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Statutory Right to Counsel; Federal Administrative Procedure Act

Under the Federal Administrative Procedures Act, 5 USCS § 706, an administrative agency action may be held unlawful and set aside if found to be in short of statutory right[i].  Under administrative investigative proceedings right to counsel is a statutory right granted under the Administrative Procedure Act.  It is not a guarantee of the U.S. Constitution[ii].

According to the provisions of the Federal Administrative Procedure Act, a person compelled to appear in person before an agency or a representative of the agency is entitled to be accompanied, represented, and advised by counsel, or if permitted by the agency, by another qualified representative[iii].  In Thompson v. Department of Professional Regulation, Bd. of Medical Examiners, 488 So. 2d 103 (Fla. Dist. Ct. App. 1st Dist. 1986), the court held that the constitutional guarantee of right to counsel is not applicable to administrative proceedings.

In Backer v. Commissioner, 275 F.2d 141 (5th Cir. Ga. 1960), the court held that the right to counsel guaranteed under the Administrative Procedure Act is much broader than the right to have an attorney to advise him relative to his rights under U.S. Const. Amend. 5.  The Act says such counsel may accompany, represent and advise the witness, without any limitation[iv].  In Federal Communications Com. v. Schreiber, 329 F.2d 517, 535 (9th Cir. Cal. 1964), the court held that the language and legislative history of the Administrative Procedure Act indicate that Congress intended to grant to witnesses compelled to appear in agency investigations the right to be accompanied, represented, and advised by counsel.

[i] United States v. Agronics, Inc., 164 F.3d 1343 (10th Cir. N.M. 1999)

[ii] Smith v. United States, 250 F. Supp. 803, 806 (D.N.J. 1966)

[iii] 5 USCS § 555

[iv] 5 USCS § 555

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