The ACUS Office of the Chair issues monthly Updates in Federal Agency Adjudication to share adjudication-related developments with agencies, Congress, and the public. This resource is for informational purposes only. Except as noted, these updates do not represent the position of ACUS or the federal government. Please contact Lea Robbins (lrobbins@acus.gov) with new developments, feedback, and corrections. For additional resources, visit www.acus.gov/adjudication.
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.
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