Hearing Officers Research Articles

Fundamental procedural rights and ECB banking supervision: An ECB Hearing Officer?P. Chirulli

This article explores the possibility of establishing a position at the European Central Bank (ECB) along the lines of the Hearing Officer (HO) provided for in European competition law; a position whose task would be to safeguard the effective exercise of procedural rights throughout the supervisory proceedings carried out by the ECB. To this end, after identifying the reasons that might justify such a regulatory intervention, the article outlines the legislation on the HO laid down in European competition law. It then illustrates some functions that could be entrusted to the HO of the ECB and the regulatory instruments that could concretely be used to establish the HO position. In the conclusions, the article suggests that the introduction of this position within the framework of the ECB should be undertaken gradually.

Quality control in the DMA procedure: the exclusion of the Hearing Officer

ABSTRACT The DMA aims to ensure fairness and contestability in digital markets by imposing ex-ante obligations to designated gatekeepers. Enforcement of the regime was entrusted to the Commission and the procedure mirrors the antitrust regime. However, the designers of the Regulation opted to exclude a role for the Hearing Officer from market investigation proceedings. The Hearing Officer is an independent Commission Official whose main role is to safeguard the undertakings' procedural rights and rights of defence, decide on procedural disputes, and organize oral hearings. Despite some criticisms to the limited extent of their powers, the Hearing Officer fulfils an important role in competition proceedings. Exclusion of their competence from the DMA procedure may result in an increase to the Commission's decisional powers, reduce public trust, lower the quality of the procedure, and deprive it of the valuable oral hearing option.

Influence of COVID-19 in Pennsylvania Rural Schools' Due Process Hearing Decisions

During the COVID-19 Pandemic, rural Pennsylvania Local Education Agencies (LEAs) were found to have failed to properly offer special education services in alignment with the Individuals with Disabilities Education Act (IDEA). The Commonwealth of Pennsylvania ranks among the most litigated states in disputes over the proper facilitation of services as mandated by IDEA. Despite this high volume of litigation, there was no analysis of how being defined as a rural LEA influenced due process hearing officer decisions after the COVID-19 Pandemic. The current study addresses this research gap by reviewing special education due process hearing activity for rural LEAs and comparing activity for the two years before and after the COVID-19 pandemic-mandated office closures. Findings offer guidance on problematic practices by analyzing the relationship between the pandemic and hearing officer ruling outcome, activity frequency before and after the pandemic, and remedies owed by rural LEAs from post-COVID decisions.

Court-level stakeholders’ reunification decisions and perceived role in parents’ readiness to support early emotional development post-abuse and/or neglect

ABSTRACT Caregiver – child dyads exist within systems that may reinforce and/or establish structures to support holistic needs, awareness of roles, and capacity-building efforts. Systems can be challenged in fortifying such structures, however, following substantiated abuse and/or neglect. In the current study, the author surveyed 27 family court judges and judicial hearing officers collectively presiding over ~2800 birth-5 cases (~39% response) in one Mid-Atlantic state in the United States. Despite court-level stakeholders’ pivotal role in reunification, it is unclear how they perceive current processes, existing barriers, and proposed initiatives targeting emotional development post-abuse and/or neglect. Findings and implications are discussed.

The Value of Reentry Housing, Zoning, and “Not in My Back Yard” (NIMBY) Obstacles, and How to Overcome Them

Given the housing issues that people who have been in prison face, this article examines the permitting process to operate a vocational and life skills training program for the formerly incarcerated in Salt Lake City, UT, called The Other Side Academy (TOSA). This article employs participant observation, personal and public meeting conversations, planning division staff reports, public comments, and newspaper articles to answer the following question: How was TOSA described in the public input process for a conditional use permit? The author examines how TOSA neighbors first opposed the project and then came to support it. But even with community support, planning staff struggled to find a zoning code that would allow TOSA operations. In the end, the final decision to approve the conditional use permit came to the hearing officer, who sided in favor of TOSA. In this case, planners can learn about the zoning obstacles that reentry housing faces and how those obstacles can be overcome. Finally, academia and planning divisions need to better educate planners involved in administrative process into understanding the intent of the code to achieve just outcomes.

Hearing Officers in competition proceedings conducted by the European Commission for the implementation of Article 101 and 102 TFEU

The article analyzes the role played by the Hearing Officer in competition proceedings conducted by the European Commission to implement Article 101 and 102 TFEU. Currently, the Hearing Officer is a guarantor of the effective exercise of procedural rights in the course of all competition proceedings before the EC, while contributing to the objectivity, transparency and efficiency of the proceedings. The article also discusses the proposals to change the scope of the powers of the Hearing Officer, as reported in doctrine and literature, and refers to the possibility and legitimacy of introducing such institution into Polish competition law.

적법절차원칙 구현을 위한 청문제도 운영 방안

Under the Administrative Procedure Act(APA), as a due process for intrusive administrative measures, we require the interested parties to be given prior notice of the disposition and an opportunity to submit their opinions, and to hold hearings in exceptional cases where other statutes stipulate that hearings be held. An administrative hearing is understood as a trial-type fact-finding process. However, more often in Korea, it is operated as mere an oral-opinion-submission procedure rather than a trial-type fact-finding procedure. As a result, administrative agencies do not show much interest in guaranteeing the independence of the hearing examiners in the operation of the administrative hearing. Recently in the increasing number of cases a hearing examiner is selected from among experts such as lawyers or professors. However, Korea’s APA still permits the selection of hearing examiners among general administrative officials or former public officials. Even if the civil servants selected as the presiding officer of the hearing belong to a different department from the adjudicating department, it is difficult to expect independence from the adjudicating department due to frequent rotation within the office. In addition, even in the case of selecting a hearing examiner from among external lawyers, the adjudicating department often intervenes in the selection process, and there is a risk of conflict of interest, making it difficult to expect independence. The most important thing in the administrative hearing is to have an independent hearing examiner listen to statements from both the agency staff and the interested party, collect evidence, check the facts, judge the applicability of the relevant laws, and present an opinion on whether to issue orders. To secure the independence of the hearing examiner, it is necessary to hire a full-time hearing officer selected from among those with certain legal experience. The hearing officer needs to be exclusively responsible for presiding over the hearing and protected from interference from the head of the disposition department or administrative agency. The recent revision of the Administrative Procedure Act not only expanded the subject of the administrative hearing but also introduced the hearing committee system. As a result, the burden of time and cost to pay for the administrative disposition procedure became much greater. However, the reality of administrative hearing in Korea is insufficient to guarantee the Principle of due process of law.

Boost effectiveness, compliance of Title IX team training

As legal requirements shift and change, it becomes more challenging to provide effective annual training for your institution's Title IX coordinators, investigators, and hearing officers. The training must equip your team to fairly and properly handle Title IX investigations and hearings while complying with your institution's procedures and federal requirements. Meanwhile, most institutions need to conserve financial resources while also managing the logistical challenges resulting from the pandemic. Institutions that fail to provide sufficient Title IX training can expect to face a significant risk of legal ramifications.

Alabama

This case reviewed and conclusively determined the proper venue in which to file appeals from decisions by the Alabama Surface Mining Commission (the “Commission”). The Commission issued a surface-coal-mining permit to Black Warrior Minerals, Inc. (“Black Warrior”), allowing Black Warrior to mine land in northern Jefferson County, Alabama. In response, three. individuals who owned property nearby appealed the permit’s issuance with the Commission’s Department of Hearings and Appeals, and a hearing officer affirmed the issuance. The property owners then petitioned the Commission for review of the officer’s decision, but their petition was never taken up and thus was denied by operation of law.

Juvenile Competency to Stand Trial: A Systemic Look Under the Hood: Reasonable Accommodations

AbstractJuvenile competency to stand trial has historically involved the intrinsic abilities of a juvenile to understand and appreciate the nature of the proceeding against the juvenile and the juvenile’s ability to assist in his/her defense and communicate effectively with defense counsel. The literature has not addressed the recursive systemic competency process between the juvenile, defense counsel, and hearing officer. This article discusses the communication skills of defense counsel and hearing officers as part of the systemic equation in a juvenile’s competency to stand trial. A case example is used to demonstrate the importance of reasonable accommodations as part of the systemic, recursive interactions between a juvenile and court personnel. The authors conclude with recommendations for training in the areas of linguistics and the psychosocial development of juveniles in the socio‐cultural context in which they live.

Overview of United Kingdom Trade Mark and Designs Cases 2019

This report highlights key UK trade mark and design decisions from the past year that may be of particular interest to comparative lawyers. Virgin Enterprises Ltd v. Virginic LLC was a useful reminder regarding distinctive character, the assessment of similarity and how all of this impacts the assessment on likelihood of confusion. Gap (ITM) Inc v. Gap 360 Ltd points out that specifications must be compliant with requirements as set out in the case law, and in particular, IP Translator and Postkantoor, or they will be considered ineffective, especially when trying to avoid a potential dispute. Nomination v. Brealey (t/a JSC Jewellery) shows that the right to resell branded goods is not unqualified and gives us another example of what may be considered a legitimate reason to oppose resale. Bentley 1962 Ltd v. Bentley Motors Ltd serves as a warning to brand owners looking to extend their brand into a new marketplace, noting the limitations that apply to even brands with a reputation when moving across into new sectors. Beauty Bay Ltd v. Benefit Cosmetics Ltd highlights the importance of context in the assessment of confusion in a trade mark infringement claim and demonstrates a situation where marks could be found to be similar but likelihood of confusion is still not found. Claridge’s Hotel Ltd v. Claridge Candles Ltd was not a surprising decision but reminds brand owners to put their best mark forward in enforcement proceedings while Glaxo Wellcome UK Ltd v. Sandoz Ltd & Ors illustrates the difficulties of relying on colour marks to denote trade origin. Another year meant another case involving Michael Gleissnar in Trump International Ltd v. DTTM Operations LLC and unsurprisingly, the Hearing Officer found bad faith in this case. APT Training & Consultancy Ltd v. Birmingham & Solihull Mental Health NHS Trust gave us further insight into what constitutes use of a mark in the course of trade and Aiwa Co. Ltd v. Aiwa Corporation is worth a read for brand owners who are thinking of re-launching a historic brand.

Hate the Players, or the Game? The Role of Court Mediators and Hearing Officers in the Civil Protection Order Process.

Civil Protection Orders (CPOs) are among the most common legal tools that victims of intimate partner violence and abuse (IPV/A) use to protect themselves. The current study adds to the CPO research by using quantitative data to look at how female survivors' experiences with court personnel (attorneys, mediators, and hearing officers) shape their satisfaction with the court process, and what types of individual and court-related factors are related to perceived fairness of court personnel. The current study uses in-depth quantitative data collected from women over the age of 18 who sought a CPO due to violence from a male current or former partner. The findings indicate that women's satisfaction with the court process is significantly impacted by the perceived fairness of court personnel. In turn, specific behaviors by court personnel predict women's ratings of fairness of those personnel. Additionally, women's socioeconomic status impacts how fair they perceive the hearing officers to be. Court personnel play an integral role in helping victims navigate the legal system in ways that could protect their safety and influence how they perceive the CPO system as it relates to the abuse they have experienced.

State Due Process Hearing Systems Under the IDEA: An Update

As part of its structure of cooperative federalism, the Individuals With Disabilities Education Act delegates to the states implementation, within broad specifications, of administrative adjudication systems. In light of the centrality of these systems of dispute resolution and the limited research to date, policy makers and practitioners need more current information about the variations in the state hearing and review officer systems nationwide. Based on a survey of state special education directors, this article provides an updated snapshot of due process systems in the 50 states and the District of Columbia. Key findings include the following: (a) the increased predominance of one-tier, rather than two-tier, systems, (b) a similar continuation of the gradual shift toward full-time hearing officers who are attorneys, (c) a corresponding cumulative trend toward administrative law judge agencies, and (d) common problems concerning the length of hearings, the recruitment and selection of hearing officers, and their professional development, with the attendant responses in progress focused on additional training and revised procedures. Overall, in addition to the limitations of a relatively short and structured survey, the key contextual considerations included (a) the predominance of six states that account for the vast majority of the adjudicated hearings, (b) the wide variety among the remaining states, and (c) the interplay with the other indicators of dispute resolution activity, including filings, resolution sessions, and mediation.

Interim Judicial Protection Against Publication of Confidential Information in Commission Antitrust Decisions

The publication, in the name of transparency, of Commission decisions finding infringements of EU competition law is a powerful tool for enhancing the private enforcement of Articles 101 and 102 of the Treaty on the Functioning of the European Union (‘TFEU’). Before publishing those decisions, the Commission must nonetheless be careful to afford ‘very special protection’ to the legitimate interest of the undertakings concerned in the protection of their business secrets and other confidential information. When preparing the non-confidential version of the decision to be published, the Commission involves those undertakings, which have the right to object and, where they consider it appropriate, to refer the matter to the Hearing Officer, whose decisions may in turn be challenged before the EU Courts. In such cases, interim relief is essential to safeguard the undertakings’ right to the protection of confidential information, as well as their right to effective judicial protection. The recent case law of both EU Courts on interim protection in this context is marked by a high degree of technicality and struggles to adapt the ordinary interpretation of the conditions required for the granting of interim measures to the specificities of this kind of case. This article examines several rather complex interlocutory orders in an attempt to extract the logic behind them.

The New World of Agency Adjudication

In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.

The New World of Agency Adjudication

In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.

A larger role for the hearing officer: a modest proposal

This article proposes changes to the role of the EU hearing officer and looks, as a starting point, to the US administrative model, in particular the role of the Administrative Law Judge. It is argued that the US model makes better use of its hearing examiners to understand and probe contested points of fact or law. The article sets out a proposal for strengthening the function and responsibilities of the EU hearing officer to also include a review of substantive points of the case. The hearing officer’s substantive findings, in addition to reporting on procedure, would be included in a final public report. These relatively modest changes would provide comfort to the parties that some independent scrutiny of disputed facts had taken place whilst the Commission would retain full discretion as to the ultimate decision. However, importantly, the Commission’s decision-making would be aided by a more robust oral hearing. No fundamental changes to the EU’s administrative model would be required for the implementation of this proposal. For practical reasons it is suggested to trial this proposal first in the Commission’s Article 101 and 102 TFEU investigations.

Judicial Appeal of Due Process Hearing Rulings: The Extent and Direction of Decisional Change

Extending the scope of two exploratory single-state studies, this empirical analysis determined the extent and direction of the outcome change from the impartial hearing officer (IHO) decision to the final court decision for a national sample of cases under the Individuals With Disabilities Education Act. Based on a random sample of 116 published court decisions from 1998 through 2016, the authors identified the rulings for “issue categories,” such as eligibility, free appropriate public education, and tuition reimbursement, in the final court decision and, via its published opinion, the preceding adjudicative levels down to the IHO. The primary finding for the 183 issue category rulings was that 70% had only slight or no change from the IHO to the final court level. Other findings included the following: (a) the net change was higher for states with a second administrative tier, which is a review officer, than for those with only the single tier of an IHO; (b) the net change was also higher for cases reaching the appellate rather than only the trial court level; and (c) the most frequent issue categories were free appropriate public education (55%) and tuition reimbursement (18%), both with a slight net outcome change in the district’s direction.

Evonik Degussa v Commission: Hearing Officer’s Review of Confidentiality Claims on Leniency Information in Public Versions of European Commission Cartel Decision

When deciding on the disclosure or publication of leniency information in public versions of Commission decisions, the hearing officer is obliged to examine any ground based on rules of EU law raised by the company concerned in order to justify the confidentiality of the contested information. Public versions of Commission decisions may not contain quotes from corporate statements of leniency applicants; however, they may contain quotes from other documents submitted in support of a leniency application subject to compliance with professional secrecy and the protection owed to business secrets and other confidential information.

RTI and Other Approaches to SLD Identification Under the IDEA: A Legal Update

This article provides a concise and objective synthesis of the federal legislation, regulations, and agency policy interpretations; state laws; and case law, including hearing officer and complaint investigation decisions, concerning specific learning disability (SLD) identification since the 2006 IDEA regulations. The results reveal wide latitude for school districts concerning the three approaches—severe discrepancy (SD), response to intervention (RTI), and, as the third, research-based alternative, pattern of strengths and weaknesses (PSW). Moreover, these primary sources of law, with agency policy interpretations being at the margin, provide an ascending absence of detailed directives in this same sequence—SD, RTI, and PSW. In particular, the case law for SLD eligibility is relatively frequent for SD, notably limited for RTI, and nonexistent for PSW.