This article was authored by Shawne C. McGibbon, ACUS’s General Counsel.
ACUS recently held its 69th Plenary Session on June 14-15, at The George Washington University Law School in Washington, DC. This post provides an overview of the timely issues that were discussed and the recommendations that were adopted by the ACUS Assembly. A notable characteristic that differentiated this plenary session from most other plenary sessions in the past was the heavy focus on matters related to administrative adjudication.
ACUS Vice Chairman and Executive Director, Matthew L. Wiener, kicked off the packed agenda by providing a report that could be called “The State of the Conference.” This overview of notable ACUS activities highlighted significant efforts aimed at improving the administrative state: 1) forthcoming updates to the 2012 Sourcebook of United States Executive Agencies and the Model Adjudication Rules (last published by ACUS in 1993); 2) new publications that will include a Guide to Judicial Review of Federal Administrative Action and the Federal Administrative Procedure Sourcebook (which was most recently an American Bar Association (ABA) publication, but will be a joint ACUS-ABA publication going forward); 3) an upcoming October 5, 2018, forum on the emerging problem of fraudulent comments in rulemaking; and 4) the kick-off of the Statutory Review Program—a program that was the result of suggestions by Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit—which is intended to help identify common technical issues that arise in statutory drafting and offer useful information for Congressional staff. These and other recent activities outlined by Mr. Wiener demonstrate that ACUS is living up to its reputation of providing a lot of bang for the buck.
Four proposed recommendations were debated by the Assembly, two of which dealt with administrative adjudication.
The Recommendation titled Paperwork Reduction Act Efficiencies was adopted by the Assembly on June 14, 2018. This Recommendation enjoyed broad participation by many affected entities during the committee phase of the project. Participants included the Office of Information and Regulatory Affairs (OIRA), members of a working group composed of federal Paperwork Reduction Act (PRA) officers, transparency/good government groups, etc. Although the purpose of the PRA is to ensure that the government does not saddle the general public with unnecessary or burdensome information collections, the public is sometimes better served when agencies and OMB do not get hamstrung by excessive or unnecessary procedures. The goal of efficiency for the government’s sake can translate into better service and accountability to the public. Among other things, this recommendation cites appropriate uses of expedited clearance procedures, emphasizes training for agency personnel, and encourages the use of common forms.
The Recommendation titled Administrative Judges was not adopted and was instead recommitted to the Committee on Adjudication for further consideration on June 14. This project took an in-depth look at federal agencies’ use of administrative judges (AJs) who conduct hearings outside of those governed by the Administrative Procedure Act. AJs are distinct from Administrative Law Judges (ALJs) who undergo a rigorous selection process and who operate independently within federal agencies. Given the vast number of AJs in the federal bureaucracy, ACUS reviewed nearly every aspect of AJ selection, qualifications, salaries, ethics, performance, etc., to determine what recommendations might be appropriate. In considering the proposed recommendation that was developed by ACUS’s Adjudication Committee, the plenary session debate quickly turned to whether the pending Supreme Court decision in Lucia v. Securities and Exchange Commission, might end up conflicting with the ACUS Recommendation. The members of the Assembly voted to recommit the proposed Recommendation to the Committee on Adjudication pending the outcome of the Lucia case. The Adjudication Committee will reevaluate the proposed recommendation in light of the Lucia decision, determine whether any changes should be made, and determine whether the recommendation should be sent to the Council and Assembly for consideration in its current or revised form.
The Recommendation titled Severability in Agency Rulemaking (formerly titled Minimizing the Cost of Judicial Review) was adopted on June 15, 2018, and offers advice to agencies and the courts on how to manage situations where a court may hold portions of a rule unlawful in the absence of agency severability procedures. Explicit severability clauses written into regulations can sometimes permit an agency to separate out portions of a rule that were not held unlawful, and allow those portions to remain or go into effect. This recommendation encourages agencies to consider the matter of severability early in the rulemaking process and, among other things, to draft their rules in such a way that makes them divisible into independent portions.
The Recommendation titled Electronic Case Management in Federal Administrative Adjudication, also adopted on June 15, is one of the more technical recommendations ever adopted by ACUS, and its primary goal is to encourage federal agencies to consider implementing electronic case management systems (eCMS) as a tool to reduce cost and create greater efficiency and accuracy in maintaining an agency’s docket. The recommendation offers advice on how to implement (or expand) eCMS at agencies, and identifies a number of practical considerations that agencies can take into account when deciding whether eCMS is appropriate.
The text of the three adopted recommendations will be published in the Federal Register in the coming days.