Administrative Practice Toolkit: Comments, Hearings, Records, and Appeals

Summary. Templates and language for participating in a rulemaking, trying an agency hearing, and seeking judicial review.

Tool 1 — Rulemaking comment template

Re: Comments on Proposed Rule, Docket No. [ ], [title], published [date] Submitted by: [name, description of interest, and how you are affected]

I. Summary of comments. [Three bullets: what we support, what we oppose, and what we propose instead.]

II. Our interest and the impact of the proposal. [Concrete: facilities, employees, customers, patients, acres, dollars. Quantify.]

III. The agency lacks statutory authority for [provision]. The organic statute at [cite] provides [quote]. That text does not authorize [the proposal] because [analysis]. [Where applicable: This is an assertion of authority of vast economic and political significance requiring clear congressional authorization, which the cited provision does not supply.]

IV. The agency has failed to consider [important aspect]. [Identify the aspect; supply the data; explain why it bears on the choice.] Attachment [ ] is [study/analysis/declaration] establishing [ ].

V. The agency's factual premises are contradicted by the record. [Identify the premise; supply contrary data with citations.]

VI. Alternatives. The agency should consider Alternative A: [describe], which achieves [the statutory objective] at [lower cost / less disruption], as shown in Attachment [ ]. [Address each alternative the agency proposed and why it is better or worse.]

VII. If the agency proceeds, these changes are necessary. [Specific, quotable regulatory text.]

VIII. Procedural objections preserved. [Notice adequacy; the required regulatory analyses; any defect in the docket.]

IX. Attachments. [Numbered index.]

Why the structure matters. An agency must respond to significant comments, and significance is measured in evidence. A comment with attachments creates obligations; a comment with adjectives does not.

Tool 2 — Public records request

To: [FOIA Officer / Records Custodian], [agency] Re: Request for records under [the Freedom of Information Act / (state) Public Records Act]

I request copies of the following records:

The complete file concerning [matter/application/decision no.], including all correspondence, notes, and internal memoranda;

The staff report or recommendation concerning [matter], including all drafts;

All decisions issued between [date] and [date] concerning [category of matter], sufficient to show how comparable matters were decided;

Any manual, guidance document, handbook, or training material applied in evaluating [category of matter];

All communications between [agency] and any third party concerning [matter], including [named parties];

All studies, data, models, or technical analyses relied upon in [the decision / the proposed rule].

Format: electronic copies preferred. Rolling production requested.

Fee waiver: I request a waiver because disclosure is in the public interest, contributing significantly to public understanding of government operations, and is not primarily in my commercial interest. If a waiver is denied, please notify me before incurring fees exceeding $[ ].

Withholdings: if any record is withheld in whole or in part, please provide an index identifying each record, its date, author, recipients, and the specific exemption claimed.

Tool 3 — Records denial appeal

Re: Appeal of denial of request no. [ ], dated [ ]

The agency withheld [records] under [exemption]. The withholding is improper because:

The exemption does not apply. [Analysis: the record is not predecisional or deliberative because it was adopted as the agency's position; the commercial information is not confidential because it is publicly available; the privacy interest is minimal and outweighed by the public interest.]

Segregable portions were not released. The agency must release all reasonably segregable non-exempt portions.

The index is inadequate. The agency has not identified the withheld records with sufficient specificity to permit evaluation of the claims.

I request release of the withheld records and, at minimum, a detailed index.

Tool 4 — Hearing request

To: [Agency], [address] Re: Request for hearing — [matter], [decision dated ___], [license/application/claim no.]

Pursuant to [statute § ___ / regulation § ___], I request a hearing on the decision dated [ ], received [ ].

The issues in dispute are:

Whether [factual issue].

Whether [legal issue].

Whether [procedural issue].

I request: an evidentiary hearing before an impartial presiding officer; the opportunity to present evidence and cross-examine; the issuance of subpoenas as provided by [regulation]; and a transcribed record.

I further request that the decision be stayed pending hearing, on the ground that [irreparable harm].

Please confirm the hearing date, the applicable procedural rules, the exhibit and witness list deadlines, and the standard and burden of proof.

Tool 5 — Prehearing statement

1. Statement of the issues. [Numbered.] 2. Statement of undisputed facts. [Numbered.] 3. Statement of disputed facts. [Numbered, with the evidence for each.] 4. Witnesses. [Name, role, subject of testimony, estimated time.] 5. Exhibits. [Numbered, described, with a one-line statement of relevance.] 6. Legal authorities. [Statute, regulation, and decisions relied on.] 7. Requested relief. [Precisely what you want the presiding officer to order.] 8. Estimated hearing time. [ ] 9. Subpoenas requested. [Names and the reason each witness is necessary.]

Tool 6 — Subpoena request

Pursuant to [regulation § ___], I request the issuance of a subpoena to:

[Name, title, address], to appear and testify at the hearing scheduled [date]. This witness has firsthand knowledge of [describe] and is not within my control. The testimony is necessary because [ ].

[Custodian, entity, address], to produce: [describe documents narrowly and specifically]. These documents are necessary because [ ] and are not otherwise available to me.

Most schemes permit subpoenas and almost no one asks.

Tool 7 — Exhibit index

Ex.	Description	Date	Author	Offered to prove
1
2

Three copies: presiding officer, opposing counsel, you.

Tool 8 — Proposed findings of fact and conclusions

PROPOSED FINDINGS OF FACT

[Fact.] (Ex. 3; Tr. 44:5–17.)

[Fact.] (Ex. 7; testimony of [witness].)

[Fact.] (Undisputed; agency's Ex. A.)

PROPOSED CONCLUSIONS OF LAW

[Regulation § ___] requires [quote the criterion].

The evidence establishes each element: [element] is satisfied by Findings 1–3; [element] by Findings 4–6.

The agency has not carried its burden as to [ ] because [ ].

PROPOSED ORDER [Precisely the relief requested.]

Draft these before the hearing and build the hearing to produce them. This is the single most effective technique in administrative practice.

Tool 9 — Objection and offer of proof language

Objection

"I object to [the exhibit / the question / the ruling] on the ground that [the document was not disclosed in the agency's exhibit list as required by regulation § ___ / the witness lacks firsthand knowledge / the notice did not identify this as a basis for the proposed action / the agency's own regulation requires ___]. I request a ruling on the record."

Offer of proof

"The presiding officer has excluded [the testimony/exhibit]. For the record, if permitted, the witness would testify that [substance, in specifics]. This testimony is relevant to [issue] and material because [ ]. I request that this offer be made part of the record."

Without an offer of proof, a reviewing court cannot evaluate the exclusion.

Tool 10 — Reconsideration request

Re: Request for reconsideration — [matter], decision dated [ ]

I request reconsideration on the following grounds:

1. The decision rests on a factual error. The decision states [quote]. In fact, [correct fact], as shown by Attachment 1, which was [not before the decision-maker / in the file but not addressed].

2. The decision does not address [evidence/argument] submitted on [date]. [Identify it, and why it bears on the outcome.]

3. New information. [Describe, with the reason it was not available earlier.]

Relief requested: [reversal / modification to ___ / remand for further consideration], and a written determination stating the authority and findings relied upon.

Tool 11 — Stay request to the agency

Re: Request for stay of [decision] pending [hearing / appeal / judicial review]

I request that [the decision / its effective date] be stayed pending [ ], on these grounds:

Likelihood of success. [Two sentences.]

Irreparable harm. Absent a stay, [the license lapses / the business closes / the benefit terminates / the structure is demolished], which cannot be undone by a later favorable decision.

Balance of harms. A stay imposes minimal burden on the agency because [ ].

Public interest. [ ]

I am prepared to accept reasonable interim conditions in lieu of full effectiveness, including [ ].

Ask the agency first. It is faster and sometimes granted.

Tool 12 — Petition for review outline

1. Jurisdiction. [Statute conferring review; the court; the timeliness of this petition.] 2. Final agency action. [Consummation of the decision-making process; rights or legal consequences flowing from it.] 3. Standing. [Injury in fact — concrete and particularized; traceability; redressability.] 4. Ripeness and exhaustion. [Fitness; hardship; every administrative remedy used, with dates.] 5. Standard of review. [Arbitrary and capricious for reasoning; substantial evidence on the whole record for findings; independent judgment on statutory meaning.] 6. Statement of the case, cited to the record. [Every fact with a record citation.] 7. Argument. a. The agency exceeded its statutory authority. [Text, structure, purpose — argued independently.] b. The agency failed to consider [important aspect], raised at [record cite] and never addressed. c. The agency's explanation runs counter to the evidence at [record cite]. d. The agency changed position without acknowledgment or reasoned explanation. e. Procedural defect: [notice / logical outgrowth / failure to follow its own regulation]. f. [Constitutional: due process / bias / structural.] 8. Relief requested. [Vacatur; remand with instructions; stay; costs and fees.]

Tool 13 — Record designation and completion

Designation. Petitioner designates the following as the administrative record: [list by document, date, and agency Bates or docket number].

Motion to complete. The certified record omits [documents], which were before the decision-maker as shown by [evidence]. A complete record is necessary because review is confined to the materials the agency considered. Petitioner requests that the record be completed to include [ ].

Motion to supplement (narrow grounds). Petitioner requests supplementation with [ ] because [the agency relied on materials not included / technical background is necessary for the court to understand the issues / there is a strong showing of bad faith or improper behavior].

Tool 14 — Structural constitutional preservation (penalty proceedings)

Respondent preserves and does not waive the following:

1. Seventh Amendment. This proceeding seeks civil penalties for conduct resembling common law [fraud/other legal claim]. The claim is legal in nature and does not fall within the public rights exception; respondent is entitled to a jury trial in an Article III court. 2. Appointments Clause. The presiding officer exercises significant authority and must be appointed consistent with the Appointments Clause. Respondent objects to adjudication by an improperly appointed officer. 3. Removal. The tenure protections applicable to the presiding officer and to the agency's head unconstitutionally insulate them from presidential supervision. 4. Due process. [Combination of functions in a single individual; pecuniary interest; prejudgment.] 5. Nondelegation / major questions. The statute does not clearly authorize the authority asserted.

These cost nothing to preserve and are worth nothing if raised late.

Tool 15 — Ombudsman and legislative inquiry letters

Ombudsman

I am writing about [matter, no.], pending since [date]. Despite [describe efforts — dates of calls, letters, and submissions], I have received no [decision / response / explanation]. I request assistance in obtaining [a written determination / a status with a date certain / an explanation of what remains outstanding].

Legislative constituent services

I am a constituent residing at [address]. I have an application/claim pending with [agency], no. [ ], filed [date]. Despite [describe efforts], the matter remains unresolved after [duration]. I am requesting that your office inquire as to the status and the expected timeline. I have enclosed a signed privacy release authorizing the agency to discuss the matter with your office.

Include the privacy release. Agencies cannot discuss a file with a legislator's office without it, and its absence is the most common reason these inquiries stall.

Tool 16 — Fee application outline

1. Prevailing party. [How and when.] 2. Eligibility. [Net worth and size thresholds; the applicable statute.] 3. The government's position was not substantially justified. [The agency's position at each stage, and why it lacked a reasonable basis in law and fact — quoting the decision and the record.] 4. No special circumstances make an award unjust. 5. Fees and expenses. [Itemized time records by task; rates; the statutory cap and any basis for enhancement; expert and other costs.] 6. Timeliness. [Filed within the statutory period after final judgment.]