1. (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. (1) a matter subject to a subsequent trial of the law and the facts de novo in a court;
   2. (2) the selection or tenure of an employee, except a ¹ administrative law judge appointed under section 3105 of this title;
   3. (3) proceedings in which decisions rest solely on inspections, tests, or elections;
   4. (4) the conduct of military or foreign affairs functions;
   5. (5) cases in which an agency is acting as an agent for a court; or
   6. (6) the certification of worker representatives.

2. (b) Persons entitled to notice of an agency hearing shall be timely informed of—

   1. (1) the time, place, and nature of the hearing;
   2. (2) the legal authority and jurisdiction under which the hearing is to be held; and
   3. (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.

3. (c) The agency shall give all interested parties opportunity for—

   1. (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. (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.

4. (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. (1) consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or
   2. (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—

   1. (A) in determining applications for initial licenses;
   2. (B) to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; or
   3. (C) to the agency or a member or members of the body comprising the agency.
5. (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.)

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.

Editorial Notes

Codification

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

Amendments

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

¹ So in original.