Back in 2014, I published my first full-length law review article as a member of The Ohio State University law faculty—The Ordinary Remand Rule and the Judicial Toolbox for Agency Dialogue—in the George Washington Law Review. In that article, I looked at some four-hundred published circuit-court opinions that dealt with administrative law’s remand rule in the immigration adjudication context and discovered that courts had developed a number of remand-related tools to engage in a dialogue with the agency on remand. Over the years, I’ve continued to write about the remand rule and these dialogue-enhancing tools in a variety of regulatory contexts. But I hadn’t published anything exploring empirically whether there is indeed a dialogue on remand—whether the agency actually listens, speaks back, or is otherwise influenced by the judicial remand and these tools.
I’m excited to finally post to SSRN a draft of a new article that attempts to assess the potential dialogue on remand. This article—Remand and Dialogue in Administrative Law—coincidentally will also be published in the George Washington Law Review (in their annual administrative law issue with a terrific foreword on nondelegation by Kristin Hickman and an article on Chevron deference and Article III by Kent Barnett). This article is coauthored with one of my former research assistants, Jim Saywell, from the original remand project. In Part III.A, we present the remand-related findings from Matt Wiener and my recent study of agency appellate systems that we conduced for the Administrative Conference of the United States.
In Part III.B, Jim and I then spend twenty pages reporting the findings from our review of the two hundred or so agency decisions that were subject to judicial remand in my original study—decisions we received from the agency in highly redacted format through a years-long FOIA request process. Among other findings, we discuss the outcomes on remand, the time taken on remand, the rate of legal representation before the agency, the extent to which the agency engages with the court’s reasoning, and the role that the dialogue-enhancing tools play on remand.
The current draft of the article is available on SSRN here. And here is the abstract:
A bedrock principle of administrative law is that when a court finds an agency has erred, the court generally remands the action for the agency to consider anew (as opposed to the court deciding the matter itself). The conventional understanding is that this ordinary remand rule is part of the suite of judicial deference doctrines in administrative law. In our contribution to the George Washington Law Review’s annual administrative law issue, we argue that this understanding is incomplete—at least when it comes to high-volume agency adjudication. In that context, the vast majority of agency adjudication decisions never make it to federal court. Judicial remands in the cases that do allow the courts to engage in a dialogue with the agency, producing a more systemic effect on the agency adjudication system. Indeed, courts have developed and utilize a variety of tools to engage in a richer dialogue with the agency on remand. Remand, thus, can be a tool for judicial engagement and dialogue, not just one for judicial deference.
This argument, however, assumes that a dialogue between courts and agencies actually takes place—that remand is not just a judicial monologue. This Article explores the empirical realities of that assumption by presenting the findings of two separate studies: a cross-agency study for the Administrative Conference of the United States on agency appellate systems and a FOIA-based study of agency immigration decisions on remand. Although much more empirical work needs to be done, the findings from these studies provide an empirical window into how agencies engage with and respond to courts on remand. In light of these preliminary yet promising findings, we argue that courts (and agencies) should consider how to better engage in a dialogue on remand in order to produce a more systemic effect on high-volume agency adjudication systems.