Power to Revise Administrative Orders

The hearing process in administrative and civil cases is similar.  However, administrative hearings do not have jury trials.  An administrative law judge (ALJ) presides over administrative hearings.  An ALJ usually provides a final decision in agency actions in written form.

In some states, the decision of an ALJ is considered final.  However, in some other jurisdictions, after an ALJ decides an administrative issue, the agency can review the decision and make a determination to accept, reject or modify the decision.[i] The agency can then issue its final administrative decision.  However, an agency cannot reconsider its decision if a statute prohibits reconsideration of final decisions.[ii]

The inherent power of administrative agencies to accept, reject, or modify a decision can be retained by an agency when the agency possesses jurisdiction over the matter in issue.[iii] After rehearing a case, an agency can revise its prior decision.  In cases where a procedural error is detected before a final decision is reached, the agency can conduct a fresh hearing to rectify the error.[iv]

A decision made by an administrative agency can be modified if there is a substantial change in circumstances.  The decision can also be modified if modification would serve the public interest.[v] An agency can revise its order even when a case is pending for review before a court.  An agency can reconsider its decision and rectify any error present.[vi] Mistakes of fact and clerical errors also can  be corrected at any stage after the decision is made as long as the mistake is plainly shown on the record.[vii] However, the power provided to change decisions by correcting errors should not be misused to change the substance of a decision.  If decisions are changed in the guise of correcting errors the legality of the subsequent decision can be questioned.

An agency can reconsider its own decisions using its inherent powers.  However, for reconsidering a prior decision most administrative agencies depend on statutory powers.[viii]

An agency has the discretion whether or not to reconsider a prior decided case.  However, an agency should not abuse its discretion.[ix] An agency should not divert from its policies while reconsidering a case.  However, if a reasonable explanation can be provided, an agency can deviate from its own policies to reconsider a case.  A case should be reconsidered within a reasonable time period.  Notice of reconsideration of a case should be provided to all parties involved.[x]

[i] Douglass v. Copley Twp. Bd. of Zoning Appeals, 2004 Ohio 6765 (Ohio Ct. App., Summit County Dec. 15, 2004)

[ii] In re Application of Envirosafe Services of Ohio, Inc., 1991 Ohio App. LEXIS 6304 (Ohio Ct. App., Franklin County Dec. 24, 1991)

[iii] Union Light, Heat & Power Co. v. Public Service Com., 271 S.W.2d 361 (Ky. 1954)

[iv] Brodie v. Selsky, 203 A.D.2d 671 (N.Y. App. Div. 3d Dep’t 1994)

[v] Cronin v. Browner, 90 F. Supp. 2d 364 (S.D.N.Y. 2000)

[vi] Board of Education v. Illinois Educational Labor Relations Bd., 179 Ill. App. 3d 696 (Ill. App. Ct. 4th Dist. 1989)

[vii] Mike Little Gas Co. v. Public Service Com., 574 S.W.2d 926 (Ky. Ct. App. 1978)

[viii] Clark v. State Employees Appeals Board, 363 A.2d 735 (Me. 1976)

[ix] Luckie v. Admin. Review Bd., 321 Fed. Appx. 889 (11th Cir. 2009)

[x] Elkem Metals Co. v. United States, 26 C.I.T. 234 (Ct. Int’l Trade 2002)


Inside Power to Revise Administrative Orders