I am honored to join Notice & Comment to revive the briefly dormant Administrative Conference Updates Series, which will provide regular updates on the work of the Administrative Conference of the United States (ACUS). This series will be your one-stop-shop for all the latest ACUS news, from information on new and ongoing projects to announcements of committee meetings, upcoming roundtables, and implementation successes. Please never hesitate to reach out to me at firstname.lastname@example.org with any questions or suggestions.
ACUS Assembly Adopts Three New Recommendations
On December 15, 2022, the ACUS Assembly convened in its 78th Plenary Session to consider and adopt three new recommendations:
- Recommendation 2022-4, Precedential Decision Making in Agency Adjudication. This recommendation identifies best practices on the use of precedential decisions in agency adjudication. It addresses whether agencies should issue precedential decisions and, if so, according to what criteria; what procedures agencies should follow to designate decisions as precedential and overrule previously designated decisions; and how agencies should communicate precedential decisions internally and publicly. It also recommends that agencies codify their procedures for precedential decision making in their rules of practice. The Assembly-adopted recommendation, accompanying research report, and submitted comments are available on the ACUS website. For additional information, please contact Matthew Gluth (email@example.com).
- Recommendation 2022-5, Regulatory Enforcement Manuals. This recommendation identifies best practices for agencies regarding the use and availability of enforcement manuals—that is, documents that provide agency personnel with a single, authoritative resource for enforcement-related statutes, rules, and policies. It recommends that agencies present enforcement manuals in a clear, logical, and comprehensive fashion; periodically review and update them as needed; ensure enforcement personnel can easily access them; and consider making manuals, or portions of manuals, publicly available. The Assembly-adopted recommendation, accompanying research report, and submitted comments are available on the ACUS website. For additional information, please contact Alexandra Sybo (firstname.lastname@example.org).
- Recommendation 2022-6, Public Availability of Settlement Agreements in Agency Enforcement Proceedings. This recommendation identifies best practices for providing public access to settlement agreements reached during administrative enforcement proceedings. It recommends that agencies develop policies addressing when to post such agreements on their websites; provides factors for agencies to consider in determining which agreements to post on their websites; and identifies best practices for presenting settlement agreements in a clear, logical, and accessible manner without disclosing sensitive or otherwise protected information. The Assembly-adopted recommendation, accompanying research report, and submitted comments are available on the ACUS website. For additional information, please contact Alexandra Sybo (email@example.com).
New Assembly Projects & Consultant RFPs
ACUS recently launched three new projects that are anticipated to result in recommendations, and we’re seeking consultants for all three. If you are interested in serving as a consultant, please see the requests for proposals for more details.
- Congressional Constituent Service Inquiries. This project will examine how federal 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. Based on that study, the project will identify best practices 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.
- Improving Timeliness in Agency Adjudication. This project will survey strategies—including procedural, technological, personnel, and other reforms—that agencies have used or might use to address backlogs or delays in administrative adjudication. Based on this survey, it will identify best practices to help agencies devise plans to promote timeliness in administrative adjudication, in accord with principles of fairness, accuracy, and efficiency. The project will also consider potential legislative reforms, if warranted.
- User Fees. This project will recommend best practices for agencies—and Congress, if warranted—to consider in designing and implementing user fees in administrative programs. It will examine, among other topics, how Congress and agencies determine when user fees are appropriate; how agencies determine fair and reasonable user fees for specific programs; how they engage with the public in determining user fees; and how often they review their user fee programs.
Recent Implementation Successes
Procedural Rules for SSA Litigation: In December 2016, the ACUS Assembly adopted Recommendation 2016-3, Special Procedural Rules for Social Security Litigation in District Court. This recommendation, informed by a comprehensive report by Professors Jonah Gelbach and David Marcus, encouraged the Judicial Conference of the United States to develop a uniform set of procedural rules for cases in which an individual sought district court review of a final administrative decision by the Commissioner of Social Security. The report identified widely differing district court procedures for these cases.
During the four years following adoption of Recommendation 2016-3, the Judicial Conference’s Advisory Committee on Civil Rules drafted and refined the supplemental rules. During deliberations before the Civil Rules Advisory Committee, Judge Sara Lioi – then a member of the Committee – noted it was significant that the project began with a proposal by ACUS, bolstered by a thorough study by two leading scholars.
An amendment to the Federal Rules of Civil Procedure establishing the new supplemental rules for Social Security Litigation was adopted by the Supreme Court and transmitted for congressional review on April 11, 2022. At the conclusion of the congressional review period – during which no action was taken to amend, reject, or delay the amendment – the supplemental rules took effect on December 1, 2022.
Public Identification of Agency Officials: In December 2019, the ACUS assembly adopted Recommendation 2019-8, Public Identification of Agency Officials. That recommendation promoted public availability of real-time information about high-level officials at federal agencies and encouraged agencies to publish on their websites basic information about high-level agency leaders, identify vacant leadership positions, and acting officials.
On December 23, 2022, President Biden signed the Periodically Listing Updates to Management (PLUM) Act into law as part of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (Pub. L. 117-263). First introduced in June 2020, the PLUM Act requires OPM to establish and maintain a current, publicly available directory of senior government leaders online. Rep. Carolyn Maloney, who introduced the bill in the House, has explained that the measure was intended to “implement recommendations made by GAO and the Administrative Conference of the United States.”
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 is an Attorney Advisor & Special Counsel to the Chair at the Administrative Conference of the United States. Views expressed are those of the author and do not necessarily represent the views of the Administrative Conference or the federal government.