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March 18, 2013

Section Sponsored ABA Policies

Section Sponsored ABA Policies

The following is a list of American Bar Association policies sponsored by the Section of Administrative Law and Regulatory Practice as of 2010.

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ACUS Assistance to Foreign Countries. Support legislation, which would authorize ACUS to Provide assistance in response to requests relating to the improvements of administrative procedures in foreign countries. 11/91

ACUS Report on the Federal Administrative Judiciary. Urge that no action be taken by the Administrative Conference of the United States on the recommendations made in the draft report on the federal administrative judiciary until the ABA has had an opportunity to present its views, and urge that OPM reopen the register to new applicants for ALJ positions within 30 days. 11/92

Administrative Appeal. Oppose legislation that would not provide for appeal to an independent body for all persons subject to administrative orders of exclusion or deportation or to denial of asylum claims. 2/83

Administrative Conference of the U.S. Support retaining the public membership of the ACUS; support the reauthorization of ACUS and funding sufficient to permit ACUS to continue its role as the government's coordinator of administrative procedural reform. 2/89; 11/91

Administrative Dispute Resolution Act and Negotiated Rulemaking Act. Urge reauthorization of both on a permanent basis and urge revision to provisions that inhibit their wider use to resolve environmental matters. 2/95

Administrative Law Judges. Support legislation that would require administrative law judges for immigration proceedings to be appointed pursuant to the Administrative Procedure Act. 2/83

Administrative Law Judges -- Compensation. Support establishment of a pay schedule for ALJs separate from other career civil servants. 4/83

Urge states and territories to review compensation of ALJs to determine whether their compensation is commensurate with their functions. (98A104). 8/98

Administrative Law Judges Performance Evaluation and Complaints By And Against ALJs. Support legislation to create a system of periodic performance evaluation outside the employing agency on the basis of peer review; urge each agency to develop a system for receiving and evaluating complaints or allegations of misconduct by an ALJ or from an ALJ who alleges unlawful agency infringement of his or her decisional independence. 8/94

Administrative Law Judges: Recruitment & Selection. Recommend that OPM or Congress, as necessary, eliminate Veterans' preference in the hiring of ALJs; permit the employing agency to select anyone from the top ten available applicants in register; ensure that the OPM Office of Administrative Law Judge has sufficient stature, leadership and resources. 8/76; 8/94

Administrative Procedure Act. Recommend that administrative agencies implement the right to petition for rulemaking. Secured by Section_553(e) of the APA, and other applicable laws. 2/88

Administrative Procedure Act Amendments. Support a package of APA amendments relating to definition of "rule ," appeals boards, uniform rules, subpoena power, judicial review of agency proceedings, compulsory process, sovereign immunity, ex parte communications, and simplification of the form of proceeding (' 703). 8/70; 2/81

Administrative Subpoenas. Urge Congress to oppose legislation granting the FBI authority to issue administrative subpoenas. 2/91

Agency Adjudication . The ABA urges Congress, when it considers enactment of legislation relating to new or existing programs that involve agency adjudications with an opportunity of a hearing, to consider and determine expressly within the relevant legislation whether the hearing should be subject to the requirements of the APA in 5 USC 554, 556, and 557, including the presiding officer protections, ex parte prohibitions, record-based decision-making, and other procedural safeguards . 07/00

Anti-Drug Abuse Act. Recommend that Congress reconsider Section 6486 of the Anti-Drug Abuse Amendments Act of 1988 for inconsistencies and ambiguities in regard to the availability of formal administrative hearings, standards of proof, right to counsel and if Congress wishes to retain civil penalties for personal use and possession of controlled substances, that provisions of Section 6486 be revised. 2/90

Attorney’s/General Practice. Support proposals to amend the Equal Access to Justice Act 8/82

Attorneys' Fee Shifting. Support legislation to permit courts and administrative agencies to award attorney’s fees to a private party prevailing against government where public benefit results and economic interests are small. 2/77

Bumpers Amendment: Judicial Review. Support legislation strengthening judicial review of federal agency action. 8/79

Citizenship Certificates. Urge that the Immigration and Nationality Act be amended to provide for a 10-year statute of limitations within which proceedings must be instituted for revocation or cancellation of citizenship certificates. 2/68

Competitive Considerations. Support increasing the role of competitive consideration in federal regulatory agency proceedings. 8/83

Consular Visa Adjudication and Review. See entry under Immigration Law.

Corps of Administrative Law Judges. Support the enactment of legislation to enhance the judicial independence and efficiency of federal administrative law judges through the establishment of a government-wide corps of ALJs. 8/88

Courts-Martial Procedures. Urge that there be public notice and opportunity for comment and analysis as with amendments to APA and Federal Register Act. 2/95

Urge that process by which rules of procedure and evidence at courts-martial are developed and adopted be amended to conform to the procedural model followed in adopting other federal court rules. 2/97

Debt Collection within Department of Veterans Affairs. Urge the VA to administer its debt collection and forfeiture provisions so that veterans can hire attorneys without regard to attorney fee limitations in 38 U.S.C. 3404. 8/89

Deportation and Exclusion Proceedings. Support applicability of Administrative Procedure Act to such proceedings. 2/68

Devolution of Benefit Programs to States. Support application of existing ABA policies regarding federal benefit programs to states, territories and localities where primary control and/or funding for such programs is transferred from the federal government to those jurisdictions. 2/97

Dissemination of Information in Electronic Form. Urge federal and state agencies to adopt certain principles to govern the dissemination of information in electronic form, recognizing the appropriateness of affirmative government programs of electronic dissemination, while also recognizing the importance of a diversity of information sources. 8/91

Environment/ Natural Resources Legal Reform. Recommend distribution of the report of the Special Committee on Environmental Law entitled "Development and the Environment: Legal Reform to Facilitate Industrial Site Selection" to governmental agencies and legislative bodies for study and consideration. 8/74

Executive Oversight. Support principles regarding executive oversight of federal Agency rule making, in particular, the implementation of Executive Orders 12291 and 12498. 2/86

Executive Privilege. Urge Congress and the President to adopt certain outlined procedures to facilitate the resolution of disputes between them over executive privilege. 8/87

Ex Parte Communications in Rulemaking Proceedings. Support legislation prohibiting such communications between private parties and government personnel. 2/59

See also entries under Congress.

Federal Agency Web Pages . Urges the Administration to promote best practices for federal agency web pages and to facilitate the ease and predictability of citizen access to desired information by supporting: 1) a centralized office to encourage and monitor best practices relating to agency Internet use; and 2) modernization of computer systems used for public and internal access to government information. 8/01

Federal Salary Act. Urge legislation revising the legislative veto provision in the Act invalidated by the Supreme Court in Chadha. 12/84

Federal Security Clearances. Support the establishment of standards and procedures for the granting, denial, or revocation of security clearances for all applicants or employees of the federal government or its contractors. 8/89

Fee Limitations on Federal Administrative Proceedings. Support removal of all arbitrary or unreasonable statutory or administratively imposed limits on the award or payment of attorneys’ fees. Recommend series of factors to be considered by agencies in awarding attorneys’ fees. 8/76

Foreign Service Grievance Procedure. Support legislation giving all Foreign Service employees the right to a grievance hearing before an independent board. 8/72

Franchise and Business Opportunities Act. Codifies minimum standards of conduct in franchise and business opportunity relationships and addresses franchise sales practices and business opportunities sold on the strength of representation of near-certain profitability. Approved 2/88

Freedom of Information. Support amendments to FOIA which would (1) balance more carefully interests of private and public parties; (2) provide increased protection for financial, commercial and business information; (3) define the term "agency record"; (4) strengthen or create exemptions pertaining to national security and intelligence, law enforcement rules and manuals, and security criminal investigations; and (5) address several other matters. 8/74; 2/82; 2/83; 8/83; 2/84

Freedom of Information Act and HHS. Urge the Department of Health and Human Services to comply with the mandate of the Freedom of Information Act in releasing information with regard to Medicare and Medicaid decisions. 2/89

Government Ethics. Support the development of certain comprehensive guidelines outlining appropriate conduct for government officials in their dealings with private parties. Endorse integrated approach to the regulation of ethics in government service set forth in the Report of the Committee on Government Standards entitled “KEEPING FAITH: Government Ethics and Government Ethics Regulation” (Spring 1993) as a suggested approach for the framing of such regulation. 8/93

Governmental Intervention in the Economy. Endorse the principle that in lieu of governmental intervention, reliance be placed upon the competitive market as regulator supported by antitrust laws; support several enumerated analytical principles to avoid unnecessary regulation. 2/79

Government Lawyer Participation. Opposes proposed limitations and restrictions upon participation in professional associations of employees of the Executive Branch of the United States Government such as those set forth in the proposed rule 5 CFR §2635.806 as published by the Office of Government Ethics in the Federal Register on July 23, 1991.

Harmonization . Recommends that the President and agencies take a series of procedural steps that seek to ensure effective public participation in significant agency efforts to harmonize domestic and foreign regulations through international negotiations that may require new regulations or the amendment of existing regulations. 8/01

Health Care Financing Administration (HCFA). Urge that HCFA establish more comprehensive rules of its administrative proceedings and publish in the Federal Register all of its interpretive and procedural guidelines used in the performance of its enforcement functions. 2/89

INS Backlogs . Support a series of proposals to reduce excessive delays in INS processing of applications. 8/76

Judicial Compensation – Federal and State . Urge that the salary levels of federal and state judges be reviewed on a regular periodic basis and adjusted to ensure that judicial salaries are not diminished by increases in cost of living. 8/80; 2/94

Judicial Review Availability. Oppose legislation to limit availability and scope of judicial review of administrative decisions regarding reopening and reconsideration of exclusion or deportation proceedings or asylum determinations or constitutional and statutory writs of habeas corpus. Oppose legislation to limit to less than 60 days the time within which petitions for review must be filed. 2/83

Judicial Review of Agency Actions or Orders. Recommend guidelines for courts to use when deciding whether an agency’s rule or order that is being remanded should be vacated pending the remand. 8/97

Judicial Review of Final Orders of Exclusion. Support legislation creating jurisdiction for the judicial review of all final orders. 8/74

Judicial Review for Military Administrative Actions. Urge establishment of a centralized system of judicial review for military administrative discharges of other administrative actions affecting the rights of service members. 2/93

Legal Services within Military Departments . Support suspension of implementation of 3/3/92 Department of Defense (DOD) memorandum regarding allocation of responsibility for delivery of legal services within the military departments of DOD until careful public study of the legality and desirability of such realignment has been made. 8/92

Management of Administrative Agencies. Urge agencies to reduce delay and improve management by making greater use of informal rulemaking, agency delegation of final authority to presiding officers and staff appeal boards, limits on oral argument, and certain management procedures subject to an outside audit. 8/78

Medicare Procedures, Reimbursements. See entry under Health/Mental Health.

Mixed Case Appeals. Support amendment of Title 5, '7702, which establishes a special panel to adjudicate mixed cases involving the EEOC and the Merit Systems Protection Board so that such decisions will be rendered in a timely fashion. 8/89 (Sponsored by Labor and Employment Law)

Modified Administrative Procedure. Support an amendment to the APA to provide a category of modified procedure in cases now heard on the record for the purpose of determining whether a formal trial-type hearing is necessary. 8/78

Occupational Safety and Health Administration Rulemaking Procedures. Recommend to OSHA that it establish a procedure for systematically setting priorities to promulgate standards regulating health and safety and that OSHA and Congress make extensive procedural changes to assist OSHA in fulfilling its statutory mandate. 8/88

Ombudsman. Recommend that the federal government experiment with the establishment of ombudsman in specified agencies for limited areas and for limited phases of federal activity. 2/69; 7/71

Supports the greater use of "ombuds" to receive, review and resolve complaints involving public or private entities and endorses the Standards for the Establishment and Operation of Ombuds Offices dated August 2001. 8/01

Plain Language . Urges agencies to use plain language in writing regulations, as a means of promoting the understanding of legal obligations. 8/99

Preemption of State Regulations. Recommend that Congress address foreseeable preemption issues clearly and explicitly when it enacts a statute affecting regulation of an area of conduct. 8/88

Public Land Policies. Support a series of principles in this area, including continued federal ownership of public lands in all by exceptional cases, coordination of responsibility and comprehensive planning in cooperation with state and local governments, permission of the maximum number of compatible uses of public lands, security of investment for users of public land, and adequate environmental protection and administrative procedures. 7/71

Public Participation. Support the principles of the payment of attorneys' fees and costs by the government in administrative proceedings and the judicial review of such proceedings considered being in the public interest. 2/77; 2/78 (Sponsored by Special Committee on Public Interest Practice)

Recommends that the President and agencies take a series of procedural steps to seek more effective public participation in significant agency information dissemination efforts intended to promote public policy goals. 8/01

Public Participation in Environmental Agreements. Urge that public participation provisions of all levels of environmental law and international environmental agreements recognize the principle that public should be involved in environmental decision-making to assure that enforcement of environmental laws are fair, efficient and credible. 2/95

Regulatory Reform. Support and oppose numerous amendments to the Administrative Procedure Act and other statutes to decrease federal regulation, streamline and simplify regulatory procedures, and to provide for improved coordination among federal agencies and increased public and private oversight of regulatory action. 2/79; 6/79; 8/80

Regulatory Review Procedures for Proposed Rules. Urge the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget to amend its 1986 regulatory review procedures to limit delays and to explain inconsistencies between agency rules and presidential policies. 2/90

Release of Net Worth Information. Oppose the automatic release of net worth information in conjunction with fee award applications under the Equal Access to Justice Act; support certain procedural protections that provide those who have filed such information the opportunity to keep it confidential. 2/83

Representation of Regulated Clients. Support federal legislation to amend the Federal Deposit Insurance Act to (1) prevent federal banking agencies from using their cease-and-desist enforcement powers to secure asset preservation orders without having prior recourse to court: (2) to clarify that they are not authorized to use their power to issue cease-and-desist orders as a means of securing money damages relief ordinarily only available through litigation; and (3) to urge federal banking agencies to adopt fair notice and comment procedures when formulating new policies regarding professional liability of lawyers. Oppose certain federal banking agencies’ interpretations of the Model Rules of Professional Conduct. 8/93

Retroactive Legislation and Rules. Retroactive legislation and rules imposing new legal duties and liabilities should be avoided. Federal agencies should act retroactively only when the need clearly outweighs the cost and is otherwise fair. This resolution does not address in any way the Civil Rights statutes, including the Civil Rights Act of 1991. 2/92

Review of Proposed Regulatory Action. Support issuance of executive order directing federal agencies to prepare a regulatory analysis and inter-agency review of the impact that important proposed regulatory actions would have on the achievement of all relevant statutory goals. 8/78

Review of Existing Regulations. Urge that certain principles guide the review of existing regulations by federal administrative agencies including a commitment to periodic review, congressional requirement for review of programs and commensurate funding, etc. 8/95

Recommend legislative and non-legislative changes in process for Congressional review of agency regulations. 8/97

Right to Counsel. Oppose legislation that would limit the rights of persons subject to exclusion, deportation, or asylum proceedings to retain counsel. 2/83

Risk Assessment . Recommends that any formal requirement, promulgated by Congress (in legislation), the President (in executive orders), or an agency head (in directives or rules), that agencies of the Federal Government undertake formal risk assessments in advance of regulatory action concerning health and safety issues consistent with certain principles. 8/99

Rulemaking Analyses. Recommend that federal agencies comply with certain guidelines concerning rulemaking analyses required by Executive Order Nos. 12291, 12606, 12612 and 12630; the Paperwork Reduction Act; the Regulatory Flexibility Act; the National Environmental Policy Act; and other statutes or executive orders requiring the preparation of similar impact or assessment analyses. 8/90

Rulemaking Authority. Recommend that all federal agencies with rulemaking authority review the causes of delay in rulemaking and to the extent feasible and practicable that they take recommended steps to improve their procedures for considering and adopting rules. 2/89

Rulemaking Impact Analyses . Urge the President and Congress to: exercise restraint in the number of rulemaking impact analyses; assess the usefulness of existing and planned analyses; and ensure agencies' adherence to recommendations of the ABA and the Administrative Conference of the U.S. (ACUS) pertaining to such impact analyses requirements. 2/92

Rulemaking Oversight. Recommend that any government entity designated by the president to oversee the rulemaking process should: (1) issue a written explanation whenever it returns a rule with a change; (2) reveal any communications with Congress or non-governmental people pertaining to the rule; and (3) regularly publish a list of all proposed or final rules for which review was concluded. 2/93

Rulemaking Procedures for Agencies Dealing with Antitrust. Support in principle that the Department of Justice and the Federal Trade Commission should follow the informal rulemaking procedures prescribed by the Administrative Procedure Act when issuing, amending, or repealing interpretative rules or statements of general policy concerning antitrust law enforcement. 2/88

Rulemaking Procedures for Non-Legislative Rules. Recommend that an opportunity be given to the public to comment on non-legislative rules that an agency plans to adopt. If an agency proposes to apply a non-legislative rule in a proceeding, the parties must have an opportunity to challenge the rule. If an agency proposes to depart from the policy of a non-legislative rule, and a party reasonably relied upon it, the agency must explain this departure, and the party may request relief. 8/89; 8/93

Rulemaking Versus Adjudication. Support an agency's right to announce new policies through an adjudicative proceeding, provided that it not be allowed to treat administrative decisions precisely as if they were rules; when feasible, however, an agency should use rulemaking rather than adjudication for large-scale changes. 2/85

Rules of Evidence. Encourage federal agencies to examine whether rules of evidence patterned after the Federal Rules of Evidence should be used in administrative adjudications. 2/92

SEC Standards of Conduct. Urge Securities and Exchange Commission to refrain from adopting proposed standards of conduct constituting unethical practice by lawyers before the commission. 11/81. See also Discipline of Lawyers.

Sentencing Commission: Rules of Practice. Recommend that the U.S. Sentencing Commission adopt and publish internal rules of practice and procedure including those used by other agencies to invite public participation, etc. 8/95 See related entries, Criminal Law & Procedure.

Self Regulation of Congressional Ethics. Urge each House of Congress in the performance of its self-disciplinary functions, to structure the enforcement process fairly, and to protect the rights of respondents. 2/96

Social Security Act Amendments of 1986. Support legislation to postpone to January 1986 the effective date of Section 101(c) of the Social Security Act Amendments of 1986. 6/83

Social Security Administration Nonacquiescence. Urge SSA to observe in all stages of administrative proceedings applicable court of appeals decisions; urge Congress to enact legislation to provide that the SSA cease its policy of nonacquiescence and that such legislation incorporates specified principles. 8/85, 8/89, 2/90

Social Security Court. Oppose enactment of legislation to create an Article I Social Security Court. 8/86

SSA Administrative Processes. Support efforts to improve the administrative process used by the Social Security Administration in accordance with various principles recommended by the Symposium on Federal Disability Benefit Programs. 8/86

Support improvements in the fairness timeliness and efficiency of initial decision-making in Social Security disability claims. 8/91

Social Security Benefits. Oppose legislation cutting social security taxes and returning to the "pay-as-you- go" system. 8/90

Social Security Benefits - Earning Sharing Supports efforts to correct inequities in the present distribution of Social Security benefits as they affect two wage earner couples, widows and widowers, divorced persons and single elderly men and women. 2/89

Social Security Benefits for Widows, Divorced Persons and Remarried Spouses. Urge amendments to SSA to allow working widows to receive delayed retirement credits and their widow benefits and to eliminate the restriction to require a divorced person over 62 to wait two (2) years after divorce to receive benefits if former spouse is still working. 8/95

Urge Congress to amend the Social Security Act whereby remarriage at age 55 or older shall not prevent a divorced, surviving spouse, or divorced surviving spouse from collecting benefits based upon his or her former spouse=s earnings record. 2/96

Social Security Disability Appeals. Support enumerated reforms in social security disability adjudication process to eliminate the backlog threatening the ability of SSA law judges to assure due process. 8/95

Social Security Disability Benefits for Widows and Widowers. Support elimination of the restriction in the Social Security Act which permits widows and widowers to qualify for disability benefits based on their deceased spouses' earnings only within the first seven years after the spouses' death. Modify the age range of qualified widows and widowers under this section to age 40-49. 8/93 (Sponsored by Individual Rights and Responsibility Section, Senior Lawyers Division and Commission on Legal Problems of the Elderly)

Social Security Disability Claimants. Access to Justice and Attorney Fees. Support continuation of effective representation and access to justice for Social Security disability claimants; support the current system by which the SSA administers payment of attorney fees in disability insurance cases . Oppose efforts to impose a $2,500 fee limitation in administrative proceedings. 2/96 (Sponsored by Commission on Legal Problems of the Elderly and Senior Lawyers Division)

State Administrative Procedures : Urge every state that does not have such a law to adopt an administrative procedure act implementing due process principles. 8/77

Subpoenas . Believe that disclosure to Congress of confidential communications between agency administrators and their personal staffs risks jeopardizing the quality and independence of administrative decisions, and therefore recommend Congress not subpoena from administrative agencies any documents embodying such communications except on the basis of a demonstrated specific need. 8/88

Sunshine Act. Support legislation opening meetings of federal agencies and congressional committees to the public, within a proposed set of limitations. 8/75

Recommend specific guidelines to interpret the term, "meetings" under the Act. 2/87

Supplemental Social Security Income Program. Support in principle the recommendations of the final report of the SSI Modernization Project, to improve access to the SSI program for all eligible persons, to ensure that claims are processed fairly and effectively and to eliminate rules and procedures that are unreasonable, demeaning and harsh. 8/84; 2/94 (2/94 Sponsored by Commission on Legal Problems of the Elderly)

Sunset Legislation. Support a limited form of sunset legislation, provided several considerations are met, which would require periodic review by Congress of federal regulatory agencies. 2/78 (Sponsored by Commission on Law and the Economy)

Unemployment Compensation System. Recommend that a pilot program be established to determine whether improved access to justice can be established in the unemployment compensation system in the United States. 8/89

Use of Certain APA Powers. Urge agencies to encourage presiding officers to use APA powers to: require written rather than oral proceedings where appropriate; personally examine witnesses; set time limits for a proceeding; make increased use of official notice; and; rule on summary judgment motions. 8/78 (Sponsored by Commission on Law and the Economy)

Veterans Administration. Support legislation to empower the federal courts to review decisions of the VA. 8/75

Veterans Claims. Urges Congress to expand the jurisdiction of the United States Court of Appeals for the Federal Circuit to include review of all purely legal issues decided b y the United States Court of Appeals for Veterans Claims, formerly the Court of Veterans Appeals. 8/00

Vendors on Military Installations . Support the establishment of published standards and procedures to govern military commanders in barring vendors and other individuals from military installations in the U.S. 8/92

Wage-Price Controls. Support principles concerning public notice and participation and administrative due process in any program of voluntary or mandatory federal controls. 2/75

Wards Cove Exemption. Supports enactment of legislation to repeal the Wards Cove exemption (Section 402(b)) of the Civil Rights Act of 1991. 2/93

Welfare and Family Caps. See entry under Family Law. 8/95

Welfare Funding. Urge adequate funding of welfare programs; oppose cuts in funding unless justified by careful study and analysis with regard for their long and short-term impact on individuals and budgets, and oppose linking public assistance to requirements which infringe on the right to privacy and other individual freedoms. 8/92 See related entry under Family Law. (Sponsored by Individual Rights and Responsibility Section and Commission on Legal Problems of the Elderly)

Witness Fees. Support legislation to allow a prevailing party in a case covered by a Federal fee-shifting statute to recover the costs of reasonable expert witness fees. 8/91

Workers Compensation. Urge states to set up non-profit charitable organizations to establish college funds for claimants’ children. 8/94

Workers Compensation Adjudications. Recommend that the decisions of adjudicators on formal workers’ compensation hearings, state findings, conclusions and the basis for all material issues of fact, law or discretion presented on the record, including the adjudicator’s reasons for accepting expert testimony. Recommend that state administrative and judicial appellate reviewers of findings of fact made in formal workers’ compensation proceedings examine the record under a minimum standard of "Substantial Evidence upon the whole Record. " 2/93; 2/94