924 P.2d 1113 (Colo. App. 1996)
Do I appeal? – the standard of review – Morall v. DEA, 421 F.2d 165 (D.C. Cir. 2005)
V. Summary
• Combining the roles of investigator, prosecutor and adjudicator – Withrow v. Larkin, 421 U.S. 35 (1975)
Picking the right case to take to trial - questions of evidentiary fact, ultimate fact, and law – Bd. of Med. Ex.
v. McCroskey, 880 P.2d 1188 (Colo. 1994)
Council builds success in making deals (settlement) without spending a ton of money. Vast majority are
solved by stipulated agreement.
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.
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• 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.
followed by appropriate depositions and production of documents including the investigator's report.
evidence though.
INITIAL DECISIONS
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
Exhaustion may be excused when administrative remedy is unavailable or inadequate
Persons seeking judicial review must identify legislation that confers jurisdiction on the appropriate court
Otherwise FAA is subject to judicial review after the exhaustion of administrative remedies
Arbitrary or capricious
Denial of a statutory right
Contrary to Constitutional Right
Excess of Statutory Jurisdiction
Not in accord with procedural limitations of APA or other law
Abuse of Discretion
Clearly erroneous findings of fact, based on whole record
Unsupported by substantial evidence
Otherwise contrary to law
o Arbitrary and Capricious, Abuse of Discretion and Lack of Substantial Evidence – closely intertwined standards o
Arbitrary and Capricious if:
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
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.
Doctrine of Issue Preclusion may bind the parties to an administrative agency’s findings of fact or
conclusion of law
Criteria for application of the doctrine of issue preclusion are:
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
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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
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)
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
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
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
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
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 "personal comfort" doctrine - employees engaged in acts of personal comfort on the job do not leave
the course of
employment
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
• Definition
use, presentation, transfer, acquisition, receipt or possession of food stamps Criteria for Determining IPV
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. 19
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”
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.
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.
Find out all you can about specific ALJ (likes and dislikes)
Map out closing argument at the beginning and try to deliver on all points
Clarify burdens of proof at the beginning
The Board generally goes first
Object sparingly. The ALJ is searching for the whole truth.
Prepare, not coach, your witnesses to be friendly to all
Organize your exhibits by correct numbering or lettering scheme. Make extra copies.
Organize the order of your witnesses. Start and end with a bang.
Opening statement is a set of promises concerning what your case will prove. It is NOT a closing argument
about the law.
Cross examination – never ask a question you don’t know the answer to.
Do not be afraid to say No Questions, if the other side witness has not hurt your case
Never ask one question too many
If you are defending, don’t forget to move to dismiss when opponent has rested, if it has looked like
opponent hasn’t proven
case
member about the specific subject matter which will be subject of FAA
Judge shall uphold and promote the independence, integrity and impartiality of the judiciary
Rehnquist – an independent judiciary is the “crown jewel of our democracy”
ALJ must deal with accommodating legitimate agency objectives without compromising judicial
independence
Job Security – bedrock of judicial independence
Structural Independence -
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