*This is the fifth post in a series on Alexander Platt’s paper, Is Summary Judgment Unlawful? For earlier posts in the series, click here.

I am grateful to the Notice and Comment Blog for including me in this discussion of Alex Platt’s engaging and thought-provoking new article, Is Administrative Summary Judgment Unlawful? Although I agree with some of the article’s concerns about summary disposition of administrative enforcement actions, I believe the ultimate answer to the article’s title question is “no.”

The article does an admirable job of parsing the text of the APA in support of its conclusion that § 556(d) of the Act “guarantees an absolute right to an oral hearing and so prohibits enforcement agencies from using administrative summary judgment to skip over those hearings.” I am for present purposes agnostic as to the first part of that statement—that the text may favor an oral hearing in adjudications other than those dealing with “rule making or determining claims for money or benefits or applications for initial licenses.” I do not think, however, that the text justifies the second part, namely that this statutory preference for oral hearings necessarily precludes summary judgment.

The first reason is definitional. Summary judgment is not the opposite of an oral hearing. The summary judgment standard cited in the article is virtually identical to that in civil litigation: disposition on the merits is justified when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Although summary judgment can lead to truncated adjudication (at least when granted), it can also involve an oral hearing. Whether parties are entitled to present evidence orally in formal adjudications under the APA has little or nothing to do with whether adjudicators should be empowered to resolve cases on summary judgment.

This distinction is also consistent with the article’s historic account of § 556(d). The article cites to the APA’s legislative history for the proposition that formal adjudication was not meant, at least in most circumstances, to be based exclusively on written evidence. The article does not, however, make an explicit connection between hearings based solely on written evidence and summary judgment. In fact, the contemporaneous history of summary judgment in civil litigation tells a different story. The article cites subject-matter-specific state summary judgment standards from the 1940s as evidence that the APA’s drafters “would have been intimately familiar” with the concept of an absolute right to an oral hearing in certain categories of cases, such as those involving sanctions. The problem with this historical point is that it relies on state summary judgment practices rather than the more direct analog, the Federal Rules of Civil Procedure. As the article acknowledges, for eight years prior to the APA’s enactment (and ever since), summary judgment was available in every case in federal court. The fact that the federal system treated summary judgment as applicable to all cases—including those involving sanctions—suggests that an absolute right to a full hearing on the merits was not the norm under federal law when § 556(d) was drafted, and thus that the relevant historical distinction was between oral and paper hearings, not oral hearings and summary judgment.

It is also important to note that this distinction is not merely semantic. Even if the APA did require oral hearings of summary judgment motions—an outcome that would be completely consistent with the article’s reading of § 556(d)—that would not be the same as requiring oral hearings on the merits in every formal adjudication involving sanctions. Assume a case where the party moving for summary judgment has the overwhelming weight of the factual evidence on their side. Allowing the parties to present oral evidence of a meaningful factual dispute could prevent wasting valuable time and resources on a full-throated presentation of a hopelessly lopsided case. In cases where the weight of evidence is more evenly balanced, oral presentation of a summary judgment motion may offer the parties greater opportunity to convince the adjudicator that a genuine factual dispute exists, and a full treatment on the merits is necessary. In neither case, however, is a party left unheard or is a case decided without a thorough review. Put another way, summary judgment is not necessarily less valuable to the prompt and accurate resolution of disputes in the administrative context as it is in the courts. When properly applied, summary judgment disposes of cases that would not benefit from additional presentation of evidence and preserves for a full hearing those that would. It is not a mechanism for providing an end run around the judicial or adjudicative process.

That is not to say that summary judgment is beyond misapplication or abuse. In fact, once we distinguish summary judgment cases from cases without an oral hearing, we are better able to discern what I take to be the article’s primary (and I think most compelling) argument—that summary judgment has been used to negative effect in sanctions cases, for instance in connection with the SEC’s “broken windows” enforcement policy.

If summary judgment practice is the story’s main antagonist, however, precluding summary judgment altogether is still not the remedy. In fact, precluding summary judgment on a formalistic reading of §556(d)’s language about the presentation of oral evidence has several consequences that weigh against that interpretation. The first is that it overlooks the easiest fix to the textual argument—holding oral hearings on summary judgment motions. This preserves the benefits of summary judgment for agency adjudicators without running afoul of even the strictest reading of § 556(d).

The second is that a formalistic reading of § 556(d) creates a separate standard for summary adjudication in “Type A” adjudication—formal adjudication under §§ 554, 556, and 557 of the APA—and “Type B” adjudication, which is not governed by the APA but is often otherwise indistinguishable from Type A proceedings. Reading § 556(d) to preclude summary judgment because it has been abused in Type A cases ignores any similar problems among (the much larger pool of) Type B cases. Instead of grounding objections to summary judgment practices in a technical reading of the APA, greater focus on the fairness of those practices in general would better protect parties in all aspects of administrative adjudication.

Finally, to the extent the concern is fear of agencies using summary judgment as an end run around full hearings, focusing on the deficiencies in agencies’ use of summary judgment would provide a better opportunity for reform and for education of Type A and Type B adjudicators on the appropriate role for summary judgment proceedings in their hearings.

Professor Platt’s article raises an important issue. Requiring oral hearings in cases involving sanctions may go a long way to ensuring fairer and more thorough adjudications. But it need not be done, in my view, at the expense of summary judgment.

Louis Virelli is Professor of Law at Stetson University College of Law