- 23 -
making. See id. at 225 n.1. With respect to the APA, the Court
said: “Turning to that Act, we are convinced that the term
'hearing' as used therein does not necessarily embrace either the
right to present evidence orally and to cross-examine opposing
witnesses, or the right to present oral argument to the agency's
decisionmaker.” Id. at 240. The Court held that the APA
requires an agency to use formal rule making procedures,
including an oral evidentiary hearing, only when, pursuant to APA
section 553(c), rules “are required by statute to be made on the
record after opportunity for an agency hearing.” See id. at 240-
241. If the statute requires the agency only to make rules
“after hearing”, the agency is free to use informal rule making
procedures, even if the agency bases its rule on consideration of
contested factual issues.
United States v. Fla. E. Coast Ry. Co., supra, involved rule
making. Although the Supreme Court has not yet addressed
directly the question of whether the reasoning of Fla. E. Coast
Ry. Co. also applies to agency adjudications, Professors Davis
and Pierce, in their respected treatise on administrative law
(Davis & Pierce, Administrative Law Treatise (3d ed. 1994)),
conclude that there are three reasons to believe that it does:
First, the language in APA section 553(c) that triggers the
requirement to use formal rule making is identical to the
language in APA section 554(a) that triggers a requirement to use
Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 NextLast modified: May 25, 2011