This Month at ACUS: October 2021

UPCOMING EVENTS

Committee Meetings

Committee meetings commence this month in advance of the December 2021 plenary session. During these meetings, ACUS members will consider proposed recommendations on the following subjects: 

  • The Joint Committee on Adjudication and Administration and Management, chaired by ACUS Public Member Aaron Nielson, will discuss Quality Assurance Systems in Agency Adjudication. This project identifies best practices for agencies when devising and implementing systems to assess and improve the quality of decisions in high-volume adjudicative programs. It emphasizes cutting-edge techniques (including artificial intelligence) to structure the capture and analysis of data; the selection, role, and institutional placement of personnel; the use of performance metrics; efforts to ensure fairness, impartiality, efficiency, and other important institutional objectives; and the relationship between quality-assurance review and conventional appellate review.

  • The Committee on Regulation, chaired by ACUS Government Member Connor N. Raso, will discuss Public Availability of Inoperative Agency Guidance Documents. This project identifies for agencies best practices for maintaining public access to agency guidance documents that are no longer in effect, which the project refers to as inoperative guidance documents. It addresses factors agencies should consider in deciding whether to include certain types of inoperative guidance documents on their websites; steps agencies can take to make it easier for people to find the inoperative guidance documents in which they are interested; and what labels and explanations agencies should use to ensure the public can readily understand the context and significance of particular inoperative guidance documents.

  • An Ad Hoc Committee, jointly chaired by ACUS Government Member Carrie F. Ricci and ACUS Public Member Allyson N. Ho, will discuss Regulation of Representatives in Agency Proceedings. This project explores how agencies regulate the conduct of attorneys and non-attorneys who represent parties and other interested persons in administrative proceedings. It addresses, among other things, why different agencies adopt different rules governing representatives' conduct; the ways in which different agencies’ rules operate; how different rules, and inter-agency variation in those rules, affect agencies, representatives, and persons affected by agency actions; how agencies should consider rules on certain subjects; how agencies should consider formulating such rules; and where agencies should publish them. With respect to those subjects, the project seeks to identify best practices for agencies in developing and modifying their rules regulating representatives.

  • The Committee on Adjudication, chaired by ACUS Government Member Nadine Mancini, will discuss Public Access to Adjudicative Proceedings. This project seeks to identify best practices regarding when and how federal agencies provide public access to adjudicative proceedings. It examines factors, including constitutional and statutory requirements, that agencies should consider when determining whether to open or close particular proceedings; logistical considerations relevant to facilitating public access to proceedings that agencies open to the public; and the form and public availability of agency policies governing public access to adjudicative proceedings.

  • The Committee on Rulemaking, chaired in an acting capacity by ACUS Public Member Kevin Stack, will discuss Technical Reform of the Congressional Review Act. This project considers potential technical reforms of the Congressional Review Act (CRA) that could clarify certain procedural aspects of the CRA while reducing administrative burdens on executive-branch agencies and congressional offices. Specifically, the project will consider: (1) phasing out the requirement that agencies submit paper copies of certain rulemaking materials to Congress in favor of an electronic process; (2) making it easier to ascertain key dates and time periods relevant to review of agency rules under the CRA; and (3) formalizing a procedure by which members of Congress can initiate congressional review of rules that agencies conclude are not covered by the CRA.

If you are interested in attending committee meetings for these projects, please contact info@acus.gov.

Forum on Underserved Communities and the Regulatory Process

A multi-day, virtual forum this fall will address participation by underserved communities and their members in the administrative processes (including rulemaking and adjudication) by which agencies make regulatory policies. This forum furthers Executive Order 13,985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, which requires that federal agencies “pursue a comprehensive approach to advancing equity for all,” including communities “that have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality.”

Panels will feature leading governmental policymakers, community advocates, and academic experts. More information about panels, speakers, and instructions for attending the forum will be posted at www.acus.gov/underserved-communities-and-the-regulatory-process-forum.

ONGOING PROJECTS

ACUS is currently pursuing a number of ongoing projects. Highlights of several are included below:

  • Agency Head Enforcement and Adjudication Functions: This project studies the roles and responsibilities of agency heads in agencies that perform both enforcement and adjudicatory functions. Though the APA bars investigatory or prosecutorial officials from later serving as or advising an adjudicator in the same case, it explicitly exempts agency heads. The project will study the legal and practical benefits and risks associated with agency heads’ involvement in various enforcement and adjudicatory activities. It will also consider whether, in at least some cases, agencies should put in place mechanisms to segregate certain aspects of the agency heads’ adjudicatory and investigatory/prosecutorial functions and, if so, what those mechanisms should be.

  • Alternative Dispute Resolution in Agency Adjudication: This project studies how federal agencies use and might better use different types of alternative dispute resolution (ADR)—including conciliation, facilitation, factfinding, minitrials, arbitration, the use of ombuds, and mediation—to resolve agency adjudications to resolve agency adjudications related to their core statutory authorities. It also addresses the use of ADR to resolve disputes before the initiation of a formal agency adjudicative proceeding or federal court case involving the agency’s enforcement authority. The project considers topics such as the selection and implementation of the appropriate type of ADR and associated procedures; the qualifications, selection, and training of agency ADR personnel; ethics and confidentiality requirements for agency ADR personnel; ADR case management practices; and interagency mechanisms to facilitate ADR and support agency ADR personnel. Consultants Judith Starr, Kathleen Claussen, and Kristin Blankley are finalizing their draft report on the subject.

  • Classification of Agency Guidance: This project will develop a classification system to catalog the wide array of guidance agencies issue, which can range from policy manuals to phone calls. It will also identify considerations and circumstances that lead agencies to use one type of guidance instead of another. The project will produce a guide that sets forth a classification scheme and examines how agencies use the many different forms of guidance available to them. The guide will be valuable to agencies, Congress, the courts, and the public in better understanding the role of agency guidance in the interpretation and administration of statutes and regulations. Consultant Kristin Hickman and In-House Researcher Mark Thomson have outlined their report and are currently interviewing agencies.

  • Nationwide Injunctions and Federal Regulatory Programs:This project studies how nationwide injunctions and similar equitable remedies affect the administration of federal regulatory programs. Among other topics, it addresses the use, frequency, and characteristics of nationwide injunctive and similar relief in challenges to agency rules; how agencies understand the scope of judgments vacating and setting aside agency rules under the Administrative Procedure Act; and how agencies respond to nationwide injunctive and similar relief in carrying out their rulemaking activities. A consultative group of leading experts has begun meeting to discuss this project with consultants Zachary Clopton, Mila Sohoni, and Jed Stiglitz.

For more information on ongoing ACUS Projects, subscribe to our mailing list. See here for more information about our ongoing Assembly Projects and here for more information about our ongoing Office of the Chairman initiatives.

RECENT PUBLICATIONS & REPORTS

Recommendations

Recommendation 2021-5, Clarifying Statutory Access to Judicial Review of Agency Action: On September 17, 2021, the ACUS Assembly adopted a new Recommendation on Clarifying Statutory Access to Judicial Review of Agency Action. This recommendation urges Congress to enact a cross-cutting statute that addresses certain recurring technical problems in statutory provisions governing judicial review of agency action that may cause unfairness, inefficiency, or unnecessary litigation. It also offers drafting principles for Congress when it writes new or amends existing judicial review statutes. 

For all other Recommendations, see here.

Adjudication Updates

ACUS has published the first issue of Adjudication Updates, a new Office of the Chairman initiative to share adjudication-related developments with agencies, Congress, and the public. The September 2021 issue provides updates on agency adjudication related to access to justice, administrative review, alternative dispute resolution, appointment and removal, procedural rules, public access, representation, and the use of technology.