Also known as: official notices · judicial notice
Written by attorneys · grounded in primary & secondary sources — see below
A mechanism by which an administrative agency dispenses with formal proof by recognizing a fact as true without evidence from the parties. The agency must notify opposing parties and afford them an opportunity to rebut the noticed fact. Unlike judicial notice in court, official notice shifts the burden of proof rather than establishing the fact conclusively.
Odette Orozco challenged an EPA permit denial for her manufacturing plant. During the hearing the ALJ announced that the agency would recognize the current national unemployment rate without receiving evidence from either side. The ALJ relied on publicly available government statistics to support the decision that the plant would not create sufficient jobs to justify the permit.
Opal Okoro petitioned the NLRB for back wages after her termination. She supplied the agency with official Bureau of Labor Statistics tables showing average wages in her industry. The ALJ granted the request and took official notice of the wage data because the necessary information had been provided.
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Oswald Orozco contested a Social Security disability denial. The ALJ took official notice that certain jobs existed in the national economy. Oswald timely requested a hearing to present contrary evidence showing those jobs were unavailable in his region. The ALJ scheduled the hearing to allow rebuttal.
Orlando Okafor sued a hospital for medical negligence. His expert relied on passages from a medical treatise during direct examination. The agency ALJ took official notice that the treatise was a reliable authority because it was widely used by practitioners. The expert was permitted to read the statements into the record but the treatise itself was not admitted as an exhibit.
Octavia Okonkwo challenged an agency decision denying access to former presidential records. The agency took official notice of the historical practice of preserving such records without requiring additional proof. The notice shifted the burden to Octavia to show why the records should be released despite the established practice.
Oliver Okeke appealed an NLRB order finding his company had committed an unfair labor practice. The Board took official notice of the procedural history in the record to support its conclusion that substantial evidence existed. The notice allowed the Board to rely on undisputed procedural facts without reopening the evidentiary hearing.
Official notice shifts the burden of proof to the opposing party to show the contrary. Judicial notice in court conclusively establishes the fact. The agency must still provide notice and an opportunity to rebut under APA section 556(e).
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Yes. The agency must adequately inform the parties of the facts it intends to notice and give them an opportunity to present contrary evidence. Failure to do so violates the APA and due process requirements.
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An agency may notice facts within its specialized expertise or prior knowledge even if not generally known. The noticed fact must still be reliable and the parties must receive an opportunity to rebut it.
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Official notice primarily concerns adjudicative facts in individual proceedings. Agencies may also use official notice for legislative facts developed through rulemaking that affect later adjudications, provided parties had an opportunity to participate in the original proceeding.
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…in the complaint; (2) take whatever evidence was found necessary in addition to the submissions suitably dealt with by way of judicial notice; (3) make findings of fact with reference to those issues; and (4) certify the constitutional questions arising from the foregoing steps to the Court of Appeals. On remand, the District…