Opinions on ACUS: U.S. Courts of Appeals

This post is the third in a series exploring how the federal judiciary has referenced the Administrative Conference and its body of work in judicial opinions.  The focus of this post is on the U.S. Court of Appeals other than the D.C. Circuit, which was the subject of our second postOur first post in the series examined references to ACUS work in Supreme Court opinions.

The Conference’s membership includes a few federal judges on U.S. Courts of Appeal other than the D.C. Circuit, all of whom joined the reestablished Conference as Senior Fellows based on their prior Conference participation.  The Second Circuit’s Chief Judge, Robert A. Katzmann, was a Public Member from 1994-1995 and Senior Judge John M. Walker, Jr. was a Special Counsel to the Conference between 1987 and 1992.  Senior Judge S. Jay Plager was the Federal Circuit’s Liaison Member to the Conference from 1991 to 1995.  Judge Plager’s only citation to the Conference’s work, in a 1994 challenge to a reconsideration decision of the United States Patent and Trademark Office, offered contextual background on agency adjudications in examining the delegated reconsideration authority of the agency’s Commissioner.  Judge Plager referenced the Conference’s exhaustive study on the Federal Administrative Judiciary in describing the varied composition of the federal administrative adjudication officer corps.[1]  Stanford Law Professor Michael Asimow is presently updating this study based on a survey conducted by Conference staff under the leadership of Chairman Verkuil.[2]  The Conference hopes that this endeavor will serve a similarly informative function for courts and others in the future.

Since the Conference was founded fifty years ago, federal appellate courts other than the D.C. Circuit or Supreme Court have issued nearly 100 opinions citing its scholarship or recommendations.  Early appellate cases sought to define the rights of individuals and obligations of agencies in agency administrative adjudications, such as whether there was a right to a jury trial in administrative civil penalty cases or to counsel in administrative investigatory proceedings.[3]  Such questions continue to arise in federal appellate case law and appellate judges continue to be informed by Conference publications.  For example, the First Circuit Court of Appeals recently examined the adequacy of a revision to the Nuclear Regulatory Commission’s hearing procedures under the APA, and in light of the Conference’s Administrative Law Judges Manual.[4]

Remarkably, about a quarter of federal appellate cases citing the Conference’s work have examined the availability of attorney fees under the Equal Access to Justice Act (EAJA).  These decisions, in the Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and Federal Circuits, have relied on the Conference’s model rules for guidance in examining novel questions of interpretation under the Act.  In 2003, for example, the Sixth Circuit joined the D.C. Circuit in adopting the Conference’s interpretation of an unappealable “final disposition” for agency administrative proceedings.[5]  In doing so, it rejected OSHA’s more limiting definition, observing that, “the EAJA is a statute of general applicability and OSHA’s interpretation of it is not definitive.”[6]  The court was persuaded by the D.C. Circuit’s argument that the Conference’s interpretation of EAJA in its model rules offered the more reasonable approach.[7]

Courts have also looked to the Conference for guidance in determining whether certain types of agency decisions are subject to the Equal Access to Justice Act, which applies to adversary adjudications “under section 554” of the APA.[8]  In Escobar Ruiz v. INS, the Ninth Circuit held that deportation proceedings did meet this standard, though not technically conducted under the Administrative Procedure Act’s formal proceeding provisions, because they were adversarial and on the record.[9]  It found that the EAJA statute was ambiguous, because “under” might include proceedings that were conducted using similar procedures as those required by the APA.  Given this ambiguity, the Ninth Circuit cited the Conference’s commentary to its model EAJA rules (which recommended that “questions of [EAJA’s] coverage should turn on substance -- the fact that a party has endured the burden and expense of a formal hearing -- rather than technicalities.”) to support a broad reading of the statute’s applicability.[10]

This interpretation of the Conference’s model rules did not go unnoticed by other appellate courts undertaking similar inquiries, several of which agreed that EAJA provision was ambiguous.  In Owens v. Brock, the Sixth Circuit called the Escobar Ruiz court’s reliance on the Conference’s model rules “misplaced” in holding that benefit determinations under the Federal Employees Compensation Act (FECA) were not subject to EAJA.[11]  It countered the Ninth Circuit’s interpretation of the model rules as supporting applicability of EAJA to non-APA formal adjudications by citing the Conference’s statement of concern “that the liberal interpretation of the draft model rules may provide for broader applicability than Congress intended.”[12]  In fact, the Conference had eliminated from its model rules a provision suggesting that awards be available when agencies voluntarily use the procedures available under 5 U.S.C. § 554.[13]  The Sixth Circuit also noted the Conference’s call to agencies to specifically identify the proceedings subject to the APA (and hence to EAJA) in their rules.[14]  The court did not, however, comment on the fact that the agency with responsibility for deportation proceedings had done just that, and did not include deportation cases.[15]  This insight was contributed to the discussion by the Third Circuit soon after, in a case which discussed the Sixth Circuit’s rejection of the Ninth Circuit’s reliance on the Conference’s model rules as part of its explanation for holding that deportation proceedings were not covered by EAJA.[16] 

The Fifth and Eleventh Circuits both found the Third Circuit’s regulatory argument persuasive and held that deportation proceedings were not within the ambit of EAJA.[17]  However, the Fifth Circuit disagreed with the Owens court’s interpretation of the Conference’s model rules as unambiguously foreclosing EAJA awards in proceedings not technically governed by 5 U.S.C.  554; it also did not accept the Sixth Circuit’s wholesale rejection of the Escobar Ruiz court’s reliance on the Conference’s commentary.[18]  Rather, the Fifth Circuit found that the Conference’s concern for agencies that voluntarily adopt formal procedures like those of 5 U.S.C. § 554 (as in the instant case) did not necessarily extend to agencies that Congress requires to employ such procedures.

The Eleventh Circuit’s decision was appealed to the Supreme Court, which acknowledged and settled the conflict among the U.S. Courts of Appeals.[19]  In Ardestani v. INS, the Supreme Court held that deportation proceedings were not covered by EAJA because they were not adjudications “under” 5 U.S.C. § 554.  It rejected the argument that the statute’s definition of adverse adjudication was ambiguous.  Therefore, it found it “immaterial that the Attorney General in 1983 promulgated regulations that conform deportation hearings more closely to the procedures required for formal adjudication under the APA.”[20]  The agency’s voluntary adoption of these procedures did not subject it to the APA or to EAJA.  Justice Blackmun, in an opinion joined by Justice Stevens, dissented.  He argued that the EAJA definition of covered adjudications could fairly be read to support an award of fees in deportation and asylum cases.[21]  Though lower courts had treated the Conference’s model rules and commentary as indicators of how to resolve the potential ambiguity (albeit reaching different conclusions about which approach the model rules favored), neither Supreme Court opinion mentioned them.  

The Conference’s publications and recommendations are naturally more persuasive where they can aid courts in resolving perceived ambiguities.  Opinions on ACUS—in the Supreme Court, the D.C. Circuit, and other U.S. Courts of Appeals—indicate that the Conference’s influence on the federal judiciary is attributable to its unique ability to illuminate agency processes and procedures through applied research and empirical analysis aimed at improving the efficiency, adequacy, and fairness of federal administration.

[1] In re Alappat, 33 F.3d 1526, 1579 n.3 (Fed. Cir. 1994) (Plager, J., concurring) (citing Paul R. Verkuil, Daniel  Gifford, Charles Koch,  Richard  Pierce,  and  Jeffrey  S.  Lubbers, The  Federal Administrative Judiciary (1992)).

[2] See Admin. Conf. of the U.S., Federal Administrative Adjudication, acus.gov/adjudication-sourcebook.

[3] See, e.g., Frank Irey, Jr. v. Occupational Safety & Health Review Commission, 519 F.2d 1200 (3rd Cir. 1975); FCC v. Schreiber, 329 F.2d 517 (9th Cir. 1964).

[4] Citizens Awareness Network, Inc. v. U.S., 391 F.3d 338 (1st Cir. 2004). 

[5] Scafar Contracting, Inc. v. Sec’y of Labor, 325 F.3d 422 (2003).

[6] Id. at 429.

[7] Id. at 428.

[8] 5 U.S.C. § 504(b)(1)(C); 28 U.S.C. § 3523.

[9] Escobar Ruiz v. INS, 838 F.2d 1020 (9th Cir. 1988) (en banc).

[10] Id. (citing Admin. Conf. of the U.S., Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32,900 (June 25, 1981)).

[11] 860 F.2d 1363, 1366 (6th Cir. 1988).

[12] Id. (citing Admin. Conf. of the U.S., Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32,900 (June 25, 1981)).

[13] Admin. Conf. of the U.S., Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32,900 (June 25, 1981).

[14] Owens, 860 F.2d at 1366.

[15] 28 C.F.R. 24.103 (1981).

[16] Clarke v. INS, 904 F.2d 172, 176 (3rd Cir. 1990).

[17] Ardestani v. U.S. Dep’t of Justice, INS, 904 F.2d 1505, 1512 (11th Cir. 1990); Hodge v. U.S. Dep’t of Justice, 929 F.2d 153, 158-59 (5th Cir. 1991) (as corrected, second correction).

[18] Hodge, 929 F.2d  at 158-59.

[19] Ardestani v. INS, 502 U.S. 129 (1991).

[20] Id. at 134.

[21] Id. at 139.