62nd Plenary and Project Updates

This article was co-authored by Amber Williams, Attorney Advisor at ACUS. Publication first appeared in "News from ACUS" column of the American Bar Association Section of Administrative Law & Regulatory Practice's Administrative & Regulatory Law News Summer 2015 edition. Reposted with permission. 

The Administrative Conference of the United States (ACUS) recently held its 62nd Plenary Session, and has been busy over the past several months working on a range of administrative law projects at all stages of development. The Conference has continued to advance its mission of improving administrative processes in the federal government through both its expertise in administrative law and its unique status within the federal government as a non-partisan public-private partnership.

June 2015 Plenary

The Administrative Conference held its 62nd Plenary Session on June 4, 2015. Topics covered at the plenary session included discussions of proposed recommendations, updates on project development and implementation, and important announcements about the Conference and its leadership.

Chairman Paul Verkuil announced that after serving a five-year term, this was his last Plenary Session and he will be stepping down at the end of the summer. It was also announced that Steven Croley, General Counsel of the Department of Energy, was newly designated by the President to serve as the Vice Chair. Ron Klain, General Counsel of Revolution, LLC, and former senior White House aide to President Obama and Chief of Staff to Vice President Joe Biden, was sworn in as a member of the Council.

The Conference honored Chairman Verkuil’s significant achievements, including both his work at the agency and in the field of administrative law more broadly. Chairman Verkuil has served as Chairman since the agency’s funding was restored in 2010 and oversaw the reestablishment of the Conference. Under Chairman Verkuil’s leadership, the Conference has adopted 32 recommendations and one statement, and has produced numerous other studies and reports. Shawne McGibbon, General Counsel of the Administrative Conference, delivered farewell remarks and introduced a short tribute video in which many Conference members and administrative law scholars remembered Chairman Verkuil’s contributions to the field.

Two proposed recommendations were debated during the plenary session. First, the Conference debated and adopted the proposed recommendation, Promoting Accuracy and Transparency in the Unified Agenda. This recommendation offers guidance to help agencies improve the accuracy of information placed in the Unified Agenda of Federal Regulatory and Deregulatory Actions and provides suggestions to Office of Information and Regulatory Affairs (OIRA) and the agencies for increasing and maintaining transparency of regulatory actions. Among other things, the recommendation encourages agencies to consider providing updates between Agenda reporting periods, offers guidance for ensuring Agenda entries are properly categorized, and encourages agencies to provide notice when entries are removed from the Agenda.

The Conference also debated the proposed recommendation on Issue Exhaustion in Preenforcement Judicial Review of Administrative Rulemaking. The proposed recommendation urges courts to find a balance between recognizing (1) that issue exhaustion principles developed in the context of adversarial agency adjudications may not always apply in preenforcement review of rulemaking, and (2) that the courts generally should not resolve issues that litigants did not raise before the agency in an administrative rulemaking proceeding. Because of the sensitive nature of the issue exhaustion doctrine and the proposed recommendation’s potential impacts to litigants and agencies, the proposed recommendation was not yet put to a vote and will be considered by the Conference in the future.

In addition, Conference staff and consultants provided updates on several ongoing projects. Professor Michael Asimow of Stanford Law School and Attorney Advisor Amber Williams gave an update on the Federal Administrative Adjudication project. Ms. Williams demonstrated the capability of the adjudication database, which houses reports that give both a broad overview of adjudication generally (e.g., representation of private parties at hearings) and specific procedures for each adjudicative scheme. Professor Asimow shared that he is focusing on “Type B” adjudication—adjudication required by law and conducted by non-Administrative Law Judges—and that, as his research continues, he will identify best practices and make recommendations for the Conference to consider. Fred Lederer, Director of the Center for Legal and Court Technology at William and Mary Law School, gave an overview of the viability, utility, and effectiveness of video hearings, and played a short demonstration of witnesses testifying remotely.

The Administrative Conference’s Executive Director Matt Wiener gave an update about the successful and ongoing implementation of Conference work. First, in 2013 the American Bar Association adopted a resolution urging Congress to repeal and replace 28 U.S.C. §1500 (re: the Court of Federal Claims’ lack of jurisdiction for claims pending in other courts) in accordance with Recommendation 2012-6, Reform of U.S.C. Section 1500. Bills to implement the recommendation have been introduced in both the House and Senate in the 114th Congress. Second, in the President’s budget for FY 2016 the Administration announced its intention to improve the Federal Civil Penalties Inflation Adjustment Act in accordance with recommendations from GAO and the Conference (Recommendation 2012-8, Inflation Adjustment Act). Third, the Social Security Administration (SSA) adopted a final rule regarding the submission of evidence at hearings that fully implemented guiding principles made by a 2012 Office of the Chairman report, SSA Disability Benefits Programs: The Duty of Candor and Submission of All Evidence.

Finally, the winner of the 2015 Walter Gellhorn Innovation Award was announced. The award is given to a federal agency that has developed an innovative or model practice that can be adopted by other federal agencies. The Department of Housing and Urban Development’s “Rebuild by Design,” a program that used design competitions to encourage public-private partnerships in the wake of Hurricane Sandy, won the 2015 Gellhorn Award.

Current and Future Projects

In addition to the projects discussed above, the Conference has a full slate of projects in development over the coming months. Nearing completion are four projects, all of which are targeted for discussion at the December 2015 Plenary Session:

Agency Publicity in the Internet Age: This project builds off Administrative Conference Recommendation 73-1, Agency Adverse Publicity and examines recent changes in agency publicity practices in the decades since Recommendation 73-1 was adopted. The project focuses on new strategies for information dissemination employed by agencies, especially use of web sites and social media platforms to disseminate information quickly and without traditional formalities. This project also aims to develop best practices and recommendations for consumer complaint databases and other similar agency resources.

Declaratory Orders: The Conference is examining the use of declaratory orders by agencies in administrative adjudication. The project looks to determine why agencies have not used declaratory orders more broadly (in spite of APA’s authorization to do so) and seeks to determine the legal limits of agency use of declaratory orders. The project aims to identify situations in which agency use of declaratory orders would be beneficial and to develop best practices for agency issuance of declaratory orders.

Federal Licensing and Permitting: This project explores potential reforms to the federal licensing and permitting regime and seeks to address the lack of uniformity in licensing and permitting procedures that exist among agencies. The project seeks to highlight promising innovations in the permitting and licensing field and to address concerns among regulated entities that existing practices are overly burdensome. The project aims to issue best practices that minimize the compliance burdens of licensing and permitting for regulated parties, while still allowing for necessary oversight.

Technical Assistance by Federal Agencies in the Legislative Process: This project uses case studies to examine different models for agency involvement in providing technical drafting assistance to Congress and seeks to identify best practices for agency provision of technical assistance. The project also examines intra-agency coordination of legislative and regulatory affairs and aims to determine how agency involvement in drafting influences these affairs, and vice versa.

In addition to these projects, a number projects are in earlier stages of development. Additional long-term projects include:

Aggregate Agency Adjudication: This project studies recent efforts by agencies to aggregate administrative proceedings. Very little is known about: (1) how agencies choose the cases appropriate for aggregation, (2) which aggregation tools agencies use, (3) the successes and failures of aggregation programs, (4) how often agencies employ aggregation procedures, and (5) other types of proceedings in which different aggregation tools might facilitate more expeditious and fair handling of large groups of claims. This goal is to identify the types of agency adjudications in which aggregate procedures have the greatest potential, the challenges and obstacles to greater use of aggregation, and best practices for agencies that wish to use aggregation mechanisms.

Electronic Case Management in Federal Administrative Adjudication: This project involves an in-depth look at the implementation and use of electronic case management in administrative adjudication. The Conference will examine the factors agencies should consider to optimize the use of electronic case management in furthering agency goals and share best practices to improve the process of converting to and maintaining electronic case management. The Conference is accepting project proposals. Please contact Ms. Williams at awilliams@acus.gov for more information.

Negotiated Rulemaking: This project builds on two past Conference Recommendations (Recommendation 85-5 and Recommendation 82-4, both entitled Procedures for Negotiating Proposed Regulations) and studies the use of negotiated rulemaking and other mechanisms to involve stakeholders in the researching and drafting of agency rules. The purpose is to discover the contexts in which agencies use negotiated rulemaking and investigate potential alternative avenues of collaborative policymaking that agencies may use when negotiated rulemaking is impractical or otherwise inadvisable. 

SSA Federal Courts Analysis: The Social Security Administration engaged the Office of the Chairman to conduct an independent study of federal court review in social security disability insurance and supplemental security income cases by, among other things, (1) evaluating federal court interpretation and application of SSA’s regulations, and (2) examining SSA’s acquiescence rulings and how the agency applies decisions of federal appellate courts that are at variance with the agency’s policies. The goal is to offer SSA recommendations for bringing consistency to the adjudication of disability cases in federal courts.    

The Ombudsman in Federal Agencies: This project aims to identify which federal agencies make use of ombuds and to describe the scope of ombuds activities. The project seeks to identify which ombuds activities have improved agency dispute resolution or program function and provide updated best practices for the establishment and operation of ombuds offices.

Although the Conference is currently working on a full slate of projects, it is always interested in receiving project ideas on timely and important issues in administrative law. If you have any questions about the Conference’s activities, or want to submit a project idea, please contact Research Chief Reeve Bull at rbull@acus.gov. The Conference also welcomes active participation on administrative law issues from all interested commenters on its website. See, e.g., above, Connor Raso, Agency Avoidance of Rulemaking Procedures.

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