context: In soliciting a medical opinion on the question of the "etiological[ ] relationship between the vet[eran]'s service-connected chest injury and his fatal emphysema," the Board employee himself provided the answer: "Clearly, his inserviee chest injury was not related to his fatal pulmonary emphysema." The Court holds that such a statement evidences that there was no process at work to ensure impartiality, and creates the impression that the Board was not securing evidence to determine the correct outcome, but rather to support a predetermined outcome.
citation_a.signal: cf.
citation_a.parenthetical: ex parte communication restriction of the Administrative Procedure Act (APA) did not apply to a legal memorandum from the agency's legal counsel to the administrative law judge because the memorandum constituted contact within the agency
citation_a.sentence: See Withrow v. Larkin, 421 U.S. 35, 47, 54, 95 S.Ct. 1456, 1464, 1468, 43 L.Ed.2d 712 (1975) (although the combination of investigative and adjudicative functions does not necessarily create an unconstitutional “bias or the risk of bias or prejudgment” in the administrative adjudication, the Supreme Court cautioned that “we should be alert to the possibilities of bias that may lurk in the way particular procedures actually work in practice”); see also City of Charlottesville v. FERC, 774 F.2d 1205, 1212 (D.C.Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986) (“[i]n order to establish improper prejudgment of a case, it must appear to ‘a disinterested observer ... that [the agency] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it’” (citations omitted)); Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 590 (D.C.Cir.1970) (noting the “marked difference between the issuance of a press release which states that the Commission has filed a complaint because it has ‘reason to believe’ that there have been violations, and statements by a Commissioner after an appeal has been filed which give the appearance that he has already prejudged the case and that the ultimate determination of the merits will move in predestined grooves”); cf. Burke v. Bd. of Governors of the Federal Reserve System, 940 F.2d 1360, 1368 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1957, 118 L.Ed.2d 559 (1992) (ex parte communication restriction of the Administrative Procedure Act (APA) did not apply to a legal memorandum from the agency’s legal counsel to the administrative law judge because the memorandum constituted contact within the agency); Do-Right Auto Sales v. Howlett, 401 F.Supp. 1035, 1039 (N.D.Ill.1975) (“fact that an investigator in an administrative body is biased is not fatal to the decision of that body ... [; w]hat is crucial to the validity of a decision is the actual impact of bias on the person who makes the decision”) (citations omitted).
citation_b.signal: see
citation_b.identifier: 95 S.Ct. 1456, 1464, 1468
citation_b.parenthetical: although the combination of investigative and adjudicative functions does not necessarily create an unconstitutional "bias or the risk of bias or prejudgment" in the administrative adjudication, the Supreme Court cautioned that "we should be alert to the possibilities of bias that may lurk in the way particular procedures actually work in practice"
citation_b.sentence: See Withrow v. Larkin, 421 U.S. 35, 47, 54, 95 S.Ct. 1456, 1464, 1468, 43 L.Ed.2d 712 (1975) (although the combination of investigative and adjudicative functions does not necessarily create an unconstitutional “bias or the risk of bias or prejudgment” in the administrative adjudication, the Supreme Court cautioned that “we should be alert to the possibilities of bias that may lurk in the way particular procedures actually work in practice”); see also City of Charlottesville v. FERC, 774 F.2d 1205, 1212 (D.C.Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1515, 89 L.Ed.2d 914 (1986) (“[i]n order to establish improper prejudgment of a case, it must appear to ‘a disinterested observer ... that [the agency] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it’” (citations omitted)); Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 590 (D.C.Cir.1970) (noting the “marked difference between the issuance of a press release which states that the Commission has filed a complaint because it has ‘reason to believe’ that there have been violations, and statements by a Commissioner after an appeal has been filed which give the appearance that he has already prejudged the case and that the ultimate determination of the merits will move in predestined grooves”); cf. Burke v. Bd. of Governors of the Federal Reserve System, 940 F.2d 1360, 1368 (10th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1957, 118 L.Ed.2d 559 (1992) (ex parte communication restriction of the Administrative Procedure Act (APA) did not apply to a legal memorandum from the agency’s legal counsel to the administrative law judge because the memorandum constituted contact within the agency); Do-Right Auto Sales v. Howlett, 401 F.Supp. 1035, 1039 (N.D.Ill.1975) (“fact that an investigator in an administrative body is biased is not fatal to the decision of that body ... [; w]hat is crucial to the validity of a decision is the actual impact of bias on the person who makes the decision”) (citations omitted).