Informal adjudication is any adjudication by an administrative agency that is not formal adjudication. Unlike formal adjudication, the Administrative Procedure Act (APA) does not establish procedural requirements for informal adjudication. Instead, the Due Process Clause, the agency’s internal procedural regulations, or statutes regulate informal adjudication requirements.
The APA requirements for formal adjudication only apply when the statute requires the procedure to be “on the record,” per 5 U.S.C. § 554; therefore, whenever a statute does not require the procedure to be “on the record,” then the adjudication is informal, and the APA does not apply. Informal adjudications must still contain procedural protections, however. Agencies themselves are free to craft procedural protections for informal adjudications. The Due Process Clause creates a minimum threshold for procedural protections, although the analysis is flexible and does not always lead to the conclusion that an agency must provide additional procedures. Congress can also pass statutes requiring agency informal adjudications to provide additional safeguards.
On the ground, the informal adjudication process varies from agency to agency. The Department of Justice immigration court proceedings closely resemble formal adjudications, as they consist of trial-type, adversarial proceedings where parties introduce evidence. On the more informal end of the spectrum, the Department of Veterans Affairs system for adjudicating applications for benefits is non-adversarial and the adjudicator must proactively develop facts and claims in the case.
[Last updated in November of 2021 by the Wex Definitions Team]