Publication first appeared in the "News from ACUS" column of the American Bar Association Section of Administrative Law & Regulatory Practice's Administrative & Regulatory Law News Fall 2015 edition. Reposted with permission.
Did you know that if you compare the number of adjudications conducted by just three agencies—the Social Security Administration, the Executive Office for Immigration Review, and the Board of Veterans’ Appeals—to the number of adjudications conducted by federal courts, the courts conduct only 29% of the number of proceedings that these agencies do? When you add up the adjudications across the federal government, this percentage gets even smaller.
Even though agencies conduct such a significant number of proceedings we know much more about the federal court system than we do about the federal administrative adjudication system. The Administrative Conference is working to fill this knowledge gap by undertaking a project that has never before been attempted and surveying the federal government in order to map the contours of the adjudication system. We are examining both adjudication conducted under the Administrative Procedure Act (APA) that involves a hearing with witness testimony, a written record, and a final decision (commonly called formal adjudication)—as well as adjudication not conducted under APA requirements, but is generally required by some other statute (commonly called informal adjudication). We are researching the wide variety of adjudication procedures, identifying the varied members of the federal administrative judiciary, and collecting and analyzing caseload statistics and other empirical data.
Some of the topics our survey includes:
- Structure: name of the hearing and appellate offices, as well as the title of the hearing and appellate officers;
- General information: whether the parties and/or government are represented, and if so, who represents them;
- Pre-hearing procedures: notice, discovery, subpoena authority, ex parte contacts, etc.;
- Hearing procedures: type of hearing (i.e., written, in-person, video, telephone), witness testimony and cross examination, and whether hearings are recorded;
- Post-hearing procedures: who has authority to issue final decisions and whether there is a time limit for issuance of such decisions, as well as whether judicial review is available;
- Case management: whether web-based electronic filing of briefs or other documents is available, as well as whether final decisions are posted on the agency website;
- Case type: program area, who files the case, and what relief is available (e.g., accreditation/certification, civil (monetary) penalty, lease/right-of-way, quota/rate-setting);
- Statistics: total number of cases (1) filed/opened, (2) decided/closed, and (3) pending;
- Adjudicators: job title, job series, pay plan, and grade range, and determining whether the position is subject to performance evaluation or production goals; and
- Alternative dispute resolution (ADR): whether it is available, and if so, whether it is mandatory or voluntary, and what types of ADR are used.
Staff at the Administrative Conference have meticulously combed through the Code of Federal Regulations and agency websites to gather this information. While some of the agencies’ adjudication information is readily accessible, other information is not publically available. For example, adjudication statistics, personnel information, and sometimes even processes and procedures for less well-known (and perhaps less-used) adjudications are unable to be determined. We have asked agencies for assistance both to review our work and fill in the inevitable information gaps. Many agencies have generously given of their time to help us in this endeavor. In all, we researched 133 agencies, 427 offices, and 432 schemes. (A scheme is the adjudicatory path a case can take, beginning with the hearing level and progressing through the appellate level(s)).
We have big plans for this project, which is being undertaken through the Office of the Chairman. It will both update and deepen prior studies on administrative adjudication, and also highlight adjudicatory trends and developments (such as the use of ADR techniques and video hearings). Michael Asimow, Visiting Professor of Law at Stanford, will be drafting a report, which will serve as a unique resource for members of Congress and their staffs, federal agency and judicial officials, Conference members, and the public. Moreover, we fully expect the project to yield best practices and other recommendations that the Administrative Conference will take up at a future Plenary Session.
Moreover, the Administrative Conference has partnered with Stanford Law School to develop a publicly available database. The database is fully operational and accessible by the public through our website (https://www.acus.gov/research-projects/federal-administrative-adjudication). The database houses all of our research.
The database allows users to search for adjudication by categories like “Agency” and “Office.” For example, when searching by “Agency,” users can see whether an agency conducts adjudication, which offices specifically conduct adjudication, and how the adjudicatory schemes are structured.
Users can click on each agency scheme and see a short description of the scheme and the various associated adjudication levels and offices; the database also indicates whether there are any related schemes (i.e., schemes that share the same hearing or appellate offices). Users can also click on links to review the scheme’s hearing office procedures, appellate office procedures, and case types. The hearing and appellate office procedures pages are the heart of the project. These pages present the vast majority of the information we have gathered for a particular office (see the topics of our survey above).
Finally, we have also created several reports so that users can review the information in the aggregate. For example, we have a report on types of hearings and appeals, which includes information regarding how the hearing may be conducted (e.g., in-person, through video), what percentage of hearings are conducted through that media (when that information was available), and at what adjudication level a particular type of hearing is conducted.
No one has ever attempted to undertake a project like this before. The information we have collected is publically available so that Congress, agencies, scholars, and the general public will be able to know how agencies conduct adjudication. Congress can use it as resource when establishing new adjudicatory schemes. Agencies can use the database to see how other agencies conduct adjudication and how their own procedures may be improved. Scholars can study the adjudicatory structure and recommend reforms. The public can better understand the adjudication scheme in which they may be involved. Moreover, this is a living database. We are able to update it at any time so that it can be as accurate and current as possible.
This project has taken an enormous amount of effort and time, and I’d like to publicly recognize and thank the staff, law clerks, and interns who have helped move this project forward: Gretchen Jacobs, Shawne McGibbon, Seth Nadler, Funmi Olorunnipa, David Pritzker, Harry Seidman, Stephanie Tatham, Connie Vogelmann, Matt Wiener, Tiffany Huang, Steven Kellogg, Erik King, Nathan Kupka, Martin Saunders, Brent Schultheis, Greg Swain, Jacquelyn Bolen, Laura Gaudreau, Arjun Ravi, and Audi Syarief. Finally, I’d also like to thank Chairman Paul Verkuil who had the vision for this project. His vision is the reason why we now know so much more about federal adjudication than we ever have before.
If you’d like to stay up-to-date, sign up for updates on the project website (https://www.acus.gov/research-projects/federal-administrative-adjudication), or contact me at email@example.com.