It’s been a busy summer at the Administrative Conference of the United States (ACUS), and we have even more exciting work coming down the pipeline this fall. Read on to learn more about our recently published Model Rules of Representative Conduct, the projects coming before ACUS Committees this fall, and how to stream recordings of our recently concluded public forum on nationwide injunctions.

ACUS Office of the Chair Publishes New Model Rules of Representative Conduct

On September 30, 2024, the Office of the Chair published new Model Rules of Representative Conduct. The Model Rules provide a valuable blueprint for federal agencies that are developing, adopting, or revising regulations governing the conduct of lawyers and others who represent parties in their administrative adjudications.

The Model Rules build upon the Conference’s prior work in Recommendation 2021-9, Regulation of Representatives in Agency Adjudication Proceedings, which identified best practices to assist agencies in considering the need for and content of rules structuring the participation of representatives in their adjudicatory proceedings. In addition to providing these best practices for agencies, Recommendation 2021-9 encouraged ACUS’s Office of the Chair to promulgate model rules of representative conduct that would assist agencies in deploying them.

In 2023, ACUS Chair Andrew Fois convened a working group of subject matter experts—including federal agency officials, representatives who practice before agencies, specialists designated by the American Bar Association, and leading academics—to develop model rules that, as contemplated by Recommendation 2021-9, “account for variation in agency practice and afford agencies the flexibility to determine which rules apply” to their proceedings.

The Office of the Chair extends its earnest thanks to every member of the working group, its chair, Judge Erin M. Wirth (Chief ALJ, Federal Maritime Commission), its reporter, Professor Louis J. Virelli III (Stetson U. College of Law), and its staff counsel, Matthew Gluth (ACUS Dep. Research Dir.), for their sustained engagement, collegial collaboration, and invaluable contributions throughout the development of these Model Rules.

The Model Rules of Representative Conduct are ACUS’s third set of model rules, following the Model Adjudication Rules and the Model Rules for Implementation of the Equal Access to Justice Act.

Fall 2024 Committee Schedule and Projects

Three ACUS standing committees will convene this fall to develop draft recommendations for consideration by the ACUS Assembly at its 82nd Plenary Session on December 12, 2024.

Committee on Adjudication

The Committee on Adjudication, chaired by ACUS Government Member Nadine Mancini (General Counsel, Occupational Safety and Health Review Commission), will convene virtually for its first meeting of the fall at 1 p.m. ET on October 16, 2024, to consider Nonlawyer Assistance and Representation.

Through this project, ACUS will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them. It will 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. Based on the findings of that study, it will provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as guidance on how best to work with different kinds of non-attorney representatives.

The Committee will reconvene for its second meeting on October 30, 2024, at 1 p.m. ET.

A draft report by consultant Amy Widman (Rutgers Law School) will be published on the project webpage before the Committee’s first meeting, as will draft recommendations. If you have any questions about this project or would like to be added to the mailing list for updates, please contact ACUS Attorney Advisor Lea Robbins (lrobbins@acus.gov).

Committee on Regulation

The Committee on Regulation, chaired by ACUS Government Member Helen Serassio (Associate General Counsel, EPA), will convene today, October 4, at 2:30 p.m. ET to begin consideration of Using Algorithmic Tools in Regulatory Enforcement.

In this project, ACUS will study how agencies are using or might use algorithmic tools—including AI and predictive analytics—to detect, investigate, and prosecute current and potential noncompliance with the laws they administer. It will examine the potential benefits and risks of using algorithmic tools to support agencies’ regulatory enforcement efforts and identify policies, practices, and organizational structures agencies can put in place to ensure they enforce the law fairly, accurately, and efficiently.

The Committee will reconvene for its second meeting on October 18, 2024, at 2:30 p.m. ET.

A draft report from project consultant Michael Karanicolas (UCLA Institute for Technology, Law & Policy), along with draft recommendations prepared for the Committee’s consideration, can be found on the project webpage. If you have any questions about this project or would like to be added to the mailing list for updates, please contact ACUS Attorney Advisor Kazia Nowacki (knowacki@acus.gov).

Committee on Rulemaking

The Committee on Rulemaking, chaired by ACUS Public Member Bertrall Ross (U. of Virginia School of Law), will convene at 10 a.m. ET on October 8, 2024, to begin consideration of Public Engagement in Agency Rulemaking Under the Good Cause Exemption.

Through this project, ACUS will study the frequency with which agencies assert the APA’s good cause exemption and recommend best practices to facilitate public engagement when agencies find good cause to forgo notice-and-comment rulemaking procedures. Among other relevant topics, this project will identify best practices for agencies to employ in determining whether to undertake pre- or post-promulgation public engagement efforts with respect to such rules, what types of public engagement to use, and how and when to use information obtained through such public engagement to modify or improve their rules.

The Committee will resume consideration of the project at 10 a.m. ET on October 22, 2024, and, if warranted, conclude its work at a third meeting at 10 a.m. on October 29, 2024.

A draft report by project consultant Mark Squillace (U. of Colorado Law School) and draft recommendations will be published to the project webpage before the Committee’s first meeting. If you have any questions about this project or would like to be added to the mailing list for updates, please contact ACUS Attorney Advisor Ben Birkhill (bbirkhill@acus.gov).

Now Streaming: ACUS Public Forums on Nationwide Injunctions

As frequent readers may recall from my last post, ACUS hosted a multi-panel public forum over the last two weeks to explore issues associated with nationwide injunctions and other forms of universal relief. I am pleased to report that recordings of both panel discussions are now available to stream on the ACUS website.

At the first panel discussion, held on September 27, the authors of ACUS’s June 2024 report, Nationwide Injunctions and Federal Regulatory Programs, described the findings of the report and engaged in a discussion, moderated by Professor Alan Morrison (George Washington U. School of Law), on how nationwide injunctions and universal vacaturs impact agency administration of federal regulatory programs. 

At the second panel discussion, held on October 2, Professors Jonathan Adler (Case Western U. School of Law), Amanda Frost (U. of Virginia School of Law), Alisa Klein (Wilmington U. School of Law), and moderator Adam White (American Enterprise Institute) discussed the opportunities and challenges associated with the provision of universal relief, including how the practice might be affected by decisions issued during the Supreme Court’s 2023-2024 term and the evolving administrative law landscape.

Between the Lines with the Administrative Conference

On the latest episode of Between the Lines with the Administrative Conference, Chair Andrew Fois, Professor Shalini Ray (U. of Alabama School of Law), and ACUS Attorney Advisor Benjamin Birkhill explore the best practices identified in Recommendation 2024-2, Individualized Guidance, and the findings of the report that informed its development. The episode concludes with a new recurring segment, “A Life in Administrative Law,” during which Chair Fois and the Honorable John Vittone, former Chief Administrative Law Judge at the U.S. Department of Labor, discuss the current state of the administrative law landscape and Judge Vittone’s experience serving for more than twenty years as an administrative adjudicator.

New episodes of Between the Lines air on the first Tuesday of each Month from 1-2 p.m. ET on Federal News Network (AM 1500) and are available to stream on-demand shortly thereafter.

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This post is part of the Administrative Conference Update series, which highlights new and continuing projects, upcoming committee meetings, proposed and recently adopted recommendations, and other news about the Administrative Conference of the United States. The series is further explained here, and all prior posts in the series can be found here.

Conrad Dryland serves as Attorney Advisor, Congressional Liaison & Special Counsel to the Chair at the Administrative Conference of the United States. Any views expressed belong to the author and do not necessarily represent the views of the Conference, its members, or the federal government.