Notice & Comment

Not Likely, by Kent Barnett

*This is the third post in a mini-symposium on Alexander Platt’s paper, Is Administrative Summary Judgment Unlawful? For earlier posts in the series, click here.

When Philip Hamburger asked capaciously and provocatively Is Administrative Law Unlawful?, Adrian Vermeule famously and simply responded, “No.

Echoing Hamburger, Alex Platt asks a more limited question in his forthcoming article in the Harvard Journal of Law & Public Policy: Is Administrative Summary Judgment Unlawful?** He answers affirmatively, at least for on-the-record adjudications with sanctions, based on the APA’s text, legislative history, and early practice. Although Platt focuses on summary judgment in sanctions proceedings before the Securities and Exchange Commission, his arguments would apply to numerous other adjudications and forms of summary judgment in federal agencies. Platt’s article is intriguing and ambitious, and his voice is a welcome one in the cadre of scholars reconsidering agency adjudication with fresh eyes. Nevertheless, with a nod to Vermeule, my more modulated response to Platt’s question is “not likely.”

Put most plainly, Platt poses the following question: If no genuine issues of material fact exist, must an agency—guided by the informal provisions of the APA as compared to the Federal Rules of Civil Procedure—provide a costly and time-consuming oral hearing anytime that the APA requires an oral hearing? Platt straightforwardly provides a surprising answer: “Congress . . . wanted to force an agency to waste time on a hearing where there was no genuine dispute as to any material fact.” (Platt at p. 240)

Platt’s primary argument is textual. Sentences five and six of APA § 556(d) provide as follows (with emphasis added):

[5] “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.”

[6] “In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form.”

Platt argues that Sentence Five creates a “general entitlement for parties in formal adjudication to present oral evidence and Sentence Six articulates specific exceptions” in which parties may be required to present their case or defense only in written materials. (p. 257) He correctly notes that the APA’s provisions often speak directly to adjudications concerning sanctions, and Sentence Six omits sanctions in its list of exceptions. He concludes, accordingly, that proceedings for sanctions do not fit within Sentence Six and thus cannot be the subject of summary judgment.

In my view, Platt’s textual inquiry first attacks a strawman and then draws a conclusion that does not necessarily follow from its established premise. First, I would concede that Sentence Five applies to sanctions proceedings by its own terms, and I’m not aware of any other meaningful contrary arguments. Second, the fact that Sentence Five requires oral hearings does not necessarily tell us when a party is entitled to that oral hearing. Likewise, Sentence Six does not necessarily tell us when a party is entitled to an oral or written hearing. What both sentences clearly do is describe the kind of hearing required. Platt, however, interprets any reference to a hearing with written submissions to mean summary judgment or similar proceeding and any reference to an oral hearing as akin to a trial. Although his reading might be a reasonable one, he seeks to undermine a longstanding, nearly universal contrary reading of the statute without providing any significant support for why his preferred reading (that written hearings refer to summary judgment) over another reasonable reading (that written hearings refer to a mode of hearing when one is necessary) should prevail.

To determine when a hearing is due, in my view, the more relevant textual inquiry concerns not a comparison of Sentences Five and Six, but only the first clause of Sentence Five (emphasis added): “[a] party is entitled to present his case or defense by oral or documentary evidence.” Platt argues that the italicized language means that one gets a hearing no matter whether one has any evidence (or no matter how immaterial or irrelevant) and no matter whether the agency argues that it prevails as a matter of law. His reading is reasonable when the words are considered in isolation. After all, the language speaks broadly of entitlement and broadly of a party’s presentation of its “case” or “defense.” But at least two other APA provisions cut against his interpretation. First, the second sentence of § 556(d) excludes “irrelevant, immaterial, or unduly repetitious evidence.” Second, the final sentence of § 706 requires courts to take “due account . . . of the rule of prejudicial error.” A summary disposition is by hypothesis one in which a party has failed to proffer sufficient evidence to create a material issue of fact, even after the adjudicator considers that proffered evidence (including the credibility of proffered testimony) most favorably to the nonmoving party. In other words, the adjudicator has held that the nonmoving party’s evidence is immaterial to the agency decision under its most charitable view of the nonmovant’s evidence because the nonmoving party has not met its burden of production for its defense. And even if a party were entitled to present evidence that did not create a genuine issue of material fact, a reviewing court would be hard pressed to conclude that the agency’s failure to provide that hearing amounted to prejudicial error because the agency already gave the nonmovant the benefit of the doubt on its proffered evidence. Indeed, a party could not do better, by hypothesis, with an oral hearing that it would do under the familiar summary-judgment standard.

What is more, if a nonmoving party is entitled to a pointless hearing, it is far from clear that an agency could ever decide a case as a matter of law via a motion to dismiss. After all, under Platt’s reading, the party has an absolute entitlement to a hearing in all cases—even if the issue is only one of law. If he disagrees and thinks agencies can rule as a matter of law, he must explain where he reads into the same sentence his limiting principle, while at the same time finding no limiting principle that permits summary judgment.

Under my reading, Sentences Five and Six do not collapse into each other. When the agency must resolve a material fact, the agency must grant a party an oral hearing in any matter to which the exceptions in Sentence Six (rulemaking, money, benefits, or initial licensing) do not apply. If Sentence Six applies, the agency can provide a hearing on the papers to resolve a material fact, unless a party would be prejudiced without an oral hearing. The nature of the agency action (rulemaking, e.g.) or the subject matter of the adjudication (benefits, e.g.) are still relevant to the kind of hearing concerning any disputed material fact.

I disagree with Platt’s contention that the drafting history of § 556(d) confirms his textual reading. For example, he notes that a draft of what would become § 556(d) would have given agencies broad discretion to use written or oral hearings, but Congress ultimately enacted a version with two sentences (Sentences Five and Six) that permitted written hearings only for certain kinds of matters. (p. 267) From this drafting change, he posits that a party is always entitled to a hearing, no matter how useless, when that party’s matter falls outside Sentence Six’s listed exceptions. But this drafting change, like the final text itself, could just as easily concern which kind of hearing, not when a hearing, is due.

As another example, he shows that the Senate Judiciary Committee Members were concerned with agencies’ overreliance on written hearings in matters that “present sharply contested issues of fact.” (p. 270) But this language does not indicate that an agency had to provide hearings in every case. Instead, the Committee distinguished cases in which the disputes were meaningful (i.e., “sharply contested”) from those that were not. It then indicated that oral hearings were for meaningful disputes, while written ones were for less meaningful ones. Had the Committee intended to suggest Platt’s preferred reading, the Committee could have simply asserted its concern over written hearings that “present [sharply] contested issues of fact” (as an earlier draft bill had done, see p. 267–68). My hypothetical language would have indicated Congress’s concern over having any kind of dispute—material or not—decided in written hearings. But the Committee did not use that language. Instead, it qualified its concern by distinguishing contested factual matters not by their existence, but by their significance.

Another passage from page 208 of the Senate Judicial Committee Report also suggests that Sentences Five and Six are not as absolute as one may read them (emphasis added):  

“The right of cross examination extends, in a proper case, to written evidence submitted pursuant to the last sentence of the subsection [earlier version of sentence six] as well as cases in which oral or documentary evidence is received in open hearing. Even in the latter case [oral hearings], subject to the appropriate safeguards, technical data may as a matter of convenience be reduced to writing and introduced as in courts.”

The passage indicates that agencies may require the submission of certain written evidence, even in oral hearings, when convenient. And it indicates that the propriety of written hearings has to do with the kind of evidence at issue, not whether a genuine issue of material fact exists. That said, the passage is not without ambiguity. Did the Committee mean to refer to all cases of oral hearings—under both Sentences Five and Six—or just oral hearings under Sentence Six? I think that passage is best read to refer to all oral hearings because the first clause in the first sentence distinguishes written evidence submitted under Sentence Six from cases in which agencies receive evidence in oral hearings—without any limitation to oral hearings provided under either Sentences Five or Six. Reasonable minds can disagree, but the passage indicates that difficulty in an absolutist reading of § 556(d) and in assuming that written hearings necessarily mean summary hearings.

Finally, in a passage that Platt does not mention, the House Report No. 1980 suggests that summary judgment is permissible. In discussing a precursor to § 556(d), the House Report states (with emphasis added) (House Rpt. p. 270), “That the proponent of a rule or order has the burden of proof means not only that the party initiating the proceeding has the general burden of coming forward with a prima facie case but that other parties, who are proponents of some different result, also for that purpose have a burden to maintain. . . . [T]his section means that every proponent of a[n] . . . order or the denial thereof has the burden of coming forward with sufficient evidence therefor.” The regulated party under threat of sanction would be the “proponent of . . . the denial” of an order for sanction and would share a burden of coming forward. If that party were entitled to a full-blown hearing simply when they contested the order sought, that party would have no burden of coming forward after the government had done the same. Instead, that party (and the government) would always move directly to a full-blown merits hearing to resolve the matter and thus have no burden of production. Such a result would be contrary to the House Report, leaving only the burden of proof with any relevance.

Moving beyond the drafting history, Platt next argues that Congress should be understood as prohibiting summary judgment because Congress enacted the APA when numerous states still had not adopted the practice of summary judgment. (pp. 273–81) The purpose of this argument is to demonstrate that procedure without summary judgment would not have seemed odd to those in the 1940s. But his argument for Congress’s view comes from how states acted. To be sure, Platt is correct that states were not yet sold on summary proceedings and often limited them to certain disputes. But, as he recognizes, Congress had permitted summary proceedings to all matters in the Federal Rules of Civil Procedure in 1938, less than a decade before enacting the APA in 1946. At no point does Platt show that Congress was thinking of more restrictive state practice—a practice that grew more unpopular by the day—when enacting the APA, even if the idea would not have seemed foreign. In addition, one of the key issues surrounding the suitability of summary judgment was whether it interfered with a party’s Seventh Amendment right to a jury trial at common law. Juries, of course, are not required for agency adjudications. Platt does not explain why Congress would have prohibited agencies from using summary proceedings where the leading objection to their use was absent.

Moreover, if we are to guess which kind of judicial proceedings Congress had in mind when drafting the APA, it may make more sense to think that Congress was thinking of equity practice, not state practice. After all, the House Report in discussing a draft of what would become § 556(d) expressly stated that “an administrative hearing is to be compared with an equity proceeding in the courts.” (House Rpt. p. 270) (The earlier Senate Report at p. 208 is in accord.) Before the 1938 Federal Rules of Civil Procedure that brought about a unified system of equity and law courts, equity courts had a rebuttable presumption of oral hearings, whereby a party could move for written hearings. Notably, the default of oral hearings, with exceptions for written hearings is similar to Sentences Five and Six of § 556(d). And, although more research on equity practice is necessary, equity courts had a device with similarities to summary judgment (or “trial by inspection”) to decide obvious issues long before the APA’s enactment. Now, I am not sure that Congress was thinking about prehearing practice in equity courts before 1938 when drafting Sentences Five and Six any more than it was thinking about state summary judgment practice. But if we had to choose between them, both the House and the Senate invoked equity, not state practice.

Just like the legislative history, the 1947 Attorney General’s Manual on the APA that Platt cites says nothing directly on the matter of summary judgment. The cited passage notes only that written hearings are typically inappropriate when veracity is at issue. (p. 283) And so it goes for the midcentury scholars and judicial decisions that he cites. (pp. 284–86).

At base, in my view, Platt consistently conflates any reference to “written hearing” as meaning a summary proceeding and “oral hearing” as meaning something like a full-blown trial. Instead, these phrases identify the kind of hearing that must occur when an agency must provide a hearing. Based on the APA’s legislative history and contemporaneous scholarly and judicial views, has Congress required agencies to engage in pointless oral hearings—even when the hearing is not necessary to resolve a material fact? Not likely.

Even if I am wrong about everything up to this point, Platt has a significant dog-that-didn’t-bark problem. He points to no one who clearly asserted his interpretation after the APA’s enactment. More to the point, when a recommendation by the Administrative Conference of the United States (ACUS) in 1970 lauded administrative summary judgment, it does not appear that anyone in ACUS dissented (as a member has the right to do). Platt points to no disagreement from the private bar either, whether to the recommendation or to the then-existing uses of summary judgment in the several agencies that the report underlying the recommendation identified. This silence is conspicuous. Even if one views summary judgment as an invention of the 1960s and 1970s administrative-law bar, as Platt does, regulated entities’ lawyers had become experts in invoking their clients’ right to an oral hearing or cross-examination specifically under § 556(d), as the numerous formal rulemaking cases of the late 1960s demonstrate. Why would these lawyers not challenge summary judgment under an APA rule that they knew well and invoked often? Together, ACUS’s recommendation and regulated entities’ silence creates not just a dog that didn’t bark but a dog that wags its tail in my preferred interpretation’s direction.

So, based on my review of Platt’s arguments, why don’t I respond as simply as Vermeule did to Hamburger by straightforwardly answering “no”? Because I think more work must be done to provide a definitive answer. I would like to see additional research on the following matters: the uses of summary judgment in agencies before and after the APA’s enactment, especially for sanctions or other matters subject to Sentence Five of § 556(d); any specific and clear discussions about its lawfulness, something that Platt’s currently cited sources lack; and any other germane legislative history that considers the question. (My own perusal of the APA legislative history found nothing that addressed the question or even suggested anyone was thinking of any particular rules of civil procedure more specifically than what I cite above.)

Likewise, Platt proffers policy reasons for opposing summary judgment—lack of trust in agencies, lack of mandated discovery (unlike in judicial proceedings), concern as to agency overenforcement, and the utility of oral hearings in assessing penalties (even if not guilt) in sanctions proceedings. (pp. 311–19) These strike me as plausible and significant reasons to question summary judgment in sanctions proceedings as a policy matter, even if they may not overcome the well-recognized efficiency gains that summary judgment provides for the agency to spend more time on enforcing harder cases. But because Platt is making an APA originalism argument and not calling for legislative action, I would like Platt to demonstrate that the APA-enacting Congress was thinking of any of these policy concerns and how it limited these policy concerns to only hearings about sanctions under Sentence Five. After all, even if his argument were limited to sanctions, the APA’s definition of “sanction” is extremely broad and applies not only to what may be analogous to a criminal penalty but also the mere denial, not even revocation, of a license or privilege. What evidence indicates that Congress had such a nuanced approach to APA adjudications and sanctions?

 Platt’s is a welcome contribution to the revived scholarly discussion on federal agency adjudication and the burgeoning interest in “APA Originalism.” Yet, despite his textual and contextual arguments, I am not convinced that the indeterminate sources that he identifies are sufficient to disrupt the long-accepted and widespread use of administrative summary judgment. At best, the text and other sources upon which he relies are ambiguous and, at worst, contrary to his preferred interpretation. An ambiguous textual and historical record is not sufficient to disturb what appears to be the near-universal understanding for more than 50 years (and beginning at the latest only about 20 years after the APA’s enactment). Do I think that Platt will be able to uncover evidence that clearly supports his interpretation? It’s not likely, but I await future research on this question.

Kent Barnett is J. Alton Hosch Associate Professor of Law at the University of Georgia School of Law.

** Unlike courts, agencies do not issue judgments, so the phrase “summary judgment” is used by analogy to refer to the phenomenon of deciding a case as a matter of law when there is no material factual dispute at issue. I use the terms “summary judgment,” “summary proceedings,” and “summary disposition” to refer to this phenomenon in administrative adjudication.