5 U.S.C. § 557 — Initial decisions; conclusiveness; review by

Page 151 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 557 cluded in functions of officers, agencies, and employees of that Department transferred to Secretary of Com- merce by 1950 Reorg. Plan No. 5, § 1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title. HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF THE INTERIOR Functions vested by this subchapter in hearing exam- iners employed by Department of the Interior not in- cluded in functions of officers, agencies, and employees of that Department transferred to Secretary of the In- terior by 1950 Reorg. Plan No. 3, § 1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1262, set out in the Appendix to this title. HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF JUSTICE Functions vested by this subchapter in hearing exam- iners employed by Department of Justice not included in functions of officers, agencies, and employees of that Department transferred to Attorney General by 1950 Reorg. Plan No. 2, § 1, eff. May 24, 1950, 15 F.R. 3173, 64 Stat. 1261, set out in the Appendix to this title. HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF LABOR Functions vested by this subchapter in hearing exam- iners employed by Department of Labor not included in functions of officers, agencies, and employees of that Department transferred to Secretary of Labor by 1950 Reorg. Plan No. 6, § 1, eff. May 24, 1950, 15 F.R. 3174, 64 Stat. 1263, set out in the Appendix to this title. HEARING EXAMINERS EMPLOYED BY DEPARTMENT OF THE TREASURY Functions vested by this subchapter in hearing exam- iners employed by Department of the Treasury not in- cluded in functions of officers, agencies, and employees of that Department transferred to Secretary of the Treasury by 1950 Reorg. Plan. No. 26, § 1, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, set out in the Appendix to this title. § 557. Initial decisions; conclusiveness; review by agency; submissions by parties; contents of decisions; record (a) This section applies, according to the pro- visions thereof, when a hearing is required to be conducted in accordance with section 556 of this title. (b) When the agency did not preside at the re- ception of the evidence, the presiding employee or, in cases not subject to section 554(d) of this title, an employee qualified to preside at hear- ings pursuant to section 556 of this title, shall initially decide the case unless the agency re- quires, either in specific cases or by general rule, the entire record to be certified to it for decision. When the presiding employee makes an initial decision, that decision then becomes the decision of the agency without further pro- ceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule. 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. When the agency makes the decision without having presided at the reception of the evidence, the presiding employee or an employee qualified to preside at hearings pursuant to section 556 of this title shall first recommend a decision, ex- cept that in rule making or determining applica- tions for initial licenses— (1) instead thereof the agency may issue a tentative decision or one of its responsible em- ployees may recommend a decision; or (2) this procedure may be omitted in a case in which the agency finds on the record that due and timely execution of its functions im- peratively and unavoidably so requires. (c) Before a recommended, initial, or tentative decision, or a decision on agency review of the decision of subordinate employees, the parties are entitled to a reasonable opportunity to sub- mit for the consideration of the employees par- ticipating in the decisions— (1) proposed findings and conclusions; or (2) exceptions to the decisions or rec- ommended decisions of subordinate employees or to tentative agency decisions; and (3) supporting reasons for the exceptions or proposed findings or conclusions. The record shall show the ruling on each find- ing, conclusion, or exception presented. All deci- sions, including initial, recommended, and ten- tative decisions, are a part of the record and shall include a statement of— (A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and (B) the appropriate rule, order, sanction, re- lief, or denial thereof. (d)(1) In any agency proceeding which is sub- ject to subsection (a) of this section, except to the extent required for the disposition of ex parte matters as authorized by law— (A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agen- cy, administrative law judge, or other em- ployee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication rel- evant to the merits of the proceeding; (B) no member of the body comprising the agency, administrative law judge, or other em- ployee who is or may reasonably be expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding; (C) a member of the body comprising the agency, administrative law judge, or other em- ployee who is or may reasonably be expected to be involved in the decisional process of such proceeding who receives, or who makes or knowingly causes to be made, a communica- tion prohibited by this subsection shall place on the public record of the proceeding: (i) all such written communications; (ii) memoranda stating the substance of all such oral communications; and (iii) all written responses, and memoranda stating the substance of all oral responses, to the materials described in clauses (i) and (ii) of this subparagraph; (D) upon receipt of a communication know- ingly made or knowingly caused to be made by a party in violation of this subsection, the agency, administrative law judge, or other em- Page 152 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 558 ployee presiding at the hearing may, to the ex- tent consistent with the interests of justice and the policy of the underlying statutes, re- quire the party to show cause why his claim or interest in the proceeding should not be dis- missed, denied, disregarded, or otherwise ad- versely affected on account of such violation; and (E) the prohibitions of this subsection shall apply beginning at such time as the agency may designate, but in no case shall they begin to apply later than the time at which a pro- ceeding is noticed for hearing unless the per- son responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply beginning at the time of his acquisition of such knowledge. (2) This subsection does not constitute author- ity to withhold information from Congress. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 387; Pub. L. 94–409, § 4(a), Sept. 13, 1976, 90 Stat. 1246.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 1007. June 11, 1946, ch. 324, § 8, 60 Stat. 242. In subsection (b), the word ‘‘employee’’ is substituted for ‘‘officer’’ and ‘‘officers’’ in view of the definition of ‘‘employee’’ in section 2105. The word ‘‘either’’ is added after the word ‘‘requires’’ in the first sentence to elimi- nate the need for parentheses. The words ‘‘the presiding employee or an employee qualified to preside at hear- ings under section 556 of this title’’ are substituted for ‘‘such officers’’ in the last sentence. The word ‘‘initial’’ is omitted before ‘‘decision’’, the final word in the first sentence and the sixth word of the fourth sentence, to avoid confusion between the ‘‘initial decision’’ of the presiding employee and the ‘‘initial decision’’ of the agency. In subsection (c), the word ‘‘employees’’ is sub- stituted for ‘‘officers’’ in view of the definition of ‘‘em- ployee’’ in section 2105. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes CODIFICATION Section 557 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2207 of Title 7, Agriculture. Section 557a of former Title 5, Executive Depart- ments and Government Officers and Employees, was transferred to section 2208 of Title 7. AMENDMENTS 1976—Subsec. (d). Pub. L. 94–409 added subsec. (d). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1976 AMENDMENT Amendment by Pub. L. 94–409 effective 180 days after Sept. 13, 1976, see section 6 of Pub. L. 94–409, set out as an Effective Date note under section 552b of this title. § 558. Imposition of sanctions; determination of applications for licenses; suspension, revoca- tion, and expiration of licenses (a) This section applies, according to the pro- visions thereof, to the exercise of a power or au- thority. (b) A sanction may not be imposed or a sub- stantive rule or order issued except within juris- diction delegated to the agency and as author- ized by law. (c) When application is made for a license re- quired by law, the agency, with due regard for the rights and privileges of all the interested parties or adversely affected persons and within a reasonable time, shall set and complete pro- ceedings required to be conducted in accordance with sections 556 and 557 of this title or other proceedings required by law and shall make its decision. Except in cases of willfulness or those in which public health, interest, or safety re- quires otherwise, the withdrawal, suspension, revocation, or annulment of a license is lawful only if, before the institution of agency pro- ceedings therefor, the licensee has been given— (1) notice by the agency in writing of the facts or conduct which may warrant the ac- tion; and (2) opportunity to demonstrate or achieve compliance with all lawful requirements. When the licensee has made timely and suffi- cient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been fi- nally determined by the agency. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 388.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 1008. June 11, 1946, ch. 324, § 9, 60 Stat. 242. In subsection (b), the prohibition is restated in posi- tive form. In subsection (c), the words ‘‘within a reasonable time’’ are substituted for ‘‘with reasonable dispatch’’. The last two sentences are restated for conciseness and clarity and to restate the prohibition in positive form. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. Editorial Notes CODIFICATION Section 558 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2209 of Title 7, Agriculture. § 559. Effect on other laws; effect of subsequent statute This subchapter, chapter 7, and sections 1305, 3105, 3344, 4301(2)(E), 5372, and 7521 of this title, and the provisions of section 5335(a)(B) of this title that relate to administrative law judges, do not limit or repeal additional requirements im- posed by statute or otherwise recognized by law. Except as otherwise required by law, require- ments or privileges relating to evidence or pro- cedure apply equally to agencies and persons. Each agency is granted the authority necessary to comply with the requirements of this sub- chapter through the issuance of rules or other- wise. Subsequent statute may not be held to su- persede or modify this subchapter, chapter 7, sections 1305, 3105, 3344, 4301(2)(E), 5372, or 7521 of