786 there appear to be no cases however holding they

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786 There appear to be no cases, however, holding they must, and there is some authority that they cannot absent congressional authorization. 787 (6) Decision on the Record. Although this issue arises princi- pally in the administrative law area, 788 it applies generally. “[T]he 782 Id. at 12–13. Likewise, the Court rejected the argument that remanding the case would not cure the underlying due process violation because the disqualified judge’s views might still influence his former colleagues, as an “inability to guaran- tee complete relief for a constitutional violation . . . does not justify withholding a remedy altogether.” Id. at 14. 783 Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC v. Louisville & Nash- ville R.R., 227 U.S. 88, 93–94 (1913). Cf. § 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d). 784 Greene v. McElroy, 360 U.S. 474, 496–97 (1959). But see Richardson v. Perales, 402 U.S. 389 (1971) (where authors of documentary evidence are known to peti- tioner and he did not subpoena them, he may not complain that agency relied on that evidence). Cf. Mathews v. Eldridge, 424 U.S. 319, 343–45 (1976). 785 Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970). 786 R ECOMMENDATIONS AND R EPORTS OF THE A DMINISTRATIVE C ONFERENCE OF THE U NITED S TATES 571 (1968–1970). 787 FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964). 788 The exclusiveness of the record is fundamental in administrative law. See § 7(d) of the Administrative Procedure Act, 5 U.S.C. § 556(e). However, one must show not only that the agency used ex parte evidence but that he was prejudiced thereby. Market Street R.R. v. Railroad Comm’n, 324 U.S. 548 (1945) (agency deci- 1976 AMENDMENT 14—RIGHTS GUARANTEED
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decisionmaker’s conclusion . . . must rest solely on the legal rules and evidence adduced at the hearing. To demonstrate compliance with this elementary requirement, the decisionmaker should state the reasons for his determination and indicate the evidence he re- lied on, though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.” 789 (7) Counsel. In Goldberg v. Kelly , the Court held that a govern- ment agency must permit a welfare recipient who has been denied benefits to be represented by and assisted by counsel. 790 In the years since, the Court has struggled with whether civil litigants in court and persons before agencies who could not afford retained counsel should have counsel appointed and paid for, and the matter seems far from settled. The Court has established a presumption that an indigent does not have the right to appointed counsel unless his “physical liberty” is threatened. 791 Moreover, that an indigent may have a right to appointed counsel in some civil proceedings where incarceration is threatened does not mean that counsel must be made available in all such cases. Rather, the Court focuses on the circum- stances in individual cases, and may hold that provision of counsel is not required if the state provides appropriate alternative safe- guards.
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