Last Updated 25 Dec 2020

Federal Administrative Procedures

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“While Section 556 refers to the “burden of proof,” the APA fails to define the term.   Traditionally courts distinguish between the burden of persuasion and the burden of production, although the term, “burden of proof” is often used loosely to encompass both.

Where distinguished, the “burden of persuasion” indicates which party must satisfy the decision maker in order to avoid losing on a given issue.  In contrast, the “burden of production, sometimes called the “burden of going forward with evidence,” refers to which party must initially come forward with evidence on an issue.  At times, while these distinct burdens are often borne by the same party, at times one party may have the responsibility to step forth with evidence concerning some issue (burden of production) while the other party maintains the responsibility to satisfy the decision-maker with respect to that issue (burden of persuasion).

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There are two cases that are probative on the issue.  The first is NLRB v. Transportation Management Corp, 462 U.S. 393 (1983) which held that the “burden of proof” in 556 (d) refers only to the “burden of production”.

The second case, Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994) reached an opposite conclusion and broke with long-established holdings and the first case, to define that, “burden of proof” and “burden of persuasion” are the same and opposite from the “burden of production”.

In the case of EES however, since a federal agency issued the license in the hearing, the federal APA will apply procedures consistent with the procedures established by case law:  the agency has the “burden of proof” (also, the “burden of production”) and must come forward with the proof of the issue.  The EES then has the “burden of persuasion”, and must come forward with evidence that outweighs the agency’s. evidence.

Requesting an Administrative Judge under the Florida Administrative Procedures Act

The EES’s request for an administrative law judge would be in response to an initial ruling in the agency’s favor.  Robert C. Downie II  in his article, “Florida Administrative Procedures Act remedies survey” (Downie II, 2003), explains that a request for an administrative law judge is a challenge to any initial ruling in favor of the agency (which is analogous to our case: the EES seeks to challenge the agency’s decision.

In his article Downie II also states that according to Fla. Stat. section 120.569(2)(a):

“All rule challenges are filed at the Division of Administrative Hearings (DOAH) and are assigned to an administrative law judge (ALJ) for a formal evidentiary hearing. A hearing is essentially a non-jury trial. Following the hearing, the ALJ will issue the final order, which may be appealed to the appropriate district court of appeal.

Generally, a rule can be challenged on three basic grounds, or any combination thereof: procedural errors, lack of authority, and substantive deficiencies. These grounds collectively are referred to as “invalid exercises of delegated legislative authority.”

The Fairness of the Hearings Process:  Differences between Federal APA and Florida APA

According to the federal APA there is a series of steps to determine if adjudication is required.  They are as follows:

  1. § 554(a) – The Test: Formal adjudication only required when the agency’s statute requires determination on the record after a hearing. * If so, use § 556-57.  Then, after determining that formal adjudication is required, certain procedural rules come into play, which according to § 554 requires the use of procedures typically used at trial.
  2. Notice. § 554(b)
    Opportunity to reach a settlement. § 554(c)(1)
    Must be conducted in accordance with § 556 and § 557.
  3. § 556 – Addresses the hearing procedures; authorizes use of ALJs (§ 556(b) – (c)) and places the B/P on the agency. Any decision must be based on the evidence in the record. § 556(d) Also, agency decisions of fact in formal  APA proceedings are reviewed under the substantial evidence standard.

  This means that the reviewing court will only hold an agency’s actins unlawful in six instances, when based on a review of the facts the court finds the agency’s actions have been:

unlawfully withheld or unreasonably delayed and conclusions found to be —

  1. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
  2. contrary to constitutional right, power, privilege, or immunity;
  3. in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
  4. without observance of procedure required by law;
  5. unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
    unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.

In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.  APA § 706

However, in contrast as we’ve seen under Florida’s APA, adjudication is required in three circumstances (procedural errors, lack of authority, and substantive deficiencies), at the request of the party who seeks to appeal the decision.

Fairness in the Administrative Procedures:  Florida’s APA v. The Federal APA

I think the Florida’s APA is much more fair than the federal APS because it allows for review of a broader range of issues, while the federal APA has narrowed the range of issues that it will review regarding an agency’s decisions.   In effect, I feel that the difference allows for bias in favor of limiting the review of agency decisions.

  Further, there is one other way in which the ability to review agency decisions, is biased to favor the agency according to the federal APA, which has to do with the scope of judicial review that the agency must withstand:  the scope of the judicial review of an agency’s decisions depends on the agency’s choice of procedures.


  1. Asimow, Michael. (2003).“A Guide to Federal Agency Adjudication,” American  Bar Association .  Retrieved February 23, 2009, from Google books.
  2. Downie II, Robert C. (2007). “Florida Administrative Procedures Act remedies survey”  Retrieved February 23, 2009, from

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Federal Administrative Procedures. (2016, Jun 14). Retrieved from

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