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Administrative Conference Recommendation 2016-4
Evidentiary Hearings Not Required by the Administrative
Procedure Act
Adopted December 13, 2016
Federal administrative adjudication can be divided into three categories:
(a) Adjudication that is regulated by the procedural provisions of the Administrative
Procedure Act (APA) and usually presided over by an administrative law judge (referred to as
Type A in the report that underlies this recommendation and throughout the preamble)';
(b) Adjudication that consists of legally required evidentiary hearings that are not
regulated by the APA's adjudication provisions in 5 U.S.C. §§ 554 and 556-557 and that is
presided over by adjudicators who are often called administrative judges, though they are known
by many other titles (referred to as Type B in the report that underlies this recommendation and
throughout the preamble)2; and
(c) Adjudication that is not subject to a legally required (i.e., required by statute,
executive order, or regulation) evidentiary hearing (referred to as Type C in the report that
underlies this recommendation and throughout the preamble).3
I See Administrative Procedure Act, 5 U.S.C. §§ 554-559 (2012). Ina few kinds of cases, the presiding employees
in APA hearings are not administrative law judges. Congress may provide for a presiding employee who is not an
ALI. See id. § 556(b).
2 This type of adjudication is subject to 5 U. S.C. § 555 (requiring various procedural protections in all adjudication)
and 5 U.S.C. § 558 (relating to licensing), as well as the APA's judicial review provisions.
3 See generally Michael Asimow, Evidentiary Hearings Outside the Administrative Procedure Act (Nov. 10, 2016)
[hereinafter Asimow], available at https://www.acus.gov/report/evidentiary-hearings-outside-administrative-
procedure -act-final-report.](ViewImageLocal?handle=hein.usfed/evhnrq0001&div=1&collection=&method=preview&ext=.png&size=3)