It is only fitting that on the day the blog launches a new series — The Administrative Conference Update — by our new regular blogger Emily Bremer (welcome!) that I highlight an important new report from the Administrative Conference of the United States (ACUS).
With Professor Michael Asimow as the academic consultant, ACUS has spent the last few years chronicling the role of informal agency adjudication in the federal regulatory state. SPOILER ALERT: The vast majority of federal regulatory actions do not take the form of rulemaking or formal adjudication before an administrative law judge (ALJ) as contemplated by the Administrative Procedure Act (APA). Instead, agencies regulate using less-formal adjudicatory means. Asimow and ACUS have been trying to document those practices and, with the help of Stanford Law School, have launched a website where you can explore these various agency practices.
As part of this project, ACUS is considering a number of critical best practices for certain of those adjudications (what Asimow calls “Type B adjudications” where evidentiary hearings are required but the proceedings are not governed by the APA’s adjudication provisions) based on a new report by Asimow. Here’s an explanation of the study from the introduction:
This study concerns federal administrative adjudication that consists of individualized decisionmaking through legally required evidentiary hearings that is not regulated by the adjudication provisions of the Administrative Procedure Act (APA). I refer to this as Type B adjudication. Type A adjudication is regulated by the APA, whereas Type C adjudication does not utilize legally required evidentiary hearings to make adjudicatory decisions. This study proposes best practices that agencies engaged in Type B adjudication could adopt in procedural regulations.
This study proceeds as follows: Part I contains definitions and discusses the scope of the study and the Administrative Conference of the United States (ACUS) federal adjudication database. Part II discusses the problem of differentiating Types A, B, and C adjudication. Part III furnishes statistical data about the world of Type B adjudication. Part IV proposes an ACUS recommendation for best practices in Type B adjudication. The Appendix consists of ten “deep dive” memoranda that represent a fair sample of Type B adjudicating schemes.
Definitely go give the full report a read here. A number of critically important recommendations have emerged from this report — recommendations that ACUS will consider at its plenary session in December. The current draft of those recommendations are here. If you have comments on the report and recommendations, you can lodge them with ACUS here.
As you’ll see if you take a look at the draft recommendations, the recommendations focus primarily on ensuring that these Type B agency adjudications are fair — that individuals subject to the adjudications have notice and an opportunity to be heard, that the agency adjudicators are impartial, and that there are processes in place that allow for further administrative and judicial review. This report and its accompanying recommendations may well constitute one of the most important developments in federal agency adjudication since Congress enacted the Administrative Procedure Act in 1946.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.