Herring v. New York, 422 U.S. 853, 862 (1975) ("[T]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free."); Paul R. Verkuil, A Study of Informal Adjudication Procedures, 43 U. Chi. L. Rev. 739, 743 (1976) ("As a matter of Anglo-American culture, the historically favored system for dispute resolution is the adversary system, where control is reserved to the litigants, and the decision maker assumes a passive role."); Emily S. Bremer, Reckoning with Adjudication's Exceptionalism Norm, 69 Duke L.J. 1749, 1761-62 (2020) [hereinafter Bremer, Reckoning with Exceptionalism] ("Although adversarial hearings are a hallmark feature of the American legal system, courts have held that an inquisitorial hearing in the administrative context can satisfy the Constitution's Due Process Clause.").

5 U.S.C. §§ 551 et seq.

See Bremer, Reckoning with Exceptionalism, supra note 1, at 1763 (table of "top ten largest" federal administrative adjudication schemes).

Id. §§ 554, 556-57; Christopher J. Walker & Melissa F. Wasserman, The New World of Agency Adjudication, 107 Cal. L. Rev. 141, 149 (2019); see infra "Formal Adjudication."

See Aaron L. Nielson, Three Wrong Turns in Agency Adjudication, 28 Geo. Mason L. Rev. 657, 678 (2021) (arguing that "regulators sometimes may be tempted to take shortcuts" and that "agencies gradually persuaded courts to grant them greater discretion over the issue" of when formal adjudication requirements apply).

Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1963-64 (2020) (describing immigration legislation that "crafted a system for weeding out patently meritless claims" through the use of "more expedited procedures").

Henderson v. Shinseki, 562 U.S. 428, 440 (2011) (noting that the "solicitude of Congress for veterans is [] long standing" and "plainly reflected" in procedural laws for the adjudication of veterans benefits that "place a thumb on the scale in the veteran's favor") (internal quotation marks omitted).

Walker & Wasserman, supra note 4, at 153 ("Despite administrative law's fixation on APA-governed formal adjudication, the vast majority of agency adjudications and federal regulatory actions do not involve APA-governed formal adjudications . . . .").

See infra "Adversarial Trial-Type Proceedings Not Governed by Formal APA Requirements."

John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America 128 (3d ed. 2007); see infra "Non-Adversarial Evidentiary Hearings."

See infra "Non-Adversarial Interviews or Inspections."

CRS Legal Sidebar LSB10182, D.C. Circuit Rules FTC Opinion Letter Not "Final Agency Action" Subject to Judicial Review, by Daniel J. Sheffner, at 2 ("In addition to promulgating binding regulations and orders, agencies carry out their statutorily prescribed activities in countless other ways, including by gathering information and input from stakeholders and the public through public hearings and other formal and informal formats; issuing non-binding oral or written guidance detailing how they understand or interpret their statutory authority or obligations; and determining whether and how to utilize their discretion to enforce regulations and statutes they administer.").

See United States v. Fla. East Coast R. Co., 410 U.S. 224, 245 (1973) (explaining that there is "a recognized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or standards . . . and proceedings designed to adjudicate disputed facts in particular cases"). Under the APA, agency rules that bear the force of law generally must be promulgated in accordance with the statute's "informal rulemaking," or notice-and-comment, procedures. 5 U.S.C. § 553. However, where "rules are required by statute to be made on the record after opportunity for an agency hearing," an agency may issue a rule only after engaging in a trial-type, evidentiary proceeding governed by the formal procedures contained in 5 U.S.C. §§ 556 and 557. Id. § 553(c). This is known as "formal rulemaking." See CRS Report R46673, Agency Rescissions of Legislative Rules, by Kate R. Bowers and Daniel J. Sheffner, at 5. While the APA applies to rulemakings by default, Congress can impose additional or alternative rulemaking procedures on agencies. Cf. 5 U.S.C. § 559 (providing that a "[s]ubsequent statute may . . . supersede or modify" the APA if "it does so expressly"). Procedures, both from the APA and other sources, that govern adjudications are discussed throughout this report. See infra, passim.

In addition to issuing rules and adjudicative orders, agencies often also perform investigations. See Appeal of FTC Line of Business Report Litigation, 595 F.2d 685, 695 (D.C. Cir. 1978) ("The language and legislative history of the APA suggest a classification of agency activity into three basic categories: rulemaking, adjudication and investigation."). The APA contains provisions applicable to agency investigations at 5 U.S.C. § 555.

Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994); see also Michael Asimow & Ronald M. Levin, State and Federal Administrative Law 62 (3d ed. 2009) [hereinafter Asimow & Levin (writing that an adjudication "affects specific persons" and that a rulemaking "affects a class of persons")].

Yesler Terrace Cmty, 37 F.3d at 448.

Bowers & Sheffner, supra note 13, at 1.

See Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 418 (1942). Note that, in some instances, an action of particular—as opposed to general—applicability may be classified as a rule. See 5 U.S.C. § 551(4) (definition of "rule" in the APA); see infra note 19.

SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) ("[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.").

The APA states that an adjudication is the "agency process for the formulation of an order." 5 U.S.C. § 551(7). An order is defined as "the whole or a part of a final disposition . . . of an agency in a matter other than rule making but including licensing." Id. § 551(6) (emphasis added). A "rule making" under the APA is the "agency process for formulating, amending or repealing a rule," and a "rule," in turn, is "the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency. Id. § 551(4) (definition of "rule"), (5) (definition of "rule making"). The APA's definition of rule includes agency statements that do not carry the force of law or that are procedural in nature. See Bowers & Sheffner, supra note 13, at 6, 7–9

Yesler Terrace Cmty. Council v. Cisneros, 37 F.3d 442, 448 (9th Cir. 1994). That said, agencies also engage in investigative acts, in addition to adjudications and rulemakings. See supra note 13.

5 U.S.C. § 551(4). See supra note 19.

See, e.g., Neustar, Inc. v. FCC, 857 F.3d 886, 895 (D.C. Cir. 2017); see Michael Asimow, Admin. Conf. of the U.S., Federal Administrative Adjudication Outside the Administrative Procedure Act 10–11 (2019) [hereinafter Asimow, Federal Administrative Adjudication]; see also Safari Club Int'l v. Zinke, 878 F.3d 316, 333 (D.C. Cir. 2017) ("[R]ules generally have only 'future effect' while adjudications immediately bind parties by retroactively applying law to their past actions.").

In United States v. Florida East Coast Railway Co., 410 U.S. 224, 244 (1973), the Supreme Court explained that "[t]he basic distinction between rulemaking and adjudication is illustrated by" the Court's earlier decisions in Londoner v. Denver, 210 U.S. 373 (1908), and Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441 (1915). In Londoner, the Court held that a city ordinance that assessed a particular tax against the residents of a district but that did not allow the residents an opportunity for an oral hearing deprived the plaintiff of due process. 210 U.S. at 374, 385–86. However, in Bi-Metallic, the Court held that an order from two state boards that raised the tax value of all taxable properties in Denver, Colorado, but which did not afford residents an opportunity for a hearing, did not violate due process. 239 U.S. at 443, 445–46. The Bi-Metallic Court distinguished its earlier decision in Londoner by explaining that, in the former case, a "relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds." Id. (citing Londoner, 210 U.S. at 385). These cases stand for the traditional proposition that, while procedural due process may protect parties' rights in certain administrative adjudications, see infra "Due Process and Other Sources of Adjudication Procedures," procedural due process concerns are not present in the rulemaking context. See Asimow & Levin, supra note 14, at 62 (writing that "[p]rocedural due process does not apply to rulemaking"); but see Ass'n of Am. R.R. v. Dep't of Transp., 821 F.3d 19, 34 (D.C. Cir. 2016) (holding that "[b]ecause [the Passenger Rail Investment and Improvement Act of 2008] endows Amtrak with regulatory authority over its competitors, that delegation violates due process").

NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765-66 (1969) (plurality); see Neustar, Inc. v. FCC, 857 F.3d 886, 894 (D.C. Cir. 2017) ("The fact that an order rendered in an adjudication may affect agency policy and have general prospective application[] does not make it rulemaking subject to APA section 553 notice and comment.") (internal quotation marks and citations omitted).

Yesler Terrace Cmty, 37 F.3d at 448 (explaining that a determination by the Department of Housing and Urban Development had "all the hallmarks of a rule" because it "had no immediate, concrete effect on anyone, but merely permitted [public housing authorities] to evict tenants in the future without providing them with informal grievance hearings," and "affected the rights of a broad category of individuals not yet identified"); see Safari Club Int'l v. Zinke, 878 F.3d 316, 333–34 (D.C. Cir. 2017) (explaining that bans on importation of sport-hunted elephants from Zimbabwe by the U.S. Fish and Wildlife Service "were not retroactive [adjudications] because their issuance resulted in no immediate legal consequences for any specific parties").

See Law Motor Freight, Inc. v. Civil Aeronautics Bd., 364 F.2d 139, 143 n.4 (1st Cir. 1966) ("'[W]hat is otherwise rule making [under the APA] does not become adjudication merely because it applies only to particular parties or to a particular situation.'") (quoting Kenneth Culp Davis, 1 Administrative Law Treatise § 5.02, at 296 (1958)).

482 F.2d 1301 (10th Cir. 1973).

Id. at 1303, 1306.

Daniel J. Sheffner, Access to Adjudication Materials on Federal Agency Websites, 51 Akron L. Rev. 447, 451 (2017); see infra "Brief Survey of Informal Adjudication."

5 U.S.C. §§ 554, 556–557.

See Richard W. Murphy, Judicial Deference, Agency Commitment, and Force of Law, 66 Ohio St. L.J. 1013, 1053 (2005).

See infra "Non-Adversarial Interviews or Inspections."

Herring v. New York, 422 U.S. 853, 862 (1975); Verkuil, supra note 1, at 743.

As the Supreme Court has explained in the context of a federal administrative adjudication scheme, "[t]he critical feature that distinguishes adversarial proceedings from inquisitorial ones is whether" parties "bear the responsibility to develop issues for adjudicators' consideration." Carr v. Saul, 141 S. Ct. 1352, 1358 (2021).

Ass'n of Nat'l Advertisers, Inc. v. FTC, 627 F.2d 1151, 1160 (D.C. Cir. 1979); see 5 U.S.C. §§ 554, 556–557.

See Ass'n of Nat'l Advertisers, 627 F.2d at 1161 n.17.

See Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir. 2001) (explaining that "[t]he challenged action is an 'informal adjudication' which is the administrative law term for agency action that is neither the product of formal adjudication or a rulemaking").

See 5 U.S.C. §§ 555, 558.

See Asimow, Federal Administrative Adjudication, supra note 22, at 2–3; see infra "Due Process and Other Sources of Adjudication Procedures."

See, e.g., Emily S. Bremer, Designing the Decider, 16 Geo. J.L. & Pub. Pol'y 67, 69 (2018) [hereinafter Bremer, Designing the Decider] (refusing to use "the traditional formal-informal dichotomy in favor of [the more recent] classification scheme"). An "evidentiary hearing," for purposes of this framework, is an oral or written proceeding for the submission of evidence that produces an exclusive record, meaning that the adjudicator may not consider other evidence. Asimow, Federal Administrative Adjudication, supra note 22, at 10.

See Asimow, Federal Administrative Adjudication supra note 22, at 3–4. This scheme was developed by Professor Michael Asimow. See, e.g., Michael Asimow, The Spreading Umbrella: Extending the APA's Adjudication Provisions to All Evidentiary Hearings Required by Statute, 56 Admin. L. Rev. 1003, 1005-06 (2004). Asimow refers to the three types of adjudication as Type A adjudications, Type B adjudications, and Type C adjudications, respectively. See Michael Asimow, Admin. Conf. of the U.S., Evidentiary Hearings Outside the Administrative Procedure Act 2 (2016). The Administrative Conference of the United States (ACUS) referred to Types A, B, and C adjudications by those names in the preamble of a formal recommendation that was based on Asimow's 2016 research report (which ACUS had commissioned). See Adoption of Recommendations, 81 Fed. Reg. 94312, 94314-315 (Dec. 23, 2016). The agency has adhered or referred to the classification in subsequent recommendations. See, e.g., Adoption of Recommendations, 84 Fed. Reg. 2139, 2140 n.4 (Feb. 6, 2019) ("This Recommendation addresses both Type A and Type B adjudications but does not apply to adjudications that do not involve a legally required evidentiary hearing (known as 'Type C' adjudications.).").

81 Fed. Reg. at 94314 n.4 (clarifying that "[t]raditionally, [the first category of] adjudication has been referred to as 'formal adjudication'"); but see Bremer, Reckoning with Exceptionalism, supra note 1, at 1760 n.51 (2020) (asserting that the first category "includes proceedings that would not be considered 'formal' under the traditional approach because they are not required by statute to be conducted under the APA's adjudication provisions," but rather by regulation) (emphasis added).

Asimow, Federal Administrative Adjudication, supra note 22, at 5 (explaining that "[t]he word 'informal' is commonly used in practice and in scholarship to cover [the second and third categories of] adjudication" mentioned above).

5 U.S.C. §§ 554, 556–557. Section 554 exempts the following from the APA's formal adjudication provisions:

(1) a matter subject to a subsequent trial of the law and the facts de novo in a court;

(2) the selection or tenure of an employee, except a[n] administrative law judge appointed under section 3105 of this title;

(3) proceedings in which decisions rest solely on inspections, tests, or elections;

(4) the conduct of military or foreign affairs functions;

(5) cases in which an agency is acting as an agent for a court; or

(6) the certification of worker representatives.

Id. § 554(a).

Id. § 554(a); see Crestview Parke Care Ctr. v. Thompson, 373 F.3d 743, 748 (6th Cir. 2004) ("Lower courts have explicitly held that a formal adjudication featuring an oral evidentiary hearing is required by the APA only when a statute explicitly calls for a hearing 'on the record.").

See Asimow, Federal Administrative Adjudication, supra note 22, at, 15.

See, e.g., Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12, 16–18 (1st Cir. 2006).

See Crestview Parke Care, 373 F.3d at 748 (explaining that the APA's formal hearing provisions establish "procedures [that] mirror the elements of a judicial trial").

Matthew Lee Wiener et al., Admin. Conf. of the U.S., Equal Employment Opportunity Commission: Evaluating the Status and Placement of Adjudicators in the Federal Sector Hearing Program 6 (2014).

5 U.S.C. § 554(b)(1)–(3).

Id. § 556(d).

Id. § 556(e).

Id. § 557(b), (c)(3). Under the APA, if an "agency did not preside at the reception of the evidence" in a proceeding, the presiding adjudicator will issue an initial decision following a hearing, "unless the agency requires . . . the entire record to be certified to it for decision." Id. § 557(b). An initial decision becomes the agency's decision "unless there is an appeal to, or review on motion of, the agency within time provided by rule." Id. However, "[w]hen the agency makes the decision without having presided at the reception of the evidence, the presiding [adjudicator generally] shall first recommend a decision." Id.

Id. § 3105.

ALJs by Agency, Office of Personnel Mgmt. (last accessed July 7, 2021), https://www.opm.gov/services-for-agencies/administrative-law-judges/#url=ALJs-by-Agency. The vast majority of ALJs during this period (1,655) were employed by SSA. Id. Of the ALJs employed by other agencies during the same period, significant numbers worked for the Department of Health and Human Services (101) and the Department of Labor (41). Id.

5 U.S.C. § 556(c).

See Kent Barnett & Russell Wheeler, Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal, 53 Ga. L. Rev. 1, 15-16 (2018).

Am. Bar Ass'n, A Blackletter Statement of Federal Administrative Law 12 –13 (2d ed. 2013); see Kent H. Barnett, Some Kind of Hearing Officer, 94 Wash. L. Rev. 515, 533 (2019) (explaining that "the APA requires a separation of functions, for which ALJs cannot investigate or prosecute or report to an agency official who does").

5 U.S.C. § 554(d)(2).

Id. § 557(d); Admin. Conf. of the U.S. & Am. Bar Ass'n, Administrative Procedure Act, Federal Administrative Procedure Sourcebook, https://sourcebook.acus.gov/wiki/Administrative_Procedure_Act/view (last visited Sept. 24, 2021) (explaining that the APA "addresses 'separation of functions' by restricting agency employees engaged in investigation or prosecution of a case from supervising the presiding officer or participating or advising in the decision in that or a factually related case (with certain exceptions)"); see 5 U.S.C. § 3105 (ALJs "may not perform duties inconsistent with their duties and responsibilities as ALJs"). Cf. Asimow, Federal Administrative Adjudication, supra note 22, at 64 n.280 (referring to the supervision limitation as a "command-influence rule" and the participation restriction as the separation of functions rule).

5 U.S.C. § 556(b).

Id. §§ 551(14), 557(d)(1). The APA also generally prohibits ALJs from "consult[ing] a person or party on a fact in issue." Id. § 554(d)(1).

See Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534, 1539 (9th Cir. 1993).

5 U.S.C. § 7521(a). Agencies are also, pursuant to Office of Personnel Management regulation, prohibited from evaluating the performance of ALJs and awarding them bonuses. 5 C.F.R. § 930.206. Additionally, ALJs are subject to an ALJ-specific pay scale. Id. § 930.205.

See Id. § 1202(d) (providing that Merit Systems Protection Board (MSPB) members "may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office"); see also CRS Report R45630, Merit Systems Protection Board (MSPB): A Legal Overview, by Jon O. Shimabukuro and Jennifer A. Staman, at 3; Kent Barnett, Regulating Impartiality in Agency Adjudication, 69 Duke L.J. 1695, 1698 (2020) (explaining, in addition, that ALJs may derive protections from any possible removal protections enjoyed by "the head of the ALJs' employing department"). Agencies are also, pursuant to Office of Personnel Management regulation, prohibited from evaluating the performance of ALJs and awarding them bonuses. 5 C.F.R. § 930.206. Additionally, ALJs are subject to an ALJ-specific pay scale. Id. § 930.205.

See Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018) (holding that ALJs of the Securities and Exchange Commission are "Officers of the United States" under the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2); Exec. Order, 13843, 83 Fed. Reg. 32755 (July 13, 2018) (removing ALJs from competitive civil service and placing control over ALJ hiring in agency heads); Petition for Writ of Certiorari at 29–32, Axon Enter. v. FTC, No. 21-86 (U.S. July 20, 2021) (asking Supreme Court to determine that the removal protections afforded ALJs of the Federal Trade Commission are unconstitutional).

See, e.g., CRS Legal Sidebar LSB10615, Supreme Court Preserves Patent Trial and Appeal Board, but with Greater Executive Oversight, by Kevin J. Hickey and Victoria L. Killion; CRS Legal Sidebar LSB10153, Supreme Court Holds That SEC Administrative Law Judges Are "Officers" Subject to the Appointments Clause, by Victoria L. Killion.

See Christopher J. Walker, The Lost World of the Administrative Procedure Act: A Literature Review, 28 Geo. Mason L. Rev. 733, 747 (2021) (explaining that "informal adjudication" is a "residual category that encompasses any agency adjudication not subject to" the APA's formal hearing provisions); Nielson, supra note 5, at 665 (writing that "'informal adjudications are essentially the default form of agency decisionmaking'" (quoting 2 The Fundamentals of Administrative Law for Natural Resources Practice 1, 1-4 (2019)).

Bremer, Designing the Decider, supra note 39, at 69 (observing that "so-called informal adjudication is often conducted according to procedures that are as or more formal (in the colloquial sense of 'trial-like') than the procedures specified by the APA's 'formal' adjudication provisions").

See 29 C.F.R. § 1614.109.

See Bremer, Designing the Decider, supra note 39, at 69 ("[S]o-called informal adjudication is often conducted according to procedures that are as or more formal (in the colloquial sense of 'trial-like') than the procedures specified by the APA's 'formal' adjudication provisions.").

Asimow, Federal Administrative Adjudication, supra note 22, at 96–96; see 19 C.F.R. § 177.4(a) (permitting oral discussions between agency personnel and parties who have submitted requests for a letter ruling only when "a conference will be helpful in deciding the issue or issues involved or when a determination or conclusion contrary to that advocated in the ruling request is contemplated").

See Sheffner, supra note 28, at 450–51 ("Non-APA adjudication schemes vary substantially, ranging from 'semi-formal' proceedings that, like APA hearings, are conducted pursuant to procedurally robust evidentiary procedures, to those, like tariff classification rulings, that are non-adversarial and procedurally bare.") (footnote omitted).

See infra "Brief Survey of Informal Adjudication."

See Barnett & Wheeler, supra note 56, at 5. Such adjudicators are known by many titles, including "administrative judge," "immigration judge," "hearing examiner," and other similar titles. See id.

Id. at 32. Many commentators conceptualize patent adjudication proceedings conducted by the Patent Trial and Appeal Board (PTAB, within the Patent & Trademark Office) as informal adjudication, in part because non-ALJ adjudicators preside. See generally Bremer, Reckoning with Exceptionalism, supra note 1, at 1766-67. The U.S. Court of Appeals for the Federal Circuit, however, has applied the APA's formal hearing requirements to PTAB proceedings. See, e.g., Novartis AG v. Torrent Pharms. Ltd., 853 F.3d 1316, 1324 (Fed. Cir. 2017); Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015).

5 U.S.C. §§ 554, 556–557; see supra "Formal Adjudication."

5 U.S.C. §§ 555, 558; see infra "Statutory Defaults for Informal Adjudication."

See Asimow, Federal Administrative Adjudication, supra note 22, at 3.

See Pension Benefit Guar Corp. v. LTV Corp., 496 U.S. 633, 653–56 (1990).

See U.S. Const. amend. V.

Id.

In addition to the principles discussed infra notes 83–88, a party alleging a due process violation must establish that the government infringed a protected interest. See Na'l Collegiate Ath. Ass'n v. Tarkanian, 488 U.S. 179, 191 (1988). This is known as the "state action" requirement. See Erwin Chemerinsky, Rethinking State Action, 80 Nw. U. L. Rev. 503, 508 & n.15 (1985). The Fifth Amendment's Due Process Clause specifically applies to the federal government. Farrington v. Tokushige, 273 U.S. 284, 299 (1927). (The Due Process Clause of the Fourteenth Amendment applies to state and local governments. See U.S. Const. amend. XIV, § 1.) However, in some instances, a private entity may be required to comply with due process, such as when the government transferred a "public function" to the entity, or when "the government controlled or was excessively intertwined with a nominally private actor." W. State Univ. of S. Cal. v. Am. Bar Ass'n, 301 F. Supp. 2d 1129, 1133-34 (C.D. Cal. 2004); see Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288, 296 (2001) (writing, in the context of the Fourteenth Amendment Due Process Clause, that "[w]e have . . . held that a challenged activity may be state action when it results from the State's exercise of 'coercive power,' when the State provides 'significant encouragement, either overt or covert,' or when a private actor operates as a 'willful participant in joint activity with the State or its agents[.]' We have treated a nominally private entity as a state actor when it is controlled by an 'agency of the State,' when it has been delegated a public function by the State, when it is 'entwined with governmental policies' or when government is 'entwined in [its] management or control[.]'") (citations omitted) (third alteration in original).

Further, a due process violation only arises if the infringing action constitutes a "deprivation" as defined by the courts. Harm to a protected interest must be more than de minimis to trigger the protections of the Due Process Clause. See Goss v. Lopez, 419 U.S. 565, 576 (1975). And negligent conduct that infringes a protected right is not a "deprivation." See Daniels v. Williams, 474 U.S. 327, 330-31 (1986).

U.S. Const. amend. V. In the context of federal administrative adjudication, claims under the Due Process Clause concerning deprivations of life are rare. See Am. Bar Ass'n, A Guide to Federal Agency Adjudication 13 (2d ed. 2012, Jeffrey B. Litwak ed.) [hereinafter Guide to Federal Agency Adjudication].

The right to liberty protected by the Due Process Clause stems from many sources. The Supreme Court has explained that a "liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word 'liberty,'" as well as "from an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Liberty interests may also flow from federal statutes and regulations. See Guide to Federal Agency Adjudication, supra note 83, at 13. The Court has interpreted the liberty guaranteed by due process broadly, instructing that "liberty" not only encompasses one's "freedom from bodily restraint," but also a panoply of other rights, including:

the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.

Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)) (ellipses in original).

Property interests protected by the Due Process Clause are derived from sources of positive law outside the Constitution. Roth, 480 U.S. at 577. In Board of Regents v. Roth, the Supreme Court explained that interests in property "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577. Property interests may lie in traditional types of property, such as "real estate, chattels, or money." Id.; Asimow & Levin, supra note 14, at 32. They also attach to a party's legal entitlement to a benefit, such as disability benefits, licenses to practice certain jobs or professions, or rights to government employment. See Mathews v. Eldridge, 424 U.S. 319 (1976); Barry v. Barchi, 443 U.S. 55 (1979); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). The Court has explained that "[t]o have a property interest in a benefit, a person . . . . must . . . have a legitimate claim of entitlement to it," as opposed "an abstract need or desire for it" or "unilateral expectation of it." Roth, 408 U.S. at 577.

See Guide to Federal Agency Adjudication, supra note 83, at 12.

Mathews, 424 U.S. at 335.

See id. at 349.

See, e.g., Gibson v. Texas Dep't of Ins., 700 F.3d 227, 239 (5th Cir. 2012). Due process constraints concerning certain informal adjudication themes are discussed below. See infra "Brief Survey of Informal Adjudication."

See 1 Kristin E. Hickman & Richard J. Pierce, Jr., Administrative Law Treatise § 7.1, at 728 (6th ed. 2019).

Walker & Wasserman, supra note 4, at 153 ("Some experts estimate that as much as 90 percent of all agency adjudication occurs outside of APA formal adjudication proceedings."); see supra text at note 75 (discussing number of informal adjudicators employed by federal agencies).

See Jon C. Dubin, Torquemada Meets Kafka: The Misapplication of the Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings, 97 Colum. L. Rev. 1289, 1301 (1997) ("While federal regulatory agencies have largely chosen adversarial adjudicative systems, federal benefactory agencies typically employ inquisitorial models."); cf. Asimow, Federal Administrative Adjudication supra note 22, at 3–4 (categorizing agency adjudication schemes according to the "Type A," "Type B," and "Type C" formulation mentioned previously); Alan B. Morrison, Administrative Agencies Are Just Like Legislatures and Courts-Except When They're Not, 59 Admin. L. Rev. 79, 99 (2007) (categorizing "non-APA based proceedings" as "semi-formal adjudications" and "truly informal adjudications").

The due process discussion in this section generally assumes, unless noted otherwise, that de novo review is not available in federal court unless noted otherwise; the availability of de novo judicial review of agency adjudication mitigates procedural due process issues. See Kim v. United States, 121 F.3d 1269, 1274 (9th Cir. 1997) ("A trial de novo, in which the existence of a violation is examined afresh, and the parties are not limited in their arguments to the contents of the administrative record, satisfies the strictures of procedural due process."); William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1577–78 (2020) ("The standard case of agency adjudication is one where the agency adjudicates a dispute on some topic in public law or public regulation; applies some procedures now associated with due process; and receives review, but not de novo review, from an Article III court."); see infra text at note 186 (discussing the use of procedurally bare informal adjudication systems where de novo review is available in federal court).

Kent Barnett et al., Admin. Conf. of the U.S., Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal (2018) [hereinafter Barnett et al., Non-ALJ Adjudicators]; Asimow, Federal Administrative Adjudication supra note 22. For brevity, this section of the report refers to these studies as "ACUS publications," although they were written by outside adjudication scholars.

See Bremer, Designing the Decider, supra note 39, at 69; Verkuil, supra note 1, at 796 (concluding that in informal adjudication, "the ability to get the right fit between program and procedure lies primarily with the agencies").

See, e.g., Mathilde Cohen, When Judges Have Reasons Not to Give Reasons: A Comparative Law Approach, 72 Wash. & Lee L. Rev. 483, 539 (2015) (explaining that "immigration courts are not subject to the Administrative Procedure Act's formal adjudication requirement" but that immigration court procedure "has gradually evolved to more closely resemble formal adjudication").

Walker, supra note 67, at 749.

See 8 U.S.C. § 1229a; see generally CRS In Focus IF11536, Formal Removal Proceedings: An Introduction, by Hillel R. Smith. EOIR removal proceedings are often called "formal" in the colloquial sense—because they resemble bench trials—not in the APA sense. See Gomez-Velazco v. Sessions, 879 F.3d 989, 991 (9th Cir. 2018) (distinguishing the "formal" EOIR process from other "streamlined" removal proceedings that are "summary in nature").

29 C.F.R. § 1614.109; see U.S. Equal Emp. Opportunity Comm'n, Management Directive 110, at ch. 7 (Hearings) (2015), https://www.eeoc.gov/federal-sector/management-directive/management-directive-110.

See Asimow, Federal Administrative Adjudication supra note 22, at 23-24 (table listing caseloads for informal adjudication schemes that require evidentiary hearings). Note that the ACUS table includes some agencies that provide inquisitorial rather than adversarial hearings, including most notably the Department of Veterans Affairs. Id.

See, e.g., U.S. Equal Emp. Opportunity Comm'n, Hearing Process ("Parties generally are permitted to make opening and closing statements, offer into evidence witness testimony and documents, examine and cross-examine witnesses and raise objections and obtain rulings on objections from the AJ [administrative judge]."), https://www.eeoc.gov/federal-sector/hearing-process (last visited Sept. 9, 2021); CRS In Focus IF11536, Formal Removal Proceedings: An Introduction, by Hillel R. Smith (explaining that in formal removal proceedings before EOIR "an alien may present testimony and evidence in support of an application for relief. The IJ [immigration judge] may direct the parties to present opening or closing statements. The alien's counsel (or the IJ if the alien is unrepresented) may conduct direct examination of the alien, and DHS counsel conducts cross-examination. The IJ may question the alien and any witnesses.").

See, e.g., Asimow, Federal Administrative Adjudication supra note 22, at 60, 110 (discussing U.S. Department of Agriculture dispute resolution under the Perishable Agricultural Commodities Act).

EOIR, Pending Cases, New Cases, and Total Completions (July 8, 2021), https://www.justice.gov/eoir/workload-and-adjudication-statistics; see CRS In Focus IF11690, Pending Cases in U.S. Immigration Courts, FY2008-FY2020, by Holly Straut-Eppsteiner. An ACUS publication describes each of the major adjudication schemes in this category in detail. See Asimow, Federal Administrative Adjudication supra note 22, at Appendix A.

Barnett et al., Non-ALJ Adjudicators, supra note 92, at 8-9 (explaining that agency adjudication schemes "that do not qualify as formal adjudication under the APA" are "often similar in formality and procedure to formal adjudication" but differ "in one key respect: non-ALJs preside over them").

See supra "Formal and Informal Adjudications."

5 U.S.C. § 556(b).

Barnett et al., Non-ALJ Adjudicators, supra note 92, at 1.

See 8 U.S.C. § 1229a(a)(1).

See 29 C.F.R. § 1614.109(a).

Barnett et al., Non-ALJ Adjudicators, supra note 92, at 8-9 ("Except for extremely rare exceptions, non-ALJs, who go by different titles at different agencies, do not have ALJs' statutory protections as to their independence."). This ACUS publication describes the universe of non-ALJ adjudicators and their various protections in depth.

United States v. Arthrex, 141 S. Ct. 1970, 1983 (2021) ("[T]he unreviewable executive power exercised by [Administrative Patent Judges] is incompatible with their status as inferior officers."); Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018) (holding that ALJs of the Securities and Exchange Commission are "Officers of the United States" under the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2, and that their appointment by agency staff violated the Clause); see CRS Legal Sidebar LSB10615, Supreme Court Preserves Patent Trial and Appeal Board, but with Greater Executive Oversight, by Kevin J. Hickey and Victoria L. Killion.

See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd. (PCAOB), 561 U.S. 477, 491-98 (2010) (invalidating on separation-of-powers grounds statutory provisions providing that members of the PCAOB could be removed only for cause by the Securities and Exchange Commission, whose members were also protected from removal by for cause removal protections); see Linda D. Jellum, "You're Fired!" Why the ALJ Multi-Track Dual Removal Provisions Violate the Constitution and Possible Fixes, 26 Geo. Mason L. Rev. 705, 741 (2019) (opining that "ALJ multi-track removal provisions violate the Constitution, even though each provision would be constitutional independently"); cf. Decker Coal Co. v. Pehringer, No. 20-71449, 2021 WL 3612787, at *10 (9th Cir. Aug. 16, 2021) ("[S]ome tenure restrictions do not violate separation of powers, particularly in the case of inferior officers with sufficient accountability.").

See Butte Cty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010) (explaining that in informal adjudication, "[g]overning procedural rules, derived mainly from . . . 5 U.S.C. § 555, and the Due Process Clause, are few").

5 U.S.C. §§ 554(d), 556(b), 557(d)(1), 3105; see supra "Formal Adjudication." See generally Walker & Wasserman, supra note 4, at 149 (Table 1). Section 554(d) addresses separation of functions. See Grolier Inc. v. FTC, 615 F.2d 1215, 1220 (1980) ("[B]y forbidding adjudication by persons 'engaged in the performance of investigative or prosecuting functions,' [quoting 5 U.S.C. § 554(d),] Congress intended to preclude from decisionmaking in a particular case not only individuals with the title of 'investigator' or 'prosecutor,' but all persons who had, in that or a factually related case, been involved with ex parte information, or who had developed, by prior involvement with the case, a 'will to win.' "); Barnett et al., Non-ALJ Adjudicators, supra note 92, at 7 ("[ALJs] cannot perform duties inconsistent with their adjudicatory function, such as investigating or prosecuting, or by reporting to an official with these duties. These provisions provide a separation of functions between adjudication and prosecution within the agency.").

See Walker & Wasserman, supra note 4, at 149.

See Hogen, 613 F.3d at 194; Walker, supra note 67, at 749 (explaining that informal adjudication procedure is sometimes "set by the respective agency's organic statute but most" often is "set by regulation or subregulatory guidance").

Barnett et al., Non-ALJ Adjudicators, supra note 92, at 47.

See id.

See Asimow, Federal Administrative Adjudication supra note 22, at 60 ("[M]y judgment is that procedures in Type B adjudication should resemble those in Type A adjudication unless there is a good reason for the contrary conclusion."); Bremer, Reckoning with Exceptionalism, supra note 1, at 1792 ("Congress should enact a statute clarifying that the APA's requirements--potentially with amendments--apply to all evidentiary hearings conducted in agency adjudication programs.").

See Bremer, Reckoning with Exceptionalism, supra note 1, at 1757-59 (describing the lack of default procedures for informal adjudication as a "hole" in the APA that bucks the consensus around the value of uniformity in informal rulemaking, but noting that Congress has opted not to draw from uniform APA requirements in recent efforts to craft agency adjudication schemes); Nielson, supra note 5, at 665 (arguing that the lack of uniform procedure for informal adjudication is "a significant problem—both as a policy matter (procedural rigor may help create better, more legitimate outcomes) and doctrinally"); but see Gary J. Edles, An APA-Default Presumption for Administrative Hearings: Some Thoughts on 'Ossifying' the Adjudication Process, 55 Admin. L. Rev. 787, 789 (2003) (criticizing an American Bar Association proposal to have the formal adjudication requirements apply by default to any legislation that calls for a "hearing," on the ground that the proposal "elevates doctrinal or formalistic considerations over . . . contemporary needs and practical experience").

See Asimow, Federal Administrative Adjudication supra note 22, at 26 ("Due process can apply to such adjudication, but it seldom does because the procedural regulations defining the requirements for a legally required evidentiary hearing generally guarantee private parties more protection than due process would require.").

Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

See Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005) ("One way we ensure that the 'standards of fairness' are met is by guaranteeing that aliens have the opportunity to be represented by counsel. The high stakes of a removal proceeding and the maze of immigration rules and regulations make evident the necessity of the right to counsel.").

FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).

Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) ("It is axiomatic that '[a] fair trial in a fair tribunal is a basic requirement of due process.' "); see Asimow, Federal Administrative Adjudication supra note 22, at 35 (collecting cases).

See infra note 136 for sources that address this debate.

See Dubin, supra note 90, at 1290-91.

See, e.g., Carr v. Saul, 141 S. Ct. 1352, 1359 (2021) (no government counsel appears before in proceedings before ALJ to adjudicate social security disability claims); Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 333-34 (1985) (no government counsel appears in proceedings to adjudicate veterans benefits claims).

Carr, 141 S. Ct. at 1359; Walters, 473 U.S. at 333-34; cf. Carr, 141 S. Ct. at 1359 (government counsel appears at appellate phase of SSA proceedings, but only as an adviser, not as opposing counsel). Judicial review of these non-adversarial adjudication schemes is commonly adversarial, whether before an Article I court (as occurs for veterans disability benefits) or Article III court (as occurs for social security disability benefits and, at a higher level, veterans benefits). See CRS In Focus IF11365, U.S. Court of Appeals for Veterans Claims: A Brief Introduction, by Jonathan M. Gaffney (explaining that the Court of Appeals for Veterans Claims (CAVC) "has exclusive jurisdiction to hear appeals of decisions from the" BVA and that "[p]roceedings before the CAVC are adversarial"); Nowling v. Colvin, 813 F.3d 1110, 1119-20 (11th Cir. 2016) (describing standards for federal court review of social security disability determinations); Soc. Sec. Admin., Federal Court Review Process, https://www.ssa.gov/appeals/court_process.html (last visited Sept. 24, 2021). The CAVC is an Article I court. See CRS Report R43746, Congressional Power to Create Federal Courts: A Legal Overview, by Andrew Nolan and Richard M. Thompson II ("There are two main categories of non-Article III courts. The first is commonly referred to as 'legislative courts' or 'Article I courts.' These are standalone courts, created under Congress's Article I power, which have similar authority as Article III courts, such as entering their own judgments and issuing contempt orders. Examples of legislative courts include the U.S. Tax Court; the Court of Federal Claims; the Court of Appeals for Veterans Claims . . . .").

See Carr, 141 S. Ct. at 1359 (describing SSA regulations as ensuring "informal, nonadversarial proceedings").

See Bremer, Reckoning with Exceptionalism, supra note 1, at 1764-65 (describing controversy as to whether the APA formal adjudication requirements apply to inquisitorial schemes of social security adjudication).

See Carr, 141 S. Ct. at 1363 (Thomas, J., concurring) ("This decidedly pro-claimant, inquisitorial process is quite unlike an adversarial suit in which parties are expected to identify, argue, and preserve all issues.").

Dubin, supra note 90, at 1299; See also Smith v. Berryhill, 139 S. Ct. 1765, 1776 (2019) ("[T]he SSA is a massive enterprise . . . ."); Richardson v. Perales, 402 U.S. 389, 399 (1971) (describing the SSA adjudication scheme as "of a size and extent difficult to comprehend").

Dubin, supra note 90, at 1292 ("OASDI and SSI disability cases account for much of the agency's caseload in administrative adjudication and under judicial review."). Adjudication procedure for disability claims under the two programs is the same. Id. at 1292 n.18; see Smith v. Berryhill, 139 S. Ct. 1765, 1772 (2019) ("The regulations that govern the two programs are, for today's purposes, equivalent.").

Smith, 139 S. Ct. at 1775 ("[A] primary application for benefits may not be denied without an ALJ hearing (assuming the claimant timely requests one . . .).").

Carr v. Saul, 141 S. Ct. 1352, 1359 (2021). Witnesses may testify, whether called by the claimant or the ALJ. 20 C.F.R. § 404.950(e).

See 20 C.F.R. § 404.1529(a) ("In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence."); Yount v. Barnhart, 416 F.3d 1233, 1236 (10th Cir. 2005) (invalidating SSA determination on due process grounds where ALJ considered post-hearing exam without giving benefits applicant an opportunity to address it).

Richardson v. Perales, 402 U.S. 389, 409 (1971) ("We need not decide whether the APA has general application to social security disability claims . . . ."); see Dubin, supra note 90, at 1306 ("[W]hile the [Perales] Court upheld the SSA's adjudicative model—including the dual investigative and decisional roles of the SSA ALJ—it failed to consider the applicability of § 554(d) of the APA [requiring separation of functions]."); cf. Final Rule, Hearings Held by Administrative Appeals Judges of the Appeals Council, 83 Fed. Reg. 73,138, 73,140 (2020) (arguing that "in light of the significant differences between [SSA's] informal, inquisitorial hearings process and the type of hearings process to which the APA applies, [SSA's] hearings process is properly viewed as comparable to the APA's process, but governed only by the requirements of the [Social Security] Act and procedural due process").

See Dubin, supra note 90, at 1306.

See Carr v. Saul, at 1359 ("'It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits . . . .'") (quoting Sims v. Apfel, 530 U.S. 103, 111 (2020)); Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992) ("[T]he ALJ is not a mere umpire at such a proceeding, but has an independent duty to fully develop the record, especially where the claimant is not represented.").

See Asimow, Federal Administrative Adjudication supra note 22, at 177.

See 38 U.S.C. § 7113(b); 38 C.F.R. § 20.101(b). VLJ is the regulatory term; the statutory term is "member of the Board of Veterans' Appeals." 38 U.S.C. § 7101(a).

See 38 C.F.R. § 20.302 (discussing participation of benefits applicant and representative in BVA hearing, with no provision for government counsel); Asimow, Federal Administrative Adjudication supra note 22, at 178. As in the SSA context, witnesses may testify. Whether the representative for a benefits applicant may appear without the personal appearance of the applicant remains unresolved. Atilano v. McDonough, -- F. 4th --, 2021 WL 4168221, at *5 (Sept. 14, 2021).

Johanna Selberg, Note, Truth and Trauma: Exploring the Merits of Non-Adversarial Asylum Hearings, 35 Geo. Immigr. L.J. 929, 943 (2021) (quoting BVA website); Daniel L. Nagin, The Credibility Trap: Notes on a VA Evidentiary Hearing, 45 U. Mem. L. Rev. 887, 902 (2015) (discussing the "informal, non-adversarial nature of a VLJ hearing").

See Smith v. Berryhill, 139 S. Ct. 1765, 1776 (2019) ("The four steps preceding judicial review" in SSA adjudication "can drag on for years."); Frank Bloch, Bloch on Social Security § 4:1 (2021) ("Although relatively simple cases tend to move through the [SSA] process with few problems, they often do so at a painfully slow pace."); Selberg, supra note 142, at 943 ("[S]ome scholars have pointed out that this outwardly non-adversarial, veteran-friendly system [for adjudicating VA benefits] actually leads to fewer procedural protections for applicants.").

See, e.g., 38 U.S.C. § 5103A (imposing a duty to assist claimants upon the VA); Carr v. Saul, 141 S. Ct. 1352, 1359 (2021) (describing the SSA ALJ's obligation to develop the record); Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009) ("Because of the paternalistic nature of the proceedings, the [BVA] . . . is required 'to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits.'") (quoting McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008)).

Carr, 141 S. Ct. at 1358 ("The critical feature that distinguishes adversarial proceedings from inquisitorial ones is whether claimants bear the responsibility to develop issues for adjudicators' consideration.").

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se [in federal court] is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'") (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Quintero v. Garland, 998 F.3d 612, 627 (4th Cir. 2021) ("[W]e hold that immigration judges' duty to fully develop the record—while applicable in all cases—becomes especially crucial in cases involving unrepresented noncitizens.").

See, e.g., Comer, 552 F.3d at 1368.

See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 324 (1985) (describing Congress's long-standing interest in limiting legal representation in veterans benefits adjudication as being motivated by the view that "the system for administering benefits should be managed in a sufficiently informal way that there should be no need for the employment of an attorney to obtain benefits to which a claimant was entitled, so that the claimant would receive the entirety of the award without having to divide it with a lawyer").

See supra note 127.

38 U.S.C. § 5904(c)(1); see Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1017 (9th Cir 2012) (en banc) (explaining that adjudication of veterans' claims for disability compensation "begins at one of the VA's 57 Regional Offices and proceeds through the [BVA]").

Asimow, Federal Administrative Adjudication supra note 22, at 181-82.

Bd. of Veterans' Appeals, Annual Report Fiscal Year 2020, at 36 (showing that about 25% of claimants appearing before the BVA used attorneys, 9% appeared pro se, and the rest used lay representatives who came from a variety of sources), https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2020AR.pdf.

20 C.F.R. §§ 404.1705(b), 416.1505(b).

Carr v. Saul, 141 S. Ct. 1352, 1363 (2021) (Thomas, J., concurring) ("[SSA] [h]earings are so informal that lawyers, briefs, and even attendance are often optional."); Brief for Nat'l Ass'n of Soc. Sec. Claimants Reps. et al. as Amicus Curiae Supporting Petitioners, Carr v. Saul, 141 S. Ct. 1352 (2021), 2019 WL 11609432, at *24 ("[A] large number of claimants appear at their ALJ hearings with no representation at all, and a smaller number appear with non-attorney representatives.").

See Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005) ("Our cases recognize that a benefit is not a protected entitlement if government officials may grant or deny it in their discretion."); Kent H. Barnett, Some Kind of Hearing Officer, 94 Wash. L. Rev. 515, 527 (2019) (explaining that procedural due process does not apply to "most adjudications that deny applications for benefits").

Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009) ("A veteran is entitled to disability benefits upon a showing that he meets the eligibility requirements set forth in the governing statutes and regulations. We conclude that such entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.") (collecting cases from other circuits); Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990) ("An applicant for social security benefits has a property interest in those benefits.").

Richardson v. Perales, 402 U.S. 389, 410 (1971) (holding that the SSA ALJ's role as an "advocate-judge-multiple-hat" adjudicator who "acts as an examiner charged with developing the facts" does not violate due process); Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 326 (1985) (upholding restrictions on retention of legal counsel for veterans benefits claims and stating that "flexibility of our approach in due process cases is intended in part to allow room for other forms of dispute resolution").

Withrow v. Larkin, 421 U.S. 35, 58 (1975).

Id.; see also Hess v. Bd. of Trustees of S. Illinois Univ., 839 F.3d 668, 675 (7th Cir. 2016) (in school discipline case, citing Withrow for the proposition that "[a]lthough biased decision-making does violate due process, the combination of investigative and adjudicative functions into a single administrator does not, in itself, demonstrate such bias"); but cf., Osuagwu v. Gila Regional Medical Ctr., 938 F. Supp. 2d 1142, 1163-64 (D.N.M. 2012) (distinguishing Withrow and holding that joint accusatorial and adjudicative function of members of a professional disciplinary board violated due process where the board members acted "as accuser, prosecutor, investigator, and judge").

See, e.g., Carr v. Saul, 141 S. Ct. 1352, 1359 (2021) (describing with approval the inquisitorial nature of SSA proceedings, including "the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits"); Hepp v. Astrue, 511 F.3d 798, 804-06 (8th Cir. 2008) (reaffirming that "[s]ocial security disability hearings are non-adversarial proceedings and therefore do not require full courtroom procedures" and concluding "that due process under the Fifth Amendment does not require in-person cross-examination in social security disability hearings.").

Walters, 473 U.S. at 307.

Id. at 333-34; see also Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1036 (9th Cir 2012) (en banc) ("[T]he presence of paid attorneys would transform the VA's system of benefits administration into an adversarial system that would tend to reflect the rigorous system of civil litigation that Congress quite plainly intended to preclude. The choice between a vigorously adversarial system and a less adversarial one reflects serious policy considerations and is a permissible one.").

Goldberg v. Kelly, 397 U.S. 254, 270-71 (1970) ("[T]he recipient must be allowed to retain an attorney if he so desires."); see also infra note 182 (discussing subsequent statutory developments relevant to Goldberg).

See Walters, 473 U.S. at 332 (reviewing cases).

See 8 C.F.R. § 208.30(e)(ii) (credible fear interviews conducted by asylum officers); 12 C.F.R. § 5.13(a) (review of bank licensing applications by the Office of the Comptroller of the Currency (OCC)); see generally Asimow, Federal Administrative Adjudication supra note 22, at ch. 5 ("Type C Adjudication").

See, e.g., Johnson v. Vilsack, 833 F.3d 948, 955 (2016) (describing a U.S. Dep't of Agriculture (USDA) adjudication procedure in which "there is no procedure for questioning evidence submitted by the opposing party, much less an evidentiary hearing"); Sec. Bank & Trust v. Heimann, 452 F. Supp. 776, 780 n.5 (1978) (reviewing OCC adjudication in which agency considered expert opinion without giving parties opportunity to respond).

Johnson, 833 F.3d at 957-58 (quoting Restatement (Second) of Judgments § 83, cmt. b (1982)); see Asimow, Federal Administrative Adjudication supra note 22, at 90. Adjudication schemes in the other two categories may begin with interviews or inspections of this variety, but they allow parties the opportunity for an evidentiary hearing if they disagree with the initial decision. See, e.g., Smith v. Berryhill, 139 S. Ct. 1765, 1772 (2019) (explaining that SSA disability adjudication involves two preliminary levels of application-and-decision proceedings before there is an opportunity for an ALJ hearing). This category includes only adjudication schemes that do not provide an opportunity for an evidentiary hearing at any stage. See Johnson, 833 F.3d at 952 (noting that the streamlined USDA process results in a "final agency determination").

19 C.F.R. § 177.0; see United States v. Mead Corp., 533 U.S. 218, 234 (2001) (holding that these rulings, known as TCRs, are not entitled to Chevron deference and describing them as "being churned out at a rate of 10,000 a year at an agency's 46 scattered offices").

See 50 C.F.R. § 260.21.

See 36 C.F.R. § 251.54(g)(2) (governing the processing of applications for special use permit applications); W. Montana Comm. Partners, Inc. v. Austin, 104 F. Supp. 3d 1076, 1085-86 (D. Mont. 2015) (describing adjudication scheme), aff'd 696 F. App'x 789 (9th Cir. 2017).

12 C.F.R. § 5.13(a); see generally Camp v. Pitts, 411 U.S. 138, 141 n.3 (1973) (explaining that the OCC adjudication scheme for bank licensing contemplates "a wide-ranging ex parte investigation"); Sec. Bank & Trust v. Heimann, 452 F. Supp. 776, 780 (1978) (describing OCC adjudication process). An ACUS publication lists many more examples and gives an overview of this universe of adjudication schemes. Asimow, Federal Administrative Adjudication supra note 22, at ch. 5.

Dep't of State, FY2019 NIV [Nonimmigrant Visa] Workload by Visa Category (showing 11.7 million nonimmigrant visas adjudicated in FY2019), https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/nonimmigrant-visa-statistics.html; Dep't of State, Report of the Visa Office 2019, at Table 1 (showing between 8.7 million and 10.8 million immigrant and nonimmigrant visas issued annually between fiscal years (FY) 2015-19, and not including figures for refused visas), https://travel.state.gov/content/travel/en/legal/visa-law0/visa-statistics/annual-reports/report-of-the-visa-office-2019.html. For an overview of nonimmigrant and immigrant visa categories, see CRS Report R45938, Nonimmigrant and Immigrant Visa Categories: Data Brief, by Jill H. Wilson.

See 22 C.F.R. §§ 41.121 (governing refusal of nonimmigrant visas), 42.81 (governing refusal of immigrant visas); Dep't of State, Foreign Affairs Manual, 9 FAM 301.5 (describing primary sources of information that an adjudicator should consider about an applicant's ineligibility for a visa, including information from "U.S. government sources" and "third parties"), https://fam.state.gov/fam/09FAM/09FAM030105.html#M301_5.

Gomez-Velazco v. Sessions, 879 F.3d 989, 991 (9th Cir. 2018) ("The proceedings are summary in nature and conducted by front-line immigration enforcement officers employed by DHS."); see also CRS In Focus IF11357, Expedited Removal of Aliens: An Introduction, by Hillel R. Smith. A noncitizen who claims asylum or asserts a fear of persecution abroad and who is ordered removed through these summary procedures can seek immigration judge review of whether the fear of persecution has an adequate basis (i.e., is "credible" or "reasonable"), and it is not entirely clear whether the immigration judge is confined to considering a closed record during this review. Compare Dep't of Justice, Immigration Court Practice Manual 116 (2020) (describing a credible fear review proceeding as a "hearing" at which "[e]vidence may be introduced at the discretion of the Immigration Judge"), with 8 C.F.R. §§ 208.12, 208.30(e)(ii) (contemplating that the DHS officials conducting credible fear interviews may consider "additional facts" outside of the interview record); see Asimow, Federal Administrative Adjudication supra note 22, at 20 ("In the end, a certain degree of judgment is called for in deciding whether a legally-required adjudicatory procedure is an evidentiary hearing.").

See Gomez-Velazco, 879 F.3d at 991 ("The most formal process involves a hearing in immigration court before an immigration judge . . . .").

8 U.S.C. §§ 1225(b)(1), 1228(b), 1231(a)(5).

Dep't of Homeland Sec., Immigration Enforcement Actions: 2019, at 10 (2020) (Table 6, showing that expedited removals and reinstatements combined constituted at least 80 percent of all removals in every fiscal year since 2013), https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2019/enforcement_actions_2019.pdf.

See, e.g., 12 C.F.R. § 5.13(a) (providing that the OCC may "consider information available from any source" when evaluating bank applications); Sec. Bank & Trust v. Heimann, 452 F. Supp. 776, 780 n.5 (1978) (rejecting argument that it was "unfair" for the OCC to request and consider an expert opinion without the knowledge of the parties to a bank license dispute).

See, e.g., 7 C.F.R. § 278.6(c) (providing that USDA officials may consider "any other information available to" them when determining if a vendor participating in the SNAP program has committed a violation); 12 C.F.R. § 5.13(a) (similar, for OCC adjudication).

See, e.g., Johnson v. Vilsack, 833 F.3d 948, 955 (2016) ("no procedure for questioning evidence submitted by the opposing party").

See, e.g., 8 U.S.C. § 1225(b)(1)(B)(iii)(II) (credible fear determinations) ("The officer shall prepare a written record of a determination . . . . Such record shall include a summary of the material facts as stated by the applicant, such additional facts (if any) relied upon by the officer, and the officer's analysis of why, in the light of such facts, the alien has not established a credible fear of persecution.").

Goldberg v. Kelly, 397 U.S. 254, 264 (1970) ("[W]hen welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process."). The Goldberg court reasoned that statutory law at the time created an entitlement to the welfare benefits, but a subsequent provision of the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996—sometimes called the Welfare Reform Act—may impact that analysis. See 42 U.S.C. 601(b) ("This part shall not be interpreted to entitle any individual or family to assistance under any State program funded under this part."); State ex. rel. K.M. v. W. Va. Dep't of Health and Human Res., 212 W. Va. 783, 792 (2003) ("Goldberg was written before the 1996 Act and concerned rights under the old benefit scheme. . . . [W]e must reject petitioners' argument that a pre-termination hearing is required before ending TANF [i.e., the new scheme] cash assistance due to the expiration of the five-year time limit."); but see Weston v. Cassata, 37 P.3d 469, 475 (Colo. App. 2001) ("Although we agree that the 'no entitlement' language modifies the unconditional entitlement to welfare benefits previously available under the [old] program, we do not agree that it vitiates all forms of property rights in welfare benefits.").

Mathews v. Eldridge, 424 U.S. 319, 339-40, 349 (1976) ("We conclude that an evidentiary hearing is not required prior to the termination of disability benefits and that the present administrative procedures fully comport with due process.") (emphasis added).

See Doe v. Univ. of Cincinnati, 872 F.3d 393, 399–400 (6th Cir. 2017) (explaining that minimum due process requirements for college discipline proceedings include provision of "an explanation of the evidence against the student"); Yount v. Barnhart, 416 F.3d 1233, 1236 (10th Cir. 2005) (holding that SSA ALJ violated due process by considering post-hearing evidence without affording the benefits applicant a "meaningful opportunity" to address it); Ali v. Reno, 829 F. Supp. 1415, 1435 (S.D.N.Y. 1993), aff'd, 22 F.3d 442 (2d Cir. 1994) ("Anytime a judicial or quasi-judicial officer is in possession of information learned secretly, the scope and content of which can only be imagined, a litigant is disadvantaged."); Henry J. Friendly, Some Kind of Hearing, U. Pa. L. Rev. 1267 (1975) ("There can . . . be no fair dispute over the right to know the nature of the evidence on which the administrator relies."); cf. Kerry v. Din, 576 U.S. 86, 105 (2015) (Kennedy, J., concurring) (concluding, under the narrow "facially legitimate and bona fide" standard of review that governs some visa cases, that the Department of State did not violate due process by denying a visa on terrorism grounds without disclosing the factual basis for the decision); Sw. Airlines Co. v. TSA, 650 F.3d 752, 757 (D.C. Cir. 2011) (reasoning that an "agency conducting an informal adjudication has no statutory obligation to prematurely disclose the materials on which it relies so that affected parties may pre-rebut the agency's ultimate decision" and citing precedent for the proposition that due process "does not require more" where the adjudication concerned an industry-wide inquiry rather than individualized considerations).

See Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 655-56 (1990) (holding that an agency's failure to disclose to a party the material on which a decision is based or allow for the introduction of contrary evidence is not unlawful on fairness grounds "where the Due Process Clause itself does not require" such procedures); Asimow, Federal Administrative Adjudication supra note 22, at 26 ("[T]he majority of Type C adjudicating schemes involve discretionary decisions that are not covered by due process.").

See Broad St. Food Mkt., Inc. v. United States, 720 F.2d 217, 221 (1st Cir. 1983) (reasoning that the USDA's one-year disqualification of a retailer from the food stamp program for a program violation does not violate due process where the retailer is "accorded de novo review by a court of the finding of violation and limited review of the choice of sanction"); 7 C.F.R. § 278.6(c) (establishing that USDA makes determinations of program violations without limiting itself to an exclusive record from an evidentiary hearing); see generally Asimow, Federal Administrative Adjudication supra note 22, at 95 ("There is little need for a more formal adjudication process at the agency level when a court will ultimately retry the case."); cf. Ingraham v. Wright, 430 U.S. 651, 675-77 (1977) (holding that the imposition of corporal punishment in public school before allowing any opportunity to respond to accusations of misconduct does not violate due process, in part because of historical limits on the child's liberty interest and also because the state "preserved the traditional judicial proceedings for determining whether the punishment was justified").

See Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1983 (2020) (holding that aliens seeking entry into the United States, including aliens apprehended upon attempting to enter unlawfully, have "only those rights regarding admission that Congress has provided by statute . . . the Due Process Clause provides nothing more").

Id.; Kleindienst v. Mandel, 408 U.S. 753, 762 (1972) ("It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.").

Thuraissigiam, 140 S. Ct. at 1983; cf. Kerry v. Din, 576 U.S. 86, 102-03 (2015) (Kennedy, J., concurring) (reasoning that a U.S. citizen may obtain limited judicial review of a visa denial that implicates the citizen's due process rights).

See Walker, supra note 67, at 749 (explaining that most informal adjudication procedure comes from "regulation or subregulatory guidance" rather than "the respective agency's enabling statute").

See 5 U.S.C. § 559 (providing that a statute may "supersede or modify" the APA if "it does so expressly"); Asiana Airlines v. FAA, 134 F.3d 393, 397 (D.C. Cir. 1998) ("The question [under Section 559] is whether Congress has established procedures so clearly different from those required by the APA that it must have intended to displace the norm."); see also Marcello v. Bonds, 349 U.S. 302, 309-10 (1955) (holding that a subsequent statute satisfied Section 559's express repeal requirement even though it contained no statement referencing the APA and making it inapplicable, because legislative history and "clear and categorical direction" in the subsequent statute established that Congress did not intend for the APA to apply).

Dep't of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891, 1905 (2020) ("The APA establishes a 'basic presumption of judicial review [for] one 'suffering legal wrong because of agency action.'") (quoting Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967) (quoting 5 U.S.C. § 702)).

5 U.S.C. § 706. One ground of review in Section 706—"substantial evidence" review—does not apply to informal adjudication, but arbitrary and capricious review does apply and courts have equated the two standards. See Butte Cty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010) ("[I]n their application to the requirement of factual support the substantial evidence test and the arbitrary or capricious test are one and the same.").

5 U.S.C. § 701; see Block v. Comm. Nutrition Inst., 467 U.S. 340, 345 (1984) ("Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.").

5 U.S.C. § 701; see Regents of Univ. of Cal., 140 S. Ct. at 1905.

See, e.g., 8 U.S.C. § 1252(a)(2)(A)-(C), (e) (curtailing judicial review of some immigration determinations); see Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1983 (2020) (discussing statutory limitation on judicial review of credible fear determinations under § 1252(e)).

18 U.S.C. § 3625 (rendering the APA judicial review provisions inapplicable to certain determinations by the Bureau of Prisons concerning individual federal prisoners); see Martin v. Gerlinski, 133 F.3d 1076, 1079 (8th Cir. 1998) ("[I]t is apparent that § 3625 precludes judicial review of agency adjudicative decisions but not of rulemaking decisions."); Harrison v. Fed. Bureau of Prisons, 248 F. Supp. 3d 172, 182-83 (D.D.C. 2017).

38 U.S.C. § 7292(c); see Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1020-22 (9th Cir. 2012) (en banc) (explaining evolution of judicial review scheme, including current provisions establishing that "decisions of the [Article I] Veterans Court are reviewed exclusively by the Federal Circuit"); CRS In Focus IF11365, U.S. Court of Appeals for Veterans Claims: A Brief Introduction, by Jonathan M. Gaffney.

See, e.g., Irobe v. U.S. Dep't of Agric., 890 F.3d 371, 376 (2018) ("A party aggrieved by the USDA's final determination may seek judicial review through 'a trial de novo . . . in which the court shall determine the validity of the questioned administrative action in issue.' ") (quoting 7 U.S.C. § 2023(a)(13), (15)), see generally Asimow, Federal Administrative Adjudication supra note 22, at 95-96 (collecting examples).

Fed. Commc'ns Comm'n v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971); Butte Cty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010) ("[A]gency decisions in informal adjudication are subject to judicial review under § 706 of the APA. . . . If the agency decision is arbitrary, capricious or an abuse of discretion it must be set aside."); Ronald J. Krotoszynski, Jr., Taming the Tail That Wags the Dog: Ex Post and Ex Ante Constraints on Informal Adjudication, 56 Admin. L. Rev. 1057, 1060–61 (2004) ("A would-be plaintiff may invoke § 706(2)(A)'s 'arbitrary and capricious' standard of review to obtain general review of an agency's decision in an informal adjudication. A reviewing court will apply 'hard look' review and require an agency to justify its decision on the basis of the record as it existed at the time the agency acted.").

CRS Report R44699, An Introduction to Judicial Review of Federal Agency Action, by Jared P. Cole.

Oil States Energy Servs., LLC v. Greene's Energy Grp., LLC, 138 S.Ct. 1365, 1373 (2018) ("When determining whether a proceeding involves an exercise of Article III judicial power, this Court's precedents have distinguished between 'public rights' and 'private rights.' Those precedents have given Congress significant latitude to assign adjudication of public rights to entities other than Article III courts."); see Mila Sohoni, Agency Adjudication and Judicial Nondelegation: An Article III Canon, 107 Nw. U. L. Rev. 1569, 1593 (2013) ("The cases where agency adjudication cannot be conclusive—where review to an Article III court must be available on a direct appellate basis—are private rights cases. In cases purely involving 'public rights,' the agency adjudication can be conclusive; direct appellate review by Article III courts in public rights cases could be eliminated.").

Oil States, 138 S.Ct. at 1373 (2018) ("This Court has not 'definitively explained' the distinction between public and private rights . . . ."); Sohoni, supra note 202, at 1585-86.

See Paul J. Larkin, Jr., Reawakening the Congressional Review Act, 41 Harv. J. L. & Pub. Pol'y 187, 228 (2018) ("The Supreme Court has been exceedingly reluctant to construe an act of Congress to deny a party any opportunity to assert a constitutional claim. Reading a law in that manner would pose extraordinarily difficult constitutional issues because it would amount to an attempt by Congress to legislate around the nation's fundamental law by zoning out federal constitutional claims.") (citing Webster v. Doe, 486 U.S. 592, 603 (1988)).

Webster v. Doe, 486 U.S. 592, 603 (1988) ("[W]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear. . . . We require this heightened showing in part to avoid the 'serious constitutional question' that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim."); Johnson v. Robinson, 415 U.S. 361, 366-67 (1974).

5 U.S.C. § 555. In addition, 5 U.S.C. § 558 provides that an adjudicative "order [may not be] issued except within jurisdiction delegated to the agency and as authorized by law." Id. § 558(b). Section 558 also contains provisions applicable to licensing proceedings. Id. § 558(c). As explained above, the APA defines "adjudication" as the "agency process for the formulation of an order," Id. § 551(7); see supra "What is Agency Adjudication?" And, also mentioned above, an "order" includes "licensing," 5 U.S.C. § 551(6). Therefore, licensing is a form of adjudication under the APA. See Marathon Oil Co. v. EPA, 564 F.2d 1253, 1262 (9th Cir. 1977) ("The APA specifically provides that licensing proceedings . . . are adjudications.").

See 5 U.S.C. §§ 555(a) ("This section applies, according to the provisions thereof, except as otherwise provided by [5 U.S.C. §§ 551–559]."), 559 (providing that a statute may "supersede or modify" the APA if "it does so expressly"); compare Doe v. McAleenan, 415 F. Supp. 3d 971, 978 (S.D. Cal. 2019) (holding that the Section 555 right to counsel likely applies to non-refoulment interviews conducted by DHS because no other statute overrides the Section 555 right and therefore "the APA default provisions necessarily apply; to hold otherwise would be to render the default provisions obsolete"); with United States v. Quinteros Guzman, No. 3:18-cr-00031, 2019 WL 3220576, at *10 (July 17, 2019) (no right to counsel during expedited removal proceedings under 8 U.S.C. § 1225(b)(1), because that immigration statute overrides the APA provision); but see Bollow v. Fed. Reserve Bank, 650 F.2d 1093, 1101 (9th Cir. 1981) (reasoning that Section 555 did not apply because the proceeding at issue was excepted from the APA's formal hearing and judicial review provisions).

5 U.S.C. § 555(b) ("A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative."); see Sartain v. SEC, 601 F.2d 1366, 1375 (9th Cir. 1979) (explaining that § 555(b) creates a "right to retain independent counsel"). For a discussion of the constitutionality of statutory prohibitions on legal counsel during agency proceedings, see supra text at notes 161-64.

5 U.S.C. § 555(b) ("A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding."); see AmBuild Co., LLC v. United States, 119 Fed. Cl. 10, 20 (2014).

5 U.S.C. § 555(b) ("So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function."); see Block v. SEC, 50 F.3d 1078, 1085 (D.C. Cir. 1995).

5 U.S.C. § 555(b) ("With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it."); see Pub. Citizen Health Rsch. Grp. v. FDA, 740 F.2d 21, 32 (D.C. Cir. 1984).

5 U.S.C. § 555(c) ("A person compelled to submit data or evidence is entitled to retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof, except that in a nonpublic investigatory proceeding the witness may for good cause be limited to inspection of the official transcript of his testimony."); See United States v. Murray, 297 F.2d 812, 821 (2d Cir. 1962).

5 U.S.C. § 555(d) ("Agency subpoenas authorized by law shall be issued to a party on request and, when required by rules of procedure, on a statement or showing of general relevance and reasonable scope of the evidence sought.").

Id. § 555(e) ("Prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial."); Ardila Olivares v. Transp. Sec. Admin., 819 F.3d 454, 463 (D.C. Cir. 2016).

Asimow, Federal Administrative Adjudication, supra note 22, at 40-52; Tom C. Clark, Attorney General's Manual on the Administrative Procedure Act (1947). The Supreme Court often has given the Manual some measure of deference due to the fact the Department of Justice "was heavily involved in the legislative process that resulted in the [APA's] enactment in 1946." Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979); see, e.g., Norton v. S. Utah Wilderness All., 542 U.S. 55, 63 (2004) (explaining that the Court has often found the Manual "persuasive"); Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 546 (1978) (referring to the Manual as "a contemporaneous interpretation previously given some deference by this Court").

Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 655 (1990).

See Butte Cty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010) ("We have what is known as informal agency adjudication. Governing procedural rules, derived mainly from § 555 of the APA, 5 U.S.C. § 555, and the Due Process Clause, are few.").

See Pension Benefit Guar. Corp., 496 U.S. at 653 ("[W]hen the Due Process Clause is not implicated and an agency's governing statute contains no specific procedural mandates, the APA establishes the maximum procedural requirements a reviewing court may impose on agencies.").

Butte Cty., Cal. v. Chaudhuri, 887 F.3d 501, 506 (D.C. Cir. 2018) ("[I]n an informal adjudication, there is no blanket obligation for an agency to allow the submission of rebuttal evidence at all.").

Pension Benefit Guar. Corp., 496 U.S. at 653 (rejecting arguments that in an informal adjudication, the agency must notify a party "of the material on which it was to base its decision" and provide "an adequate opportunity to offer contrary evidence"); Jurewicz v. USDA, 741 F.3d 1326, 1334-35 (D.C. Cir. 2014) (no right to a "meaningful opportunity" to respond to agency analysis in reverse-FOIA informal adjudications); Sw. Airlines Co. v. TSA, 650 F.3d 752, 757 (D.C. Cir. 2011) (no right to respond to unfavorable consultant report in informal adjudication of TSA fees).

Id. at 742-43.

See Bremer, Reckoning with Exceptionalism, supra note 1, at 1792; Asimow, Federal Administrative Adjudication supra note 22, at 60; Verkuil, supra note 1, at 794 (discussing the concept of an "Informal Administrative Procedure Act").

See Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1964-65 (2020) (discussing congressional development of rapid inquisitorial procedures to determine the admissibility of aliens at the border); Monk, 978 F.3d at 1275 (legislative reforms to VA appeals process).

See supra note 92 (discussing ACUS publications that examine informal adjudication schemes).