Lawbooks

Official Notice

The Administrative Procedure Act, § 7(d),

provides that,

"…where any agency decision rests on official notice of a material fact not appearing in the evidence in the record," any party shall, "on timely request be afforded an opportunity to show the contrary." American Trucking Asso v. Frisco Transp. Co., (1958) 358 U.S. 133, 3 L.Ed 2d 172 Annotations § 3(b)

Annotations of cases decided include:

The agency shall take official notice of its own records. Yee Chun v. Nagle, (1929, CA 9 Cal) 25 F.2d 839; Ex Parte Keizo Kamiyana, (1930 CA ( Cal) 44 F.2d 503; Ex Parte Masamichi Ikeda, (1933 CA 9 Cal) 68 F.2d 276; Wisconsin v. Federal Power Com., (1952) 91 App DC 307, 201 F.2d 183 cert den 345 U.S. 934, 97 L.Ed. 1362, 73 S.Ct. 795; Halpern v. Andrews, (1927, DC Pa) 21 F.2d 969; Crichton v. United States, (1944, DC NY) 56 F. Supp 876, aff’d without opinion 323 U.. 684, 89 L.Ed 554, 65 S.Ct. 559; Riss & Co v. United States, (1952 DC Mo) 117 F. Supp. 296 aff’d without opinion 346 U.S. 890. 98 L. Ed 393, 74 S/Ct. 221; Wilson v. United States, (9153 DC Mo) 114 F. Supp. 814.

"The agency may take official notice of 'facts of common knowledge and experience': United States v. Strauss Bros. & Co., (1905 CA 2 NY) 136 F. 185); and, 'that which is generally notorious in the community' Strecker v. Kessler, (1938 CA 5 La) 96 F.2d 1020, mod 307 U.S. 22, 83 L. Ed. 1082, 58 S. Ct. 694., However, these, 'facts,' may not rest on presumption. 'Nowhere is the presumption held to be a substitute for proof of an independent and material fact.' United States v. Ross, 92 U.S. 281, 284 [23: 707, 708].

"Taking official notice of previous tax court cases is a misuse of the agency's power to take official notice." Funk v. Commissioner, (1947 CA 3) 163 F. 2d 796; Erie R. Co. v. United States, (1945 DC Ohio) 64 F. Supp. 162.

"Such error is material where it prejudices the rights of a party, Market Street R. Co. V. Railroad Com., (1945) 324 U.S. 548, 89 L. Ed. 1171, 65 S.Ct. 770, reh den 324 U.S. 890, 89 L.Ed. 1438, 65 S.Ct. 1020; United States v. Pierce Auto Freight Lines (1946) 327 U.S. 515, 90 L.Ed. 821, 66 S.Ct. 687; American Trusking Assos v. Frisco Transp. Co., (1958) 358 U.S. 133, 3 L.Ed 2d 172, 79 S.Ct. 170, and is ipso facto prejudical in the sense that valid administrative action cannot be based upon such matter, where the facts officially noticed have not been put into the record so as to permit scrutiny and contest since the record is not in accordance with law. Crowell v. Benson, (1932) 285 U.S. 22, 76 L.Ed. 598, 52 S.Ct. 285. It has been held that, “facts conceivably knownbut not put into evidence, will not support an order.” Baltimore & O. R. Co. v. United States, (1924) 264 U.S. 258, 68 L.Ed. 667, 44 S.Ct. 317.

In addition to information you'll find on this site, there's more you'd be wise to look into.

Forward to Discussion: The Notice Requirement

The * Goldfinger Chronicles was previously published from 2009 to 2016.
Until we can create a Blog Archive here at our new home, you can find those here.

The American Republic