In Re Butterfly Kisses Child Care Center, Inc. and Cindy Boyce

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2025 VT 46

No. 24-AP-062

In re Butterfly Kisses Child Care Center, Inc. and Supreme Court
Cindy Boyce

On Appeal from
Agency of Education

January Term, 2025

Sarah Katz, Hearing Officer

George E. H. Gay, Law Office of Lauren S. Kolitch, PLLC, Stowe, for Petitioners-Appellants.

Charity R. Clark, Attorney General, and Alison L.T. Powers, Assistant Attorney General,
Montpelier, for Respondent-Appellee State.

PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.

¶ 1. CARROLL, J. Childcare provider Butterfly Kisses Child Care Center, Inc. and

its owner Cindy Boyce1 appeal a decision of the Agency of Education (AOE) to terminate and

disqualify provider from participating in the Federal Child and Adult Care Food Program (CACFP)

based on provider’s failure to correct noncompliance with program requirements. Provider argues

that the recurring serious deficiencies found by AOE were de minimis and did not require

termination. Provider also argues that the AOE hearing officer committed reversible error by

allowing the parties to submit post-hearing documentation. We hold that hearing officer applied

the appropriate standard in terminating and disqualifying provider from the program. As to the

1
The center and its owner are referred to collectively as provider.
post-hearing submissions, we conclude that provider did not properly preserve this argument for

appeal and, in any event, has failed to demonstrate reversible error. We therefore affirm.

I. Background

¶ 2. CACFP is a food-service program established by the U.S. Department of

Agriculture (USDA) and regulated by federal law. See 7 C.F.R. §§ 226.1-226.27. Under CACFP,

participating childcare centers receive reimbursement for meals and snacks provided to enrolled

children if regulatory requirements are met. The USDA’s Food and Nutrition Service administers

the program through grants to states. In Vermont, responsibility for administration of CACFP

rests with AOE’s Child Nutrition Program. AOE provides training and technical assistance to

participating institutions, monitors program performance, and conducts audits of participating

institutions. See 7 C.F.R. § 226.6(a) (detailing state agency administrative responsibilities).

¶ 3. AOE’s training includes program manuals, guides, standardized forms, online

training videos, and scheduled trainings. Participating centers must complete five hours of specific

training modules for new managers before they are approved for program participation and comply

with annual training requirements.

¶ 4. Participating centers must enter a CACFP program agreement with AOE. 7 C.F.R.

§ 226.6(b)(4)(i). The CACFP program agreement specifies that AOE must reimburse centers for

paid, free, and reduced-priced meals and snacks served to students “computed based on the number

of meals and snacks claimed and verified by the institution’s records.” Centers must comply with

CACFP regulations and have financial and administrative responsibilities to keep accurate records.

The agreement specifies that if an audit or review reveals a deficiency, AOE may require corrective

action.

¶ 5. “Seriously deficient” is a term of art used in the federal regulations that is defined

as a center “that has been determined to be non-compliant in one or more aspects of its operation”

of the CACFP. 7 C.F.R. § 226.2. For participating institutions, serious deficiencies include failing

2
to maintain adequate records, failing to adjust meal orders to conform to participant numbers,

failing to perform financial and administrative responsibilities, and other actions affecting the

institution’s ability to administer the program. 7 C.F.R. § 226.6(c)(3)(ii) (listing serious

deficiencies). If a center is seriously deficient, AOE must provide notice to the center and “take

corrective action.” Id. § 226.6(c)(3)(iii). Corrective action must “fully and permanently” correct

the identified serious deficiencies. Id. If corrective action fully and permanently corrects the

serious deficiencies “within the allotted time and to the State agency’s satisfaction,” the agency

must notify the participating institution that the agency has “temporarily defer[red] its serious

deficiency determination.” Id. § 226.6(c)(3)(iii)(B)(1)(i) (emphasis added); see also id.

§ 226.6(c)(3)(iii)(B) (describing process by which agency must respond to “[s]uccessful corrective

action”).

¶ 6. If there is noncompliance with a corrective-action plan, the center may be

disqualified from future CACFP participation. Further, “[i]f the State agency initially determines

that the institution’s corrective action is complete, but later determines that the serious

deficiency[ies] has recurred, the State agency must move immediately to issue a notice of intent

to terminate and disqualify the institution” following procedures outlined in the regulations. Id.

§ 226.6(c)(3)(iii)(B)(3) (second alteration in original) (emphasis added). As part of this notice of

intent to terminate and disqualify, the state agency must specify “[t]he basis for the actions,” id.

§ 226.6(c)(3)(iii)(C)(2), and “[t]he procedures for seeking an administrative review” of the

proposed disqualifications. Id. § 226.6(c)(3)(iii)(C)(4).

¶ 7. AOE is tasked with “develop[ing] procedures for offering administrative reviews

to institutions” and such procedures “must be consistent” with the requirements outlined in the

regulation. Id. § 226.6(k)(1). In part, the required procedures include (1) providing notice of the

action being taken or proposed, (2) authorizing legal representation for the institution, (3) making

available to the institution “[a]ny information on which the State agency’s action was based,”

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(4) allowing the institution and responsible individuals to “refute the findings . . . in person or by

submitting written documentation to the administrative review official,” (5) authorizing the

institution to “request a hearing” in “addition to, or in lieu of, a review of written information,”

and (6) requiring that the review official’s final decision be issued “[w]ithin 60 days of the State

agency’s receipt of the request for an administrative review.” Id. § 226.6(k)(5). Additionally, the

regulations provide that the review official “must make a determination based solely on the

information provided by the State agency, the institution, and the responsible principals and

responsible individuals, and based on Federal and State laws, regulations, policies, and procedures

governing the Program.” Id. § 226.6(k)(5)(viii).

¶ 8. In sum, participating centers are obligated to follow the federal regulations and

noncompliance with those standards amounts to a serious deficiency, requiring AOE to take

corrective action. Id. § 226.6(c)(3)(ii) (listing serious deficiencies for participating institutions).

If deficiencies persist after a corrective-action plan is instituted, AOE must issue a notice of

proposed termination and disqualification. Id. § 226.6(c)(3)(iii)(C). Although AOE must provide

a process for administrative review of a notice to terminate and disqualify, the serious-deficiency

determination is not subject to administrative review. Id. § 226.6(k)(3)(ii).

II. Factual Background

¶ 9. The following facts are undisputed for purposes of this appeal. Provider operates

two childcare center sites in Vermont. One site is in Newport, and the other site is in Wells River.

Together the sites provide childcare for approximately 100 infants, toddlers, and preschool

children. Provider first entered a CACFP program agreement in September 2017. Owner Cindy

Boyce and other responsible individuals completed the required CACFP new manager’s training

in 2017.

¶ 10. AOE conducted a routine announced administrative review of provider’s facilities

in January 2019. Several instances of noncompliance with CACFP regulations were identified by

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the reviewer. Provider submitted evidence of corrective actions, and AOE closed the

administrative review.

¶ 11. In April 2022, AOE performed an administrative review of provider’s program

operations and in July 2022, notified provider that there was noncompliance amounting to serious

deficiencies in its operation of CACFP. These included: failure to maintain adequate records,

claiming meals not served to participants, claiming a significant number of meals that did not meet

meal-pattern compliance, failure to properly monitor sponsored facilities, and failure to perform

financial and administrative responsibilities. AOE notified provider that it must “fully and

permanently correct all of the serious deficiencies” and failure to do so would result in AOE

proposing termination and disqualification from CACFP participation.

¶ 12. Provider submitted an initial corrective-action plan to resolve the serious

deficiencies and findings of noncompliance. Over several months, AOE requested and received

additional information concerning provider’s corrective actions. In April 2023, AOE notified

provider by letter that “[b]ased on review of the written corrective action plans and supporting

documentation,” provider had “fully and permanently corrected the serious deficiencies” cited in

the July 2022 Serious Deficiency Notice.

¶ 13. Although AOE deferred a serious-deficiency determination, the letter reiterated that

provider was required to fully and permanently implement the corrections to avoid future adverse

administrative action. Specifically, the letter stated:

[AOE] may conduct an unannounced follow-up review to verify the
adequacy of the corrective action. If [AOE] finds in the follow-up
review, or any subsequent review, that any of the serious
deficiencies have not been fully and permanently corrected, [AOE]
will immediately propose to terminate [provider]’s agreement and
propose to disqualify [provider], and any responsible principals,
without any further opportunity for corrective action.

¶ 14. In October 2023, AOE conducted an unannounced site visit to verify the adequacy

of the corrective measures. Based on conversations with staff, observations made while on site,

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and review of provider’s CACFP records for the months of June 2023 through September 2023,

AOE determined that provider continued to be in noncompliance with program requirements. For

example, AOE observed that provider did not maintain required records, failed to have on file

CACFP enrollment forms for twenty-five children, incorrectly approved six households for free

meals instead of reduced meals, failed to complete the center-use-only sections of the eligibility

form, incorrectly reported meal counts, and failed to provide site-monitoring documentation on

request.

¶ 15. AOE notified provider by letter that it had found recurring serious deficiencies in

its operation of CACFP that had not been fully and permanently corrected. The categories of

deficiencies arose from CACFP program requirements regarding (1) student enrollment and

eligibility documentation; (2) meal-count validation; and (3) internal monitoring requirements.

See 7 C.F.R. §§ 226.17(b)(8), 226.10(c), 226.16(d)(4)(iii). AOE proposed terminating provider

from the CACFP and disqualifying it and two of its employees from future CACFP participation

as required by the federal regulations.

¶ 16. Provider requested administrative review of the proposed termination and

disqualification from CACFP participation. A hearing official was appointed in accordance with

the requirements of 7 C.F.R. § 226.6(k)(5)(vii). AOE sent a hearing notice and produced the

administrative record prior to the hearing.

¶ 17. Both parties attended the hearing held on December 14, 2023. The hearing officer

was an independent and impartial AOE employee. The hearing was scheduled for two hours. At

the outset, the hearing officer explained the limited time available and the hearing officer’s desire

to make sure “everyone feels that they have the opportunity to be fully heard.” The hearing officer

emphasized that AOE had sixty days to issue a decision and therefore it was important to conclude

the proceedings that day. Provider presented its side first and spent over two hours questioning

the state director of child nutrition programs. At that point, the hearing officer noted that although

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the hearing could run over, other matters were scheduled for the room, and they were therefore

short on time. The AOE representative offered to submit a response in writing if time did not

allow AOE to present its side at the hearing. Provider did not object to this course of action.

¶ 18. Provider continued presenting its case and offered testimony from the owner and

an employee regarding the serious deficiencies. Both agreed that the required paperwork was not

all in compliance but claimed that it was difficult to get parents to complete forms. The employee

admitted that he had made an error in determining eligibility and used the incorrect guideline to

approve the free, reduced, or paid meals. With seven-and-a-half minutes remaining, the hearing

officer provided each side with three-and-a-half minutes for closing. Provider argued that the

errors leading to the serious deficiencies were de minimis and inadvertent and should not result in

disqualification or termination. The AOE representative indicated that AOE could respond in

writing if provider needed additional time. Provider did not object and proceeded to speak for the

remaining time. As the hearing concluded, the hearing officer inquired about a date for submission

of the AOE filings. Provider asserted that it was entitled to an opportunity to respond to any AOE

filing, and without such opportunity, provider objected to submission of additional documentation.

Ultimately, the hearing officer provided the parties with six days to submit additional materials.

¶ 19. On December 20, 2023, AOE submitted a document entitled “Written Testimony

and Closing Argument,” detailing the factual and procedural history as well as the relevant

administrative rules. Provider submitted a “Post Hearing Memorandum” and a written response

to AOE’s filing. Provider did not dispute AOE’s factual assertions. It argued that the record-

keeping violations were common, minor errors that did not warrant termination from the program.

In its post-hearing submission, provider for the first time argued that the hearing officer’s decision

allowing the parties to file post-hearing memoranda violated provider’s due-process rights, the

CACFP handbook, and AOE’s review procedures.

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¶ 20. The hearing officer issued a written decision affirming AOE’s proposed action.

The hearing officer rejected provider’s characterization of the violations as minor, noting that

federal regulations require accurate and verifiable records and explaining that when violations

occur, AOE lacks discretion to ignore them. As to acceptance of the post-hearing memoranda, the

hearing officer noted that provider was allotted the entirety of the three-and-a-half-hour hearing

and agreed to allow AOE to submit written argument to avoid a second day of hearing. The hearing

officer emphasized that provider was afforded a full opportunity to respond and did so by

submitting two post-hearing filings. In sum, the hearing officer found that the serious deficiencies

were not fully and permanently corrected and therefore AOE properly terminated and disqualified

provider from CACFP. Provider filed this appeal.

III. Discussion

¶ 21. Provider argues that AOE abused its discretion when it terminated and disqualified

it for violations that provider views as de minimis. Provider also argues that the hearing officer

abused her discretion and violated its due-process rights by allowing the parties to submit post-

hearing filings. We conclude that the record supports the hearing officer’s decision on the merits

and that provider’s objection to the post-hearing filings was not preserved for review.

A. Basis for Termination and Disqualification

¶ 22. Provider first argues that not all program violations rise to the level of a serious

deficiency and AOE abused its discretion when it proposed to terminate and disqualify provider

for repeated program violations that provider claims were “de minimis administrative errors.” The

record supports the hearing officer’s decision that AOE gave provider an opportunity to engage in

corrective action but that serious deficiencies persisted, necessitating provider’s termination and

disqualification from CACFP.

¶ 23. On appeal from an agency decision, this Court defers to an agency’s

“interpretations of the statutes it is charged with administering,” and upholds “its factual findings

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unless clearly erroneous, and its [legal] conclusions if reasonably supported by the findings.”

Beasley v. Dep’t of Labor, 2018 VT 104, ¶ 9, 208 Vt. 433, 199 A.3d 553 (alteration in original)

(quotation omitted). Appellate review is thus “limited to determining whether the [agency] applied

the proper legal standard, whether the evidence before the [agency] reasonably supports its

findings, and whether the [agency]’s findings reasonably support its conclusions.” In re E.C., 2010

VT 50, ¶ 6, 188 Vt. 546, 1 A.3d 1007 (mem.). In reviewing the sufficiency of the agency’s

findings, “we will construe the record in a manner most favorable to the [agency’s] conclusions.”

Id. (quotation omitted).

¶ 24. Provider contends that AOE had discretion to determine if provider’s

noncompliance with program requirements was severe enough to constitute a serious deficiency

and abused that discretion by terminating it without sufficient reason. Provider’s arguments

misunderstand the federal requirements and the scope of the administrative review. As explained

above, serious deficiencies are defined by the federal regulations, and once found, must be

addressed through corrective action. The fact that an error is commonplace or unintentional does

not preclude it from being a serious deficiency. Moreover, a serious-deficiency determination is

not subject to administrative review. See 7 C.F.R. § 226.6(c)(3)(iii). The sole question for the

hearing officer was whether AOE complied with program requirements by recommending to

terminate and disqualify provider from the program.

¶ 25. The record supports the findings that AOE found violations that constituted

“serious deficiencies” under the regulations, followed the applicable federal regulations and its

own procedures in requiring corrective action to remediate the deficiencies, and then proposed

removal after noncompliance was not corrected. AOE lacked authority or discretion to waive

enforcement of the corrective action required by the regulations. Therefore, the hearing officer

acted within her discretion in finding that AOE established by a preponderance of the evidence

9
that provider’s noncompliance was not fully and permanently corrected and warranted termination

and disqualification from the program.

¶ 26. Provider argues that the violations were “minor,” relying on an AOE email listing

“common violations,” which included some of provider’s errors. Provider claims that this email

demonstrates that these common errors could not be serious deficiencies. The email was a type of

technical assistance, cautioning centers on common mistakes; it was not an exclusion of these

frequent violations from the definition of serious deficiencies provided by regulation. State

agencies implementing the CACFP must offer technical assistance to centers to help enable

success in meeting program requirements. See 7 C.F.R. § 226.6(m) (requiring state agency to

provide “technical and supervisory assistance to institutions and facilities to facilitate effective

Program operations, monitor progress toward achieving Program goals, and ensure compliance”

with all other relevant federal laws and regulations). As the AOE employee testified, AOE seeks

to “take proactive steps to ensure that [a common issue] doesn’t occur in other places.”

¶ 27. The hearing officer acted within her discretion in affirming AOE’s

recommendation to terminate and disqualify provider. The decision was reasonable and based

upon the largely undisputed factual record. Therefore, we affirm AOE’s decision to terminate and

disqualify provider from the CACFP.

B. Post-Hearing Submissions

¶ 28. Next, provider argues that the hearing officer violated agency procedures by

accepting written documentation from both parties following the close of the administrative

hearing. Provider points to AOE’s serious-deficiency procedures requiring written documentation

to be submitted prior to the administrative review. AOE’s procedures are based on the federal

regulations, which indicate that “[a]ll documentation must be submitted prior to the hearing.” Vt.

Agency of Educ., CACFP Serious Deficiency Procedure, 6,

https://education.vermont.gov/sites/aoe/files/documents/edu-nutrition-cacfp-serious-deficiency-

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procedure.pdf [https://perma.cc/8AVT-L8LE]. In addition, the parties’ hearing notice stated that

“[t]he hearing shall be the final opportunity for the parties to present any evidence or argument.

No further evidence or argument shall be received by the hearing official after the hearing date.”

We conclude that provider did not adequately preserve the question of whether the hearing officer

had discretion to allow post-hearing submissions because provider did not raise the argument in a

timely manner. To the extent it was preserved, we conclude that allowing post-hearing

submissions was within the hearing officer’s discretion because it was not arbitrary or

discriminatory and did not prejudice provider.

¶ 29. On appeal from an administrative decision, this Court does “not address arguments

not properly preserved for appeal.” In re Entergy Nuclear Vermont Yankee, LLC, 2007 VT 103,

¶ 9, 182 Vt. 340, 939 A.2d 504. It is important for parties to raise issues in the original forum in

a timely fashion to give that tribunal an opportunity to rule on the issue. “[A]llowing a party to

wait to raise the error until after the negative verdict encourages that party to sit silent in the face

of claimed error, a policy we have admonished.” Id. (quotation omitted). An objection must be

presented “with specificity and clarity to give the original forum a fair opportunity to rule on it.”

Id. ¶ 10 (quotations omitted).

¶ 30. Here, provider did not sufficiently raise the issue brought on appeal to preserve it

for our review. Several times during the hearing AOE suggested making a written submission in

lieu of oral argument to allow provider more time at the hearing to present its case. At no point

during the hearing did provider object to this alternative; provider assented and used all the time

available for the hearing. After the hearing was over and the time expired, provider objected to

submission of written filings, on the basis that the hearing officer could not accept written materials

from AOE unless provider also had an opportunity to respond. This is not the argument made on

appeal.

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¶ 31. It was not until provider’s post-hearing response to AOE’s filing that provider first

challenged the filing of post-hearing documents on the basis that post-filing submissions

contravened the serious-deficiency process. This was much too late in the proceedings to

adequately present the issue so that the hearing officer had a reasonable opportunity to rule on it.

See Hoffer v. Ancel, 2004 VT 38, ¶ 19, 176 Vt. 630, 852 A.2d 592 (mem.) (holding that argument

presented to trial court in reply to motion was made “too late to preserve it” for appeal). Because

provider did not raise the issue now presented on appeal in a timely manner and with the specificity

and clarity required, it was not preserved for our review.

¶ 32. In any event, even if preserved, we conclude that the hearing officer had discretion

to allow post-hearing filings given that the rule was procedural and not substantive, and provider

was not prejudiced by its waiver. “Generally, administrative agencies must follow their own

regulations until they rescind or amend them.” In re Champlain Parkway SW Discharge Permit,

2021 VT 34, ¶ 12, 214 Vt. 561, 256 A.3d 75 (collecting cases). The U.S. Supreme Court adopted

an exception in American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970),

which allows an agency to waive a procedural rule “adopted for the orderly transaction of

business” if the waiver does not result in “substantial prejudice.” This Court adopted American

Farm Lines as a “sound principle of state administrative law.” Champlain Parkway, 2021 VT 34,

¶ 16. We determined that failing to do so “would force agencies to adhere inflexibly to all their

procedural rules, producing irrational consequences in many cases and resulting injustice” or

leading to “unnecessary administrative inefficiency.” Id.

¶ 33. For the exception to apply, “the agency action must first and foremost be consistent

with governing statutes.” Id. ¶ 17; see In re Stowe Cady Hill Solar, 2018 VT 3, ¶ 21, 206 Vt. 430,

182 A.3d 53 (observing that agency regulations cannot be “applied in a way that exceeds the

statutory mandate under which the regulation was promulgated”). “Second, the rule at issue must

be a procedural rule adopted for the orderly transaction of business to aid the agency in exercising

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its discretion, not one intended to confer important procedural benefits upon individuals.”

Champlain Parkway, 2021 VT 34, ¶ 17 (citing Am. Farm Lines, 397 U.S. at 538-39). “Third, the

agency action must not substantially prejudice a complaining party.” Id. “Fourth, the agency

action cannot constitute a failure to exercise independent discretion mandated by regulation.” Id.

Finally, the agency’s departure from its own policy “cannot rest on bases that are arbitrary,

unreasonable, or discriminatory.” In re Apple Hill Solar LLC, 2019 VT 64, ¶ 25, 211 Vt. 54, 219

A.3d 1295.

¶ 34. The hearing officer’s action to allow post-hearing submissions by both parties

meets the test in American Farm Lines. As to the fourth and fifth factors, the hearing officer

exercised “independent discretion,” Champlain Parkway, 2021 VT 34, ¶ 17 (citing Am. Farm

Lines, 397 U.S. at 538-39), and the discretion was exercised for reasonable, nonarbitrary reasons.

The hearing officer decided to allow the post-hearing submissions for reasons of expediency,

allotting as much time as possible for provider to present its case.

¶ 35. In addition, the hearing officer’s decision was consistent with the enabling federal

regulations, which do not prohibit post-hearing submissions. The regulatory scheme provides that

an appealing institution must be informed of the basis for the proposed action and allowed to

respond with written submissions or to request a hearing. See 7 C.F.R. § 226.6(k)(5)(iv)

(providing that “[a]ny information on which the State agency’s action was based must be available

to the institution”), id. § 226.6(k)(5)(vi) (requiring hearing if requested). Provider was granted

both here. Provider argues that the hearing officer violated federal guidance in the USDA’s

CACFP Serious Deficiencies Handbook. However, the Handbook is not a binding rule or

regulation; it is guidance for state organizations to consider when establishing their own

administrative rules. The USDA explains that state agencies “can . . . use the information in [the

Handbook] to develop internal policies and procedures for their oversight and implementation.”

USDA, Serious Deficiency, Suspension, & Appeals for State Agencies and Sponsoring

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Organizations, Program Handbook, 8, https://www.fns.usda.gov/cacfp/serious-deficiency-

suspension-appeals-state-agencies-and-sponsoring-organizations [https://perma.cc/E96C-2GN9].

¶ 36. Second, the limit on post-hearing memoranda is a “procedural rule” aiding the

agency in exercising its discretion and is not intended to confer “important procedural benefits

upon individuals.” Champlain Parkway, 2021 VT 34, ¶ 17 (citing Am. Farm Lines, 397 U.S. at

538-39). Requiring the parties to submit their materials in advance of the hearing and limiting the

use of post-hearing memoranda keeps the process expedient and allows the review process to

conclude in an efficient manner.2 The limitation is not designed to confer substantive rights on

the parties.

¶ 37. The dissent claims that the rule against post-hearing submissions is substantive and

not subject to waiver because it is meant to ensure that centers have a meaningful opportunity to

respond to AOE materials. Post, ¶ 54. Respectfully, the allowance of post-hearing submissions

had no impact on provider’s ability to respond. Provider had ample opportunity to present its case

and respond to AOE’s materials. In advance of the hearing, provider had the administrative record

that formed the basis of the proposed disqualification and termination. Provider had the entirety

of the hearing to present its case and question AOE employees. The hearing officer allowed post-

hearing submissions by both parties and provider filed its own post-hearing memoranda and also

responded to AOE’s filing. Provider was not deprived of any opportunity to challenge AOE’s

submission. For these reasons, this case differs from those cited by the dissent, in which procedural

rules were not subject to waiver because they secured “a party’s ability to offer a meaningful

response to evidence offered by an opposing party.” Post, ¶ 54. Here, the hearing officer allowed

2
As the hearing officer noted, CACFP regulations provide that a hearing officer must issue
a final decision within sixty days of the agency’s receipt of the request for an administrative
review. 7 C.F.R. § 226.6(k)(5)(ix). Limiting the filing of post-hearing memoranda helps AOE
comply with this requirement.
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both parties to make post-hearing submissions; there was no change to the rules that limited

provider’s ability to respond.

¶ 38. Most importantly, the hearing officer’s decision did not result in “substantial[]

prejudice” to provider. Champlain Parkway, 2021 VT 34, ¶ 17 (citing Am. Farm Lines, 397 U.S.

at 538-39). AOE’s submissions did not contain any new information or claims. It filed a seven-

page “closing argument” and other “supporting documentation.” The closing argument outlined

the factual and procedural background, most of which was not disputed by provider. The

supplemental supporting documentation included AOE’s “Administrative Review Procedure,” the

CACFP 2018-2019 administrative review of provider, and two “Master Lists” of enrollment for

August and September 2023, which originally came from provider. Provider already had access

to each document: the Administrative Review Procedure was available on AOE’s website; the

2018-2019 administrative review was in the administrative record; and the enrollment lists were

provider’s own documents.

¶ 39. AOE’s post-hearing submissions merely allowed it to respond to provider’s

arguments from the hearing, as it was entitled to do under the regulations. See 7 C.F.R.

§ 226.6(k)(5)(vi) (requiring state agency have chance to respond to testimony). The AOE

submissions did not present any information that had not already been made available to both

provider and the hearing officer prior to the hearing. Provider seeks to characterize the post-

hearing submissions as being “replete with new facts, rebuttal testimony, and references to

[CACFP regulations] that were not raised in the . . . proposed termination letter.” However, the

record indicates otherwise. AOE’s closing argument recites the administrative record of provider’s

participation in the CACFP. Notwithstanding provider’s general statements, provider does not

particularly identify new or allegedly incorrect facts. Moreover, the references to the CACFP

regulations are the same as those in the CACFP program agreement and in the various

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correspondence from AOE to provider concerning deficiencies found during administrative

reviews.

¶ 40. On appeal, provider identifies no way in which it was prejudiced by the post-

hearing submission allowance. Provider’s substantive argument was not based in a factual

disagreement. Provider conceded that it did not comply with all the regulations, but asserted that

these shortcomings were too common or minor to amount to serious deficiencies. As explained

above, this legal assertion was incorrect. Although provider broadly objects to the post-hearing

information filed by AOE, it does not identify any factual error that it would seek to challenge at

a new hearing or how any of AOE’s information impacted the hearing officer’s decision. In

adopting the American Farm Lines exception, this Court emphasized that requiring agencies to

strictly adhere to procedural rules without the exception would produce “irrational consequences”

and create “unnecessary administrative inefficiency.” Champlain Parkway, 2021 VT 34, ¶ 16.

Remanding for a new administrative hearing in this case would result in such a circumstance. It

would be a profound waste of administrative and judicial resources to grant provider a new

administrative hearing where it has not shown how this would change the outcome of the case in

any way.3

¶ 41. In sum, the hearing officer allowed post-hearing submissions for a valid procedural

reason and with fairness to both sides. Allowing post-hearing submissions in this instance was not

3
Provider broadly asserts that the hearing officer’s decision to allow post-hearing
submissions violated its due-process rights but does not explain how. Due process requires “that
a recipient have timely and adequate notice detailing the reasons for a proposed termination, and
an effective opportunity to defend by confronting any adverse witnesses and by presenting his own
arguments and evidence.” Goldberg v. Kelly, 397 U.S. 254, 268 (1970). Ultimately, the
“fundamental requisite of due process of law is the opportunity to be heard.” Id. at 267 (quotation
omitted).

Provider had adequate notice of the proposed termination, including identification of the
specific program violations, and was offered significant opportunity to present its side. Provider
took the entirety of the administrative hearing to present its case. Additionally, provider submitted
its own post-hearing documentation and argument. Given the procedurally proper notice and the
multiple opportunities to respond, provider has not demonstrated a deprivation of due process.
16
arbitrary or discriminatory and did not prejudice provider. The hearing officer’s decision thus fell

within the American Farm Lines exception.

Affirmed.

FOR THE COURT:

Associate Justice

¶ 42. COHEN, J., dissenting. The Vermont Agency of Education (AOE) terminated

and disqualified petitioners Butterfly Kisses Child Care Center, Inc., and its owner, Cindy Boyce,

from participation in the federal Child and Adult Care Food Program (CACFP) based on a hearing

officer’s finding that, although there was no evidence of intentional dishonesty or fraud, petitioners

nonetheless failed to fully and permanently correct certain “serious deficiencies” by stringently

satisfying each of the procedural commitments in their corrective-action plan. Ironically, however,

AOE failed to adhere to its own administrative-review procedures in reaching this decision because

the hearing officer summarily waived a rule barring post-hearing submissions. The majority

concludes that petitioners did not preserve their challenge to this ruling, but nonetheless proceeds

to analyze the issue, reasoning—in what I view as dicta—that the agency had discretion to waive

this rule under the exception first articulated by the U.S. Supreme Court in American Farm Lines

v. Black Ball Freight Service, 397 U.S. 532 (1970), and adopted by this Court in In re Champlain

Parkway SW Discharge Permit, 2021 VT 34, 214 Vt. 561, 256 A.3d 75. I would instead conclude

that petitioners’ argument is preserved, and that the Champlain Parkway exception does not apply

because AOE’s bar on post-hearing submissions confers an important procedural benefit on those

facing termination and disqualification from CACFP participation: it secures the fundamental

requirement of due process, which is the right to be heard at a meaningful time and in a meaningful

manner. I therefore respectfully dissent.

17
¶ 43. Deeply rooted principles of administrative law generally bind an agency to its own

rules, policies, and procedures—even where it had no obligation to adopt them in the first instance.

See Columbia Broad. Sys. v. U.S., 326 U.S. 407, 422 (1942); Fed. Defenders of N.Y., Inc. v. Fed.

Bureau of Prisons, 954 F.3d 118, 130 (2d Cir. 2020); Alcaraz v. I.N.S., 384 F.3d 1150, 1162 (9th

Cir. 2004); see also Champlain Parkway, 2021 VT 32, ¶ 12 (collecting cases). This well-settled

proposition “is often called the Accardi principle after the case with which it is most closely

associated, 1954’s United States ex rel. Accardi v. Shaughnessy,” 347 U.S. 260, though it was first

embraced by the U.S. Supreme Court decades earlier in Arizona Grocery Co. v. Atchinson, Topeka

& Santa Fe Railway Co., 284 U.S. 370 (1932). 32 C. Wright & A. Miller, Federal Practice and

Procedure § 8172 (2d ed. 2025).

¶ 44. As this Court recently recognized, “[w]e do not easily deviate” from the Accardi

principle. Champlain Parkway, 2021 VT 34, ¶ 23. In adopting the exception the majority invokes

here, we cautioned that it “is strictly circumscribed by American Farm Lines itself and our

established principles governing agency application of regulations.” Id. ¶ 17; cf. In re Lakatos,

2007 VT 114, ¶ 17, 182 Vt. 487, 939 A.2d 510 (2007) (reasoning that where Board of Dental

Examiners “had plainly committed itself to the process . . . in which respondent would be afforded

an opportunity to comment on the Board’s proposed decision, and respondent plainly relied on

that promise in proceeding with the hearing,” Board was estopped from refusing to comply with

this process). We therefore warned that we will apply the exception to affirm an agency’s waiver

of its own rule only “when an agency scrupulously satisfies” each of the four criteria outlined in

Champlain Parkway. Champlain Parkway, 2021 VT 34, ¶ 23. I believe the justification for such

exacting review was well articulated by the Supreme Court of Arkansas: “To protect due process,

the courts, in matters pertaining to a governmental entity’s observance and implementation of self-

prescribed procedures, must be particularly vigilant and must hold such entities to a strict

18
adherence to both the letter and the spirit of their own rules and regulations.” Smith v. Denton,

895 S.W.2d 550, 555 (Ark. 1995).

¶ 45. These foundational principles inform my preservation analysis. I recognize, of

course, that “[a] party . . . is generally limited on appeal to arguments preserved before the

administrative agency.” Pratt v. Pallito, 2017 VT 22, ¶ 12, 204 Vt. 313, 167 A.3d 320. But the

nature of adversarial proceedings does not lend itself to mechanical application of the preservation

doctrine. In determining whether an argument is preserved, we generally ask whether the agency

had a “fair opportunity to rule” on the issue prior to our review, such that the purpose of the

preservation doctrine is satisfied. Id. ¶ 16 (quotation omitted); see In re Amendment #1 to FY23

Accountable Care Org. Budget Order, 2024 VT 38, ¶ 22, __ Vt. __, 323 A.3d 969 (considering

whether purposes underlying preservation rule were served in determining whether issue was

adequately preserved for review). Similarly, we do not require preservation where the party

claiming error was itself deprived of a fair opportunity to raise the argument below. See, e.g.,

State v. Vuley, 2013 VT 9, ¶ 39, 193 Vt. 622, 70 A.3d 940 (“[A]n argument truncated by the trial

court is normally sufficient to preserve unstated grounds for objection.”). Given the record before

us and the nature of petitioners’ argument, I believe both considerations compel the conclusion

that this issue is adequately preserved.

¶ 46. As the majority indicates, at several points during the hearing, counsel for AOE

suggested filing “a written submission in lieu of oral argument” in order to allow more time for

the presentation of evidence. Ante, ¶ 30 (emphasis added). When the hearing officer turned to the

agency for its closing argument, AOE affirmed that it would file a written submission. Petitioners

did not object and proceeded to use the remaining time for their own closing argument. The

hearing officer subsequently proposed a simultaneous deadline for post-hearing submissions, and

petitioners explained, “I think it would be fair, in light of the fact that the State has heard our

position, that rather than us submitting these documents at the same time, there ought to be a

19
sequence where the State provides its information and we have an [] opportunity to respond.” The

hearing officer flatly rejected this request, stating, “I’m not actually even supposed to, under the

rules as I read them, allow any further documentation following the hearing. I’m doing this as an

accommodation for the shortened time period . . . . there’s not going to be a written submission

and a response period.” Petitioners objected, but the hearing officer maintained her ruling,

explaining that the State had not had any opportunity to present “argument.” When AOE later

submitted its closing argument, however, it was intermingled with what the agency characterized

as “written testimony” and supported by several exhibits that had not been admitted at the hearing.

Petitioners were thus deprived of the opportunity—guaranteed by the agency’s own procedures—

to respond to this testimony and evidence through cross-examination during the evidentiary

hearing. They could not have objected on this basis during the hearing given that AOE had not

disclosed its intention to offer additional testimony and evidence. See Vuley, 2013 VT 9, ¶ 39.

¶ 47. Moreover, in making her ruling, the hearing officer expressly acknowledged that

she was waiving an agency rule. As noted above, it is the administrative agency that must

“scrupulously satisfy” each aspect of the Champlain Parkway test if we are to affirm such a

departure. 2021 VT 34, ¶ 23. This allocation of responsibility is consistent with “ ‘[a] fundamental

norm of administrative procedure’ ” requiring agencies “ ‘to treat like cases alike.’ ” In re Stowe

Cady Hill Solar, LLC, 2018 VT 3, ¶ 21, 206 Vt. 430, 182 A.3d 53 (quoting Westar Energy, Inc.,

v. Fed. Energy Regul. Comm’n, 473 F.3d 1239, 1241 (D.C. Cir. 2007)). Due to this affirmative

obligation, we have held that where an agency is confronted with evidence that its proposed

interpretation of its own regulation conflicts with its past construction of the same rule, the agency

“must either reverse its preliminary decision and adhere to its precedent or, in the alternative,

articulate a legitimate justification to abandon the prior interpretation.” In re McNamer, 2024 VT

50, ¶ 22, __ Vt. __, 325 A.3d 15. Of course, that is not precisely the circumstance presented here.

But the same fundamental principle shaped our decision in Champlain Parkway—indeed, we

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recognized an agency’s obligation to treat like cases alike in articulating the final prong of our test:

“the agency must apply the rule consistently, not arbitrarily, unreasonably, or discriminatorily.”

Champlain Parkway, 2021 VT 34, ¶ 17 (citing Stowe Cady Hill Solar, 2018 VT 3, ¶ 21).

¶ 48. The hearing officer was plainly aware that her contemplated ruling would waive

the bar on post-hearing submissions and that petitioners objected to this decision. See Amendment

#1 to FY23 Accountable Care Org. Budget Order, 2024 VT 38, ¶ 22. Just as evidence of

conflicting precedent obligates an agency, “ ‘as a matter of administrative procedure,’ to identify

a valid reason for departing from established law,” McNamer, 2024 VT 50, ¶ 22 (quoting In re

Apple Hill Solar LLC, 2019 VT 64, ¶ 25, 211 Vt. 54, 219 A.3d 1295)), I believe it was incumbent

on the hearing officer—having recognized that she was departing from an AOE rule over a party’s

objection—to offer a justification for waiver under Champlain Parkway. She had a second

opportunity to do so when petitioners raised the issue again in writing, contending that the decision

to allow post-hearing submissions was “a clear and material violation of the State’s serious

deficiency process” and beyond the scope of her discretion. See State v. Ben-Mont Corp., 163 Vt.

53, 61, 652 A.2d 1004, 1009 (1994) (explaining that issue is preserved for appeal where presented

with specificity and clarity in manner which gives tribunal below fair opportunity to rule on it). In

response to petitioner’s argument, however, the hearing officer declined to reconsider her ruling

and did not offer any basis for her implicit conclusion that she had discretion to do so as a matter

of law. For these reasons, I would hold that the issue is adequately preserved.

¶ 49. This brings me to the merits of petitioners’ argument.4 I write separately because I

cannot agree that AOE has “scrupulously satisfie[d]” the second Champlain Parkway criterion,

4
As noted above, given the majority’s conclusion that this issue was not preserved, I would
characterize its analysis on this point as dicta—“[a]n opinion by a court on a question that is
directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not
essential to the decision and therefore not binding even if it may later be accorded some weight.”
Judicial dictum, Black’s Law Dictionary (12th ed. 2024); see Pepin v. Allstate Ins. Co., 2004 VT
18, ¶ 16, 176 Vt. 307, 848 A.2d 269 (recognizing that “dicta . . . is not binding authority”). It is
21
which requires that the rule at issue “be a procedural rule adopted for the orderly transaction of

business to aid the agency in exercising its discretion, not one intended to confer important

procedural benefits upon individuals.” Champlain Parkway, 2021 VT 34, ¶¶ 17, 23. The majority

reasons that the bar on post-hearing submissions satisfies this requirement for two reasons:

(1) limiting the use of post-hearing memoranda allows the review process to conclude in an

efficient manner and within the applicable timeline; and (2) in this case, the majority believes that

the hearing officer’s decision to waive the rule “had no impact on [petitioners’] ability to respond.”

Ante, ¶¶ 36-37. I do not see that either rationale is consistent with the inquiry required under our

decision in Champlain Parkway.

¶ 50. In my view, the second Champlain Parkway factor calls for us to consider the

primary purpose for which the rule at issue was adopted, not any incidental benefit it affords the

agency in streamlining proceedings before it, or the consequences of an agency’s choice to depart

from it in a given case.5 I therefore believe that the sole question it poses in this case is whether

the bar on post-hearing submissions is intended to confer important procedural benefits on those

facing termination and disqualification from CACFP. My reading of the relevant case law compels

me to answer this question in the affirmative. Considered against the backdrop of precedent, I

cannot agree that the bar on post-hearing submissions is a mere “housekeeping” provision of the

type an agency is free to waive. Sullivan v. United States, 348 U.S. 170, 173 (1954).

¶ 51. In American Farm Lines, a motor carrier applied to the Interstate Commerce

Commission for temporary operating authority to meet urgent transportation needs. The

my hope that in determining how much weight to afford the majority’s reasoning, future courts
will consider the points I set forth below.
5
This is not to say that the considerations identified by the majority have no place in a
Champlain Parkway analysis. In my view, they are appropriately weighed in connection with the
third and fourth factors, which ask whether the agency action substantially prejudiced a
complaining party and whether it constituted a failure to exercise independent discretion mandated
by regulation. Champlain Parkway, 2021 VT 34, ¶ 17. Because I believe that the second criterion
is unmet, however, I would not reach those issues. Id. ¶ 23.
22
Commission’s rules mandated that such applications be supported by specific materials and stated

that requests for temporary authority would be denied absent adequate compliance with the rules.

The Commission granted the application even though it did not strictly comply with the

supporting-material requirements, and a group of protesting carriers challenged this decision on

the basis that the agency failed to adhere to its own rules. In concluding that the Commission’s

waiver of these rules was appropriate, the U.S. Supreme Court explained that they “were not

intended primarily to confer important procedural benefits on individuals in the face of otherwise

unfettered discretion as in Vitarelli v. Seaton.” Am. Farm Lines, 397 U.S. at 538-39 (citing

Vitarelli v. Seaton, 359 U.S. 535 (1959)) (observing that applicant’s “failure . . . to provide these

particular specifics did not prejudice the [protesting] carriers in making precise and informed

objections to [the] application”). Instead, it reasoned, “the rules were promulgated for the purpose

of providing the necessary information for the Commission to reach an informed and equitable

decision on temporary authority applications.” Id. In this circumstance, the agency had discretion

to relax or modify the rule and its decision to do so was “not reviewable except upon a showing of

substantial prejudice to the complaining party.” Id. at 539.

¶ 52. Though the Court said little more in American Farm Lines, its reference to Vitarelli

is particularly instructive here. In that case, it held that where the Department of the Interior

gratuitously promulgated rules affording greater procedural protections to employees dismissed

for security reasons, the Secretary of the Interior “was bound by the regulations he himself had

promulgated for dealing with such cases, even though without such regulations he could have

discharged petitioner summarily.” Vitarelli, 359 U.S. at 539-40. The Court explained:

[I]n proceedings of this nature, in which the ordinary rules of
evidence do not apply, in which matters involving the disclosure of
confidential information are withheld, and where it must be
recognized that counsel is under practical constraints in the making
of objections and in the tactical handling of his case which would
not obtain in a cause being tried in a court of law before trained
judges, scrupulous observance of department procedural safeguards
is clearly of particular importance.
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Id. at 540. It noted that the employee challenging his discharge did not receive the benefits of

these procedural safeguards, including the right to cross-examine the witnesses against him. Id. at

544-45. Because the proceedings did not conform to the applicable departmental regulations, the

Court held the employee’s dismissal illegal and of no effect. Id. at 545.

¶ 53. Our application of the second factor in Champlain Parkway was consonant with the

federal precedent from which it was derived. In that case, the owner of property adjacent to a

roadway project challenged the decision of the Vermont Agency of Natural Resources (ANR) to

grant the project a renewed stormwater-discharge permit, arguing that ANR unlawfully waived a

filing deadline included in its own regulations. Under the relevant regulation, a permittee seeking

renewal was required to file an application for reissuance at least ninety days prior to the permit’s

expiration. The permittee filed an application for renewal twenty-six days before its permit was

set to expire, but ANR accepted the filing as timely and put the renewed permit up for public

comment, “essentially waiving the deadline” imposed by its regulation. Champlain Parkway, 2021

VT 34, ¶ 5. Crucially, in concluding the second American Farm Lines criterion was satisfied, we

explained that the deadline was not “adopted to allow other parties sufficient time to oppose or

otherwise influence the renewal.” Id. ¶ 20. Rather, “[l]ike the protesting carriers in American

Farm Lines,” the adjacent property owner “had an unhindered opportunity to voice its concerns or

opposition to the renewal,” because the public-comment period was the same regardless of when

the application was filed. Id. As we observed, the parties “would have been in the same position

if the renewal application had been filed ninety-one days before expiration as they were when it

was filed twenty-six days before expiration” because “ANR’s substantive review of the permit was

no different in the second instance than in the first.” Id. ¶ 19.

¶ 54. From my perspective, these cases stand for the proposition that procedural rules

securing a party’s ability to offer a meaningful response to evidence offered by an opposing party

are not subject to waiver under the American Farm Lines exception. See, e.g., Bridges v. Wixon,
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326 U.S. 135, 153 (1945) (holding that Immigration and Naturalization Service could not disregard

its own evidentiary rules governing admission of statements in deportation proceedings, “[f]or

these rules are designed as safeguards against essentially unfair procedures”); see also Relation v.

Vt. Parole Bd., 163 Vt. 534, 538, 660 A.2d 318, 320 (1995) (“In the realm of fact-finding, the

function of procedural protections is to minimize the risk of erroneous decisions.”). By ensuring

that those facing termination and disqualification from CACFP have an opportunity to respond to

all testimony and evidence AOE marshals against them in support of that end, the limitation on

post-hearing submissions safeguards “[t]he fundamental requirement of due process,” which is

“the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v.

Eldridge, 424 U.S. 319, 333 (1976) (quotation omitted); see Sec’y, Agency of Nat. Res. v. Upper

Valley Reg’l Landfill Corp., 167 Vt. 228, 234-35, 705 A.2d 1001, 1005 (1997) (“A fair trial before

an impartial decisionmaker is a basic requirement of due process, applicable to administrative

agencies as well as to the courts.”); see also Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (“In

almost every setting where important decisions turn on questions of fact, due process requires an

opportunity to confront and cross-examine adverse witnesses.”). To be sure, the rule serves an

ancillary purpose in helping to facilitate the timely resolution of such proceedings. But the same

can be said of almost any procedural rule, which is why I believe Champlain Parkway calls for the

agency—and, on appeal, this Court—to consider instead whether the rule was “intended to confer

important procedural benefits upon individuals.” 2021 VT 34, ¶ 17.

¶ 55. The regulatory framework at issue here, which offers an almost vanishingly narrow

opportunity for review, only heightens the importance of this procedural benefit. See Lopez v.

Fed. Aviation Admin., 318 F.3d 242, 247 (D.C. Cir. 2003) (explaining that distinctions between

procedural rules benefitting agency and those benefitting individual “are particularly visible in the

employment context, where this court has long recognized that, contrary to the type of internal

regulations in American Farm Lines, agencies cannot ‘relax or modify’ regulations that provide

25
the only safeguard individuals have against unlimited agency discretion in hiring and

termination”). The purpose of CACFP is “to provide aid to child . . . participants and family or

group day care homes for provision of nutritious foods that contribute to the wellness, healthy

growth, and development of young children.” 7 C.F.R. § 226.1. AOE is responsible for

administering the program in Vermont, facilitating its expansion in low-income and rural areas

like the ones petitioners explained that they serve, and ensuring effective operation of the program

by participating institutions. Id. §§ 226.3(b), 226.6(a). As the hearing officer acknowledged in

her decision, the U.S. Department of Agriculture explained that its serious-deficiency process

“offers a systematic way for State agencies to take actions allowing institutions to correct serious

Program problems and ensures due process.” USDA, Serious Deficiency, Suspension, & Appeals

for State Agencies and Sponsoring Organizations, Program Handbook, 10, https://fns-prod.

azureedge.us/sites/default/files/resource-files/CACFP_Serious_Deficiency_Handbook. pdf

[https://perma.cc/C83M-Z5F2] (emphasis added).

¶ 56. The federal regulations, however, expressly prohibit state agencies from offering

administrative review of certain actions in connection with the serious-deficiency process,

including: “[a] determination that an institution is seriously deficient,” “[a] determination by the

State agency that the corrective action taken by an institution or by a responsible principal or

individual does not completely and permanently correct a serious deficiency,” or

“[d]isqualification of an institution or a responsible principal or responsible individual, and the

subsequent placement on the State agency list and the National disqualified list.” 7 C.F.R.

§ 226.6(k)(3)(ii)-(iv). Though state agencies must offer administrative review for notices of

proposed termination and disqualification, see id. § 226.6(k)(2)(iii)-(iv), the regulations provide

that “[t]he determination made by the administrative review official is the final administrative

determination to be afforded the institution and the responsible principals and responsible

individuals,” see id. § 226.6(k)(5)(x). In my view, if due process is to be secured through these

26
limited mechanisms of review, AOE must scrupulously adhere to its own procedural

commitments.

¶ 57. As the U.S. Supreme Court forcefully stated in Morton v. Ruiz, “[w]here the rights

of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is

so even where the internal procedures are possibly more rigorous than otherwise would be

required.” 415 U.S. 199, 235 (1974). Though AOE was not obligated to do so, it chose to adopt

an internal procedure limiting post-hearing submissions, thereby conferring “important procedural

benefits” on those appearing before it. Champlain Parkway, 2021 VT 34, ¶ 17. I believe that those

benefits may not be so lightly withdrawn, and I fear that eliding consideration of those benefits

risks applying the American Farm Lines exception in a manner that swallows the rule. I would

conclude that the hearing officer lacked discretion to waive the rule and reverse and remand for a

fresh hearing. See, e.g., Accardi, 347 U.S. at 268 (1954) (concluding that Attorney General

violated own rule in denying application for discretionary suspension of deportation, reversing for

new hearing, and noting that while petitioner might not succeed on merits, “at least he will have

been afforded that due process required by the regulations in such proceedings”); Picca v.

Mukasey, 512 F.3d 75, 78-79 (2d Cir. 2008) (holding that where agency procedure “concerns

fundamental notions of fair play underlying the concept of due process,” remand is warranted

where a petitioner shows that the rule at issue was for his benefit and the agency failed to adhere

to it, and no showing of prejudice is required (quotation omitted)). Therefore, I respectfully

dissent.

¶ 58. I am authorized to state that Chief Justice Reiber joins this dissent.

Associate Justice

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