News from ACUS: 65th Plenary Session and Project Updates

Publication first appeared in the American Bar Association Section of Administrative Law & Regulatory Practice's Administrative & Regulatory Law News Summer 2016 edition.  Reposted with permission.

The Administrative Conference of the United States recently held its 65th Plenary Session. This column provides an update of the recommendations adopted at the plenary session and a selective list of the agency’s current projects.

June 2016 Plenary Session

Thee Administrative Conference held its 65th Plenary Session on June 10, 2016 and adopted two recommendations. Brief descriptions of the recommendations follow. Reach out to the listed staff contact with any questions or implementation-related suggestions you have.

  • Recommendation 2016-1, Consumer Complaint Databases: This recommendation encourages agencies that make consumer complaints publicly available through online databases or downloadable data sets to adopt and publish written policies governing the dissemination of such information to the public. These policies should inform the public of the source and limitations of the information and permit entities publicly identified to respond or request corrections or retractions. (Gisselle Bourns, gbourns@acus.gov)
  • Recommendation 2016-2, Aggregate Agency Adjudication: Agencies adjudicate hundreds of thousands of cases each year and aggregation procedures could help alleviate the burden of large caseloads while achieving efficiency and greater consistency in outcomes. This recommendation identifies the contexts in which aggregation may be an attractive mechanism and develops best practices for those claims or cases in which aggregation is used. (Amber Williams, awilliams@acus.gov)

Current Projects

The Conference has a full slate of projects in various stages of development. Brief descriptions of selected projects follow. Reach out to the listed staff contact with any questions you have.

  • Agency Guidance: Federal agencies frequently issue guidance documents intended to provide clarification of a particular issue. Guidance documents are exempted from the notice-and-comment process and from preenforcement judicial review—exceptions that make the documents relatively easy to issue and modify. To enjoy these exemptions, the documents must not be binding on officials or the public. An agency guidance document that does not go through notice-and-comment but is deemed to be binding on judicial review may be vacated. This project studies federal agencies’ use of guidance and its effect on agency personnel and nonfederal stakeholders, as well as courts’ use of “vacatur” as a remedy to vacate guidance documents, in order to identify best practices and recommendations. (Alissa Ardito, aardito@acus.gov and Gisselle Bourns, gbourns@acus.gov)
  • Electronic Case Management in Federal Administrative Adjudication: This project studies the use and incorporation of electronic case management in agency adjudication in order to make recommendations and share best practices. The project will not only examine the creation and maintenance of an electronic system in which users may file and manage documents, but also will consider various procedural changes that must be made to accommodate such a system. The implementation of an electronic system can be instrumental in streamlining an agency’s adjudication practices, improving interagency communication and access, and upgrading technology in related functions, such as hearing recording systems. (Amber Williams, awilliams@acus.gov)
  • Informal Agency Adjudication: This project arose from the Federal Administrative Adjudication project and focuses on adjudication governed outside of the Administrative Procedure Act—commonly referred to as informal adjudication. This project examines pre-hearing, hearing, and post-hearing procedures. Based on the project’s analysis, it will offer best practices regarding, among other things, notice procedures, evidentiary rules, appeal opportunities, and the overall integrity of the decisionmaking process in informal adjudication. (Amber Williams, awilliams@acus.gov)
  • Model Adjudication Rules: The Office of the Chairman has established the Model Adjudication Rules Working Group to review and revise the Conference’s Model Adjudication Rules. Released in 1993 by a similar working group of the Conference, the Model Adjudication Rules were designed for use by federal agencies to amend or develop their procedural rules for hearings conducted under the Administrative Procedure Act. Numerous agencies have relied on the Model Rules to improve existing adjudicative schemes and newer agencies have relied on them to design new procedures. Significant changes in adjudicative practices and procedures since 1993 necessitate a careful review and revision of the Model Adjudication Rules. In reviewing and revising the Model Rules, the Working Group will rely on the Conference’s extensive empirical research of adjudicative practices reflected in the Federal Administrative Adjudication Database, amendments to the Federal Rules of Civil Procedure since 1993, and input from agency officials, academics, practitioners, and other stakeholders. (Amber Williams, awilliams@acus.gov)
  • 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 collaborative mechanisms to involve stakeholders in the process of crafting agency rules. The project aims to identify the optimal contexts for the use of negotiated rulemaking and investigate potential alternatives for collaborative policymaking that agencies may use when negotiated rulemaking is impracticable or otherwise inadvisable. (Reeve Bull, rbull@acus.gov)
  • Ombudsman in Federal Agencies: This project is designed to identify the variety of federal ombuds programs and the scope of their activities, identify best practices for the establishment and operation of ombuds offices, and recommend situations in which expanded use of ombuds may benefit agencies. (David Pritzker, dpritzker@acus.gov)
  • Public Private Partnerships: Public-private partnerships are increasingly common as a means for federal agencies to address complex challenges. At the federal level, infrastructure public-private partnerships have been the subject of multiple studies and a presidential memorandum, but much less information is available on other forms of public-private partnerships. Agency experience with public-private partnerships varies, and such partnerships involve novel and crosscutting issues. Because such issues traverse conventional divisions in agency general counsel offices, legal expertise is likewise segmented. This project examines public-private partnerships outside of the infrastructure context with close attention to pertinent legal issues, in order to devise recommendations and best practices. (Alissa Ardito, aardito@acus.gov)
  • Regulatory Waivers and Exemptions: Federal agencies sometimes grant to regulated parties temporary or permanent “waivers” or “exemptions” from regulatory requirements. Legally and theoretically distinct from prosecutorial discretion, waivers and exemptions may be useful tools for agencies and offer benefits to regulated parties. At the same time, they may also come at the cost of fairness, predictability, and accountability. This project draws conceptual distinctions among waivers, exemptions, and prosecutorial discretion; examines current practices in agencies that grant waivers and exemptions; reviews statutory and doctrinal requirements; and seeks to make concrete procedural recommendations for implementing agency best practices. (Alissa Ardito, aardito@acus.gov)
  • Self-Represented Parties in Administrative Hearings: This project developed out of a working group on the subject which was co-chaired by the Conference and the Department of Justice’s Office for Access to Justice. It seeks to study and develop best practices for agencies to improve fairness and efficiency in administrative hearings involving self-represented parties. (Connie Vogelmann, cvogelmann@acus.gov)
  • SSA Federal Courts Analysis: The Social Security Administration (SSA) 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, evaluating federal court interpretation and application of SSA’s regulations and surveying federal court practices and procedures for handling social security cases to identify varying approaches and differential impacts. The goal is to offer SSA recommendations for bringing consistency to the adjudication of disability cases in federal courts. (Gisselle Bourns, gbourns@acus.gov)

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.

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