Update on the Sourcebook on Federal Administrative Adjudication Outside the APA

This article was co-authored by Michael Asimow, Professor of Law at Stanford Law School, and Francis Massaro, Attorney Advisor at ACUS

While much attention on agency adjudication focuses on hearings involving Administrative Law Judges (ALJs) under the Administrative Procedure Act (APA), a substantial portion of federal agency adjudication occurs outside the APA.  In 2016, ACUS undertook a project to evaluate adjudicatory schemes that require evidentiary hearings but are not subject to the APA.

Professor Michael Asimow of Stanford Law School researched several adjudicatory schemes and wrote ACUS’ report for this project. His report differentiated agency adjudicatory schemes and categorized them as “Type A,” “Type B,” and “Type C” adjudication. In Type A adjudication, sections 554, 556, and 557 of the APA apply and specify procedural requirements. ALJs usually preside over Type A hearings. The APA, on the other hand, does not apply to Type B and Type C adjudication. Type B adjudication involves a legally required evidentiary hearing, but Administrative Judges rather than ALJs preside over Type B hearings. In addition, the agency’s regulations rather than the APA prescribe the procedures the agency will follow. Type C adjudication does not require evidentiary hearings and is properly referred to as “informal adjudication.”

Professor Asimow’s report focused on Type B adjudication schemes and evaluated about a dozen Type B adjudication schemes at several agencies, including the Board of Veterans’ Appeals, the Patent Trial and Appeal Board, the Merit Systems Protection Board, and the Immigration Courts. It observed that Type B adjudication should not be referred to as “informal adjudication,” because it is often at least as “formal” as Type A proceedings. The report relied on an ACUS database cataloging agency adjudicatory schemes and caseload statistics.

Based on Professor Asimow’s research and report, ACUS adopted Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative Procedure Act. Recommendation 2016-4 provides a list of best practices for adopting and revising procedural regulations governing Type B adjudication. These best practices relate to the integrity of the decisionmaking process, hearing practices, and pre- and post-hearing procedures.

Following adoption of Recommendation 2016-4, ACUS undertook a project to develop a comprehensive guide on Type B and Type C adjudication to be entitled Sourcebook of Adjudication Outside the Administrative Procedure Act. Professor Asimow will build on his initial report and provide additional information regarding Type B adjudication schemes. In addition, the Sourcebook will analyze Type C “informal adjudication” schemes, which include a vast range of disputes about loans and grants and a variety of regulatory and licensing programs. In Type C adjudication, agencies can prescribe their own procedures but are subject to the requirements of sections 555 and 558 of the APA and due process. The Sourcebook will discuss these statutory and constitutional constraints and propose a set of best practices for Type C adjudication.