Judicial Review

Committee:

Recommendation 2013-4 – Administrative Record in Informal Rulemaking offers best practices for agencies in the compilation, preservation, and certification of records in informal rulemaking, and it supports the judicial presumption of regularity for agency administrative records except in certain limited circumstances.  

Committee:

Recommendation 2019-1 – Agency Guidance Through Interpretive Rules identifies ways agencies can offer the public the opportunity to propose alternative approaches to those presented in an interpretive rule and to encourage, when appropriate, public participation in the adoption or modification of interpretive rules.

Committee:

Recommendation 2017-5 – Agency Guidance Through Policy Statements, formerly titled Agency Guidance, provides best practices to agencies on the formulation and use of policy statements. It lists steps that agencies can take to remain flexible in their use of policy statements and to encourage, when appropriate, public participation in the adoption or modification of policy statements.

Committee:

The Congressional Review Act (“CRA”) implements a process for Congressional review of agency rules.  5 U.S.C.

Committee:

Statement #19 – Issue Exhaustion in Pre-Enforcement Judicial Review of Administrative Rulemaking examines judicial application of an issue exhaustion requirement in pre-enforcement review of administrative rulemaking.

Committee:

Recommendation 2012-6 – The Need to Reform 28 U.S.C. § 1500 urges Congress to repeal Section 1500, which divests the U.S. Court of Federal Claims of jurisdiction when a plaintiff has claims against the government based on substantially the same operative facts pending in another court, and replace it with a provision that would create a presumption that in such circumstances, later-filed actions would be stayed.

Committee:

Recommendation 2013-6 – Remand Without Vacatur examines judicial remand of an agency decision for further consideration while allowing the decision to remain in place. It examines this remedy and equitable factors that may justify its application. The recommendation offers guidance for courts that remand agency actions and for agencies responding to judicial remands.  

Committee:

Recommendation 2018-2 – Severability in Agency Rulemakingformerly titled Minimizing the Cost of Judicial Review, encourages federal agencies that anticipate litigation over their rules to consider early in the rulemaking process whether a rule is severable—that is, divisible into portions that can and should function independently. It also identifies steps agencies should take if they intend that portions...

Committee:

Recommendation 2016-3 – Special Procedural Rules for Social Security Litigation in District Court encourages the Judicial Conference of the United States to develop a uniform set of procedural rules for cases under the Social Security Act in which an individual seeks district court review of a final administrative decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g).