Initial or Recommended Decision

According to the Federal Administrative Procedure Act, if the agency head does not preside at the reception of the evidence, the presiding employee makes an initial decision.[i] The Act further provides that when the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further proceedings.  However, parties to proceeding may appeal to the agency or the agency may review the initial decision on its own motion.  The administrative appeal or review of an initial decision should be commenced within the time specified by agency rule.  If it is not commenced within the time specified then the initial decision becomes the final decision of the agency.  However, a hearing examiner has no power to bind an agency with a proposal for decision.[ii]

The Model State Administrative Procedure Act states that if a majority of the officials of an agency which is to render a final decision has not heard the case or read the record, and if the agency’s decision is adverse to a party other than the agency itself, the agency should serve a proposal for decision upon the parties. The Act further provides that the requirement of a proposal for decision may be waived by the parties by written stipulation.

The Federal Administrative Procedure Act, states that there is no need for an initial decision if:[iii]

  • the agency presides over the hearing,
  • the agency requires that the entire record be certified to it for decision
  • in rulemaking or determinations for initial licenses, any responsible employee of agency recommends a decision, or
  • the agency finds on the record that due and timely execution of its functions imperatively and unavoidably requires a decision without a recommended decision.

The Act further states that before the presiding employee initially decide a case before an agency, the parties are entitled to a reasonable opportunity to submit, for the consideration of the employees participating in the decisions:[iv]

  • proposed findings and conclusions,
  • exceptions to the proposed decisions, and
  • supporting reasons for the exceptions or proposed findings or conclusions.

The failure of the presiding employee to include explicit findings and conclusions violates the Federal Administrative Procedure Act.[v]

An initial, recommended, or tentative decision becomes part of the administrative record and the record should include a statement of:[vi]

  • findings and conclusions, and the reasons thereof, on all the material issues of fact, law, or discretion presented on the record, and
  • the appropriate rule, order, sanction, relief, or denial thereof.

In a judicial review of administrative action the court may only uphold the agency order if it is sustained by the agency’s findings and for the reasons stated by the agency.[vii] In Eastern Outdoor Adver. Co. v. Mayor & City Council, 146 Md. App. 283 (Md. Ct. Spec. App. 2002), the court held that an administrative board’s findings should be precise and clear enough to facilitate meaningful judicial review.

[i] 5 USCS § 557

[ii] Ross v. Texas Catastrophe Property Ins. Asso., 770 S.W.2d 641 (Tex. App. Austin 1989)

[iii] 5 USCS § 557

[iv] 5 USCS § 557

[v] Iowa State Commerce Com. v. Office of Federal Inspector of Alaska Natural Gas Transp. System, 730 F.2d 1566, 1577 (D.C. Cir. 1984)

[vi] 5 USCS § 557

[vii] Harford County v. Preston, 322 Md. 493, 505 (Md. 1991)


Inside Initial or Recommended Decision