Cite as: 535 U. S. 743 (2002)
Breyer, J., dissenting
regulations, § 1716 (1994 ed.), by issuing or revoking licenses, § 1718 (1994 ed., Supp. V), and by conducting investigations and issuing reports, see generally § 1710 (1994 ed. and Supp. V). It also permits a private person to file a complaint, which the Commission is to consider. § 1710(a) (1994 ed.). Interestingly enough, it does not say that the Commission must determine the merits of the complaint through agency adjudication, see § 1710(g) (1994 ed., Supp. V)—though, for present purposes, I do not see that this statutory lacuna matters.
Regardless, the Federal Maritime Commission has decided to evaluate complaints through an adjudicative process. That process involves assignment to an administrative law judge, 46 CFR § 502.146(a) (2001), a hearing, an initial decision, §§ 502.147, 502.223, Commission review, and a final Commission decision, § 502.227, followed by federal appellate court review, 28 U. S. C. § 2342(3)(B). The initial hearing, like a typical court hearing, involves a neutral decision-maker, an opportunity to present a case or defense through oral or documentary evidence, a right to cross-examination, and a written record that typically constitutes the basis for decision. 46 CFR § 502.154 (2001). But unlike a typical court proceeding, the agency process also may involve considerable hearsay, resolution of factual disputes through the use of "official notice," § 502.156; see also 5 U. S. C. § 556, and final decisionmaking by a Commission that remains free to disregard the initial decision and decide the matter on its own—indeed through the application of substantive as well as procedural rules, that it, the Commission, itself has created. See 46 CFR §§ 502.226, 502.227, 502.230 (2001); see also 46 U. S. C. App. § 1716 (1994 ed.) (rulemaking authority); 46 CFR §§ 502.51-502.56 (2001) (same).
The outcome of this process is often a Commission order, say, an order that tells a party to cease and desist from certain activity or that tells one party to pay money damages (called "reparations") to another. The Commission cannot
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