In 1993, following several years of careful research and deliberation, the Conference’s Office of the Chairman adopted the agency’s Model Adjudication Rules (MARs). Crafted by a working group of experts hailing primarily from federal agencies and private law firms, the MARs are model rules of procedure intended for use in “formal,” trial-type adjudication proceedings. Several federal agencies have used the MARs to improve their existing adjudication rules. Many newer agencies, including the Consumer Financial Protection Bureau, have relied on them to establish brand new procedures.
The field of administrative adjudication has changed in many significant respects since 1993. Advances in electronic discovery, video hearing technology, electronic case management systems, and other tools in the intervening years necessitated a close reexamination of the Conference’s model rules. So too did subsequent revisions to the Federal Rules of Civil Procedure and changes in federal court practice. To that end, in 2016, the Office of the Chairman established a new working group charged with reviewing and, if necessary, revising the 1993 MARs.
Like the previous working group, the current group consists primarily of legal experts from the federal government and private practice. (Working group members are listed below and on the project’s webpage.) Legal academia also has a presence in the persons of David Engstrom of Standard Law School and the group’s able reporter, Kent Barnett of the University of Georgia School of Law. Thomas McCarthy, an administrative law judge with the Federal Mine Safety and Health Review Commission and former president of the Federal Administrative Law Judges Conference, chairs the working group. The Conference staff is represented by Matt Wiener (Vice Chairman and Executive Director of the Conference) and Reeve Bull (Research Director).
The new working group has held five meetings since its 2016 formation, most recently in December 2017. Early on, the group was divided into four subworking groups. Each subworking group was tasked with reviewing and updating a different part of the 1993 MARs. (The model rules are organized into four parts: “General Provisions,” “The Prehearing Stage,” “The Hearing,” and “Appeal.”) Professor Barnett then reviewed and consolidated the revised parts and significantly updated the layout of the mode rules. The working group reviewed each newly-revised rule over the course of three meetings. Professor Barnett will now modify the rules in accordance with the views expressed by working group members during the meetings.
Professor Barnett will complete the second round of revisions in mid-January 2018, at which time he will release the updated draft of the model rules to the working group. The Conference will then share the draft MARs with its Committee on Adjudication, convene a meeting thereof to solicit comments, post the draft on the Conference’s website, and publish a notice in the Federal Register. Following a third round of revisions, the working group will hold its last meeting in early or mid-April 2018. After implementing any final edits, the completed 2018 MARs will be shared with the Council of the Administrative Conference and, lastly, presented to the Assembly of the Conference at the agency’s June 2018 Plenary Session.
Working Group Members and Associated Individuals
Reporter: Kent Barnett, Associate Professor of Law, University of Georgia School of Law
Staff Counsel: Daniel Sheffner, Attorney Advisor, Administrative Conference of the United States
- Thomas McCarthy (Chair), Administrative Law Judge, Federal Mine Safety and Health Review Commission
- Reeve Bull, Research Director, Administrative Conference of the United States
- John Coleman, Deputy General Counsel for Litigation and Oversight, Legal Division, Consumer Financial Protection Bureau (Alternate: Jack Barrett, Senior Litigation Counsel)
- David Engstrom, Professor of Law, Stanford Law School
- Jeffrey Freund, Senior Counsel, Bredhoff & Kaiser, PLLC
- Nancy Griswold, Chief Administrative Law Judge, Office of Medicare Hearings and Appeals, Department of Health and Human Services (Alternate: Brian Haring, Deputy Chief Administrative Law Judge)
- John Irving, Of Counsel, Kirkland & Ellis
- Emery Lee, Senior Research Associate, Federal Judicial Center
- Tommy Rogers, Chairman (Retired), Occupational Safety and Health Review Commission
- Jean King, General Counsel, Executive Office for Immigration Review, Department of Justice (Alternate: Patricia Allen, Associate General Counsel)
- David Shonka, Principal Deputy General Counsel, Federal Trade Commission (Alternate: Kenny Wright, Attorney)
- Matt Wiener, Vice Chair and Executive Director, Administrative Conference of the United States