Original Author: Tim Muck<\/p>\n
Revised in 2014 by Patricia Winget<\/a><\/p>\n Revised in 2026 by Dustin C. Jones<\/a><\/p>\n Download a PDF of Chapter 14<\/a><\/p>\n Chapter Contents<\/p>\n \n The Minnesota Administrative Procedure Act (MN APA) provides that an agency cannot issue its final decision and order until the report of the administrative law judge (ALJ) has been made available to the parties for at least ten days and each party adversely affected has been afforded the opportunity to file exceptions to the ALJ\u2019s report and present argument to a majority of the officials who are to render the final decision.[1]<\/a><\/sup> An individual agency\u2019s procedural rules and statutes may contain additional procedures and requirements for filing exceptions and presenting argument, including the process for any party to file a written response to any timely-filed exceptions.[2]<\/a><\/sup> The agency will typically issue an \u201cexceptions letter\u201d to the parties setting forth the exact procedures to follow and deadlines for exceptions and response submissions.\n<\/p>\n \n The MN APA does not specify that addition argument must be orally made to the decision-makers. Either written or oral argument satisfies due process.[3]<\/a><\/sup> If a party requests oral argument, however, the agency should grant the request.[4]<\/a><\/sup> By the same token, an agency\u2019s failure to respond to a party\u2019s request to present argument creates a \u201clack of basic fairness\u201d and may result in a reversal of the agency\u2019s decision because it was based on unlawful procedure and may demonstrate a lack of due process.[5]<\/a><\/sup> The contested case rules of individual agencies may provide for oral argument,[6]<\/a><\/sup> or the agency may exercise its discretion to allow written argument while allowing oral argument in particular cases.\n<\/p>\n \n An agency may issue findings different from those contained in the ALJ\u2019s recommended decision even where agency staff fails to file exceptions to the recommended decision.[7]<\/a><\/sup> A party\u2019s failure to object to an ALJ\u2019s discovery ruling in exceptions does not preclude that party from raising the discovery issue on judicial review.[8]<\/a><\/sup>\n<\/p>\n \n After In the Matter of the Surveillance and Integrity Review (SIRS) Appeals by Trinity Home Health Care Services and Etyane Ayana<\/em>, 996 N.W.2d 178 (Minn. 2023) (holding that the MN DHS Commissioner lacked authority (implied, express or otherwise) to remand a contested case to the ALJ for reconsideration of the ALJ\u2019s report with recommendation), the Minnesota Legislature amended Minn. Stat. \u00a7 14.62 to permit agencies the opportunity to request a remand to the Court of Administrative Hearings (CAH) for further proceedings. It is a request that must be made within 45 days following the close of the hearing record, but the statute does contain a good cause provision if the request is made after 45 days.[9]<\/a><\/sup> The request for a remand must set forth with specificity the reasons the agency is requesting remand, including if it is asking for further fact finding by identifying the issues for which further fact finding is needed and explaining why further fact finding is necessary to facilitate a fair and just final decision.[10]<\/a><\/sup><\/a><\/a><\/a><\/a>\n<\/p>\n \n When the Administrative Law Judge (ALJ) issues their report and recommendation,[11]<\/a><\/sup> the ALJ certifies and transfers the official record to the agency.[12]<\/a><\/sup> Upon receipt of the record, the agency conducts its own quasi-judicial determination of the contested case. In reaching its decision, the agency must rely solely on the record. Both statute[13]<\/a><\/sup> and due process[14]<\/a><\/sup> require that the agency decision-maker consider only evidence that is part of the record.\n<\/p>\n \n Consistent with this requirement, decision-makers may not decide cases on the basis of information acquired from ex parte<\/em> communications. Due process, in particular, generally prohibits such communications as inconsistent with the fundamental premises inherent in our concept of fairness in adversarial hearings.[15]<\/a><\/sup> Ex parte<\/em> communications with an agency decision-maker may be regarded as fraud on the agency.[16]<\/a><\/sup> But not all such contacts result in a due process violation.[17]<\/a><\/sup> The issue is whether the contact has created a risk of actual bias.[18]<\/a><\/sup> An ex parte<\/em> communication does not violate due process where those objecting to the communication had the opportunity to confront, cross-examine, or argue concerning the information received by the decision-maker involved in the communication.[19]<\/a><\/sup> A clandestine ex parte<\/em> communication not made part of the record would afford the objector no such opportunity.[20]<\/a><\/sup>\n<\/p>\n \n The agency can take notice of facts of which judicial notice could be taken and also of general, technical, and scientific facts within its specialized knowledge, provided that before or during the hearing, parties have been given notice and an opportunity to contest any such facts.[21]<\/a><\/sup> In evaluating the evidence in the record, however, the agency may utilize its experience, technical competency and expertise, and specialized knowledge.[22]<\/a><\/sup>\n<\/p>\n \n The ALJ’s report and recommendation are not ordinarily binding on the agency.[23]<\/a><\/sup> It is, however, entitled to some credence. Determinations of the credibility of witnesses by the ALJ are, for example, entitled<\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a> to some weight.[24]<\/a><\/sup> In contested case appeals, the ALJ who presided at the hearing is in the best position to judge the credibility of witnesses and to determine the weight to be given evidence presented in a case.[25]<\/a><\/sup> On the other hand, inferences and conclusions drawn from the facts by the ALJ may be given less weight.[26]<\/a><\/sup> Moreover, it is within the particular expertise of the agency to evaluate the weight to be given expert testimony.[27]<\/a><\/sup> An agency might, for example, focus on certain witnesses\u2019 testimony, and give one witness\u2019s testimony more weight.[28]<\/a><\/sup> In fact, the agency decision-maker owes no deference to the agency\u2019s own expert witnesses.[29]<\/a><\/sup> While the ALJ’s report is part of the record for the agency’s consideration,[30]<\/a><\/sup> it is only one part of the record and is usually only a recommendation to the agency.[31]<\/a><\/sup> Accordingly, the Commissioner is not bound by the recommendation of the ALJ.[32]<\/a><\/sup> The Commissioner may independently decide the contested case appeal based on the evidence in the record before them.[33]<\/a><\/sup> A decision or order may reject or modify the ALJ\u2019s findings of fact, conclusions of law, or recommendation contained in the report of the ALJ, when including the reasons for each rejection or modification.[34]<\/a><\/sup> However, where there is competing evidence or testimony, the Commissioner will not substitute her judgment for that of the ALJ unless the ALJ\u2019s findings are wholly unsupported by the law or the record or demonstrate a clear showing of mistake or bias.[35]<\/a><\/sup> The Commissioner, the Commissioner\u2019s designee or agency officials render the final decision and order under the MN APA.[36]<\/a><\/sup> The agency must conduct its own review of the record and reach its own independent determinations of all issues, whether legal or factual. It must not rubber-stamp the findings and conclusion of the ALJ.[37]<\/a><\/sup>\n<\/p>\n \n The agency may make its own findings differing from those of the ALJ as long as the agency’s findings are supported by substantial evidence in the record. The agency is not restricted to reviewing the findings of the ALJ and changing them only when they are not supported by substantial evidence.[38]<\/a><\/sup> In addition, an agency is not bound to adopt stipulations of fact and<\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a> ay look to other evidence in the record.[39]<\/a><\/sup> An agency, however, may not base its decision on evidence outside the record even where that evidence was part of the record in a previous contested case.[40]<\/a><\/sup> The Commissioner must issue a final agency decision that is supported by substantial evidence in the record,[41]<\/a><\/sup> and not an arbitrary or capricious agency decision based on the agency exercising its will, rather than its judgment, or a decision based on whim or is devoid of articulated reasons.[42]<\/a><\/sup>\n<\/p>\n \n Since 2000, the MN APA has required an agency that rejects or modifies a finding of fact, conclusion, or recommendation of an ALJ to state the reasons for each rejection or modification.[43]<\/a><\/sup> Before this amendment, case law had encouraged an agency to state its reasons for changing an ALJ recommended decision, providing that where an agency rejects an ALJ’s recommendations, the \u201cbetter practice\u201d is for the agency to articulate its reasons for doing so.[44]<\/a><\/sup> An agency’s rejection of an ALJ’s findings, or its significant departure from them, without any comment or explanation suggests that the agency exercised its will rather than its judgment.[45]<\/a><\/sup>\n<\/p>\n \n What constitutes an adequate review of the record by the agency so as to ensure that the agency is deciding the issues independently and is not rubber-stamping the ALJ\u2019s recommendation is determined on a case-by-case basis. A ten-hour review by an agency head of a voluminous record, in which the agency head (1) reviewed the entire transcript, reading verbatim the areas of testimony they felt were of substance or in dispute, (2) examined every exhibit, and (3) received a four- or five-hour briefing from their staff reviewing the evidence and the arguments of the parties, has been held sufficient.[46]<\/a><\/sup> Where two of three decision-makers acting as a commission had read the entire record before the hearing examiner and the third had read one-half of the record and all had considered the written and oral objections of the parties before issuing the decision, the review of the record was held to be sufficient.[47]<\/a><\/sup> And where all of the agency decision-makers had heard oral arguments, read briefs and appendices and the recommended decision of the ALJ but only one member and the advising assistant attorney general had read the whole transcript, the review of the record was held to be consistent with the principles of due process.[48]<\/a><\/sup><\/a><\/a><\/a><\/a><\/a><\/a><\/a>\n<\/p>\n \n An agency decision-maker may consult agency staff in arriving at a decision.[49]<\/a><\/sup> Due process may, however, prevent the decision-maker from consulting an agency staff member involved in the investigation of the case if, under the circumstances, the consultation would result in biasing the decision-maker.[50]<\/a><\/sup> Statutes governing the licensing boards prevent a board member consulted during an investigation from voting on the decision in the case but allow the member to participate at the hearing.[51]<\/a><\/sup> The Minnesota Court of Appeals has commented that review of the agency’s draft order before issuance by the attorney who represented the agency in the hearing as an advocate is objectionable, as it creates an appearance of possible prejudice and a risk of biasing the agency.[52]<\/a><\/sup>\n<\/p>\n \n If the agency decision-maker is a group of persons, such as a board or commission, the Minnesota open meeting law[53]<\/a><\/sup> may apply. The open meeting law does not, however, require that decision-makers who have independently reviewed the record and deliberated individually have a collegial discussion.[54]<\/a><\/sup> The individuals need not orally discuss in public a decision on which they have reached independent judgments.[55]<\/a><\/sup> <\/a><\/a><\/a><\/a><\/a><\/a><\/a>\n<\/p>\n \n The agency’s final decision and order must be in writing.[56]<\/a><\/sup> The final decision and order must be based on the entire contested case record, including any timely-filed exceptions to the ALJ\u2019s report, any timely-filed responses to those exceptions, and any presentation of argument to a commissioner, designee of a commissioner, or a majority of the officials who are to render the agency\u2019s final decision and order.[57]<\/a><\/sup> The Minnesota Administrative Procedure Act (MN APA) requires that the agency decision contain findings of fact and conclusions on all material issues.[58]<\/a><\/sup> The question of whether a particular fact is material to the proceeding such as to require a finding can be answered by asking whether an appellate court could, without that finding, conduct a sufficient judicial review of the agency\u2019s decision.[59]<\/a><\/sup> The agency should state with clarity and completeness the facts and conclusions essential to its decision so that the reviewing court can determine if the facts justify the agency\u2019s action[60]<\/a><\/sup> For example, an agency’s findings consisting solely of a reference to certain pages in the transcript would be insufficient and a failure to engage in \u201creasoned decision making.\u201d[61]<\/a><\/sup> However, there is no hard-and-fast MN APA or due process rule concerning how detailed and particular findings should be.[62]<\/a><\/sup> There is rather a \u201czone of propriety\u201d between the extremes of mere conclusion and undue particularity.[63]<\/a><\/sup> The adequacy of a particular set of findings depends on whether the findings enable the court on review to ascertain the facts on which the agency made its decision.\n<\/p>\n \n The MN APA requires that the agency decision contain findings of fact and conclusions on all material issues[64]<\/a><\/sup> but does not necessarily require a memorandum, opinion, or other statement of the agency’s rationale in reaching its decision, or that the reasons or basis for the order be otherwise specified.[65]<\/a><\/sup> Due process does not require that the decision be accompanied by a written memorandum discussing each of the objections parties may have raised during the proceeding or during the exceptions process.[66]<\/a><\/sup> Nor does due process require the agency to discuss the weight given any part<\/a> of the evidence.[67]<\/a><\/sup> The agency is not required to discuss the mental processes by which it reached its conclusion.[68]<\/a><\/sup> If there are no formal findings of fact and conclusions, due process may, at least in some circumstances, require a statement of reasons for the determination and the evidence relied upon.[69]<\/a><\/sup> This assures that the decision is based on the official record.[70]<\/a><\/sup>\n<\/p>\n \n The MN APA specifies that if an agency does not modify or reject an ALJ\u2019s recommended decision within 90 days of the close of the record, then the ALJ\u2019s recommended decision becomes final.[71]<\/a><\/sup> The record closes upon the filing of exceptions to the ALJ\u2019s Report or any responses to a party\u2019s exceptions and the presentation of additional argument, if any, whichever occurs chronologically last, or upon the expiration of the deadline for doing so.[72]<\/a><\/sup> Apart from the MN APA, the statutes relating to particular agencies may contain decision deadlines.[73]<\/a><\/sup>\n<\/p>\n \n The agency must serve a copy of the agency’s decision and any order upon each party and upon the ALJ by first class mail.[74]<\/a><\/sup> The agency\u2019s final decision and order may include an award of costs against an unsuccessful contested case litigant in favor of the agency if authorized by statute.[75]<\/a><\/sup> Under a statute authorizing an agency to require a licensee to pay \u201call costs\u201d of the proceeding, disbursements may be taxed against the licensee; attorney fees and investigation costs of the attorney general\u2019s office or county may not, however, be taxed.[76]<\/a><\/sup> The specific expenses recoverable by a prevailing contested case litigant against the agency are enumerated by statute.[77]<\/a><\/sup> They may include filing fees, subpoena fees, mileage, transcript costs, court reporter fees, expert witness fees, the reasonable costs of any study, analysis, engineering report, test, or project, photocopying and printing costs, postage and delivery costs, and service of process fees.[78]<\/a><\/sup> Minn. Stat. \u00a7 15.472(a) specifically authorizes the court or ALJ to award fees and other expenses to a prevailing party.[79]<\/a><\/sup><\/a>\n<\/p>\n \n The Minnesota Administrative Procedure Act (MN APA) provides that a party seeking rehearing or reconsideration must file the request within ten days of the agency’s order.[80]<\/a><\/sup> The MN APA, however, does not confer a right to rehearing or reconsideration on any party to a contested case. The statutes or rules specific to a particular agency may contain such a right.[81]<\/a><\/sup> Specific agency statutes or rules might contain procedural requirements for rehearing and reconsideration that supplement those found in the MN APA.[82]<\/a><\/sup> The rules of the Court of Administrative Hearings (CAH) provide that any notice of and order for rehearing must be served on all parties in the same manner prescribed for the original notice and order for hearing.[83]<\/a><\/sup> They also provide that the rehearing must be conducted in the same manner as the original hearing.[84]<\/a><\/sup>\n<\/p>\n \n Although the MN APA provides no right to a rehearing, and accordingly agencies are not required to entertain requests for rehearing, agencies may exercise their discretion to do so.[85]<\/a><\/sup> Where through fraud, mistake, or misconception of facts, an agency enters an order, it may, with notice to the parties, correct its order.[86]<\/a><\/sup> An agency has the inherent authority to correct its prior decisions.[87]<\/a><\/sup> An agency may also reopen its own proceeding on the ground of an implied authority to deal with fraud on the agency resulting from ex parte<\/em> communications with agency decision makers.[88]<\/a><\/sup> An agency may exercise its discretion to reconsider a matter on the ground of newly discovered evidence not known at the time of the evidentiary hearing.[89]<\/a><\/sup> Rejecting an application for rehearing on such ground will not, however, constitute an abuse of discretion where the proffered evidence is merely cumulative of that already in the record and was in existence at the time of the hearing.[90]<\/a><\/sup> The authority of an agency to rehear or reconsider lasts until its jurisdiction is lost on the filing of an appeal from its decision.[91]<\/a><\/sup> A rehearing may in some circumstances be summary and not include the taking of additional evidence.[92]<\/a><\/sup>\n<\/p>\n \n The MN APA provides that an application for rehearing or reconsideration is not a prerequisite to judicial review of a contested case.[93]<\/a><\/sup> The Court of Appeals has ruled that it could consider issues not addressed by an unemployment law judge in the initial decision but raised and addressed for the first time on a motion for reconsideration.[94]<\/a><\/sup>\n<\/p>\n\n
14.1 Exceptions to the Administrative Law Judge’s Report and Argument to the Agency before Final Decision<\/h2>\n
14.2 Agency Review of the Record Before Decision<\/h2>\n
14.3 The Agency\u2019s Final Decision and Order<\/h2>\n
14.4 Rehearing and Reconsideration<\/h2>\n
Footnotes<\/h2>\n<\/div>\n
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