Recommendations

The Equal Access to Justice Act (EAJA), first enacted in 1980, authorizes the award of attorney fees and other expenses to certain individuals, small businesses, and other entities who prevail against the federal government in judicial proceedings and certain adversarial agency adjudicative proceedings, when the position of the government is not substantially justified.[1] The stated purpose…

Federal regulatory agencies are subject to various requirements to conduct economic analysis when they prepare new regulations. Executive Order 12,866[1] requires that agencies (other than what it designates as “independent regulatory agencies”)[2] conduct a “regulatory impact analysis” (RIA) for their “significant regulatory actions,” which include regulations likely to have an annual…

A fundamental characteristic of agency adjudications that incorporate a legally required evidentiary hearing is the existence of an exclusive record for decision making.[1] The exclusive record in adjudications regulated by the formal-hearing provisions of the Administrative Procedure Act (APA) consists of the “transcript of testimony and exhibits, together with all papers and requests filed…

The federal government relies on both political appointees and career civil servants to operate effectively. Federal law provides for over 1,200 agency positions whose occupants must be appointed by the President with the advice and consent of the Senate (PAS positions).[1] But there are often numerous vacancies in these positions—not only at the start of every administration, but also at…

Presidential appointees and the members of the Senior Executive Service (SES) who perform significant leadership responsibilities sit at the highest levels of federal agencies.[1] In December 2016, the federal government included 1,242 Senate-confirmed, presidentially appointed positions (PAS positions) and 472 other presidentially appointed positions (PA positions).[2] The SES included 8,156…

Attorneys serve crucial roles within federal agencies. They defend agencies in litigation, draft regulations, investigate complaints, and resolve legal issues surrounding information disclosure, among their many functions. Attorneys support nearly all the operations of agencies, helping to ensure their fair and lawful functioning. Therefore, it is critical that agencies hire a corps of highly…

The Paperwork Reduction Act (PRA) created the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget to oversee information policy in the executive branch.[1] OIRA’s oversight responsibilities include the review and approval of federal agencies’ information collections from the public. Information collections are government requests for structured…

If a court holds portions of a rule unlawful, and the agency has been silent about severability, then the default remedy is to vacate the entire rule, including those portions that the court did not hold unlawful.[1] This outcome can impose unnecessary costs on the agency, if it chooses to re-promulgate the portions of the rule that the court did not hold unlawful but nonetheless set aside,…

Courts and adjudicative agencies have increasingly come to rely on technology to manage various aspects of their adjudicative activities. Some of these federal agencies have adopted and implemented a form of electronic management for their casework, but others have not done so. Although practical considerations or resource constraints may sometimes weigh against the use of an electronic case…

Recusal, the voluntary or involuntary withdrawal of an adjudicator from a particular proceeding, is an important tool for maintaining the integrity of adjudication. Recusal serves two important purposes. First, it helps ensure that parties to an adjudicative proceeding have their claims resolved by an impartial decisionmaker. This aspect of recusal is reflected in the Due Process Clause, as…