For the last couple years, Matt Wiener, Vice Chair of the Administrative Conference of the United States (ACUS), and I have been working on an ACUS study of agency appellate systems. We’ve worked up detailed case studies on a dozen of the higher-volume appellate systems at the federal level and conducted countless interviews with current and former leaders of these appellate programs.
This afternoon we have the first ACUS Adjudication Committee meeting to consider our draft report and recommendations (details here). If the Adjudication Committee and ACUS Council decide to move forward with any of our recommendations, they will be considered at ACUS’s Plenary Session in December.
We have posted a draft of our report here. Comments are definitely most welcome, as the final report is not due until early December. Here’s a summary of the report from the SSRN abstract:
This Report returns to an important but little studied subject that the Administrative Conference of the United States (ACUS) last addressed nearly forty years ago: internal agency review (sometimes called administrative review) of hearing-level adjudicators’ decisions—or, as we call it, “agency appellate review.” In 1983, ACUS addressed the legal structures of appellate review. The main question it asked then, as it had over a decade earlier, is when and how agencies heads, if not constrained by statute, should delegate their authority to review the decisions of administrative law judges.
Our focus in the Report lies elsewhere. We take the legal structures of appellate programs as they are now constituted and ask, among other important questions: How should the programs structure their decision-making processes? What cases should they review? Under what standards of review? What procedural rules should they use? What form should those rules take? How should they promulgate the rules? What form should their decisions take? (When, for instance, should decisions be designated precedential?) What extra-decisional activities might they undertake to improve the hearing-level decisions they review and also their own decisions? What bureaucratic mechanisms might they employ to carry out their missions as efficiently and fairly as scarce resources allow? What information should they share with the public? It is important to emphasize up front that these questions, and all others we consider here, can usually be addressed by agencies as a matter of administrative choice. Few agencies are constrained by statute.
This Report proceeds as follows. Part I provides necessary background on agency appellate systems (their structures, objectives, and legal bases), prior ACUS recommendations on the subject, and judicial review of agency adjudicative decisions. After Part II explains our study methodology, Part III presents our main findings. Part IV sets forth our recommendations for ACUS’s consideration. The Conclusion offers some possibilities for further ACUS study.
On a personal note, this has been such a rewarding project. Coauthoring is always one of the highlights of being an academic, and working with Matt has been such a pleasure. Matt is such a dedicated public servant, a deep expert in agency adjudication, and a careful and thoughtful researcher. I also so appreciate the countless current and former agency officials who sat down with us to share their wisdom, their agency’s best practices, and their agency’s pressing challenges. I hope our findings and recommendations will be of use to bring more efficiency, consistency, and effectiveness to agency appellate systems at both the federal and state levels.