USA Law and Practice Contributed by: Mark Haskell and Lamiya Rahman, Blank Rome, LLP
8. Evidence 8.1 Disclosure/Discovery
tive Law Judge or hearing examiner. As noted in 8.1 Disclosure/Discovery , the choice of which procedures to adopt usually is left to the sound discretion of an agency. In the context of judi - cial review, courts do not generally review an agency’s factual determinations de novo, with certain limited exceptions (see Citizens to Pre - serve Overton Park, Inc v Volpe, 401 U.S. 402, 415 (1971)). 9. Time Limits and Preliminary Steps 9.1 Preliminary Requirements As noted in 2.1 Determining Susceptibility , agency actions must be final to be subject to judicial review under federal law. Specific stat - utes (such as the Natural Gas Act and the Feder - al Power Act) may impose a requirement to seek rehearing before an agency before a petition for review can be filed. Appeals arising under the Hobbs Act do not generally require this to show that an agency action is in fact final (see 1.1 General Rule or Specific Regimes ; Association of Oil Pipelines v FERC, 83 F.3d 1424, 1432 (D.C. Cir. 1996)). Under the doctrine of administrative exhaustion, a petitioner typically must exhaust all administrative remedies prior to seeking judi - cial review. However, there are some exceptions that permit direct appellate review (for example, in the context of Freedom of Information Act litigation, a requestor may file for judicial review without filing an administrative appeal if the agency has not responded to its request within
Administrative agencies act based on written records. If an agency determines that resolving a matter before it requires the development of facts, it can set the matter for hearing and pro - vide opportunities for the exchange of discovery materials between the parties. Alternatively, an agency may elect to develop a record based on the written submissions (position papers, com - ment letters, affidavits) submitted by interested persons. In either case, to discharge its statu - tory obligations under the APA and its enabling statutes, an agency will need to be in a position to demonstrate that its decision is supported by substantial evidence. The choice of when and how to employ hearing procedures, including the right to seek discov - ery, is generally left to an agency’s discretion. Cases in US district court in which agency action is subject to de novo review (such as market manipulation cases under the Federal Power Act or the Commodity Exchange Act) are subject to the mandatory discovery procedures in Rule 26(f) of the Federal Rules of Civil Procedure. The APA provides that reviewing courts “shall review the whole record or those parts of it cited by a party…” (5 USC Section 706(2)). 8.2 Alternatives to Disclosure/Discovery
See 8.1 Disclosure/Discovery . 8.3 Live Evidence and Cross- Examination
the required statutory timeframe). 9.2 Exhausting Internal Appeals See 9.1 Preliminary Requirements .
Most federal and some state administrative agencies create the possibility of submitting either live evidence or pre-filed evidence with live cross-examination of witnesses as an option for developing an administrative record, either before the agency itself or before an Administra -
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