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Chapter 6: The Decision

Generally

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.

Substantial Evidence

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 evidence.

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 level.

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 public–scrutiny.

Content of the Decision

Overview

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.

Decisional Requirements

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.

Preparing to Write the Decision

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 decision.

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.

Writing Well and Good Writing

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, do so.

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 decision.

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 decision.

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 you.

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.].

Elements of the Decision

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 parts.

Introductory Procedural Statement

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.

Introductory Substantive Statement

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 been resolved.

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.

Statement of Issues

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.

Findings of Fact and Conclusions of Law/Reasons: An Introduction

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 as evidence.

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 or relevant.

Findings of Fact

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.

Conclusions of Law or Reasons for 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 conclusion.

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.

Conclusion(s)

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.

Notice of Decision

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 of record.

Pre-release Review of Decisions

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 be protected.

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.

Revised Decisions

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 representatives.

Uniformity

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.

Reopening of Cases

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.

Reopening on Default

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.

Reopening on the Merits of the Case

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 the hearing.

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.

 
 
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