Updates in Federal Agency Adjudication

ADMINISTRATIVE REVIEW

H.R. 7793 (Mar. 22). Sponsored by Rep. Mike Bost (R-IL-12), this bill was introduced in the House and referred to the House Committee on Veterans’ Affairs to amend title 38 of the United States Code to provide an individual with a claim for benefits under the laws administered by the Secretary of Veterans Affairs with more options to appeal a decision of the Secretary with respect to such claim to the Board of Veterans’ Appeals, and for other purposes.

CONGRESS

Congressional Hearing on Agency Adjudication (Mar. 20). The House Judiciary Subcommittee on the Administrative State, Regulatory Reform, and Antitrust held a hearing titled Reining in the Administrative State: Agency Adjudication and Other Agency Action to “examine problems that stem from how some federal agencies sue defendants in the agencies’ own in-house courts . . . [and] explore ways Congress should improve the status quo.”

CONGRESSIONAL AFFAIRS

Congressional Constituent Service Inquiries (ACUS). ACUS’s Committee on Administration and Management held its first meeting on March 28 to consider a project examining how agencies receive, process, and respond to congressional inquiries made on behalf of constituents who need assistance accessing federal programs or navigating adjudicative and other similar administrative processes. The project will identify best practices for agencies to promote quality, efficiency, and timeliness in agency procedures for responding to such inquiries. Among other topics, the project will address the body of law governing agency responses to congressional constituent service inquiries; the extent to which agencies have developed procedures for receiving, processing, and responding to such inquiries; and the scope, content, internal dissemination, and public availability of these procedures where adopted. The Committee is informed by a draft report by consultant Sean Kealey (Boston University).

ENFORCEMENT

Standards of Actions at Initial Stage of Enforcement Matters (FEC, Mar. 20). The Federal Election Commission issued a policy statement to explain and simplify the actions that the Commission will take at the initial stage of enforcement proceedings to address a Matter Under Review, which, effective April 19, are to either dismiss a Matter or find “reason to believe” that a person has committed, or is about to commit, a violation of the Federal Election Campaign Act.

MANAGEMENT AND OPERATIONS

Processing of Survivors Benefits Claims (VA, Mar. 11). The Department of Veterans Affairs proposed to amend its adjudication regulations that address the processing of survivors benefits claims. Specifically, the proposed rule would clarify that if the VA determines that a surviving spouse or child is eligible for dependency and indemnity compensation the VA would concurrently deny the co-existing claim for survivors pension, except where paying the survivors pension would be more beneficial to the claimant. Comments are due May 10.

Budget of the U.S. Government FY 2025 (White House, Mar. 11). The President’s Budget for Fiscal Year 2025 contains several proposals to improve timeliness in agency adjudication. For example, the Budget requests specific funding for the Executive Office for Immigration Review to enhance the immigration courts and help address the backlog of over 2.4 million currently pending cases. The Budget also requests specific funding for the Social Security Administration to improve customer service at SSA’s field offices, state disability determination services, and teleservice centers, and add staff to process more disability claims and reduce the wait times for decisions.

Corrected Filing Fees (DHS, Mar. 21). The Department of Homeland Security issued a correction to a final rule published January 31 that adjusted the fees for certain immigration and naturalization benefit requests charged by the U.S. Citizenship and Immigration Services. The corrections include fee exemptions and waivers that were inadvertently omitted in the preamble or regulatory text and technical and typographical errors that were identified in the final rule.

PROCEDURAL RULES

Motion to Amend Practice and Procedures (USPTO, Mar. 4). The United States Patent and Trademark Office issued a notice of proposed rulemaking to revise the rules for amending patents in trial proceedings under the Leahy-Smith America Invents Act before the Patent Trial and Appeal Board. The proposed changes would make permanent certain provisions of USPTO’s motion to amend (MTA) pilot program by providing patent owners with the option to (1) request non-binding preliminary guidance from PTAB in an original MTA and (2) file a revised MTA after receiving PTAB’s preliminary guidance without the need for prior authorization. The proposed changes would also revise the rules that allocate burdens of persuasion in connection with MTAs. Comments are due May 3.

FAA Airmen Certificate Appeals (DHS, Mar. 12). The Department of Homeland Security issued a final rule codifying the procedures that apply to Federal Aviation Administration certificate appeals before the Transportation Security Oversight Board (TSOB). The final rule amends an interim final rule published on August 9, 2022 to permit parties to consent to electronic service of documents; include a definition of the substantial evidence standard of review that applies to the proceedings; provide a process for the TSOB Review Panel to remand the case to the ALJ upon motion of the parties and a showing of good cause; and include the 60-day Court of Appeals filing deadline for appealing the TSOB Review Panel’s decision. The final rule takes effect on May 13.

Claims of Evasion of Antidumping and Countervailing Duty Orders (CBP, Mar. 18). The United States Customs and Border Protection issued a final rule adopting, with changes, interim regulations that were published August 22, 2016, setting forth procedures for the investigation of claims of evasion of antidumping and countervailing duty orders. Among other things, the final rule amends certain procedures for initiating and conducting investigations and makes clarifying and technical changes to the process for requesting administrative review of a determination as to evasion. The final rule takes effect April 17.

Revised Rules of Practice (USITC, Mar. 28). The United States International Trade Commission issued a notice of proposed rulemaking that would amend its Rules of Practice and Procedure regarding rules of general application, safeguards, antidumping and countervailing duty investigations, and section 387 adjudication and enforcement. Among other things, the proposed revisions would permanently adopt existing temporary waivers of paper-based filings and paper copy requirements and permit electronic filing and service of confidential and public documents; require supplementary materials, excluding witness testimony, in non-adjudicative hearings to be filed no later than the day of the hearing; and make clarifying revisions to its general provisions for attorneys and others practicing and appearing before the USITC. Comments are due by May 20.

Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.

PROGRAM INTEGRITY

Addressing SSA Overpayments (SSA, Mar. 20). The Commissioner of Social Security announced four steps the agency is taking to address the issue of improper payments: (1) effective March 25, the default withholding rate for those who fail to respond to SSA’s demand for repayment will decrease from 100% to 10% of an overpaid beneficiary’s monthly Social Security benefit; (2) the burden of proof for determining whether the beneficiary is at fault in causing the overpayment will be shifted away from the beneficiary; (3) the term for repayment plans is extended from 36 months to 60 months; and (4) the process for requesting a waiver of repayment for overpaid beneficiaries who believe they are not at fault or without the ability to repay will be made easier.

REPRESENTATION

Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It will also provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. Amy Widman (Rutgers Law School) is serving as consultant.

Model Rules of Representative Conduct (ACUS). The full working group met March 6 and March 27 to begin finalizing the model rules of representative conduct. Following the adoption of Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings,Chair Fois convened a working group of public- and private-sector representatives to develop these model rules, which will help federal agencies amend or develop their own rules consistent with the best practices identified in Recommendation 2021-9. The working group was divided into four subcommittees—Qualifications, Conduct, Enforcement, and Transparency—which have all met and completed their work over the past year. The full working group is scheduled to meet again April 9.

Representative Fee Cap Increase (SSA, Mar. 29). Effective this fall, the Social Security Administration announced an increase to the fee cap for claimants’ representatives, from $7,200 to $9,200, under the fee agreement process. SSA also plans to tie future increases to the annual cost-of-living adjustment.

TECHNOLOGY

Mariner Credentialing Program Transformation (USCG, Mar. 14). In preparation of a fully electronic IT system, the Coast Guard issued a notice of proposed rulemaking that would allow for the electronic submission of information in the Mariner Credentialing Program. Specifically, the Coast Guard proposes to allow for the electronic submission of information required for credentialing, appeals involving course approvals and merchant mariner personnel issues, and eligibility requests for a no-fee Merchant Mariner Credential. The proposed rule would also require the electronic payment of mandatory fees through Pay.Gov, remove the requirement for prospective mariners to take an oath before an authorized official, and change the requirements for the Certificate of Discharge to Merchant Mariners. Comments are due May 13.

Appointed Representative Status Reports (SSA, Mar. 19). The Social Security Administration announced an upgrade to its electronic Appointed Representative Services application that allows appointed representatives to access a list of all their cases pending at the initial and reconsideration levels, in addition to cases pending at the hearings and Appeals Council levels.

Expanded Options for Electronic Signatures (USPTO, Mar. 22). The United States Patent and Trademark Office amended its regulations to provide for the broader permissibility of electronic signatures in patent correspondence. Specifically, the new rule permits the use of any form of electronic signatures specified by the USPTO Director. This currently consists of electronic signatures generated via third-party document-signing software, such as DocuSign and Acrobat Sign. The new rule also allows electronic signatures to be used in correspondence that is mailed, faxed, hand delivered, or submitted via the USPTO patent electronic filing system.

Updated Filing Procedures (FLRA, Mar. 26). To promote electronic filing, the Federal Labor Relations Authority issued a final rule updating procedures for obtaining and filing forms and other documents in proceedings before the Federal Service Impasses Panel and requiring appointments to file forms or documents in-person in FSIP matters. The final rule takes effect April 25.

Electronic Filings for Judicial Review (USPTO, Mar. 29). The United States Patent and Trademark Office amended its regulations to allow and require notices of appeal, notices of election, and requests for extension of time to file a notice of appeal or commence a civil action to be filed by email or by Priority Mail Express®, instead of by regular mail or hand delivery.

ACCESS TO JUSTICE

VA Equity Action Plan (VA, Feb. 14). The Department of Veterans Affairs released its FY 2024 Equity Action Plan, which, among other things, outlines strategies to improve benefit outcomes by removing barriers that underserved eligible veterans experience in the adjudication and promulgation of disability compensation benefits.

ADJUDICATORS

H.R. 7225 - Administrative Law Judges Competitive Service Restoration Act (Feb. 5). Sponsored by Rep. Gerald E. Connolly (D-VA-11), this bill was introduced in the House and referred to the House Committee on Oversight and Accountability to restore administrative law judges to the competitive service, and for other purposes.

ADMINISTRATIVE REVIEW

Appellate Jurisdiction Change (MSPB, Feb. 6). The Merit Systems Protection Board proposed a revision to 5 C.F.R. § 1201.3, which contains a list of the types of appeals the MSPB has been granted jurisdiction to hear, to include a new appeal right proposed by OPM that would give certain federal employees moved into the excepted service, or moved between schedules in the excepted service, the ability to appeal any loss of appeal rights stemming from that move to the MSPB. Comments are due March 7.

Supervisory Appeals Process (CFPB, Feb. 22). The Consumer Financial Protection Bureau revised its internal supervisory appeals process for institutions seeking to appeal a compliance rating or an adverse material finding. Specifically, the revised process broadens the pool of potential members of the appeals committee; provides a new option for resolving appeals by remanding the matter to CFPB Supervision staff for consideration of a modified finding; allows institutions to appeal any compliance rating that was issued to them instead of only adverse ratings; and includes additional clarifying changes. The revised supervisory appeals process is applicable as of February 22.

CONGRESSIONAL AFFAIRS

Congressional Constituent Service Inquiries (ACUS). ACUS is examining how agencies receive, process, and respond to congressional inquiries made on behalf of constituents who need assistance accessing federal programs or navigating adjudicative and other similar administrative processes. The project will identify best practices for agencies to promote quality, efficiency, and timeliness in agency procedures for responding to such inquiries. Among other topics, the project will address the body of law governing agency responses to congressional constituent service inquiries; the extent to which agencies have developed procedures for receiving, processing, and responding to such inquiries; and the scope, content, internal dissemination, and public availability of these procedures where adopted. Sean Kealey (Boston University) is serving as consultant.

MANAGEMENT AND OPERATIONS

Decisional Disparities in Administrative Programs (ACUS). ACUS has launched a project to study unwarranted disparities in enforcement and adjudication decisions under federal administrative programs.

USCIS Backlog Reduction (USCIS, Feb. 9). The United States Citizenship and Immigration Services released data showing progress in the backlog reduction of immigration cases, which include adjudications of immigration benefits and requests for naturalization, lawful permanent residency, employment visas, asylum, credible fear, and foreign adoptions. In FY 2023, USCIS reported receiving 10.9 million filings and completing more than 10 million pending cases, reducing its overall backlogs by 15%. 

Use of Electronic Payroll Data in Program Administration (SSA, Feb. 15). The Social Security Administration issued proposed rules pursuant to section 824 of the Bipartisan Budget Act of 2015, which authorizes SSA to enter into information exchanges with payroll data providers to obtain wage and employment information. SSA plans to utilize automated, electronic information exchanges to adjust payment amounts, make entitlement or eligibility determinations for the SSDI and SSI programs, and prevent improper payments of these benefits for individuals who authorize SSA to obtain wage and employment information from a participating payroll data provider. Comments are due April 15.

Effectuation of Disability Benefits (SSAB, Feb. 29). The Social Security Advisory Board issued a report on the additional steps that the Social Security Administration must take to pay disability benefits to someone after it has deemed that person eligible or entitled to such benefits. This is known as the effectuation process. The report analyzes data and recommends specific systems, policy, and operational changes that SSA could make to improve the speed and accuracy of effectuation. 

PROCEDURAL RULES

Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.

REPRESENTATION

SSA Equity Action Plan (SSA, Feb. 14). The Social Security Administration released its updated Equity Action Plan, which, among other things, outlines the agency’s accomplishments and milestones for ensuring equitable service for unrepresented claimants in the disability application process.

Expanding Opportunities to Appear Before PTAB (USPTO, Feb. 21). The United States Patent and Trademark Office issued a notice of proposed rulemaking to revise the rules for admission to practice before the Patent Trial and Appeal Board (PTAB) in proceedings under the Leahy-Smith America Invents Act. Specifically, the proposed rules would give parties the option to designate non-registered practitioners who are recognized pro hac vice as lead counsel; excuse parties from the requirement to designate back-up counsel upon a showing of good cause; establish a streamlined alternative procedure for recognizing counsel pro hac vice that is available when counsel has previously been recognized pro hac vice in a different PTAB proceeding; and clarify that those recognized pro hac vice have a duty to inform PTAB of subsequent events that render inaccurate or incomplete representations they made to obtain pro hac vice recognition. Comments are due May 21.

Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It will also provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. Amy Widman (Rutgers Law School) is serving as consultant.

Model Rules of Representative Conduct (ACUS). The full working group will meet on March 6 to begin finalizing the model rules of representative conduct. Following the adoption of Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings, Chair Fois convened a working group of public- and private-sector representatives to develop these model rules, which will help federal agencies amend or develop their own rules consistent with the best practices identified in Recommendation 2021-9. The working group is divided into four subcommittees—Qualifications, Conduct, Enforcement, and Transparency—which have all met and completed their work over the past year.

TECHNOLOGY

Misuse of AI in PTAB and TTAB Proceedings (USPTO, Feb. 6). The United States Patent and Trademark Office issued guidance clarifying that its existing rules apply when AI is used to draft submissions in proceedings before the Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB). For example, all submissions must be reviewed for errors or omissions and the accuracy of all factual and legal representations must be verified, regardless of how the submission was prepared or generated, and submissions made with AI assistance that fail to adhere to these obligations are subject to the same sanctions.

Electronic Filing Mandate (DOL, Feb. 8). The Department of Labor published a final rule mandating electronic filing in proceedings before the Benefits Review Board for any persons represented by an attorney or lay representative. The e-filing mandate includes exceptions for good cause and self-represented parties, who may continue to use conventional means of filing. The rule takes effect March 11.

Representative Availability Portal (SSA, Feb. 12). The Social Security Administration issued a notice about its plan to roll out a new web-based portal for appointed representatives to submit their monthly availability to SSA for ALJ hearings.

Simplified Filing Requirements (FLRA, Feb. 15). As part of its continued move towards fully electronic case files, the Federal Labor Relations Authority revised its regulations to eliminate the requirement that parties file four copies of original documents that they file with the FLRA; the OGC; and the FLRA’s Administrative Law Judges, Regional Directors, and Hearing Officers. The FLRA also proposed regulatory revisions that would promote electronic filing in proceedings before the Federal Service Impasses Panel and require appointments to file forms or documents in-person in FSIP matters. Comments are due March 18.

APPOINTMENT AND REMOVAL

Raper v. Commissioner of Social Security (Jan. 3). The Eleventh Circuit held that there is no Appointments Clause violation when an earlier decision made by an unconstitutionally appointed ALJ is vacated on the merits and remanded to the same ALJ, who is now constitutionally appointed. Disagreeing with the Fourth and Ninth Circuits, which reached the opposite conclusion, the Eleventh Circuit reasoned that the District Court’s merits-based vacatur of the ALJ’s first decision “eliminated the taint of the unconstitutional appointment.” When the first decision was vacated, it became void with no legal effect, meaning the ALJ “started fresh” and “the entire second administrative adjudication was conducted by a constitutionally appointed ALJ.”

CONGRESSIONAL AFFAIRS

Congressional Constituent Service Inquiries (ACUS). ACUS is examining how agencies receive, process, and respond to congressional inquiries made on behalf of constituents who need assistance accessing federal programs or navigating adjudicative and other similar administrative processes. The project will identify best practices for agencies to promote quality, efficiency, and timeliness in agency procedures for responding to such inquiries. Among other topics, the project will address the body of law governing agency responses to congressional constituent service inquiries; the extent to which agencies have developed procedures for receiving, processing, and responding to such inquiries; and the scope, content, internal dissemination, and public availability of these procedures where adopted. Sean Kealey (Boston University) is serving as consultant.

JUDICIAL REVIEW

Loper Bright Enterprises v. Raimondo (U.S. Supreme Court). Oral arguments were heard on January 17 in tandem with those in Relentless, Inc. v. Department of Commerce. Both cases present the same question: whether the Court should overrule Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency. Although these cases do not involve agency interpretations of statutes announced in adjudicative orders, the Court’s forthcoming decision may affect whether and when reviewing courts must defer to such interpretations.

MANAGEMENT AND OPERATIONS

Revised Filing Fees (DHS, Jan. 31). The Department of Homeland Security issued a final rule adjusting the fees for certain immigration and naturalization benefit requests charged by the U.S. Citizenship and Immigration Services. The final rule also expands fee exemptions for humanitarian filings and adoptive families.

Decisional Disparities in Administrative Programs (ACUS). ACUS is accepting proposals from individuals interested in serving as a consultant to study unwarranted disparities in enforcement and adjudication decisions under federal administrative programs. Submissions are due by February 23.

PROCEDURAL RULES

Copyright Claims Board Smaller Claims Procedures (USCO, Jan. 16). The U.S. Copyright Office adopted a final rule amending procedures for “smaller claims” proceedings before the Copyright Claims Board, in which total damages sought do not exceed $5,000 exclusive of attorneys' fees and costs.

Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.

REPRESENTATION

Study of the Patent Pro Bono Programs (USPTO, Dec. 29). The Unleashing American Innovators Act required the Director of the United States Patent and Trademark Office to complete a study of the patent pro bono programs, which provide financially under-resourced inventors and small businesses with free legal counsel to assist with preparing, filing, and prosecuting patent applications. The results of the study were reported to Congress, finding, among other things, that the regional patent pro bono programs effectively expand access to the patent system to historically underserved communities and include a significant number of non-attorney advocates (registered patent agents) who support the program.

Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication.

Model Rules of Representative Conduct (ACUS). Following the adoption of Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings, Chair Fois convened a working group of public- and private-sector representatives to develop model rules of representative conduct. The model rules will help federal agencies amend or develop their own rules consistent with the best practices identified in Recommendation 2021-9. The working group is divided into four subcommittees: Qualifications, Conduct, Enforcement, and Transparency. The Qualifications and Conduct Subcommittees have completed their work, and the Enforcement and Transparency Subcommittees had a joint meeting on February 1.