The Federal Administrative Procedure Act provides that the presiding employee or an employee qualified to preside at hearings may initially decide a case before an agency.[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.  On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule.[ii]

In Citizens for Responsible Road-Ways v. McCoy, 145 N.C. App. 497 (N.C. Ct. App. 2001), the court held that failure to timely petition for a hearing before the office of administrative hearings constituted a waiver of any right to that administrative remedy.  However, a filing deadline, as a condition to the waiver of sovereign immunity, should be strictly construed.[iii] Similarly, appeal period in the administrative proceedings are jurisdictional and is not extended as a matter of grace or without a good cause.[iv] In Pyles v. Merit Sys. Protection Bd., 45 F.3d 411 (Fed. Cir. 1995), the court held that a party who is diagnosed with dementia may establish good cause for a failure to file a timely administrative appeal.  However, the discovery of new legal arguments or the discovery of a precedential decision which may affect the outcome of an appeal does not establish good cause for the untimely filing of a petition for review.[v]

The standard of review by a commission of a hearing officer’s decision is de novo.[vi] The extent of that review extends to credibility as well as questions of fact.[vii] The general legal principles which apply to appeals from lower to higher courts do not apply to administrative review of administrative determinations.[viii] In Messer v. Snohomish County Bd. of Adjustment, 19 Wn. App. 780, 787 (Wash. Ct. App. 1978), the court held that a full administrative appeal or review in which there is a hearing de novo is sometimes provided by statute or ordinance.  The scope and nature of an administrative appeal or review is determined by the provisions of the statutes and ordinances which authorize them.[ix]

[i] 5 USCS § 557

[ii] id

[iii] Chung v. DOJ, 2001 U.S. Dist. LEXIS 25302 (D.D.C. Sept. 20, 2001)

[iv] Delquadro v. Crime Victim’s Comp. Bd., 157 Pa. Commw. 72 (Pa. Commw. Ct. 1993)

[v] Blanchard v. MSPB, 58 Fed. Appx. 504 (Fed. Cir. 2003)

[vi] Millcreek Manor v. Dep’t of Pub. Welfare, 796 A.2d 1020 (Pa. Commw. Ct. 2002)

[vii] Lebanon Props. v. North, 66 S.W.3d 765 (Mo. Ct. App. 2002)

[viii] Messer v. Snohomish County Bd. of Adjustment, 19 Wn. App. 780, 787 (Wash. Ct. App. 1978)

[ix] id