*This is the seventh and final post in a series on Alex’s new Article, Is Administrative Summary Judgment Unlawful? For earlier posts in the series, click here.

I am deeply grateful to Professors Barnett, Asimow, Virelli, and Tierney for their thoughtful and generous engagement with this paper. It’s an honor to be in a discussion with each of them. Their contributions here will surely be an important resource on this issue.

Their comments have given me a great deal to think about. In what follows, I only provide a brief response to a small number of their many excellent points.

Common Ground

All four commentators are at least open to the proposition that the traditional efficiency-based justification for administrative summary judgment may not fully justify contemporary agency practice. Barnett acknowledges “plausible and significant reasons” policy concerns regarding administrative summary judgment, including “lack of trust in agencies, lack of mandated discovery (unlike in judicial proceedings), concern as to agency overenforcement, and the utility of oral hearings in assessing penalties (even if not guilt) in sanctions proceedings.” Asimow states that “it can be argued that SJ is inappropriate” in some of the cases where the SEC has been using the procedure. Virelli suggests the “most compelling” argument in the paper is that “summary judgment has been used to negative effect in sanctions cases, for instance in connection with the SEC’s ‘broken windows’ enforcement policy.” And Tierney “wholeheartedly agree[s]” with the concern that ASJ “may let the SEC shift enforcement priorities toward cases that are ‘more amenable to a cheap and easy resolution without the expense of a full hearing or trial.’”

But, as Professor Asimow rightly points out, any APA-based challenge to ASJ would potentially sweep across a vast amount of administrative practice. Whether or not we should embrace such a move depends on the breadth of these problems with ASJ. Unfortunately, we simply do not know. My paper focuses on a single agency – the SEC – where ASJ has been put to some questionable uses. The last top-to-bottom study of ASJ across the bureaucracy was completed 50 years ago. It is surely time to revisit the issue.

Sentence Two

Commentators raised several important and difficult challenges to the interpretive argument in the paper.

Professor Tierney focuses on Sentence Two of § 556(d), which authorizes the exclusion of “immaterial” evidence, and extends it to its logical end point: if all of the proffered evidence is immaterial, then no evidence needs to be presented, and no oral hearing needs to be conducted. In this way, an evidentiary provision may become an authorization for summary judgment.

I respectfully disagree. This reading can’t be reconciled with Sentence Six. An ALJ in a sanctions case that grants an agency’s motion in limine to exclude 100% of a party’s evidence as “immaterial” has done exactly what Sentence Six flatly prohibits: denied the party an opportunity to present her evidence.

Tierney notes that Siegel v. Atomic Energy Comm’n, 400 F.2d 778 (D.C. Cir. 1968) endorsed this interpretation of Sentence Two. Although Siegel concerned an application for initial licenses, Tierney says this had “no bearing” on its holding. Again, I respectfully disagree. Since the court was dealing with a licensing case, not a sanctions case, the court had no occasion to analyze the operation of Sentence Six or attempt to reconcile the two sentences.

Tierney is right that there is no necessary logical distinction between evidentiary and summary judgment rules.  And yet, courts have consistently refused to allow parties to use motions in limine to exclude 100%of a party’s evidence and thereby end a trial before it begins. Excluding a given piece of immaterial evidence takes on a fundamentally different character depending on whether it is 1 of 50 pieces to be presented at a hearing, 1 of 5 pieces, or 1 of 1. Although perhaps logical equivalents, practically speaking they are worlds apart and have always been treated that way.

I think my interpretation of § 556(d) reconciles the two sentences by giving effect to this well-established principle. Like any rule of evidence, Sentence Two authorizes ALJs to limit what evidence is presented, but does not authorize ALJs to terminate the in-person proceedings altogether. Sentence Six, by contrast, does authorize ALJs to do this, but not in cases involving “sanctions.”

Another D.C. Circuit Case

Tierney points out that, in Persian Gulf Freight Conf. v. Fed. Maritime Comm’n, 375 F.2d 335 (D.C. Cir. 1967), the D.C. Circuit upheld administrative summary judgment in a “sanctions” case long before Kornman v. SEC, 592 F.3d 173 (D.C. Cir. 2010) did the same thing.

Again, I’m not sure why Persian Gulf moves the needle. Just like Kornman and the other courts that have reached the same conclusion, Persian Gulf never even mentions the operative provision (i.e., Sentence Six). And Persian Gulf relies heavily from Producers Livestock Mktg. Ass’n v. United States, 241 F.2d 192 (10th Cir. 1957), which seems to be a rulemaking case, and therefore inapposite for purposes of interpreting Sentence Six.

FRCP vs. State Procedure

Professor Virelli argues that the 1938 FRCP (which had a trans-substantive SJ) is likely to be a more relevant procedural touchstone than contemporaneous state procedure (which did not).

I think that contemporaneous state practice is useful to combat hindsight bias. From where we sit today, it is tempting to look back the rise of trans-substantive summary judgment as a kind of inevitable rationalization of procedure. But I doubt that it felt so inevitable at the time. States retained non-trans-substantive summary judgment rules for decades after the Federal Rules of Civil Procedure. Charles Clark, a leading trans-substantive evangelist, wrote law review articles well into the 1950s sharply criticizing the states that continued to cling to the older model. The point is that, unlike today, whether summary judgment should be applicable to all types of cases was still an open question – and it’s reasonable to think that the legislators who enacted § 556(d) regarded it as such.

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Thanks again to all four commentators for their challenging and interesting posts, and to Chris Walker, Elsa Dodds, and the Notice & Comment Blog for hosting.

Alexander I. Platt is Associate Professor of Law at the University of Kansas School of Law.