Publication first appeared as a blog post on Notice & Comment, a blog from the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice, on December 12, 2016. Reposted with permission.
Each year, diverse federal agencies conduct millions of hearings, making determinations that can have a profound impact on the parties participating in them. For instance, agency hearings can decide eligibility for disability or veterans’ benefits or can determine immigration status, with decisions impacting a party’s financial security or right to remain in the United States. In many of these high stakes adjudications, parties appear unrepresented for part or all of the proceeding and must quickly learn how to navigate hearing procedures, which can be quite complex, without expert assistance. The presence of self-represented parties in administrative hearings raises significant concerns – not only does lack of representation raise questions about the fairness of a hearing’s procedures and outcome, but the presence of self-represented parties can cause significant delay, especially at an aggregate level, and frustration for adjudicators, agency staff, and the parties themselves.
For these reasons, over the past year and a half, the Administrative Conference has studied self-represented parties in administrative hearings in order to provide advice and recommendations to agencies to help them better accommodate self-represented parties. In studying this topic, the Conference has taken it as a given that self-represented parties will continue to exist in administrative hearings, both due to the enormous resources that would be required for universal representation, and because of decisions made by parties themselves to self-represent. Instead, the Conference asked: if it is a given that self-represented parties exist in administrative hearings, how can agencies best accommodate them?
The topic was initially brought to the Conference’s attention in the spring of 2015, when the Department of Justice’s Office for Access to Justice asked the Conference to co-lead a working group on self-represented parties in administrative hearings. The Conference agreed, and the working group, which operates under the umbrella of the White House Legal Aid Interagency Roundtable, has been meeting since that time. Representatives from a number of agencies, including the Social Security Administration, Executive Office for Immigration Review, Board of Veterans’ Appeals, Internal Revenue Service, Department of Health and Human Services, Department of Agriculture, and Department of Housing and Urban Development have participated, with agency officials sharing information about their practices and procedures concerning self-represented parties. In the First Annual Report of the White House Legal Aid Interagency Roundtable, the Department of Justice called the working group a “centerpiece” of the Roundtable’s effort to develop promising practices.
With the support of the working group, and in response to concerns raised in working group meetings, the Conference undertook a project to study self-represented parties in depth. The project focused on the group of federal agencies that conduct their own administrative hearings (a second group of agencies give federal funding to state and local entities to conduct hearings), and compared practices across several administrative agencies. The project also looked to practices in state civil courts for guidance, since state courts deal with large numbers of self-represented parties and have significant experience in learning how to accommodate them. The report for the project was completed in the fall of 2016, with the resulting proposed recommendation to be considered by the full Conference at the December, 2016 Plenary Session.
The project identified a number of successes already achieved by federal agencies and by state courts, and identified several areas for future improvement, including the use of triage and diagnostic tools to assess the needs of self-represented parties; the development of a continuum of diverse services to aid self-represented parties, from self-help resources to one-on-one guidance; expanded training for adjudicators in dealing with self-represented parties; and additional data collection on self-representation and self-help resources.
That said, as the in-house researcher for the project, my biggest take-away by far was the need for simplification of processes in administrative hearings. When self-represented parties enter administrative hearings, they are often overwhelmed, and may be unable – due to mental or physical disability, lack of literacy, or limited English proficiency – to advocate effectively for themselves in a complex procedure. Procedures that may seem straightforward to agency officials who are well-educated, have years’ experience in the field, and who are familiar with the acronyms and jargon used by that agency, may be completely overwhelming to the average layperson, especially one who is under significant mental and emotional strain. In order to accommodate self-represented parties, agencies sometimes need to be reminded of just how intimidating their current procedures can be, and continue to make efforts (pending statutory and regulatory authority) toward simplifying the number and difficulty of the steps in their hearing processes.
This project shed light on the issue of self-representation in administrative hearings, and highlighted the steps that many agencies are already taking to aid self-represented parties. However, there is still much work to be done. As is mentioned above, this first project focused on administrative hearings that are conducted by the federal agencies themselves; much less is known about the hearings that are funded by the second group of agencies and administered by state or local entities. This federally funded, locally administered structure is used for hearings concerning diverse, and critical, federal programs, including Supplemental Nutrition Assistance Program (formerly known as food stamps) and many low-income housing programs, including Section 8. In many cases, it is unclear how many hearings are being conducted, much less how many self-represented parties exist or what resources are available to them. The Conference is reviewing the possibility of conducting a follow-up project to its first project on self-represented parties to examine these issues.