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Bar Journal 2017

Navigating Administrative Hearings From Start to Finish

By Kevin D. Gordon and Elizabeth Scott

Imagine your client has received an agency letter alleging statutory violations and threatening to revoke her professional license. Where do you start?

Whether a licensing proceeding or some other administrative hearing, these types of agency actions have become increasingly common. As the U.S. Supreme Court has noted, the administrative state “wields vast power and touches almost every aspect of daily life.”1  This gradual expansion of the “fourth branch”2 of government has occurred both on the federal and state level. For practitioners in Oklahoma, a keen understanding of the Oklahoma Administrative Procedures Act (OAPA) proves invaluable when clients inevitably face issues with state agencies. This article examines Article II of the OAPA, which generally governs agency hearings and adjudications. By navigating from notice of an agency complaint to the judicial review of a final agency order, this article seeks to familiarize practitioners with the basic contours of agency hearings as well as common pitfalls to avoid when a client is haled into an administrative proceeding. 

AGENCY AUTHORITY  

While Article II of the OAPA3 generally ap-plies to state agencies, it exempts several agencies either in whole or part.4 So the logical first step in any agency proceeding is to determine which statute provides the agency’s authority and procedure. Begin by analyzing the enabling statute, meaning the statute by which the legislature created the agency. If the enabling statute does not contain a hearing procedure, then review Article II of the OAPA and determine whether it exempts the agency from its default procedure. If not, follow the procedure outlined in Article II. Further, you should refer to the Oklahoma Administrative Code (OAC) to identify relevant agency rules that may control in your proceeding. And, of course, consider any constitutional requirements of due process that may apply if the hearing implicates property or liberty rights. Understanding these sources of authority will not only help you better defend your client in the agency hearing, but will also prepare you on possible grounds for reversal if you seek judicial review.
 
NOTICE OF THE VIOLATION 
After determining which sources of law apply, review the agency complaint (also referred to as a notice). The complaint must set forth the time, place and nature of the hearing, as well as the legal authority, jurisdiction and factual and legal issues involved.6 The case will be assigned to either an administrative law judge or a hearing examiner depending on the agency. The OAPA guarantees those who receive an agency complaint the opportunity “to respond and present evidence and argument” on all issues raised in the complaint. While the timeline for answering the complaint differs by agency, 20 days is common.8 Hearing examiners typically grant extensions for additional time to respond if requested. Though hearing examiners are employed by the agency, they may not communicate ex parte with the agency’s investigators, which helps ensure a fair hearing.9 Like a trial judge, the hearing examiner rules the roost, issuing subpoenas, ruling on motions and granting orders. Prior to those actions, however, the hearing examiner typically issues a scheduling order, which includes discovery deadlines. 

DISCOVERY

You may find that the agency enjoys quite the upper hand in gathering information. To illustrate why, consider an agency’s broad investigatory power. Depending on its enabling statute, an agency may have the power to search and seize, issue subpoenas and employ full-time investigators who are commissioned peace officers.10 Further, agencies sometimes consult with other agencies or leverage other state resources to develop a case. Much of this information gathering may occur before the agency has issued a complaint to your client. And after your client receives a complaint, agencies may not be required to disclose the reports or initial complaints that prompted the investigation.11 In light of this imbalance, the limited discovery that does exist in an administrative hearing becomes all the more important.

No standard discovery scheme exists for administrative hearings: some agencies have adopted the Oklahoma Discovery Code, some follow hybrid, agency-specific rules located in the OAC, and others rely solely on the limited discovery provisions of the OAPA.12 Here too, knowledge of the agency’s enabling statute proves crucial. If the agency has authority to promulgate rules, determine if it has adopted the Oklahoma Discovery Code in whole or part. If not, the OAPA controls and allows for depositions and subpoenas “to compel the production of books, records, papers or other objects.”13 The OAPA does not contemplate other discovery tools, such as interrogatories. The availability of other discovery devices depends on agency-specific practice.14 Following discovery, the parties exchange witness and exhibit lists, and may also file prehearing motions. Further, the agency may offer to settle at this time.15 While timing varies by agency, the hearing usually occurs around one month after the close of discovery. 

THE HEARING AND FINAL ORDER

Agency hearings somewhat mirror a civil trial, but on a much more compressed timeline; most last less than a day. These hearings vary in structure and scope depending on the specific rights involved. For purposes of this article, consider an administrative board hearing to revoke a professional license. A typical licensing hearing begins with opening statements from both sides and then proceeds to the agency’s case-in-chief, the respondent’s defense, closing statements, a call for executive session, a board vote and ultimately a final order. The agency bears the burden of proof and typically must prove its case by clear and convincing evidence.16  While you may use expert witnesses, the board can take notice of “recognized technical or scientific fasts within the agency’s specialized knowledge.”17 Other witnesses can be compelled to testify through subpoena.18 You may have a court reporter transcribe the proceeding at your own expense.19

Note that the evidentiary rules are relaxed in a hearing.20 Most notably, the board can hear and rely on hearsay evidence without committing reversible error.21 Though the evidentiary rules are relaxed, they are not abandoned. For example, traditional privilege protections apply.22 When necessary, raise evidentiary objections and argue why a particular evidentiary rule should apply. Further, you should continue to object if not only to preserve the record for judicial review. Because this administrative hearing offers your only trial de novo on the matter, make every effort to fully develop the record in your client’s favor. After the presentation of evidence and cross-examination, parties make closing statements. Further, some agency rules allow a party to submit proposed findings of fact prior to deliberation.23  If available, take advantage of this opportunity as it may provide a ground for reversal under judicial review. After closing statements, the board will most likely move for executive session and deliberate privately.24 Once it reaches a decision, the board will move to end the executive session and invite back in the licensee and anyone else attending the hearing. The board members then publicly cast their individual votes and pronounce a final order. 

Though the board may orally pronounce a final order at the hearing, the OAPA requires the agency to issue a written final order that separately sets forth findings of fact and conclusions of law.25 The agency must also serve this final order on parties personally or by certified mail.26 Though a party may hear the final order during the hearing, the timer for appeal will not begin until that party properly receives the written notice.27 Imagine that your client does receive an adverse final agency order (you can’t win them all). If you wish to challenge the final agency order, two options remain: ask the agency to reconsider or seek judicial review.

REQUEST FOR REHEARING

You may request a rehearing, reopening or reconsideration of the final order within 10 days of its entry.28 In doing so, you must point to at least one of five grounds listed in the statute: 1) newly discovered or available evidence, 2) need for additional evidence to develop essential facts, 3) probable error committed by the agency that would provide a ground for reversal under judicial review, 4) need for further consideration in the public interest or 5) a showing that issues ought to be taken into account that were not previously considered.29 Outside of these five grounds, an agency may at any time reconsider a matter on the ground of fraud perpetrated by the prevailing party or on the ground that the order resulted from perjured testimony or fictitious evidence.30 If you convince the agency to reconsider, the hearing is limited to the grounds listed in the order granting rehearing or reconsideration.31 Seeking a rehearing will not affect the period in which you can seek judicial review: that period is tolled until the agency decides on the application for rehearing.32 

JUDICIAL REVIEW
If the agency denies rehearing, you may file a petition in district court to seek judicial review.33 Of course, you may do so immediately if you choose not to ask for a rehearing. Judicial review becomes available upon entry of the final agency order. Consequently, a party cannot appeal an interlocutory agency action.34 

Once you have decided to file a challenge in court, pay close attention to the jurisdictional timing requirements: if a party brings an untimely action, the court has no power to hear the case.35 First, you must file the petition within 30 days after receiving notice of the final order.36 As to venue, you must file in either 1) the county in which the party resides or 2) where the property affected is situated if a property right is in question.37 Once you have filed the petition, you must notify the agency and all other parties of record by serving them with copies of the petition.38 Note that the statute does not require a summons with this service.39 After serving the required parties, you must then provide the court proof of service within 10 days of filing the petition.40 The agency has 60 days after receiving service of the petition to send the administrative record to the court.41 

After meeting these timing and venue requirements, consider asking the district court to stay enforcement of the agency decision. The OAPA allows the district court to do so “as it deems proper.”42 But, where enforcement would result in “present, continuous, and irreparable impairment of … constitutional rights,” the district court must stay enforcement of the order and may require the appellant to post a supersedeas bond to secure compensation for any loss a party may suffer in the interim if the court ultimately affirms the agency action.43 As to the record before the court, the parties may stipulate to shorten the record and court may “require subsequent corrections or additions to the record when deemed desirable.”44 Additionally, ask for oral argument and briefing as the statute requires the court do so upon request.45

STANDARD OF REVIEW

A court reviewing a final agency order may 1) “set aside or modify the order” or 2) “reverse it and remand it to the agency for further proceedings.”46 While this seems like broad power, courts confine their review to the agency record and typically grant the agency considerable deference.47 This underscores the importance of developing a full record at the agency hearing so that a reviewing court has more to consider on appeal. The OAPA allows the reviewing court to take the above measures when agency actions or findings are:

(a) in violation of constitutional provisions;

(b) in excess of statutory authority or

jurisdiction;

(c) made upon unlawful procedures;

(d) affected by error of law;

(e) clearly erroneous in view of reliable, material, probative and substantial competent evidence as defined in [the OAPA];

(f) arbitrary or capricious; or

(g) lacking findings of fact after such findings were requested.48 

At first glance, this list can cause more confusion than clarity. A careful review, however, offers insight. First, subsections (a)-(d) are grounded in errors of law.49 Recall that agencies exist solely as a product of statute. Consequently, when an agency acts beyond the bounds of the constitution, the enabling statute, or the OAPA, the court can reverse that action as ultra vires. Again, a mastery of the applicable statutes allows you to make nuanced arguments on this front. While courts will defer to agency expertise, argue that these grounds represent pure questions of law entitled to de novo review.50   
 
The next two statutory grounds, listed in subsections (e) and (f), relate to an agency’s findings of fact, and thus “require an enhanced burden for reversal.”51 Subsection (e) applies the clearly erroneous standard, under which an agency’s factual finding will not be reversed “unless the reviewing court upon examination of the complete record is left with a ‘definite and firm conviction that a mistake has been committed.’”52 Further, the OAPA itself guides that the court must review the factual findings “without otherwise substituting its judgment as to the weight of the evidence for that of the agency.”53 

Subsection (f) also relates to factual findings, but does so differently than subsection (e). The “arbitrary or capricious” standard of subsection (f) is “defined as action which is willful and unreasonable without consideration or in disregard of facts or without determining principle.”54 While subsection (e) examines the adequacy of factual findings, subsection (f) determines whether the agency’s factual findings adequately fit the conclusions. Finally, subsection (g) allows a court to reverse agency action when the agency fails to make a finding of fact that the appellant requested. Recall that some agency rules allow a party to propose findings of fact to the hearing examiner. This ground for reversal highlights the importance of leveraging all available procedures during the agency hearing. If you fail at the district court level, you may appeal to the Oklahoma Supreme Court in the same manner as other district court appeals.55 

CONCLUSION
The thought of exhausting your client’s administrative remedies can be, well, exhausting. But as agency regulation continues to expand, proficiency in the OAPA grows more and more valuable. This area of law offers ample opportunity for practitioners willing to delve into the intricacies of the statute.

Author’s Note: The authors acknowledge and thank attorneys Evan Way and Ryan Wilson for their assistance with this article.

1. Free Enter. Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010). 
2. See, e.g., Process Gas Consumers Grp. v. Consumer Energy Council of America, 463 U.S. 1216, 1219 (1983) (White, J., dissenting) (“[I]ndependent agencies, once created, for all practical purposes are a fourth branch of the government.”).
3. Okla Stat. tit. 75, §§308a-323.
4. Okla Stat. tit.. 75, §250.4.
5. The constitutional requirement of due process in agency proceedings falls beyond the scope of this article. For authority on that issue, see Matthews v. Eldridge, 424 U.S. 319 (1976).
6. Okla Stat. tit. 75, §309(B)(1-4).
7. Id. §309(C). 
8. See Okla. Admin. Code §775:15-3-6; id. §435:3-3-8; id. §510:1-5-5; Okla. Stat. tit. 59, §503. 
9. Okla Stat. tit. 75, §313; see also Barnes v. Univ. of Oklahoma, 1995 OK CIV APP 14, ¶16, 891 P.2d 614, 618.
10. Okla Stat. tit. 75, §315; Okla. Admin. Code §475:40-1-2; id. §475:40-1-3. 
11. See, e.g., Okla Stat. tit. 59, §698.29. 
12. State ex rel. Protective Health Servs. v. Billings Fairchild Ctr., Inc., 2007 OK CIV APP 24, ¶7, 158 P.3d 484, 488 (“For example, the Department of Environmental Quality incorporated the Oklahoma Discovery Code. Okla. Admin. Code §252:4–9–38 (2001). The Oklahoma Department of Mines makes special provisions for Interrogatories. Okla. Admin. Code §460:2–5–1. The Department of Commissioners of Land Office merely references the APA. Okla. Admin. Code §385:1–1–9(4) (2005). The Oklahoma Corporation Commission procedures are not covered by the APA, but that agency makes special provisions for interrogatories in its rules. Okla. Admin. Code §165:5–11–1(c) (1999).”). 
13. Okla Stat. tit. 75, §315.
14. Id. §315. 
15. Id. §309(E). 
16. Okla. Admin. Code §510:1-5-6.1(c); id. §775:15-3-10(c). 
17. Okla Stat. tit. 75, §310 (4). 
18. Id. §315(B)(1). 
19. Id. §309(G).
20. See Moore v. Oklahoma Emp’t Sec. Comm’n, 2013 OK CIV APP 46, ¶10, 301 P.3d 885, 888; see also McDonald’s Corp. v. Oklahoma Tax Comm’n, 1977 OK 74, ¶8, 563 P.2d 635, 637 (“It has been held that the strict rules of evidence are not necessarily applicable to an administrative hearing.”). 
21. Mobilfone Serv., Inc. v. Corp. Comm’n, 1978 OK 98, ¶8, 580 P.2d 995, 997 (“Hearsay evidence is not grounds for reversible error in an administrative hearing where the order is supported by other competent evidence.”); Oklahoma Dep’t of Pub. Safety v. McCrady, 2007 OK 39, ¶10, 176 P.3d 1194, 1201.
22. Okla. Stat. tit. 75, §310. 
23. See id. §312(A)(2).
24. Id. §309(D). 
25. Id. §312(A).
26. Id. §312(B).
27. See Hummer v. Lehmbeck, 2010 OK CIV APP 133, ¶¶7-8, 245 P.3d 1244, 1247.
28. Okla. Stat tit. 75, §317(A).
29. Id. §§317(A)(1)-(5). 
30. Id. §317(C).
31. Id. §317(D).
32. Id. §317(E). 
33. Note that some agency actions, such as licensing decisions by the Oklahoma Medical Board, may be appealed directly to the Oklahoma Supreme Court. See, e.g., Okla. Stat tit. 59, §513.
34. Ricks Expl. Co. v. Oklahoma Water Res. Bd., 1984 OK73, ¶5, 695 P.2d 498, 501-02.
35. Conoco, Inc. v. State Dep’t of Health, 1982 OK 94, ¶11, 651 P.2d 125, 128.
36. Okla. Stat tit. 75, §318(B)(2).
37. Id. §318(B)(2).
38. Id. §318(C).
39. See Choices Inst. v. Oklahoma Health Care Auth., 2010 OK CIV APP 117, ¶7, 241 P.3d 705, 708 (holding that even prior, less explicit version of the statute did not require summons).
40. Okla Stat. tit. 75, §318(C).
41. Id. §320.
42. Id. §319(1). 
43. Id. §319(2).
44. Id. §320.
45. Id. §321.
46. Id. §322.
47. See, e.g., Dewey v. State ex rel. Oklahoma Firefighters Pension & Ret. Sys., 2001 OK 40, ¶12, 28 P.3d 539 (“[T]he district court must confine its review to the record made before the administrative tribunal.”).  
48. Okla. Stat tit. 75, §322(1)(A).
49. Harvey D. Ellis, Jr. & Clyde A. Muchmore, Oklahoma Appellate Practice §24:17 (2016-17 ed.).
50. See The Honorable Justice John F. Reif, “A Discussion of Jurisdiction and Standards of Review,” 81 Okla. Bar Journal 102 (Jan. 16, 2010), available at www.okbar.org/members/BarJournal/archive 2010/Jan archive10/obj812rev.aspx. 
51. Ellis & Muchmore, supra note 49, §24:17. 
52. Indep. Sch. Dist. No. 4 of Harper Cty. v. Orange, 1992 OK CIV APP 145, ¶11, 841 P.2d 1177, 1181 (internal citations omitted).
53. Okla. Stat. tit. 75, §322(1)(e).
54. State ex rel. Bd. of Trustees of Teacher’s Ret. Sys. v. Garrett, 1993 OK CIV APP 29, ¶6, 848 P.2d 1182, 1183 (internal quotations removed).
55. Okla. Stat tit. 75, §323.


ABOUT THE AUTHORS
Kevin Gordon has practiced law with Crowe & Dunlevy since 1984. He is the immediate past president and CEO, and now chairs the firm’s Litigation Department. Mr. Gordon represents a wide range of clients in complex litigation and regulatory matters. For eight years, he also served as an adjunct professor at the OU College of Law. For more than 15 years, he organized and moderated the OBA’s Insurance Law Update, receiving the Earl Sneed Award.

Elizabeth “Libby” Scott is a director in Crowe & Dunlevy’s Oklahoma City office and chairs the Administrative & Regulatory Practice Group. She primarily represents healthcare providers in state and federal ad-ministrative proceedings as well as all related litigation. Ms. Scott is also an active member of the Healthcare and Criminal Defense, Compliance & Investigations practice groups, handling government affairs and legislative issues.


Originally published in the Oklahoma Bar Journal -- OBJ 88 pg. 2207 (Nov. 18, 2017)

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