Chapter 6: The Decision
The ALJ's decision or recommended report is
the central element in all that has happened prior to its
issuance and all that will happen after it is issued. It is
the focus of the administrative adjudication or rate-making
process, and serves as notice to all involved – agency,
party, citizen, the press and public – of the nature
of the proceeding, its implications and importance, and its
result. In so doing it provides a concrete example of how
the agency works in the real world.
The decision often serves as the starting
point for judicial review, regardless of whether it is subsequently
adopted by the agency, and gives the courts a window into
the agency decision making process. Finally, it provides guidance
to the agency in reviewing and implementing policy, deciding
whether policy changes are needed and, if so, in what areas
and to what extent.
ALJs must take seriously the preparation and
presentation of decisions. They must be impartial and decide
the case solely on the merits, based only on the evidence
presented on the record before them. They must not succumb
to annoyances or aggravations brought out by the hearing process,
but instead must write decisions after careful review of the
testimony, the evidence, the exhibits, and the file. It is
not the number of witnesses, their pleasant demeanor in testifying,
or their appearance that should control, but rather the quality
and credibility of their relevant testimony. The ideal as
exemplified in the blind lady of justice is relevant here.
The evidence must be weighed fairly and impartially in order
for the administrative process to function correctly. It is
this requirement that forms the basis for the writing of decisions
in administrative matters.
While ALJs are permitted to receive evidence
that might be inadmissible in a court of law, it is their
responsibility to exercise considered and informed judgments
in appraising the quality of the evidence received and the
weight accorded it. Historically, a decision founded on evidence
judicially inadmissible as to the merits of the case was reversible
by the courts. This was referred to as the "legal residuum"
rule, and is no longer the law in New York. This does not
mean, however, that deciding cases solely based on judicially
inadmissible evidence will be upheld by the courts. Instead,
the courts will apply the substantial evidence test to determine
whether the decision is to be upheld.
The substantial evidence test arises from
Civil Practice Law and Rules §7803, which allows for
judicial review of decisions made by administrative agencies.
The Court of Appeals has said that substantial evidence is
"such relevant proof as a reasonable mind may accept as adequate
to support a conclusion or ultimate fact." [Vega
v. Smith, 66 NY2d 130 (1985 )]. Thus, it is more
than a mere scintilla of evidence, but it is less than evidence
that leaves no doubt, or even a preponderance of evidence,
the standards used in criminal and civil judicial cases, respectively.
Appellate courts in New York are not entitled to simply substitute
their judgment for the judgment of the agency or its ALJs,
but they are required to review the entire record to make
certain that the decision made is supported by substantial
Findings of fact in administrative proceedings
are generally upheld by appellate courts, as they are seen
as the province of the fact finders at the administrative
Reviewing courts will not, however, hesitate
to dislodge a finding that is not supported by evidence in
the record. And while it is not possible to define the concept
of substantial evidence with mathematical precision, awareness
of its existence and its role in the administrative process
can assist the ALJ in writing decisions that withstand judicial–and
Depending upon the circumstances, decisions
issued by hearing officers or ALJs in various state agencies
may look very different in form and substance. For example,
a decision issued following a hearing mandated by the Workers'
Compensation Law would be quite different from a decision
issued following a rate making proceeding mandated by the
Public Service Law. There are, however, certain tenets of
decision writing common to all decision writing.
The actual elements of the decision and the
form of it are dictated by state statute and agency regulation.
Of particular relevance to many agencies is State Administrative
Procedure Act §307, which states:
"A final decision, determination or order adverse
to a party in an adjudicatory proceeding shall be in writing
or stated in the record and shall include findings of fact
and conclusions of law or reasons for the decision, determination
or order. Findings of fact, if set forth in statutory language,
shall be accompanied by a concise and explicit statement of
the underlying facts supporting the findings."
Given this general requirement (which may
or may not apply to a particular agency or hearing, depending
on that agency's specific statute and responsibilities), we
know a number of things. Decisions must either be written
or stated in the record. They must include findings of fact
and conclusions of law or reasons for the decision. And finally,
if the findings are set forth in "statutory language," an
explicit statement of facts must also be included in the decision.
By the very language of the statute, all decisions, even those
stated in the record, must contain these elements.
There is some debate in the administrative
adjudication arena as to whether the record in the hearing
must be closed before the ALJ begins actually drafting the
Whether to begin putting pen to paper prior
to the close of evidence is likely to depend on the particular
ALJ's desire to address evidentiary issues while they remain
fresh in his or her mind. Where the issues are complex and
the proceeding lengthy, writing or outlining draft findings
and conclusions on issues on which proof has been concluded
may be appropriate. If it is necessary to begin writing prior
to the close of evidence, the ALJ must maintain objectivity
and not reach conclusions prematurely.
While it may be necessary in complex cases,
drafting findings or conclusions prior to the close of evidence
in less complex cases is generally discouraged, as it may
make it seem as though the ALJ has pre-judged the issues.
In preparing to write a decision, begin by
reviewing the file, the transcript (if available), and any
exhibits offered as evidence. If briefs or memoranda have
been submitted following the hearing, those should be included
in the final, pre-draft review as well.
Prior to actually preparing the decision,
take time to both think about and outline the decision. Writing
benefits greatly from forethought and consideration, and outlining
often allows the ALJ to consider alternative treatments of
the facts and conclusions without taking the time to put them
into narrative form.
Critical to decision writing is that the decision
accomplish that which it intended. Basic, formal rules of
grammar and usage are thus central to the decision writing
process. A distinction should be made here between writing
well, which is a question of correct grammar and usage, and
good writing, which is a result not only of writing well but
also of writing style.
Basic rules for writing decisions are driven
by the audience to whom the decision is addressed. For example,
a decision written for a regulated utility company will vary
greatly in its presentation, style, and complexity from a
decision written revoking the driver's license of an independent
truck driver. Thus, the first rule of decision writing is
to write for your audience.
Extensive use of legal terminology or complex
terms can lead to a communication breakdown, while failing
to properly use terms of art and accepted phrasing can lead
to misunderstanding by the parties and their attorneys. Balancing
the interest in effecting clear, concise, efficient communication
with the need for writing in understandable terms and phrases
is something ALJs must do based on their experience and their
knowledge of their audience.
In addition, drafters must be aware of the
over use of statutory or regulatory short-hand. An ALJ may
only hear "Section 8" hearings, but citizens involved in their
first "Section 8" hearing may not even know to what that section
pertains. Instead of using such shorthand, adopt a phrase
that quickly but accurately describes the nature of the section.
Use legal sections by number only where actually citing to
the law or regulation itself unless all the parties know the
nature and content of the sections cited. This, again, comes
from knowing for whom the decision is written.
Write concisely. The addition of unnecessary
words or phrases inappropriately lengthens sentences and paragraphs,
complicating as opposed to clarifying meaning. If a word can
be taken out, or a sentence re-worded to use fewer words,
The need for conciseness, however, should
not lead to sheer repetition. Do not start each finding or
conclusion with the same word or phrase. Doing so leads to
dry and essentially unreadable decisions. Again, striking
the appropriate balance is essential to obtaining a well written
Decisions should be candid, but not necessarily
outspoken. Criticism of the parties or actions of the agency
should be omitted unless for some reason they are essential
to the resolution of the matter at hand. Personal reflections
on or criticisms of the parties or the witnesses should not
be made. If the credibility of a witness is at issue, the
reasons for believing or disbelieving a particular witness
should be factual, based on the record at hand. Showing respect
for those who appear at a hearing, even those who may not
have earned that respect, is critical to the judicial temperament
required of an ALJ and should be reflected in the written
One way to avoid complications or criticisms
in this area is to keep the decision factual, based on the
record, without embellishing events or testimony with unnecessary
or extraneous descriptive terms. If adjectives are used, avoid
condescending, insulting, or otherwise inappropriate usage.
In addition, avoid at all costs using sexist, racist, or otherwise
derogatory terms in the decision. Failure to follow this last
piece of advice will likely lead to a loss of respect and
prestige both among your colleagues and those who appear before
Write for others, not for oneself, is one
example. The decision is a means to communicate the outcome
of a proceeding and the reasons thereof to those involved
and those not involved. Keeping to the main point, or thrust,
of the case will also help the decision accomplish its purpose.
Using accepted conventions of grammar and typography will
help to ensure that the decision is easily understood.
Finally, while it is possible to become overly
concerned with issues of being politically correct in your
writing, it is just as possible to be ignorant of or unconcerned
with the implications of language. For example, the choice
of the appropriate pronoun for use in a sentence may be dictated
by the facts. If the party appearing in the proceeding is
a man, it is entirely appropriate to use the pronoun "he"
in writing the decision. If however, the decision includes
a review of the law or otherwise requires the ALJ to refer
to unknown persons, there are a number of methods available
to avoid always using "he" or "she" to form such sentences.
[One such way is to switch to the plural
form, but this choice requires that the entire sentence match.
Instead of saying, "The law requires a brick layer to
observe reasonable care, and will not forgive his reckless
disregard for the safety of others," try, "The law
requires brick layers to observe reasonable care,and will
not forgive their reckless disregard for the safety of others."
Saying, "The law requires a brick layer to observe reasonable
care, and will not forgive their reckless disregard for the
safety of others," is entirely incorrect because there
is use of both singular and plural forms when referring to
the same subject. To avoid this difficulty, it is possible
instead to use an article instead of a pronoun. For example,
instead of saying, "To purchase the product, he should
send a check," write "To purchase the product, send
a check." It is also possible to use "you"
in place of the pronoun, or use both "he or she"
together. This last possibility can add to the verbosity and
complexity of sentences, and thus should be reserved as the
final option when no other options appear appropriate.].
The structure of the decision can either help
or hinder its communicative purpose. If adaptable to a particular
situation, given the agency's statute, rules, regulations
or guidelines, administrative decisions should consist of
the following elements, included in the following order:
1. An introductory procedural statement that
a hearing was held, the parties who appeared, their representatives
(noting professional nature, such as attorney or accountant
where appropriate), the witnesses, if any, and that testimony
was taken and evidence accepted.
2. An introductory substantive statement that
briefly outlines the issue heard and the conclusion reached.
3. A clear, concise but thorough statement
of the issues involved.
4. The findings of fact, based upon the entire
record, including consideration of testimony, exhibits, official
documents, and any other items within the record.
5. The conclusions of law or reasons for the
decision, based upon the material facts found and the applicable
law, making clear where conclusions are based upon the lawful
exercise of discretion.
6. The conclusion(s), based upon the findings
of fact and the conclusions of law or reasons, indicating
the final statement of the ALJ in deciding or recommending
on the matter, and including where appropriate the relief,
if any, that results from the conclusion(s).
The first two of these elements can be combined
into one heading labeled the introductory paragraph, but numbers
three through six should each be set out separately to allow
for a well structure, organized and understandable decision.
Narrative decisions can be made more reader
friendly if they are organized into sub-sections with appropriate
headings. Such a technique allows the reader to follow the
progression of the decision and its analysis, while providing
the ALJ with a point of reference within each of the decision's
The introductory procedural statement should
state all of the procedural background of the case leading
up to the decision, including the ALJ hearing the case, parties
appearing, the witnesses testifying, the date or dates of
the hearings and adjournments, if any, and a statement as
to whether testimony and evidence were taken at the hearings.
This statement may be combined, for organizational purposes,
with the introductory substantive statement, below.
This portion of the decision is rather simple
to develop by referring to the case file. Exercise caution
in transferring the names of the parties, their representatives,
and their witnesses to the decision, as there is no need to
offend those involved in the proceeding by making errors in
this portion of the decision. The procedural introduction
also lends itself to using a standard form or format, so that
all that is required is the filling in of the details themselves.
If a form is used, it is important that it be reviewed prior
to finalizing the decision to make certain that mistakes or
errors due to the use of the form have not slipped by.
The introductory substantive statement, or
the substantive introduction, should be more concise than
any other portion of the decision. It should reflect only
two elements: a brief statement of the issues raised in the
proceeding, and short description of how those issues have
This statement should appear at the beginning
of the decision, not the end, because it definitively sets
the tone for the decision. It is also the reason most people
are reading the decision. While reviewing authorities, attorneys,
courts and judges will be genuinely interested in the whole
of the decision, often times parties are interested most in
the what, or the outcome, and not the why.
Placing the conclusion after the statement
of facts and reasoning simply forces the reader to turn to
the last page of the decision in an attempt to locate the
outcome. By moving this critical piece of information to the
beginning of the document, the ALJ has preempted the need
to read the ending first, and in doing so retains better control
over how the reader is introduced to the rationale.
ALJs may want to combine this statement with
the procedural statement described above, and may even want
to consider placing the information from the substantive statement
first, followed by the procedural statement. The actual order
of these preliminary items is largely a matter of taste, and
ALJs must make their own determination as to which method
is most appropriate for individual circumstances.
The issues statement is the foundation upon
which the remainder of the administrative decision is built.
All of the findings of fact, conclusions or reasons should
relate in one way or another to the issues presented. Facts,
conclusions or reasons not relevant in light of the issues
are extraneous, and should not be included. The purpose of
the statement of issues is to show the nature of the controversy
in question. It is not necessary to cite the controlling or
guiding law extensively; instead, excerpts of the law or paraphrases
of it should be used to generate an acceptable statement.
It may be helpful to set the issues apart
from the text with bullets or numbers, or to use separate,
indented paragraphs. This is not essential, but is helpful
in cases with complex or multiple issues.
Keep in mind also that the issue or issues
may have changed, either subtly or overtly, during the course
of the hearing. The final statement of issues should reflect
these changes so as to accurately represent the discussion
that follows in the findings and conclusions or reasons.
If the issues are the foundation of the administrative
decision, findings of fact and conclusions of law/reasons
are the walls supporting the ceiling that is the conclusion
reached in the proceeding. However, as many opinions demonstrate,
the terms evidence, findings of fact, and conclusions of law
are easy to confuse.
Evidence is "any species of proof," and may
include testimony, records, documents, and exhibits. It is
presented before the ALJ and is made a part of the record
for purposes of reaching a decision. Evidence may be accepted
or excluded from the record, depending upon the rules of evidence
or other considerations. If a hearing was centered around
an automobile accident, evidence might include the testimony
from Ms. Doe, an automobile owner, that her car was hit by
another car. Her testimony to that effect would be offered
Findings of fact are based upon the
evidence; they are deduced or inferred from the evidence.
In the hypothetical noted above, the ALJ could reasonably
adopt a finding of fact that reads, "Ms. Doe's car was hit
by another car," based upon the driver's testimony as to being
hit by the other car.
The conclusions of law or reasons for the
decision are, in turn, based on the findings of fact and to
which relevant statutes, regulations and case law are applied.
In our hypothetical example, Ms. Doe testified that her car
was hit by another, and we defined that as evidence in the
record. The ALJ adopted a finding that stated that Ms. Doe's
car was hit by another. Assuming state law exempts a person
whose car is hit by another from liability (not at all the
case in real life), a proper conclusion of law might be that
Ms. Doe is not liable for any damages for being hit by the
car (because state law exempts her from liability).
One of the difficulties in writing findings
and conclusions is that the findings and conclusions method
lends itself to stilted prose, repetition, and disjointed
structure. This is even more the case where decisions must
have paragraph numbers and ALJs place one discrete finding
or conclusion in each paragraph. To overcome this utilitarian
limitation, two methods can be used.
The first involves including integrated elements,
whether findings or conclusions, in narrative, numbered paragraphs.
Making the numbered items paragraphs, instead of single sentences,
ties the relevant findings or conclusions together. Be mindful
of placing only related elements together, however, so that
the purpose of numbering is not undermined.
The second strategy is to use orientation
paragraphs. These paragraphs may not contain either findings
or conclusions, but are used to remind the reader of why it
is that the findings or conclusions that follow are important
The making of findings of fact is a critical
part of the administrative process as this may be the only
time at which fact finding is undertaken. The facts as found
in an administrative decision, absent an abuse of discretion
or other serious failing on the part of the ALJ, will likely
remain in place throughout the remainder of the proceeding
and any appeals therefrom.
Findings should only be made based on evidence
contained within the record. The ALJ's own knowledge –
whether it is of agency practice, a particular person or thing,
or any other item outside of the record – cannot be
included in the findings of fact.
The findings should explain why evidence has
or has not been accepted for the purpose for which it was
offered. The ALJ has a responsibility to set out in the findings
only those facts that are accepted as true and credible. This
requires that the ALJ pass on the credibility of witnesses
explicitly; if two witnesses contradicted each other, the
choice of one over the other must be explicit, with the reasons
that led to the finding set out expressly in the decision.
There is some disagreement as to whether findings
relating to credibility of witnesses or evidence belong with
the findings of fact or with the conclusions and decision.
Given that credibility determinations usually do not turn
on questions of law, but rather on the evidence as adduced
at the hearing, some argue they should be placed within the
findings of fact. Given also that findings of fact are generally
provided at least some deference on judicial review, placing
credibility determinations within this section may allow the
courts to note the factual nature of such determinations.
There are many, however, who steadfastly believe
that discussions of credibility are just that: discussions.
As such, they belong in the section that involves discussion
of issues and conclusions. Which method is adopted in any
situation should be based upon agency practice and the judgment
of the decision writer. In any case, should a particular credibility
determination revolve around an issue of law – such
as whether someone is an appropriate expert – the ALJ
may wish to resolve that issue in the conclusions of law or
reasons section of the decision.
The ALJ must also make findings as to the
remaining evidence. Only the final facts as found by the ALJ
should be included in the decision. If it is necessary to
discuss the evidence presented on particularly contentious
factual issues, make certain that the finding – which
should directly follow the discussion of the evidence as presented
by the parties – is clearly noted as such, so that there
is no confusion between the discussion and the finding itself.
Findings must also be factual, and not conclusory.
Conclusions may mask themselves as factual findings, so it
is important to pay close attention to the intricacies of
each. Statements such as "the applicant was not qualified"
or that a "violation occurred" are conclusory, while a statement
such as "the applicant held a high school degree" is factual.
Each belongs in the appropriate part of the decision.
The conclusions of law, or the reasons for
the decision, are a vital part of the building of the decision.
Often referred to as "the reasoning," which may be foreshadowed
by the findings of fact, it must be set out fully and explicitly
here. This section of the decision allows the reader to understand
why the ALJ has decided the way he or she has. The reasoning
bridges the gap between the findings of fact and the ultimate
The conclusions are based upon the findings
of fact, the controlling law, the exercise of discretion (where
allowed), and the ALJ's judgment. Where questions of credibility
or conflicting evidence remain unresolved following the findings
of fact, they should be resolved decisively in this section
of the decision.
Understanding the uses to which the reasoning
section of the decision are put is essential to being prepared
to draft the reasoning. The reasoning may be used by reviewing
authorities within the agency or by the courts. It will provide
the agency, the parties, and the public with guidance in future
proceedings and actions, and may even be used to create training
materials for new ALJs.
The reasoning should be based only on the
findings of fact set out in the opinion, which can only be
based on evidence in the record. Statements not relating directly
to the case – often referred to as dicta –
should be avoided, as they can mislead those reading
the decision into thinking that an issue has been decided
that was not present.
Words of finality and judgment should be used
in this section, and the reasoning should be decisive and
conclusive. Equivocating is not an appropriate method for
dealing with conclusions of law or reasons, and should be
avoided at all costs.
Each issue raised in the proceeding must be
addressed in the ALJ's reasoning. Failure to address all the
issues could lead to an appeal and either reversal or remand
to consider the issue. It is much easier for all involved
to address the relevant matters initially, rather than requiring
a return trip or appellate challenge to the decision.
If the decision involves the determination
of questions of law, the ALJ should make clear the legal grounds
for his or her decision, including stating explicitly the
statutes, regulations or precedent upon which the ALJ relied.
If authority argued by the parties is rejected by the ALJ,
an explicit statement as to why it is rejected – such
as that the current case is distinguishable from the cited
law or that the law has changed since the argued decision
was issued – should be included.
Remember, reviewing authorities and courts
will be looking to see why decisions were made as to facts
and law. While ALJs do not necessarily receive the same deference
in respect to their interpretation of the law as they do in
finding the facts, having a clear and concise exposition of
the law as it applies to the case at hand can only help on
review, and thus should be the goal of the ALJ in writing
his or her decision.
The final section of the decision should again
set out the conclusion announced at the beginning of the decision,
albeit in greater detail. Recommendations or statements of
actions to be taken should be included here, using where possible
the language of the statute. The conclusion must be explicit
and unequivocal. It must be expressed in definite and simple
terms, so that all parties will have a clear understanding
of the outcome of the hearing. It should be so decisive that
there is no need for further inquiry as to whether or not
a party won or lost the case. Each separate issue in the case
must be dealt with and disposed of in the conclusion.
Included with the decision, or attached to
it, should be a notice of the date on which the decision was
rendered and filed with the agency or department. The ALJ
should be fully aware of any agency regulations dictating
the form and substance of this notice.
The notice and its filing and delivery are
particularly important to the time for appeal or request for
further agency review. The notice may include a statement
as to what steps parties may take or what other results may
flow from the issuance of the decision. Particular statutory
provisions may also provide parties with particular remedies
or opportunities for review which may be included in the notice
as well, especially in proceedings where parties appear without
the benefit of attorney representation.
The notice must be sent or delivered to all
parties in the proceeding and their representatives or attorneys
Agencies may require – either by regulation
or by practice – that decisions issued by ALJs or hearing
officers be reviewed internally prior to release to or service
on the parties. Such review will likely take place within
the adjudication unit of the agency or department, and will
generally focus on grammar, structure and other form-related
elements of the decision. The agency itself has a stake in
ensuring decisions are well written, and providing for in-house
review prior to release is one way in which its interest may
Review of non-draft decisions might also involve
review for consistency with agency policy, agency and court
precedent, and state and federal law. In such a case, discussions
between a supervisor or other reviewing authority may take
place, hopefully ending with agreement between the supervisor
and the decision's author.
Not all hearing officers or ALJs are responsible
for actually issuing administrative decisions. The ALJ may
draft a recommended order or report, may only make findings
of fact, or may act in some other more limited fashion. Where
the ALJ is not the final issuer of the decision, review is
likely and appropriately much more substantive in relation
to the findings of fact, conclusions of law, and remedies
provided for in the decision. In such a case, the initial
decision can accurately be described as a draft opinion, subject
to review and adoption by the final authority.
Regardless of the best efforts of hearing
officers, ALJs, and administrative and agency staff, the heavy
workload under which many adjudicative units are pressed can
lead to clerical or typographical errors. The ALJ responsible
for a particular decision should be careful to follow applicable
agency procedures should the occasion for revision arise.
This category of revision for an administrative
reason such as a typographical error must be distinguished
from revision for a substantive reason or revision based on
a reopening of the proof in the case. Administrative revision
is not the appropriate time to incorporate new findings of
fact or conclusions of law.
Revised decisions should be filed and served
according to agency procedures and in the same manner as the
original decision, including service on all parties and their
Whenever possible, uniformity and consistency
to administrative decisions within an agency is desirable.
Where facts and circumstances are similar, similar results
should – and most likely are – to be expected.
Where an ALJ departs from agency precedent on a particular
matter, such departure should be well reasoned and the reasons
for the departure explicitly set forth. Absent facts or circumstances
supporting the departure, reversal on administrative or judicial
review may be required.
There are certain circumstances that may require
that a case be reopened following the issuance of a decision.
As with many other aspects of the administrative
process, there should be agency regulations, policies or guidelines
relating to such issues. In the absence of agency requirements,
the ALJ may be required to determine whether and under what
circumstances cases should be reopened.
If a party has failed to attend a hearing
for good cause, it may be appropriate to reopen the case.
Good cause may include failure to receive the notice due to
a change of address, illness, absence from the jurisdiction,
inability to be released from employment responsibilities,
and serious family or domestic problems.
Absent specific relevant guiding authority,
such as agency rule or regulation, liberal discretion is provided
to the ALJ on such matters. Determining whether to reopen
the case and provide the defaulting party with his or her
"day in court" should be grounded in precepts of fairness,
justice, and common sense. Attempts to remedy repeated defaults
may indicate that the party does not take the proceeding or
the rules governing it seriously, while a first-time attempt
to reopen may be seen as the result of a simple and forgiveable
error on the part of the party.
Reopening defaults burdens the administrative
process by rescheduling and reactivating previously decided
matters and, absent controlling authority to the contrary,
a hearing officer or administrative law judge should exercise
his or her considered discretion in addressing applications
to reopen on default.
A much more difficult question arises when
a party seeks to reopen a case on the merits. If not specifically
prohibited by statute, rule or regulation, there should be
a procedure for allowing parties to seek to reopen and reconsider
cases even after they have been decided on the merits.
Some statutes, rules and regulations specifically
allow such applications to be made by any party in interest,
including the agency. The power to grant a reopening may be
vested in the ALJ, or may be reserved to another part of the
agency (such as the appellate tribunal within an agency).
Where not covered by specific statute, rule
or regulation, the application to reopen a case on the merits
may be made at any time, even after time to appeal has expired.
This does not mean that timing is irrelevant to a decision
to allow a case to be reopened, or that the application will
necessarily be granted. It means only that there is no hard
and fast time limitation on making an application.
An application to reopen is generally granted
only when the moving party shows serious error, omission,
misconstruction of applicable law, or the discovery of new
evidence. If the application is granted, the case should be
heard again on the merits and a new decision rendered following
Applications to reopen should not be granted
lightly. A party seeking to reopen a proceeding should generally
show: valid and substantial reasons for making the application;
merit to the contentions asserted as justifying the reopening;
no unreasonable delay between discovery of the grounds for
the application and the making of the application; and, that
the application is not an attempt to unduly delay implementation
of the previously issued decision.
Failure to persuade on any one of these items
should leave the decision-maker with real questions as to
the validity of the application. A decision to grant such
an application must balance the objective of avoiding unnecessary
appeals against the need for finality in administrative proceedings
once a decision is issued.