The Adjudication Spectrum Explained

The Adjudication Spectrum Explained: What Kind of Hearing Do You Get?

When a federal agency decides your case, the process you receive can vary enormously. At one end of the spectrum, you might get something that looks like a full trial — witnesses, cross-examination, an independent judge, a written opinion explaining the decision, and a formal record you can appeal. At the other end, someone at the agency reviews your paperwork, makes a decision, and sends you a letter. Both count as adjudication. Both are legal. And which one you get can determine whether you win or lose.

Most people assume that if the government is making a decision that affects their rights — denying disability benefits, revoking a license, imposing a fine — there's some standard level of process they're entitled to. There isn't. The type of hearing you get depends on what statute governs your case, what agency is involved, and what kind of decision is being made. Some proceedings come with strong procedural protections built in by Congress. Others offer almost none. And the gap between the two can be the difference between a meaningful opportunity to be heard and a rubber stamp.

In this episode, we map the full spectrum of agency adjudication — from formal hearings under the Administrative Procedure Act to informal proceedings with minimal procedural safeguards. We explain what determines where your case falls on that spectrum, why it matters, and what it means for the millions of people whose lives are shaped by agency decisions every year.

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Full Transcript

Opening

Gwen: Hello and welcome to Administrative Remedies, because you can't fix what you don't understand. Brought to you in part by the University of Tulsa College of Law. I'm Gwendolyn Savitz, an associate professor here at TU and the associate dean of research and intellectual life.

Marc: And I'm Marc Roark, the dean of the law school.

Gwen: We'll be breaking down complex doctrines with real life analogies and examples, to demystify the world of administrative law for everyone trying to understand how government actually works.

Marc: Agencies are the main way that the federal government gets things done. It's not through Congress — for reasons we'll be addressing over the course of the series.

The parent analogy

Gwen: Today we are talking about the adjudication spectrum. So Marc, let's think back to when you were a kid. Did you ever get in trouble at home?

Marc: Never. I was perfect. An angel. I was a delight to my parents.

Gwen: Obviously. But let's imagine some sort of alternative reality where you weren't. So let's say you hit your brother.

Marc: Hypothetically.

Gwen: Yes, hypothetically, because obviously this never happened in your life. But in this alternative reality, if your parents saw it happen — like actually saw you punch him — what would have happened next?

Marc: Straight to my room. No discussion. They saw it. Case closed.

Gwen: All right. So what if they don't see anything, but your brother went running to them crying, saying that you'd hit him. But again, they didn't actually see anything.

Marc: Well, I get to defend myself. He started it. He took my toy. I didn't even hit him that hard. Both sides get heard, mostly.

Gwen: Yeah, it depends on the kids. But theoretically, you'd have some chance to defend yourself. But let's say we're talking about something even more serious. So we're not just hitting your brother. Your parents have found, say, a super expensive clock that's been destroyed. And your brother is blaming you, and you're swearing you didn't do it.

Marc: Full family meeting. Everyone sits down. Each kid presents their case. Parents ask questions. Whole production.

Gwen: All right. So that is functionally the entire spectrum of administrative adjudication.

Marc: Wait, really?

Gwen: In the first scenario, the parents saw it, straight to your room. That's summary action. There is essentially no process happening. Scenario two, both sides get heard informally. That's informal adjudication.

Marc: Yeah, as we'll see, informal adjudication is a very, very wide spectrum.

Gwen: And in scenario three, that full family meeting, that's formal adjudication.

Marc: Same household, same parents, completely different procedures depending on what's at stake.

Gwen: Yes, and what they already know.

Marc: What they already know also matters. Okay, so agencies work the same way then?

Gwen: Yes, to an extent. That's what we'll be talking about.

The magic words

Marc: So how do you know which type of adjudication you're getting? Is there a test?

Gwen: There is. This is one of those super easy magic word tests. It all comes down to whether specific words appear in the statute.

Marc: That seems very formalistic.

Gwen: Oh yeah, it is. So here, this is the part of the APA that creates the trigger for formal adjudication. This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.

Marc: All right. On the record after opportunity for an agency hearing — especially that on the record part.

Gwen: That's the magic words.

Marc: Abracadabra. Magic words, like a spell. Here we go.

Gwen: Yes. And then you've got formal adjudication. If the statute at issue uses that phrase, or something functionally identical — again, that on the record part — you have formal adjudication with all of its protections. And it has a lot of protections. And if the statute doesn't say that, then you are instead in the vast murky world of informal adjudication, which could mean almost anything.

Marc: Wait. So what if the statute just says hearing, not on the record? Just hearing?

Gwen: That is an excellent question, and one that the Supreme Court addressed. That's how we get to this place. In United States v. Florida East Coast Railway.

Marc: Okay, so let me guess. Hearing alone wasn't enough.

Gwen: It wasn't. The Interstate Commerce Commission was setting railroad freight rates, and the statute at issue said hearing, but it didn't say on the record. The railroads wanted a full formal adjudication.

Marc: Did they get it?

Gwen: They did not. The Court said hearing alone isn't going to be enough to trigger formal procedures. You need the full magic words, on the record after opportunity for hearing, or something clearly equivalent.

Marc: So, choo-choo, Congress has to be really explicit.

Gwen: Super explicit.

Marc: That seems backwards, honestly. Shouldn't the default be more protection, not less?

Gwen: It might seem that way. And when Congress was writing the APA in 1946 — or maybe they were writing it in '45 — they probably assumed that most adjudication would be formal, just like they assumed most rulemaking would be formal. They probably imagined agencies holding trial-like hearings as a matter of course.

Marc: But that's not what happened.

Gwen: It was not even close. Agencies quickly figured out that if Congress didn't use the magic words, they didn't need to provide these formal hearings. So they lobbied for statutes without the words.

Marc: They gamed the system.

Gwen: You could put it that way. So today, formal adjudication is the exception. The vast majority of agency adjudications are informal. Some estimates are around ninety percent, although I would guess it's higher than that.

Marc: That's actually a lot of cases without full procedural protections.

What formal adjudication gets you

Marc: Then let's talk about what you get if you do trigger formal adjudication. What are the procedures?

Gwen: So there are two sections of the APA, sections 556 and 557, that deal specifically with these formal procedures. It is designed to look like a trial.

Marc: Like a real courtroom trial.

Gwen: Pretty close. So here is 556(d). This is about your right to present evidence. A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.

Marc: Cross-examination. That's huge.

Gwen: Cross-examination is a big deal in administrative stuff. You get to present your case. You get to call witnesses. You get to submit documents. And you also get to cross-examine everything that's being used against you.

Marc: Just like in court.

Gwen: Very much like in court. So here's the next section. This is about the record of the hearing. The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision.

Marc: Exclusive record. So the agency can't just make stuff up or rely on secret evidence.

Gwen: Right. The decision has to be based on everything that was presented at the hearing — which means that everything needed to be presented, and so you needed to see it and decide whether you needed to contest it. So yeah, if there's information that you didn't get to see, or you didn't get to rebut, it can't be used against you.

Marc: So who actually conducts these hearings? Some random bureaucrat?

Gwen: These are done by administrative law judges, or ALJs. They're special officers with independent protections.

Marc: Independence from whom?

Gwen: From the agency. They have significant protections that are designed to make them function independently. They can't be easily removed. They're not supposed to be subject to agency pressure on their decisions. But exactly how much protection they'll really have is a bit of a live controversy that we'll get into in the next episode.

Marc: Wait, there's a controversy?

Gwen: Oh, there is, yes. So there's been litigation about whether these ALJ protections are constitutional. But for now, just know that the formal system is designed to provide independence, an independent decider, and procedural rigor.

Marc: Okay, so let's add all this up. In a formal adjudication, you get notice of what you're charged with, right to an attorney, right to present evidence, right to call witnesses, right to cross-examination, an independent judge, decision based only on the record, and a written decision explaining why.

Gwen: Yes. And you have the right to appeal the ALJ's decision to the agency heads, and then to court.

Marc: Okay, that's very comprehensive.

Gwen: It is. And that also means it's very expensive, which is why agencies try to avoid it whenever they can.

Marc: So when does formal adjudication actually happen?

Gwen: This could be used in SEC enforcement actions against brokers, if it's not the kind of thing they need to take to a jury trial. Or NLRB unfair labor practice cases. Some Social Security disability appeals. FTC enforcement. Cases where Congress specifically wants this kind of trial-type hearing protection.

The black hole of informal adjudication

Marc: Okay, so formal adjudication has all these protections. What about informal adjudication?

Gwen: Yeah, now things are getting a little less specific.

Marc: Okay, less specific. How?

Gwen: The APA is basically silent on informal adjudication.

Marc: Silent? So there's nothing?

Gwen: There's almost nothing. 555(e) is really the only provision that speaks to this at all. You want to read the entirety of what the APA has to say about informal adjudication?

Marc: Sure. Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial. That's it? A brief statement of the grounds for denial?

Gwen: Yeah, that's basically all the APA requires. If you apply for something and get denied, the agency has to tell you promptly — although promptly is also kind of used loosely — and it needs to give some sort of explanation.

Marc: So no hearing.

Gwen: Not required by the APA.

Marc: No right to present evidence.

Gwen: Not required by the APA.

Marc: No cross-examination.

Gwen: Definitely not required.

Marc: This seems like a massive gap in the statute.

Gwen: Yes. People sometimes call this the black hole of informal adjudication.

Marc: Wait, so you said almost all adjudications are informal. So ninety percent of agency decisions are covered by almost nothing?

Gwen: As far as the APA is concerned, yes. Federal agencies make tens of millions of informal adjudications every year with one sentence of guidance.

Marc: Tens of millions of decisions. And one sentence of guidance.

Gwen: Yes. This is why we have such a gap. Beyond that, agencies have a huge amount of discretion to design their own procedures. Some create elaborate hearing procedures and others don't.

Marc: So what protections do people actually get?

Gwen: All right. Protections can come from places other than the APA. There can be the organic statute — the statute that creates that specific agency, or the programs — that requires certain procedures.

Marc: Even if it doesn't trigger full formal adjudication.

Gwen: Right. It might not say on the record, but it might say other things that provide additional protection. There could also be agency regulations. Again, a lot of agencies have voluntarily provided more than that APA bare minimum.

Marc: Out of the pure goodness of their hearts.

Gwen: Out of their desire to make accurate decisions and to avoid lawsuits. And finally, the Constitution. Due process sets a minimum floor for the agencies, but we'll be circling back to that in another episode as well.

Mapping the spectrum

Marc: Okay, so informal adjudication isn't one thing. It's a whole range of things.

Gwen: It is. It is an enormous spectrum.

Marc: Okay, give me the extremes.

Gwen: So at one end of this, we can have informal adjudications that look almost exactly like a formal adjudication. The agency is providing a hearing. There's submission of evidence. There might even be something resembling cross-examination.

Marc: So if it walks like a duck and it quacks like a duck —

Gwen: It's still not a duck, because Congress didn't say on the record in the statute.

Marc: These are the magic words again.

Gwen: Yes. And also, these things that look like formal adjudications are often missing one of the required features. Maybe it's not being decided by an ALJ, or something else.

Marc: So then at the other end of the spectrum, there are things that barely look like adjudication at all.

Gwen: Like what?

Marc: So, applying for a passport. You fill out a form. A clerk checks your paperwork. Is your birth certificate valid? Are you a U.S. citizen? Is your photo the right size? Did you pay the right fee?

Gwen: I'm glad you said that. I need to renew my passport coming up.

Marc: But that's adjudication, I guess.

Gwen: Yeah, it is. It's adjudication. This is bureaucratic processing as adjudication. But the agency here is making an individual determination about whether you qualify for a passport. That's adjudication under the APA definition. Remember, things the agency is doing are either rulemaking or adjudication. This is the adjudication side. This is also why so many of the adjudications the agencies do are informal.

Marc: So it's not the same as deciding whether someone violated securities law.

Gwen: Definitely not. But these are both adjudications under the APA.

Marc: That's — frankly, kind of absurd. The same category covers a passport application and an initial Social Security disability determination and a FOIA request and a visa denial.

Gwen: Yes, all of them. The procedures can be wildly different, but the APA treats them all the same, which is to say with almost no requirements.

Marc: So let me try to map this spectrum.

Gwen: Awesome. Go for it.

Marc: Okay. On one end, you have pure paper processing. Passport applications, license renewals, routine permit approvals. A bureaucrat reviews documents and checks boxes.

Gwen: Yes. Here we have stuff that is routine, standardized. There's minimal discretion involved. Pretty straightforward.

Marc: And then moving up, you have initial benefit determinations. Social Security disability initial decisions. Someone's actually analyzing your situation, but still no hearing.

Gwen: Yeah. Now we're in a situation where we need to look a lot more at the specific facts to figure out how this decision should actually come out.

Marc: Okay. Then one rung above that, informal interviews or conferences. Immigration asylum interviews, credible fear determinations. You get to talk to someone, but it's not a formal hearing.

Gwen: Right. So these are considered conversational, not adversarial. There aren't rules of evidence, but you can explain your situation, and you can do it in your own words.

Marc: And then you have informal hearings that look almost formal. Maybe you can present documents. Maybe there's an officer asking questions, but it's missing one or more elements that would make it truly formal.

Gwen: Yes. And this is where we're at the top of the informal adjudications. Procedures so close to formal you can barely tell the difference. But this still hasn't been enough to actually trigger formal adjudication.

Marc: Okay. So it's still informal.

Gwen: Yes.

Marc: This is kind of a solid mental map.

Gwen: And the key point is that where you land on this spectrum determines what kind of protections you're getting, and what Congress specified, if anything, for those types of decisions. This is functionally administrative law.

Why it matters

Marc: Okay, so we have this massive spectrum. Why should ordinary people care?

Gwen: Because your rights depend totally on where you fall in the spectrum, and you don't get to choose.

Marc: Give me an example of that.

Gwen: All right. So, Social Security disability — conveniently, you mentioned that earlier. You apply for it, and somebody reviews your medical records and denies you.

Marc: Okay, that's informal. It's just a paper determination.

Gwen: Yes. So then you appeal. You get reconsideration. This is still informal. This is another bureaucrat reviewing your file.

Marc: But still no hearing.

Gwen: Yes. So now you've been denied twice. Now, if you appeal again, you can get a hearing before an administrative law judge. Now we're at that formal adjudication with all those procedures we talked about.

Marc: So the same benefit, the same agency, but different procedures at different stages.

Gwen: Yes.

Marc: I'm guessing most people give up before they even get to their ALJ hearing.

Gwen: Yes, that's exactly right. So that informal stage filters out a huge number of claims. Some of them wouldn't be legitimate, but certainly some would be. They just don't understand they need to keep pressing.

Marc: So if you don't know you have a right to keep appealing, or if you can't afford to wait months for a hearing, that means that you lose even if you would have won. So then the people who may get to formal adjudication are the persistent ones, or the ones that have lawyers.

Gwen: Yes. There is a real concern here that this type of informal adjudication system is going to systematically disadvantage people who can't navigate this bureaucracy. And that will be people who are poor, who are less educated, who don't speak English well — a lot of the same people that these programs are designed to help.

Marc: Can courts do anything about this? I mean, if informal adjudication is unfair, can a court simply require more procedures?

Gwen: Generally, no. There was a case called Vermont Yankee that settled this.

Marc: What did Vermont Yankee say?

Gwen: It's about nuclear power. But what really mattered is that courts had been trying to impose increasing requirements beyond what the minimum was. So they said that agencies have discretion to choose their procedures within constitutional limits. Judges can't try and add additional procedures onto what the APA requires.

Marc: So even if the judges think the procedures are inadequate —

Gwen: Yes, even then. If the agency wants to decide a case with minimal process, and the APA doesn't require more, and the statute for the agency doesn't require more, courts can't second-guess that choice.

Why not make everything formal?

Marc: Okay, I need to ask an obvious question here. Why not just make everything formal? Give everyone a trial-type hearing.

Gwen: All right, so a couple reasons here, and the first one probably isn't what you'd expect.

Marc: Okay, lay it on me.

Gwen: So that passport that you really need to apply for — when you apply for it, what do you want?

Marc: I want my passport. Quickly.

Gwen: Do you want to be told that you can appear before a court on a certain day and hire a lawyer to present your birth certificate, and potentially be cross-examined by somebody who's questioning the dimensions of your photo?

Marc: Well, no, that would be insane. I just want them to approve me and send my passport and go to Spain.

Gwen: Right. So most of the time in these types of cases, agencies are saying yes. They're granting the benefits. They're approving applications. They're issuing licenses. A lot of this work is helping people get what they're entitled to expeditiously.

Marc: So formal procedures would actually make things worse for most people.

Gwen: Much worse. You'd be waiting months, if not years, instead of weeks. You'd have to take time off to attend a hearing just to prove something that wasn't even in dispute to begin with.

Marc: Okay, but what about when they say no? When someone gets denied?

Gwen: That's when more process starts to make more sense. And like with Social Security, that's how these systems are often designed. If there's an easy approval, it's going to be quick and informal. But if that initial decision is denied, then we're going to get increasing procedural protections.

Marc: Okay, so like Social Security disability. Initial denial, then you can appeal to get a real hearing.

Gwen: Yes. And that real hearing, the formal hearing, is reserved for cases where there's actually a dispute that needs to be resolved.

Marc: So informal adjudication isn't just a cost-cutting measure. It's sometimes what people actually want.

Gwen: Yes. When it's working right, it is. It's a quick, accurate decision on routine matters.

Volume and backlogs

Marc: So we're saving the elaborate process for cases that need it. But I'm guessing there is a but somewhere in here.

Gwen: Yeah, there is. So that but is volume. Even if you're limiting formal processes to denials and disputes, the numbers are still staggering. That cost is another reason we don't want everything to be a formal hearing.

Marc: How staggering?

Gwen: So Social Security alone has millions of disability claims every year. A significant percentage of them are denied at the first stage. Hundreds of thousands of people who might want a hearing.

Marc: And how many ALJs are there to hear these?

Gwen: There are only about two thousand in the entire federal government, for all agencies, for all formal adjudications.

Marc: Two thousand judges for millions of cases.

Gwen: Yes. And each formal hearing could take hours, if not days. It will require attorneys presenting cases, transcripts, written decisions with detailed findings. This is not something that's scalable.

Marc: Okay. So even if you only reserve formal adjudication for denials, you still can't give everyone who wants one a hearing.

Gwen: Right. This is why we get these terrible backlogs. Right now, Social Security disability appeals can take over a year to get to a hearing. Immigration backlogs are even worse. They're measured in years. You can sometimes wait four or five years to get your day in court.

Marc: So the tradeoff is quick decisions for most people, but the ones who really need more process might not get it in time.

Gwen: Or might give up before they would get it. That informal stage filters out a huge number of claims, some that shouldn't have been denied in the first place.

Marc: People with strong cases, though, might lose because they couldn't wait two years for a real hearing.

Gwen: Yes, this is really a justice gap. The difference between the procedures that are available and the procedures that would be needed for accurate, speedy, fair determinations.

Marc: Okay, so back to the parent analogy. Most of the time, quick decisions are fine. Riley got the snack he asked for. No hearing needed.

Gwen: Yes. And when the quick decision is wrong, there's no practical way to get it reconsidered.

Marc: And that's when informal adjudication fails people.

Gwen: Yes, that is one of the many tensions in administrative law. We have efficiency versus accuracy, speed versus fairness. People want their passport quickly, but somebody whose passport was denied, they're going to want something more.

Student loans

Gwen: And we can see this in different areas too, like with student loan discharges. Applying for a student loan discharge is adjudication. You're asking the Department of Education to make an individual determination about whether you qualify for the discharge. It's definitely not a formal adjudication. There's no hearing. There's no ALJ. It's just a paper review.

Marc: And millions of people went through that process with the Biden student loan forgiveness program.

Gwen: Yes. Every single one of these was an informal adjudication. Every application.

Marc: But that was relatively straightforward, right? Check if you qualify, approve or deny.

Gwen: There were also instances where the stakes were higher and the procedures were still pretty minimal.

Marc: All right. I'm waiting.

Gwen: Borrower defense claims. So these are claims that the school defrauded you — like they lied about the job placement rates, or their accreditation status, or the value of your degree. If you can make this claim successfully and your claim is approved, your loans will get discharged.

Marc: Like for those for-profit college scandals.

Gwen: Yes, exactly. So Corinthian Colleges, ITT Tech. Hundreds of thousands of students were defrauded, and a lot of them filed borrower defense claims.

Marc: And the procedures for deciding those claims?

Gwen: So for a while, the Department of Education had a massive, massive backlog. At one point, there were over two hundred thousand claims pending. No hearings, no opportunity to present your case in person. Just submit your documentation and wait.

Marc: So how long would you wait?

Gwen: Years. Some people were waiting three, four, five years with no decisions. And the department also sometimes processed them in batches. They would decide, like, everybody related to ITT Tech. All of those claims would be approved.

Marc: So batch processing. Individual circumstances probably are going to get lost.

Gwen: They certainly could.

Marc: You're trying to tell the government, this school lied to me specifically, here's my evidence — and it gets lumped in with thousands of others. All governed by that one APA sentence about informal adjudication.

Gwen: Yes. Tens of thousands of dollars in debt, years of waiting, for what is at best a paper review.

Marc: All right. You said two examples.

Gwen: Okay. So the other one, Public Service Loan Forgiveness. This was, you've worked in public service for ten years, like teachers and nurses. You've made 120 qualifying monthly payments. At that point, your remaining balance was supposed to be forgiven.

Marc: That sounds like a wonderful program.

Gwen: When it works, it is. So when that first cohort of borrowers became eligible in 2017, the denial rate was ninety-nine percent.

Marc: Ninety-nine percent?

Gwen: These were people who'd been doing everything they thought they needed to do for ten years. But the government said that they had done the wrong payment plan, or this was the wrong loan type. There were paperwork issues. There were technicalities.

Marc: And the procedures for challenging a denial?

Gwen: They were really minimal. There was no hearing. You could request reconsideration, and you could submit more paperwork and wait additional months. But there wasn't any opportunity to sit down with someone and say, look, I've been a public school teacher for a decade, here's my evidence, let me explain why I should qualify.

Marc: So the stakes are enormous. We're talking about people who might owe a hundred thousand dollars or more.

Gwen: Yeah. For a lot of people, these would be life-changing amounts. And that decision about whether or not they owe the money, or whether they are going to be totally forgiven, that's made through an informal paper review governed by one sentence of the APA.

Marc: This is what you mean by the APA gap?

Gwen: Yeah. We can have cases with really high stakes and minimal procedures and no statutory requirement for anything more.

Wrapping up

Marc: Okay, so let me make sure I've got this. Adjudication sounds like one thing, but it's actually a huge spectrum.

Gwen: Yes.

Marc: At one end, we have formal adjudication with all those trial-type procedures and cross-examination. At the other end, we have pure paper processing, and then there's everything in between. And the magic words, on the record after opportunity for hearing, determine whether you get the full protections.

Gwen: And the vast majority of the time, you don't. Most adjudications are informal.

Marc: But when you do get a hearing, formal or something close to it, who's actually deciding your case?

Gwen: That's where things start to get complicated. Not all of these agency judges are created equal.

Marc: What do you mean?

Gwen: So some are what I was talking about earlier, those administrative law judges that have serious independence protections. Others are agency employees who can be fired if their bosses don't like their decisions. Some aren't even called judges.

Marc: Same function, different titles, different protections?

Gwen: Yes. And whether you get a truly independent decision maker, or someone who answers to the agency that's prosecuting you, that can make all the difference.

Next time

Marc: Okay. So then I think on the next episode, we should talk about who are these people deciding our cases, and why does it matter?

Gwen: Great idea. Next time we will do ALJs, immigration judges, hearing officers, administrative judges, the whole landscape.

Outro

Marc: So that does it for today's episode on Administrative Remedies. Thank you for joining us today. Please, if you enjoy this podcast, enjoy this episode, give us a like on Spotify, iTunes, or whatever platform you're listening on. And be sure to tune in next time, where we'll continue to dive into the contours of administrative law. Because remember, you can't fix what you don't understand.Related Guides