the administrative law context,252 though the doctrine is not applied in all circumstances.253
A pre-APA administrative law case, Morrissey v. Brewer, shows that raising the standard
of decision-maker impartiality in state-level administrative proceedings is not a novel concept.254
The holding in Morrissey echoes the general preference for decision-makers free from the
appearance of bias through the separation of investigative and adjudicative functions in certain
types of adjudications.255 In Morrissey, the Supreme Court identified a deficit in the state’s
procedures for parolees facing revocation, which was to permit the parolee’s law enforcement
officer to adjudicate the case. 256 In doing so, the Court went beyond the definition of impartiality
state penal systems were employing by requiring that parole revocation be administratively
adjudicated by an “uninvolved person.”257 The Court’s reasoning relied on a balancing of interests
of the parolee against those of the State, recognizing the primary interest of the parolee in retaining
his liberty and the primary interests of the State in preventing once-convicted individuals from
again committing antisocial behaviors.258 The Court further noted the State’s interests associated
with saving time and resources by returning the parolee to prison rather than re-trying him or her
for the violations of parole conditions.259 The Court also noted society’s interest in the parolee’s
continued freedom from the utility the parolee would provide to society outside of prison, as well
as the alleviation to taxpayers of the burden of the parolee’s prison costs.260 While acknowledging
that it would be unfair to assume all parole officers were biased or partial in their adjudication of
revocation hearings, the Court found that on balance, parole revocation hearings require that a
hearing for the parolee be conducted by a person uninvolved with the parolee’s case.261 In so
252 See 5 U.S.C. § 554(d); Groiler v. F.T.C., 615 F.2d 1215, 1220 (9th Cir. 1980) (“by forbidding adjudication by
persons engaged in the performance of investigative or prosecuting functions, Congress intended to preclude from
decision-making in a particular case not only individuals with the title of “investigator” or “prosecutor,” but all persons
who had, in that or a factually related case, been involved with ex parte communication, or who had developed, by
prior involvement with the case, a will to win”); Elliott v. S.E.C., 36 F.3d 86, 87 (11th Cir. 1994) (“[a]n agency may
combine investigative, adversarial, and adjudicative functions, as long as no employees serve in dual roles”) (emphasis
added); Girard v. Klopfenstein, 930 F.2d 738, 742 (9th Cir. 1991) (validating a procedural hearing where investigative
and adjudicative functions were not merged); Wong Yang Sung v. McGrath, 339 U.S. 33, 45–46 (1950) (finding a
due process violation where a hearing was conducted by members of an administrative agency’s investigative branch).
253 See Withrow, 421 U.S. at 58 (“the combination of investigative adjudicative functions does not, without more,
constitute a due process violation”). See also, e.g., In re Seidman, 37 F.3d 911, 925 (3d Cir. 1994) (using an actual
bias test for adjudicators who have served investigative functions in financial oversight body hearings); Simpson v.
Office of Thrift Supervision, 29 F.3d 1418, 1424 (9th Cir. 1994) (initiation of charges against claimant by director of
financial oversight body did not render director unable to act as impartial decision-maker at claimant’s hearing); Hirrill
v. Merriweather, 629 F.2d 490, 496 (8th Cir. 1980) (“[w]ithin the context of public administrative law and procedure,
a claimant or litigant is not denied a constitutionally guaranteed fair hearing before an impartial tribunal simply
because the agency factfinders or decision-makers may have had some prior knowledge or even preliminary
participation in the case”). See generally Roland M. Frye, Jr., Restricted Communications at the United States Nuclear
Regulatory Commission, 59 ADMIN. L. REV. 315 (2007); but see Finer Foods, 274 F.3d at 1140 (finding that even
informal adjudications under the APA require impartial decision-makers “without a stake in the outcome”).
254 Morrissey, 408 U.S. at 471.
255 See supra note 253.
257 Morrissey, 408 U.S. at 486.
258 Id. at 483.
260 Id. at 484.
261 Morrissey, 408 U.S. at 485 (“[ i]t would be unfair to assume that the parole officer bears hostility against the parolee
that destroys his neutrality…. However, we need not make any assumptions…to conclude that there should be an