This column provides summaries of the 81st Plenary Session of the Administrative Conference of the United States (ACUS), a recent ACUS report on nationwide injunctions, and current ACUS projects in development. For any projects described below, please feel free to contact the listed staff member with any questions or implementation-related suggestions.
ACUS held its 81st Plenary Session on June 13, 2024. The event began with a keynote address by ACUS Senior Fellow Eugene Scalia. Mr. Scalia is a partner at Gibson, Dunn & Crutcher LLP, and he previously served as U.S. Secretary of Labor from September 2019 to January 2021. Mr. Scalia discussed the importance of ACUS as a forum for the open exchange of differing viewpoints, and he provided his views on the role of political appointees in administrative adjudication, the value of public participation in the notice-and-comment rulemaking process, and the steps agencies and courts should take to ensure that agency guidance does not improperly bind the public.
ACUS also adopted four recommendations at the Plenary Session to improve efficiency, fairness, transparency, and public participation in government programs.
Recommendation 2024-1, Choice of Forum for Judicial Review of Agency Rules. This recommendation provides that, when drafting a statute that provides for judicial review of agency rules, Congress ordinarily should provide that rules promulgated using notice-and-comment procedures are subject to direct review by a court of appeals. The recommendation also identifies common statutory ambiguities that Congress should avoid in drafting new or amending existing statutes that provide for judicial review of agency actions. This recommendation was informed by a research report completed by Professor Joseph W. Mead. (Kazia Nowacki, [email protected]).
Recommendation 2024-2, Individualized Guidance. This recommendation provides best practices to promote fairness, accuracy, and efficiency in agency processes for providing written guidance in response to requests for advice from members of the public. It addresses processes for members of the public to request individualized guidance from agencies; agency practices for drafting responses to such requests, including the personnel involved and mechanisms to ensure accuracy and consistency; the public availability of individualized guidance documents; and policies regarding whether and when agencies should allow members of the public to rely on individualized guidance. This recommendation was informed by a research report completed by Professor Shalini Bhargava Ray. (Benjamin Birkhill, [email protected]).
Recommendation 2024-3, Senate-Confirmed Officials and Administrative Adjudication. This recommendation examines, as a legal and practical matter, whether, when, how, and how often agency heads and other Senate-confirmed officials participate in the adjudication of cases across a range of federal administrative programs. For agencies that have decided to provide or are considering providing participation for Senate-confirmed officials in the adjudication of individual cases, the recommendation identifies principles and practicalities that agencies should consider in structuring such participation and provides best practices for developing and communicating relevant policies regarding such participation. This recommendation was informed by a research report completed by ACUS Deputy Research Director Matthew A. Gluth, ACUS Research Director Jeremy S. Graboyes, and ACUS Attorney Advisor Jennifer L. Selin. (Matthew A. Gluth, [email protected]).
Recommendation 2024-4, Agency Management of Congressional Constituent Service Inquiries. This recommendation identifies best practices for agencies to promote quality, efficiency, and timeliness in their procedures for managing and responding to congressional constituent service inquiries. Among other topics, it addresses the proper scope, content, internal dissemination, and public availability of such procedures; how agencies can use technology to streamline their management and resolution of constituent service inquiries; how agencies should adopt and evaluate constituent service-specific performance goals; and strategies for improving communication with congressional offices and staff. This recommendation was informed by a research report completed by Professor Sean J. Kealy. (Conrad M.H. Dryland, [email protected]).
Following adoption of the recommendations, ACUS’s Working Group on Model Rules of Representative Conduct presented their completed draft of the model rules, the result of 18 months of debate and drafting, and requested comments from members of the Assembly. ACUS is publishing the final draft of the model rules in late summer 2024.
On June 4, 2024, ACUS released a new report analyzing how nationwide injunctions and universal vacaturs have impacted the administration of federal regulatory programs. The report—by Professors Zachary Clopton, Mila Sohoni, and Jed Stiglitz—examines how frequently courts issue nationwide injunctions and universal vacaturs and how agency officials understand, implement, and respond to them.
While public debate has focused on how nationwide injunctions and universal vacaturs affect the federal judicial system, less is known about how these remedies affect federal agencies’ ability to administer regulatory programs. Based on engagement with officials at more than a dozen agencies, Professors Clopton, Sohoni, and Stiglitz found that “[a]gency officials reported few administrative difficulties in complying with nationwide injunctions or universal vacaturs.” While “[u]niversal relief may be problematic for other reasons,” they concluded that “the difficulty of compliance is not a major reason to consider reform.”
The researchers did find, however, that agency officials “voice[d] frustration … with vaguely written orders that were challenging to comply with because they were hard to understand.”
The picture that emerged from this study was “one of agency officials pursuing their statutory objectives within the bounds of what they see to be the best interpretation of adverse court orders.” Based on the interviews they conducted, the researchers found that agencies have responded to the increased prevalence of universal relief by focusing on crafting their rules to survive legal challenges.
ACUS is currently undertaking other studies, including those listed below. Brief descriptions of these projects follow, including contact information for the ACUS attorney serving as staff counsel for the project. Projects marked with an asterisk are directed toward the development of recommendations for consideration and adoption by the Assembly at future Plenary Sessions.
*Agency Investigative Procedures. This project surveys regulatory agencies’ investigative procedures and recommends best practices to promote accuracy, efficiency, and fairness in agency investigations of specific regulated entities. Among other topics, the project addresses agency practices for the initiation of investigations; the exchange of evidence and arguments between the agency and the targets of investigations; the issuance of subpoenas and warrants; standards by which enforcement personnel consider evidence; public and nonpublic proceedings; negotiation and settlement procedures; standards by which enforcement personnel consider whether to terminate an investigation, negotiate with the target of an investigation, or pursue an enforcement action in an administrative or judicial tribunal; and the preparation and communication of recommendations that agencies take no action, settle, or issue a complaint. (Kazia Nowacki, [email protected]).
Agency Procedural Rules. This project will consist of a large-scale study of agency rules of practice and procedure. Among other topics, it will identify sources and definitions of procedural rules and subjects commonly addressed in them, and address agency discretionary authority in promulgating such rules, including the Administrative Procedure Act’s exemption from notice-and-comment rulemaking. This project will also explore agencies’ practices for seeking public engagement on proposed rules, general conventions for drafting rules, and review case law on the legal “bindingness” of procedural rules. (Lea Robbins, [email protected]).
International Regulatory Cooperation. In 1991, the Conference adopted Recommendation 91-1, Federal Agency Cooperation with Foreign Government Regulators, which recommended practices such as information exchanges and establishment of common regulatory agendas to facilitate regulatory cooperation. Twenty years later, in 2011, the Conference adopted Recommendation 2011-6, International Regulatory Cooperation, which found that improved international regulatory cooperation was desirable and recommended best practices to promote effective cooperation and eliminate systemic barriers to coordination. Based in part on the Conference’s recommendations, President Obama in 2012 issued Executive Order 13,609, Promoting International Regulatory Cooperation. This project will examine federal agencies’ experiences in the decade since E.O. 13,609 was issued and identify any remaining barriers to and potential best practices for implementing and supporting international regulatory cooperation. In support of this project, ACUS held a public forum on June 3, 2024, that featured regulators from within and outside the United States, academic scholars, and other stakeholders. The forum included panel discussions on the history of E.O. 13,609, the remaining barriers that U.S. regulators face in cooperating with international counterparts, and the future of international regulatory cooperation and best practices. ACUS also examined this topic on the July 2024 episode of its podcast and radio show, Between the Lines. (Kazia Nowacki, [email protected]).
Nonlawyer Assistance and Representation. This project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them. It will identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It may provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of non-attorney representatives. (Matthew A. Gluth, [email protected]).
*Public Engagement in Agency Rulemaking Under the Good Cause Exemption. This project will study when agencies assert the good cause exemption and recommend best practices for public engagement when agencies find good cause to forgo notice-and-comment rulemaking procedures. Among other relevant topics, this project will recommend best practices for agencies to employ in determining whether to undertake pre- or post-promulgation public engagement efforts with respect to such rules, what types of public engagement to use (including Federal Register notices, targeted outreach, and meetings with affected interests or other interested persons), and how and when to use information obtained through such public engagement efforts to modify or improve rules. (Benjamin Birkhill, [email protected]).
*Public Participation in Agency Adjudication. This project will recommend best practices regarding public participation in agency adjudicative proceedings. Among other topics, it will address circumstances in which public participation may be appropriate, options for public participation (e.g., written comments, oral presentations, intervention, and amicus briefing), methods for facilitating public participation (e.g., notice, managing oral and written comments, and use of additional technologies), and agencies’ use of information obtained through public engagement efforts. (Lea Robbins, [email protected]).
*Regional Administration of Regulatory Programs. This project examines agency approaches to regional administration of regulatory programs, including how much discretion and authority agencies delegate to regional offices, how agencies develop and disclose policies governing the relationship between regional and central offices, how regional offices develop and disclose local policies, and how agencies coordinate and oversee regional operations. The project will offer a set of broadly applicable best practices for agencies and, if warranted, potential legislative reforms. (Jennifer L. Selin, [email protected]).
Timing of Judicial Review of Agency Action. This research study examines several issues identified but not addressed in Recommendation 2021-5, Clarifying Statutory Access to Judicial Review of Agency Action. First, it considers various questions related to the event that begins the period during which a litigant can challenge an agency action in federal court. Second, it considers various questions related to the circumstances under which a party should be precluded from seeking judicial review of an agency action because they failed to seek review within a specified time limit. In both cases, the project will consider existing requirements and whether Congress should amend existing law to provide greater clarity and particularity regarding the timing of judicial review. (Kazia Nowacki, [email protected]).
*Using Algorithmic Tools in Regulatory Enforcement. This project will study how agencies are using or might use algorithmic tools—including AI and predictive analytics—to detect, investigate, and prosecute current and potential noncompliance with the laws they administer. It will examine the potential benefits and risks of using algorithmic tools to support agencies’ regulatory enforcement efforts and identify policies, practices, and organizational structures agencies can put in place to ensure they enforce the law fairly, accurately, and efficiently. (Kazia Nowacki, [email protected]).
In addition to the projects noted above, ACUS has numerous ongoing working groups, roundtables, and public forums. To learn more, visit www.acus.gov.
Any opinions expressed in this article are those of the author and do not necessarily represent the views of the Administrative Conference or the federal government.
