Adjudications

Page 59

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

In subsection (b), the word ‘‘when’’ is substituted for
‘‘in any situation in which’’.
In subsection (c), the words ‘‘for oral presentation’’
are substituted for ‘‘to present the same orally in any
manner’’. The words ‘‘sections 556 and 557 of this title
apply instead of this subsection’’ are substituted for
‘‘the requirements of sections 1006 and 1007 of this title
shall apply in place of the provisions of this subsection’’.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
CODIFICATION
Section 553 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2245 of Title 7, Agriculture.
EXECUTIVE ORDER NO. 12044
Ex. Ord. No. 12044, Mar. 23, 1978, 43 F.R. 12661, as
amended by Ex. Ord. No. 12221, June 27, 1980, 45 F.R.
44249, which related to the improvement of Federal regulations, was revoked by Ex. Ord. No. 12291, Feb. 17,
1981, 46 F.R. 13193, formerly set out as a note under section 601 of this title.

§ 554. Adjudications
(a) This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record
after opportunity for an agency hearing, except
to the extent that there is involved—
(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 1 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.
(b) Persons entitled to notice of an agency
hearing shall be timely informed of—
(1) the time, place, and nature of the hearing;
(2) the legal authority and jurisdiction under
which the hearing is to be held; and
(3) the matters of fact and law asserted.
When private persons are the moving parties,
other parties to the proceeding shall give
prompt notice of issues controverted in fact or
law; and in other instances agencies may by rule
require responsive pleading. In fixing the time
and place for hearings, due regard shall be had
for the convenience and necessity of the parties
or their representatives.
(c) The agency shall give all interested parties
opportunity for—
(1) the submission and consideration of
facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of
the proceeding, and the public interest permit;
and
(2) to the extent that the parties are unable
so to determine a controversy by consent,
hearing and decision on notice and in accordance with sections 556 and 557 of this title.
1 So

in original.

§ 554

(d) The employee who presides at the reception of evidence pursuant to section 556 of this
title shall make the recommended decision or
initial decision required by section 557 of this
title, unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law,
such an employee may not—
(1) consult a person or party on a fact in
issue, unless on notice and opportunity for all
parties to participate; or
(2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or
prosecuting functions for an agency.
An employee or agent engaged in the performance of investigative or prosecuting functions
for an agency in a case may not, in that or a factually related case, participate or advise in the
decision, recommended decision, or agency review pursuant to section 557 of this title, except
as witness or counsel in public proceedings. This
subsection does not apply—
(A) in determining applications for initial licenses;
(B) to proceedings involving the validity or
application of rates, facilities, or practices of
public utilities or carriers; or
(C) to the agency or a member or members
of the body comprising the agency.
(e) The agency, with like effect as in the case
of other orders, and in its sound discretion, may
issue a declaratory order to terminate a controversy or remove uncertainty.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 384; Pub. L.
95–251, § 2(a)(1), Mar. 27, 1978, 92 Stat. 183.)
HISTORICAL AND REVISION NOTES
Derivation
..................

U.S. Code
5 U.S.C. 1004.

Revised Statutes and
Statutes at Large
June 11, 1946, ch. 324, § 5, 60
Stat. 239.

In subsection (a)(2), the word ‘‘employee’’ is substituted for ‘‘officer or employee of the United States’’
in view of the definition of ‘‘employee’’ in section 2105.
In subsection (a)(4), the word ‘‘naval’’ is omitted as
included in ‘‘military’’.
In subsection (a)(5), the word ‘‘or’’ is substituted for
‘‘and’’ since the exception is applicable if any one of
the factors are involved.
In subsection (a)(6), the word ‘‘worker’’ is substituted
for ‘‘employee’’, since the latter is defined in section
2105 as meaning Federal employees.
In subsection (b), the word ‘‘When’’ is substituted for
‘‘In instances in which’’.
In subsection (c)(2), the comma after the word ‘‘hearing’’ is omitted to correct an editorial error.
In subsection (d), the words ‘‘The employee’’ and
‘‘such an employee’’ are substituted in the first two
sentences for ‘‘The same officers’’ and ‘‘such officers’’
in view of the definition of ‘‘employee’’ in section 2105.
The word ‘‘officer’’ is omitted in the third and fourth
sentences as included in ‘‘employee’’ as defined in section 2105. The prohibition in the third and fourth sentences is restated in positive form. In paragraph (C) of
the last sentence, the words ‘‘in any manner’’ are omitted as surplusage.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.

§ 555

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
CODIFICATION

Section 554 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2246 of Title 7, Agriculture.

Page 60

HISTORICAL AND REVISION NOTES
Derivation
..................

Revised Statutes and
Statutes at Large

U.S. Code
5 U.S.C. 1005.

June 11, 1946, ch. 324, § 6, 60
Stat. 240.

AMENDMENTS
1978—Subsec. (a)(2). Pub. L. 95–251 substituted ‘‘administrative law judge’’ for ‘‘hearing examiner’’.

§ 555. Ancillary matters
(a) This section applies, according to the provisions thereof, except as otherwise provided by
this subchapter.
(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. A party is entitled to appear in person or by or with counsel or
other duly qualified representative in an agency
proceeding. 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. 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. This subsection does not grant
or deny a person who is not a lawyer the right
to appear for or represent others before an agency or in an agency proceeding.
(c) Process, requirement of a report, inspection, or other investigative act or demand may
not be issued, made, or enforced except as authorized by law. 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.
(d) Agency subpenas 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. On contest, the court shall sustain the subpena or similar process or demand
to the extent that it is found to be in accordance
with law. In a proceeding for enforcement, the
court shall issue an order requiring the appearance of the witness or the production of the evidence or data within a reasonable time under
penalty of punishment for contempt in case of
contumacious failure to comply.
(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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 385.)

In subsection (b), the words ‘‘is entitled’’ are substituted for ‘‘shall be accorded the right’’. The word
‘‘officers’’ is omitted as included in ‘‘employees’’ in
view of the definition of ‘‘employee’’ in section 2105.
The words ‘‘With due regard for the convenience and
necessity of the parties or their representatives and
within a reasonable time’’ are substituted for ‘‘with
reasonable dispatch’’ and ‘‘except that due regard shall
be had for the convenience and necessity of the parties
or their representatives’’. The prohibition in the last
sentence is restated in positive form and the words
‘‘This subsection does not’’ are substituted for ‘‘Nothing herein shall be construed either to’’.
In subsection (c), the words ‘‘in any manner or for
any purpose’’ are omitted as surplusage.
In subsection (e), the word ‘‘brief’’ is substituted for
‘‘simple’’. The words ‘‘of the grounds for denial’’ are
substituted for ‘‘of procedural or other grounds’’ for
clarity.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.
CODIFICATION
Section 555 of former Title 5, Executive Departments
and Government Officers and Employees, was transferred to section 2247 of Title 7, Agriculture.

§ 556. Hearings; presiding employees; powers and
duties; burden of proof; evidence; record as
basis of decision
(a) This section applies, according to the provisions thereof, to hearings required by section
553 or 554 of this title to be conducted in accordance with this section.
(b) There shall preside at the taking of evidence—
(1) the agency;
(2) one or more members of the body which
comprises the agency; or
(3) one or more administrative law judges
appointed under section 3105 of this title.
This subchapter does not supersede the conduct
of specified classes of proceedings, in whole or in
part, by or before boards or other employees specially provided for by or designated under statute. The functions of presiding employees and of
employees participating in decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or
participating employee may at any time disqualify himself. On the filing in good faith of a
timely and sufficient affidavit of personal bias
or other disqualification of a presiding or participating employee, the agency shall determine
the matter as a part of the record and decision
in the case.
(c) Subject to published rules of the agency
and within its powers, employees presiding at
hearings may—
(1) administer oaths and affirmations;
(2) issue subpenas authorized by law;
(3) rule on offers of proof and receive relevant evidence;
(4) take depositions or have depositions
taken when the ends of justice would be
served;