National Conference of the Administrative Law Judiciary

Advertisement

  • NCALJ News and Updates

Quick Links
Periodicals
  • Give the Gift of Justice

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES (ACUS) ADOPTS RECOMMENDATIONS FOR FEDERAL RULES, PROCEDURE AND POLICY

NCALJ members should note the recommendations recently adopted by ACUS and the associated list of ongoing projects.  The information below and the associated Links to documents and papers, is relevant to every administrative adjudicator in the Federal government.



Administrative Law and Adjudication Initiatives by the Administrative Conference of the United States


UPDATE ON ACUS ACTIVITIES


The Administrative Conference of the United States (ACUS) held its 66th Plenary Session<https://www.acus.gov/meetings-and-events/plenary-meeting/66th-plenary-session> on December 13-14 in Washington, D.C. culminating in the Assembly's adoption of four recommendations:

1.    Special Procedural Rules for Social Security Litigation in District Court encourages the Judicial Conference of the United States to develop a uniform set of procedural rules for social security cases commenced in federal court that involve claims for benefits arising under Titles II and XVI of the Social Security Act. It also highlights areas in which such rules should be adopted and sets forth criteria for the promulgation of additional rules.

><http://www.acus.gov/2016-3>

2.    Evidentiary Hearings Not Required by the Administrative Procedure Act offers best practices to agencies for structuring evidentiary hearings that are not required by the Administrative Procedure Act.  It suggests ways to ensure the integrity of the decision-making process; sets forth recommended pre-hearing, hearing, and post-hearing practices; and urges agencies to describe their practices in a publicly accessible document and seek feedback on those practices.

> <http://www.acus.gov/2016-4>

3.    The Use of Ombuds in Federal Agencies describes the scope of ombuds activities at federal agencies, identifies best practices for the establishment and operation of ombuds offices, and recommends situations in which expanded use of ombuds may benefit agencies.

> <http://www.acus.gov/2016-5>

4.    Self-Represented Parties in Administrative Proceedings offers best practices for agencies dealing with self-represented parties in administrative hearings. Recommendations include the use of triage and diagnostic tools, development of a continuum of services to aid parties, and re-evaluation and simplification of existing hearing practices, where possible.

> <http://www.acus.gov/2016-6>

 

The next Plenary Session will be held on June 15-16, 2017. Details, including times and recommendations to be considered, will be posted on acus.gov/meetings-and-events<http://www.acus.gov/meetings-and-events> as soon as they become available. Join our mailing list at acus.gov/subscribe<https://www.acus.gov/subscribe> to be notified instantly.

 

 

Current ACUS projects include:

 

Adjudication Materials on Agency Websites<https://www.acus.gov/research-projects/adjudication-materials-agency-websites>

Stage:

5. Committee consideration<https://www.acus.gov/projects-by-stage/5>

 

Agency websites display many of the substantive legal documents agencies generate in furtherance of their lawmaking responsibilities. Such documents include the binding orders and attendant materials (e.g., motions, briefs) produced during the course of agency adjudicative proceedings.  In this study, the Conference will study the dissemination of adjudication materials through agency websites and provide guidance for agencies in improving the adjudication sections of their websites.

 

Administrative Judges<https://www.acus.gov/research-projects/administrative-judges>

Stage:

5. Committee consideration<https://www.acus.gov/projects-by-stage/5>

Committee:

Adjudication<https://www.acus.gov/committees/adjudication>

Tags:

Adjudication<https://www.acus.gov/tags/adjudication>

 

This project explores agencies' use of administrative judges (AJs), which are used in hearings outside of those governed by the Administrative Procedure Act.  It studies the use of AJs across numerous agencies and offers recommendations on selection, supervision, evaluation, and removal practices.

 

Agency Guidance<https://www.acus.gov/research-projects/agency-guidance>

Stage:

5. Committee consideration<https://www.acus.gov/projects-by-stage/5>

Tags:

Policy Statements<https://www.acus.gov/tags/policy-statements>

 

This project seeks to better understand how agencies formulate and use guidance documents and how those documents affect agency personnel and outside stakeholders.  The project considers a range of agency programs and offers recommended best practices.

 

Council of Independent Regulatory Agencies<https://www.acus.gov/research-projects/council-independent-regulatory-agencies>

OFFICE OF THE CHAIRMAN PROJECT

Tags:

Working Group<https://www.acus.gov/tags/working-group>

 

A council for leaders in independent regulatory agencies, CIRA's goal is to provide a forum to discuss issues common to these agencies.  Because independent regulatory agencies are subject to limited OMB oversight, they have limited mechanisms for sharing information and solving common administrative problems.

Past CIRA meetings have addressed issues of common interest, such as the use of cost-benefit analysis by independent regulatory agencies, international regulatory cooperation, best practices under the Government in the Sunshine Act, and agency practices for dissents in rulemakings.

 

Electronic Case Management in Federal Administrative Adjudication<https://www.acus.gov/research-projects/electronic-case-management-federal-administrative-adjudication>

Stage:

5. Committee consideration<https://www.acus.gov/projects-by-stage/5>

Committee:

Adjudication<https://www.acus.gov/committees/adjudication>

Tags:

Adjudication<https://www.acus.gov/tags/adjudication>, Case Management<https://www.acus.gov/tags/case-management>, Electronic Records Management<https://www.acus.gov/tags/electronic-records-management>

 

The Conference is studying the use and incorporation of electronic case management in agency adjudication in order to make recommendations and share best practices.  Electronic case management is a comprehensive system that enables an agency to manage its adjudications for increased efficiency and access. It encompasses not only the creation and maintenance of an electronic system in which users may file and manage documents, but also includes various procedural changes that must be made to accommodate such a system. The implementation of an electronic system can be instrumental in streamlining an agency's adjudication practices, improving interagency communication and access, and upgrading technology in related functions, such as hearing recording systems.

 

Project Documents

Name<https://www.acus.gov/research-projects/electronic-case-management-federal-administrative-adjudication?order=title&sort=asc>

 

Committee

 

Type<https://www.acus.gov/research-projects/electronic-case-management-federal-administrative-adjudication?order=name&sort=asc>

 

Date<https://www.acus.gov/research-projects/electronic-case-management-federal-administrative-adjudication?order=field_document_date&sort=asc>

 

Electronic Case Management in Federal Administrative Adjudication RFP<https://www.acus.gov/rfp/electronic-case-management-federal-administrative-adjudication-rfp>

 

Adjudication<https://www.acus.gov/committees/adjudication>

 

RFP<https://www.acus.gov/documents/rfp>

 

August 27,

 

Read more ><https://www.acus.gov/research-projects/electronic-case-management-federal-administrative-adjudication>

Federal Administrative Adjudication Outside of the Administrative Procedure Act<https://www.acus.gov/research-projects/federal-administrative-adjudication-outside-administrative-procedure-act>

OFFICE OF THE CHAIRMAN PROJECT

Tags:

Adjudication<https://www.acus.gov/tags/adjudication>

This project is an examination of federal administrative adjudication that is not subject to the adjudicatory provisions of the Administrative Procedure Act (i.e., non-APA adjudication) and takes the form of a sourcebook for agencies, Congress, the federal judiciary, and the public.  It draws on the Federal Administrative Adjudication project<https://www.acus.gov/research-projects/federal-administrative-adjudication> and database and builds on the Evidentiary Hearings Not Required by the Administrative Procedure Act project<https://www.acus.gov/research-projects/evidentiary-hearings-not-required-administrative-procedure-act>.  It provides a comprehensive overview and cross-cutting analysis of non-APA adjudication.  It examines, among other things, the structure of the initial adjudication and any appeals; pre-hearing, hearing, and post-hearing procedures; the types of adjudicators used; and the case loads at individual agencies.  It will rely in part on case studies to flesh out the overarching findings.

Marketable Permits<https://www.acus.gov/research-projects/marketable-permits>

Stage:

5. Committee consideration<https://www.acus.gov/projects-by-stage/5>

 

The Conference is studying marketable permit programs and other market-oriented tools that use economic incentives to promote regulatory goals. The aims of this project are to identify factors that weigh in favor of or against market-based systems and to provide guidance for agencies in developing and administering these programs.

Read more ><https://www.acus.gov/research-projects/marketable-permits>

Negotiated Rulemaking<https://www.acus.gov/research-projects/negotiated-rulemaking>

Stage:

5. Committee consideration<https://www.acus.gov/projects-by-stage/5>

Tags:

Dispute Resolution<https://www.acus.gov/tags/dispute-resolution>, Mediation<https://www.acus.gov/tags/mediation>, Negotiated Rulemaking<https://www.acus.gov/tags/negotiated-rulemaking>, Public Participation<https://www.acus.gov/tags/public-participation>, Regulatory Negotiation<https://www.acus.gov/tags/regulatory-negotiation>, Rulemaking<https://www.acus.gov/tags/rulemaking> The Conference is studying agency use of negotiated rulemaking and other collaborative mechanisms to involve stakeholders in the process of crafting agency rules. This project builds on two past Conference Recommendations (Recommendation 85-5<https://www.acus.gov/recommendation/procedures-negotiating-proposed-regulations-0> and Recommendation 82-4<https://www.acus.gov/recommendation/procedures-negotiating-proposed-regulations>, both entitled Procedures for Negotiating Proposed Regulations). The project aims to identify the optimal contexts for the use of negotiated rulemaking and investigate potential alternatives for collaborative policymaking that agencies may use when negotiated rulemaking is impracticable or otherwise inadvisable.

Office of the Chairman Model Adjudication Rules Working Group<https://www.acus.gov/research-projects/office-chairman-model-adjudication-rules-working-group>

OFFICE OF THE CHAIRMAN PROJECT

Tags:

Adjudication<https://www.acus.gov/tags/adjudication>, Working Group<https://www.acus.gov/tags/working-group>

 

The Office of the Chairman of the Administrative Conference of the United States has established a working group-the Model Adjudication Rules Working Group-to review and revise the Conference's Model Adjudication Rules. Released in 1993 by a similar working group of the Conference, the Model Adjudication Rules were designed for use by federal agencies to amend or develop their procedural rules for hearings conducted under the Administrative Procedure Act. The original Model Adjudication Rules appear under "Project Documents" below. Numerous agencies have relied on the Model Rules to improve existing adjudicative schemes, and newer agencies, like the Consumer Financial Protection Bureau, have relied on them to design new procedures. Significant changes in adjudicative practices and procedures since 1993-including use of electronic case management and video hearings-necessitate a careful review and revision of the Model Adjudication Rules. In reviewing and revising the Model Rules, the Working Group will rely on the Conference's extensive empirical research of adjudicative practices reflected in the Federal Administrative Adjudication Database<https://acus.law.stanford.edu/>, amendments to the Federal Rules of Civil Procedure since 1993, and input from agency officials, academics, practitioners, and other stakeholders. The next meeting of the working group will be held Jan. 31, 2017.

 

Public Private Partnerships<https://www.acus.gov/research-projects/public-private-partnerships>

Stage:

5. Committee consideration<https://www.acus.gov/projects-by-stage/5>

Committee:

Regulation<https://www.acus.gov/committees/regulation>

Public-private partnerships are increasingly common as a means for federal agencies to address complex challenges.  At the federal level, infrastructure public-private partnerships have been the subject of multiple studies and a presidential memorandum, but much less information is available on other forms of public-private partnerships.  Agency experience with public-private partnerships varies, and such partnerships involve novel and crosscutting issues. Because such issues traverse conventional divisions in agency general counsel offices, legal expertise is likewise segmented.  This study examines public-private partnerships outside of the infrastructure context with close attention to pertinent legal issues, in order to devise recommendations and best practices.

Regulatory Waivers and Exemptions<https://www.acus.gov/research-projects/regulatory-waivers-and-exemptions>

Stage:

5. Committee consideration<https://www.acus.gov/projects-by-stage/5>

Committee:

Rulemaking<https://www.acus.gov/committees/rulemaking>

Federal agencies sometimes grant to regulated parties temporary or permanent "waivers" or "exemptions" (also sometimes referred to as "exceptions") from regulatory requirements.  Legally and theoretically distinct from prosecutorial discretion, waivers and exemptions may be a useful tool for agencies and offer benefits to regulated parties.  At the same time, they may also come at the cost of fairness, predictability, and accountability.   This project draws conceptual distinctions among waivers, exemptions, and prosecutorial discretion; examines current practices in agencies that grant waivers and exemptions; reviews statutory and doctrinal requirements; and makes concrete procedural recommendations for implementing agency best practices.

Self-Represented Parties in Administrative Hearings<https://www.acus.gov/research-projects/self-represented-parties-administrative-hearings>

Stage:

8. Implementation<https://www.acus.gov/projects-by-stage/8>

Committee:

Administration and Management<https://www.acus.gov/committees/administration-and-management>

 

Recommendation 2016-6 - Self-Represented Parties in Administrative Hearings offers best practices for agencies dealing with self-represented parties in administrative hearings. Recommendations include the use of triage and diagnostic tools, development of a continuum of services to aid parties, and re-evaluation and simplification of existing hearing practices, where possible.

Read more ><https://www.acus.gov/research-projects/self-represented-parties-administrative-hearings>

Statutory Review Program<https://www.acus.gov/research-projects/statutory-review-program>

OFFICE OF THE CHAIRMAN PROJECT

Tags:

Congress<https://www.acus.gov/tags/congress>, Congressional Assistance<https://www.acus.gov/tags/congressional-assistance>, Judicial Review<https://www.acus.gov/tags/judicial-review>, Statutory Interpretation<https://www.acus.gov/tags/statutory-interpretation>

The Administrative Conference of the United States has initiated a pilot program under which its staff will transmit to Congress federal judicial opinions that identify technical and related problems in statutes dealing with administrative procedure. Its purpose is primarily to provide legislative drafters with the information they need to ensure future statutes adequately reflect Congress's intent, and only secondarily to suggest the possible need for remediating problems in particular statutes. (In no instance will the staff recommend legislative action in the absence of a formal recommendation adopted by a majority of the Conference's voting members meeting together as the Conference's Assembly.)

Opinions will be selected by Conference staff based on independent research and, most importantly, suggestions from federal agencies. Selected opinions will be transmitted, under the cover of a letter briefly identifying the issues warranting transmittal, to the Speaker of the House, the Senate Pro Tempore of the Senate, the Office of the Legislative Counsel in both the House and Senate, the Committee on the Judiciary in both the House and Senate, and, as appropriate, other committees that may have an interest in the subject matter. All letters and accompanying opinions will be made publicly available on the Conference's website.

 

Working Group on Self-Represented Parties in Administrative Hearings<https://www.acus.gov/research-projects/working-group-self-represented-parties-administrative-hearings>

OFFICE OF THE CHAIRMAN PROJECT

Tags:

Adjudication<https://www.acus.gov/tags/adjudication>, Working Group<https://www.acus.gov/tags/working-group>

The Working Group on Self-Represented Parties in Administrative Hearings is co-led by the Administrative Conference and the Department of Justice's Office for Access to Justice. The working group's aim is to identify the challenges posed by self-represented parties in administrative hearings and find solutions to common problems. The working group has met since the Spring of 2015, and participating agencies include the Social Security Administration, Board of Veterans' Appeals, Executive Office for Immigration Review, Department of Health and Human Services, and Department of Housing and Urban Development.