Ad m i n i st r at i ve C on feren c e of t h e Un ite d St ate s

FEDERAL ADMINISTRATIVE ADJUDICATION
OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT

Michael Asimow

Table of Contents
Chairman’s Foreword .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . v
About the Author .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . ix
Acknowledgments  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .

xi

Chapter 1: Introduction  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  . 1
A. Introduction to Administrative Adjudication .  .  .  .  .  .  .  .  .  .  .  .  .
B. Sources of Procedural Protections in Agency Adjudication .   .   .   .   .   .   .   .
C. Types A, B, and C Adjudication  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
D. The Administrative Conference of the United States  .   .   .   .   .   .   .   .   .   .
E. Formal and Informal Adjudication .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
F. Judicial Deference to Statutory Interpretation in Type B Adjudication .   .   .
G. Definitions .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
H. Additional Research  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
I. Abbreviations  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
Chapter 2: Types A, B, and C Adjudication .  .  .  .  .  .  .  .  .  .  .  .  .  .
A. The Border Between Type A and Type B Adjudication .  .  .  .  .  .  .  .  .
B. The Border Between Type B and Type C Adjudication  .  .  .  .  .  .  .  .  .
C. Statistical Data on Important Type B Adjudication Schemes .   .   .   .   .   .   .
Chapter 3: Procedural Protections .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
A. Procedural Due Process  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
B. Judicial Enforcement of Statutory Requirements of a
“Hearing” or “Opportunity to Comment”  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
C. Procedural Protections under Section 555 .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
D. Procedural Protections in Agency Licensing—Section 558 .   .   .   .   .   .   .   .
Chapter 4: Best Practices in Type B Adjudication
A. Best Practices and Caution .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
B. Procedural Legitimacy .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
C. Best Practices for Type B Adjudication .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
Chapter 5: Type C Adjudication .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
A. The World of Type C Adjudication  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
B. Best Practices for Type C Adjudication .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .

iii

Appendices  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
Appendix A: Type B Adjudication Schemes .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
Appendix B: ACUS Recommendation 2016-4, Evidentiary Hearings Not
Required by the Administrative Procedure Act  .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
Appendix C: ACUS Recommendation 2018-3, Electronic Case Management in
Federal Administrative Adjudication .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
Appendix D: ACUS Recommendation 2016-6, Self-Represented Parties in
Administrative Proceedings .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
Appendix E: ACUS Recommendation 2014-7, Best Practices for Using Video
Teleconferencing for Hearings .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
Appendix F: ACUS Recommendation 86-3, Agencies’ Use of Alternative Means
of Dispute Resolution .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
Appendix G: ACUS Recommendation 86-2, Use of Federal Rules of Evidence in
Federal Agency Adjudications .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .
Appendix H: ACUS Recommendation 86-1, Non-lawyer Assistance and
Representation  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
Appendix I: ACUS Recommendation 70-4, Discovery in
Agency Adjudication .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .

iv

Chairman’s Foreword

W

hen Paul Verkuil became chairman of the reestablished Administrative Conference of the United States in 2010, he put administrative adjudication at
the forefront of its agenda, where it remains today. The Conference has since issued
a dozen formal recommendations and undertaken many other initiatives related to
this subject of ever-increasing importance.
The most ambitious of these initiatives was a multi-year review, begun in 2013, of
adjudication programs throughout the entire executive branch. Conference staff first
undertook the laborious task of identifying nearly every program that, as a result of a
statute, regulation, or executive order, provides for an evidentiary hearing. Staff then
undertook the still more laborious task of cataloguing the most important features
of each such program: the legal sources of its authority, the types and number of cases
it adjudicates, the case-management techniques it employs, the key procedural rules
governing its work, the intra-agency appellate review procedures to which its decisions
are subject, and so forth. The research now resides in a database on the website of
Stanford Law School under the title Federal Administrative Adjudication (http://
acus.law.stanford.edu).
The Conference retained Professor Michael Asimow, among the foremost scholars of administrative adjudication, to study an important category of adjudication
programs represented in the database: those not subject to the formal hearing requirements of the Administrative Procedure Act (APA), but which are often at least
as formal (that is, court-like) in practice as those subject to them. (Professor Asimow
has long eschewed the received terminology under which “formal” is reserved for APA
adjudications, and “informal” is used for all other adjudications, no matter the actual
formality of their proceedings.)
The Conference chose to limit the study to these programs for at least three
related reasons. First, they have been, if not ignored, at least insufficiently studied,
even though they involve matters of such consequence as immigration-asylum claims,
patent-validity disputes, and veterans-benefit claims. Second, they far outnumber
their APA counterparts and adjudicate many more cases. And third, the statutes that
govern them often say little, if anything, about the basic procedures they must observe,
and thereby leave procedural choices in agency hands. That makes them amenable
to administrative reform—in some cases, the research would disclose, much-needed
reform to enshrine basic procedural norms that should be expected of any trial-like
adjudicative system—of the sort the Conference is uniquely situated to recommend.
Professor Asimow’s ensuing report, Evidentiary Hearings Outside the Administrative Procedure Act, identified nearly two dozen “best practices” (some drawn from
v

the APA) in answer to such questions as: On the basis of what “record” should cases
be decided? From whom (other than the parties) may adjudicators hear when deciding cases? What evidentiary rules should agencies follow? What inter-agency appeal
rights should they give? Professor Asimow’s “best practices” answered these and other
questions, and did so while recognizing the limits of uniformity in the heterogeneous
world of agency adjudication.
Professor Asimow’s report was put before the Conference’s Committee on
Adjudication for the formulation of a draft recommendation. So persuasive was the
report that the Committee decided to include nearly all of its best practices (in most
cases with few changes) in its proposed recommendation, Evidentiary Hearings
Not Required by the Administrative Procedure Act. That recommendation was then
forwarded to the full voting membership of the Conference, which adopted it as
Recommendation 2016-4 at its December 2016 plenary session (81 Fed. Reg. 94,314
(Dec. 23, 2016)).
This Conference-published sourcebook is a substantially expanded version of
Professor Asimow’s report—and much more: It not only elaborates upon Recommendation 2016-4’s best practices but also situates adjudication “outside” the APA in
the larger context of agency adjudication, advances a new typology of administrative
adjudication drawn along functional lines, and explains whether, what kind of, and
why a hearing is required for each type of adjudication. Its concluding chapter offers
a tentative assessment of, and some best practices for, adjudications that do not rely
on formal evidentiary hearings.
No doubt this sourcebook will soon take its place—alongside the Conference’s
recently published Sourcebook of United States Executive Agencies (2d ed. 2018)—as
among the most valuable and widely used of the Conference’s many publications.
Its main intended audience, Congress and federal agencies, will find it indispensable
when designing new and reviewing existing adjudication programs. Courts and scholars will also, I am sure, find it equally useful, if for different reasons. Its typology of
adjudication is already gaining currency in the academic literature. (See, e.g., Melissa
Wasserman & Christopher J. Walker, The New World of Agency Adjudication, 107
Cal. L. Rev. (forthcoming 2019).)
I wish to offer Professor Asimow the Conference’s profound thanks. He has
given over much of his professional life during the last few years—much more than
the Conference had the right to expect—to working on this sourcebook and the larger
adjudication project out of which it grew. Few legal academics could have done it as
well, and none perhaps in the limited time allotted.
I also wish to thank former Chairman Verkuil. He initiated and structured the
research project that gave rise to this sourcebook—drawing on his own pioneering
work nearly forty years earlier (A Study of Informal Adjudication Procedures, 43 U.
Chi. L. Rev. 739 (1976))—and then pushed it along to completion. No doubt it
would be sitting uncompleted without his resolute leadership and good sense. This
sourcebook, together with much of the Conference’s other work on adjudication,
stands as an important part of his legacy.
vi

In his acknowledgments, Professor Asimow thanks several members of the
Conference staff without whom this project could not have been completed. I wish to
add my own thanks to them (especially Frank Massaro, for getting the book to press)
and also thank the following people: Nadine Mancini, the Chair of the Conference’s
Committee on Adjudication, for leading the committee discussions that resulted
in Recommendation 2016-4; Funmi Olorunnipa, David Pritzker, and Stephanie
Tatham, all former Conference staff, for doing much of the research reflected in the
database; Daniel Sheffner, also formerly on the Conference staff, for helping to incorporate the Sourcebook’s best practices into the reporter’s comments accompanying the
Conference’s Model Adjudication Rules (rev. ed.) (83 Fed. Reg. 49,530 (Oct. 2, 2018));
and especially the many agency officials, too numerous to name, who responded to
requests for information and sat for interviews with Professor Asimow.
Finally, I join Professor Asimow in thanking Stanford Law School for funding,
helping to design, and hosting the database on its website. Much of the credit belongs
to Elizabeth Magill, Stanford’s former Dean.
A necessary disclaimer: This book, though commissioned and published by the
Conference, reflects Professor Asimow’s views alone. Only recommendations adopted
by the Conference’s voting members sitting in plenary session reflect the Conference’s
views. Several of them (including Recommendation 2016-4) are reproduced in the
appendices here. All Conference recommendations appear at www.acus.gov along
with their associated reports.
Matthew Lee Wiener
Acting Chairman
(Vice Chairman)

vii

viii

About the Author

Michael Asimow is Visiting Professor of Law, Stanford Law School, and Professor of Law Emeritus, UCLA School of Law. He can be reached at asimow@law.
stanford.edu. His website is michaelasimow.com. He teaches administrative law as
well as regulatory state, contracts, income tax, and law and popular culture.
Asimow has served as an ACUS consultant on numerous occasions. Hs also
served as a consultant to the California Law Revision Commission in its project
to study the California Administrative Procedure Act. He is a former chair of the
ABA’s Section on Administrative Law & Regulatory Practice and of the Administrative Law Section of the Association of American Law Schools. Asimow is
co-author of California Practice Guide: Administrative Law (Rutter Group, 2018)
and State and Federal Administrative Law (with Levin, 4d ed. 2014).
Asimow’s recent articles on administrative law include Hired Guns and Ministers of Justice: The Role of Government Attorneys in the United States and Israel,
49 Isr. L. Rev. 3 (with Dotan, 2016); Open and Closed Judicial Review of Agency
Action: The Conflicting US and Israeli Approaches, 64 Am. J. Comp. L. 521 (with
Dotan, 2016); Five Models of Administrative Adjudication, 63 Am. J. Comp. L. 3
(2015). His co-authored article Between the Agency and the Court: Ex Ante Review
of Regulations is forthcoming.
Asimow’s earlier books and articles that were based on ACUS studies include
Advice to the Public from Federal Administrative Agencies (1973); Public Participation in the Adoption of Interpretive Rules and Policy Statements, 75 Mich. L.
Rev. 521 (1977); When the Curtain Falls: Separation of Functions in the Federal
Administrative Agencies, 81 Colum. L. Rev. 759 (1981); Interim-Final Rules:
Making Haste Slowly, 51 Admin. L. Rev. 703 (1999); Civil Penalties for Inaccurate and Delinquent Tax Returns, 23 UCLA L. Rev. 637 (1976).

ix

x

Acknowledgments

The author previously served as the consultant for ACUS’s project Evidentiary
Hearings Not Required by the Administrative Procedure Act, which served as the
basis for ACUS Recommendation 2016-4 and for this book. The author gratefully
acknowledges the assistance of the ACUS leadership and staff in the preparation of
the consultant’s report and the manuscript for this book. Former ACUS chair Paul
Verkuil and then acting chair Matt Wiener were tremendously supportive of this project. ACUS attorney advisors Amber Williams and Frank Massaro were indispensable
to my efforts at every stage of the work.
As discussed in Chapter 1, Part D, ACUS and Stanford University undertook a
joint project to prepare a database consisting of information about the adjudicatory
functions of the federal government. The database (available at https://acus.law.
stanford.edu/) was my jumping-off point in preparing the studies contained in the
Appendix of this book, which, in turn, formed the basis for the best practice recommendations contained in Chapter 4. Preparation of this database was a labor-intensive
process performed by numerous ACUS staff members and interns. I am enormously
grateful for this effort. I also express my appreciation to Stanford Law School Dean
Elizabeth Magill for helping to fund the database and to professional database builders
Irina Zachs and Alex Shor for their inspired technical efforts in organizing it.

xi

xii

Chapter 1

INTRODUCTION

A. INTRODUCTION TO ADMINISTRATIVE ADJUDICATION
Traditionally, the word “adjudication” means dispute resolution in courts of law
administered by judges who perform no functions other than judging and who have
no connection with the dispute prior to adjudicating it.
However, the world of adjudication is much broader than dispute resolution by
courts. Federal, state, and local government agencies conduct a vast amount of adjudication. Often, but not always, government agencies conduct hearings in the course
of making individualized adjudicatory decisions. Such hearings resemble court trials
without juries, but are conducted in hearing rooms rather than courtrooms. Typically,
each side calls witnesses and cross-examines witnesses called by the opposing side.
The decision is based exclusively on the record created at the administrative hearing.
Most administrative hearings resolve disputes between private parties and government agencies, although some deal with private-versus-private disputes arising
under administrative programs. “Combined-function” agencies both adjudicate
disputes and act as one of the parties in the same dispute. “Tribunals,” on the other
hand, only perform adjudication functions. The initial decisionmakers in government adjudication are sometimes called “administrative judges” or “administrative
law judges,” but they are known by many other titles, such as “immigration judges,”
“hearing officers,” or “referees.” Typically, these initial decisions are reviewed by
higher-level officials in the adjudicating agency (often the head or heads of the agency).
Adjudication by government agencies results in legally binding judgments, just
like court decisions. In nearly all cases, decisions of government adjudicators are judicially reviewable, although only a tiny percentage of them actually wind up in court.
When the losing party invokes judicial review, the court does not retry the case but
decides it based on the record made at the agency level. Broadly speaking, a court can
overturn an agency decision because of an error of substantive or procedural law or
because the agency acted unreasonably in finding the facts or exercising its discretion.
Many governmental adjudicatory decisions are not made after trial-type hearings.
These decisions are generally made through an investigatory process in which the
private party has an opportunity to furnish information and arguments. However,
there are no witness presentations or cross-examination, and the decisionmaker is free
to consult other sources of information.

Introduction

1

At the federal level, some of the adjudicatory schemes are immense. The system
of adjudication of Social Security disability disputes is said to be the largest system
of adjudication in the western world;1 it hears more than one million cases a year.
Other vast federal adjudicatory schemes involve veterans’ benefits and immigration
disputes (such as deportation and refugee status). But there are a great many other
federal administrative schemes beyond these well-known ones.
At the state level, agencies adjudicate cases involving qualification for workers’
compensation or unemployment compensation benefits as well as cases involving public utilities. Every state maintains systems of business and professional licensing and
environmental protection; these regulatory schemes give rise to numerous disputes
such as whether to revoke a doctor’s license for malpractice or to penalize a company
for water pollution. Every unit of local government must resolve countless issues relating to planning and zoning as well as business licensing. School boards must resolve
issues relating to education plans for disabled children or the discharge of teachers.
Local government must establish a system of adjudicatory hearings to resolve these
issues. This book, however, covers only federal administrative adjudication.
B. SOURCES OF PROCEDURAL PROTECTIONS IN AGENCY
ADJUDICATION
The procedures to assure fairness in administrative adjudication are set forth in various sources of law. These sources can be visualized as a pyramid.
At the top of the pyramid are the procedural “due process” requirements set
forth in both federal and state constitutions. Procedural due process is discussed
in Chapter 3.2 In the federal Constitution, the Fifth Amendment (applicable to the
federal government) provides: “No person shall . . . be deprived of life, liberty, or
property, without due process of law.” The Fourteenth Amendment applies the same
due
process

statutes that
require procedures

procedural regulations

guidance documents that prescribe procedures

1. See Barnhart v. Thomas, 540 U.S. 20, 28–29 (2003).
2. A separate branch of due process is called “substantive due process.” Substantive due process
requires various levels of justification before the government can deprive persons of life, liberty, or
property. Substantive due process is not discussed in this book.
2

Federal Administrative Adjudication Outside the Administrative Procedure Act

due process requirement to state and local government. Broadly speaking, procedural
due process requires notice and a fair hearing conducted by a neutral and unbiased
adjudicator. These requirements, however, are not precisely stated, and the degree of
process that is due depends on the context in which the dispute arises. In addition,
as discussed in Chapter 3, procedural due process requirements are inapplicable to
many administrative adjudications.
The next level below the top consists of statutes called administrative procedure acts (APAs). The federal APA was enacted in 1946 and has seldom been
amended. Every state has an APA, but very few local governments do. APAs contain
detailed procedural provisions for administrative adjudication (as well as provisions
relating to other administrative law subjects such as rulemaking and judicial review).
However, federal and state APAs do not apply to every agency adjudication. Because
the APA has been well studied by many other authors, this book concerns federal
adjudicatory processes that are not covered by the adjudication provisions of the federal
APA, an area that has been much less studied and is often overlooked in discussions
of federal administrative adjudication. The level below the top also consists of
agency-specific statutes that spell out procedural requirements for adjudication
arising under that statute.
The next level down consists of procedural regulations adopted by the agency
conducting the adjudication. Obviously, such regulations cannot conflict with due
process, the APA, nor agency-specific statutes. When the APA applies, the regulations
provide specific procedural rules that fill the gaps left by the APA provisions. Where
no APA applies, the procedural regulations lay out the adjudicatory procedures
(subject, of course, to due process or to provisions in the agency’s enabling statute).
Because this book does not cover adjudication governed by the APA, it focuses heavily
on procedural regulations.
The bottom level of the pyramid consists of various agency guidance documents
such as employee manuals that provide further detailed instructions for agency adjudicatory decisionmakers. Most of these manuals provide routine instructions for the
decisionmaking process, but in some cases they spell out procedural protections that
have not been specified in procedural regulations.
C. TYPES A, B, AND C ADJUDICATION
In this book, the term “Type A adjudication” refers to adjudicatory systems governed
by the formal adjudication sections of the federal APA.3 With a few exceptions, Type
A hearings are presided over by an official called an administrative law judge (ALJ).4
Numerous provisions of the APA protect the independence of ALJs (even though
ALJs usually work for the agency that is a party to the cases that the ALJ decides). As

3. 5 U.S.C. §§ 554, 556, 557. The APA is cited in this book using the sections of Title 5 of the United
States Code in which it was codified but without the prefatory “5 U.S.C.”
4. APA § 556(b)(3).
Introduction

3

already stated, this book concerns adjudication by federal administrative agencies that
are not Type A adjudication and thus are not decided by ALJs.5
The term “Type B adjudication” refers to systems of federal agency adjudication
that employ evidentiary hearings that are required by statutes, regulations, or executive
orders, but are not governed by the formal adjudication provisions of the APA. Administrative judges (AJs) (or occasionally the agency head), rather than ALJs, preside over
evidentiary hearings in Type B adjudication. Chapters 2 and 4 and Appendix A of this
book concern Type B adjudication. These chapters discuss the boundaries between
Types A, B, and C adjudication, survey the world of Type B adjudication (Chapter
2 and Appendix A), and suggest best practices for procedural regulations governing
Type B hearings (Chapter 4).
The term “Type C adjudication” means adjudication by federal administrative
agencies that does not occur through legally required evidentiary hearings. Chapter 5
describes the world of Type C adjudication and suggests a modest list of best practices
for C adjudication. Chapter 3 discusses due process limitations and APA provisions
primarily applicable to Type C adjudication but that apply to Types A and B as well.
At this point, the author freely concedes that the title of this book, Federal
Administrative Adjudication Outside the Administrative Procedure Act, is not precisely
accurate. The book concerns Types B and C adjudication that are not subject to the
formal adjudication provisions of the APA6 However, Types B and C adjudication
are subject to several provisions of the APA7 that are discussed in Chapter 3. Types B
and C adjudication are also subject to the judicial review provisions of the APA.8 A
more precise title would have been too cumbersome. So my apologies to readers who
are annoyed by the imprecision.
D. THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
This book originated in a study I performed for the Administrative Conference of
the United States (ACUS).9 This study led to an ACUS recommendation for best
practices for Type B decisionmaking.10

5. ALJs are occasionally loaned by the agency that employs them to other agencies that need to conduct
Type A or Type B hearings but that do not employ any judges or whose judges are engaged in hearing
other cases.
6. That is, APA §§ 554, 556, and 557 as well as to the various provisions protecting the independence of ALJs.
7. APA §§ 555, 558
8. APA §§ 701–706.
9. Michael Asimow, Evidentiary Hearings Outside the Administrative Procedure Act (Nov. 10, 2016)
(report to the Admin. Conf. of the U.S.), https://acus.gov/report/evidentiary-hearings-outside-administrative-procedure-act-final-report.
10. Admin Conf. of the U.S., Recommendation 2016-4, Evidentiary Hearings Not Required by the
Administrative Procedure Act, 81 Fed. Reg. 94,312, 94,314 (Dec. 13, 2016), reproduced as Appendix B
to this book.
4

Federal Administrative Adjudication Outside the Administrative Procedure Act

Since ACUS may not be familiar to readers of this book, I introduce it here.
ACUS is a small independent federal government administrative agency created
by statute in 1964 that began operation in 1968. Its function is to study the federal
governmental administrative process and make recommendations for improvement
of that process. ACUS has a small permanent staff, and it hires outside consultants
to perform many of its studies. ACUS’s Assembly consists of about 100 members,
roughly 60% of whom are drawn from government agencies and the rest drawn from
the private sector or academic institutions. The Assembly votes to adopt recommendations. Many of these recommendations have led to statutes or to administrative
innovations in the federal government. Through its Office of the Chairman, ACUS
also issues stand-alone reports and engages in other research-related activities, among
them preparation of the database that underlies much of this book. ACUS was
defunded in 1995, but the statute authorizing it was never repealed. It was refunded
in 2009 and resumed operations soon thereafter. It is going strong today.11
My study of Type B adjudication began with the construction of a database that
was jointly funded by ACUS and Stanford Law School. The database contains information about all of the schemes of Type A and Type B federal agency adjudication
(with the exceptions of military and foreign affairs adjudication, which were omitted
because of resource constraints).
ACUS staff did enormous amounts of work gathering, inputting, and verifying12
information in the database, which I gratefully acknowledge here.13 The database
material was my starting point in researching Type B adjudication. The database is
open to the public and can be accessed at https://acus.law.stanford.edu. The descriptions of Type B agency practice contained in the Appendices to this book contain
database identifying numbers that enable the reader to access the relevant portions
of the database quickly.
E. FORMAL AND INFORMAL ADJUDICATION
This book does not refer to Type B adjudication as “informal” adjudication. The word
“informal” is commonly used in practice and in scholarship to cover both Types B
and C adjudication,14 but this usage creates a false picture of Type B adjudication. The
hearings in schemes of Type B adjudication usually contain most or all of the same

11. See the numerous articles about ACUS in Symposium, Fiftieth Anniversary of the Administrative
Conference of the United States, 83 Geo. Wash. L. Rev. 1133–1826 (2015).
12. The database was constructed from publicly available information; ACUS attempted to obtain
verification from agency officials of the information in the database but was not always successful in
obtaining it. The database indicates what information has been verified.
13. I also express my gratitude to Stanford Law School Dean Elizabeth Magill for helping to fund the
database and to professional database builders Irina Zachs and Alex Shor for their tremendous technical efforts in organizing it.
14. See, e.g., Robert R. Kuehn, Bias in Environmental Agency Decision Making, 45 Envtl. L. 957,
967–69 (2015).
Introduction

5

formal elements and protections for private parties as Type A adjudication (aside from
the requirement that ALJs preside).15 Indeed, some systems of Type A adjudication
(such as the inquisitorial Social Security disability program and disputes arising under
Medicare) are less formal than many Type B schemes. Although scholarly works of
administrative law as well as common practice lump Types B and C adjudication
together as “informal adjudication,” this usage is incorrect and should be challenged.
The term “informal adjudication” should be reserved for Type C adjudication in
which decisions are not required to be based on evidentiary hearings.
Type B adjudication should be recognized as a distinct category of federal
administrative adjudication, different from both Types A and C. Because Type B
adjudication is characterized by legally required evidentiary hearings, it is feasible to
prescribe a set of best practices for such hearings, as discussed in Chapter 4. Specific
statutory provisions, procedural regulations and agency-produced guidance documents, rather than general statutes like the APA, establish the parameters of Type B
adjudication. The procedural regulations that structure Type B proceedings are an
important form of internal administrative law—that is, law generated by agencies
themselves—as opposed to the external administrative law generated by statutes and
court decisions.16 In contrast, schemes of Type C adjudication, which are vastly more
numerous than Type B schemes, lack any unifying procedural element. This makes
prescription of detailed codes of best practices difficult. I discuss a modest set of best
practices for Type C adjudication in Chapter 5.
The world of Type B adjudication is vast and formless. How to map it presents
a methodological puzzle. My approach has been to study about a dozen of the more
important Type B adjudication schemes. These studies are the subject of Appendix
A to this book. I believe that the adjudicatory schemes described in the Appendix are
representative of the tremendous diversity of the Type B world. These studies were
the basis of the best practices recommendations (discussed in Chapter 4) that I believe
should be embodied in agency procedural regulations.

15. See Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication Materials on Agency Websites, 82 Fed. Reg. 31,039, 31,039 (July 5, 2017), dealing with best practices for posting of adjudicatory
materials on agency websites. The recommendation explicitly recognizes the category of Type B
adjudication. Its recommendations for Type A and Type B adjudication are the same. The underlying
report, however, refers to Type B proceedings as “semi-formal.” Daniel J. Sheffner, Adjudication Materials on Agency Websites 2 (Apr. 10, 2017) (report to Admin. Conf. of U.S.), https://acus.gov/report/
adjudication-materials-agency-websites-final-report-0.
16. On the subject of internal administrative law, see Gillian E. Metzger & Kevin M. Stack, Internal
Administrative Law, 115 Mich. L. Rev. 1239 (2017); Nicolas R. Parrillo, Introduction: Jerry L.
Mashaw’s Creative Tension with the Field of Administrative Law, in Administrative Law from the
Inside Out (Nicolas R. Parrillo ed., 2017).
6

Federal Administrative Adjudication Outside the Administrative Procedure Act

F. JUDICIAL DEFERENCE TO STATUTORY INTERPRETATION IN
TYPE B ADJUDICATION
Under Chevron,17 reviewing courts must accept a permissible and reasonable agency
interpretation of an ambiguous statute. Under Auer,18 reviewing courts must accept
an agency interpretation of the agency’s own regulation unless it is “plainly erroneous
or inconsistent with the regulation.” Both Chevron and Auer deference are owed to
agency interpretations that occur in the process of adjudication as well as rulemaking.
The subjects of Chevron and Auer deference are vast and largely beyond the scope
of this book.19 However, it is worth highlighting an important issue: Is Chevron or
Auer deference owed to an adjudicatory opinion rendered in Type B adjudication?
The issue is pertinent at this point in the discussion because the Supreme Court’s
analysis of the issue relies on the term “formal adjudication.”
In Christensen and Mead, the Supreme Court made clear that Chevron deference
is owed to decisions made in “formal adjudication.”20 In Mead, the Court stated: “It
is fair to assume generally that Congress contemplates administrative action with the
effect of law when it provides for a relatively formal administrative procedure tending
to foster the fairness and deliberation that should underlie a pronouncement of such
force. Thus, the overwhelming number of our cases applying Chevron deference have
reviewed the fruits of notice-and-comment rulemaking or formal adjudication.”21
It seems clear that the term “formal adjudication,” as used by the Supreme Court
in the Mead opinion, refers to Type B as well as Type A adjudication. Numerous
decisions by the Board of Immigration Appeals cases in Type B adjudication have
qualified for Chevron deference,22 despite the troubled state of administrative decisionmaking in immigration cases.23 For example, single-member-non-precedential BIA
decisions are eligible for Chevron deference if they rely on previous precedential BIA
opinions.24 However, according to some of the judges on the U.S. Court of Appeals
for the Federal Circuit, neither informative nor precedential decisions of the Patent

17. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984).
18. Auer v. Robbins, 519 U.S. 452 (1997).
19. Chevron and Auer are subject to considerable legislative, judicial, and academic criticism, and both are
likely to evolve or perhaps be abolished. At the time this book was written, however, they remain in place.
20. Christensen v. Harris Cty., 529 U.S. 576, 587 (2000); United States v. Mead Corp., 533 U.S. 218,
229–30 (2001).
21. Mead, 533 U.S. at 230 (emphasis added).
22. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424–25 (1999) (immigration cases are particularly
appropriate subjects for Chevron deference because of Attorney General’s wide statutory discretion);
INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987) (no Chevron deference because statute unambiguous); Negusie v. Holder, 555 U.S. 511, 521–25 (2009) (no Chevron deference because agency incorrectly
thought itself bound by distinguishable prior precedent).
23. See text at note 721. See Shruti Rana, Chevron Without the Courts? The Supreme Court’s Recent
Chevron Jurisprudence Through an Immigration Lens, 26 Geo. Immigr. L.J. 313 (2012).
24. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 404 (11th Cir. 2016).
Introduction

7

Trademark and Appeal Board (PTAB) are entitled to Chevron deference because
Congress intended that the issues involved in those decisions be resolved through
rulemaking rather than adjudication.25
G. DEFINITIONS
This sub-section provides some definitions of terms that are used throughout the book.
1. Adjudication
The term “adjudication” (or “administrative adjudication”) means:
• a decision by government officials made through an administrative process
• to resolve a claim or dispute between a private party and the government or
between two private parties
• arising out of a government program.
This book covers only federal administrative adjudication. Therefore, it excludes
adjudication by state or local officials even in cases where the adjudication arises under
a federal program and is governed by federal regulations. The book also does not
discuss adjudicatory decisions by non-governmental federal contractors.
2. Decision
The term “decision” means an agency action of specific applicability, as distinguished from an action of general applicability such as rulemaking.
Thus, agencies often adopt rules and regulations (these two words mean the
same thing in American parlance) that have generalized application (meaning they
apply to a described class of persons rather than having individualized application).
Regulations are adopted through a rulemaking process that is prescribed in the APA.26
That process requires broad public notice, an opportunity for public comment, and
an explanation of the final rule. Regulations contain both procedural and substantive
provisions. Among many other subjects, procedural regulations prescribe how the
agency should go about taking actions such as adjudication. Substantive regulations
provide the necessary details to fill out the statutes applicable to the agency. Both
procedural and substantive regulations have the force of law, although procedural
regulations can be adopted by agencies without undergoing the APA’s costly noticeand-comment process.27
The term “decision,” as used in this book, does not include a “front-line” decision
by agency staff that constitutes the initial agency determination about whether to
deny an application, issue a complaint, or impose a regulatory sanction, when that

25. Aqua Prods., Inc. v. Matal, 872 F.3d 1290, 1328–34 (op. of Moore, J.), 1338–40 (op. of Reyna, J.)
(Fed. Cir. 2017) (en banc). Other judges in Aqua Products would apply both Chevron and Auer to PTAB
informative and precedential decisions. Id. at 1338 (op. of Taranto, J.), 1358–67 (op. of Hughes, J.).
26. APA § 553.
27. APA § 553(b)(A).
8

Federal Administrative Adjudication Outside the Administrative Procedure Act

“front-line” determination could be challenged through a subsequent Type A, B, or C
adjudicatory process before an agency or through a de novo challenge before a court.
For example, the decision of an agency staff member (or even of the agency heads)
to issue a complaint against a private party seeking a particular sanction (such as a
civil penalty) will become binding unless the party challenges it through whatever
adjudicatory procedure the agency provides. Similarly, the decision to reject a patent
application, which can be challenged through Type B adjudication, is a front-line decision. These front-line decisions are not treated as “decisions” for purposes of this book.
Similarly, the term “decision” does not include an agency investigatory process,
even if that process includes a hearing, if the decision in the investigatory process can
be challenged through a subsequent Type A, B, or C adjudicatory process or through
a de novo challenge in court.
3. Policy Implementation
The definition of “decision” also excludes a broad category of federal decisionmaking that might generally be called “policy implementation” and which is
sometimes referred to as a form of “informal adjudication.”28 Policy implementation
decisions are not adjudication as defined above because they do not resolve disputes
between the government and a private party (or between two private parties). Nor are
they rulemaking, because they do not produce a rule that individuals are required to
comply with. Policy implementation decisions often are limited by substantive standards and include required procedures;29 they are sometimes judicially reviewable.30
A particularly well-known instance of policy implementation was the Department of Transportation’s decision selecting the route of an interstate highway. The
chosen route took the highway through a park in Memphis, in apparent violation of
a federal statute. This decision was found to be reviewable in the famous and pivotal
Overton Park case.31
Other examples of policy implementation include priority setting, maintaining
databases, allocating funds between programs, closing a post office, approving
state Medicaid rate adjustments, administering grant-in-aid programs managed by
states, managing public institutions such as hospitals or prisons, conducting envi-

28. See Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 361–62 n.37 (D.C. Cir. 1981) (referring
to decision whether to build a particular lock on the Mississippi River as “informal adjudication”). See
also text at note 397.
29. See Izaak Walton League, 655 F.2d at 363–65 (requiring Corps of Engineers to hold a legally required
public hearing to allow public to comment on proposal to build a lock on the Mississippi River).
30. Edward Rubin suggests that a standard of instrumental rationality should be imposed on policy
implementation decisions. Edward Rubin, It’s Time to Make the Administrative Procedure Act Administrative, 89 Cornell L. Rev. 95, 173–81 (2003).
31. Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971). Overton Park found DOT’s discretionary decision to build a highway through a park to be judicially reviewable and mandated hard-look
judicial review of that exercise of discretion.
Introduction

9

ronmental impact assessments, making decisions involving multiple uses of public
lands, designating (or perhaps un-designating) public lands as national monuments
or prohibiting mineral extraction,32 siting airports or power plants, and protecting
habitats of endangered species.33
4. Evidentiary Hearing
The term “evidentiary hearing” means an adjudicatory proceeding at which the
parties make evidentiary submissions and have an opportunity to rebut testimony
and arguments made by the opposition, and to which the exclusive record principle
applies. The exclusive record principle means that the decisionmaker is confined to
considering evidence and arguments from the parties produced during the hearing
process (as well as matters officially noticed) when determining factual issues. As
further discussed in Chapter 2, the word “evidentiary hearing” excludes a variety of
agency adjudicatory proceedings that might be described as “hearings,” but that lack
the attributes of a determination at which the parties have an opportunity to make
evidentiary submissions and to which the exclusive record principle applies.
5. The APA’s Definitions of Rulemaking and Adjudication
The federal APA contains a set of definitions of rulemaking and adjudication,34
but these definitions are flawed and do not describe actual practice.35 Under these
definitions, agency “adjudication” covers agency action for the formulation of an
“order;” an “order” is a final disposition of an agency in a matter other than rule
making but including licensing.” And, critically, the APA defines the term “rule” as
agency action of “general or particular applicability and future effect.”
However, the inclusion of the words “or particular” is a drafting error. To illustrate, a decision of the Federal Trade Commission (FTC) ordering a specific business
to cease and desist from some sort of advertising has “particular applicability” and
“future effect,” so under the APA definitions, the FTC’s cease and desist order
would be treated as rulemaking rather than adjudication. However, in practice,
everyone regards the FTC’s order as adjudication, not rulemaking. Because it is Type
A adjudication, the APA’s formal adjudication provisions apply, not the rulemaking

32. See Nat’l Mining Ass’n v. Zinke, 877 F.3d 845 (9th Cir. 2017).
33. See Michael Asimow & Yoav Dotan, Open and Closed Judicial Review of Agency Action: The Conflicting U.S. and Israeli Approaches, 64 Am. J. Comp. L. 521, 530–33 (2016).
34. APA § 551(4): “rule” means “an agency statement of general or particular applicability and future
effect”; APA § 551(5): “rule making” means “agency process for formulating . . . a rule”; APA § 551(6):
“order” means “a final disposition . . . of an agency in a matter other than rule making but including
licensing”; APA § 551(7): “adjudication” means “agency process for the formulation of an order”; APA
§ 551(8): “license” includes “an agency permit . . . or other form of permission.”
35. See Ronald M. Levin, The Case for (Finally) Fixing the APA’s Definition of “Rule”, 56 Admin. L.
Rev. 1077 (2004).
10

Federal Administrative Adjudication Outside the Administrative Procedure Act

provisions. As a result of this drafting error, the courts often benignly ignore the
APA’s definitions.
The unworkability of the APA’s definitions of “rule” and “order” are illustrated
by the Neustar decision.36 The case arose out of a statutory provision requiring the
Federal Communications Commission (FCC) to assure portability of phone numbers—thus allowing users to keep the same number when they switch local service
providers. The statute and regulations required the FCC to appoint a private Local
Number Portability Administrator (LNPA), which it did through a bidding process.
The FCC selected Telcordia to replace Neustar as the LNPA through a Type C adjudication process. Neustar argued that the Telcordia was not qualified to be the LNPA.
Moreover, it argued that the decision was the adoption of a “rule” and thus could only
be adopted after pursuing the APA’s rulemaking procedures (which require public
notice and comment). After all, the decision to choose Telcordia was of “particular
applicability and future effect”—the APA’s definition of “rule.”
The court decided that informal adjudication procedure was appropriate because
the decision to choose Telcordia was an “order,” not a “rule.” The court basically ignored
the APA definitions of rulemaking and adjudication. Instead it decided that adjudication was more appropriate to make this “fact-intensive determination that occurred on
a case-by-case basis . . . . The individualized determination was not intended to impact
law or policy; rather it resolved interests in a specific bidding situation.”
Because the APA’s definitions are flawed, I do not use them in this book but
instead rely on the distinction between general and specific agency action. As discussed above, adjudication is agency action of specific application, and rulemaking
is agency action of general application.37
H. ADDITIONAL RESEARCH
For convenience of the reader, this sub-part summarizes the prior research on which
I drew heavily in writing the ACUS study of Type B adjudication and this book as
well as contemporaneous research on non-ALJ hearings.
A massive 1992 ACUS study, The Federal Administrative Judiciary,38 described
and analyzed both Type A and Type B adjudication and did extensive research into the

36. Neustar, Inc. v. FCC, 857 F.3d 886, 895 (D.C. Cir. 2017).
37. See also Safari Club Int’l v. Zinke, 878 F.3d 331–34 (D.C. Cir. 2017), finding that agency action
had generalized rather than particularized application. The disputed action was a press release by the
Fish and Wildlife Service (FWS) that the killing of Zimbabwean elephants would not enhance the
survival of the species. The result of this determination was a ban on imports of elephant trophies from
Zimbabwe. In applying the APA, the court relied on the due process cases drawing the particularized/
generalized distinction. See text at notes 34–36. Therefore, the agency action was not informal adjudication that required no procedures but rulemaking that required notice and comment.
38. Paul R. Verkuil, Daniel J. Gifford, Charles H. Koch, Jr., Richard J. Pierce, Jr., & Jeffrey S. Lubbers,
The Federal Administrative Judiciary, 1992 ACUS 779 [hereinafter 1992 ACUS Study], https://www.
acus.gov/publication/federal-administrative-judiciary. That report led to adoption of ACUS Recommendation 92-7, The Federal Administrative Judiciary, 57 Fed. Reg. 61,759 (Dec. 29, 1992).
Introduction

11

status of the AJs who conduct Type B adjudication. The 1992 ACUS report questioned
the existing allocation of adjudicatory schemes between Type A and Type B.39
Former ACUS Chair Paul Verkuil analyzed a number of schemes involving Type B
and Type C adjudication.40 Verkuil assessed the degree to which these schemes complied
with the due process requirements sketched by Goldberg v. Kelly, the leading procedural
due process case at that time.41 He discussed the appropriateness of various forms of
procedural protection in the context of the particular substantive scheme.
Two studies by John Frye and Ray Limon sought to map the world of Type B
adjudication. These studies gathered statistical data on the caseload of the various Type
B schemes and the judges who decided them. The studies take snapshots of Type B
adjudication in 1992 and again in 2002.42
The American Bar Association’s (ABA’s) Section of Administrative Law and Regulatory Practice published a guide to Type A adjudication.43 The Section also sponsored
a resolution adopted by the ABA’s House of Delegates that urged Congress to amend
the APA to extend some (but not all) of the APA’s Type A adjudication provisions to
Type B adjudication.44 I published an article supporting this resolution.45
Several works attempt to identify best practices for Type C adjudication46 or consider the criteria for the study of decisionmaking in Type C adjudicatory schemes.47
Another paper produced a comparative analysis of high-volume adjudicatory systems
(both Types A and B).48
A recent ACUS study by Kent Barnett, Logan Cornett, Malia Reddick, and Russell
Wheeler (hereinafter referred to for convenience as the Barnett study) broadly surveys

39. 1992 ACUS Study, supra note 38, at 843–73.
40. Paul R. Verkuil, A Study of Informal Adjudication Procedure, 43 U. Chi. L. Rev. 739 (1976).
41. Goldberg v. Kelly, 397 U.S. 254 (1970).
42. John H. Frye, III, Survey of Non-ALJ Hearing Programs in the Federal Government, 44 Admin.
L. Rev. 261 (1992); Ray Limon, Office of Pers. Mgmt., Office of Admin. Law Judges, The
Federal Administrative Judiciary Then and Now: A Decade of Change 1992–2002.
43. A Guide to Federal Agency Adjudication (Jeffrey B. Litwak ed., 2d ed. 2012) [hereinafter
ABA Guide].
44. House of Delegates, Am. Bar Ass’n, Resolution 114 (Feb. 2005) [hereinafter ABA Resolution 114].
45. Michael Asimow, The Spreading Umbrella: Extending the APA’s Adjudication Provisions to All
Evidentiary Hearings Required by Statute, 56 Admin. L. Rev. 1003 (2004).
46. Warner W. Gardner, The Procedures by Which Informal Action is Taken, 24 Admin. L. Rev. 155 (1972).
47. William J. Lockhart, The Origin and Use of “Guidelines” for the Study of Informal Action in Federal
Agencies, 24 Admin. L. Rev. 167 (1972).
48. Daniel L. Skoler, The Many Faces of High-Volume Administrative Adjudication: Structure, Organization, and Management, 15 J. Nat. Ass’n Admin. L. Judges 43 (1996).
12

Federal Administrative Adjudication Outside the Administrative Procedure Act

the subject of non-ALJ adjudicators in a variety of hearing schemes.49 The Barnett study
was based on survey instruments sent to numerous federal agencies that conduct Type B
adjudication (including many that are not covered by my ACUS study or the Appendices
in this book). The Barnett study focuses on the degree of non-ALJ independence from
their employing agencies, including such important subjects as hiring, compensation,
performance evaluation, removability, physical separation, and direct supervision. The
Barnett study makes a number of recommendations relating to integrity of the decisionmaking process that are broadly consistent with the best practice recommendations
discussed in Chapter 4 of this book.
I. ABBREVIATIONS
For convenience of the reader, these are abbreviations of agencies (and in some cases
adjudicatory schemes) used throughout the book.
CBCA

Civilian Board of Contract Appeals

DOE OHA

Department of Energy, Office of Hearings and Appeals

EEOC

Equal Employment Opportunity Commission

EOIR

Executive Office of Immigration Review

EPA-EAB

Environmental Protection Agency, Environmental Appeals Board

HHS-DAB

Department of Health and Human Services, Department Appeals Board

MSPB

Merit Systems Protection Board

PRRB

Provider Reimbursement Review Board

USDA PACA

U.S. Department of Agriculture, Perishable Agricultural
Commodities Act

USPTO-PTAB

United States Patent and Trademark Office, Patent Trial and Appeal
Board

USPTO-TTAB

United States Patent and Trademark Office, Trademark Trial and
Appeal Board

VA BVA

Veterans Administration, Board of Veterans’ Appeals

49. Kent Barnett, Logan Cornett, Malia Reddick, & Russell Wheeler, Non-ALJ Adjudicators in Federal
Agencies: Status, Selection, Oversight and Removal (Feb. 14, 2018) (report to the Admin. Conf. of the U.S.),
https://www.acus.gov/report/non-alj-adjudicators-federal-agencies-status-selection-oversight-and-removal.
Barnett’s findings are also discussed in a forthcoming article, Some Kind of Hearing Officer, 94 Wash. L.
Rev. (forthcoming 2019).
Introduction

13

CHAPTER 2

TYPES A, B, AND C ADJUDICATION

T

his chapter discusses the problem of distinguishing among Types A, B, and C
adjudication (terms that were introduced in Chapter 1). It also provides statistical
information about important schemes of Type B adjudication.
In Type A proceedings, the formal adjudication provisions of the APA50 (supplemented by agency procedural regulations) prescribe the details of the required hearing.
The most important of these APA provisions requires that an administrative law judge
(ALJ) preside over the trial-type hearing (unless a relevant statute provides for a different presiding officer).51 The APA also prohibits outsider ex parte contacts to the ALJ
or agency head and assures separation of prosecutorial and adjudicatory functions.52
In Type B adjudication, federal law (in the form of a statute, regulation, or executive order) requires the agency to conduct an evidentiary hearing, but the details are
prescribed by agency-specific statutory provisions and by procedural regulations, not
by the APA. Normally, an administrative judge (AJ) presides over a Type B evidentiary
hearing. In Type C adjudication, no evidentiary hearing is legally required.
A. THE BORDER BETWEEN TYPE A AND TYPE B ADJUDICATION
The “gateway” provision of the APA defines which adjudicatory schemes are Type
A proceedings. According to the gateway, the APA adjudication provisions cover
“every case of adjudication required by statute to be determined on the record after
opportunity for an agency hearing.”53
Some statutes explicitly declare whether the adjudicatory proceedings authorized
by the statute are governed by the adjudicatory provisions of the APA. Unfortunately,
in many cases, statutes that call for evidentiary hearings do not explicitly state whether
the APA applies to them. This requires a court to decide whether the statute explicitly
calls for a determination “on the record.” However, this “magic words” approach is
defective. The decisionmaker at most evidentiary hearings maintains a “record” of
the proceedings in the sense that what is said is written down or recorded, and the

50. APA §§ 554, 556, 557.
51. APA § 556(b)(3). Under § 556(b)(1) or (2), the agency head or heads can preside at hearings, but this
alternative is rarely employed.
52. APA §§ 554(d), 557(d).
53. APA § 554(a) (emphasis added). This section contains 6 exceptions.
Types A, B, and C Adjudication

15

normal assumption is that this record is “exclusive.” This means that the adjudicator
is limited to that “record” (including material that is the subject of official notice) in
deciding factual issues in the case. Because this kind of record is maintained at both
Type A and Type B proceedings, the term “on the record” fails to distinguish Type
A from Type B proceedings.
Consequently, there is a gray area in interpreting statutes that call for evidentiary hearings but do not explicitly resolve the issue of whether the APA applies. The
prevailing approach is to interpret such statutes through Chevron methodology.54
Statutes calling for a “hearing,” a “public hearing,” or an “appeal” (but not using the
magic words “on the record”) are “ambiguous,” so that a reviewing court must defer
to the agency’s reasonable interpretation that the APA does not apply.55 Numerous
authors have questioned this approach.56 Chevron presumes that Congress intends
to delegate interpretive authority to an agency by passing an ambiguous statute; it
seems unlikely that Congress would have intended an agency to make the final call
on whether a quasi-constitutional trans-substantive statute like the APA should apply
to its adjudicatory proceedings.
Another approach to the question of applying the APA gateway provision is to
assume that Congress wants the APA to apply to adjudicatory hearings involving serious
issues of public policy. However, the leading authority to that effect has been overruled.57
Still another approach assumes that Congress does not want the APA to apply
unless a statute explicitly says that it applies or explicitly uses the magic words “hearing
on the record.”58
Finally, a fourth approach to the problem has recently emerged. Under this
approach, the APA applies to statutes that call for evidentiary hearings that appear to
assume record exclusivity but do not use the magic words “hearing on the record.” One
line of cases involves the question of whether the Equal Access to Justice Act (EAJA)59
54. Chevron U.S.A. Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984). Under Chevron, if a statute is
“ambiguous,” the court must accept an agency’s reasonable interpretation of the statute. As this book
is written, Congress is considering legislation that would abolish the Chevron doctrine. See Separation
of Powers Restoration Act of 2017, S. 1577, 115th Cong. § 2 (2017). In addition, judicial reconsideration of Chevron is a definite possibility. In case of either legislative or judicial change to the Chevron
doctrine, the courts would have to re-examine the prevailing approach to the gateway problem.
55. Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006); Chem. Waste
Mgmt., Inc. v. EPA, 873 F.2d 1477 (D.C. Cir. 1989).
56. See, e.g., William Funk, Slip Slidin’ Away: The Erosion of APA Adjudication, 122 Penn. St. L. Rev.
141, 150–52 (2017); Cooley Howarth, Restoring the Applicability of the APA’s Adjudicatory Procedures,
56 Admin. L. Rev. 1043 (2004).
57. Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978), overruled by Dominion Energy
Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006). Arguably, Marathon Oil Co. v. EPA, 564
F.2d 1253 (9th Cir. 1977), stands for the same proposition as Seacoast and has not been overruled.
58. City of W. Chi. v. NRC, 701 F.2d 632 (7th Cir. 1983).
59. EAJA requires agencies to pay the attorney fees of a prevailing private party (up to a rather low
limit) when the government’s position in an agency adjudication or federal-court case the case was not
“substantially justified.” 5 U.S.C. § 504 (agency adjudication), 28 U.S.C. § 2412(d) (federal court case).
16

Federal Administrative Adjudication Outside the Administrative Procedure Act

applies to decisions by the National Appeals Division (NAD) of the Department of
Agriculture (USDA). The Supreme Court has made it clear that EAJA is applicable
only to hearings governed by the APA’s formal adjudicatory provisions—that is, Type
A proceedings.60 NAD resolves disputes arising under numerous statutory provisions
relating to agricultural grants, loans, or insurance. The statute calls for evidentiary
hearings that are conducted by administrative judges (AJs) appointed by the Secretary
of Agriculture, but the statute does not use the magic words “on the record.”
USDA interpreted the statute not to require it to follow the APA. Several decisions rejected USDA’s position and held that the APA applies to NAD hearings, so
that prevailing plaintiffs are entitled to EAJA attorney fee awards. These decisions
held that the APA formal adjudication provisions apply to NAD hearings because the
statutory provisions relating to those hearings contain most of the elements of Type
A adjudication. As a result, NAD AJs are limited to the record in deciding factual
issues.61 After losing in three circuits, USDA conceded the issue and now applies the
APA and EAJA to NAD hearings.62
A second line of cases, all decided by the Federal Circuit, hold that Patent Trial
and Appeal Board inter partes trial cases63 are “formal adjudication.” As a result, these
decisions hold that the APA’s provisions on notice, right to rebuttal, and findings and
reasons64 apply directly to PTAB decisionmaking.65 None of the cases analyzes the
existing body of law concerning whether a statute calling for a “hearing” is sufficient
to trigger the APA.

60. Ardestani v. INS, 502 U.S. 129 (1991).
61. Lane v. USDA, 120 F.3d 106, 108–10 (8th Cir. 1997); Aageson Grain & Cattle v. USDA, 500 F.3d
1038, 1043–46 (9th Cir. 2007); Five Points Rd. Joint Venture v. Johanns, 542 F.3d 1121, 1125–29 (7th
Cir. 2008). But see St. Louis Fuel & Supply Co. v. FERC, 890 F.2d 446, 448–49 (D.C. Cir. 1989) (fact
that statutory procedures approximate those of the APA is not sufficient to make EAJA applicable).
See Emily S. Bremer, The Exceptionalism Norm in Administrative Adjudication 18–21 (forthcoming).
62. 7 C.F.R. § 11.4(a). Normally, a decision that the APA applies to a particular hearing scheme means
an ALJ must preside, which would have significantly disrupted USDA operations. However, these
EAJA decisions do not require that ALJs preside in NAD hearings because the applicable statute
permits USDA to utilize non-ALJ presiding officers selected from USDA’s staff. The APA permits
statutes to designate types of presiding officers other than ALJs. APA § 556(b).
63. See Appendix A-10 for discussion of PTAB trial cases.
64. See APA §§ 554(b)–(c), 557(c).
65. Anacor Pharm., Inc. v. Iancu, 889 F.3d 1372, 1379 (Fed. Cir. 2018); Rovalma, S.A. v. Bohler-Edelstahl GmbH & Co., 856 F.3d 1019, 1029 (Fed. Cir. 2017); Novartis AG v. Torrent Pharm. Ltd., 853
F.3d 1316, 1324 (Fed. Cir. 2017); In re Nuvasive, Inc., 841 F.3d 966, 971 (Fed. Cir. 2016); Dell, Inc. v.
Acceleron LLC, 818 F.3d 1293, 1301 (Fed. Cir. 2016); Synopsis, Inc. v. Mentor Graphics Corp., 814
F.3d 1309, 1322 (Fed. Cir. 2016); Belden Inc. v. BerkTek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015).
These cases are criticized in Christopher J. Walker & Melissa F. Wasserman, The New World of Agency
Adjudication, 107 Calif. L. Rev. (forthcoming 2019) (manuscript at 22–25).
Types A, B, and C Adjudication

17

Still another unresolved issue concerning APA applicability arises when an evidentiary hearing is required by due process but not by a statute.66 In the famous Wong
Yang Sung decision,67 rendered in 1950 just a few years after the APA was adopted
in 1946, the Supreme Court interpreted the APA to apply to evidentiary hearings
required by due process (but not required by statute).68
The Wong Yang Sung decision has been mostly ignored in subsequent decades
because it is impracticable.69 As discussed in Chapter 3, beginning in the 1970s, the
Supreme Court avoided a fixed template when it determined what process was due.
Instead, the nature of procedural protections in a hearing governed by due process
depends on the specific context. A court must balance the factors of the strength of
the private interest involved in the case, the strength of the government’s interest in
avoiding the procedure under consideration, and the extent to which that procedure
is likely to enhance the accuracy of the process.70 This balancing analysis often calls
for much less formality than the APA would require. Consequently, application of
the APA would be inappropriate in many cases of hearings required by due process.
There is a pressing need for Congress or the Supreme Court to resolve the question of whether the APA applies to gray area cases and to evidentiary hearings required
by due process but not by statute. This book takes no position on the issue of how to
distinguish Type A and Type B adjudication. If the agency conducts legally required
evidentiary hearings but does not presently apply the APA, this report assumes that
its evidentiary hearings are Type B proceedings.
The question of whether Congress should transfer Type B adjudicatory
schemes to Type A is beyond the scope of this book.71 The 1992 ACUS study72 rec-

66. See Chapter 3 for discussion of due process. As relevant to this discussion, when due process is
applicable, it requires notice, a fair hearing, and a neutral decisionmaker.
67. Wong Yang Sung v. McGrath, 339 U.S. 33, 50–51 (1950).
68. “It might be difficult to justify as measuring up to constitutional standards of impartiality a hearing tribunal for deportation proceedings the like of which has been condemned by Congress as unfair
even where less vital matters of property rights are at stake. We hold that the Administrative Procedure
Act [§ 554] does cover deportation proceedings conducted by the Immigration Service.” Id.
69. See Robert E. Zahler, Note, The Requirement of Formal Adjudication Under Section 5 of the
Administrative Procedure Act, 12 Harv. J. on Legis. 194, 218–41 (1975); Clardy v. Levi, 545 F.2d
1241, 1244–46 (9th Cir. 1976) (declining to apply APA formal adjudication rules to federal prison
disciplinary cases even though due process then required a hearing in such cases). But see Funk, supra
note 56, at 150–52 (urging that Wong Yang Sung be followed). The Ninth Circuit has applied Wong
Yang Sung so as to require the government to pay attorneys’ fees of prevailing parties in mining claim
disputes. See text at notes 66-68. Collord v. DOI, 154 F.3d 933, 936–37 (9th Cir. 1998).
70. See text at notes 121–30.
71. See Kent Barnett, Against Administrative Judges, 49 U.C. Davis L. Rev. 1643 (2016) (urging conversion of AJs to ALJs). But see Gary J. Edles, An APA-Default Presumption for Administrative Hearings:
Some Thoughts on “Ossifying” the Adjudication Process, 55 Admin. L. Rev. 787 (2003) (opposing conversion of Type B hearings to Type A but favoring the adoption of procedural standards for Type B).
72. See Recommendation 92-7, supra note 38. See also 1992 ACUS Study, supra note 38, and text at
notes 38–41.
18

Federal Administrative Adjudication Outside the Administrative Procedure Act

ommended that some existing schemes of Type B adjudication that involve serious
sanctions implicating important liberty and property interests (such as deportation)
be converted to Type A, because the use of ALJs instead of AJs would enhance the
acceptability of the process.73 However, Congress took no action in response to
this recommendation.
The ABA has recommended that future statutes calling for a “hearing” should
be governed by the APA unless Congress explicitly provides to the contrary.74 Again,
this book does not take a position on that issue. Nor does this book consider whether
an agency conducting Type B adjudication should adopt regulations that convert its
hearings into Type A rather than Type B. Such a decision (which would involve among
other things turning AJs into ALJs) would involve complex legal and practical issues
that I have not considered.75
B. THE BORDER BETWEEN TYPE B AND TYPE C ADJUDICATION
An agency conducts Type B adjudicatory proceedings when a source of law (a statute,
regulation, or executive order) requires it to conduct an evidentiary hearing before
making an adjudicatory decision, but the APA’s formal adjudication provisions are
inapplicable. In contrast, a Type C proceeding is one in which an evidentiary hearing
is not legally required, even though the agency is empowered to render an adjudicatory
decision that is binding on private parties or on itself. The definition of “evidentiary
hearing” thus becomes critical, but it is not an easy term to define, and the definition
is not always easy to apply.
As it is used in this book, the term “evidentiary hearing” means one in which both
parties have an opportunity to offer testimony and rebut the testimony and arguments
made by the opposition and to which the exclusive record principle applies. The exclusive
record principle means that the decisionmaker receives written or oral submissions of
information from the parties and the decisionmaker is confined to those inputs (as well
as matters officially noticed) when making the decision.
The term “evidentiary hearing” does not require orality; in some Type B hearings,
the decisionmaker considers only written documents (with or without an oral argu-

73. 1992 ACUS Study, supra note 38, at 779, 1046–50. See also Recommendation 92-7, supra note 38.
74. House of Delegates, Am. Bar Ass’n, Resolution 113 (June 2000). For criticism of this recommendation, see Edles, supra note 71.
75. An ACUS study relating to the EEOC gave detailed consideration to whether EEOC could restructure its Type B federal discrimination adjudicatory scheme (see Appendix A-6) by converting its AJs
to become ALJs, without first securing implementing legislation. The study indicates that the EEOC
probably has power to do so. See also Matthew Lee Wiener et al., Admin. Conf. of the U.S., Office of
the Chairman, Equal Employment Opportunity Commission: Evaluating the Status and Placement
of Adjudicators in the Federal Sector Hearing Program 23–27 (Mar. 31, 2013), https://www.acus.
gov/report/equal-employment-opportunity-commission-evaluating-status-and-placement-adjudicators-federal (discussing the EEOC’s authority to appoint ALJs to preside over its hearings). The
budgetary cost to the EEOC of such a conversion would be quite substantial (several million dollars
per year, depending on various assumptions). Id. at 42–48.
Types A, B, and C Adjudication

19

ment). Nor does the term “evidentiary hearing” require that a particular case involve
a dispute about adjudicative or legislative facts. Even if a particular case centered on a
dispute over legal interpretation of a statute or regulation or involved only an exercise
of discretion, it would still be considered an “evidentiary hearing” if other cases arising
under the same legal authority do contain factual disputes.
The term evidentiary hearing does not include:
• A “public hearing” at which the members of the public are invited to make
statements (for example in response to an application for development), but the
statements do not furnish the exclusive record for decision.76
• A legally required conference between a private party and the decisionmaker
that is not intended to be the exclusive source of the information considered by
the decisionmaker.
• A “review” that does not include an opportunity for submission of new evidence (such an intra-agency higher-level appeal of an initial decision).77
• Many hearings required by due process. As discussed in Chapter 3, many
hearings required by procedural due process are not “evidentiary” hearings.
Due process is sometimes satisfied by an informal conference that is not
subject to the exclusive record constraint or other procedural protections.78
Consequently, due process often calls only for Type C rather than Type
B adjudication. Sometimes, due process is satisfied by judicial rather than
administrative proceedings.79 Of course, in many situations, due process does
require evidentiary hearings, and the best practice recommendations set forth
in Chapter 4 might be appropriate for such cases.80
In the end, a certain degree of judgment is called for in deciding whether a legally-required adjudicatory procedure is an evidentiary hearing. Fortunately, however,
that boundary line need not be marked with precision, because this book does not

76. For example, before issuing a permit for discharge of material into navigable waters, the Army
Corps of Engineers must give public notice and conduct a public hearing. 33 U.S.C. § 1344(a).
77. Most agencies provide for some sort of intra-agency appeal or review of their initial adjudicatory
decisions. See Best Practice Recommendation 4.b., Chapter 4. This review is based on the record made
at the initial decision phase, not a de novo consideration of the case. The higher-level review function is
not treated as a separate Type B proceeding.
78. For example, in the case of short-term school suspensions, due process requires only a conference
between the student and the decisionmaker. Goss v. Lopez, 419 U.S. 565, 573 (1975). In the case of
employee termination, a pre-termination hearing is required, but it is little more than a conference where
employees can tell their side of the story. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542–46
(1985). In the case of termination of utility service for nonpayment of bills, only a conference with a
utility staff member is required. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9–12 (1978).
79. Ingraham v. Wright, 430 U.S. 651, 678–80 (1977) (no agency hearing required in case of corporal
punishment because state tort law provides remedy); Lujan v. G & G Fire Sprinklers, Inc., 532 U.S.
189, 196–98 (2001) (no agency hearing required when government breaches contract because court
remedies are sufficient).
80. Goldberg v. Kelly, 397 U.S. 254, 269–71 (1970) (pre-termination hearings in welfare cases require
elaborate procedural protections).
20

Federal Administrative Adjudication Outside the Administrative Procedure Act

recommend adoption of a statute that turns on the distinction. It suggests only that
agencies engaged in Type B adjudication incorporate certain best practices in their procedural regulations. It also recommends that agencies conducting Type C adjudication
incorporate a much less demanding set of best practices in their procdural regulations.
As a result, agencies would be encouraged to make common sense determinations as to
whether their legally-required procedures fall into the Type B pigeonhole rather than
the Type C pigeonhole. If Type C agencies decide to adopt some of the recommended
Type B best practices, so much the better.
C. STATISTICAL DATA ON IMPORTANT TYPE B ADJUDICATION
SCHEMES
This part of Chapter 2 supplies recent statistical data about the world of Type B adjudication, usually for federal government fiscal year 2016. The Type B adjudicatory
schemes covered in these tables are the same ones discussed in Appendix A. This
book studies about a dozen of the most important schemes of Type B adjudication.
Numerous other Type B adjudicating agencies were not studied.81
Table 1 concerns the workload of Type B agencies (as contrasted with their workload in 1992 and 2002, if that information is available). The final column supplies
data on pending cases, but this information is incomplete.
For those schemes for which I was able to obtain current data and also comparable 1992 or 2002 data, the table shows a significant increase in workload. For
example, EOIR’s caseload increased from 152,372 (1992) and 254,000 (2002) to
about 306,000 (combining Immigration Court (IC) and Board of Immigration
Appeals (BIA) cases). BVA cases increased from 31,000 (2002) to 56,000. DOE
security clearance cases increased from 65 to 106. EEOC federal employee cases rose
from 6,227 (1992) to 8,086. Thus, the workload of Type B adjudicating agencies
is growing steadily.
Many Type B agencies have significant backlogs. EOIR’s backlog is well over
600,000 cases at the IC level and 13,390 at the BIA level; VA BVA’s backlog is
67,000 cases.
In the following tables, a blank cell means information is not available.
These are the abbreviations used in the tables:
ALJ

Administrative Law Judge

AJ

Administrative Judge

APJ

Administrative Patent Judge

81. An ACUS study by Kent Barnett, Logan Cornett, Malia Reddick and Russell Wheeler surveyed
non-ALJ adjudication. Barnett, supra note 49. The Barnett study provides similar data about numerous schemes of Type B adjudication that are not discussed in this book.
Types A, B, and C Adjudication

21

BIA

Board of Immigration Appeals

BVA

Board of Veterans’ Appeals

CBCA

Civilian Board of Contract Appeals

DOE

Department of Energy

EEOC

Equal Employment Opportunity Commission

EOIR

Executive Office of Immigration Review

EPA-EAB

Environmental Protection Agency, Environmental Appeals Board

HHS-DAB

Department of Health and Human Services-Department Appeals Board

MSPB

Merit Systems Protection Board

OHA

Office of Hearing and Appeals, Department of Energy

PRRB

Provider Reimbursement Review Board

USDA PACA

U.S. Department of Agriculture, Perishable Agricultural
Commodities Act

USPTO-PTAB

United States Patent and Trademark Office—Patent Trial and
Appeal Board

USPTO-TTAB

United States Patent and Trademark Office—Trademark Trial and
Appeal Board

VA BVA

Veterans Administration Board of Veterans Appeals

22

Federal Administrative Adjudication Outside the Administrative Procedure Act

TABLE 1: WORKLOAD OF TYPE B ADJUDICATING AGENCIES
Agency/scheme

Frey (1992
caseload)1

USDA PACA

255

Limon (2002
caseload)2

Current
caseload
24

CBCA

423

Debarment &
Suspension

4,249

DOE Security
Clearance

Pending cases

65

DOE
Whistleblowers

106
20

EPA-EAB

about 60

EEOC

6,227

See note3

8,086

10,363

EOIR

152,372

IC 254,070

IC 273,390
BIA 33,240

IC 600,000
BIA 13,930

HHS-DAB
(Grants)
MSPB

20 4
7,124

7,174

PRRB

8,602 AJ;
1,180 Board

4,586

3,9075

7,124

5,782

5,319

10,000
appeals;
2,000 trials

13,000 appeals;
700 trials

USPTO-TTAB

3,503

754

649 appeals;
127 trials

65 appeals;
28 trials

VA BVA

42,000

31,557

56,000

67,000

USPTO-PTAB

Table 2 compares the number of AJs in the programs studied with the number of AJs
in 1992 and 2002.82 It also makes a rough estimate of the current annual caseload per AJ
(cases filed or decided divided by the number of AJs). Table 2 shows a steady increase in
the number of AJs from 1992 to 2002 to the present (although complete data are not
available and some of the 1992 and 2002 statistics are not comparable to the present).

82. The figures given in Table 2 do not exactly match those given in Figure 1 of the Barnett study, supra
note 49, at 19–21. though the numbers are roughly similar for the schemes that are discussed in both
the Barnett study and this book. The authors of the Barnett study drew their information from survey
instruments sent to agencies (some of whom did not respond to the request), whereas my figures are
based in most cases on agency annual reports and other data posted on the internet. The difference in
AJ numbers may, therefore, simply reflect AJ populations at different dates. The Barnett study also
classified some decisionmaking personnel differently than I did. For example, Barnett included 7,856
patent examiners employed by the USPTO (the patent examiners constituted 72% of Barnett’s total
of 10,831 non-ALJs). However, I did not include patent examiners since I treated them as front-line
decisionmakers. The same is true of a number of VA regional-office personnel counted as non-ALJs by
Barnett. See text at note 49.
Types A, B, and C Adjudication

23

TABLE 2: NUMBER OF AJS AND CASELOAD PER AJ
Agency/scheme

# AJs Frey
Study
(1992)

USDA PACA

86

# AJs
Limon Study
(2002)

# AJs
(Current)

Caseload per AJ per
Year (Current)

CBCA

14

60

Debarment &
Suspension

See note

DOE (Security &
Whistleblowers)

19

EPA EAB

4

6

12 OHA

21 OHA

4

45 (panels of 3)

EEOC

79

See note

110

65

EOIR

76

228

334 IJs;
17 BIA

>1,000 IJs;
1,750 BIA

7

HHS-DAB
MSPB

See note8
66

62

60

PRRB

143
See note9

USPTO PTAB
APJs

58

6210

225

132 (panels of 3)

USPTO TTAB
ATJs

9

15

25

96 (panels of 3)

VA BVA

44

56

72

660

Table 1 Footnotes
1. See Frye, supra note 42.
2. See Limon, supra note 42.
3. Limon gives a figure of 21,734 for the EEOC workload. The figure does not seem comparable to
current data. Limon may be counting non-government employees whose cases are investigated and
mediated by the EEOC.
4. DAB resolves around 60 cases per year, and about one-third are grant cases; the balance are appeals
from ALJ decisions and thus are Type A.
5. These figures are for FY 2013. Current information not available.

Table 2 Footnotes
6. Because debarment/suspension decisions are distributed over the entire government, it is not known
how many SDOs are employed.
7. Figures not comparable.
8. DAB cases are heard by panels of the full Board. It does not use AJs.
9. PRRB has no AJs and decides all cases by the full five-member board. PRRB issues about 25 substantive decisions and hundreds of jurisdictional decisions per year. See Appendix A-11.
10. Limon figures are not comparable to current operations because PTAB’s jurisdiction has greatly
increased.
24

Federal Administrative Adjudication Outside the Administrative Procedure Act

CHAPTER 3

PROCEDURAL PROTECTIONS

T

his chapter surveys constitutional and statutory procedural protections that
apply to parties engaged in Types A, B, and C adjudication. These protections
are derived from procedural due process, statutory requirements of a “hearing” or
an “opportunity to comment,” and APA §§ 555 and 558. Of course, in Type A adjudication, most procedural protections are derived from §§ 554, 556, and 557 of the
APA, which are not discussed in this book. In Type B adjudication, most procedural
protections are derived from procedural regulations, as discussed in Chapter 4 and
in Appendix A.
A. PROCEDURAL DUE PROCESS 83
1. Basic Principles
Both the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to state and local governments) provide that “no
person . . . [shall] be deprived of life, liberty, or property without due process of law.”84
Essentially, the due process clauses provide procedural protections for private individuals and business interests threatened by loss of liberty or property interests.85 The
requirement of due process attaches only to “state action,” meaning actions taken by
government entities, rather than to actions taken by private entities.86 In general, when
due process applies, it guarantees fair notice, a fair hearing, and a neutral decisionmaker.

83. See ABA Guide, supra note 43. I wrote the due process discussion in the first edition of the Guide;
portions of this chapter are excerpted from the Guide with permission of the ABA. The case law and
literature relating to procedural due process is vast, and this chapter attempts only to hit the high
points, in order to provide a basis to discuss in other chapters the relationship of due process to adjudication outside the APA.
84. On due process, see generally Richard J. Pierce, Jr., Administrative Law Treatise ch. 9
(5th ed. 2010); Jerry L. Mashaw, Due Process in the Administrative State 107–53 (1985);
Edward L. Rubin, Due Process and the Administrative State, 72 Calif. L. Rev. 1044, 1130–78 (1984).
85. Substantive, as opposed to procedural, due process concerns the level of justification the state must
establish before depriving a person of life, liberty, or property. The subject of substantive due process is
beyond the scope of this book.
86. The problem of distinguishing state and private action is beyond the scope of this book. See Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (workers’ compensation insurer is not a state agent
merely because state regulates it and therefore is not subject to due process obligations).
Procedural Protections

25

Due process issues seldom arise when a federal agency engages in Type A or Type
B adjudication. In the case of Type A, the APA provides far more procedural protection than due process requires. Nevertheless, due process issues do occasionally arise
in Type A cases. For example, Social Security disability cases are Type A adjudication,
but the Supreme Court had to rule on whether due process required an ALJ hearing
before disability payments terminated as opposed to after they terminated.87 Similarly, the Court ruled that the FCC violated the notice requirements of due process
by changing a policy and applying the new policy retroactively.88
The same is true of Type B adjudication. Due process can apply to such adjudication, but it seldom does because the procedural regulations defining the requirements
for a legally required evidentiary hearing generally guarantee private parties more
protection than due process would require. 89 In the case of Type C adjudication, due
process might require more procedural protection than is provided by agency procedural regulations or practice. However, the majority of Type C adjudicating schemes
involve discretionary decisions that are not covered by due process.90
In order to conclude that a person is entitled to procedural due process, and to
determine what process is due, it is necessary to determine
• that there exists a constitutionally protected interest (namely life, liberty,
or property) (Subpart 2);
• that government action has “deprived” a person of such an interest
(Subpart 3);
• when due process must be provided (Subpart 4);
• what procedural process must be provided (Subpart 5);
• whether the decisionmaker met the requirements of neutrality
(Subpart 6); and
• that the dispute is adjudicative rather than legislative in nature (Subpart 7).
2. Constitutionally Protected Interests
Procedural due process applies only if government has deprived a person of
“life, liberty, or property.” In federal administrative adjudication, property and
liberty are usually the substantive interests at stake. The right to life is seldom
87. Mathews v. Eldridge, 424 U.S. 319 (1976).
88. FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012).
89. For example, due process is frequently an issue in immigration cases which are Type B adjudication.
See, e.g., Gomez-Velazco v. Sessions, 879 F.3d 989, 992–96 (9th Cir. 2018) (due process protects right
to counsel in immigration cases, but deprivation was non-prejudicial). Normally, however, procedural
regulations that govern Type B adjudication more than satisfy due process requirements. For example,
decisions by federal agencies to exclude private contractors from entering into procurement contracts
with the government are subject to due process restrictions, but the FAR regulations (which apply
across the entire government) satisfy the requirements of due process. IMCO v. United States, 97 F.3d
1422, 1427 (Fed. Cir. 1996); Girard v. Klopfenstein, 930 F.2d 738, 743 (9th Cir. 1991). For discussion
of FAR regulations, see Appendix A-3.
90. See text at notes 99–100.
26

Federal Administrative Adjudication Outside the Administrative Procedure Act

asserted (since the death penalty is imposed through the criminal justice process
rather than administratively).
a. Property
The term “property” includes “old” property rights, such as real or personal
property or money. These interests have the attributes normally associated with property, such as the ability to sell or bequeath it, subdivide it, and exclude other persons
from using it. However, for due process purposes, “property” also includes so-called
“new” property rights that lack many elements of old property (such as the ability to
transfer, divide, or exclude). New property generally consists of “entitlements” and
involves a protected relationship between individuals and government. Entitlements
are created by rules or understandings that stem from an independent source of law
such as a state or federal statute or (in some cases) a contract.91
One important entitlement is a government job that protects the employee from
being discharged without good cause. Thus, the positions of civil service employees92
or tenured college professors93 are treated as property. Professional or occupational
licenses that cannot be revoked without good cause are also entitlements. For example, the license of a physician, architect, or lawyer is a “property” interest because
the government licensor cannot revoke the license without some cause specified in a
statute.94 Another important entitlement is a non-discretionary government benefit,
such as welfare or disability payments,95 public education,96 or other essential public
service.97 People who meet statutory requirements are entitled to receive such benefits; the benefit cannot be withdrawn unless the person fails to satisfy some objective
standard. In all these situations, if the government seeks to deprive a person of the
entitlement, it must provide procedural due process protection.98
On the other hand, if a governmentally provided benefit or status can be granted
or withdrawn in the discretion of a government official, it is not treated as “property.”

91. Bd. of Regents v. Roth, 408 U.S. 564, 577–78 (1972). “Property interests, of course, are not created
by the Constitution. Rather, they are created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as state law—rules or understandings that
secure certain benefits and support claims of entitlement to those benefits.” Id. at 577.
92. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (civil servant who could be discharged only for good cause).
93. Roth, 408 U.S. at 576.
94. Barry v. Barchi, 443 U.S. 55, 64 (1979) (horse trainer’s license is “property” for due process purposes).
95. Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
96. Goss v. Lopez, 419 U.S. 565, 573 (1975) (public education).
97. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9–12 (1978) (utility service).
98. Many other relationships between individuals and government have been treated as entitlements,
such as the right to utilize an adjudicatory process to remedy a legal wrong. Logan v. Zimmerman
Brush Co., 455 U.S. 422, 428–37 (1982) (agency destroyed employee’s right to obtain relief from
employment discrimination by scheduling conference after deadline).
Procedural Protections

27

The most important example is a government employment relationship that can
be terminated without cause by the employer (so called “at-will” employment). For
example, a non-tenured teacher can be terminated in the employer’s discretion without establishing any cause (although not for reasons of prohibited discrimination).
The employee is not entitled to procedural due process protection when discharged
by the employer or when the employer refuses to renew an employment contract that
has expired.99 Similarly, some government permissions (such as whether to grant an
applicant a bank charter or issue an owner a conditional use permit for property) are
discretionary, and therefore the application process does not trigger due process.100
New property rights can be derived not only from statutes but also from express
or implied contracts between the individual and the government.101 If an independent
source of law creates a property right as above defined, the holder of that right is entitled to the protections provided by due process, not to some lower level of protection
provided by the statute in question.102 The Supreme Court has repudiated the idea
that some statutory entitlements are mere “privileges,” rather than “rights.”103
Whether a particular claim is an entitlement or whether it depends on the discretion of state actors is a difficult issue and requires an examination of the factual
context.104 In order to create a property interest, the statute or other source of law must
contain substantive protections for the interest (such as a requirement that discharge
from employment can occur only for cause), not merely procedural protections for an
interest that can be terminated in the state’s discretion.105 If government fails to honor
a legally required procedural protection for an interest that is not otherwise treated as
an entitlement, the denial does not violate due process (but it may violate the statute
or regulation that provided that protection).106
99. Bd. of Regents v. Roth, 408 U.S. 564, 576–78 (1972).
100. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 756–66 (2005), involving police failure to
enforce domestic violence restraining order. The applicable statute said that the police “shall arrest”
a restrained person who violated the order. Based on historical understandings, the Supreme Court
determined that enforcement was discretionary with the police, despite the use of the word “shall.”
Even if that were not the case, the Court stated that the right to enforcement of a restraining order
should not be considered as “property” since it had no ascertainable monetary value. Id. at 766–67.
101. See Perry v. Sindermann, 408 U.S. 593, 599–603 (1972) (right to tenured governmental employment based on implied contract); Forgue v. City of Chi., 873 F.3d 962, 970 (7th Cir. 2017) (right to
retirement card on police officer’s retirement can be established by unwritten policy and practice of the
police department).
102. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). On this issue, Loudermill overruled Arnett v. Kennedy, 416 U.S. 134 (1974). A plurality of justices had held in Arnett that an employee
must take “the bitter with the sweet,” meaning that the statute creating the property right could also
define the procedural protections for that right.
103. Roth, 408 U.S. at 571.
104. See Bishop v. Wood, 426 U.S. 341, 345–47 (1976) (upholding lower court decision that policeman
who was a “permanent employee” was employee at will and thus lacked a property interest in his job).
105. Olim v. Wakinekona, 461 U.S. 238, 249–51 (1983).
106. Roybal v. Toppenish Sch. Dist., 871 F.3d 927, 933 (9th Cir. 2017).
28

Federal Administrative Adjudication Outside the Administrative Procedure Act

b. Liberty
Liberty interests protected by due process entail freedom from physical confinement or physical punishment107 or a change in physical status such as deportation.108
In addition, “liberty” includes a broad panoply of rights derived from explicit provisions of the Constitution, such as the right of freedom of speech provided by the
First Amendment.109 The Supreme Court has defined “liberty” very broadly. Liberty
“denotes not merely freedom from bodily restraint but also the right of the individual
to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long
recognized . . . as essential to the orderly pursuit of happiness by free men.”110
Liberty also includes reputational interests. Thus, a person is deprived of liberty
by a governmentally imposed stigma.111 Stigmatized employees are entitled to a hearing at which they can attempt to clear their names.112 However, a state official who
defames a person but does not do so in connection with some other government action
(such as discharge from employment) does not infringe a liberty interest. This is often
referred to as the “stigma-plus requirement.”113 Claims of stigma unaccompanied
by the plus factor must be rectified, if at all, under state defamation law rather than
through a name-clearing hearing required by due process.
Prisoners, once they are deprived of physical liberty by a criminal conviction, have
very limited liberty rights for due process purposes.114 A prisoner’s liberty interest is
infringed only if the action in question would inevitably affect the duration of the

107. Ingraham v. Wright, 430 U.S. 651, 672–74 (1977).
108. Wong Yang Sung v. McGrath, 339 U.S. 33, 49–50 (1950).
109. See, e.g., Perry v. Sindermann, 408 U.S. 593, 547 (1972) (retaliation against non-tenured teacher
for exercising rights of free speech infringes a liberty interest).
110. Bd. of Regents v. Roth, 408 U.S. 564, 572 (1972), quoting Meyer v. Nebraska, 262 U.S. 390, 399
(1923) (a substantive due process case).
111. Roth, 408 U.S. at 573–74 (failure to renew contract of non-tenured professor without explanation
does not impose a stigma).
112. In order to trigger a name-clearing hearing, the employee must allege that the stigmatizing
information is false. Codd v. Velger, 429 U.S. 624, 627–28 (1977). In addition, to create a stigma, the
information must be publicly disclosed as opposed to being privately communicated to the employee.
Bishop v. Wood, 426 U.S. 341, 348–49 (1976).
113. See Paul v. Davis, 424 U.S. 693, 701–02, 710–11 (1976). Paul held that plaintiff must establish
not only that government made a derogatory and false statement about him but also must show some
tangible and material state-imposed burden or alteration of his or her status. See also Siegert v. Gilley,
500 U.S. 226 (1991) (voluntary resignation from employment accompanied by stigmatic letter in file
does not meet stigma-plus requirement).
114. Sandin v. Conner, 515 U.S. 472 (1995).
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29

prisoner’s sentence115 or involves some restraint that “imposes atypical and significant
hardship” going beyond the ordinary incidents of prison life.116
3. Deprivation
Due process protection arises in the case of a “deprivation” of liberty or property. Not every government action adversely affecting a protected property or liberty
interest amounts to a “deprivation.” For example, there is no deprivation of liberty
or property if the impact on the plaintiff is indirect rather than direct.117 In addition,
the due process clause is not implicated by a negligent act of an official that causes
unintended injury to a protected interest.118
As discussed above, state action that terminates an entitlement such as welfare
payments is a “deprivation” of property. However, it remains unclear whether the
denial of an application for the same benefit is a “deprivation” of the benefit. Lower
court cases have treated the rejection of an application for welfare benefits as a deprivation that triggers due process,119 but the Supreme Court has left the issue in doubt.120
4. When Process Is Due
Due process cases frequently present the question of whether the legally required
hearing must be provided before deprivation occurs, as opposed to after it occurs.
This issue is resolved through a judicial balancing of three factors: (1) the degree of
115. Sandin approved the result, although not the reasoning, in Wolff v. McDonnell, 418 U.S. 539
(1974). Wolff held that due process applied to a prison disciplinary hearing. Under Sandin, the key
fact in Wolff was that the disciplinary proceeding could result in the loss of good time credits and thus
inevitably prolong the prison term. Sandin, 515 U.S. at 472–73.
116. See Vitek v. Jones, 445 U.S. 480 (1980) (transfer from prison to mental hospital); Washington v.
Harper, 494 U.S. 210 (1990) (involuntary administration of psychotropic drugs). In Sandin, a prisoner
was placed in solitary confinement as a punishment for misconduct. This restraint was within the range
of confinement normally expected during long-term confinement in prison. Sandin, 515 U.S. at 485–86.
117. See O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 785–90 (1980) (government decertified
a nursing home forcing the patients to move; this action deprived the nursing home but not the patients
of a property interest); Town of Castle Rock v. Gonzales, 545 U.S. 748, 767–68 (2005) (failure to enforce
domestic restraining order against husband does not deprive wife of property as injury was indirect).
118. See Daniels v. Williams, 474 U.S. 327 (1986). See also Seamons v. Snow, 84 F.3d 1226, 1234 (10th Cir.
1996) (nondeliberate tolerance of private harassment by school officials does not constitute a “deprivation”).
119. Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009) (rejected application for veterans’
benefits is a deprivation of property since such benefits are a matter of statutory entitlement).
120. See Bd. of Regents v. Roth, 408 U.S. 564, 576 (1972) (a property interest is one that a person “has
already acquired”); Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 58–61 (1999) (alternative holding). American Manufacturers concerned a workers compensation scheme that entitled claimants to
payment of their reasonable and necessary medical expenses. Under the scheme, employers could contest this obligation pending an administrative review. The plurality opinion held that an employee had
no property interest in such payments until his right to them was already established. This language
suggests that rejection of an application for benefits (as opposed to termination of benefits) might not
trigger due process. On the other hand, it may simply mean there is no due process right to receive benefits during the time that an application is being considered by the agency. The latter interpretation,
obviously, is much narrower than the former.
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potential deprivation suffered by the private party, (2) the fairness and reliability of
existing procedures and the probable value of additional procedural safeguards, and
(3) the strength of the government’s interest in resisting these safeguards.121 These
are often referred to as the Mathews factors, and the analytical process is referred to
as Mathews balancing.
In general, due process must be provided before the deprivation of liberty or property occurs, but there are numerous exceptions to this rule. In exigent circumstances,
the government is permitted to act first and provide a meaningful hearing later, even
though there is a serious risk of error. Such situations tend to occur in cases of public
health or safety,122 environmental harm,123 or financial emergencies.124
In many situations, such as the discharge of government employees for cause, due
process calls for an informal probable-cause type procedure before the employee is
discharged, followed by a full trial-type hearing within a reasonable time thereafter.125
The pre-discharge procedure serves as an “initial check against mistaken decisions—
essentially a determination of whether there are reasonable grounds to believe that the
charges against the employee are true and support the proposed action.”126 Prior to
discharge, employees must receive oral or written notice of the charges against them,
an explanation of the employer’s evidence, and an opportunity to present their side
of the story—orally or in writing—to a decisionmaker who is not necessarily neutral
or uninvolved in the dispute.127 In case of true exigent circumstances, however, an
employee can be suspended without any prior procedures.128
Mathews balancing is illustrated by two Supreme Court cases that determine
whether a hearing must be provided before the termination of government benefits or
whether a post-termination procedure is sufficient. In the case of need-based welfare
benefits, the welfare recipient is entitled to a hearing before termination of benefits.
Balancing the three Mathews factors, the recipient’s need is dire, and termination
of the payments would cause great financial distress. The issues are often factual
and witness credibility may be critical, so that an oral hearing might contribute to

121. Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976).
122. Barry v. Barchi, 443 U.S. 55, 64 (1979) (suspension of horse trainer for doping horses—agency
must have probable cause to believe doping occurred); Ewing v. Mytinger & Casselberry, Inc., 339 U.S.
594, 599–600 (1950) (misbranded drugs seized before judicial proceedings began).
123. Hodel v. Va. Surface Mining Ass’n, 452 U.S. 264, 298–303 (1981) (closing hazardous mine prior
to hearing).
124. FDIC v. Mallen, 486 U.S. 230, 239–48 (1988) (suspension of banking executive under indictment
for felony involving dishonesty).
125. Cleveland Bd. of Educ, v. Loudermill, 470 U.S. 532, 542–46 (1985).
126. Id. at 545–46.
127. Id. at 546.
128. Gilbert v. Homar, 520 U.S. 924, 932–35 (1997) (campus policeman suspected of drug offenses).
The Gilbert decision also held that the employer is not required to pay the employee during the suspension period (the period of time between the initial and final discharge decision).
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31

a more accurate decision. On the other hand, the government has a strong interest
in halting payments before the hearing because the ability to delay termination will
cause many persons to request a hearing even when they are certain to lose; moreover,
the government is unlikely to be able to recoup benefits to which the recipient is not
entitled. Based on this balance, a pre-termination hearing is required in the case of
need-based welfare.129
In contrast, the government is permitted to terminate federal disability payments
before providing a hearing. Disability payments do not depend on income or financial
need, only on whether a disability prevents the recipient from working. Balancing the
three Mathews factors, the recipient may not have a dire need for the income since the
program is not need-based; the issues are likely to be based on medical reports rather
than credibility determinations, so that an oral trial-type procedure would contribute
little to making the decision more accurate; and the government has a strong interest
in resisting a prior hearing for the same reasons as in the welfare example.130
5. What Process Is Due
Early due process cases contain a fixed list of procedural protections required
by due process:
• The hearing must be at a reasonable time and conducted in a meaningful manner.
• Timely and adequate notice must be provided.
• The private party must have an opportunity to confront adverse witnesses
and to present his own arguments and evidence orally.
• There is a right to retained counsel.
• The decisionmaker’s conclusion must rest solely on the legal rules and
evidence adduced at the hearing.
• The decisionmaker must state the reasons for his determination and
indicate the evidence he relied on.
• An impartial decisionmaker is essential.131
This approach has now been abandoned. Instead, if due process applies, the person deprived of liberty or property “must be given some kind of notice and afforded
some kind of hearing.”132 Due process requires an opportunity to be heard “at a
meaningful time and in a meaningful manner.”133 But determination of what kind of
notice and what kind of hearing depends on a highly contextual Mathews balancing.

129. Goldberg v. Kelly, 397 U.S. 254, 261–66 (1970).
130. Mathews v. Eldridge, 424 U.S. 319, 331–49 (1976).
131. Goldberg, 397 U.S. at 269–71.
132. Goss v. Lopez, 419 U.S. 565, 579 (1975).
133. Mathews, 424 U.S. at 333.
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With respect to notice, the notice must be “reasonably calculated under all the
circumstances to apprise” the party of the pendency and nature of the proceedings.134
Under this standard, notice sent to a prison inmate by certified mail was adequate
notice of a pending forfeiture action, even though the prison failed to deliver the letter.135 However, in a subsequent case, the Supreme Court determined that a notice of
tax foreclosure was not sufficient when notice was sent by certified mail and returned
as unclaimed. When the state was informed that its notice did not reach the intended
recipient, it must take additional steps to give notice.136
With respect to the hearing, the courts employ the three-factor Mathews balancing test to decide whether a particular procedural protection sought by the plaintiff
must be provided. This requires a case-specific assessment of the relevant factors and
precludes broad generalizations.137
Thus, the Supreme Court upheld a statute that prohibited payment of attorney’s
fees by applicants for veterans’ benefits. In these cases, veterans’ service organizations
provide free lay representatives to the claimants. While a veteran’s interest in resisting
reduction of benefits is quite substantial, the availability of lay representation is adequate to safeguard these interests in the great majority of cases. The government has
an interest in keeping veterans’ benefits hearings informal and non-adversarial and
in protecting veterans from claims for attorneys’ fees.138
In many situations that do not involve disputed issues of material fact, an opportunity to make a written or oral argument may satisfy due process, without an oral
trial-type hearing procedure. For example, a tenured college professor was fired after
refusing to turn in his grades. He was given an opportunity to argue to the dean that
some sanction short of discharge would be appropriate. He was not entitled to an
oral trial-type hearing because no disputed material facts were at issue.139 In other

134. Dusenbery v. United States, 534 U.S. 161 (2002), relying on Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950). Dusenbery holds that the Mullane test should be applied in determining the adequacy of notice, not Mathews balancing.
135. Dusenbery, 534 U.S. at 167–71.
136. Jones v. Flowers, 547 U.S. 220, 228–49 (2006).
137. For example, there is considerable dispute about the required procedures that colleges must follow
in order to suspend a student for alleged sexual violence. It may be that the hearing board can dispense
with cross-examination of the complainant, but there must be some method whereby the accused
student can challenge the complainant’s account of what happened (such as propounding written
questions to the complainant). See, e.g., Doe v. Univ. of Cincinnati, 872 F.3d 393, 399–406 (6th Cir.
2017) (board’s reliance on absent complainant’s hearsay statement without giving accused any opportunity to challenge it violated due process).
138. Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 323–24 (1985). The Walters case
involved a statute that permitted attorneys to appear, but limited their fees to $10. Only four justices
concurred in this holding; two others indicated that there might be a “special circumstances” rule in
which due process would require that lawyers be allowed to appear in cases of unusual difficulty.
139. Wozniak v. Conry, 236 F.3d 888, 890–91 (7th Cir. 2001) (no right to hearing if no disputed facts
are at issue).
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situations, such as towing illegally parked cars, procedures that involve an independent
check but not a hearing are sufficient.140
In certain situations, due process may require much less than an oral trial-type
hearing by a neutral decisionmaker. Instead, something in the nature of a consultation
with an agency official is all that due process demands. One example of consultative
due process arises when the private interest is relatively slight. In the case of a brief
suspension from high school for disciplinary reasons, students must receive oral or
written notice of the charges against them, and if they deny the charges, an explanation
of the evidence against them and an opportunity to present their side of the story.
Students have no right to call their own witnesses or retain counsel or confront adverse
witnesses. The decisionmaker may be the disciplinarian who witnessed the event that
triggered the suspension.141
Similarly, in cases involving the due process rights of prisoners, the Supreme
Court has upheld quite meager procedures.142 The same is true of the hearing required
before a public utility cuts off a customer for nonpayment of contested bills.143 As
discussed previously, when a government employer terminates an employee for cause,
it must usually provide a consultative remedy before termination (on the assumption
a full hearing will be available after termination).144
In a number of situations, the Supreme Court has ruled that state tort or contract
remedies provide all the process that is due; in these situations, the agency need not
provide any kind of hearing. One example involves random or unauthorized deprivations of property by officials such as prison guards. In this situation, a prior hearing
is obviously impossible; the Court has ruled that state court tort remedies suffice.145
140. Prop. Mgmt. Grp., Ltd. v. Philadelphia, No. 17-1260, 2017 WL 2242869, at *31–32 (E.D. Pa. May
23, 2017). That case involved a scheme whereby the owner of a parking lot with an illegally parked car
had to request the police to issue a ticket before the car could be towed away.
141. Goss v. Lopez, 419 U.S. 565, 581–83 (1975) (involving suspension of up to ten days). In case of
dismissal of a student for academic rather than disciplinary reasons, due process requires only that
the school fully inform the student as to the reasons for the dismissal and that the process be careful
and deliberate. In cases of academic dismissal, the private interest is quite strong, but the institution’s
interest in avoiding inappropriate and disruptive adversarial procedures is even stronger. Moreover,
matters of academic judgment are ill-suited to adversarial inquiries. Univ. of Mo. v. Horowitz, 435 U.S.
78, 89–90 (1978).
142. Wilkinson v. Austin, 545 U.S. 209, 220–24 (2005) (in cases of transfer to supermax prison, due
process satisfied where prisoner had right to make an oral statement and receive statement of reasons
but not to present witnesses); Hewitt v. Helms, 459 U.S. 460, 476 (1983) (notice plus opportunity to
submit views in writing is sufficient prior to transfer to solitary confinement). Hewitt was disapproved
on other grounds by Sandin v. Conner, 515 U.S. 475 (1995), which greatly reduced the universe of
events affecting prisoners that trigger due process protection for prisoners. Obviously, the institutional
needs of prisons heavily influenced these decisions.
143. Memphis Light, Gas & Water Divs. v. Craft, 436 U.S. 1, 16–21 (1978) (requiring the utility to provide a meeting with its representative to resolve a billing dispute and giving notice that this remedy exists).
144. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).
145. Hudson v. Palmer, 468 U.S. 517, 530–36 (1984); Parratt v. Taylor, 451 U.S. 527, 537–43 (1981),
overruled on another ground, by Daniels v. Williams, 474 U.S. 327 (1986).
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As another example, a school need provide no prior procedure before administering
corporal punishment; tort remedies for excessive force will suffice.146 Similarly, the
state might deprive a contractor of property when it terminates the contract for breach,
but due process requires only the availability of a state court contract action.147
6. Neutrality of Decisionmakers
Due process ordinarily requires an unbiased decisionmaker, meaning one who
has no pecuniary or political interest in the decision,148 has not prejudged the disputed
facts,149 and has no animus for or against the private party.150
Whether due process requires separation of functions is less clear. The issue of
separation of functions arises when an administrative decisionmaker was previously
and personally involved in the dispute as an investigator or prosecutor. The Supreme
Court declined to invalidate a state’s decision to revoke a medical license, even though
the agency heads had investigated the physician, recommended that he be criminally
prosecuted, and then decided to revoke his license.151 The Court noted that although
“the combination of investigative and adjudicative functions does not, without more,
constitute a due process violation, [this] does not, of course, preclude a court from

146. Ingraham v. Wright, 430 U.S. 651, 676–83 (1977). The Court balanced the Mathews factors,
placing particular emphasis on the burden that a prior hearing requirement would place on the school.
147. Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 195–99 (2001).
148. See Tumey v. Ohio, 273 U.S. 510, 522–35 (1927) (judge compensated by keeping a portion of the
fines he collected); Ward v. City of Monroeville, 409 U.S. 57, 59–62 (1972) (elected mayor serving as
traffic court judge where fines augmented the city’s treasury); Caperton v. A. T. Massey Coal Co.,
556 U.S. 868, 882–90 (2009) (judge received disproportionate political campaign contributions from
litigant in pending case).
149. See, e.g., Cinderella Career & Finishing Schs., Inc. v. FTC, 425 F.2d 583, 589–92 (D.C. Cir. 1970)
(agency head gave speech indicating he had prejudged facts of pending case).
150. See, e.g., Berger v. United States, 255 U.S. 22, 33–34 (1921) (judge’s prejudice against Germans as a
class); Mayberry v. Pennsylvania, 400 U.S. 455, 465–66 (1971) (judge who has been target of personal
vilification should not make decision to hold litigant in contempt).
151. Withrow v. Larkin, 421 U.S. 35, 46–59 (1975). But see Williams v. Pennsylvania, 136 S. Ct. 1899,
1905–07 (2016) (holding that due process was offended when a justice on the Pennsylvania Supreme
Court voted on a case in which he had been previously and significantly involved as a prosecutor).
Andrew N. Vollmer, Accusers as Adjudicators in Agency Enforcement Proceedings, 52 Univ. of Mich.
J. L. Reform (forthcoming 2018). Vollmer argues that Williams requires Withrow to be overruled,
so that due process would be violated if agency heads participate in charging decisions and later make
the final decision in the same case. I disagree. Disqualifying the agency heads in Withrow would
prevent them from making the final decision whether to revoke Larkin’s license and thus violate the
principle of necessity. See Lucia v. SEC, 138 S. Ct. 2044, 2055 n.5 (2018). The same would be true of
countless federal, state, and local agencies where the heads participate in making the charging decision.
If Withrow is overruled, agency heads would be required to remove themselves from participation in
the charging decision. I believe that agency heads should be involved in that critical decision rather
than leaving it entirely to the enforcement staff without agency head involvement. Williams seems
distinguishable from Withrow because of the principle of necessity. Disqualifying a former prosecutor
would not prevent the Pennsylvania Supreme Court from functioning.
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35

determining from the special facts and circumstances present in the case before it that
the risk of unfairness is intolerably high.”152
7. Adjudication Rather Than Quasi-Legislative Action
Due process does not apply when agency action is characterized as quasi-legislative rather than adjudicative. In general, quasi-legislative action is applicable
to a class of persons, while adjudication is targeted at specific persons.153 Persons
adversely affected by such action must resort to political, rather than legal, remedies.
Since administrative rulemaking is considered quasi-legislative, an agency engaged
in rulemaking is not constitutionally required to provide any procedure to those
adversely affected by the rule.154 Of course, state and federal administrative procedure
statutes typically provide for advance notice and comment procedure before adoption
of rules, but these procedures are required by statute, not by due process.
Courts have relied on various criteria in drawing the sometimes unclear line
between general and particular action. The size of the class of persons affected is
relevant, with large-size classes indicating that the action is legislative.155 Nevertheless,
agency action that purports to be directed at a class is rulemaking, even if that class
consists only of a single party, provided that others might conceivably join the class

152. Withrow, 421 U.S. at 58. See, e.g., Hess v. S. Ill. Univ., 839 F.3d 668, 675 (7th Cir. 2016) (due process not violated when the hearing officer in a student discipline case had investigated the case as long
as there was no showing that he had prejudged the facts).
153. United States v. Fla. East Coast Ry., 410 U.S. 224, 246 (1973) (“While the line dividing them may
not always be a bright one, these decisions represent a recognized distinction in administrative law
between proceedings for the purpose of promulgating policy-type rules or standards, on the one hand,
and proceedings designed to adjudicate disputed facts in particular cases on the other.”); see also Atkins
v. Parker, 472 U.S. 115 (1985) (statute that decreased food stamp benefits to a class of beneficiaries
does not trigger due process). Individualized ratemaking is often considered quasi-legislative for some
purposes, but it appears to be adjudicative for due process purposes. See, e.g., Ohio Bell Tel. Co. v. PUC
of Ohio, 301 U.S. 292, 300 (1937).
154. Modern cases that draw the distinction between quasi-legislative and adjudicative action frequently hark back to two old cases relating to Colorado property taxation. In Bi-Metallic Investment
Co. v. State Bd. of Equalization, 239 U.S. 441 (1915), the Court held that Denver taxpayers were not
entitled to a hearing with respect to a general increase in the valuation of Denver property. The Court
distinguished Londoner v. Denver, 210 U.S. 373 (1908), where one of the issues was the benefit that
a particular taxpayer would derive from street improvements. In Bi-Metallic, Justice Holmes wrote:
“Where a rule of conduct applies to more than a few people, it is impracticable that everyone should
have a direct voice in its adoption . . . . In Londoner v. Denver . . . a relatively small number of persons
was concerned, who were exceptionally affected, in each case upon individual grounds.” Bi-Metallic,
239 U.S. at 445–46 (emphasis added). For examples of modern cases relying on the Bi-Metallic/Londoner distinction, see, e.g., Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 283–85 (1981);
Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 542 (1978); Fla. East
Coast Ry., 410 U.S. at 244–45. The generalized/particularized distinction was also relied on in applying the APA’s definitions of rulemaking and adjudication, as discussed in Chapter 1. See Safari Club
Int’l v. Zinke, 878 F.3d 316, 332 (D.C. Cir. 2017), text at note 37.
155. E.g., Bi-Metallic, 239 U.S. at 445 (action generally affecting “more than a few people” is legislative).
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at a later time.156 Whether the agency proceeding involves primarily “legislative facts”
(meaning facts that do not concern a specific party) or “adjudicative facts” (meaning
facts that concern only a specific party) also plays an important role (although this
distinction is more important in deciding what kind of hearing is required than
whether a hearing is required at all).157 Also important is whether the action sets
policy for the future as opposed to imposing legal consequences based on facts that
occurred in the past.158
B. JUDICIAL ENFORCEMENT OF STATUTORY REQUIREMENTS OF
A “HEARING” OR “OPPORTUNITY TO COMMENT”
In Type B adjudication, a statute, regulation, or executive order requires an agency to
conduct an evidentiary hearing. If an agency has failed to adopt procedural regulations
that provide the elements of an evidentiary hearing, a court may enforce the legal
requirement that an evidentiary hearing be provided. Similarly, in Type C adjudication, a statute or a regulation may call for some kind of non-evidentiary hearing or
opportunity to comment. A reviewing court may infuse meaning into such statutes
or regulations. After all, these words must mean something. A court might interpret
them to require procedural protections that the court deems essential because of fairness concerns or to provide a better record for judicial review. A number of cases have
made this move, but many of them are of questionable validity under the Supreme
Court decisions in Vermont Yankee and PBGC which are discussed below.
The United States Lines decision is an example of this kind of interpretive process.159 The case involved review of a Federal Maritime Commission (FMC) decision
to approve amendment and extension of an agreement between competing common
carriers. The decision was detrimental to the plaintiff. The statute required that a
decision be made “after notice and hearing.” The court interpreted the word “hearing”
to require procedural protections (such as disclosure of material in the agency’s files
and prohibition on ex parte contacts) that the court deemed essential.

156. See Quivira Mining Co. v. NRC, 866 F.2d 1246, 1261–62 (10th Cir. 1989) (due process inapplicable to generally stated rule involving only single regulated party); Philly’s v. Byrne, 732 F.2d 87, 92–93
(7th Cir. 1984) (power of voters to declare a precinct “dry” does not violate due process rights of single
liquor licensee in precinct since action is general in nature). Philly’s was distinguished in Club Misty,
Inc. v. Laski, 208 F.3d 615, 617–22 (7th Cir. 2000), in which the voters were empowered to revoke the
license of a particular licensee rather than declare the entire precinct dry; such action is adjudication
rather than rulemaking.
157. See, e.g., Ohio Bell Tel. Co., 301 U.S. at 300–06 (due process violated by use of judicial notice to
find facts concerning the value of specific utility’s property, based on various undisclosed indexes or
other sources of information).
158. See, e.g., Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226–27 (1908) (judicial inquiry declares
liability based on past facts and existing laws while legislation looks to the future and changes existing
conditions by making a new rule).
159. U.S. Lines, Inc. v. Fed. Mar. Comm’n, 584 F.2d 519, 534–42 (D.C. Cir. 1978).
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37

The holding in the United States Lines case requiring disclosure of material in
the agency’s file is arguably consistent with the statutory requirement that the agency
provide notice and hearing. However, the prohibition on ex parte communications
is questionable because the statute does not call for an evidentiary hearing with an
exclusive record. Prohibition of ex parte communication is a necessary element of an evidentiary hearing. However, ex parte communications are ordinarily permitted in Type C
adjudicatory proceedings which are often inquisitorial rather than adversarial in nature.
Similarly, in the Independent U.S. Tanker Owners case,160 the Maritime Administration (Marad) decided to allow a tanker owner to repay construction subsidies and
transfer the vessel from the foreign to the domestic trade. The court ruled that this
Type C adjudication must be accompanied by compliance with notice and comment
rulemaking procedures. The primary rationale was that such procedures were necessary to generate a proper record for judicial review.
In that case an interim regulation provided: “With respect to any such request
received, the Board will publish a notice in the Federal Register, providing opportunity
for comment by interested parties. After the Board has acted upon any such application, the Board will publish a concise written explanation for its action.” The court
invalidated the interim regulation because of substantive and procedural irregularities.
Yet the court also relied on the regulation to bind the agency to provide the promised
rulemaking-type procedures. These procedures included proper notice of the proposal
to competing domestic tanker owners and disclosure of staff studies supporting the
repayment/transfer decision, as well as an opportunity to comment and a statement
of reasons responding to adverse comments.161
A similar decision involved the temporary suspension of a license to operate as
a dealer under the Perishable Agricultural Commodities Act. The statute provided:
“The Secretary may, after thirty days’ notice and an opportunity for a hearing . . .
suspend the license of the offender,”162 but the Department of Agriculture provided
no hearing. The court indicated that some sort of hearing was required and it had to
be provided by an official who had no institutional stake in the outcome.163 The latter
requirement is questionable. An inquisitorial hearing is still a hearing. Absent due
process requirements or some indication in statute or regulations, there is probably
no requirement of a neutral decisionmaker.

160. Indep. U.S. Tanker Owners Comm. v. Lewis, 690 F.2d 908, 922–23 (D.C. Cir. 1982).
161. Similarly, see Am. Trading Transp. Co. v. United States, 841 F.2d 421, 425 (D.C. Cir. 1988)
(failure to satisfy explanation requirement); Izaak Walton League v. Marsh, 655 F.2d 346, 363–64
(D.C. Cir. 1981) (enforcing requirement in Army Corps of Engineers regulation to hold a “public
meeting” and requiring agency to respond to comments made at that meeting); Nat’l Wildlife Fed’n
v. Marsh, 568 F. Supp. 985, 993–94 (D.D.C. 1983) (enforcing statute calling for “public hearings”
and a regulation requiring “opportunity for meaningful comments” to invalidate a decision because
decisionmaker relied on post-hearing studies).
162. 7 U.S.C. § 499m(a).
163. Finer Foods, Inc. v. USDA, 274 F.3d 1137, 1140 (7th Cir. 2001).
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In any event, these decisions are of questionable validity. In the famous Vermont
Yankee case,164 the Supreme Court addressed a series of lower court decisions that had
obligated agencies to provide procedural protections in addition to the basic notice
and comment rulemaking provisions of the APA. Vermont Yankee disapproved those
decisions because their indeterminacy would compel agencies to adopt full adjudicatory procedures in every rulemaking, thus sacrificing the efficiency of the APA’s
informal rulemaking process.
In the Pension Benefit Guaranty Corp. (PBGC),165 case, the Supreme Court
applied Vermont Yankee to a Type C adjudicatory scheme. It determined that courts
lack power to supplement whatever procedures are required by statutes (including
the APA), regulations, or due process. The case involved a decision by PBGC to
restore LTV’s pension plans after PBGC had previously terminated the underfunded
plans and assumed liability for the shortfall in pensions. PBGC believed that LTV’s
financial situation had improved, and it also objected to LTV’s plan to adopt a new
“follow-on” pension plan that took advantage of PBGC’s assumption of the prior
plan’s liabilities. The decision involved additional pension liabilities of hundreds of
millions of dollars per year.
Among LTV’s objections to PBGC’s restoration decision was that PBGC had
failed to provide it with procedural safeguards. The lower court agreed that PBGC did
not apprise LTV of the material on which it based its decisions, give LTV an adequate
opportunity to offer contrary evidence, proceed in accordance with ascertainable
standards, or provide LTV a statement showing its reasoning in applying those standards. It focused on PBGC’s obligation to provide “fundamental fairness” to LTV.166
But none of these safeguards could be derived from any source of law applicable to
the PBGC’s decision. Neither a statute nor a regulation required PBGC to provide
any form of procedure in making restoration decisions.167
The Court agreed with PBGC that the lower court’s holding conflicted with
Vermont Yankee, in which “this Court made clear that when the due process clause
is not implicated and an agency’s governing statute contains no specific procedural
mandates, the APA establishes the maximum procedural requirements a reviewing
court may impose on agencies.”168
The Court did not consider whether Vermont Yankee might have been distinguished instead of applied in Type C adjudication situation. Vermont Yankee made

164. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 542–49 (1978).
165. Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 653–56 (1990).
166. LTV did not contend that due process applied to PBGC’s decision, and the Court did not consider whether due process applied or what due process would have required.
167. Under the regulations, PBGC offers a Type B appeal procedure that applies to most of its decisions, but restoration disputes are not among them. As to these omitted matters, PBGC has discretion
to utilize any procedure it deems appropriate. See 29 C.F.R. §§ 4003.1(b)–(c), pt. 4003, subpt. D
168. LTV Corp., 496 U.S. at 653.
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39

sense because the APA contains a set of procedures applicable to informal rulemaking—provisions that have been greatly amplified by court decisions and that provide a
solid opportunity for public participation in rulemaking. But the APA provides only
modest protection to private parties involved in Type C adjudication. As discussed
below, APA §§ 555 and 558 do provide some limited safeguards, but these provisions
fall far short of an opportunity to receive adequate notice, to have the case decided
by a neutral arbiter, to present evidence and confront adverse witnesses, or to receive
a statement of reasons. However, the Court passed up the opportunity to distinguish
Vermont Yankee. And there is a good argument that it was right to do so. If the Court
allowed lower courts to require procedural protection not tethered to due process
or to any language in the statute, or regulations, agencies would feel compelled to
provide full adjudicatory protections in every case to avoid the risk of getting reversed.
Thus, the question remains open of whether a court can infuse meaning into
language in statute or regulations that requires an agency to provide a “hearing” or an
“opportunity for comment.” The presence of such language could allow the court to
distinguish the PBGC case where no such language existed.169 Such language might
be sufficient to create an obligation for an agency to provide adequate notice, some
kind of opportunity to present evidence and argument, and a written statement of
reasons for the agency’s action. However, it seems unlikely that courts can interpret
such language to require an agency to provide elements of adversarial trial type hearings such as a neutral hearing officer, a prohibition of ex parte communications, or
separation of functions. These are not necessary elements of an inquisitorial hearing
which is still a “hearing” or an “opportunity to comment.”
C. PROCEDURAL PROTECTIONS UNDER SECTION 555
Section 555 of the APA170 provides some modest protections for parties involved in A,
B, or C adjudication with government agencies. Chapter 5 suggests that the provisions
of § 555 could be reframed as best practices in Type C adjudication.
Several cases have held that § 555 does not apply if the subject matter of the
dispute falls within one of the APA adjudication exceptions set forth in § 554(a).171
These include “the selection or tenure of an employee, except an [ALJ]” and “a matter

169. See Dist. No. 1, Pac. Coast Dist. Marine Eng’rs Beneficial Ass’n v. Mar. Admin., 215 F.3d 37, 43
(D.C. Cir. 2000). In the District No. 1 case, the agency (Marad) approved transfer of ship ownership
to foreign owners. It engaged in ex parte communications in connection with the decision. The court
held that Marad was free to do so because neither statute nor regulation prohibited it. It distinguished
the cases discussed above, see text at notes 159–68, because in each case there was statutory language
requiring a hearing or an opportunity for public comment.
170. Section 555 was section 6 of the APA as it was enacted in 1946. Only minor changes occurred at
the time section 6 was recodified as § 555.
171. See Bollow v. Fed. Reserve Bank, 650 F.2d 1093, 1101–02 (9th Cir. 1981) (section 555(e) reasons
statement does not apply to discharge of government employee); Cleveland Trust Co. v. United States,
421 F.2d 475, 482 (6th Cir. 1970) (section 555(e) inapplicable to IRS’ rejection of a settlement agreement since the issue of tax liability is subject to a trial de novo in a refund action).
40

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subject to a subsequent trial of the law and the facts de novo in a court.”172 These cases
are questionable, because the § 554(a) exceptions do not appear to apply to § 555.173
Section 555 covers “any agency proceeding,” and the § 554(a) exceptions appear to
apply only to “this section” (in other words, only to Type A adjudication as defined
in § 554(a)).
1. Right to Counsel
“A person compelled to appear in person before an agency or representative
thereof is entitled to be accompanied, represented, and advised by counsel or, if
permitted by the agency, by other qualified representative.”174 According to the
Attorney General’s Manual on the Administrative Procedure Act, this provision restates
existing law. It does not apply to persons who appear voluntarily or in response to a
request—only to those persons whose appearance is compelled or commanded.175 The
most obvious application of this provision is to provide a right to counsel for persons
compelled by subpoena to appear and testify before agency investigators.
Case law under § 555(b) stresses that agencies need a concrete and particularized
reason to deny a person’s choice of counsel. Thus, the court invalidated a Nuclear
Regulatory Commission regulation176 providing that if “a reasonable basis exists to
believe that the investigation or inspection will be obstructed, impeded or impaired,
either directly or indirectly, by an attorney’s representation of multiple interests, the
agency official may prohibit that attorney from being present during the interview.”
The NRC’s rationale was that employees who chose to be represented by the
employer’s lawyer might be intimidated from giving candid testimony against the
employer. The court invalidated the rule, because counsel of the witness’ choice
cannot be excluded absent “concrete evidence that his presence would obstruct and
impede the investigation.”

172. APA § 554(a)(1)–(2).
173. Section 555(a) says that the section applies “except as otherwise provided by this subchapter.”
According to the House Judiciary Committee, this language was intended to prevent § 555 from
undercutting other provisions of the act. For example, the right of appearance in § 555(b) would not
authorize an improper ex parte communication in the formal adjudication sections of the Act. Legislative History of the Administrative Procedure Act, S. Doc. No. 248, 79th Cong. 2d
Sess. 263 (1944–46) (House Judiciary Committee R. 1980) [hereinafter S. Doc. 248].
174. APA § 555(b).
175. Att’y Gen.’s Manual on the Administrative Procedure Act 61 (1947) [hereinafter
AG Manual].
176. Prof’l Reactor Operator Soc. v. NRC, 939 F.2d 1047, 1051–52 (D.C. Cir. 1991). The court
followed an earlier decision overturning an SEC rule that excluded lawyers who had previously represented other witnesses in the same investigation. SEC v. Csapo, 533 F.2d 7 (D.C. Cir. 1976).
Procedural Protections

41

In addition, § 555(b) may require the agency to allow an attorney to be accompanied by an expert to assist counsel, such as an accounting expert in a complex SEC
investigatory proceeding involving accountant misconduct.177
The provision permitting persons to be represented by counsel “does not grant
or deny a person who is not a lawyer the right to appear for or represent others before
an agency or in an agency proceeding.”178 The Attorney General’s Manual states that
the question of whether non-lawyers should be able to practice before agencies is left
to the agencies themselves to determine.179
The same is true of the required qualifications of lawyers. During consideration
of the APA, the House rejected an amendment providing that any member of the bar
in good standing shall be eligible to practice before any agency. Instead, according
to the Attorney General’s Manual, agencies will continue to have power to control
the qualifications of lawyers who practice before them. In addition, an agency can
exclude persons of improper character from practice before it or exclude parties or
counsel from participation in proceedings by reason of unruly conduct. Agencies also
can impose reasonable time limits during which former employees may not practice
before the agency.180
2. Right to Appear—Parties to Agency Proceedings
Under § 555(b), “A party is entitled to appear in person or by or with counsel or
other duly qualified representative in an agency proceeding.” The APA defines “agency
proceeding” to mean agency process for adjudication, licensing, and rulemaking.181

177. Whitman v. SEC, 613 F. Supp. 48 (D.D.C. 1985). The court said:
The Commission itself is well aware of the limits on a lawyer’s expertise: indeed, in the investigative proceedings here at issue, the agency’s own counsel rely heavily on the SEC accounting
staff not only to provide advice and assistance but also to pose the questions to the respondents. The Commission correctly states that nothing in the APA guarantees the respondent
a parity of advantage, but a witness’ established right to his counsel’s representation and
advice (not merely presence) at agency proceedings, see 5 U.S.C. § 555(b), calls for some
means of narrowing the gap between his counsel’s and the questioner’s technical expertise.
Granting permission to the witness’ attorney to bring an expert of his own choosing to the
agency proceedings as an extension of himself (as an assistant) is a simple and expedient way
to give veritable meaning to the witness’ right to counsel. Certainly, it is less disruptive and
more reasonable than the Commission’s current practice of allowing counsel to interrupt proceedings to consult with experts posted (with the agency’s permission) just outside the door.
Id. at 50. See also Laccetti v. SEC, 885 F.3d 724 (D.C. Cir. 2018) (same result under Public Company
Accounting Oversight Board Rule 5109(b) which provides for a right to counsel in PCOAB investigatory interviews).
178. APA § 555(b) (last sentence).
179. The issue of lay representation is discussed in text at notes 315-21.
180. AG Manual, supra note 175, at 65-66.
181. APA § 551(12).
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Arguably, this provision means that a party182 is entitled to appear physically
and present oral argument in any adjudicatory proceeding, even though the agency
wishes to conduct an all-written proceeding. According to the Attorney General’s
Manual,183 the identity of parties in the case of adjudication or licensing is usually
clear, which suggests that the right to appear applies to all adjudication and licensing
proceedings. The Attorney General’s Manual points out that identification of parties
in informal rulemaking proceedings may not be clear. In the case of rulemaking, an
agency might decide not to hold an oral hearing, in which case nobody has the right
to appear physically before the agency. But this again suggests that § 555(b) might be
interpreted to establish a right to make a personal appearance in any federal government adjudicatory proceeding.
3. Right to Appear—Interested Persons
The APA confers a second right to appear. “So far as the orderly conduct of
public business permits, any interested person may appear before an agency or its
responsible employees for the presentation, adjustment, or determination of an issue,
request, or controversy in a proceeding, whether interlocutory, summary, or otherwise
in connection with an agency function.”184 Notice that, unlike the right of parties to
appear, this provision is not limited to “agency proceedings” (that is, adjudication,
rulemaking, or licensing), but it applies to all agency functions.185
According to the Attorney General’s Manual,186 “any person should be given an
opportunity to confer or discuss with responsible officers or employees of the agency
matters in which he is properly interested.”187 A responsible officer or employee is
“one who can decide the matter or whose function is to make recommendations on
such matters—rather than officers or employees whose duties are merely mechanical
or formal.”188 The term “interested person” means one whose interests are or will be
affected by the agency action which may result from the proceeding.189
182. A “‘party’ includes a person or agency named or admitted a party, or properly seeking and entitled
as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an
agency as a party for limited purposes.” APA § 551(3).
183. AG Manual, supra note 175, at 62.
184. APA § 555(b) (third sentence). These two right-to-appear provisions give greater appearance rights
to a “party” than to a “person.” A “party” is entitled to appear in an agency proceeding, but an “interested person” “may appear” only “so far as the orderly conduct of public business permits.” Under
the APA, a “‘party’ includes a person or agency named or admitted as a party, or properly seeking and
entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted
by an agency as a party for limited purposes.” APA § 551(3). In contrast, the word “person” essentially
includes any individual or entity (but not an agency). APA § 551(2).
185. AG Manual, supra note 175, at 64.
186. Id. at 65.
187. Id. at 63.
188. Id.
189. Id. at 70.
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43

This provision would seem to confer a rather broad right on members of the
public whose interests would be affected by an agency action to compel relatively
high-level agency employees to meet with them. For example, according to the Attorney General’s Manual, “upon request any person should be allowed, where this is
feasible, to present his reasons as to why a particular loan or benefit should be made
or granted to him.”190 Such applicants “should have an opportunity to confer with an
official of such status that he knows the agency’s policy, and is able to bring unusual
or meritorious cases to the attention of the officials who shape the policy or make
final decisions.” Or an interested person “can present his reasons as to why a particular controversy should be settled informally rather than in formal proceedings with
attendant publicity.”191 However, this provision of § 555 does not create a right for an
interested person to compel the agency to institute a hearing or take other action.192
On the other hand, the Act “does not require that every interested person be permitted to follow the chain of command to the head of the agency. It was not intended
to require the directors of the Reconstruction Finance Corporation, for example, to
confer personally with every applicant for a loan.”193
In any event, the Attorney General’s Manual cautions that the right of interested
persons to meet with agency officials is limited by the language “so far as the orderly
conduct of public business permits.” The right to confer and the limitation to orderly
conduct of public business should be construed to achieve practical and fair results.194
The opportunity to appear applies to “interlocutory” and “summary” proceedings. This language refers to situations in which “an agency takes significant action
without prior formal proceedings.”195 The persons affected by such actions should, if
feasible, be allowed to appear and present their views on the proposed action. However, this right to confer is not intended to interfere with the objective of assuring air
safety. “To the extent that the timely execution of the Administrator’s duties, i.e. ‘the
orderly conduct of public business,’ precludes discussion and negotiation, he need
not hold such discussion.”196
190. Id. at 64.
191. Id.
192. Block v. SEC, 50 F.3d 1078, 1085 (D.C. Cir. 1995). In Block, shareholders of a mutual fund
requested the SEC to institute a proceeding to disqualify directors of the fund. The court held that §
555(b) does not empower the shareholders to compel the agency to take action that the agency does not
wish to take.
193. AG Manual, supra note 175, at 63.
194. Id. The House Judiciary Committee Report on the APA construes this language rather narrowly.
The “orderly conduct of public business” provision should “preclude numerous petty appearances by
or for the same party in the same case; but they do not confer upon agencies a right to preclude interested persons from presenting fully before any responsible officer or employee their case or proposals
in full.” S. Doc. 248, supra note 173, at 264.
195. AG Manual, supra note 175, at 64. The Attorney General’s Manual gives as an example the emergency suspension of an airworthiness or airman’s certificate without notice or hearing.
196. Id.
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4. Conclusion of Matter in Reasonable Time
“With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter
presented to it.”197 This provision must be construed together with another APA
provision which authorizes a reviewing court to “compel agency action unlawfully
withheld or unreasonably delayed.”198
There is a large body of case law on the subject of whether courts should remedy egregious examples of agency delay, including delays in responding to petitions
or applications. For obvious reasons, courts are reluctant to issue orders requiring
agencies to take action on a particular matter before the agency is prepared to do so.
Agencies frequently confront significant backlogs of work, yet they are chronically
underfunded. Courts must respect the agencies’ need to set priorities as to how to use
scarce resources as well as avoid giving one person waiting in a queue an advantage
over others in the same queue.199
Courts often refer to what are called the TRAC factors (named after a decision
of the U.S. Court of Appeals for the D.C. Circuit) in deciding whether to compel
agencies to prioritize a particular matter.200 The six TRAC factors are:
1. The time agencies take to make decisions must be governed by a
“rule of reason;”
2. Where Congress has provided a timetable or other indication of the speed
with which it expects the agency to proceed in the enabling statute, that
statutory scheme may supply content for this rule of reason;
3. Delays that might be reasonable in the sphere of economic regulation are
less tolerable when human health and welfare are at stake;
4. The court should consider the effect of expediting delayed action on
agency activities of a higher or competing priority;
5. The court should also take into account the nature and extent of the
interests prejudiced by delay; and
6. The court need not find any impropriety lurking behind agency lassitude
in order to hold that agency action is unreasonably delayed.
The Pesticide Action Network North America case is a good example of the use of
the TRAC factors to issue a speed-up order through a writ of mandamus (although it

197. APA § 555(b). The Attorney General’s Manual minimizes the importance of this provision which
“merely restates a principle of good administration.” AG Manual, supra note 175, at 65.
198. APA § 706(1).
199. See Heckler v. Day, 467 U.S. 104 (1984), holding (by a 5-4 vote) that the lower court erred in setting deadlines for consideration of Social Security cases in Vermont. Such deadlines might jeopardize
the quality and uniformity of decisions. It makes no sense to impose tight deadlines in Vermont but
not in other states, since Social Security might simply shift decisional resources from other states to
Vermont.
200. See Telecomms. Research & Action Ctr. (TRAC) v. FCC, 750 F.2d 70 (D.C. Cir. 1984).
Procedural Protections

45

involves a rulemaking petition rather than an adjudicatory proceeding).201 The decision involved a petition by environmental groups that the EPA consider the safety of
the pesticide chlorpyrifos. The petition was filed in 2007 and was followed by a long
trail of missed deadlines and vague promises. In August 2015, the court ordered the
EPA to adopt a proposed or final rule by October 31, 2015, or to issue a full and final
response to the petition by that date.
A more typical response occurred in in a challenge to the long delays by the Bureau
of Indian Affairs (BIA) in resolving the issue of whether an Indian tribe should be
federally recognized.202 A particular tribe (the Mashpee) was placed on the “ready” list
in 1996, but no decision had been made by 2001 when the district court ordered the
Bureau to resolve the Mashpee’s claim within one year. At that point, several petitions
remained ahead of the Mashpee in the queue. The process of federal recognition is complex, and the Bureau is drastically understaffed. The trial court’s order would necessarily
come at the expense of tribes ahead of the Mashpee in the queue. The appellate court
reversed the trial court decision for a fresh evaluation of whether the delay had been
“unreasonable” in light of the TRAC factors, but noted that the district court could
retain jurisdiction over the case in order to monitor the agency’s assurance that it was
proceeding as diligently as possible with the resources available to it.
5. Legal Authorization for Investigations
Under APA § 555(c), “Process, requirement of a report, inspection, or other
investigative act or demand may not be issued, made, or enforced except as authorized
by law.” This provision requires that various investigatory actions taken by agencies
(such as reports or physical investigations), with which regulated parties are required

201. In re Pesticide Action Network N. Am. v. EPA, 798 F.3d 809 (9th Cir. 2015). Similarly, In re A
Community Voice, 878 F.3d 779 (9th Cir. 2017), grants a writ of mandamus to compel EPA to begin
and complete a rulemaking process relating to amendment of the outdated standards for remedying
lead-based paint. It relied on the TRAC factors. EPA had granted a rulemaking petition in 2009 but
stated that it might issue a proposed rule in 2021 and a final rule by 2023. The court ordered EPA to
issue a proposed rule within 90 days and a final rule within one year after issuing the proposed rule.
202. Mashpee Wampanoag Tribal Council v. Norton, 336 F.3d 1094, 1099–102 (D.C. Cir. 2003).
Similarly, see Calderon-Ramirez v. McCament, 877 F.3d 272, 276 (7th Cir. 2017) (improper to order
US Citizenship and Immigration Services to take up applicant’s U-visa application ahead of thousands
of persons ahead of him in line).
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to comply, must be authorized by statute. The provision seems to add nothing to
existing law.203
6. Copy of Transcript
Under § 555(c), “[a] person compelled to submit data or evidence is entitled to
retain or, on payment of lawfully prescribed costs, procure a copy or transcript thereof,
except that in a non-public investigatory proceeding the witness may for good cause
be limited to inspection of the official transcript of his testimony.”
The Attorney General’s Manual observes that this provision is limited to data or
evidence submitted by a particular witness. It does not entitle the submitter to copies
or transcripts of data or evidence submitted by other persons. And it extends only to
persons compelled to testify or submit data, not to those who were merely requested
to do so or who did so voluntarily.204
The “except” clause, referring to “non-public investigatory proceedings” refers
to cases in which prosecutions may be brought later, and it is “obviously detrimental
to the due execution of the laws to permit copies to be circulated.”205 The phrase
“non-public investigatory proceedings” covers “all confidential phases of investigations, formal or informal, conducted by agencies to determine whether there have
been violations of law”206
7. Subpoenas 207
Under § 555(d), “[a]gency subpoenas authorized by law shall be issued to a party
on request and, when required by rules of procedure, on a statement or showing
of general relevance and reasonable scope of the evidence sought.” The purpose of
this provision was to make agency subpoenas available to private parties to the same
extent as to agency representatives. It covers both subpoenas to testify and subpoenas

203. The Attorney General’s Manual treats it as a “restatement of existing law.” AG Manual, supra
note 175, at 66. However, the House Judiciary Committee Report gave it a much broader meaning—
although not one supported by the language of the provision.
This section is designed to preclude ‘fishing expeditions’ and investigations beyond jurisdiction
or authority. It applies to any demand, whether or not a formal subpoena is actually issued. It
includes demands or requests to inspect or for the submission of reports. All investigations
must be substantially and demonstrably necessary to agency operations, conducted through
authorized and official representatives, and confined to the legal and factual sphere of the agency
as provided by law. Investigations may not disturb or disrupt personal privacy, or unreasonably
interfere with private occupation or enterprise. They should be conducted so as to interfere in
the least degree compatible with adequate law enforcement.
S. Doc. 248, supra note 173, at 265.
204. AG Manual, supra note 175, at 66.
205. Id. at 66–67.
206. Id. at 67.
207. Although the APA spells this word “subpena,” I use the more conventional spelling “subpoena”
in this book.
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47

to produce documents and is limited to “parties” to agency proceedings (meaning
adjudication, rulemaking, or licensing). The provision does not grant power to issue
subpoenas to agencies that are not so empowered by other statutes.208
According to the Attorney General’s Manual, § 555(d) means that agency subpoenas must be issued on request of private parties; subpoenas can be limited by standards
of relevance and reasonable scope only if agency procedural rules so provide. But the
Attorney General’s Manual also states that agencies can refuse to issue subpoenas that
appear to be so irrelevant or unreasonable that a court would refuse to enforce them.
Moreover, such rules can also provide for payment of fees to witnesses subpoenaed
by private parties.209
Section 555(d) continues: “On contest, the court shall sustain the subpoena or
similar process or demand to the extent that it is found to be in accordance with law. In
a proceeding for enforcement, the court shall issue an order requiring the appearance
of the witness or the production of the evidence or data within a reasonable time under
penalty of punishment for contempt in case of contumacious failure to comply.”
The Attorney General’s Manual states that this provision restates existing law
and does not narrow the extremely broad standards for subpoenas that had been
articulated by courts prior to 1946.210
8. Reasons for Denial of Applications
Under APA § 555(e), “Prompt notice shall be given of the denial in whole or
in part of a written application, petition, or other request of an interested person211
made in connection with any agency proceeding.212 Except in affirming a prior denial

208. AG Manual, supra note 175, at 68–69.
209. Id. at 68.
210. Id. at 68–69, citing such cases as Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943), and
Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946). The House Judiciary Committee
report reflects considerably more skepticism toward subpoenas than does the Attorney General’s
Manual. It states:“[This section] will also prevent the issuance of improvident subpenas or action by
the agency requiring a detailed, unnecessary, and burdensome showing of what evidence is sought.” S.
Doc. 248, supra note 173, at 265.
211. The term “an interested person” means one whose interests are or will be affected by the agency
action which may result from the proceeding. In the case of formal adjudication, the only interested
persons are those who are parties to such proceedings. AG Manual, supra note 175, at 70.
212. The Attorney General’s Manual points out that § 555(e) is limited to agency “proceedings,” meaning adjudication, licensing, or rulemaking, whether they are formal or informal. Id. at 70.
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or when the denial is self-explanatory,213 the notice shall be accompanied by a brief
statement of the grounds for denial.”214
This provision imposes a requirement that an agency explain its reasons for a
denial of a written application, petition, or other request. The statement of grounds
for denial, “while simple in nature, must be sufficient to advise the party of the general
basis of the denial.”215 This reason-giving requirement has broad application and may
be the most significant portion of § 555.216
Section 555(e) means that a decisionmaker engaged in any form of adjudication
must state the reasons for a decision that rejects an application, petition or other
request.217 Thus, the Parole Board must state its reasons for denying an application
for parole. 218 The Comptroller of the Currency must state its reasons for rejecting a request for a public hearing on a bank merger.219 An official in the Interior
Department must explain why he summarily rejected a County’s objection to its
earlier conclusion (still under review in the Department) that an Indian tribe had a
historical connection to land on which the tribe proposed to build a casino.220 The
Drug Enforcement Administration must explain why it rejected an application to
proceed in forma pauperis (in order to avoid the $5,000 bond-posting requirement

213. According to the House Judiciary Committee report, “Prior denial would satisfy this requirement
only where the grounds previously stated remain the actual grounds and sufficiently notify the party.
Self-explanatory denial must meet the same test; that is, the request must be in such form that its mere
denial fully informs the party of all he would otherwise be entitled to have stated.” S. Doc. 248, supra
note 173, at 268.
214. The originally enacted version used the term “simple statement of procedural or other grounds.”
AG Manual, supra note 175, at 69–70. The present version requires a “brief statement of the grounds
for denial.”
215. Id. at 70.
216. According to the House Judiciary Committee report, the statement of the grounds of denial
should apprise the person not only of the basis for the denial but also “of any other or further administrative remedies or recourse he may have.” S. Doc. 248, supra note 173, at 265. Although informing
a party of his remedies seems desirable as a matter of policy, it does not appear to be required by the
language of § 555(e).
217. Not every communication to an agency is “an application, petition, or other request.” Thus, a
critical comment on an existing enforcement policy filed by an association of wrestling coaches, in
response to an agency’s request for comment on a proposed clarification of the policy, cannot be considered a “petition” for rulemaking and therefore the § 555(e) reason-giving requirement did not apply.
Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 948 (D.C. Cir. 2004).
218. King v. United States, 492 F.2d 1337, 1343 (7th Cir. 1974).
219. Washington v. OCC, 856 F.2d 1507,1513 (11th Cir. 1988) (record indicates that OCC’s rejection
of the hearing was rational but agency has to state its reasons).
220. Butte Cty. v. Hogen, 613 F.3d 190, 193-95 (D.C. Cir. 2010). The official’s bland response that “we
are not inclined to revisit this decision now . . . had all the explanatory power of the reply of Bartleby
the Scrivener to his employer ‘I would prefer not to.’” Id. at 195 (quoting Herman Melville,
Bartleby the Scrivener: A Story of Wall Street (1853)).
Procedural Protections

49

to challenge a forfeiture).221 The Transportation Safety Administration must give
reasons for rejecting an air carrier’s request to use alternative procedures to those in
an air safety directive222 and must explain why it rejected requests that it modify its
bin advertising program.223
In the Roelofs decision, the D.C. Circuit held that the Discharge Review Board
and the Board for Correction of Military Records must state reasons for rejecting an
application to upgrade a military discharge from general to honorable.224 It linked this
requirement to fundamental rights of procedural justice. Quoting an earlier case, the
Roelofs court stated that § 555(e) embodies “the simple but fundamental requirement
that an agency or official set forth its reasons, a requirement that is essential to the
integrity of the administrative process, for it tends to require the agency to focus on
the values served by its decision, hence releasing the clutch of unconscious preference
and irrelevant prejudice.”225
The connection between the reason-giving requirement of § 555(e) and the
reason-giving requirement for judicial review is not entirely clear. For judicial review
purposes, if an agency action is unexplained, the court cannot review it under the arbitrary and capricious test of the APA.226 In such cases, the matter should be remanded
to the agency to state its reasons.227 To that extent, the § 555(e) requirement and the
judicial review requirement are probably the same. However, for judicial review
purposes, an agency statement of reasons must be sufficient to allow a reviewing
court to determine whether the decision was rational, meaning that the decision
is supported by the administrative record before the agency, the agency considered
the correct factors in exercising discretion, and the decision was not a clear error of

221. Tourus Records, Inc. v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001). In Tourus Records, the court
treated § 555(e) as codifying the fundamental requirement of administrative law that an agency set
forth its reasons for decision; an agency’s failure to do so constitutes arbitrary and capricious agency
action. “This requirement [§ 555(e)] not only ensures the agency’s careful consideration of such
requests, but also gives parties the opportunity to apprise the agency of any errors it may have made
and, if the agency persists in its decision, facilitates judicial review.”
222. Amerijet Int’l, Inc. v. Pistole, 753 F3d 1343, 1349–50 (D.C. Cir. 2014) (“At bottom, an agency
must explain why it chose to do what it did . . . . And to this end, conclusory statements will not do;
an agency’s statement must be one of reasoning.”) (citations and internal quotation marks eliminated;
emphasis in original).
223. SecurityPoint Holdings v. TSA, 769 F.3d 1184, 1187–88 (D.C. Cir. 2014).
224. Roelofs v. Sec’y of the Air Force, 628 F.2d 594 (D.C. Cir. 1980); see also Matlovich v. Sec’y of the
Air Force, 591 F.2d 852, 857–61 (D.C. Cir. 1978) (requiring military agencies to state reasons for discharging homosexual service member); Remmie v. Mabus, 898 F. Supp. 108, 119–21 (E.D.N.Y. 1995)
(failure by Board for Correction of Military Records to state anything more than bare conclusion).
225. Roelofs, 628 F.2d at 599–600.
226. APA § 706(2)(A).
227. See, e.g., Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); Camp v. Pitts, 411 U.S. 138,
143 (1973).
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judgment.228 Several cases appear to equate the reason-giving requirement of §555(e)
with the judicial review reason-giving requirement.229
However, it seems unlikely that the two requirements are really identical.230 If
they are, courts will have to require much more than just a “brief statement of the
grounds for denial.”231 As already noted, the judicial review requirement requires
disclosure of the agency’s reasoning process. This would seem to go far beyond the
“brief statement of the grounds for denial” required by § 555.
Other cases link the reasons-giving requirement in § 555(e) to judicial review
in a different way. If the merits of the agency action in question are not subject to
judicial review (because review is precluded or because the action is committed to
agency discretion),232 these decisions state that § 555(e) does not apply.233 This seems
right—if courts could set aside an agency decision because of a failure to follow the
procedural requirements of § 555, that would frustrate the Congressional decision to
make the actions unreviewable.

228. Motor Vehicle Mfgrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). This standard applies even to the review of an
agency’s rejection of a rulemaking petition—the domain of § 555(e). Flyers Rights Educ. Fund v. FAA,
864 F.3d 738, 743–47 (D.C. Cir. 2017) (lack of reasoned decision for rejection of rulemaking petition
and reliance on undisclosed report). The agency’s explanation in the Flyers Rights case probably would
have satisfied § 555(e) but did not satisfy the judicial review requirement.
229. See City of Gillette v. FERC, 737 F.2d 883, 886–87 (10th Cir. 1984). In City of Gillette, the court
ruled that an agency’s denial of a waiver from a filing deadline lacked an adequate statement of reasons.
It stated that § 555(e) requires a sufficient statement of reasons so that the court could apply the
arbitrary and capricious review standard, including determination of whether the agency considered
relevant factors and made a reasoned decision. See also Friends of the Bow v. Thompson, 124 F.3d 1210,
1219-20 (10th Cir. 1997) (holding that the Forest Service’s explanation satisfied § 555(e) because it was
sufficient for the court to apply the arbitrary and capricious standard).
230. The Supreme Court has suggested that the two requirements are not identical. Dunlop v.
Bachowski, 421 U.S. 560, 573–74 (1975). In Dunlop, the Court stated:
Thus, the Secretary’s letter of November 7, 1973, may have sufficed as a ‘brief statement of the
grounds for denial’ for the purposes of [§ 555(e)] but plainly it did not suffice as a statement
of reasons required by the LMRDA. A statement of reasons must be adequate to enable the
court to determine whether the Secretary’s decision was reached for an impermissible reason
or for no reason at all. For this essential purpose, although detailed findings of fact are not
required, “the statement of reasons should inform the court and the complaining union
member of both the grounds of decision and the essential facts upon which the Secretary’s
inferences are based."
231. AG Manual, supra note 175, at 70. The requirement was described as “minimal.” Butte Cty. v.
Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010). And the D. C. Circuit said that it “probably does not add
to, and may even diminish, the burden put on an agency by the APA’s provision for judicial review.”
Roelofs v. Sec’y of the Air Force, 628 F.2d 594, 601 (D.C. Cir. 1980).
232. See APA § 701(a).
233. See Bollow v. Fed. Res. Bank, 650 F.2d 1093, 1101–02 (9th Cir. 1981) (because discretionary
discharge of employee is unreviewably committed to agency discretion, § 555(e) does not apply to the
discharge); High Country Citizens All. v. Clarke, 454 F.2d 1177, 1192 (10th Cir. 2006) (because judicial review of mining claim dispute by non-owners is precluded, the reason-giving provision of § 555(e)
does not apply to agency’s rejection of their petition).
Procedural Protections

51

Several cases arising under § 555(e) have considered the role of pre-decisional agency
documents that disclose the agency’s reasons for rejecting an application, even though
the decision furnished to the applicant did not disclose them. Despite the apparent
violation of § 555(e), the courts have upheld unexplained agency decisions under these
circumstances, on the theory that remand for further explanation would be a waste of
time—the agency would simply rewrite its decision incorporating the reasoning contained in the pre-decisional documents.234 This strategy of withholding explanatory
materials until the rejected applicant seeks judicial review undercuts some of the primary
rationales for § 555(e)—helping rejected applicants decide whether to seek reconsideration of the agency’s decision or judicial review.235 Moreover, it would probably lead the
court to overturn the decision because the agency decision would be considered arbitrary
and capricious for failure to state the agency’s reasoning process.236
D. PROCEDURAL PROTECTIONS IN AGENCY LICENSING—
SECTION 558
In addition to the procedural protections set forth in APA § 555, APA § 558 contains
protections for private parties engaged in licensing disputes with federal agencies,
whether or not those disputes fall within the categories of Type A or B adjudication.237
Thus, like the provisions of § 555, the licensee protections of § 558 can be incorporated
in creating a list of best practices for Type C adjudication.238
APA § 558(c) contains provisions providing modest protections in cases involving
the federal licensing function. The section has three distinct components, involving
licensing applications, withdrawals, and renewals.

234. Olivares v. TSA, 819 F.3d 454, 462–65 (D.C. Cir. 2016); Tourus Records, Inc. v. DEA, 259 F.3d
731 (D.C. Cir. 2001).
235. In one such decision, the court said:
[W]e add a word of caution. In the future, agencies will be well advised to obey the explicit
command of § 555(e), rather than counting on being able to salvage their actions later, after
the losing party has been forced to seek redress in court. Persistent scofflaw behavior might
cause the courts to insist that the contemporaneous explanation actually be expressed to the
complaining party, as the statute requires, on pain of vacatur and remand. Or the courts
might insist on progressively more compelling indications that the reasons offered were in
fact the reasons governing the decision when it was made. The offending agency action in
this case was mitigated somewhat because the internal materials and the Vara Declaration
were included in the parties’ Joint Appendix, and Petitioner had an opportunity to review
these materials before briefing and oral argument. This may not be sufficient in future cases
involving agency defiance of 555(e).
Olivares, 819 F.3d at 464–65.
236. See note 221.
237. Section 558(b) provides: “A sanction may not be imposed or a substantive rule or order issued
except within jurisdiction delegated to the agency and as authorized by law.” This provision restates
existing law. AG Manual, supra 175, at 88.
238. See Chapter 5.
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The term “license” is broadly defined by the APA. “‘License’ includes the whole
or a part of an agency permit, certificate, approval, registration, charter, membership,
statutory exemption or other form of permission.”239
Thus, the provisions of § 558(c) apply to any form of legally required federal permission. Section 558(c) probably applies to federal permits or approvals that, if denied
or withdrawn, have a substantial indirect financial impact on the applicant, even
though the lack of the permit does not prevent the applicant from doing anything.240
However, § 558(c) does not apply to subsidy programs, even though the subsidy has
various conditions that an applicant must satisfy.241
1. License Applications
Section 558(c) provides:
When application is made for a license required by law, the agency, with
due regard for the rights and privileges of all the interested parties or
adversely affected persons and within a reasonable time, shall set and
complete proceedings required to be conducted in accordance with
sections 556 and 557 of this title or other proceedings required by law
and shall make its decision.242
As enacted in 1946, the APA required that license application proceedings be
completed with “reasonable dispatch.” The Attorney General’s Manual stated that
this requirement is merely a statement of “fair administrative procedure.”243 The
term “reasonable dispatch” was converted to “reasonable time” when the APA was
recodified, but apparently with no intended change in meaning.
The Attorney General’s Manual explains that a rejected version of the APA provided that applications would be deemed granted unless the agency made a decision

239. APA § 551(8).
240. See Ursack, Inc. v. Sierra Interagency Black Bear Grp., 639 F.3d 949, 961–63 (9th Cir. 2011). The
plaintiff made a bear-safe food storage container called the Ursack. The federal Park Service withdrew
approval of the Ursack for use by campers in Yosemite and several other parks. As a result, various retail
stores stopped selling the Ursack. The withdrawal did not prevent the plaintiff from making or selling
the Ursack, but the withdrawal obviously had a detrimental financial effect on it. The Ursack decision
assumed (without deciding) that the approval process was a “license” for § 558 purposes, because it
involved a federal permit (even though the permit applied to campers rather than to the manufacturer).
Ursack relied on an earlier case involving revocation of approval for a clinic to perform medical exams
on persons seeking permanent residence status. N.Y. Pathological & X-Ray Lab., Inc. v. INS, 523 F.2d
79, 82 (2d Cir. 1975). As in Ursack, the case involved a federal permit, but the revocation had only an
indirect impact on the plaintiff.
241. Horn Farms v. Johanns, 397 F.3d 472, 478–79 (7th Cir. 2005). The Horn Farms decision upheld
the withdrawal of farm subsidy payments under the “swampbuster” provision because the owner converted wetland to farming. The fact that a subsidy can be denied or withdrawn for described behavior
does not mean that a federal license is involved, any more than the federal child care tax credit provision
program (which require the taxpayer to have a child) involves licensing.
242. APA § 558(c).
243. AG Manual, supra note 175, at 90.
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53

or set the matter for hearing within 60 days. However, Congress decided not to set
any hard deadline for completing action on license applications. A deadline would be
infeasible, because the time required to grant licenses varies with the complexity of
the issue. The Attorney General’s Manual contrasts time-consuming proceedings to
issue a certificate of public convenience and necessity with much simpler proceedings
to issue a warehouseman’s license. Similarly, variations in the agency’s workload may
result in unavoidable temporary backlogs.244
2. License Withdrawal
Section 558(c) contains protections to licensees when an agency seeks to withdraw a license. However, § 558(c) does not provide for a right to a hearing (formal or
informal) in the case of a license withdrawal.245 It merely requires written notice of the
problem and an opportunity for a “second chance” by demonstrating compliance.246 It
does require that the notice letter specifically list the facts or conduct that may warrant
the action, as opposed to a bland statement that “permit action is warranted.”247 And it
requires that the licensee have an opportunity to demonstrate or achieve compliance
with the defects identified in the warning letter.
Section 558(c) does not apply if the dispute between plaintiff and the government
concerns the validity of the licensing criteria (as opposed to whether plaintiff failed to
satisfy those criteria).248 This makes sense since a warning letter would be useless in cases
in which the dispute turns on the proper criteria to be considered in revoking a license.
Section 558(c) also does not require a third or fourth chance; repeated similar violations
of the permit can trigger revocation without sending additional warning letters.249 While
§ 558(c) applies to a temporary as well as a permanent permit, it does not apply to a
permit that expires by its own terms, again because a warning letter would be useless.250
244. Id.
245. See Empresa Cubana Exportadora de Alimentos y Productos Varios v. Dep’t of Treasury, 638
F.3d 794, 802 (D.C. Cir. 2011) (section 558(c) does not require formal adjudication in connection
with agency refusal to renew a license); Gallagher & Ascher Co. v. Simon, 687 F.2d 1067, 1073–76 (7th
Cir. 1982) (disapproving earlier cases that indicated that § 558(c) requires a hearing—agency satisfied
statute by providing warning and opportunity to comply).
246. If the violation is not corrected before a second inspection, the agency can institute withdrawal
without further warning. Moore v. Madigan, 990 F.2d 375, 379 (8th Cir. 1993).
247. Anchustegui v. USDA, 257 F.3d 1124, 1129 (9th Cr. 2001); Blackwell Coll. of Bus., v. Att’y Gen.,
454 F.2d 928, 936 (D.C. Cir. 1971). The Blackwell decision points out that the notice “should specify
in reasonable detail the particular instances of failure to report upon which the INS relies.” However,
the notice letter need not state precisely what action the agency will take if the defects are not corrected.
Lawrence v. CFTC, 759 F.2d 767, 773 n.13 (9th Cir. 1985).
248. Ursack, Inc. v. Sierra Interagency Black Bear Grp., 639 F.3d 949, 963 (9th Cir. 2011). In this case,
the license was withdrawn because plaintiff’s product flunked the agency’s tests; plaintiff disputed
whether the agency used an appropriate test, but not whether its product failed the test.
249. Buckingham v. Sec’y of the USDA, 603 F.3d 1073, 1084–87 (9th Cir. 2010).
250. Atl. Richfield Co. v. United States, 774 F.2d 1193, 1200–01 (D.C. Cir. 1985); see AG Manual,
supra note 175, at 91.
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One issue in applying § 558(c) is whether the “notice of the facts and conduct which
may warrant the action” needs to be given close in time to the decision to withdraw the
license. In the Air North America case,251 an agency provided a dormant air carrier with
a written notice that its certificate of authority to provide air transportation would be
cancelled if it remained dormant for more than one year. That notice (adopted at the time
a new regulation on dormant certificates was adopted) was sufficient under § 558(c) to
justify revocation of the certificate 18 months later because the revocation was not an
“unfair surprise.” The court distinguished an earlier case in which warnings were given
18 years before revocation, a time gap that violated § 558(c).252
The Attorney General’s Manual explains that in the case of willful conduct, a
license may be revoked immediately without “another chance.” Nor is a second chance
needed if the public health, interest, or safety requires otherwise.253 This phrase refers
to a situation in which immediate cancellation of a license is necessary in the public
interest irrespective of the equities or injuries to the licensee, as in the case of immediate suspension of a pilot’s license after an accident.254
In order to establish that violations were willful (so that the second chance provision does not apply), the agency must have made a finding of willfulness that is
supported by substantial evidence.255 Case law contains numerous definitions of the
term “willful.” One line of cases defines willfulness “by repeated violations, intentional wrongdoing, or gross neglect of a known duty, but not by simple negligence.”256
Another line states that a party acted willfully if the party 1) intentionally does an act
which is prohibited, irrespective of evil motive or reliance on erroneous advice, or 2)
acts with careless disregard of statutory requirements.257 A third group defines the term
as “an intentional disregard of, or plain indifference to the statutory requirements.”258

251. Air N. Am. v. DOT, 937 F.2d 1427, 1437–38 (9th Cir. 1991).
252. Hutto Stockyard, Inc. v. USDA, 903 F.2d 299, 304 (4th Cir. 1990).
253. AG Manual, supra note 175, at 91.
254. Id., giving the example of a suspension of a pilot’s license pending investigation of a crash. See
Tucson Rod and Gun Club v. McGee, 25 F. Supp. 1025, 1030 (D. Ariz. 1998) (bullets, shot, and arrows
leaving containment area of shooting range pose public safety risk—no warning needed).
255. See Hutto Stockyard, 903 F.2d at 304–05 (ALJ found violations were not willful; judicial officer’s
finding they were willful was not supported by substantial evidence); Lawrence v. CFTC, 759 F.2d
767, 772 (9th Cir. 1985) (failure to pay previously assessed penalty was clearly willful); Halvonik v.
Dudas, 398 F. Supp. 2d 115, 125 (D.D.C. 2005) (PTO’s failure to use the word “willful” in proceeding
to suspend a patent lawyer does not invalidate the decision where PTO found that the elements of
willful conduct were present).
256. Hutto Stockyard, 903 F.2d at 304; Capitol Produce Co. v. United States, 930 F.2d 1077, 1079 (10th
Cir. 1991).
257. Lawrence, 759 F.2d at 773; Potato Sales Co. v. USDA, 90 F.3d 800, 805–06 (9th Cir. 1996).
258. Luna Tech, Inc. v. ATF, 183 F. App'x. 863, 866 (11th Cir. 2006).
Procedural Protections

55

3. Licensing Renewals
When a licensee has made timely and sufficient application for a renewal or a
new license in accordance with agency rules, a license with reference to an activity of
a continuing nature does not expire until the application has been finally determined
by the agency.259
The Attorney General’s Manual states that this provision reflects the best existing
law and practice.
It is only fair where a licensee has filed his application for a renewal or
a new license in ample time prior to the expiration of his license, and
where the application itself is sufficient, that his license should not
expire until his application shall have been determined by the agency.
In such a case, the licensee has done everything that is within his power
to do and he should not suffer if the agency has failed, for one reason
or another, to consider his application prior to the lapse of his license.
Agencies, of course, may make reasonable rules requiring sufficient
advance application.”260
The leading case on the license renewal provision is Pan Atlantic Steamship Corp.
v. Atlantic Coast Line Railroad.261 That case involved a provision in the Interstate Commerce Act (enacted before the APA) providing that the ICC could issue a temporary
license to permit water carriers to provide service in emergency situations which “shall be
valid for such time as the Commission shall specify, but not for more than an aggregate
of one hundred and eighty days.” Pan-Atlantic received such a temporary license and
applied for a permanent license, but the ICC had not completed processing of the latter
application when the 180-day period expired. The ICC granted a temporary extension
of the temporary license until it decided the application for a permanent license. Competing railroads challenged this decision. The Supreme Court held that the later-enacted
APA provision enabled the ICC’s action. “We see no reason why the provisions of this
later Act may not be invoked to protect a person with a license from the damage he would
suffer by being compelled to discontinue a business of a continuing nature, only to start
it anew after the administrative hearing is concluded.”262
The provision against expiration of a license while a renewal application is pending
applies only to “a license with reference to an activity of a continuing nature.” Therefore,

259. APA § 558(c) (last sentence).
260. AG Manual, supra note 175, at 91–92.
261. 353 U.S. 436 (1957).
262. The decision in Pan-Atlantic was 6-3. The dissenters argued that the APA provision should not
apply to a temporary, emergency license issued without the normal elaborate hearing requirements for
granting such licenses.
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the section does not require the extension of the expiration date of a construction permit
because construction is not an activity of a continuing nature.263

263. Miami MDS Co. v. FCC, 14 F.3d 658, 659–60 (D.C. Cir. 1994); see also Bankers Life & Cas. Co. v.
Callaway, 530 F.2d 625, 634 (5th Cir. 1976) (section 558(c) does not apply to extend the expiration date
in a dredging permit issued by the Corps of Engineers where permittee was unable to proceed because
of local opposition to the project).
Best Practices in Type B Adjudication

57

CHAPTER 4

BEST PRACTICES IN TYPE B
ADJUDICATION

A. BEST PRACTICES AND CAUTION
his chapter summarizes proposals for best practices that should be spelled out
in the procedural regulations of agencies engaged in Type B adjudication. These
practices might be most useful when Congress creates a new scheme of Type B
adjudication and the agency responsible for implementing it must adopt procedural
regulations. The best practices should also be useful when existing agencies decide
to re-examine and update their procedural regulations.
Appendix A to this book contains a dozen detailed studies of particular Type
B adjudication systems. Most of these agencies have already adopted most of the
proposed best practices in their procedural regulations, manuals, or adjudicatory
decisions. Table 3 at the end of the chapter indicates whether a particular agency has
set forth some version of the recommended best practices in its regulations, manuals,
or case law. Of course, it is possible that a best practice might be observed in practice
by an agency but has not been codified in published sources of law.
The project of compiling “best practices” begs the question of how one should
determine that a particular practice is “best.” Necessarily this is a judgmental decision,
not one easily reducible to precise and measurable elements. A traditional method of
analyzing whether a particular procedure should be required is to balance the factors
of accuracy, efficiency, and acceptability to private parties.264 “Accuracy” refers to
correct determination of the facts, law, or agency policy; “efficiency” refers to minimizing cost and delay; and “acceptability to private parties” measures the “fairness” of
the procedure. Of course, these factors often run in different directions, and a rather
subjective balancing process is required. Tradeoffs are inevitable. Precise information
about costs and benefits is lacking. Whether a particular solution is “optimal” in
the sense of producing the greatest net benefit is obviously difficult to determine.265

T

264. See Roger C. Cramton, A Comment on Trial-Type Hearings in Nuclear Power Plant Siting, 58 Va.
L. Rev. 585, 591–93 (1972) (balancing accuracy, efficiency, and acceptability); Verkuil, supra note 40,
at 740 (balancing fairness, efficiency, and party satisfaction).
265. See Adrian Vermeule, Optimal Abuse of Power, 109 Nw. U. L. Rev. 673, 692–94 (2015).
Best Practices in Type B Adjudication

59

While I have not spelled out this calculus for each of the best practices proposed
in this book, I have attempted to balance the three factors in deciding whether to
recommend a particular practice. I believe these proposals are efficient, in that they
should not be costly to implement or cause confusion or delay. They will increase the
acceptability of the agency’s adjudication practices, while improving (or at least not
causing a decline in) the accuracy of decisions. Indeed, as Table 3 shows, most Type
B adjudicating agencies already have adopted most of these practices.266
Many of the best practices are drawn from the adjudicatory provisions contained
in the APA. After all, like Type A adjudication, Type B adjudication involves legally
required evidentiary hearings. While the decisionmaker in Type B adjudication is an
administrative judge (AJ), rather than an administrative law judge (ALJ), my judgment
is that procedures in Type B adjudication should resemble those in Type A adjudication unless there is a good reason for the contrary conclusion. The adjudicatory
procedures for evidentiary hearings that have developed over generations, before and
after enactment of the APA, should generally apply whether or not the evidentiary
hearing in question falls under Type A or B.267
Here I suggest an obvious caution: the world of Type B adjudication is wildly
diverse. The types of matters considered are all over the map—alien removal, civil penalties, government contracts, hospital Medicare claims, veterans’ benefits, intellectual
property disputes, employment disputes with the federal government, agriculture,
and environmental permitting, just to mention those covered in Appendix A. Some
of these involve disputes between the federal government and a private party; others
involve disputes between two private parties. Some of the Type B agencies have the
classic combined function structure—they investigate, prosecute, and adjudicate.
Others are adjudicatory tribunals, meaning they perform no function other than
adjudication.
Type B evidentiary hearings vary enormously. Some are trial-type hearings that
are at least as formal and private-party protective as those called for by the APA (except
that the presiding officer is not an ALJ). Others are quite informal, and some are
purely in writing. Some programs are in the mass justice category with heavy caseloads

266. Professor Robbins criticizes the use of best practice methodology in legal education. Ira P. Robbins, Best Practices on “Best Practices”: Legal Education and Beyond, 16 Clinical L. Rev. 269 (2009).
Robbins criticizes best practice proposals for legal education since there are no commonly shared goals
for legal education, no objective standards for measuring what is “best,” a lack of supportive research,
and no methodology for putting such proposals into practice. I believe the present proposal for best
practices in Type B adjudication is defensible because there are commonly shared goals and a relatively
objective standard for measuring whether any given proposal is “best” in achieving that goal (that is,
the three-factor balance discussed in the text). Hopefully, the proposals are supported by adequate
research and can be implemented through amendment of procedural regulations.
267. ABA Resolution 114, supra note 44, called on Congress to apply many of the adjudication provisions of the APA to Type B adjudication, except for the requirement that ALJs preside. See Asimow,
supra note 45. The best practices discussed here follow that approach, but they also recommend a
number of practices that are not specified in the APA.
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and rushed proceedings. Others have much lower caseloads and call for leisurely and
thorough consideration. Some have huge backlogs and long delays; others are relatively
current. Some proceedings are highly adversarial; others are inquisitorial. The structures for internal appeal also vary. Thus, the heterogeneity of Type B adjudication
makes it challenging to prescribe a set of best practices that would fit all of it.
Not every best practice in the list that follows applies to every Type B scheme,
nor should every provision in procedural regulations that implements a best practice
take the same form. The presumption is rebuttable. If a persuasive case can be made
that a particular practice is inappropriate for a particular adjudicatory system, then
the agency should not be encouraged to adopt it. For example, there is no need for
a provision for internal separation of adversarial from adjudicatory functions in the
case of a tribunal, because an agency that engages only in adjudicatory functions has
no staff engaged in investigation or prosecution. Whether a particular procedural
device should be employed (and the precise form in which it is provided) always
requires a careful balance of the conflicting variables involved in choosing optimal
procedures—accuracy, efficiency, and acceptability to the parties.
In 1993, ACUS’s Model Adjudication Rules Working Group proposed a set of
model rules intended for both Type A and Type B adjudication.268 The rules were
not presented to the Assembly for consideration. ACUS has initiated a new Model
Adjudication Working Group to revise and update the model rules.269 The new
model rules apply to “trial-type proceedings . . . that offer an . . . opportunity for
fact-finding before an adjudicator.”270 I have not sought to draft precise language to
be incorporated into procedural regulations implementing the best practices itemized
below, given the diversity of the adjudicatory schemes to which they would apply. Still,
drafters of procedural regulations implementing these best practice recommendations
should consult the most current version of the Model Adjudication Rules (MARs) and
may wish to borrow language from the rules and consider the alternatives addressed
in its reporter’s notes. In the discussion of best practices that follows, I reference the
appropriate sections of MARs.
Clearly the best practices for Type B adjudication cannot be applied to the even
more diverse world of Type C adjudication—individualized decisionmaking where no
evidentiary hearing is legally required. This is true informal adjudication. In Chapter
5, I suggest some barebones best practices for Type C adjudication, realizing that even
these may not work for some Class C schemes.

268. Michael Cox, The Model Adjudication Rules (MARs), 11 T.M. Cooley L. Rev. 75 (1994).
269. See Admin. Conf. of the U.S., Model Adjudication Rules Working Group, https://www.acus.gov/
research-projects/office-chairman-model-adjudication-rules-working-group, (last visited July 2, 2018).
270. Admin. Conf. of the U.S., Office of the Chairman, Model Adjudication Rules, at iv
(2018) [hereinafter MARs].
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B. PROCEDURAL LEGITIMACY
As mentioned above, the criteria for finding that a practice is “best” involves a rather
subjective balancing of the criteria of accuracy, efficiency, and acceptability to the
parties. The latter criterion of acceptability to the parties is based on the idea of procedural justice. Social science research holds that people find an administrative process
acceptable if they believe they have been dealt with fairly, even though they disagree with
the outcome.271 If people believe they have been dealt with fairly, they are more likely to
accept the legitimacy of the overall scheme of regulation and to obey the law without
being compelled to do so.
Being dealt with fairly incorporates such variables as an impartial decisionmaker,
fair and adequate notice of what action the agency proposes to take, whether the decisionmaker and the support staff were polite and respectful, whether the person’s views
and evidence were listened to and taken into account in making the decision, whether
the person had an opportunity to hear and rebut the opponent’s evidence, whether
decisionmaker made a good faith effort to reach the right result, and whether that result
was consistent with outcomes in other cases. The best practices proposed here are guided
by that conception of procedural justice.
C. BEST PRACTICES FOR TYPE B ADJUDICATION
The list of best practices that follows is broken into four larger categories:
1. Integrity of the Decisionmaking Process,
2. Prehearing Practices,
3. Hearing Practices, and
4. Post-Hearing Processes
These best practices recommendations are closely similar to those in ACUS Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative Procedure
Act.272 In the discussion that follows, I reference the applicable paragraphs of Recommendation 2016-4. In some cases, however, the best practices recommended in this
chapter go beyond Recommendation 2016-4.
I frequently give examples found in the statutes, regulations, or manuals of the
Type B schemes agencies described in Appendix A. It would be tedious to list each of
the regulations that implement these best practices in particular Type B systems, and I
have not sought to do so.

271. The literature is vast but a good place to start is Tom R. Tyler, Why People Obey the Law (2006).
272. See discussion in text at notes 10–12. ACUS Recommendation 2016-4 is reproduced at Appendix
B. It was based on my ACUS study. Asimow, supra note 9.
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1. Integrity of the Process
a. Exclusivity of the Record 273
Type B adjudication means that the decision resulting from a legally required
evidentiary hearing must be based on an exclusive record.274 Procedural regulations
should spell out this requirement.275 The APA imposes the exclusive record requirement for Type A adjudication.276
The exclusive record requirement means that a decisionmaker (either an AJ or
reviewing authority) is limited to considering information about facts that was presented in testimony or documents received by the decisionmaker before, at, or after
the hearing to which all parties had access. The decision can also be based on matters
officially noticed (the official notice procedure entails a rebuttal opportunity).277 The
exclusive record concept means, for example, that the decisionmaker cannot receive ex
parte submissions of factual information or rely on his or her personal knowledge of the
facts about the parties (without giving the parties a chance to rebut it), or base a judgment
on a personal inspection or test without allowing the parties a rebuttal opportunity.
A decisionmaker does not violate the exclusive record requirement by making
use of his or her experience and expertise in evaluating the information that was
introduced into evidence (or officially noticed) or in making predictions and forecasts
based on that information. Concededly there is sometimes a fine line between the
improper use by the fact finder of his or her personal knowledge about facts in issue
and the decisionmaker’s proper use of expertise to evaluate the information submitted
into evidence by the parties.

273. See MARs 100(C); Recommendation 2016-4, supra note 10, § 1.
274. See text at notes 159-69.
275. For example, the exclusive record principle is set forth in a statute relating to EOIR: (the abbreviations used in footnotes in this chapter are listed in Chapter 1, Part I and Chapter 2, Part C). “The
determination of the immigration judge shall be based only on the evidence produced at the hearing.”
8 U.S.C. § 1229a(c)(1)(A). This statutory provision does not seem to be discussed and explained in
EOIR’s procedural regulations or its practice manual. However, the ethics code for Immigration Judges
(IJs) implements the exclusive record principle. It provides that IJs can consult with Immigration Court
staff or officials whose function is to aid the IJs, provided that the IJ “makes reasonable efforts to avoid
receiving factual information that is not part of the record, and does not abrogate the responsibility to
personally decide the matter.” Dep’t of Justice, Ethics and Professionalism Guide for Immigration Judges, Rule XXXII, http://www.justice.gov/sites/default/files/eoir/legacy/2013/05/23/
EthicsandProfessionalismGuideforIJs.pdf.
276. “The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision in accordance with section 557 of this title . . . .”
APA § 557(e). See ABA Guide, supra note 43, ¶ 7.08.
277. Under the APA, “When an agency decision rests on official notice of a material fact not appearing
in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the
contrary.” APA § 556(e). In addition, it is proper for adjudicators to do their own research to determine
legislative facts (that is, facts that do not concern the parties), but the parties should have an opportunity to rebut such legislative fact findings. See Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015) (court of
appeals judge determined facts about a pharmaceutical product from reputable internet sources where
litigant was a pro se prisoner claiming inadequate medical care).
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b. Separation of Functions278
Separation of functions means that the agency must internally separate its adversary and decisional personnel. For this purpose, an “adversary” is a staff member who
took an active part in investigating, prosecuting, or advocating in the same case (but
not in a different case). Best practices for Type B adjudication include provision for
internal separation of functions.279
The separation of functions principle precludes an adversary from serving as a
decisionmaker (either an AJ or member of the reconsidering authority) in the same
case in which the decisionmaker served an adversary function. The principle also
precludes an adversary from furnishing ex parte advice to a decisionmaker or decisional adviser.280
Separation of functions is a fundamental principle of adjudication that is fair
and perceived to be fair—the prosecutor should not turn around and serve as a judge
in the same case. A staff adversary often develops a mindset opposed to the private
party in the case and thus should not serve as an adjudicatory decisionmaker. Nor
should a staff adversary furnish ex parte advice to decisionmakers (as discussed in
practice c.ii. below).
The recommendation concerning separation of functions applies to agencies that
have combined functions of prosecution, investigation, and adjudication. However,
agencies that function as adjudicatory tribunals (without prosecuting or investigating functions) need not adopt such provisions.281 Many of the regulations of

278. See MARs 121; Recommendation 2016-4, supra note 10, § 3; Kuehn, supra note 14, at 992–96.
279. Separation of functions is also required in some instances by due process. See discussion in Chapter 3, text accompanying notes 151–52. The ACUS study by Barnett et. al. similarly recommends that
non-APA adjudicating agencies adopt internal separation of functions. Barnett et al., supra note 49.
280. The APA requires separation of functions. See APA § 554(d); ABA Guide, supra note 43, ¶ 7.06.
The APA separation of functions rule does not apply to determining applications for initial licenses;
to proceedings involving rates, facilities, or practices of public utilities or carriers; or to the agency or a
member or member of the body comprising the agency. APA § 554(d)(A)–(C). The first two of these
exceptions may not be needed in most Type B agencies and seem generally undesirable. The third
exception (relating to agency heads) is generally understood to permit agency heads to participate
in the decision to green-light a prosecution or approve issuance of a complaint recommended by
agency staff. Best practices would not prohibit agency heads from taking part in in this prosecuting
function. In addition, the APA contains a command-influence rule. An ALJ shall not “be responsible
to or subject to the supervision or direction of an employee or agent engaged in the performance of
investigative or prosecuting functions for an agency.” APA § 554(d)(2). While a command influence
provision is desirable, it may not be feasible in smaller agencies, and I have not included it in the list of
best practices.
281. For example, CCAB, EEOC, MSPB, PRRB, and PTAB and TTAB (in their trial function) serve
as tribunals. However, PTAB and TTAB also consider appeals by applicants for patent or trademark
protection; in the appeal function, they combine investigatory and adjudicatory roles and should
implement separation of functions.
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combined-function Type B adjudicating agencies I studied contain separation of
functions provisions,282 but others do not.283
It is also desirable if the agency can employ AJs to work as full-time decisionmakers, so that the same person does not serve as prosecutor or investigator in other
similar cases.284 It may be difficult for a person who spends most days investigating
and prosecuting violations to adopt a neutral stance when he or she serves as a decisionmaker. However, this form of separation of functions is not possible unless the
agency has a substantial enough adjudicatory case-load to keep the decisionmakers
employed full time in those roles.285
c. Ex Parte Communications to Decisionmakers
i. Outsider Ex Parte Contacts286
Best practices include a provision prohibiting ex parte communication relevant
to the merits of the case between outsiders and adjudicatory decisionmakers.287 The
provision should also prohibit ex parte communication between outsiders and staff
decisional advisers. For this purpose, the term “outsiders” includes parties to the
case, third parties with an interest in the proceedings greater than that of the general
public, or government officials outside the agency. Submissions by outsiders (whether
concerning facts, law, discretion, or policy) to agency decisionmakers or their staff

282. Several provisions of EPA’s regulations implement the separation of functions principle. “At no
time after the issuance of the complaint shall the Administrator, the members of the Environmental
Appeals Board, the Regional Administrator, the Presiding Officer or any other person who is likely to
advise these officials on any decision in the proceeding, discuss ex parte the merits of the proceeding
with . . . any Agency staff member who performs a prosecutorial or investigative function in such
proceeding or a factually related proceeding, or with any representative of such person.” 40 C.F.R.
§ 22.8. A member of the EAB shall not be employed in any office associated with matters that could
come before the EAB and shall recuse him or herself from deciding a particular case if in previous
employment the member was personally involved in the case. 40 C.F.R. § 1.25(e)(3). In addition, in
EPA Class I civil penalty cases, “A Regional Judicial Officer [RJO] shall not have performed prosecutorial or investigative functions in connection with any case in which he serves as an [RJO]. [An RJO]
shall not knowingly preside over a case involving any party concerning whom the [RJO] performed
any functions of prosecution or investigation within the 2 years preceding the commencement of the
case. [An RJO] shall not prosecute enforcement cases and shall not be supervised by any person who
supervises the prosecution of enforcement cases, but may be supervised by the Regional Counsel.” 40
C.F.R. § 22.4(b).
283. For example, there are no provisions for separation of functions in the regulations relating to
USDA PACA hearings or BVA cases.
284. See Barnett et al., supra note 49, at 48–49, 64–66. It also recommends that agencies physically
separate AJs and their support staff from other agency personnel.
285. This recommendation (suggested to me by Bill Funk) was not part of ACUS Recommendation 2016-4.
286. See MARs 120; Recommendation 2016-4, supra note 10, § 2; Kuehn, supra note 14, at 996–1002.
287. APA § 557(d) prohibits outsider ex parte communication. See also ABA Guide, supra note 43, ¶
7.04. The Barnett study similarly recommends that adjudicating agencies prohibit outsider ex parte
communications. Barnett et al., supra note 49, at 45–48.
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decisional advisers should occur only on the record.288 If oral or written ex parte
communications occur, they should be immediately placed on the record.
Outsider ex parte communications offend basic notions of adjudicatory fairness
because they may influence the decisional process through off-record communication
of arguments that opposing parties have no opportunity to rebut. Moreover, such
communications of a factual nature can undermine the exclusive record concept.
For those reasons, most Type B agencies I studied spell out the ex parte concept,289
but some do not do so.290
ii. Staff Advice to Decisionmakers 291
Ex parte advice to decisionmakers by non-adversarial agency staff members292 is
customary and appropriate, so long as it does not violate the exclusive record principle
by introducing new factual material. In technically difficult or complex cases, such
advice is essential to making the best possible adjudicatory decisions, particularly by
the authority that reviews the initial decision (such as the agency head or heads or
other designated review authority).
For example, in cases involving conflicts in expert testimony about scientific
or economic issues, decisionmakers may need assistance from staff experts in understanding the testimony. Decisionmakers may also need help in locating and evaluating
the agency’s prior precedents or in exercising discretion to make wise policy. Decisionmakers need candid staff advice when they render important adjudicatory decisions,
but the advice is likely to be less than candid if it must be disclosed to the parties and
to the general public.
Agencies should consider what types of non-adversarial ex parte staff advice
are necessary and appropriate in their adjudicatory decisionmaking. For example, ex
parte staff advice may not be necessary or appropriate in many situations, such as mass
justice adjudications or adjudications turning largely on credibility determinations
or those with no impact on the general public.

288. Ex parte communications from staff members to decisionmakers present different considerations
from outsider ex parte communications and are discussed below under “separation of functions” and
“staff advice.”
289. Thus, the EAB as well as the EPA’s regional judicial officers are precluded engaging in ex parte
communication. Under 40 C.F.R. § 22.8:
At no time after the issuance of the complaint shall the Administrator, the members of the Environmental Appeals Board, the Regional Administrator, the Presiding Officer or any other person
who is likely to advise these officials on any decision in the proceeding, discuss ex parte the merits
of the proceeding with any interested person outside the Agency . . . .
290. For example, there are no provisions precluding ex parte communication relating to the BVA. In the
case of PTAB, ex parte communications are prohibited in trial cases but apparently not in appeals cases.
291. See Recommendation 2016-4, supra note 10, § 4.
292. Meaning staff members who have not served as prosecutors, investigators, or advocates in the
same case (or a factually related case).
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Procedural regulations should spell out which non-adversarial staff members can
give ex parte advice and which agency decisionmakers can receive such advice. The
regulations should clearly screen staff adversaries in a case from giving ex parte advice
in the same case and should prohibit advisers from introducing factual material not
in evidence into their advisory communications. Generally, regulations on separation
of functions acknowledge that adjudicators can consult ex parte with non-adversarial
decisional advisers, but furnish no detail as to who those advisers might be.293 The
regulations governing procedure for the Environmental Appeals Board recognize
that adjudicators can be advised by non-adversarial staff members, but do not explain
which staff members can furnish such advice.294
d. Bias295
A Type B decisionmaker (either the AJ or the reconsidering authority) should
not be biased for or against any party. An impartial decisionmaker is an essential
element of an evidentiary hearing.296 Impartiality is required both by the APA 297 and
by due process.298
For this purpose, the term “bias” includes three different types of disqualifying
mindsets:299
• a financial or other personal conflict of interest in the decision;
293. The Ethics and Professionalism Guide for Immigration Judges provides: “An Immigration Judge
may consult with court staff and court officials, including supervisors, whose functions are to aid the
Immigration Judge in carrying out the Immigration Judge’s adjudicative responsibilities, or with other
Immigration Judges, provided the Immigration Judge makes reasonable efforts to avoid receiving
factual information that is not part of the record, and does not abrogate the responsibility to personally
decide the matter.” Dep’t of Justice, supra note 275, Rule XXXII.
294. “At no time after the issuance of the complaint shall the Administrator, the members of the
Environmental Appeals Board, the Regional Administrator, the Presiding Officer or any other person
who is likely to advise these officials on any decision in the proceeding, discuss ex parte the merits of the
proceeding with any interested person outside the Agency, with any Agency staff member who performs a prosecutorial or investigative function in such proceeding or a factually related proceeding, or
with any representative of such person.” 40 C.F.R. § 22.8 (emphasis added). For a detailed breakdown
of staff that can and cannot engage in ex parte communication with decisionmakers, see procedural
regulations of the California Public Utility Commission, Cal. Code Regs. tit. 20 § 8.1.
295. See MARs 112; Recommendation 2016-4, supra note 10, § 5.
296. The existing sources of law include both federal criminal conflict of interest provisions and Office
of Governmental Ethics regulations. 18 U.S.C. § 208; 5 C.F.R. §§ 2635.501–.503. See Barnett et al.,
supra note 49, at 49–50, 66.
297. See APA § 556(b): “The functions of presiding employees and of employees participating in
decisions in accordance with section 557 of this title shall be conducted in an impartial manner. A
presiding or participating employee may at any time disqualify himself. On the filing in good faith of a
timely and sufficient affidavit of personal bias or other disqualification of a presiding or participating
employee, the agency shall determine the matter as a part of the record and decision in the case.”
298. Goldberg v. Kelly, 397 U.S. 254, 271 (1970); Cinderella Career & Finishing Sch., Inc. v. FTC, 425
F.2d 583 (D.C. Cir. 1970). See discussion of bias in text at notes 148-50.
299. See Kuehn, supra note 14, at 971–92; ABA Guide, supra note 43, ¶ 7.02. Both references discuss the
different types of mindsets that might disqualify adjudicatory decisionmakers.
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67

• personal animus against the private party or the group to which that party
belongs, or against an agency or its attorney; or
• prejudgment of the adjudicative facts at issue in the proceeding (meaning
facts specific to the parties).
Procedural regulations and manuals should spell out the bias standard and
explain how and when parties should raise bias claims and seek disqualification of
adjudicators. Some Part B procedural regulations do not contain explicit provisions
concerning bias or explain how and when bias claims should be raised.300 I found none
that describe comprehensively the different types of disqualifying bias.
MSPB regulations provide that an AJ can be disqualified for “personal bias.”
The Judges’ Handbook defines “personal bias” to include: “a. A party, witness, or
representative is a friend or relative of, or has had a close professional relationship with
the AJ; or b. personal bias or prejudice of the AJ.” 301
Some agencies have dealt with the issue of bias by providing parties the option of
making one peremptory challenge against an AJ, meaning that a party can disqualify a
particular AJ without establishing that the AJ fails to meet the criteria for impartiality.
However, a peremptory challenge procedure could be costly for agencies to implement
(especially a mass justice agency), and I do not propose it as a best practice.
e. Complete Statement of Important Procedures 302
Best practice is that agencies should set forth all important procedures and
practices that affect persons outside the agency in procedural regulations that are
published in the Federal Register and the Code of Federal Regulations. This is required
by the APA.303 Important practices relating to the decisional process should not be
buried in practice manuals or guides for AJs.
Nevertheless, such practice manuals are quite useful to staff, AJs, and private
litigants. The manuals should spell out smaller details of procedures that are already
set forth in the regulations or in agency appellate decisions. Manuals should be as userfriendly as possible and contain examples, illustrations, model forms, and checklists.

300. For example, I found no provisions concerning bias in the procedural regulations for EOIR,
USPTO, or VA. The regulations relating to PACA contain a disqualification provision that covers
only financial or family relationship, but not other types of bias. Similarly, the EAB regulations refer
only to financial interest or personal relationships. 8 C.F.R. § 47.11(a)–(b).
301. 5 C.F.R. § 1201.42(b); Merit Sys. Prot. Bd., Judges Handbook, ch. 3, ¶ 2 (2017) [hereinafter
MSPB Judges Handbook].
302. See Recommendation 2016-4, supra note 10, § 28.
303. APA § 552(a)(1)(C). Section 552(a)(1) provides, in language following (E), “except to the extent
that a person has actual and timely notice of the terms thereof, a person may not in any manner be
required to resort to, or be adversely affected by, a matter required to be published in the Federal
Register and not so published.”
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Manuals should be freely available to the public and conveniently accessible on the
agency’s website.304
In addition, agencies should periodically seek feedback from interested persons
on their procedures and re-examine and update their procedural regulations as well
as their practice manuals and guidelines.
2. Pre-Hearing Practices
a. Notice305
Basic fairness to litigants requires that they receive proper and timely notice of
the issues in the case. The notice must be provided far enough in advance and contain sufficient detail to allow parties to prepare for their hearings (or for settlement
negotiations).306 In his study of optimum informal adjudication procedures, Verkuil
identified proper notice as one of the essential and irreducible elements of administrative procedure (along with the ability to make written or oral comments and to
receive a statement of reasons).307
Thus, the procedural regulations for Type B adjudication should contain a provision calling for notice that is tailored to the specific circumstances of the particular
adjudicatory scheme. The agency’s notice documents should furnish information
about the agency’s position as to factual issues in dispute and remedies the agency
seeks. This information should be specific enough to enable the party to prepare for
the legally required evidentiary hearing.308
The notice should contain a copy of the agency’s procedural regulations and procedural manuals or a citation to the internet address where such materials are located.
The notice should also furnish necessary procedural information such as the
following items:

304. At the time this book was published, ACUS planned to begin a project that will provide guidance
on procedural manuals and discuss their accessibility. See Admin. Conf. of the U.S., Public Availability
of Adjudication Rules, https://www.acus.gov/research-projects/public-availability-adjudication-rules
(last visited July 16, 2018).
305. See MARs 200, 300; Recommendation 2016-4, supra note 10, § 6.
306. The APA requires that persons entitled to notice shall be timely informed of the time, place, and
nature of the hearing; the legal authority and jurisdiction under which the hearing is to be held; and
the matters of fact and law asserted. APA § 554(b). See ABA Guide, supra note 43, ¶ 4.02.
307. Verkuil, supra note 40, at 748–49.
308. The EPA’s regulation (40 C.F.R. § 22.14) relating to civil penalty disputes provides:
Each complaint shall include:
(1) A statement reciting the section(s) of the Act authorizing the issuance of the complaint;
(2) Specific reference to each provision of the Act, implementing regulations, permit or order
which respondent is alleged to have violated;
(3) A concise statement of the factual basis for each violation alleged;
(4) A description of all relief sought . . . ;
(5) Notice of respondent’s right to request a hearing on any material fact alleged in the complaint,
or on the appropriateness of any proposed penalty, compliance or corrective action order, or
Permit Action . . . .
Best Practices in Type B Adjudication

69

• How a party can request a hearing;
• Discovery options;
• Who the administrative judge will be or how the judge will be selected as well
as opportunities for peremptory challenge, if any;
• Representation at the hearing, including self-representation and lay representation if that is permitted and about any legal assistance options offered
by the agency;
• Procedural choices open to the private party (such as the choice between
written and oral hearings or ADR opportunities);
• Deadlines for filing pleadings and documents;
• Subpoena practices;
• Whether the agency offers an opportunity for reconsideration of the initial
decision at a higher agency level; and
• Availability of judicial review.
b. Self-Representation and Lay Representation309
i. Self-Represented Parties
In many cases, private parties involved in agency adjudication cannot afford lawyers
and must represent themselves. 310 In some instances, they are assisted only by non-expert
family or friends, which amounts to self-representation. Self-represented parties are
often at a considerable disadvantage in confronting the agency adjudication process.311
In addition, the presence of unrepresented litigants causes many problems for agency
adjudicators whose procedures were designed for represented parties.312 Most agency
procedural regulations make no explicit provision for assisting self-represented parties.313

309. See MARs 140; Recommendation 2016-4, supra note 10, §§ 13–17.
310. Depending on how proceedings are classified, between 37% and 55% of respondents appearing
before the Immigration Court in removal proceedings are represented by counsel. See note 725.
Although most Social Security disability applicants are represented by lawyers, about 20% are self-represented. Additional numbers of applicants have representation for only a portion of the disability
hearing process. About 75% of litigants before the USDA National Appeals Division represent themselves or are assisted by a family member or friend. Connie Vogelmann, Self-Represented Parties in
Administrative Hearings (Oct. 28, 2016) (report to the Admin. Conf. of the U.S.), https://www.acus.
gov/report/self-represented-parties-administrative-hearings-final-report.
311. Self-represented litigants may trigger a bias against the validity of their legal claims. This bias may
explain why they fare poorly in the litigation process when other factors are held constant. See Victor
D. Quintanilla, Rachel A. Allen & Edward R. Hirt, The Signaling Effect of Pro Se Status, 42 Law &
Soc. Inquiry 1091 (2017).
312. See generally Vogelmann, supra note 310.
313. The MSPB Judges Handbook requires special efforts to assist pro se appellants such as an early status
conference to explain what is required. Filings by pro se appellants should not be rejected on technical
grounds, and they should be allowed great latitude in questioning witnesses. The statutes and regulations
concerning VA benefit claims at the VARO level are very solicitous of self-represented parties, requiring
the VA to develop any issues raised in the documents or testimony even if not flagged by the veteran.
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Best practices include provisions that are designed to assist self-represented parties. ACUS Recommendation 2016-6 (which is included in this book as Appendix
D)314 spells out the steps agencies should take to assist self-represented parties. These
steps include mechanisms to direct self-represented parties to appropriate resources
and provision of services to them, particularly on-line. Agencies should provide
training for AJs to deal with self-represented parties, particularly those with limited
literacy or disabilities. Agencies also need to collect data on self-representation and
attempt to simplify their processes as far as possible.
ii. Lay Representation
Best practices should also enable private litigants to be represented by non-lawyers
in agency proceedings.315 For parties who cannot afford or cannot obtain a lawyer,
having the assistance of a knowledgeable lay representative is far better than self-representation.316 In Recommendation 86-1, ACUS urged agencies that dispense mass justice
to recognize lay representation explicitly. It concluded: “Federal agency experience and
statistics indicate that qualified persons who are not lawyers generally are capable of
providing effective assistance to individuals in mass justice agency proceedings.”317
Agencies should be permitted to license lay representatives (including requirements of an examination and experience), require them to be insured, make them
subject to ethical conduct codes, and require the agency to protect the confidentiality of client-lay representative communications. A major advantage of adopting
procedural regulations that recognize a right to lay representation is to preempt state
unauthorized practice laws that may prohibit or otherwise regulate lay representation
in civil and criminal cases.318 Obviously, lay representation may be inappropriate
in cases in which the subject matter of the dispute is highly technical and requires
specialized knowledge.319
314. Admin. Conf. of the U.S., Recommendation 2016-6, Self-Represented Parties in Administrative
Proceedings, 81 Fed. Reg. 94,312, 94,319 (Dec. 14, 2016).
315. The APA authorizes (but does not require) adjudicating agencies (whether Type A, B, or C) to
permit parties to be represented by a “qualified representative.” APA § 555(b), discussed in text at notes
176-77.
316. See Deborah L. Rhode, Access to Justice 90–91 (2004); Deborah L. Rhode, What We
Know and Need to Know About the Delivery of Legal Services by Nonlawyers, 67 S.C. L. Rev. 429 (2016);
Paul R. Tremblay, Surrogate Lawyering: Legal Guidance, sans Lawyers, 31 Geo. J. Legal Ethics
(forthcoming 2018); Anne E. Carpenter, Alyx Mark & Colleen F. Shanahan, Trial and Error: Lawyers
and Nonlawyer Advocates, 42 J. of Law & Soc. Inquiry 1023 (2017).
317. Admin. Conf. of the U.S., Recommendation 86-1, Nonlawyer Assistance and Representation, 51
Fed. Reg. 25,641 (July 16, 1986).
318. See Benninghoff v. Superior Ct., 38 Cal. Rptr. 3d 759, 768–69 (Ct. App. 2006) (holding that
federal agency regulations permitting lay representation trump state unauthorized practice laws).
319. TTAB permits representation only by lawyers. PTAB but not TTAB allows representation by
registered non-lawyer patent agents. See Appendix A-10. CBCA permits self-representation but not lay
representation. These agencies have concluded that the complexity of the subject matter of the cases
before them precludes participation of lay representatives.
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The procedural regulations of many agencies permit representation by authorized agents who are not lawyers, as well as by law students in supervised clinical
programs.320 The VA is notable for its heavy reliance on representation by employees of
veterans’ service organizations at both the Veterans Affairs Regional Office (VARO)
and BVA levels.321
c. Alternative Dispute Resolution322
The Administrative Dispute Resolution Act (ADRA) applies to both Type A
and B adjudication. ADRA broadly validates and encourages adjudicating agencies to
use all available ADR tools, including mediation and arbitration.323 ACUS has consistently sought to promote ADR by federal agencies.324 Properly used, ADR techniques
can make the adjudicatory process less adversarial and can facilitate settlements, thus
avoiding contentious and costly hearings.
Best practices of Type B adjudication agencies encourage and facilitate ADR,
particularly mediation in its various forms. The regulations should provide a system
whereby neutral mediators can be selected by agreement of the parties. The regulations
should assure confidentiality of communications occurring during the mediation
process and they should spell out who pays for mediation services provided outside
the agency.

320. Thus, EOIR allows representation by law students, law graduates not yet admitted to the Bar,
reputable individuals with a pre-existing relationship to the person represented, accredited representatives, and accredited officials of a foreign government. However, it does not allow representation by
non-lawyer immigration specialists, visa consultants, and notaries.
321. See text at notes 948–51. The statute prohibits compensation of attorneys at the VARO level but
permits it at the BVA level.
322. See MARs 240; Recommendation 2016-4, supra note 10, § 12.
323. 5 U.S.C. §§ 571–583. In particular, ADRA amended APA § 556(c)(6), which authorizes presiding
officers to hold conferences for settlement or simplification of the issues or to utilize ADR techniques.
324. See Admin. Conf. of the U.S., Recommendation 2014-1, Resolving FOIA Disputes Through
Targeted ADR Strategies, 79 Fed. Reg. 35,988, 35,988 (June 25, 2014) (resolving FOIA disputes
through targeted ADR strategies); Admin. Conf. of U.S., Recommendation 95-7, Use of Mediation
under the Americans with Disabilities Act, 60 Fed. Reg. 43,115 (Aug. 18, 1995) (relating to ADR and
the Americans with Disabilities Act); Admin. Conf. of the U.S., Recommendation 88-5, Agency Use
of Settlement Judges, 53 Fed. Reg. 26,030 (July 11, 1988) (use of settlement judges); Admin. Conf. of
the U.S., Recommendation 86-3, Agencies’ Use of Alternative Means of Dispute Resolution, 51 Fed. Reg.
25,643 (July 16, 1986) (urging agencies to use all forms of ADR).
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EEOC,325 MSPB, CBCA, PRRB,326 and USDA-PACA have well developed
provisions for mediation. Note that each of these schemes with well-developed ADR
practice is a tribunal in which the adjudicating agency is not a party to the dispute;
mediation may be more acceptable to the parties in tribunal situations than in combined function situations. In addition, DOE provides for mediation in its security
clearance and whistleblower cases, though DOE is not a tribunal.
Thus, MSPB AJs can initiate settlement activity at any time.327 The AJ will suspend a pending hearing for 30 days in order to allow the parties to seek mediation
through MSPB’s Mediation Appeals Program (MAP).328 MAP offers the services
of certified mediators as an alternative to the formal appeals processes set forth in
the agency’s regulations. Participation in MAP is free and confidential. The MAP
website states that, since the program’s inception in FY 2005, approximately 60% of
all mediated cases have settled by the conclusion of the MAP process.
d. Prehearing Conferences329
Prehearing conferences are a common feature of modern litigation because they
can shorten and simplify the hearing and promote settlement discussions. Prehearing
conferences should play a role in administrative litigation as well. Thus, best practices
should include the ability of an AJ to require the parties to participate in a pretrial
conference (in person or by telephone or videoconference), if the AJ believes that such
a conference would simplify the hearing or promote settlement.330 Parties should be
required to exchange witness lists and expert reports before the prehearing conference. The AJ should be able to require that both sides be represented at the pretrial
conference by persons with authority to agree to a settlement.

325. EEOC emphasizes ADR at all stages of its adjudicatory process relating to discrimination against
federal employees. Complaining employees must first consult an EEO counselor within the employing
agency. The counselors offer mediation as an option. ADR continues to be available during the time
the employing agency considers the complaint. When the dispute comes before EEOC, the employing
agency can make an offer of resolution, and if the ultimate result is less favorable than the offer, the
complainant can be denied attorney fees. See Appendix A-6; Equal Emp’t Opportunity Comm’n,
Management Directive ch. 3, http://www.eeoc.gov/federal/directives/md110.cfm.
326. PRRB decides complex accounting disputes arising out of hospital and other provider claims
against Medicare. It has no AJs, and its hearings are before the full five-member board. It has a well-developed mediation practice, and 90-95% of all cases are settled. See Appendix A-11.
327. 5 C.F.R. § 1201.41(c). See MSPB Judges Handbook, supra note 301, at ch. 11.
328. 5 C.F.R. § 1201.28(d). See Merit Sys. Prot. Bd., The Meditation Appeals Program, http://www.
mspb.gov/appeals/mediationappeals.htm (last visited July 2, 2018).
329. See MARs 220; Recommendation 2016-4, supra note 10, § 8.
330. See APA § 556(c)(6). ACUS recommended that Type A agencies conduct pre-hearing conferences
and suggested that such conferences would be appropriate in many areas of adjudication outside the
APA. Admin. Conf. of the U.S., Recommendation 70-4, Discovery in Agency Adjudication, 38 Fed.
Reg. 19,786 (July 23, 1973); see also Edward A. Tomlinson, Discovery in Agency Adjudication, 1971
Duke L.J. 89, 95–103.
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73

Many agencies I studied include provisions for pretrial conferences in procedural
regulations. For example, in DOE security clearance cases, “At least 7 calendar days
prior to the date scheduled for the hearing, the Administrative Judge will convene a
prehearing conference for the purpose of discussing stipulations and exhibits, identifying witnesses, and disposing of other appropriate matters. The conference will
usually be conducted by telephone.”331
e. Electronic Document Filing332
Best practices should include provisions that allow parties to file documents with
the agency and the AJ electronically, as is now broadly permitted in the court system.333
Electronic filing has significant efficiency benefits for both the agency and outside
parties. Most agencies now permit or require electronic document filing. MSPB and
CBCA have detailed regulations governing electronic filing that could serve as models.
For example, MSPB regulations allow e-filing for any of the following:
1. File any pleading, including a new appeal, in any matter within the MSPB’s
 appellate jurisdiction;
2. File any pleading in any matter within the MSPB’s original jurisdiction;
3. File a petition for enforcement of a final MSPB decision;
4. File a motion for an attorney fee award as a prevailing party;
5. File a motion for compensatory or consequential damages;
6.Designate a representative, revoke such a designation, or change such a designation; or
7.Notify the MSPB of a change in contact information such as address
(geographic or electronic mail) or telephone number.334
Under the CBCA’s regulations:
Filings submitted by electronic mail (e-mail) are permitted, with the exception of appeal files[,] . . . classified documents, and filings submitted in
camera or under protective order . . . . Filings by e-mail shall be submitted
to: cbca.efile@cbca.gov. Filings must be in PDF format and may not exceed
18 megabytes (MB) total. Filings that are not in PDF format or over 18 MB

331. 10 C.F.R. § 710.25(f).
332. See MARs 151(B)(3). Recommendation 2016-4 does not contain a recommendation concerning
electronic document filing.
333. ACUS approved a recommendation at its June 2018 plenary session that deals with electronic case
management systems (eCMS) for administrative adjudication. See Admin. Conf. of the U.S., Recommendation 2018-3, Electronic Case Management in Federal Administrative Adjudication, 83 Fed. Reg.
30,683, 30,686 (June 29, 2018). ECMS goes beyond electronic document filing and considers whether
agencies should replace paper case files with electronic files. Under eCMS, many functions now on
paper would be moved online. The recommendation observes that there are substantial costs and benefits associated with eCMS. ECMS may make more sense for high-volume adjudicatory systems than for
low-volume systems. It would be premature at this time to declare that eCMS should be included in a
list of best practices for Type B adjudication.
334. 5 C.F.R. § 1201.14 (cross-references omitted).
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will not be accepted. The filing of a document by e-mail occurs upon receipt
by the Board on a working day . . . . All e-mail filings received by 4:30 p.m.,
Eastern Time, on a working day will be considered to be filed on that day.
E–mail filings received after that time will be considered to be filed on the
next working day.335
f. Discovery336
Pre-trial discovery is commonplace in the world of court litigation, and it should
be considered in administrative litigation as well.337 The regulations should explain
what unprivileged information in the agency’s case files is subject to disclosure obligations or to inspection by outside parties. In addition, AJs should be empowered
to order discovery through depositions, interrogatories, and the other methods of
discovery used in civil trials, upon a showing that discovery is needed (such as cases
involving conflicting expert reports or in which a witness will not be available to
testify at the hearing).338 Requiring AJ permission for discovery should avoid the
problem of costly excess discovery (including unnecessary depositions or detailed
interrogatories) that plagues the court system.339 Discovery provisions are probably
not appropriate in mass adjudication situations because of caseload pressures on AJs,
but may have a useful role in Type B adjudication that involves larger disputes and
lengthier hearings.
PTAB and TTAB conduct their trial proceedings (that is, disputes between
patentees and challengers) entirely through discovery or affidavits.340 Evidence,
including witness statements, is received in deposition form, and the depositions are
then introduced at the hearing. No additional testimony is permitted at the hearings.
This is an interesting model that may work for other agencies in which cases seldom
involve credibility disputes.341

335. 48 C.F.R. § 6101.1(b)(5)(iii).
336. See MARs 230–239; Recommendation 2016-4, supra note 10, §§ 9–10.
337. ACUS recommended that Type A agencies adopt discovery practices modeled on the Federal
Rules of Civil Procedure and suggested that discovery would be appropriate in many areas of adjudication outside the APA. As to depositions, ACUS recommended that depositions occur only after a
prehearing conference and only in the discretion of the presiding officer. Depositions of agency staff
members should be permitted only where there is a showing of need for doing so. Recommendation
70-4, supra note 330; see also Tomlinson, supra note 330, at 103–09.
338. Both EEOC and DOE allow discovery by agreement of the parties or in the AJ’s discretion. 10
C.F.R. § 708.28(b)(1)–(2); 29 C.F.R. § 1614.109(d).
339. For example, CBCA provides for depositions, interrogatories, and other methods of discovery but
requires board judge permission for their use.
340. See text at notes 824–45.
341. Depositions can be used as evidence in civil proceedings where the deponent is not available to
testify as a witness. See Fed. R. Civ. P. 32(a)(4).
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75

g. Subpoena Power342
Best practices for Type B adjudication include providing parties with subpoena
power.343 Subpoenas enable the agency and private parties to compel the production
of documents and the appearance of witnesses at the hearing. Most Type B agencies
have subpoena power. However, the agency cannot give itself subpoena power; it
must be provided by a statute.344 Procedural regulations should explain an agency’s
subpoena practice in detail. The regulations of the Civilian Contract Appeals Board
(CCAB) provide an example of such regulations:345
(a) Voluntary cooperation in lieu of subpoena. Each party is expected to:
(1) Cooperate by making available witnesses and evidence under its
control, when requested by another party, without issuance of a subpoena;
and
(2) Secure the cooperation of third-party witnesses and production
of evidence by third parties, when practicable, without issuance of a
subpoena.
(b) General. Upon the written request of any party filed with the Office
of the Clerk of the Board, or upon the initiative of a judge, a subpoena
may be issued that commands the person to whom it is directed to:
(1) Attend and give testimony at a deposition in a city or county where
that person resides or is employed or transacts business in person, or at
another location convenient to that person that is specifically determined
by the Board;
(2) Attend and give testimony at a hearing; and
(3) Produce the books, papers, documents, electronically stored
information, and other tangible and intangible things designated in the
subpoena.
(c) Request for subpoena. A request for a subpoena shall contain the name
of the assigned judge, the name of the case, and the docket number of the
case. It shall state the reasonable scope and general relevance to the case
of the testimony and of any evidence sought. A request for a subpoena
shall be filed at least 15 calendar days before the testimony of a witness or
evidence is to be provided. The Board may, in its discretion, honor requests
for subpoenas not made within this time limitation.
(d) Form . . .

342. See MARs 171; Recommendation 2016-4, supra note 10, § 11. See also Admin. Conf. of the U.S.
Recommendation 90-4, Social Security Disability Program Appeals Process: Supplementary Recommendation, § 3, 55 Fed. Reg. 34,213 (Aug. 22, 1990) (subpoena power in Social Security disability
adjudication).
343. See ABA Guide, supra note 43, ¶ 4.04.
344. APA § 555(c)–(d). EEOC lacks power to subpoena non-party witnesses.
345. 48 C.F.R. § 6101.16.
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(e) Service . . .
(f) Proof of service . . .
(g) Motion to quash or to modify . . .
(h) Contumacy or refusal to obey a subpoena. In a case of contumacy or
refusal to obey a subpoena by a person who resides, is found, or transacts
business within the jurisdiction of a United States district court, the
Board shall apply to the court through the Attorney General of the United
States for an order requiring the person to appear before the Board to give
testimony, produce evidence, or both.
3. Hearing Practices
a. Open Hearings346
Type B adjudicating agencies should open their hearings to the public.347 Some
of the procedural regulations I studied provide for open hearings, but others are silent
on the issue. Allowing members of the public (including the media) to be present is
an important accountability mechanism and part of the American tradition of open
trials.348 However, agencies should have the ability to close a hearing in particular cases
due to concerns about protection of law enforcement or national security349 or to protect
confidentiality of business documents or the privacy of parties to the hearing.350
EOIR’s regulations provide an example of a provision relating to open hearings:351
All hearings, other than exclusion hearings, shall be open to the public
except that:
(a) Depending upon physical facilities, the Immigration Judge may
place reasonable limitations upon the number in attendance at any
one time with priority being given to the press over the general public;
(b) For the purpose of protecting witnesses, parties, or the public interest,
the Immigration Judge may limit attendance or hold a closed hearing.

346. See MAR 300(A); Recommendation 2016-4, supra note 10, § 18.
347. See ABA Guide, supra note 43, ¶ 5.03.
348. See N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286 (2d Cir. 2012) (establishing
First Amendment right to attend administrative hearings concerning penalties for violation of transit
rules); Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) (First Amendment requires open
deportation hearings involving persons suspected of terrorist involvement unless agency establishes
compelling interest for closing the hearing.). Contra N. Jersey Media Grp. v. Ashcroft, 308 F.3d 198 (3d
Cir. 2002). These cases are based on Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), and its
progeny, holding that the public has a First Amendment right to attend trials in adversarial proceedings (administrative or judicial) absent compelling interests for closing the proceedings.
349. DOE closes its hearings in security clearance cases, which, by definition, involve security issues
not appropriate for public hearings. 10 C.F.R. § 710.26(c).
350. Thus, the EEOC closes its hearings in employee discrimination cases in order to protect the
privacy of the complainant. 29 C.F.R. § 1614.109(e).
351. 8 C.F.R. § 1003.27.
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77

(c) In any proceeding before an Immigration Judge concerning an
abused alien spouse, the hearing and the Record of Proceeding shall
be closed to the public unless the abused spouse agrees that the hearing
and the Record of Proceeding shall be open to the public. In any proceeding before an Immigration Judge concerning an abused alien child,
the hearing and the Record of Proceeding shall be closed to the public.
(d) Proceedings before an Immigration Judge shall be closed to
the public if information subject to a protective order [meaning that disclosure of information would harm US national
security or law enforcement interest] … may be considered.
b. Use of Administrative Judges352
Agencies conducting Type B adjudication should make use of AJs to conduct
hearings and provide an initial decision if they have a substantial caseload. As discussed below,353 the initial AJ decision is usually subject to review by upper-level
decisionmakers such as the agency heads.
Of the agencies studied, only HHS-DAB and PRRB did not utilize AJs to conduct hearings and make initial decisions. The five-member PRRB board conducts its
hearings en banc. PRRB has a large inventory of pending cases. The use of en banc
hearings by the PRRB seems to be an inefficient use of resources and drastically
reduces the number of hearings that can be provided.
c. Types of Hearings
i. Video Conferencing and Telephone Hearings354
Agencies can achieve substantial economies by making use of video conference
technology in conducting adjudicatory hearings (or parts of the hearings). Video
allows the agency to avoid spending time and money to bring AJs, witnesses, and
other staff members to locations away from their offices. It also promotes the convenience of parties and witnesses, especially those living in remote locations, who need
not travel long distances to participate in hearings; obviously, however, at least with
existing technology, the parties and witnesses must still travel to an agency office
that has video facilities. ACUS recently studied the video conference procedure and
suggested best practices.355

352. See MARs 100(B); Recommendation 2016-4, supra note 10, § 19.
353. Text at notes 383–96.
354. See MARs 301; Recommendation 2016-4, supra note 10, § 20.
355. Admin. Conf. of the U.S., Recommendation 2014-7, Best Practices for Using Video Teleconferencing
for Hearings, 79 Fed. Reg. 74,114, 75,119 (Dec. 17, 2014); Admin Conf. of the U.S., Recommendation
2011-4, Agency Use of Video Hearings: Best Practices and Possibilities for Expansion, 76 Fed. Reg. 48,789,
48,795 (Aug. 9, 2011).
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Nevertheless, video conference is controversial, and it is not always appropriate.356
The efficiency savings possible through the use of video must be balanced against the
possible dissatisfaction of private parties and their advocates. When video is used, the
agency should make every effort to structure the experience to maximize participant
satisfaction, as discussed in ACUS Recommendation 2014-7. Obviously, a key point is
that the video equipment and facilities must be of sufficiently good quality to insure
that the participants can see and hear each other clearly.
Best practices for Type B adjudication include the ability to hold hearings through
video conference. DOE, EOIR, USDA-PACA, and BVA357 are among the agencies
that hold a substantial portion of their Type B hearings through video conference.
Video conference is obviously superior to the use of the telephone, since video
allows the AJ and the parties and their representatives to see as well as hear the witnesses and to see documents.358 Nevertheless, agencies with substantial caseloads
consisting of cases involving smaller stakes, or cases that do not present credibility
issues, should have the ability to make use of telephone hearings, with or without the
consent of the parties.
The USDA resolves PACA disputes with damages over $30,000 by oral hearings,
most of which are conducted by video conference. The regulations permit both personal attendance and phone hearings in some circumstances. Cost to the government
is explicitly taken into account. USDA’s regulations359 provide:
(3) The hearing shall be conducted by audio-visual telecommunication
unless the examiner determines that conducting the hearing by personal
attendance of any individual expected to attend the hearing:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual expected to
participate in the hearing; or
(iii) Would cost less than conducting the hearing by audio-visual telecommunication. If the examiner determines that a hearing conducted by
audio-visual telecommunication would measurably increase [USDA’s]
cost of conducting the hearing, the hearing shall be conducted by personal
attendance of any individual who is expected to participate in the hearing
or by telephone.

356. Video is extensively used in EOIR proceedings, particularly for persons held in remote detention
facilities. This use of video is controversial, because advocates for respondents believe it disadvantages
their clients.
357. See Appendix A-12. Most BVA cases are written only. In cases in which hearings occur, 54% are by
video conference.
358. See EF Int’l Language Sch., Inc. v. NLRB, 673 F. App'x. 1 (D.C. Cir. 2017) (affirming NLRB’s
use of videoconference equipment and distinguishing case that disapproved telephonic hearings).
359. 7 C.F.R. § 47.15(c)(3).
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79

(4) The examiner may, in his or her sole discretion or in response to a
motion by a party to the proceeding, conduct the hearing by telephone if
the examiner finds that a hearing conducted by telephone:
(i) Would provide a full and fair evidentiary hearing;
(ii) Would not prejudice any party; and
(iii) Would cost less than conducting the hearing by audio-visual telecommunication or personal attendance of any individual who is expected
to participate in the hearing.
ii. Written-Only Hearings360
Best practices for Type B adjudication include the use of written-only hearings
in appropriate cases. Most agencies confront budget and caseload pressures, and the
use of written hearings can yield substantial efficiencies for both sides.361 Numerous
agencies employ a written summary judgment practice when affidavits reveal there is
no disputed issue of material fact.362 Normally, best practice is to allow oral argument
in connection with a written-only hearing or a summary-judgment motion, but the
agency should have discretion to dispense with oral argument if it appears to be of
little utility in a given case.
Hearings conducted through exchange of evidentiary documents are appropriate
in cases that do not involve resolution of credibility conflicts. Such cases may involve
disputes concerning the interpretation of statutes or regulations or may involve only
the question of how to exercise discretion or may involve disputes concerning legislative facts (that is, factual disputes that do not involve the conduct or motivations of the
parties to the case) in which experts offer conflicting views. Oral hearings (including
oral testimony and cross-examination) are of questionable utility in such cases.
CBCA regulations offer a useful model. The regulations permit either party to
opt for a written-only hearing in which the case is submitted on the written record.
If one party (A) wants an oral hearing and the other (B) wants to submit the case on
the record, A receives an oral hearing, and B receives a written-only hearing; however,
B is permitted to cross-examine A’s witnesses.363
EPA permit cases are handled through a two-stage process that does not include
an oral evidentiary hearing. The initial decision stage is a written notice and comment
type proceeding, often with a public non-evidentiary hearing. The appellate stage

360. See Recommendation 2016-4, supra note 10, §§ 21–22.
361. The APA explicitly permits written-only hearings in certain circumstances. “In rule making or
determining claims for money or benefits or applications for initial licenses an agency may, when a
party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence
in written form.” APA § 556(d).
362. See Bettor Racing v. Nat’l Indian Gaming Comm’n, 812 F.3d 648, 653 (8th Cir. 2016) (upholding
summary judgment procedure where there are no disputed fact issues).
363. See Appendix A-2.
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before the EAB involves a written hearing with clearly-erroneous review of the fact
findings made at the initial decision stage.364
In cases involving disputes of adjudicative fact but relatively small stakes, it
should be possible to substitute written for oral testimony, as occurs in USDA-PACA
adjudication.365 Even when the stakes are large, some agencies offer a quicker decision
if the parties agree to a written-only consideration of their case.366 PTAB and TTAB
use an innovative approach in which oral testimony of parties and experts is taken
exclusively through depositions and affidavits; the AJ then decides the case on these
materials plus oral argument.367
d. Evidentiary Rules368
Best practice requires that an agency’s procedural regulations prescribe the
evidentiary rules that the AJ will apply. Many Type B agencies follow the APA evidence provisions. Under the APA, the ALJ should exclude irrelevant, immaterial, or
unduly repetitious evidence, but otherwise should admit any oral or documentary
evidence.369 The Federal Rules of Evidence (FRE) are not applicable; hearsay evidence
is admissible. The advantage of the APA approach is that it avoids disputes about
esoteric rules of evidence, such as the many exceptions to the hearsay rule. Some AJs
may not be competent to resolve disputes about the rules of evidence, and self-represented parties (or parties assisted by lay representatives) are certainly not competent
to deal with them.
One variation of the general rule is that the FRE can be consulted but not necessarily followed. In DOE security clearance cases, the regulations provide that formal
rules of evidence do not apply but the FRE may be used as a guide to assure production
of the most probative evidence available; hearsay evidence “may in the AJ’s discretion
and for good cause be admitted without strict adherence to technical rules of admissibility and shall be accorded such weight as the circumstances warrant.”370 In my view,

364. See Appendix A-7.
365. See Appendix A-1; 7 C.F.R. § 47.15(a) (documentary rather than oral hearings in cases in which
claimed damages do not exceed $30,000).
366. BVA backlogs are quite long. Most parties appealing to BVA agree to a written-only hearing in
order to receive a quicker decision. See Appendix A-12.
367. Appendix A-10.
368. See MARs 320; Recommendation 2016-4, supra note 10, § 23.
369. “Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be
imposed or rule or order issued except on consideration of the whole record or those parts thereof cited
by a party and supported by and in accordance with the reliable, probative, and substantial evidence.”
APA § 556(d).
370. 10 C.F.R. § 710.26(h). Similarly, in DOE whistleblower cases, OHA is not bound by the formal
rules of evidence but can use the FRE as a guide. 10 C.F.R. § 708.28(a)(4). In EEOC hearings, “the
rules of evidence shall not be applied strictly, but the administrative judge shall exclude irrelevant or
repetitious evidence.” 29 C.F.R. § 1614.109(e).
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81

this type of unclear formulation is likely to cause confusion and time-consuming
evidentiary disputes about whether specific FRE rules should be applied.371
There are situations in which agencies should follow the FRE. PTAB and
TTAB provide examples of this situation. Administrative patent judges (APJs)
and administrative trademark judges (ATJs) apply the FRE (along with all of the
discovery rules) in trial cases.372 The apparent rationale is that such private-party
patent disputes could be tried either in federal district court or the PTAB or TTAB;
therefore, the evidence rules should not differ between the two fora. However, the
FRE are not applicable in appeal proceedings before PTAB and TTAB (that is, cases
involving disputes between the patent examiner and the applicant or patentee). In
appeal proceedings, the judges admit any evidence that tends to prove or disproved
alleged facts.373
e. Opportunity for Rebuttal374
Best practice for evidentiary hearings includes an opportunity for rebuttal. In
cases presenting credibility issues, the right to rebuttal normally entails cross-examination of an adverse witness. However, best practice permits the abridgement of
cross-examination in appropriate circumstances. 375
In agency proceedings involving disputes about legislative facts where the evidence consists of conflicting expert testimony, the costs of cross-examination may
outweigh its benefits. Similarly, cross may often be unnecessary if credibility is not in
issue or the only issue is how an AJ should exercise his or her discretion. The agency
should be able to limit or preclude cross examination in such cases. The right of rebuttal of such evidence takes the form of additional written evidence and oral argument.
Agencies appropriately limit or preclude cross examination if cross might jeopardize national security or might reveal the identity of confidential informants. For
example, in DOE security clearance cases, the AJ can dispense with cross if a witness
is a confidential informant, or if cross-examination would jeopardize restricted data
or national security.376 Instead, the employee receives a summary or description of the
information. The AJ should give appropriate consideration to the lack of opportunity

371. See Admin. Conf. of the U.S., Recommendation 86-2, Use of Federal Rules of Evidence in Federal
Agency Adjudications, 51 Fed. Reg. 25,642 (July 16, 1986), urging agencies not to apply the FRE, with
or without the qualification “so far as practicable.” The recommendation covered both Types A and B
adjudication. See generally Richard J. Pierce, Jr., Use of the Federal Rules of Evidence in Federal Agency
Adjudications, 39 Admin. L. Rev. 1 (1987).
372. 37 C.F.R. §§ 2.122(a), 42.62.
373. 37 C.F.R. § 41.30.
374. See MARs 320; Recommendation 2016-4, supra note 10, § 24.
375. Under the APA, a party is entitled only “to conduct such cross-examination as may be required for
a full and true disclosure of the facts.” APA § 556(d). See ABA Guide, supra note 43, ¶ 5.09.
376. 10 C.F.R. § 710.26(l).
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Federal Administrative Adjudication Outside the Administrative Procedure Act

to cross examine.377 Similarly, in EOIR hearings, the IJ must permit a reasonable
opportunity for cross-examination,378 but the respondent cannot examine national
security information that the government introduces in opposition to admission or
discretionary relief.379
4. Post-Hearing Practices
a. Written Decisions380
Best practices require Type B decisionmakers to furnish a written or transcribable
opinion. The decision should set forth findings of fact and an explanation of how
the AJ resolved credibility conflicts. The opinion should also furnish conclusions
of law and an explanation of the AJ’s legal interpretations of statutes or regulations.
Finally, the opinion should state the AJ’s reasons for discretionary choices.381 In some
mass justice situations, the requirement of a written opinion can be satisfied by an
oral decision delivered from the bench that is transcribed in the record of the hearing.
A requirement of written findings and reasons improves the quality of agency
decisionmaking and assists parties in determining whether to seek judicial review. The
presence of written findings and reasons also improves the quality of administrative
reconsideration and judicial review.
Type B procedural regulations frequently prescribe the content of written AJ
opinions. For example, the regulations relating to DOE security clearance cases provide:
The Administrative Judge shall make specific findings based upon the
record as to the validity of each of the allegations contained in the notification letter and the significance which the Administrative Judge attaches
to such valid allegations. These findings shall be supported fully by a
statement of reasons which constitute the basis for such findings.382
In some agencies, such as EOIR, the regulations and manuals require a written
decision but do not prescribe its contents. Best practice should specify the contents
of the written decision.

377. 10 C.F.R. § 710.26(m).
378. Exec. Office for Immigration Review, Immigration Court Practice Manual
§ 4.16(d) (2017).
379. 8 U.S.C. § 1229a(b)(4).
380. See MARs 360; Recommendation 2016-4, supra note 10, § 25.
381. The APA requires that all decisions (including initial, recommended, and tentative decisions)
include a statement of findings and conclusions, and the reasons or basis therefor, on all the material
issues of fact, law, or discretion presented on the record.
§ 557(c)(A). See ABA Guide, supra note 43, ¶ 6.02.
382. 10 C.F.R. § 710.27(c).
Best Practices in Type B Adjudication

83

b. Higher-Level Review383
Best practice is that agencies should furnish an opportunity for a higher-level
review of an initial adjudicatory decision.384 The ability to obtain administrative
review of an adverse decision is useful to correct the inevitable errors made by AJs,
to enhance consistency of AJ decisions,385 and to cause private parties to believe that
their case has been dealt with fairly and impartially. To facilitate such review, the AJ
decision should be disclosed to the parties, and they should have an opportunity to
make arguments to the reviewing authority. The reviewing body should be entitled
to summarily affirm the lower-level decision without being required to write a new
opinion. The intra-agency appellate structures vary greatly and provide a variety of
models from which regulation drafters can choose. Any of these models would provide a satisfactory opportunity for review of the initial decision.
Some structures provide for review of AJ decisions as a matter of right. Reconsideration is normally based on written briefs with or without oral argument. For example,
EOIR provides for an initial Type B decision by an IJ followed by an appellate procedure
at the BIA level.386 Similarly, EEOC cases involve an initial decision by an AJ followed
by an appellate-level decision by the Office of Federal Operations (OFO).387
Other agencies use different review models. In environmental permitting cases,
the initial decision is based on a notice and comment procedure that includes a public
hearing; the EAB functions as a review body and provides a Type B written procedure.
Similarly, in VA benefit cases, the only type B hearing occurs at the review level.
The Board of Veterans Appeals (BVA) reviews a regional office decision denying
benefits. The regional office decision is made by a ratings specialist and was reviewed
by a Decision Review Officer (DRO). Both the regional office and DRO proceedings
should probably be classified as Type C adjudication as they are inquisitorial in nature.
PTAB and TTAB do not provide for higher-level review of decisions by APJs or
ATJs.388 The same is true of CBCA Board Judge decisions, but the regulations allow
full Board reconsideration to secure uniformity of decisions or because of a case’s
exceptional importance.

383. See MARs 410, 420, 430, 440; Recommendation 2016-4, supra note 10, § 26.
384. See generally ABA Guide, supra note 43, ¶ 6.03.
385. See David Hausman, Consistency and Administrative Review (July 31, 2016) (unpublished manuscript), https://ssrn.com/abstract=2816538.
386. See text at notes 712–55.
387. See text at notes 635–47.
388. See Walker & Wasserman, supra note 65, at 34–48, which strongly criticizes the failure to provide
for higher-level reconsideration of APJ decisions, thus insuring inconsistent case law. The lack of
agency head review is a particular problem because PTAB lacks substantive rulemaking authority.
The Patent Office director can order a rehearing before an expanded APJ panel, but this procedure has
been questioned as a possible due process violation. Id. at 43–48.
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Federal Administrative Adjudication Outside the Administrative Procedure Act

Best practices also include regulations that allow and encourage the reviewing
body to designate its important decisions as precedential.389 Precedent decisions must
be followed in subsequent cases unless they have been formally overruled. BIA,390
MSPB,391 and PTAB392 are among the agencies that designate precedent decisions. The
use of a system of precedent decisions makes the decisional process more transparent to
outsiders and makes it much easier for the outsiders to research the agency’s decisional
law. Most importantly, a system of precedent decisions can improve the consistency
of lower level decisions by staff or AJs.393
Best practices also include compliance with the FOIA provision that requires
agencies to make available in electronic form final adjudicatory decisions and orders
as well as an index of such decisions.394 Under ACUS Recommendation 89-8,395 this
obligation should extend to final decisions of the agency reviewing authority, whether
or not the decisions have been designated as precedential. ACUS also urged that agencies create a subject-matter index to these adjudicatory decisions. Recommendation
2017-1396 similarly urges agencies to maintain easily accessible and searchable websites
consisting of their significant adjudicatory decisions, while appropriately protecting
privacy. In case of agencies deciding large volumes of cases with recurring fact patterns, agencies should consider disclosing a representative sampling of actual cases.

389. See Recommendation 2016-4, supra note 10, § 27. The California APA encourages agencies to
designate adjudicatory opinions as precedential and many of them do. See Michael Asimow et al.,
California Practice Guide—Administrative Law ¶¶ 6.441–6.482 (2018 and current supp.).
390. Regulations provide for adoption of binding precedent decisions by the BIA. A majority of the 17
BIA judges must approve the designation as precedential. 8 C.F.R. § 1003.1(d), (g), (i).
391. The Merit Systems Protection Board designates some of the Board decisions as precedential. See
Merit Sys. Prot. Bd., Decisions of the United States Merit Systems Protection Board, https://www.mspb.
gov/decisions/precdec.htm (last visited July 2, 2018).
392. PTAB practice seems unduly cumbersome since a majority of all of the 300 or so active APJs as well
as the Director must approve the designation. PTAB also allows the Chief Judge to designate an opinion
as “informative” without the approval of other judges, but an informative decision is not treated as a
precedent. See Patent Trial & Appeal Bd., Standard Operating Procedure 2 (Rev. 9), https://
www.uspto.gov/sites/default/files/documents/sop2-revision-9-dated-9-22-2014.pdf. See Walker & Wasserman, supra note 65, at 52–54; Aqua Prods. v. Matal, 872 F.3d 1291, 1331 (Fed. Cir. 2017).
393. See, e.g., Medicare Program: Changes to the Medicare Claims and Entitlement, Medicare Advantage Organization Determination, and Medicare Prescription Drug Coverage Determination Appeals
Procedures, 81 Fed. Reg. 43,789 (proposed July 5, 2016), creating a precedent decision system in the
OMHA Medicare Appeals program. OMHA conducts a severely backlogged Type A adjudicatory
scheme and the provision for precedent decisions may reduce the burden on ALJs.
394. 5 U.S.C. § 552(a)(2).
395. Admin. Conf. of the U.S., Recommendation 89-8, Agency Practices and Procedures for the Indexing
and Public Availability of Adjudicatory Decisions, 54 Fed. Reg. 53,495 (Dec. 29, 1989).
396. Recommendation 2017-1, supra note 15.
Best Practices in Type B Adjudication

85

TABLE 3: BEST PRACTICES REFLECTED IN AGENCY PROCEDURAL REGULATIONS
USDAPACA

CBCA

Debarment &
Suspension1

DOE

EPAEAB

EEOC

Exclusive record

N

Y

Y

Y

Y

Y

Separation of functions

N

NA

N

*2

Y

NA

Ex parte communications

N

Y

N

Y

Y

N

Bias

Y

N

N

N

Y

Y

Complete Statement

Y

Y

N

Y

Y

Y

Notice

Y

Y

Y

Y

Y

Y

Lay representation

Y

N

Y

Y

Y

Y

ADR

Y

Y

N

Y

Y

Y

Pretrial conference

N

Y

Y

Y

Y

N

Electronic filing

N

Y

N

Y

Y

N

Discovery

Y

Y

N

Y

Y

Y

Subpoena power

Y

Y

N

Y

Y

N

Open hearings

N

Y

N

N

Y

N

Video or phone

Y

N

N

N

Y

N

Written only

Y

Y

Y

Y

Y

N

Evidence rules

N

Y

Y

Y

Y

Y

Opportunity for rebuttal

Y

Y

Y

Y

Y

Y

Written opinion

Y

Y

Y

Y

Y

Y

Reconsideration opportunity

Y

N

N

Y

Y

Y

Number of Y’s

12

16

8

13

19

12

TYPE B SCHEMES 
RECOMMENDATIONS 
INTEGRITY OF PROCESS

PREHEARING

HEARING

POST HEARING

Table 3 Footnotes
1. Department of Defense FAR regulations
2. Unclear in case of security clearance cases; separation of functions is required in whistleblower cases.
86

Federal Administrative Adjudication Outside the Administrative Procedure Act

EOIR

HHSDAB

MSPB

PRRB

Exclusive record

Y

Y

Y

Y

Y

Y

N

Separation of functions3

Y

NA

NA

NA

N
Appeals;
NA Trials

N
Appeals;
NA Trials

N

Ex parte communications

Y

Y

Y

Y

Y trials;
N
appeals

Y trials;
N
appeals

N

Bias

Y

Y

Y

Y

N

N

N

Complete Statement

N

Y

Y

Y

N

Y

Y

Notice

Y

Y

Y

Y

Y

Y

Y

Lay representation

Y

Y

Y

Y

N

N

Y

ADR

N

Y

Y

Y

N

N

N

Pretrial conference

Y

Y

Y

Y

Y

Y

Y

Electronic filing

N

Y

Y

Y

Y

Y

N

Discovery

Y

Y

Y

Y

Y

Y

N

Subpoena power

Y

N

Y

Y

Y

Y

N

Open hearings

Y

Y

Y

N

Y

Y

N

Video or phone

Y

Y

Y

Y

Y

Y

Y

Written only

N

Y

Y

Y

Y

Y

Y

Evidence rules

N

Y

Y

Y

Y

Y

N

Opportunity for rebuttal

Y

Y

Y

Y

Y

Y

Y

Written opinion

Y

Y

Y

Y

Y

Y

Y

Reconsideration
opportunity

Y

N

Y

N

N

N

N

Number of Y’s

14

16

18

16

12.5

13.5

12

TYPE B SCHEMES 

PTAB

TTAB

BVA

RECOMMENDATIONS 
INTEGRITY OF PROCESS

PREHEARING

HEARING

POST HEARING

3. Adjudicatory tribunals that have no prosecuting or investigating staff members have no need for a
provision on separation of functions.

Type C Adjudication

87

CHAPTER 5

TYPE C ADJUDICATION

A. THE WORLD OF TYPE C ADJUDICATION
ype C adjudication allows the decisionmaker to resolve an adjudicatory dispute
between a private party and the federal government without conducting an
evidentiary hearing.397 Type C proceedings are properly referred to as “informal adjudication.” There are obviously vast numbers of federal Type C adjudications, but it is
not possible to itemize or count them. Werner Gardner, formerly chair of the ACUS
Informal Adjudication Committee, estimated that 90% of the federal government’s
work is conducted outside the boundaries of the APA.398
To furnish the reader with a sense of the variety of Type C adjudication, Part A
of this chapter discusses a number of more or less typical instances, roughly sorted
into broad areas of federal government operation. Many of these examples emerge
from decided cases.399 Chapter 3 sketches the modest legal protections imposed by
§§ 555 and 558 of the APA; Part B of this chapter extracts from §§ 555 and 558 some
tentative best practices for the disparate world of C adjudication.
Type C adjudication occurs in numerous areas. Among them are:
1. Grants, benefits, loans, and subsidies;
2. Licensing and accrediting;
3. Foreign policy and national security determinations;
4. Inspections, tests, and safety;
5. De novo review;
6. Orders relating to tax and tariff collection; and
7. Indian affairs

T

397. See Chapter 2, Part B. For discussion of the meaning of “adjudication,” “decisions,” and “policy
implementation,” see Chapter 1, Part G.
398. Gardner, supra note 46. Gardner probably included Type B as well as Type C adjudication in
this guesstimate.
399. Some material in this chapter is drawn from ABA Guide, supra note 43, at ch. 9.
Type C Adjudication

89

1. Grants, Benefits, Loans and Subsidies
• Insurer Decisions under the Affordable Care Act (ACA): The ACA regulations
provide for a “review of adverse benefit determinations by health insurers or
group health plans.”400 The first step is an internal review at the insurer or
group plan level, followed by an external review at the state level. If no state
external review procedure exists that meets the requirements of the regulation, a federal review procedure is provided. The federal review is conducted
by a private “independent review organization” (IRO) rather than by federal
officials. The IRO is permitted to consider non-record evidence such as the
report of its own clinical reviewer as well as practice guidelines developed by
the federal government or by professional medical societies as well as clinical
review criteria used by the plan.401 Consequently, it appears that the IRO
review is Type C adjudication.
• Compromising Agricultural Loans: The Farmers Home Administration uses
a so-called “15d procedure”402 to decide whether to compromise or forgive
a farmer’s home loan. The procedure is investigatory, and the borrower has
no right to submit evidence or cross-examine others. “The proceedings
resemble what may be called executive procedure, that is, unilateral decision
by an official on the basis of whatever information he deemed it appropriate
to take into account.”403
• Ranking Applicants for Loan Guarantees: The Department of Energy (DOE)
administers a loan guarantee program for the development of new technologies designed to reduce or sequester greenhouse gasses.404 The regulations
indicate that each application is ranked competitively against all others. The
regulations indicate the factors that DOE considers when it ranks the applications. They state that a rejection of an application is final and not appealable.

400. 45 C.F.R. § 147.136, implementing 42 U.S.C. § 300gg-19 (calling for “effective external review” at
the federal level if no effective state external review program exists).
401. 45 C.F.R. § 147.136(d)(5). A different appeals process, relating to rejection of applicants by health
insurance companies regulated by state exchanges, provides for evidentiary hearings by a state appeal
entity with a backup provision for an HHS appeal entity. 45 C.F.R. § § 155.500–.555. Because it calls
for evidentiary hearings, this backup provision might well be Type B adjudication.
402. 7 C.F.R. pt. 15d; U.S. Dep’t of Agric., Procedures for Processing Discrimination
Complaints and Conducting Rights Compliance Reviews in USDA Conducted
Programs and Activities ch. 4, https://www.ocio.usda.gov/sites/default/files/docs/2012/
DM4330-001%5B1%5D.htm.
403. Johnson v. Vilsack, 833 F.3d 948, 953–58 (8th Cir. 2016) (internal quotation marks and citation
eliminated) (15d decision denying relief to black farmer is not judicial, so is not preclusive of later
action in court under the Equal Credit Opportunity Act).
404. See Energy Policy Act of 2005, 42 U.S.C. §§ 16511–16516.
90

Federal Administrative Adjudication Outside the Administrative Procedure Act

There are no provisions designed to insure a fair application process, such as
rules against bias or ex parte communication.405
• National Science Foundation Grants:406 NSF provides Type C remedies for disappointed grant applicants. NSF furnishes a written explanation and supplies
redacted peer reviews. The applicant may discuss these reasons with an NSF
grants officer. If the applicant remains dissatisfied, it can submit a request for
review to the Division Director within 30 days after the notice of declination.
The request should include a full statement of the applicant’s position, but
it cannot supply new information. A designated reviewing official (who was
not involved in the decision to decline the application) considers the matter
and reports to the Division Director within 30 days. The Division Director
will prepare a final written decision within 15 days which is final.
• National Science Foundation Termination of Grants: NSF also maintains
a Type C all-written adjudication system for resolving disputes arising
out of suspension or termination of grants or accounting issues.407 The
Division Director designates a reviewing official who is at least at the level
of the official who made the disputed decision but was not involved with
monitoring the project. The reviewing official completes a report within 30
days, and the Division Director makes a final and non-appealable decision.
2. Licensing and Accrediting
• Licensing of National Banks: The statute and regulations describe an inquisitorial notice-and-comment-type process for determination of whether the
Office of the Comptroller of the Currency should grant an application for a
banking license. The decision is based on whatever information the Office
discovers in its investigation, public comments, a hearing held if the Comp-

405. 10 C.F.R. §§ 609.5–.6. According to DOE’s FAQs, lobbyists on behalf of an applicant cannot contact program officers, but I found no other provisions restricting communications with decisionmakers.
406. See Nat’l Sci. Found., Proposal and Award Policies and Procedures Guide chs.
III, IV (Jan. 30, 2017) [hereinafter NSF Guide]. See generally Thomas O. McGarity, Peer Review in
Awarding Discretionary Grants in the Arts and Sciences (May 1993) (report to the Admin. Conf. of
the U.S.), https://www.acus.gov/report/project-report-recommendation-93-3); Admin. Conf. of the
U.S., Recommendation 82-2, Resolving Disputes under Federal Grant Programs, 47 Fed. Reg. 30,704
(July 15, 1982); Admin. Conf. of the U.S., Recommendation 71-4, Minimum Procedures for Agencies
Administering Discretionary Grant Programs, 38 Fed. Reg. 19,789 (July 23, 1973).
407. See NSF Guide, supra note 406, at ch. XII.
Type C Adjudication

91

troller determines there is need for one, or any other source of information,
including that supplied in meetings of interested parties.408
• Portability of Phone Numbers: A statute requires the FCC to assure portability of phone numbers, meaning that users can keep the same phone
number if they switch local service providers. The statute requires the FCC
to appoint a private Local Number Portability Administrator (LNPA).409 In
one case involving this process, the FCC decided to select Telcordia to replace
Neustar as an LNPA after utilizing an informal adjudication process.410 No
statute or regulation required the FCC to conduct an evidentiary hearing,
so the process was Type C adjudication. The issue was whether the FCC was
required to employ notice-and-comment rulemaking procedure to make the
selection. The court decided that the FCC correctly used informal adjudication, because the decision was an “order,” not a “rule.” Adjudication is more
appropriate to make this fact-intensive case-by-case determination.
• Use of National Forests: The Forest Service can grant “special use authorization” that permits private uses of national forest land. The regulations
provide for an informal adjudication procedure in such cases.411
• Importing Trophies: The Fish and Wildlife Service (FWS) of the Interior
Department operates a permitting system relating to the protection of wild
birds and animals, including permits for the import of wild animal trophies.412 The regulations set forth FWS procedure for permit applications,
renewals, amendments, suspensions, and revocations. These regulations
provide for an all-written procedure for initial decision and reconsideration.413
There are no provisions for neutrality of the decisional official, restrictions on
ex parte communication, or separation of functions. Decisional officials are
instructed to use any relevant available information, so that there is no exclu-

408. 12 U.S.C. §§ 26–27; 12 C.F.R. §§ 5.7–.13. See Camp v. Pitts, 411 U.S. 138 (1973). In Camp, the
Supreme Court noted that the statutes and regulations for consideration of bank charter applications
do not require any sort of formal hearings and a reviewing court is limited to the record made before
the agency. If the agency’s explanation is inadequate, the remedy is to remand to the agency to supply
an adequate one.
409. 47 U.S.C. § 251(e)(1).
410. Neustar, Inc. v. FCC, 857 F.3d 886, 895 (D.C. Cir. 2017).
411. 36 C.F.R. § 251.50. See Everett v. United States, 158 F.3d 1364, 1368 (D.C. Cir. 1998) (Forest
Service denial of application for special use authorization was upheld).
412. See 50 C.F.R. §§ 13.11–.12 for a list of the various conservation programs requiring permits; Marcum v. Salazar, 694 F.3d 123 (D.C. Cir. 2012) (action by rejected permit applicant is not ripe for judicial
review as administrative appeal was pending).
413. 50 C.F.R. §§ 13.15–.28.
92

Federal Administrative Adjudication Outside the Administrative Procedure Act

sive record.414 The regulations provide for an appeal to the Regional Director;
the Director can permit oral argument if necessary to clarify the record.415
• Approval of Land Used to Produce Bio-Fuels: EPA must approve a particular
plan filed by a foreign applicant to supply bio-fuel material to assure that the
material is grown on land that had already been used for agricultural purposes
prior to 2007.416 An informal adjudication process is used to make this determination rather than a rulemaking procedure. The process involved repeated
written submissions and modifications of the plan by the applicant.417
3. Foreign Policy and National Security Determinations
Many regulatory schemes in the area of foreign policy and national security
employ Type C adjudication.
• Foreign Asset Control: The Treasury Department’s Office of Foreign Asset
Control (OFAC) regulates in the area of embargoes, prohibited transactions
with foreign entities, blocked assets, designation of foreign persons for sanctions, and the like. It issues licenses for transactions that are permitted despite
general prohibitions against them. The regulations prescribe no specific procedures for making individualized determinations arising under these schemes.
Consequently, such decisionmaking should be considered Type C, in that
OFAC must use some sort of procedure to make the decisions, but it does not
entail evidentiary hearings. For example, in the case of licensing, the regulations describe the procedure for applying for licenses; these regulations contain
no procedural protections for persons that are denied such licenses or for the

414. 50 C.F.R. § 13.21(d).
415. 50 C.F.R. § 13.29(f).
416. See 40 C.F.R. § 80.1454.
417. See Nat’l Biodiesel Bd. v. EPA, 843 F.3d 1010, 1017–18 (D.C. Cir. 2016). In that case, EPA
approved the proposal submitted by an Argentine trade association. Numerous modifications
occurred to the proposal during the adjudication process before EPA approved it. Competing U.S.
producers contended that EPA had to use rulemaking to approve the proposal, but the court held that
informal adjudication was acceptable.
Type C Adjudication

93

revocation of such licenses.418 Similarly, persons can apply for unblocking of
funds, but the regulations contain no specific procedural protections.419
• Flight Training: There are no procedural protections when TSA refuses to
grant permission to a foreign national to obtain flight training.420
• Iran Embargo: Finally, when OFAC wishes to impose a civil money penalty
for violation of the Iran embargo, the only prescribed procedures are issuance
of a pre-penalty notice, an opportunity to respond in writing, and issuance
of a final penalty notice “after consideration of the written response to the
pre-penalty notice and any relevant facts.”421
4. Inspections, Tests, and Safety
• Fish Inspections: A voluntary fish inspection program by the Department of
Commerce depends entirely on inspections. If a manufacturer disagrees with
the report of the original inspector, it is entitled to an appeal in the form of a
re-inspection by a different inspector or inspectors.422
• Medical Approvals: An airman seeking a first-class pilot certificate, who is
ineligible if he or she has diabetes, can apply for a special medical certificate. This decision is made by an Aviation Medical Examiner from available
records. The examiner can order additional flight or medical tests. If an
application for the certificate is denied, the applicant can seek reconsideration
from the Federal Flight Surgeon. No further procedures are provided.423
• Aircraft Security: Aircraft operators must comply with TSA security directives and file their own security programs that follow TSA

418. 31 C.F.R. § 501.801(b)(4) allows an applicant to request explanation of the reasons for a denial of
a license application, but otherwise it provides no details concerning the procedure used to consider
such requests.
419. 31 C.F.R. § 501.806(f). A Specially Designated Person may submit arguments or evidence in
support of the removal of the designation, and these submissions will be reviewed. The person may
request a meeting to discuss the application, but whether to grant the meeting is discretionary. 31
C.F.R. § 807(a)–(c). See Empresa Cubana Exportadora de Alimentos y Productos Varios v. Dep’t
of Treasury, 606 F. Supp. 2d 59, 70 (D.D.C. 2009), aff’d 638 F.3d 794 (D.C. Cir. 2011) (no hearing
required; reliance on State Department letter is proper).
420. See 49 U.S.C. § 44939(a); Olivares v. TSA, 819 F.3d 454 (D.C. Cir. 2016) (TSA met requirements
of § 555(e) by providing staff analysis of reasons for denial of application); 49 C.F.R. § 1552.3.
421. 31 C.F.R. §§ 560.703–.704. See Epsilon Elecs., Inc. v. Dep’t of Treasury, 857 F.3d 913 (D.C. Cir. 2017).
422. 50 C.F.R. §§ 260.36, .40. See Verkuil, supra note 40, at 770.
423. See 14 C.F.R. §§ 67.401, .407, .409.
94

Federal Administrative Adjudication Outside the Administrative Procedure Act

directives.424 TSA can disapprove their programs or can reject modifications or amendments to these programs. Operators can petition the
administrator to reconsider and submit written views and arguments.
After considering all relevant material, the designated official adopts
or rescinds the notice. No procedural protections are provided.
• Adulterated Food: The system of regulation of imported food that is adulterated or unfit for human consumption is primarily based on inspections. The
statute requires that the Department of Health and Human Services must
provide notice and an opportunity to appear before a designee of the Secretary
and introduce testimony.425 The resulting hearing does not include testimony
by government officials and is primarily based on inspection results but not
an exclusive record.426 However, there must be proper notice in order that
the opportunity to appear and introduce testimony will be meaningful.427
5. Orders Subject to De Novo Review
An agency adjudication process that is subject to de novo judicial review is often
Type C adjudication. There is little need for a more formal adjudication process at the
agency level when a court will ultimately retry the case.
• Vendor Disqualification under SNAP: The Food and Nutrition Service (FNS)
of the Department of Agriculture (USDA) operates a series of federal-state
programs that supply food to the poor, including SNAP (formerly known
as food stamps). FNS adjudicates cases involving local vendors authorized
to sell food to SNAP recipients. The vendors can be disqualified from the
program for various offenses. The statute does not call for hearings but
authorizes USDA to adopt regulations providing for administrative review.428
The vendor may file a written request to submit information in support of its
position to a reviewer (who considers the submitted information along with
other available information and makes a final determination). The sanctions
are subject to de novo judicial review.429 The reviewers are Administrative
Review Officers in the Administrative Review Branch of FNS. The review
proceedings are entirely in writing. SNAP’s adjudicatory scheme is Type C

424. See 49 C.F.R. § 1544.105; Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343 (D.C. Cir. 2014).
425. 21 U.S.C. § 381(a); 21 C.F.R. § 1.94(a).
426. Sugarman v. Forbragt, 267 F. Supp. 817 (N.D. Cal. 1967), aff’d, 405 F.2d 1189, 1190 n.3 (9th Cir.
1968).
427. L&M Indus. v Kenter, 458 F.2d 968, 970 (2d Cir. 1972).
428. 7 U.S.C. § 2023(a); 7 C.F.R. pt. 279, subpt. A.
429. See, e.g., Irobe v. USDA, 890 F.3d 371 (1st Cir. 2018) (claimant has burden of proof in district
court proceedings).
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adjudication because the exclusive record requirement does not appear to
apply to the review procedure.430
• FOIA Requests: An agency is required to determine whether to release documents requested under the Freedom of Information Act. A person who
receives an adverse determination must exhaust administrative remedies
by filing an appeal before going to court to seek de novo review.431 Some
agencies provide for informal hearings in cases in which the agency rejects a
FOIA request.432
• Naturalization: The U.S. Citizenship and Immigration Service (USCIS)
provides a two-level procedure to resolve disputes about whether a person
qualifies for citizenship through the naturalization process.433 The first level
is called an examination, and the second level is referred to as a hearing. Both
are investigatory and informal and are not based on an exclusive record.434 The
applicant is entitled to de novo judicial review if the administrative process
produces an adverse result.435
6. Orders Relating to Tax Collection
• Tariff Classification Rulings: An importer can file a written request for a tariff
classification ruling (TCR) on a prospective import transaction.436 Such rulings are issued by the Customs and Border Protection Service (CBP). Rulings
are generally issued by the local field office (approximately 10,000 each year)
but can also be issued by CBP headquarters if requested by field office staff
or by an importer.437 TCRs are binding on CBP with respect to the proposed

430. 7 C.F.R. § 279.5(a).
431. 5 U.S.C. § 552(a)(6)(A) provides for the right of a person, whose request has been denied, to appeal an
adverse decision to the head of the agency. See Hidalgo v. FBI, 344 F.3d 1256 (D.C. Cir. 2003) (party must
exhaust remedies by raising all issues through agency appellate process before seeking judicial review).
432. See Appendix A-4 (Department of Energy); 28 C.F.R. § 16.8 (Department of Justice). Agencies
also make adjudicatory decisions to release documents in response to a FOIA request against the objection of persons who submitted that material to the agency—so-called “reverse-FOIA” cases. These are
also treated as informal adjudication, but courts do not provide de novo review of agency decisions. See
Jurewicz v. USDA, 741 F.3d 1326, 1334–35 (D.C. Cir. 2014) (agency not required to provide response
opportunity in reverse-FOIA case).
433. See 8 U.S.C. §§ 1446–1447; 8 C.F.R. pts. 335 & 336.
434. See 8 C.F.R. § 336.2(b) (hearing officer is allowed to consult USCIS files and reports).
435. 8 C.F.R. § 336.9(c).
436. See 19 C.F.R. §§ 177.0–.13.
437. The Supreme Court denied Chevron deference to a TCR issued at the headquarters level. However, such rulings qualify for Skidmore deference. United States v. Mead Corp., 533 U.S. 218 (2001).
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import and all identical future imports until modified or revoked, but are not
binding on the applicant.438
The Type C procedure applicable to TCRs consists of an oral “discussion” of the issues. This procedure provides an opportunity “to freely and
openly discuss the matters set forth in the ruling request.” The oral discussion
will be granted if customs personnel think it would be helpful or if they propose to deny the classification requested by the applicant. At the conference,
the applicant can be accompanied by counsel “or other representative.” The
applicant can present additional documents, arguments, and exhibits at the
conference. Either the local field office or the importer can request that the
matter be considered by CBP headquarters. No other procedural protections
exist. Applicants can ignore unfavorable TCRs and challenge them through
a de novo action in court.
• Collection Due Process (CDP): The IRS is required by statute to provide a
hearing to taxpayers at the time it imposes a tax lien or initiates a tax collection
action. The hearing is provided by an IRS Appeals Officer (AO) who has no
previous involvement in the dispute. A statute prohibits ex parte communications from other IRS officials to the AO to the extent such communications
“appear to compromise the independence” of the AO.439 CDP hearings are
informal and inquisitorial; they often consist of one or more phone calls.
There is no provision for cross-examination of adverse witnesses and no
subpoena power. The hearing requirement seems to entail a conference, little
different from the normal function of AOs in settling disputes about the
amount of tax due. The AO’s decision is reviewed by a team manager who
makes the final IRS decision. The regulations at least suggest that the decision
in a CDP case is not limited to information that the AO receives at the CDP
hearing.440 Because of the various procedural protections, CDP hearings are
on the borderline between B and C adjudication, but probably should be
classified as Type C because of the lack of an exclusive record requirement.
7. Indian Affairs
A variety of regulatory decisions concerning Indians are made through Type C
adjudication. For example:

438. If CBP wishes to modify or revoke an interpretive ruling that has been in effect for more than 60
days, it must follow a public notice and comment procedure. 19 C.F.R. § 177.12(b). The regulations protect the reliance interest of third parties on TCRs that are modified or revoked. 19 C.F.R. § 177.12(c)–(e).
439. Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, § 1001(a)
(4), 112 Stat. 685, 689. This section was not codified in the Internal Revenue Code.
440. The IRS’ determination in a CDP case can be appealed to the Tax Court. The record before the Tax
Court includes “any other documents or materials relied on by the Appeals officer . . . in making the determination . . . .” Treas. Reg. § 301.6320-1(A-F4), which indicates that there is no exclusive record requirement.
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• Gambling Casinos: Applications by tribes to build gambling casinos trigger
numerous factual determinations including whether the tribe is entitled to
benefits under Indian Gaming Regulatory Act and whether the benefits of a
particular casino outweigh its detriments. Determinations are made through
a notice and comment process, rather than through evidentiary hearings.441
B. BEST PRACTICES FOR TYPE C ADJUDICATION
As discussed previously, Type C systems are wildly disparate and have almost nothing in common except that they produce binding adjudicatory decisions involving
disputes between government and private parties. Many of them involve inquisitorial
schemes in which investigators serve as decisionmakers, there is nothing resembling
an oral hearing (or any orality at all), ex parte communications are welcome, and no
exclusive record principle operates. Some of them have monumental stakes, as in the
PBGC case, which involved hundreds of millions of dollars in pension liabilities.442
Others are as trivial as the decision of a forest ranger to allocate the last available
campsite to me rather than to you or a postal clerk’s decision about how much it will
cost to mail a package.
Although Type B adjudications schemes are also disparate, they have in common
a legally required evidentiary hearing. It is therefore feasible to suggest best practices
for Type B adjudication that can be implemented through procedural regulations.
These recommendations were sketched in Chapter 4 and ACUS Recommendation
2016-4, although with the warning that not every recommended practice would work
in every Type B scheme.
Lacking the common core of a legally required evidentiary hearing, however, the
unruly world of Type C adjudication resists any attempt to impose procedural uniformity. Warner Gardner’s highly tentative proposal for a statute entitled “The Informal
Procedure Act of 1980” gained no traction.443 However, the obvious problems that beset
a statutory solution can be avoided through the approach of suggesting best practices
implemented by agency-specific procedural regulations. Under that approach, it is not
necessary to draw precise lines defining the class of adjudicatory schemes to which the
proposal would apply. That would be a daunting project, which would have to include
some practicable way to exempt trivial decisions such as campsite allocations. The best
practice approach does not require the drawing of bright lines and can be more flexible
than a statute could be. This subchapter takes that leap by proposing best practices for
Type C adjudication. Hopefully, others will expand on and refine these suggestions.

441. See 25 C.F.R. §§ 292.16–.21. The administrative process for approvals is highly informal. See
Stand Up for Cal.! v. DOI, 879 F.3d 1177, 1179 (D.C. Cir. 2018) (seven-year administrative process);
Butte Cty. v. Hogen, 613 F.3d 190, 194–95 (D.C. Cir. 2010) (overturning decision because of lack of a
reasons statement).
442. See text at notes 165–69.
443. Gardner, supra note 46, at 158–66.
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The premise of these proposals is that §§ 555 and 558 already set forth a modest and
undemanding set of required practices for certain Type C adjudications. These seem to
have drawn little scholarly attention but have worked without much controversy. Due
process cases also set forth abbreviated procedures in numerous situations.444 I therefore suggest that the protections already embodied in APA §§ 555 and 558 and the due
process informal procedure cases could be generalized and broadened in order to form
the basis for a set of relatively simple and general best practices for Type C adjudication.
In addition, APA § 553 sets forth a broadly accepted procedural format for rulemaking—appropriate notice, opportunity for written comment, and a statement of reasons.
Some Type C adjudication essentially uses rulemaking procedure, and these principles
can also be generalized into best practices.445
Because these are best practice recommendations for agency-specific procedural
regulations rather than statutory proposals, this book does not state them with precision
or suggest exact language.446 As with Type B best practices,447 some of them may not
be applicable to every Type C scheme. In each case, the designers of the institutional
architecture for making Type C adjudication decisions should balance the conflicting
goals of accuracy, efficiency, and procedural acceptability.448 Obviously, agencies should
use common sense by not adopting procedures when the action is too trivial to merit
them or for some other reason they would be useless or inefficient.
1. Notice
Appropriate notice is the foundation of every procedural scheme.449 Agencies
should furnish notice to persons whose rights they will adjudicate in sufficient time and
in sufficient detail to enable these persons to decide whether to challenge the agency
decision and, if so, to prepare for whatever Type C adjudicatory procedure the agency
makes available.450

444. See text at notes 131–47.
445. See Verkuil, supra note 40, at 781.
446. This avoids the hurdles aptly sketched by Gardner in his highly tentative suggestions for the
Informal Procedure Act of 1980. Gardner, supra note 46.
447. See Chapter 4.
448. See text at notes 264–65.
449. See Gardner, supra note 46, at 163–64; Henry Friendly, “Some Kind of Hearing”, 123 U. Pa. L.
Rev. 1267, 1279–92 (1975). In addition, public notice is critical in the rulemaking process. The notice
of proposed rulemaking must give sufficient warning of what the final rule will contain so that people
can properly comment on it.
450. In the case of a rejected application to the agency for some benefit or status, if an administrative
process exists whereby the rejection can be challenged, the rejection communication should provide
sufficient explanation to facilitate the challenge. See APA § 555(e), requiring an explanation of grounds
for denial of an application (discussed in text at notes 211–36).
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Section 558(c)451 already requires, in cases of withdrawal, suspension, revocation,
or annulment of a license, “notice by the agency in writing of the facts or conduct which
may warrant the action.” The notice provision does not apply to “cases of willfulness or
those in which public health, interest, or safety requires otherwise.” This best practice
recommendation generalizes the § 558(c) notice requirement from licensing disputes
to all cases of Type C agency adjudication. Moreover, if due process is applicable to
the agency proceeding, the agency is bound by a constitutional requirement of giving
adequate notice.452 The recommendation generalizes the due process requirement to
disputes that are not covered by due process.
Thus, an agency’s procedural regulations and manuals governing particular
schemes of Type C adjudication should spell out the details of the prior notice the
agency must provide before conducting a Type C adjudication such as rejection of an
application for a benefit or a permission or imposing a regulatory outcome such as a
sanction. The regulations should explain the contents of that notice and the manner of
delivery. The notice should explain the private party’s procedural rights and options.
The required detail of the notice and the amount of time that the notice should
precede further agency action obviously depend greatly on such factors as the seriousness of the stakes involved in the dispute and the complexity of the issues. Thus, the
type and detail of the notice should be quite different in the PBGC situation (involving
hundreds of millions of dollars in pension liabilities),453 the student disciplinary suspension involved in Goss,454 and the forest ranger situation (where it would be sufficient for
rangers to briefly explain their decisions and inform the disappointed camper whether
there is any form of reconsideration available).
Of course, at times an agency is confronted by an emergency situation that requires
it to act first and ask questions later; in such situations prior notice may be very brief or
non-existent. This limitation is recognized in § 558(c) which does not require notice if
the public health, interest, or safety requires otherwise.

451. See text at notes 204–06.
452. See Goss v. Lopez, 419 U.S. 565 (1975). Goss is the leading case involving due process protection in
situations involving relatively small stakes and a need for informal action. The Court stated:
At the very minimum, therefore, students facing suspension and the consequent interference
with a protected property interest must be given some kind of notice and afforded some kind
of hearing . . . . Students facing temporary suspension have interests qualifying for protection
of the Due Process Clause, and due process requires, in connection with a suspension of 10
days or less, that the student be given oral or written notice of the charges against him and,
if he denies them, an explanation of the evidence the authorities have and an opportunity to
present his side of the story. The Clause requires at least these rudimentary precautions against
unfair or mistaken findings of misconduct and arbitrary exclusion from school.
419 U.S. at 579–81.
453. See text at notes 165–69.
454. See note 138.
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2. Opportunity to Submit Evidence and Argument
Agencies should adopt procedural regulations applicable to Type C adjudication
that provide private parties an opportunity to submit evidence and argument in
support of their position. The regulations should allow the party to furnish agency
decisionmakers with written or oral submissions setting forth the party’s position
and an opportunity to rebut adverse information in the agency’s files. Some version
of the right to tell your story to the person who decides your fate is foundational in
every scheme of fair procedure.455 The opportunity might take the form of a written
or electronic submission, an informal conference, or some kind of informal hearing,
but it should exist. Obviously, once again, the parameters of the opportunity to submit evidence and argument vary with the private stakes involved, the caseload, the
complexity of the issues, and similar constraints.
The right to offer evidence and argument can be inferred from the second
sentence of APA § 555(b), which provides: “A party is entitled to appear in person or
by or with counsel or other duly qualified representative in an agency proceeding.”456
Since § 555 already gives a person a legally enforceable right to “appear” in any agency
proceeding, the regulations should spell out what that opportunity entails. These regulations should cover all Type C adjudicatory decisions, whether or not § 555 applies to
them.457 Similarly, the right to comment on a proposed rule and to respond to comments
filed by others is key to the broadly accepted rulemaking process and should be equally
applicable to adjudication.
3. Right of Representation
The best practices for Type C adjudication include a right for private parties to be
represented or assisted by another person, whether a lawyer, friend or family member,
or lay advocate. As noted in Recommendation 2, APA § 555(b) already guarantees this
right, in connection with the right to “appear.”458 Although § 555(b) takes no position on
whether there is a right to lay representation,459 lay representation is a practical necessity
in most cases of Type C adjudication where the relatively low monetary stakes and the
party’s likely inability to pay preclude hiring a lawyer.460

455. See Gardner, supra note 46, at 164 and the quoted material from Goss v. Lopez in note 452. Even in
situations with small stakes, such as a short suspension from school, a student has the right “to present
his side of the story.”
456. See discussion in text accompanying notes 174–83.
457. As discussed above, text at notes 171–72, § 555 has been held to be inapplicable if the dispute falls
under exceptions to § 554(a) (such as the selection or tenure of an employee) or to disputes in situations
that are not subject to judicial review under § 701(a)(1) or (2).
458. See text at notes 174–83.
459. See text at note 179.
460. See discussion in text at notes 315–21.
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4. Statement of Reasons
An agency conducting Type C adjudication should provide a brief oral or written
statement of the facts and reasons on which its decision is based. This reasons statements
should explain why the private party’s arguments (see Recommendation 2 above) were
rejected and why the agency made discretionary choices.
Section 555(e) already requires that an agency that denies an application, petition,
or other request furnish a notice that “shall be accompanied by a brief statement of
the grounds for denial.”461 This recommendation broadens § 555(e) beyond the area of
applications, petitions, or other requests, to cover all adjudicatory decisions, including
those imposing a sanction or other regulatory outcome. It applies whether or not the
decision is subject to judicial review.462 Similarly, the broadly accepted rulemaking process requires a “concise general statement of [the] basis and purpose” of the final rule
and that the agency respond to material comments filed by members of the public.463
Obviously, as in the case of notice, the detail and formality required of an agency’s
reasons statement depends on the context, such as the stakes involved in the decision,
complexity of issues, and caseload issues.
5. Right of Administrative Review
A common pattern of almost all adjudication schemes is the right to a second
look from a different decisionmaker.464 Normally this right of review resides in the
decisionmaker’s supervisor or someone else superior to the initial decisionmaker in
the agency hierarchy. Therefore, drafters of procedural regulations for Type C adjudication should consider whether it is practicable to institutionalize the right of review
by providing details and deadlines. Of course, there are many situations in which an
opportunity for reconsideration is impracticable because of caseload, low stakes, or
time constraints. Thus, it may not be practical to allow a disappointed applicant for
a campsite to appeal to a higher level official, given the late hour and the likelihood
that the deciding ranger’s superior is not located on site.
6. Procedural Regulations
Agencies should adopt procedural regulations that furnish the details of each
scheme of Type C adjudication. Such regulations should include details relating to the
best practices already mentioned—notice, opportunity to submit evidence and argu-

461. See text at notes 211–36.
462. As discussed above, see text at notes 226–36, courts often impose a reason statement requirement
for judicial review purposes that seems more extensive than the “brief statement” required by § 555(e).
If judicial review is more than a remote possibility, the reason statement should satisfy the more exacting judicial review standard for reasons statements.
463. APA § 553(c); Rodway v. USDA, 514 F.2d 809, 817 (D.C. Cir. 1975).
464. See Michael Asimow, Five Models of Administrative Adjudication, 63 Am. J. Comp. L. 3, 6 (2015).
See also Recommendation 4.b. in Chapter 4.
102

ment, representation, statement of reasons, and administrative review. Other essential
details are the selection of decisionmakers, forms, and deadlines.
It should go without saying that people should have convenient access to the details
of the adjudicatory procedures that affect them. And, of course, agencies are obligated
to follow their procedural regulations, even if the regulations provide protections that
the agency was not legally required to adopt.465 This requirement that an agency must
follow its own regulations is an important protection for the public. In addition, agencies
should adopt manuals and other user-friendly and internet-accessible summaries of the
necessary procedures. But such manuals are no substitute for adopting the procedures
in the form of regulations.466
Again, this recommendation is founded on existing law. The APA already requires
that agencies publish in the Federal Register for the guidance of the public “statements
of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures
available.”467 In addition, the APA requires that the agency publish “rules of procedure,
descriptions of forms available or the places at which forms may be obtained, and
instructions as to the scope and contents of all papers, reports, or examinations.”468
Thus, Recommendation 6 breaks no new ground, but is in the nature of a proposal that
agencies make it a priority to follow the law by spelling out their procedures for Type C
adjudication in regulations.

465. Service v. Dulles, 354 U.S. 363, 388 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S.
260 (1954).
466. See discussion in text at notes 302–04.
467. APA § 552(a)(1)(B).
468. APA § 552(a)(1)(C).
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103

APPENDICES

APPENDIX A
Type B Adjudication Schemes
APPENDIX B
ACUS Recommendation 2016-4, Evidentiary Hearings Not Required
by the Administrative Procedure Act
APPENDIX C
ACUS Recommendation 2018-3, Electronic Case Management
in Federal Administrative Adjudication
APPENDIX D
ACUS Recommendation 2016-6, Self-Represented Parties
in Administrative Proceedings
APPENDIX E
ACUS Recommendation 2014-7, Best Practices for Using
Video Teleconferencing for Hearings
APPENDIX F
ACUS Recommendation 86-3, Agencies’ Use of Alternative
Means of Dispute Resolution
APPENDIX G
ACUS Recommendation 86-2, Use of Federal Rules of
Evidence in Federal Agency Adjudications
APPENDIX H
ACUS Recommendation 86-1, Non-lawyer Assistance and Representation
APPENDIX I
ACUS Recommendation 70-4, Discovery in Agency Adjudication

Appendix A

105

APPENDIX A

TYPE B ADJUDICATION SCHEMES
These appendices contain detailed memoranda on twelve of the most important Type
B adjudication schemes. This list is not complete. Federal agencies operate numerous
other Type B schemes that I have not studied and are not discussed in these appendices
or in the book.
List of appendices:
1. Department of Agriculture
2. Civilian Board of Contract Appeals
3. Debarment and Suspension
4. Department of Energy
5. Health and Human Services
6. Equal Employment Opportunities Commission
7. Environmental Protection Agency
8. Executive Office of Immigration Review
9. Merit Systems Protection Board
10. United States Patent and Trademark Office
11. Provider Reimbursement Review Board
12. Veterans Administration

Appendix A

107

APPENDIX A-1

DEPARTMENT OF AGRICULTURE

A. Type A USDA Schemes
Numerous USDA adjudicatory programs fall into the category of Type A adjudication.469 The regulations provide for Type A hearings before ALJs; USDA’s judicial
officer decides appeals from the ALJ decisions.
Many of the statutes covered by these regulations call for a “hearing on the
record” and thus trigger Type A adjudication. However, some statutes do not call for
a hearing “on the record,” but USDA nevertheless includes these programs in its list
of Type A adjudication. For example, licensing provisions of the Animal Welfare Act
call only for “notice and an opportunity for hearing.”470 The same is true of licensing
provisions in the Perishable Agricultural Commodities Act. (PACA).471
The National Appeals Division (NAD) is an independent unit within USDA
that conducts evidentiary hearings arising from adverse decisions by agencies engaged
in USDA’s credit, soil conservation, and insurance functions.472 NAD is headed by a
Director who appoints its hearing officers.473 The hearing officers have no duties other
than adjudicating.474 In Lane v. USDA,475 the 8th Circuit held that NAD hearings are
covered by the APA’s adjudication provisions; consequently they are subject to fee
recovery under the Equal Access to Justice Act. The Lane decision was followed by

469. See 7 C.F.R. §§ 1.130–.151. Section 1.131 lists the USDA regulatory programs subject to these
regulations. These hearings are USDAOALJ0001 in the ACUS database.
470. 7 U.S.C. § 2149(a) (license suspension or revocation) and (b) (civil penalties).
471. See, e.g., 7 U.S.C. § 499h(b).
472. Agencies covered are the Consolidated Farm Service Agency, Commodity Credit Corporation,
Farmers Home Administration, Federal Crop Insurance Corporation, Rural Development Administration, Natural Resources Conservation Service, and certain state and local committees. 7 U.S.C. §
6991(2); 7 C.F.R. § 11.1. NAD does not provide review of statutes or regulations, only of individualized decisions. 7 C.F.R. § 11.3(b). For a summary of NAD procedures, see Vogelmann, supra note 310.
NAD hearings are covered at USDANADO0002 in the ACUS database.
473. The Director serves for a 6-year term and is not subject to removal during that term except for
cause. 7 U.S.C. § 6992(b)(2).
474. 7 U.S.C. § 6992.
475. 120 F.3d 106 (8th Cir. 1997).
Appendix A

109

cases from two other circuits.476 USDA has acquiesced in the Lane decision, and the
regulations now provide that the APA and EAJA apply to NAD hearings.477 Unlike
most Type A proceedings, however, NAD administrative judges appointed by its
Director, rather than ALJs, conduct NAD hearings.478
B. PACA
PACA (originally enacted in 1930) includes provisions for reparation orders.479 It is
administered by the Agricultural Marketing Service (AMS).480 PACA provides for
dispute resolution between private participants in the fresh or frozen fruit and vegetable markets. The producers of fruits and vegetables are on one side; commission
merchants, brokers, and dealers in such products (who must hold licenses) are on
the other side. PACA authorizes USDA to adjudicate damage claims by producers
against licensees for non-payment or other delinquencies (such as unfair, deceptive,
unreasonable, or discriminatory practices, including unreasonable rejection of produce).481 It appears that PACA gives rise to relatively few cases. In 2016, Volume
75 of Agricultural Decisions lists only 24 cases (the sum of “miscellaneous orders
and dismissals,” consent decisions, default decisions, and actual opinions). In 2015,
Volume 74 lists only 10 such decisions. Of course, there were probably a considerable
number of cases that were settled during the informal complaint stage and would not
show up in these statistics.
USDA decisions in PACA reparation cases are reviewable in federal district court.
Review can occur either in a proceeding by a petitioner to enforce a reparation order
or by either party to review a reparation order. The cases are tried de novo, but USDA’s

476. Five Points Road Joint Venture v. Johanns, 542 F.3d 1121 (7th Cir. 2008); Aageson Grain & Cattle v. USDA, 500 F.3d 1038 (9th Cir. 2007). This line of cases is questionable, however. Prevailing law
gives Chevron deference to an agency’s interpretation of whether its governing statute triggers the APA.
Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006), discussed in Chapter 2,
text at notes 59-62. The Lane decision gave no deference to USDA’s interpretation.
477. 7 C.F.R. § 11.4(a). See Applicability of Equal Access to Justice Act and Administrative Procedure
Act, 74 Fed. Reg. 57,401 (Nov. 6, 2009) (USDA’s acquiescence in Lane).
478. The APA allows a statute to supersede the APA requirement that hearings be conducted by ALJs.
APA § 556(b).
479. See 7 U.S.C. ch. 20A. PACA reparation hearings are not included in the USDA’s list of Type A
adjudications. See 7 C.F.R.§ 1.131(a).
480. See U.S. Dep’t of Agric., Perishable Agricultural Commodities Act, https://www.ams.usda.gov/
rules-regulations/paca (last visited Apr. 16, 2018).
481. See 7 U.S.C. § 499b. PACA also treats the proceeds of sale of produce as being held in trust for
producers as well as giving the producers a floating lien over the licensee’s assets. These provisions
greatly improve the position of the producers as creditors if a licensee files for bankruptcy. See 7 U.S.C.
§ 499e(c). PACA procedure is discussed in Verkuil, supra note 40, at 764–65. See also U.S. Dep’t of
Agric., FAQs for PACA Proceedings (May 2016) https://www.ams.usda.gov/sites/default/files/media/
FAQ’s%20for%20PACA%20Petitions%2C%20Appeals%20%26%20Oral%20Hearings.pdf.
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Federal Administrative Adjudication Outside the Administrative Procedure Act

findings and conclusions are treated as prima facie correct.482 In addition, producers
who are victims of breach of contract can go directly to court and bypass the USDA
reparation procedure entirely.483 These unusual review provisions reflect the fact that
the USDA reparation proceedings might otherwise be treated as an unconstitutional
delegation of adjudicative power or a denial of the right to a jury trial.
Under the regulations,484 the examiners in PACA hearings are attorneys employed
in the Office of the USDA General Counsel.485 Examiners can be disqualified for bias,
but the regulations define bias rather narrowly to cover only a pecuniary interest or a
blood or marital relationship to one of the parties.486 There are no provisions prohibiting ex parte communications to the examiner or involvement by USDA investigators
in the proceedings. Examiners are given various powers including subpoena power,
power to order depositions, and power to conduct hearings by telephone or audiovisual equipment.487
Parties seeking PACA reparations trigger the process by filing an “informal complaint.” Staff members of the Deputy Administrator investigate the complaint, and a
copy of the investigational report is provided to the parties.488 During this period, the
parties may settle the dispute.489 The PACA branch also provides mediation services
at this stage.490 If the case does not settle, the petitioner files a “formal complaint”
which is served on the respondent.491
The regulations provide for an oral hearing if the amount of the claimed damages
exceeds $30,000. If the damages do not exceed $30,000, a documentary rather than

482. 7 U.S.C. § 499g(b)–(c). This means that either party can introduce additional evidence in court.
Smith v. White, 48 F. Supp. 554 (E.D. Mo. 1942). The Secretary’s findings are rebuttably presumed to
be correct. The presumption is rebutted if a party introduces sufficient evidence to overcome them.
Spano v. W. Fruit Growers, Inc., 83 F.2d 150 (10th Cir. 1936).
483. See 7 U.S.C. § 499e(b), which establishes that victims can recover damages either through the
USDA administrative process or by suing in any court of competent jurisdiction.
484. 7 C.F.R. §§ 47.1–.22.
485. 7 C.F.R. § 47.2(i). In documentary reparation proceedings, the term “examiner” means “any other
employee of the PACA Branch whose work is reviewed by an attorney employed in the Office of the
General Counsel.”
486. 7 C.F.R. § 47.11(a). The regulations also provide for “disqualification” of the examiner. It is not
clear if the grounds for disqualification go beyond a pecuniary or family relationship to the parties. §
47.11(b).
487. 7 C.F.R. § 47.11(c).
488. 7 C.F.R. § 47.7.
489. “The Deputy Administrator, in an effort to effect an amicable or informal adjustment of the
matter, shall give written notice to the person complained against of the facts of conduct . . . and shall
afford such person an opportunity, within a reasonable time fixed by the Deputy Administrator, to
demonstrate or achieve compliance . . . .” 7 C.F.R. § 47.3(a)–(b).
490. U.S. Dep’t of Agric., PACA Mediation Services, https://www.ams.usda.gov/resources/paca-mediation-services (last visited July 11, 2018).
491. 7 C.F.R. § 47.6(a).
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an oral hearing is provided (unless the examiner finds that peculiar circumstances
make an oral hearing necessary).492
Oral hearings can be conducted by an in-person proceeding or by telephone or
by video conference. The default is video conference unless the examiner determines
that an in-person hearing is necessary to prevent prejudice to a party, is necessary
because of a disability of any individual expected to participate in the hearing, or
“would cost less than conducting the hearing by audio-visual communication.”493
The examiner can substitute a telephone hearing for an in-person hearing or one by
audio-visual equipment if a phone hearing would provide a full and fair evidentiary
hearing, would not prejudice any party, and would cost less than conducting the
hearing by audio-visual equipment or personal attendance of any individual.494 The
parties must exchange (ten days before the hearing) a written verified narrative of the
testimony any of its witnesses (including experts) will present by phone.495
At the hearing, a party may appear in person or by counsel or other representative. Thus, USDA permits lay representation.496
After the hearing, the parties have an opportunity to submit proposed findings
and conclusions and submit briefs. They must also make claims for attorney fees and
other costs (although they do not yet know if they will be prevailing parties entitled to
recover such costs).497 The examiner “with the assistance and collaboration of department employees assigned for this purpose” shall prepare a report on the basis of evidence
received at the hearing. It is prepared in the form of a final order for the signature of
the Secretary of Agriculture but not served on the parties until the Secretary signs it.498
The documentary procedure (applicable to most cases involving less than
$30,000 in damages499) dispenses with oral proceedings. The verified pleadings,
investigation reports, stipulations, and additional written verified statements or

492. 7 C.F.R. § 47.15(a).
493. 7 C.F.R. § 47.15(c)(3)(iii). “If the examiner determines that a hearing conducted by audio-visual
telecommunication would measurably increase the [USDA’s] cost of conducting the hearing, the
hearing shall be conducted by personal attendance of any individual who is expected to participate in
the hearing or by telephone.” Id.
494. 7 C.F.R. § 47.15(c)(4).
495. 7 C.F.R. § 47.15(f).
496. 7 C.F.R. § 47.15(d)(1). The regulations provide for disqualification of counsel or a lay representative because of unethical or unprofessional conduct. The examiner shall report such action to the
Secretary who can, after notice and hearing, bar counsel or other representative from participating in
other hearings.
497. 7 C.F.R. § 47.19(b)–(d).
498. 7 C.F.R. § 47.19(e).
499. Parties in cases where the claimed damages exceed $30,000 can consent to use the documentary
procedure in lieu of oral hearings. 7 C.F.R. § 47.20(b)(2).
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deposition transcripts serve as the evidentiary record. The parties may submit briefs.500
The examiner’s report is the same as in the case of oral hearings.501
The examiner’s report and the record in the case are transmitted to the Secretary
of Agriculture.502 If the Secretary agrees with the examiner’s report, the Secretary signs
it without further ado. If the Secretary disagrees with the examiner’s report and if the
Secretary “deems it advisable to do so,” the examiner’s proposed order is served on the
parties as a tentative order, and the parties are allowed a period of time (not exceeding 20
days) to file exceptions to the report and written argument or briefs in support thereof.503

500. 7 C.F.R. § 47.20(a), (c)–(i).
501. 7 C.F.R. § 47.20(k).
502. 7 C.F.R. § 47.21.
503. 7 C.F.R. § 47.23.
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APPENDIX A-2

CIVILIAN BOARD OF CONTRACT
APPEALS (CBCA)504

CBCA (housed within the General Services Administration) is an adjudicating
tribunal that is responsible for resolving contract disputes between private contractors
and most non-military federal agencies.505 CBCA also is responsible for resolving a
variety of other types of disputes involving the federal government. These include
federal employee monetary claims and disputes relating to Federal Crop Insurance,
Federal Motor Carrier Safety, and Indian Self-Determination.506
Under the Contract Disputes Act, a private contractor who has a contract dispute with an executive agency can take an “appeal” from an adverse decision of the
agency’s contracting officer to CBCA.507 Contractors have the choice of proceeding
before CBCA or litigating in the Court of Federal Claims.508 CBCA appeals are Type
B adjudication. The exclusive record principle applies.509 Unlike other Type B agencies,
CBCA awards attorney fees to prevailing private contractors under the Equal Access
to Justice Act.510

504. This appendix does not discuss the Armed Service Board of Contract Appeals. ACUS excluded
military and foreign affairs adjudication from the study because of resource constraints. The appendix
also does not discuss two contract-related schemes operated by General Accountability Office (GAO).
GAO’s scheme for making non-binding recommendations concerning bid protests (GAOBIDS0003)
appears to be Type C adjudication; neither the statute nor the regulations appear to call for an evidentiary hearing although GAO may hold hearings. See 31 U.S.C. §§ 3554(a), 3555; 4 C.F.R. pt. 21. GAO’s
scheme for resolving disputes relating to contracts by a legislative branch agency does appear to be
Type B adjudication, but the number of cases appears to be very small. The ACUS database does not
include this scheme. See 4 C.F.R. pt. 22 (these regulations parallel those of CBCA).
505. A 2006 statute consolidated numerous agency-specific boards of contract appeals into CBCA.
See Jeri Kaylene Somers, The Boards of Contract Appeals: A Historical Perspective, 60 Am. U. L. Rev. 745
(2011). CBCA is identified as GSAOCB0004 in the ACUS database.
506. ACUS website lists 11 case types. See Civilian Bd. of Contract Appeals, The Board, http://www.
cbca.gov/board/index.html (last visited July 11, 2018).
507. 41 U.S.C. § 7104(a).
508. Id. See Michael Schaengold, Choice of Forum for Government Contract Claims: Court of Federal
Claims vs. Boards of Contract Appeals, 17 Fed. Cir. B.J. 279 (2008).
509. 48 C.F.R. §§ 6101.9, .24.
510. 5 U.S.C. § 504(b)(1)(C)(ii); 48 C.F.R. §§ 6101.1(b)(2), .30.
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Panels of three Board Judges (BJs) usually hear CBCA cases. BJs have many of
the job protections enjoyed by ALJs. BJs must have at least five years of experience in
public contract law.511 Unlike most AJs, they are not subject to performance evaluations. As of July 2018, CBCA has 14 BJs.512
CBCA regulations prohibit ex parte communications by any person “directly
or indirectly involved in an appeal” to any Board member or Board staff.513 Because
the Board is an adjudicating tribunal, it has no need for a separation of functions
provision. The regulations contain no provision dealing with possible bias by BJs.
CBCA does not allow lay representation. Private parties can represent themselves,
and an officer can appear on behalf of a corporation.514
The procedural regulations contain elaborate rules for pleading and notice to
opposing parties.515 Electronic filing is permitted.516 BJs have subpoena power.517
The Board permits all forms of discovery (including depositions, interrogatories, and
requests for production), but discovery is permitted only to the extent authorized by
BJs. The Board may limit the frequency or extent of discovery if it would be burdensome or unduly expensive.518 BJs are authorized to conduct pre-hearing conferences.519
ADR is strongly encouraged, and the Board provides trained neutrals to attempt
to settle disputes by any ADR method (including mini-trials). ADR is even available
before an agency contracting officer has filed a written report (which is normally
required before a contractor can appeal to CBCA).520
CBCA’s rules provide that either party can waive an oral hearing and request
a decision based on documents in the file.521 The other party, however, may request
an oral hearing. When one party requests an oral hearing, the party who waived the
oral hearing is allowed to appear to cross-examine live witnesses. The rules direct BJs
to admit any relevant and material evidence including hearsay unless found to be
unreliable or untrustworthy. As to other matters relating to evidence, BJs look to the

511. 41 U.S.C. § 7105(b)(2)(B). Board judges (referred to Board Members in the statute) are subject to
removal in the same manner as ALJs.
512. Civilian Bd. of Contract Appeals, Judges, https://cbca.gov/board/judges.html (last visited July 11,
2018).
513. 48 C.F.R. § 6101.33(b)–(c).
514. 48 C.F.R. § 6101.5.
515. 48 C.F.R. pt. 6101.
516. 48 C.F.R. § 6101.1(b)(5)(iii).
517. 48 C.F.R. § 6101.16.
518. 48 C.F.R. § 6101.13–.15.
519. 48 C.F.R. § 6101.11.
520. 48 C.F.R. § 6101.54. See Civilian Bd. of Contract Appeals, Alternative Dispute Resolution, http://
www.cbca.gov/adr/index.html (last visited July 11, 2018).
521. 48 C.F.R. § 6101.18–.19.
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Federal Rules of Evidence for guidance.522 CBCA hearings are open to the public but
can be closed to protect confidential information.523 A written decision is required
based on evidence in the record and judicially noticed facts.524
The statute and regulations provide for small claims hearings if the dispute
involves $50,000 or less or the contractor is a “small business concern.” Small claims
hearings are heard by a single BJ and an accelerated time table.525 If the amount in
dispute is $100,000 or less, the regulations provide for an accelerated decision by
only two BJs.526
There is no procedure for higher-level administrative reconsideration of BJ
decisions. However, a party can request full Board reconsideration of a case in order
to secure uniformity of decisions or because of the case’s exceptional importance.
Such requests are disfavored.527 Either side can appeal CBCA decisions to the Court
of Appeals for the Federal Circuit.
Counting government contracts cases, CBCA decided 167 cases in 2017 (through
November 9), 201 cases in 2016, and 236 cases in 2015. In those years, it decided 140,
222, and 227 cases other than government contracts cases. Thus, the total caseload
was 307 in 2017 (up to November 9), 423 in 2016, and 463 in 2015.
If all cases were one-judge panels, the workload per judge in 2016 was about 30
per judge. If all cases were three-judge panels, the workload would be 90 per judge.
Therefore, for statistical purposes, I estimate the workload at about 60 cases per judge.

522. 48 C.F.R. § 6101.10.
523. 48 C.F.R. § 6101.21.
524. 48 C.F.R. § 6101.25.
525. 48 C.F.R. § 6101.52.
526. 48 C.F.R. § 6101.53.
527. 48 C.F.R. § 6101.28.
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APPENDIX A-3

DEBARMENT AND SUSPENSION

Government agencies have power to exclude private parties from entering into
transactional relationships with the government. These relationships include procurement contracts as well as non-procurement transactions such as loans or grants.
Exclusion consists of debarment for a period of time and suspension of the private
party from an existing relationship during investigation or litigation. The debarment
and suspension process is obviously quite important, both for the protection of the
government from irresponsible or corrupt contractors and to private parties doing
business with the government. Exclusion is not intended as punishment of errant
contractors but as protection for the government.
The procedural requirements that agencies must follow in making exclusion
decisions are set forth in two sets of regulations applicable to executive branch agencies
across the government. One set deals with contractual procurement, and the other
deals with non-procurement transactions. Each executive agency is expected to adopt
its own regulations to implement the government-wide exclusion regulations.528 Thus,
the procurement regulations differ from other Type B systems in that they authorize
hearing procedures that apply across the entire government and are administered by
many different agencies, each of which must adopt its own regulations.
The website of the Interagency Suspension and Debarment Committee
(ISDC)529 contains data on suspension and debarment activities across 24 agencies.530
According to the 2016 ISDC annual report, in FY 2016 there were 718 suspensions,
1,855 proposed debarments (which prevent the government from contracting with
the recipient until the matter is resolved), and 1,676 actual debarments for a total

528. Congress has considered centralizing the suspension and debarment process into a single enforcement agency, rather than the existing decentralized system, but such legislation has not advanced. See
Rhina M. Cardenal, Is Congress Overthinking Suspension and Debarment? How to Improve the System
Without Legislation, 49 Procurement Law., Winter 2014, at 3. Similarly, efforts to merge the two
systems of regulation have borne little fruit. Robert F. Meunier & Trevor B.A. Nelson, Is It Time for a
Single Federal Suspension and Debarment Rule?, 46 Pub. Cont. L.J. 553 (2017).
529. See text following note 563, for further discussion of ISDC.
530. See Letter from David M. Sims, Chair, ISDC, to Hon. Jason Chaffetz, Chairman, Committee
on Oversight & Government Reform, U.S. House of Representatives (Jan. 12, 2017), https://s3.amazonaws.com/sitesusa/wp-content/uploads/sites/272/2017/03/873-Report-FY-2016.pdf.
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of 4,249 actions.531 There were 3,555 referrals to agency suspension and debarment
officers (SDOs). These figures were about 10% lower in FY 2016 than in FY 2015.
The numbers of suspensions and debarments have been relatively stable since 2011.532
In addition, in FY 2016 there were 75 “administrative agreements.” Administrative
agreements are negotiated between agencies and private contractors to “improve the
ethical culture and corporate government processes of a respondent.” The agreements
avoid formal debarment, but are often accompanied by monitoring or other forms of
oversight. Finally, in FY 2016, there were 21 voluntary exclusions.
A. Procurement Contracts
The regulations relating to debarment and suspension in procurement contracts
are part of the Federal Acquisition Regulation or FAR.533 FAR is authorized by a statute that authorizes the Administrator of the General Services Administration (GSA)
to adopt regulations relating to procurement by executive branch agencies.534 The
statute requires that each agency head adopt “orders and directives” to “carry out” the
regulations. The statute makes no reference to the procedures that the agency should
implement the debarment and suspension function. FAR provides for a system of
evidentiary hearings to carry out the debarment and suspension function. Therefore,
such proceedings should be classified as Type B adjudication.535
FAR requires each agency to designate a “debarring official,” referred to herein
as a Suspension and Debarment Officer or SDO, although some agencies use different
titles. The SDO receives referrals of potential exclusion cases from within the agency and
makes the final determination whether exclusion should occur. The SDO must follow
the procedures spelled out in FAR. Debarments are normally for a three-year period.536
Debarment is a discretionary rather than a mandatory remedy. The regulations
provide various criteria that the SDO should consider when deciding whether debarment should take place (and, if so, for how long and whether it applies to the entire

531. The largest number of debarments were by the Army (339), HUD (192), DHS (280), Navy (186),
and EPA (143).
532. A GAO report in 2011 criticized the exclusion programs of various agencies and triggered a much
higher volume of exclusion actions in subsequent years.
533. 48 C.F.R. pt. 9, subpt. 9.4. See generally J. Michael Jones, Jr., A Mechanic’s View of the Government’s
Procurement Suspension and Debarment System: Time for a Major Change or a Little Tune-Up, 2013
Army Law. 32 (2013); Cardenal, supra note 528; Christopher Yukins, Cristiana Fortini Silva, & Mariana Avelar, A Comparative View of Debarment and Suspension of Contractors in Brazil and in the USA,
66 Admin. & Constit. L. Rev. (Brazil) 61 (2016).
534. 40 U.S.C. § 121(c).
535. Due process protections apply to exclusion proceedings, but FAR satisfies the requirements of due
process. IMCO v. United States, 97 F.3d 1422, 1427 (Fed. Cir. 1996); Girard v. Klopfenstein, 930 F.2d
738, 743 (9th Cir. 1991).
536. 48 CFR § 9.406-4(a)(1).
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company and also to its affiliates).537 Unless exempted, debarment by one agency
is effective throughout the executive branch.538 The government maintains a computer database (SAMS) which contains information on outstanding debarment and
suspension orders. Federal agencies must consult SAMS before making contracts or
engaging in non-procurement transactions.
The causes for debarment include conviction of various crimes or a civil judgment relevant to procurement. The section lists specific offenses (such as tax evasion,
various forms of theft, and intentionally affixing a Made in America label), and
includes commission of any other offense indicating a lack of business integrity or
business honesty that seriously and directly affects the present responsibility of a
government contractor or subcontractor.539 In addition, debarment can occur for
actions (even without a conviction or a judgment) such as willful failure to perform
the contract or violation of the drug-free workplace rules, having delinquent federal
taxes exceeding $3500, or “any other cause of so serious or compelling a nature that it
affects the present responsibility of the contractor or subcontractor.”540 In addition,
debarment can occur for failure to disclose violations of federal criminal law including
fraud, conflict of interest, bribery, violations of the False Claims Act, or significant
overpayments on the contract,541 Numerous statutes relating to procurement contain
provisions calling for mandatory (rather than discretionary) exclusion for purposes of
punishment, but do not provide for the procedures by which the agency carries them
out.542 FAR provides the necessary procedural ingredients for agencies to implement
the statutory exclusion provisions.
One frequent user of procurement debarment actions is Immigration and Customs Enforcement (ICE). Debarment occurs because of immigration violations, such
as knowingly employing undocumented employees. During an eight-month period
in 2009 (shortly after ICE implemented a new strategy of making use of debarment),
it debarred 45 businesses and 47 individuals.543 The provisions for hearings in FAR

537. 48 CFR § 9.406-1(a). Such factors include the public interest and whether the offending behavior
is likely to be repeated. For discussion of agency discretion not to apply debarment, see Kate M.
Manuel, Cong. Research Serv., RL34753, Debarment and Suspension of Government
Contractors: An Overview of the Law Including Recently Enacted and Proposed
Amendments 8–11 (2008).
538. 48 C.F.R. § 9.406-1(c)–(d).
539. 48 C.F.R. § 9.406-2(a).
540. 48 C.F.R. § 9.406-2(b)–(c). See Thomas B. Carr, The Black Hole of Debarment: Catch-All Clauses,
52 Procurement Law., Winter 2017, at 8.
541. 48 C.F.R. § 9.406-2(b)(1)(vi).
542. See, e.g., 41 U.S.C. § 8303(c) (directing three-year debarment for violating a “Buy American” provision in a procurement contract); 41 U.S.C. § 3144(b)(2) (directing three-year debarment for violating
the Davis-Bacon prevailing wage statute); 41 U.S.C. § 6504(b) (mandating three-year debarment for
violating minimum wage or child labor laws).
543. Michael J. Davidson & Jennifer L. Longmeyer-Wood, The ICE Suspension and Debarment Program Heats Up, 46 Procurement Law., Fall 2010, at 16.
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do not apply to debarments because of immigration violations. Instead the immigration statute provides for a Type A hearing for employers charged by DHS with
immigration violations.544
FAR requires agencies to establish procedures for adjudicating debarment issues
“that are as informal as is practicable, consistent with principles of fundamental
fairness.” After receiving a referral, the agency’s SDO must furnish a detailed notice
of its proposal to debar “sufficient to put the contractor on notice of the conduct
or transactions upon which it is based” and providing information on the agency’s
hearings and procedures and the effect of debarment.545
Essentially, FAR calls for a two-step adjudicatory process. Step one affords the
contractor “an opportunity to submit (in person, in writing, or through a representative) information and argument in opposition to the proposed debarment.”546 The
SDO then makes a decision on the basis of all the information in the administrative
record, including the contractor’s submission.
Step two applies if the contractor’s submission in opposition raises a genuine
dispute of material fact. In such cases, the SDO must afford the contractor an opportunity to appear with counsel, submit documentary evidence, present witnesses, and
confront any person the agency presents. Agencies must make a transcribed record
of the proceedings.547 It appears that there is little use of the step 2 proceedings; I
was advised that GSA, for example, never uses it because the exclusion proceeding
is dropped if there are disputed issues of material fact (and no indisputable grounds
for exclusion).
Whether step two is triggered, an SDO’s decision is based on all the information
in the administrative record. In step two cases, the deciding official must provide
written findings of fact, and the decision shall be based on the facts as found and
any other information in the record.548 Therefore, the regulations clearly call for an
evidentiary hearing and thus for Type B adjudication. The SDO may refer matters
involving disputed material facts to another official for findings of fact; the SDO
may reject such findings only after specifically determining them to be arbitrary and
capricious or clearly erroneous.549 In cases not based on a conviction or civil judgment,
the cause for debarment must be established by a preponderance of the evidence.

544. 8 U.S.C. § 1324a(e)(3).
545. 48 C.F.R. § 9.406-3(c). A number of agencies make use of show-cause letters which warn a
recipient that the agency’s debarment program is reviewing matters for potential referral to an SDO.
The letter gives the recipient an opportunity to respond prior to formal SDO action and may avoid
issuance of a proposed debarment which immediately excludes a contractor from doing business with
the government. According to the ISDC, 160 show cause letters were issued during FY 2016.
546. 48 C.F.R. § 9.406-3(b)(1).
547. 48 C.F.R. § 9.406-3(d). Step 2 does not apply if the action is based on a conviction or a civil
judgment.
548. 48 C.F.R. § 9.406-3(d)(1)–(2).
549. 48 C.F.R. § 9.406-3(d)(2)(ii).
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The regulations also provide for suspension of a contractual relationship. “Suspension is a serious action to be imposed on the basis of adequate evidence, pending
the completion of investigation or legal proceedings, when it has been determined that
immediate action is necessary to protect the government’s interest.”550 The causes for
suspension are similar to those for debarment.551
The agency must provide detailed notice when a contractor is suspended,
giving the cause and notifying the contractor that it can submit information and
argument in opposition to the suspension and obtain a hearing to determine disputed material facts.
Hearings are provided after the contractor has been suspended.552 In actions not
based on an indictment, an evidentiary hearing shall be provided if there is a genuine
dispute of material fact. However, no hearing is provided if the Department of Justice
advises that substantial interests of the Government in pending or contemplated
legal proceedings based on the same facts as the suspension would be prejudiced. If
a hearing is provided, agencies shall afford the contractor an opportunity to appear
with counsel, submit documentary evidence, present witnesses, and confront any
person the agency presents.553 The standard is “adequate evidence,” rather than preponderance of the evidence.554
The individual agency regulations adopted pursuant to the FAR usually add
little detail to the provisions of the FAR.555 One variation occurs at the Department
of Labor. If there is a disputed issue of material fact, the fact-finding proceeding is
conducted by an ALJ (although the proceeding is not under the APA); the final
decision is made by the SDO.556
The regulations adopted by the Department of Defense are more detailed than
those adopted by other agencies.557 DOD’s regulations describe the two-step adjudicatory process sketched by the FAR. The SDO first conducts a presentation of
matters in opposition to the suspension or proposed debarment.558 At stage 1, matters
in opposition may be presented in person, in writing, or through a representative. An
in-person presentation is an informal meeting, nonadversarial in nature. The SDO
may question the contractor or its representative. If the SDO determines that there
are genuine disputes of material fact, the SDO proceeds to step two by selecting a

550. 48 C.F.R. § 9.407-1(b)(1).
551. 48 C.F.R. § 9.407-2
552. 48 C.F.R. § 9.407-3(b)(1).
553. 48 C.F.R. § 9.407-3(b)(2).
554. 48 C.F.R. § 9.407-2(a).
555. See, e.g., HHS, 48 C.F.R. § 309.407-3; USDA, 48 C.F.R. § 406-3; EPA, 48 C.F.R. § 1509.406-3.
556. 48 C.F.R. § 2909.406-3.
557. As noted above, note 531, the military makes more exclusion decisions than other executive
branch agencies.
558. 48 C.F.R. ch. 2, app. H-103.
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“designated fact finder” to conduct the fact-finding proceeding.559 An official record
is made of this proceeding. The Government’s representative and the contractor have
an opportunity to present evidence. The contractor may appear in person or through a
representative. Neither the Federal Rules of Evidence nor Federal Rules of Civil Procedure govern; hearsay may be presented and will be given appropriate weight. Witnesses
may testify in person and are subject to cross-examination. The designated fact-finder
will prepare written findings of fact and determine disputed facts by a preponderance
of the evidence.560 The SDO determines whether to continue the suspension or debar
the contractor based on the entire administrative record including the findings of
fact. The regulations do not explain who the designated fact-finder is and contain no
provisions relating to separation of functions or ex parte communications.
The Department of Energy and GSA regulations are similar to DOD’s.561 In step 1,
the SDO conducts a meeting with the respondent. The respondent (appearing personally or through an attorney or other authorized representative) may present and explain
evidence that causes for debarment do not exist, and present evidence of mitigating facts
and arguments concerning the proposed debarment. In step 2, if there are disputed
issues of material fact, a “fact finding official” conducts a fact-finding conference. The
purpose is to provide the respondent an opportunity to dispute material fact through
the submission of oral and written evidence. The fact-finding official delivers written
findings of fact to the SDO. The SDO’s decision is based on the administrative record,
which includes the fact-finding official’s written findings.
B. Non-Procurement Transactions
Executive Order 12,549562 authorizes a comparable set of regulations that apply to
non-procurement debarment and suspension by executive agencies, including federal
financial and nonfinancial assistance and benefit programs.563
EO 12,549 also called for the establishment of the ISDC to monitor and facilitate
the process of exclusion across the government—both procurement and non-procurement contracts. The ISDC coordinates the process by selecting the lead agency
to conduct debarment proceedings when several different agencies are affected. The
ISDC website contains the current names of persons responsible for administering
non-procurement debarment and suspension.564
559. 48 C.F.R. ch. 2, app. H-104.
560. 48 C.F.R. ch. 2, app. H-106.
561. 48 C.F.R. §§ 509.4, 909.406-3. The two-step process consists of an informal presentation to the
SDO. If there is a dispute of material facts, a fact-finding proceeding is conducted by an official who
prepares findings of fact for the SDO.
562. Exec. Order No. 12,549, 51 Fed. Reg. 6370 (Feb. 21, 1986).
563. 2 C.F.R. § 180.970. Covered transactions include grants, scholarships, loans, subsidies, insurance
and numerous other classifications.
564. Interagency Suspension and Debarment Comm., About the ISDC, https://www.acquisition.gov/
isdc-home (last visited Jan. 24, 2018).
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The EO provides that executive departments and agencies shall issue regulations
governing implementation of the EO that are consistent with guidelines issued by the
Office of Management and Budget (OMB) and the ISDC.565 The departments and agencies shall “follow government-wide criteria and government-wide minimum due process
procedures when they act to debar or suspend participants in affected programs.”566
OMB described its non-procurement debarment and suspension regulations as
“guidelines” rather than as regulations. The applicable regulations must be adopted
by each agency.567 The regulations are written in a refreshing user-friendly format.
Persons excluded under FAR from procurement transactions are also excluded by the
non-procurement regulations and vice-versa.568 In some cases, specific statutes require
exclusion of grantees, using procedures set forth in the regulations.569
Procedures for suspension and debarment under the non-procurement regulations closely resemble the two-step format set forth in the FAR regulations, although
they are presented in question-and-answer form.570 “In deciding whether to suspend
or debar you, a Federal agency handles the actions as informally as possible, consistent
with principles of fundamental fairness.”571

565. Exec. Order No. 12,549, supra note 562. The various sets of agency regulations add little to
the OMB guidelines. For a list of agency regulations implementing the guidelines, see Interagency
Suspension and Debarment Comm., Debarment Regulations, https://www.acquisition.gov/isdc-debarment-regulations (last visited July 11, 2018).
566. Exec. Order No. 12,549, supra note 562, at § 2(a).
567. 2 C.F.R. §§ 180.5, .15, .20.
568. 2 C.F.R. §§ 180.115, .140
569. See Drug-Free Workplace Act, 41 U.S.C. § 8103(b)(2), which references Executive Order No.
12,549 and regulations prescribed to implement it.
570. 2 C.F.R. pt. 180, subpt. G (suspension) and subpt. H (debarment).
571. 2 C.F.R. § 180.610(a).
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APPENDIX A-4

DEPARTMENT OF ENERGY572

A. General Information
The Department of Energy’s (DOE) Office of Hearings and Appeals (OHA)
adjudicates a number of different case types.573 The caseload of OHA (measured by
cases opened in FY 2016) is as follows.574
OHA Caseload
Personnel security

106

Whistleblowing

20

FOIA & privacy

80

Exceptions, med certify, safety, others

45

TOTAL CASELOAD

251

This appendix focuses on the first two categories, personnel security and whistleblowing, which appear to be examples of Type B adjudication. The remaining case
types do not involve evidentiary hearings and thus do not qualify as Type B adjudication.
OHA has approximately 12 administrative judges (AJs) who provide initial hearings. They work full-time as judges and are subject to performance evaluation based
on the timeliness and quality of their work product. They are paid in the GS 13–15
range. Their title was formerly Hearing Officer; the AJ title was adopted in 2013. The
purpose of the change was to enhance their stature and to bring them in line with the
titles used at other federal agencies. Assuming 251 cases per year distributed among
the 12 AJs, their caseload is about 21 cases per year or about 1.75 cases per month.
OHA reports that its average case processing time is a brisk 88 days. In personnel
security cases, the time from submission of transcript to the decision is 15 days.
In initial hearings, DOE is represented by a lawyer. About half of respondents
are represented (some representatives are non-lawyers).
572. Thanks to Dan Solomon, Ann Augustyn, and Alan Morrison for their assistance.
573. The identifier code in the ACUS database is DOENOOH0001.
574. Dep’t of Energy, Office of Hearings & Appeals, FY 2016 Ann. Rep.
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Discovery is permitted in all types of cases in the discretion of the AJ.575
AJs have subpoena authority. Discovery includes depositions and documents produced in response to a subpoena.576 Ex parte contacts are prohibited. Parties receive
notice of the hearing. The exclusive record principle applies.577
The formality of DOE hearings varies by case type. About 20% are document-only hearings (meaning no live-witness testimony or cross-examination). Of
cases involving oral testimony, about 10% involve in-person hearings, and 90% are
conducted via video. Some hearings are open to the public; others (such as security
clearance cases) are closed.578
The AJ drafts the agency decision. In some cases, there is a time limit for preparing the decision (60 days for whistleblower cases, 45 days for medical certificate cases).
Cases are generally heard on a first-in/first-out basis. However, this may vary
based upon the complexity of the issues presented and unforeseen difficulty in
scheduling the hearing. Web-based electronic filing is permitted. Final decisions are
published or posted on the agency website (except for those involving classified or
other sensitive information). The record is not closed at the initial decision phase but
can be supplemented on agency appeal. The regulations do not establish the contents
of the record.
Voluntary ADR is available at all stages, from before the case or claim is filed to
the post-hearing stage. ADR includes mediation and arbitration as well as neutral evaluation, mini-trials, peer review panels, ombudsmen, and partnering. ADR is provided
by an agency ADR official who is part of the Alternative Dispute Resolution Office
(ADRO).579 During FY 2016, ADRO opened 53 new ADR cases (32 mediations, 21
facilitations and consultations). ADRO conducted 14 mediations of which 8 cases
settled.580 Most mediations concern equal employment opportunity issues, an area
where OHA does not otherwise provide for hearings.
A party who is dissatisfied with the decision of an AJ may appeal to the Director
of OHA.581 The appeal structure varies depending on which case type is involved.
Appeals are considered on a document-only basis and must be decided within 60
days. During FY 2013, four appeals were initiated. OHA decided four appeals (all
whistleblower cases), some which were initiated in earlier years. In security clearance
cases, a further appeal is available to the Secretary of Energy.

575. See 10 C.F.R. § 708.28(b)(1)–(2).
576. See 10 C.F.R. §§ 708.28, 1003.8.
577. 10 C.F.R. § 1003.62(g).
578. See 10 C.F.R. § 1003.62(a).
579. See Office of Conflict Prevention and Resolution, Dep’t of Energy, The ADR Office, http://
energy.gov/oha/services/applications-exceptions/alternative-dispute-resolution (last visited July 11,
2018).
580. See note 574.
581. See 10 C.F.R. § 1003.30.
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B. Detailed Treatment of Personnel and Whistleblowing Cases
This section provides more detailed description of the Type B adjudication handled by DOE OHA. The hearings provided in personnel security and whistleblowing
cases are quite formal and serve as examples of Type B adjudication that is as formal
or even more formal than many Type A adjudication.
1.Generic Hearing Regulations
Procedural regulations set forth in 10 C.F.R. Part 1003 govern OHA hearings.
These regulations provide for an evidentiary hearing if it would materially advance
the proceeding.582 “If material factual issues remain in dispute after an application
or appeal has been filed, the Director of OHA or his designee may issue an order
convening an evidentiary hearing in which witnesses shall testify under oath, subject
to cross-examination, for the record and in the presence of a Presiding Officer. A
Motion for Evidentiary Hearing should specify the type of witness or witnesses whose
testimony is sought, the scope of questioning that is anticipated, and the relevance of
the questioning to the proceeding.”583
The regulations described below furnish additional procedural protections
beyond those provided in the generic hearing regulations.
2. Personnel Security Cases
Personnel security cases (sometimes referred to as security clearance cases) involve
challenges by DOE or contractor employees to a decision that the employee be denied
or deprived of access to classified material (which presumably means that the applicant does not get the job or an employee loses the job). The regulations584 applicable
to personnel security cases implement Executive Orders 12,968585 and 10,865.586
Executive Order 10,865 provides for a right to an adjudicatory hearing for a person
denied access to classified material or whose access is revoked. It appears that the
right to an evidentiary hearing arises from these executive orders rather than from
an applicable statute.587
The regulations provide for detailed notice by the Manager of a DOE facility to
an employee about whom there is substantial doubt concerning access.588 The notice
582. See 10 C.F.R. § 1003.62(a).
583. 10 C.F.R. § 1003.62(e).
584. 10 C.F.R. pt. 710.
585. See Exec. Order No. 12,968, 60 Fed. Reg. 40,245 (Aug. 7, 1995).
586. See Exec. Order No. 10,865, 25 Fed. Reg. 1583 (Feb. 24, 1960).
587. 42 U.S.C. § 2201 provides that the agency is authorized to “hold such meetings and hearings as the
[agency] may deem necessary or proper. . . .” A summary of procedures for the Human Reliability Program, 10 C.F.R. pt. 712, which involves continuous evaluation of employees in sensitive positions for
problems such as drug and alcohol abuse and which can also trigger OHA hearings is not included
here because there were no OHA hearings under the Human Reliability Program in 2013 or 2014.
588. See 10 C.F.R. § 710.21.
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(which shall be as comprehensive and detailed as national security permits) states the
information that creates a substantial doubt. The employee can choose to have the
Manager make the decision without a hearing or can elect a hearing before an AJ. If
the employee selects a decision by the Manager without a hearing and it is unfavorable,
the employee can appeal the decision to the DOE Headquarters Appeals Panel.589
If the employee opts for an AJ hearing, the case is assigned to an AJ. The AJ has
subpoena authority. The AJ holds a prehearing conference and conducts a hearing
within 90 days after a request for hearing is received.590 Hearings are not open to the
public. At the hearing, the employee can be represented by a “person of his own choosing.”591 The AJ is prohibited from engaging in ex parte contacts (with the exception of
procedural or scheduling matters). “DOE Counsel shall assist the [AJ] in establishing
a complete administrative hearing record in the proceeding and bringing out a full
and true disclosure of facts, both favorable and unfavorable.”592 It is unclear whether
this provision permits ex parte contact between DOE Counsel and the AJ.
All witnesses are subject to cross-examination, “if possible,” and “[w]henever
reasonably possible, testimony shall be given in person.”593 The AJ has the duty to
assure that restricted data or national security information is not disclosed to persons
who are not authorized to receive it. Formal rules of evidence do not apply, but the
Federal Rules of Evidence may be used as a guide to “assure production of the most
probative evidence available.”594 The regulations provide that the utmost latitude
shall be permitted with respect to relevancy, materiality, and competence. Every
effort is made to obtain the best evidence available.
Hearsay is admissible in the AJ’s discretion for good cause without strict adherence
to technical rules of admissibility and shall be accorded such weight as circumstances
warrant. Cross-examination can be dispensed with if the witness is a confidential
informant and disclosure of identity would be harmful to the national interest or in
various circumstances relating to jeopardy to restricted data or national security. The
employee receives a summary or description of the information in these circumstances
and appropriate consideration is given to the lack of opportunity to cross-examine.595
The AJ’s decision must contain detailed and specific fact findings and a statement
of reasons. To decide favorably to the employee, the AJ must determine that “the grant
or restoration of access authorization to the individual would not endanger the common
defense and security and would be clearly consistent with the national interest.”596
589. See 10 C.F.R. § 710.22(c).
590. See 10 C.F.R. § 710.25.
591. 10 C.F.R. § 710.26(a).
592. 10 C.F.R. § 710.26(d).
593. Id.
594. 10 C.F.R. § 710.26(h).
595. See 10 C.F.R. § 710.26(m).
596. 10 C.F.R. § 710.27(a).
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Both the employee and the Manager can appeal an unfavorable decision to the
DOE Headquarters Appeals Panel. The Appeals Panel has three members consisting
of DOE headquarters employees: the Principal Deputy Chief for Mission Support
Operations, a DOE attorney designated by the General Counsel, and an individual
designated by the head of the DOE Headquarters element with cognizance over the
employee. Only one member of the Appeal Panel shall be from the “security field.”597
The Appeals Panel can consider new information submitted by either side, provided
that the other side has an opportunity to respond. Appeals must be decided within 45
days of the closing of the administrative record.598 A further appeal to the Secretary
of Energy is afforded whenever an individual was denied an opportunity to cross-examine adverse witnesses; the Secretary must personally review the record.599
3. Whistleblower Complaints
Detailed regulations prescribe the rules for hearings in the case of whistleblower
complaints by employees of DOE contractors. The statutory authorization for these
hearings is somewhat unclear. The regulations claim to be authorized by various
statutes, most of which confer rulemaking authority on DOE but do not provide for
hearings. The most relevant of the statutes cited as authority600 (a statute administered
by the Department of Labor) calls for “notice and opportunity for public hearing” in
connection with whistleblower complaints.601 However, DOL apparently ruled that
it had no jurisdiction over complaints by DOE contractors. Consequently, DOE had
to adopt its own whistleblower regulations.602 Thus, it may be these regulations do
not implement any statutory hearing requirement. However, by virtue of the detailed
procedural regulations, they should be considered Type B adjudication. The regulations are a welcome example of user-friendly language; they are directed to “you,”
meaning the complaining employee.
Whistleblower complaints by employees of DOE contractors allege retaliation
by employers for disclosure of information concerning dangers to public or worker
safety, substantial violations of law, fraud, or gross mismanagement. They also concern complaints for retaliation because an employee participated in congressional
proceedings or refused to participate in dangerous activities.603 DOE encourages
informal settlement of whistleblower complaints, including through mediation.604

597. 10 C.F.R. § 710.29(b).
598. See 10 C.F.R. § 710.29(f).
599. See 10 C.F.R. § 710.31.
600. 42 U.S.C. § 5851(b)(2)(A).
601. See id.
602. See 10 C.F.R. pt. 708. See Criteria and Procedures for DOE Contractor Employee Protection
Program, 57 Fed. Reg. 7533 (Mar. 3, 1992).
603. See 10 C.F.R. § 708.1.
604. See 10 C.F.R. § 708.20.
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If complaints are not resolved informally, the employee can choose to have the
complaint referred to OHA for an investigation followed by a hearing. The employee
can also elect a hearing without an investigation. If there is an investigation by OHA,
the investigator “may not participate or advise in the initial or final agency decision”
and may not supervise or direct the AJ who hears the case.605
An OHA AJ schedules a hearing to be held by the 90th day after receipt of
the complaint or after issuance of the investigator’s report, whichever is later.606
The AJ may recommend, but not require, mediation at any time before the initial
agency decision.607
At the hearing, the parties have the right to be represented by a person of their
own choosing or proceed without representation. Testimony is given under oath, and
witnesses are subject to cross-examination. Formal rules of evidence do not apply,
but OHA may use the Federal Rules of Evidence as a guide. A court reporter makes
a transcript. The AJ may order discovery on a showing that discovery is designed to
produce evidence regarding a matter that is unprivileged and relevant. The AJ may
permit discovery by deposition on oral examination or written questions; written
interrogatories; production of documents or things; permission to enter upon land
or other property for inspection; and requests for admission. The AJ may issue subpoenas for appearance of witnesses or production of documents or physical evidence.
The AJ has typical powers over evidence and other procedural matters. “The [AJ] is
prohibited, beginning with his or her appointment and until a final agency decision
is issued, from initiating or otherwise engaging in ex parte (private) discussions with
any party on the merits of the complaint.”608
The employee has the burden of proof to establish by a preponderance of the
evidence that he or she made a disclosure, participated in a proceeding or refused to
participate in dangerous activity, and that such act was a contributing factor to alleged
retaliatory acts by the contractor. Once the employee meets this burden, the burden
shifts to the contractor to prove by clear and convincing evidence that it would have
taken the same action without the employee’s disclosure, participation, or refusal.609
The AJ must issue an initial decision after receiving the transcript of the hearing
(or if later, after receiving post-hearing submissions). The initial decision contains
appropriate findings, conclusions, an order remedying retaliation (if retaliation is
found), and the factual basis for each finding. The AJ may rely on, but is not bound
by, the investigator’s report.610

605. See 10 C.F.R. §§ 708.22(b), .25(b).
606. See 10 C.F.R. § 708.26.
607. See 10 C.F.R. § 708.27.
608. 10 C.F.R. § 708.28(b)(9).
609. See 10 C.F.R. § 708.29.
610. See 10 C.F.R. § 708.30(c).
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A dissatisfied party may file a notice of appeal with the OHA Director within 30
days after receiving the initial decision. Such an appeal is necessary to exhaust administrative remedies. Within 15 days, the appellant must file a statement identifying the
issues it wishes the OHA Director to review. The Director may consider any source
of information that will advance the evaluation, provided that all parties have a right
to respond to third party submissions.611 The appeal decision must be issued within
60 days after the record is closed.
In whistleblower cases, a second level of appeal is provided. Any party can file a
petition for review by the Secretary of Energy within 30 days after receiving an appeal
decision from the OHA Director. The Secretary will reverse or revise an appeal decision by the OHA Director only under “extraordinary circumstances.”612
C. FOIA & Privacy Act Requests
The regulations provide for written appeals to OHA of denials by DOE officials
of requests for documents under the Freedom of Information Act (FOIA) and for
information about an individual under the Privacy Act.613 These appeals consist of
written reviews without an oral hearing and without opportunity for further review
within the agency.
The review is initiated based on a request filed by the private party whose request
for information or documents was denied. The 2014 Annual Report states that a
majority of the FOIA requests are from labor unions seeking to determine whether
DOE contractors are complying with federal wage and hour laws. The average case
processing time is 12 days. The most common type of case concerns the adequacy of
DOE’s search in response to a FOIA request.
These written reviews are not required to be conducted by any statute or other
source of law and are not evidentiary hearings. The reviews provide an opportunity
for the requestor to make arguments concerning the applicability of FOIA or the
Privacy Acts and presumably to introduce relevant factual material. The reviews do
not seem constrained by an exclusive record requirement.
D. Exceptions
The case type concerns the process for granting exceptions or waivers to generally
applicable DOE requirements, such as energy conservation standards. An exception
is granted where the application of a rule or order would constitute a gross inequity,
serious hardship, or unfair distribution of regulatory burdens. Presumably, these cases
are governed by the generic procedure regulations of Part 1003 and probably involve
an exchange of written documents. Again, exception proceedings would appear to
be Type C adjudication.
611. See 10 C.F.R. § 708.33(b)(3).
612. 10 C.F.R. § 708.35(d).
613. See 10 C.F.R. §§ 1004.8, 1008.11.
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E. Medical Certificates
Under the regulations, OHA provides a review of determinations that a security officer at DOE or its contractors are medically unqualified for the job. The
determination can be challenged by an “independent review” by DOE’s Office
of Health, Safety, and Security following which OHA provides a final review.614
The regulations do not explain what sort of procedure OHA should use in conducting
its final appeal beyond an examination of the file and the security officer’s written
request that states “with specificity” the basis for disagreement with the independent review.615 It can be inferred, therefore, that no oral proceeding is available. This
appears to be Type C adjudication as no evidentiary hearing is provided.

614. See 10 C.F.R. § 1046.15(c)–(d).
615. See id.
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Federal Administrative Adjudication Outside the Administrative Procedure Act

APPENDIX A-5

DEPARTMENT OF HEALTH AND HUMAN
SERVICES (HHS): DEPARTMENTAL
APPEALS BOARD (DAB)616

DAB is an appellate board consisting of 5 members primarily concerned with
resolving grant-making disputes. It provides de novo consideration of appeals from
final written decisions by various offices within HHS relating to both mandatory
grant programs (such as Medicaid) and discretionary grant programs (such as Head
Start). It adjudicates disputes involving termination of grants or accounting (such as
disallowance of expenditures by the grantee). The Board also reviews disputes concerning non-renewal of a previous grant.617 There are no procedures for protesting
decisions at the initial grant stage although informal conferences often take place in
such situations. In addition to deciding grant cases, DAB also hears appeals from
decisions of ALJs as required by numerous statutes administered by HHS.618
Grant cases are heard by a panel of three members (headed by a “presiding Board
member”).619 The panel is assisted by a group of experienced staff members who are
attorneys or persons from other relevant disciplines such as accounting and who serve
no function other than assisting the Board.620 DAB has traditionally heard grant cases
in board panels, rather than by delegating the initial decision function to AJs. Because
it is relatively current in its grant case workload, and because grant cases normally
present no issues of disputed fact, there appears to be little support for converting
the panel system to one in which AJs make the initial decision.
DAB proceedings are Type B adjudication. Under some grant programs under
which the DAB resolves disputes, statutes require HHS to provide a reasonable notice
and opportunity for a full and fair hearing if a grant is terminated, reduced, or not

616. Various DAB staff members assisted me in writing this section. They requested anonymity.
617. See 45 C.F.R. pt. 16, app. A.
618. See 42 C.F.R. § 498.1 (providing list of statutes giving rise to Type A proceedings).
619. The Board has published a helpful appellate manual. Health & Human Servs., Appellate
Division Practice Manual (2017), https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-board/practice-manual/index.html (last visited July 11, 2018).
620. 42 C.F.R. § 16.5.
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renewed.621 In other cases, the statutes are not clear as to whether an evidentiary
hearing must be provided since they require only “a thorough review of the issues,
taking into account all relevant evidence.”622 In any event the regulations clearly call
for evidentiary hearings in all DAB grant cases.623
In the ten-year period from 2007–2016, the Board received 544 appeals in grant
cases. Of these appeals, 238 were closed by decisions. The federal party was the prevailing party in 182 of the appeals. Of the remainder, 18 were decided wholly in favor
of the non-federal party, 28 were split decisions, 6 modified the agency decision that
was appealed, and 3 were remanded without a decision. As of May 2017, 32 appeals
were pending in grant cases.
In 2016, according to its website, DAB handed down 95 decisions. In 2015, it
delivered 57 decisions; 2014, 58 decisions; 2013, 61 decisions. Some 2015 cases were
delayed by an office move which partly accounts for the large number of 2016 decisions. One-quarter to one-third of these decisions concern grant disputes (the rest are
appeals of ALJ decisions that do not involve grant disputes). Most grant cases involve
accounting disputes such as disallowance of outlays by the grantee. A few involve
termination of grants because of grantee misconduct. (The substantive standards to
be applied to grant disputes are set forth in 42 CFR Part 75).
Under the regulations, most DAB cases are decided on the written record consisting of documents and written arguments, plus oral argument. The panel chair
may conduct an informal conference to deal with procedural issues during which
the parties can make an oral presentation and discuss settlement. Pretrial conferences
may be held by phone or video.624
The Board can supplement the written record by conducting a hearing involving
witnesses, testimony, and cross-examination if it finds that “there are complex issues
or material facts in dispute the resolution of which would be significantly aided by
a hearing, or if the board determines that its decisionmaking otherwise would be
enhanced by oral presentations and arguments in an adversary, evidentiary hearing.”
Such hearings are preceded by a preliminary conference.625 The presiding Board
member generally will admit evidence unless it is clearly irrelevant, immaterial, or
unduly repetitious. Evidence may be presented by phone or video. However, the use
of trial-type proceedings is infrequent.
Where the amount in dispute is $25,000 or less, the Board uses expedited procedures. Under the expedited process, each party submits any relevant background
documents with a cover letter containing its arguments. Briefs are filed simultaneously, rather than sequentially. Then the presiding Board member arranges a telephone
621. Under Head Start, see 42 U.S.C. § 9841(a)(3)(B).
622. 42 U.S.C. § 1316(e)(2)(B).
623. 45 C.F.R. pt. 16.
624. Pretrial conferences are discussed in detail in the Board’s Manual. See 45 C.F.R. §§ 16.4, 16.8, 16.10.
625. 42 C.F.R. pt. 16.
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conference call to receive oral comments. Relatively few cases are decided under
expedited procedures because most grant disputes involve much larger amounts. The
$25,000 figure has not been adjusted for many years.
The chair will assure that no Board or staff member will serve where his or her
impartiality could reasonably be questioned.626 Ex parte communications to Board
or staff about matters involved in an appeal without notice to the other parties are
prohibited. Board members and staff shall not consider any information outside the
record.627 The ban on ex parte communications does not apply to communications
among the Board members and staff, communications concerning the Board’s
administrative functions or procedures, requests from the Board to a party for a
document, and material which the Board includes in the record after notice and
opportunity to comment.
The regulations encourage the use of mediation techniques to settle disputes about
grants (even disputes that have not yet reached the Board). The Board may suggest the
use of mediation and will provide a mediator or assist in selecting one. The Board will
internally insulate the mediator from any board or staff members assigned to handle the
appeal.628 A staff member estimated that of every 100 grant cases, about 30 are settled by
agreement of the parties, and 5 are mediated. The remainder go to hearing.
At DAB grant hearings, self-representation and lay representation are permitted
but are used infrequently. Discovery usually consists of an exchange of documents.
Grantees are entitled to receive sufficient information from government files to prepare their cases. The Board can order production of relevant information and could
order depositions and interrogatories, but this is rare and discouraged. The Board has
no subpoena power. DAB hearings are open to the public and documents can be filed
electronically. Board decisions are precedential, and these precedential decisions cover
many recurring issues. Oral arguments may be presented by phone or video. DAB
decisions cannot be appealed to any higher authority within HHS.

626. 42 C.F.R. § 16.5(d).
627. 42 C.F.R. §§ 16.17(a), 16.21(a).
628. Mediation is discussed in detail in the Board’s Manual. 42 C.F.R. § 16.18.
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137

APPENDIX A-6

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION629

The primary work of the Equal Employment Opportunity Commission (EEOC)
is enforcement of statutes and regulations against private companies and state/local
employers—first through investigation and conciliation, and failing that, through
federal-court litigation. However, the EEOC serves an adjudicatory function in
connection with complaints of employment discrimination by employees of certain
federal agencies. Covered agencies include executive branch agencies, non-uniformed
employees of the military, the United States Postal Service, and a few others. The
EEOC functions as a neutral arbiter between federal employees and their employer
agencies.630
The adjudication is Type B because the EEOC’s procedural regulations provide
for an evidentiary hearing. The statutes that require EEOC to enforce anti-discrimination principles against the federal government do not require hearings but authorize
the EEOC to adopt procedural regulations.
There are five case types: (i) discrimination based on race, color, religion, sex, and
national origin; (ii) discrimination based on age for employees aged 40 or older; (iii)
discrimination based on disability; (iv) discrimination based on genetic information;
and (v) unequal pay based on gender.631
The process by which federal employees adjudicate discrimination claims is
carefully prescribed and is idiosyncratic.632 EEOC maintains a helpful website.633
An ACUS study about EEOC’s federal sector adjudication evaluated the status and
organizational placement of EEOC’s administrative judges (AJs).634
629. Thanks to Chai Feldblum and Anne Torkington for assistance with this chapter.
630. In the ACUS database, this function is coded as EEOCFEDS0002 at the hearing level and EEOCGOVT0001 at the appellate level.
631. See 29 C.F.R. pt. 1614 (setting forth procedures for all five case types).
632. See generally Robert E. McKnight, Jr., Representing Plaintiffs in Title VII Actions,
ch. 14 (3d ed. & 2014 supp.).
633. See Equal Emp’t Opportunity Comm., Federal Sector, http://eeoc.gov/federal/ (last visited July
11, 2018).
634. See Wiener et al., supra note 75. Much information from the ACUS study is incorporated in
this appendix.
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139

The following discussion assumes that an “employee” works for a covered agency
or was rejected when applying for employment by a covered agency. The employee
believes that he or she is the victim of a prohibited form of discrimination. The discussion omits various exceptions and other nuances which are unnecessary for this
general discussion.
The employee must first consult an Equal Employment Opportunity (EEO)
counselor at the employing agency within 45 days from the day the alleged discrimination occurred or the employee became aware of it. The counselor explains
the employee’s rights and duties under Title VII. Only claims discussed during the
counseling period can be the basis for a complaint and eventually litigated before
an EEOC AJ. The counselor offers the employee a choice to participate in EEO
counseling or in an ADR process (including mediation).635 If the dispute does not
settle, the counselor issues a notice of right to file a complaint. This notice triggers a
15-day period for filing a formal complaint with the employing agency (normally on
a standard form complaint document).
The employing agency can either dismiss the complaint (for a variety of reasons)
or conduct an impartial investigation that must be completed within 180 days.636
ADR continues to be available during the investigation. When the investigation is
completed, the employing agency issues a notice giving the complainant two choices:
(i) request a hearing before an EEOC AJ; or (ii) ask the agency to issue an immediate
final decision.637
The regulations relating to AJ hearings provide that the employing agency can
make an offer of resolution prior to the hearing.638 If the complainant rejects it and
the AJ decision provides a less favorable result than the offer of resolution, the complainant can be denied recovery of attorney fees. The AJ can order discovery from the
employee or the employer agency (including depositions, interrogatories, disclosure of
documents, or requests for admission)639 but lacks subpoena power over third parties
(such as ex-employees of the employer agency). The hearing is closed to the public. AJs
do not apply the rules of evidence, but shall exclude irrelevant or repetitious evidence.
The AJ can impose sanctions for non-disclosure of evidence. Summary judgment is
possible as to an issue or to the entire case if there is no issue of material fact.640 The
hearing is transcribed by a court reporter; the employing agency pays for a verbatim

635. See 29 C.F.R. § 1614.105.
636. See 29 C.F.R. § 1614.106.
637. See 29 C.F.R. § 1614.108(f).
638. See 29 C.F.R. § 1614.109.
639. See 29 C.F.R. § 1614.109(f)(1). For a detailed treatment of discovery, see Equal Emp’t Opportunity Comm’n, Handbook for Administrative Judges ch. 4 (2002) [hereinafter EEOC
Handbook], https://www.eeoc.gov/federal/ajhandbook.cfm#hearing.
640. 29 C.F.R. § 1614.109(g).
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transcript if needed. The exclusive record principle applies.641 The AJ must furnish
a decision within 180 days after receiving the file. Neither the regulations nor the
EEOC’s annual reports discuss whether videoconferencing is used for hearings.
The AJ Handbook defines and prohibits AJs from deciding cases in which they
have a conflict of interest or are biased in favor of or against any party.642 It also
prohibits ex parte communications.643 There is no provision in the regulations or
the Handbook for separation of functions, but such provision would be superfluous
because the EEOC functions as a tribunal to decide disputes between employees and
other federal agencies and does not have investigating or prosecuting staff members
in federal employment cases.
The AJ’s decision is submitted to the employer agency, which has 40 days to issue
a final decision. The final decision states whether the agency agrees with the AJ decision and will grant any relief the judge ordered or whether it elects to reject or modify
the AJ decision. If the employing agency rejects or modifies the AJ’s decision, it must
file an administrative appeal with the EEOC Office of Federal Operations (OFO) at
the same time that it issues its final decision on the complaint.
A complainant might disagree with the employing agency’s final decision in one
of two situations. First, the complainant requested a final agency decision instead of
an AJ hearing. Second, the complainant requested an AJ hearing but disagrees with
the agency’s final order issued after the AJ hearing. In either case, the complainant can
appeal the agency’s final decision to OFO within 30 days (or can proceed directly to
court for a de novo trial without further exhausting EEOC remedies).644
The EEOC’s decision on such appeals is made by appellate attorneys in OFO
who review the entire file. The appeal does not involve oral proceedings, only examination of the written record and written statements or briefs.645 The EEOC appellate
decision is de novo, but no new evidence is submitted. The substantial evidence rule
applies to review of the AJ’s findings of fact. Complainants or agencies can request
reconsideration of the appeal decision.
A complaining employee (but not the employer agency) can seek de novo review
in the federal district court after exhausting this complaint process (and in some
641. 29 C.F.R. § 1610(h); EEOC Handbook, supra note 639, at ch. 7H.
642. EEOC Handbook, supra note 639, at ch. 7, III.A.1–2. The bias provision is noteworthy: “Bias:
The Administrative Judge should not participate in any conduct during the hearing that presents
the appearance of or demonstrates actual bias in favor of or against one of the parties. For example,
it is improper for the Administrative Judge to eat lunch with a representative of one party during the
course of the hearing. If a party or a witness accuses the Administrative Judge of bias during the course
of the hearing, the Administrative Judge should document the allegations and the response on the
record.”
643. Id. at ch. I.E.
644. If the complainant goes to court, the action is not an appeal from agency action. Rather, it is an
original action, subject to an exhaustion requirement. The AJ’s decision may be entered as evidence,
though the courts give it no deference.
645. See 29 C.F.R. § 1614.403 (providing for filing statements or briefs with OFO).
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situations without exhausting it, as in the situation when the complainant requested
a final agency decision and does not appeal that decision).646 Alternatively, if an
employee is satisfied with the EEOC’s decision but the employing agency has not
complied with it, the employee can seek judicial enforcement.647
The EEOC currently employs approximately 110 AJs. In FY 2013, employees
sought AJ hearings in 7,077 cases. In FY 2013, 6,789 cases were resolved at the AJ
level; the number of cases pending at the end of the year was 8,313. In FY 2014, 8,086
cases were filed, and 6,347 were resolved at the AJ level. Cases pending at end of FY
2014 were 10,363. The average processing time for each case increased from 383 days
in FY 2013 to 419 days in FY 2014. Thus, the workload per AJ is about 65 cases per
year or about 1.3 per week.648 Of the cases heard by AJs in FY 2014, 126 found that
discrimination had occurred.
The EEOC currently employs about 30 appeals attorneys. In FY 2014, OFO
received 4,003 appeals from final agency decisions and resolved 3,767 of them. 4,541
were pending at the end of FY 2014. By comparison, OFO received 4,244 such appeals
in FY 2013. Thus, the workload of the appeals attorneys is about 125 per year or about
2.5 per week.
A complainant can be represented by an attorney or a lay advocate (such as a
union representative).649 If the representative is an employee of the agency, the representative must be given time during the workday to prepare the case. There is provision
for the recovery of attorney fees if the employee is the prevailing party, but only if the
employee was represented by an outside attorney.
Alternative dispute resolution (ADR) is extensively employed in the EEOC’s
federal employee process.650 EEOC encourages federal agencies to provide ADR
in employment discrimination cases including counseling (which is mandatory as
explained above), negotiation, mediation and settlement conferences at various points
in the process, including before and after the complaint is filed.
The AJs and appeals attorneys are subject to performance evaluation. They are evaluated quarterly and annually. Their opinions are read by supervisors and by other judges.
Judges or appeals attorneys perceived to be doing a poor job are placed on a performance
improvement plan The AJs are almost all paid at the GS 14 levels (7% were GS 13s).651

646. See Wiener et al., supra note 75, at 14–15; Chandler v. Roudebush, 425 U.S. 840 (1976) (federal
employee claiming prohibited discrimination entitled to de novo judicial trial).
647. Wiener et al., supra note 75, at 14–15
648. The statistics in this paragraph and the following paragraph are drawn from the EEOC’s Annual
Report on the Federal Work Force, Part I, I-21 to I-25 (2014), http://www.eeoc.gov/federal/reports/
fsp2014/upload/Final-FY-2014-Annual-Report-Part-I.pdf (last visited May 3, 2018).
649. See 29 C.F.R. § 1614.605.
650. See 29 C.F.R. §§ 1614.102(b)(2), .105(b)(2), .603; EEOC Handbook, supra note 639, at ch. 3;
Equal Emp’t Opportunity Comm’n, Federal Sector Dispute Resolution Fact Sheet, http://eeoc.gov/
federal/adr/facts.cfm (last visited July 11, 2018).
651. See Wiener et al., supra note 75, at 43.
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APPENDIX A-7

ENVIRONMENTAL PROTECTION
AGENCY 652

The EPA conducts a large volume of adjudication.653 Most adjudication involving
EPA enforcement (such as assessment of major civil penalties) is conducted as Type A
adjudication.654 EPA employs 4 ALJs who preside over Type A adjudicatory hearings.655
Adjudication involving minor civil penalties and the issuance, modification,
reissuance, and revocation of various environmental permits is conducted as Type B
adjudication.656 Generally, the applicable statutes relating to permitting provide for
a “public hearing,”657 language that does not trigger the APA’s Type A adjudication
provisions. EPA’s Type B adjudication is governed by detailed regulations.658 After
an initial decision in either Type A or Type B adjudication, the parties can seek
reconsideration in the form of an appeal to an internal EPA appellate body called the
Environmental Appeals Board (EAB).659 The EAB is the final EPA decisionmaker on
administrative appeals under all major environmental statutes the EPA administers.

652. Thanks to Kathie Stein, Jonathan Fleuchaus, and Randy Hill for assistance with this appendix.
The ACUS database EPAOOALJ0001 contains 48 case types.
653. See generally Randolph L. Hill et al., Internal Administrative Appeals of Governmental Decisions on
the Environment, in Environmental Decisionmaking (Leroy C. Paddock et al. eds., 2016); Anna L.
Wolgast et al., The United States Environmental Adjudication Tribunal, 3 J. Ct. Innovation 185 (2010).
654. Regulations for EPA APA hearings are set forth in 40 C.F.R. pt. 22. See Wolgast, supra note 653,
at 188–90.
655. Envtl. Prot. Agency, About the Office of Administrative Law Judges, http://www2.epa.gov/
aboutepa/about-office-administrative-law-judges-oalj (last visited July 12, 2018).
656. EPA treats termination of a permit before its expiration date as a Type A proceeding as it is akin
to a sanction. See 40 C.F.R. § 22.3; Environmental Appeals Board, Practice Manual 4, 36
(2013) [hereinafter EAB Practice Manual],
https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/8f612ee7fc725edd852570760071cb8e/
889f7aab01cf481c85257afd0054d515/$FILE/Practice%20Manual%20August%202013.pdf.
657. See, e.g., 33 U.S.C. § 1342(a), relating to NPDES permits.
658. 40 C.F.R. pt. 124. See EPAOPRMT0006 in the ACUS database. Many of the permit programs
are administered by state environmental agencies; the regulations require that states provide procedures parallel to those used by the EPA. See 40 C.F.R. § 124.1.
659. The EAB is described in 40 C.F.R. § 1.25(e) and discussed further below. See note 660.
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The EPA originally treated permit cases as Type A adjudication, but transitioned
to a non-APA system in 1980 and 2000.660 The First Circuit upheld EPA’s decision to
conduct permitting hearings as Type B adjudication.661 That decision accorded Chevron deference to uphold the EPA’s interpretation of statutes using the term “public
hearing” to permit EPA to conduct Type B proceedings.
A. Minor Civil Penalties
Smaller civil penalties under several statutes, including the Clean Water Act, are
adjudicated as Type B cases. The smaller civil penalties are referred to as Class I cases;
larger civil penalties are referred to as Class II.662
The regulations relating to Class I cases provide that the presiding officer is a
regional judicial officer (RJO). The RJO is an EPA attorney rather than an ALJ.663
The detailed regulations covering penalty adjudication are virtually the same for Class
I and Class II cases, except that RJOs preside in Class I cases.664 Discovery in Class
I cases is limited.665 The regulations contain detailed provisions preventing ex parte
communication666 and assuring separation of functions in Class I cases.667 Provisions
relating to bias are the same for RJOs and ALJs.668 RJOs can exercise subpoena power

660. 40 C.F.R. § 124.21.
661. Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006) (interpreting
language in the Clean Water Act).
662. See 33 U.S.C. § 1319(g)(2). Class I penalties under Clean Water Act cannot exceed $10,000 per violation with a maximum of $25,000. The APA does not apply to adjudication of Class I penalties, but
the statute calls for an evidentiary hearing in such cases. “Such hearing shall not be subject to section
554 or 556 of Title 5, but shall provide a reasonable opportunity to be heard and to present evidence.”
Class II penalties, which cannot exceed $10,000 per day with a $125,000 maximum, are adjudicated
under the APA. Similarly, see 42 U.S.C. § 300h-2(c)(3) (Safe Drinking Water Act); 42 U.S.C. § 9609(a)
(Superfund); 42 U.S.C. § 11045(b)(1)–(2) (Emergency Preparedness). See generally William Funk,
Close Enough for Government Work? Using Informal Procedures for Imposing Administrative Penalties,
24 Seton Hall L. Rev. 1 (1993). EPA also adjudicates civil penalty cases referred to it by the Army
Corps of Engineers (ACE). Interview with Lance Wood and Max Wilson of ACE.
663. 40 C.F.R. § 22.51.
664. The excluded provisions are 40 C.F.R. sections 22.11, 22.16(c), 22.21(a), 22.29. These sections
relate to intervention, non-party briefs, and interlocutory appeals.
665. The normal discovery rules do not apply in Class I proceedings except that discovery of the
respondent’s economic benefit from the violation and respondent’s ability to pay civil penalties is
permitted. 40 C.F.R. §§ 22.19, 22.52.
666. 40 C.F.R. § 22.8.
667. “[An RJO] shall not have performed prosecutorial or investigative functions in connection with
any case in which he serves as a Regional Judicial Officer. [An RJO] shall not knowingly preside over
a case involving any party concerning whom the [RJO] performed any functions of prosecution or
investigation within the 2 years preceding the commencement of the case. [An RJO] shall not prosecute enforcement cases and shall not be supervised by any person who supervises the prosecution of
enforcement cases, but may be supervised by the Regional Counsel.” 40 C.F.R. § 22.4(b).
668. 40 C.F.R. § 22.4(d).
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and order pre-hearing conferences.669 The Federal Rules of Evidence do not apply.670
ADR is encouraged.671
In the period 2010-2015, 26 Class I civil penalties were adjudicated by RJOs and
11 were appealed to EAB. In that period, ALJs adjudicated 6 Class II penalties.672
B. Initial Decisions to Grant, Deny, or Terminate Permits
Broadly speaking, the regulations create a notice-and-comment system for
making initial permitting decisions. The process is collaborative and institutional.
This procedure applies both to the issuance of (or refusal to issue) a permit and
to termination of a permit.673 The regional administrator (or state authority) first
issues a draft permit or draft denial of an application, accompanied by a fact sheet
explaining the decision including any conditions placed on the permit.674 Members
of the public and local governments are notified of the draft decision and are invited
to submit comments.675
EPA holds a public hearing if the Regional Director finds a significant degree
of public interest in a draft permit (or on the Director’s own motion).676 The regional
administrator designates a presiding officer (usually a regional judicial officer) who is
responsible for its scheduling and orderly conduct of the hearing.677 Any person may
submit oral or written statements and data concerning the draft permit. The public
comment period on the draft permit is extended to the close of the public hearing
and may be extended further.678 A tape recording or written transcript of the hearing
shall be made available to the public.679 Persons must “raise all reasonably ascertainable
issues and submit all reasonably available arguments supporting their position by the
close of the public comment period (including any public hearing)” and supply all
supporting materials during that period.680

669. 40 C.F.R. § 22.4(c)(8)–(9).
670. 40 C.F.R. § 22.22(a).
671. 40 C.F.R. § 22.18(b).
672. Email from Kathie Stein to Michael Asimow (Feb. 23, 2016).
673. See 40 C.F.R. § 124.13. Some permit revocation proceedings are handled as Type A adjudication.
674. 40 C.F.R. §§ 124.6–.8.
675. 40 C.F.R. §§ 124.10–.11.
676. 40 C.F.R. § 124.12(a)(1)–(3). See generally Sierra Pac. Indus., 16 E.A.B. 1, 27–39 (2013) (available
on EAB website). The Sierra Pacific opinion held that the Director’s decision to deny a public hearing
was clearly erroneous. It enumerated the factors to be considered in determining whether the “significant degree of public interest” standard has been met. These include the materiality of issues in the
request for a hearing, the number of requests and comments, media coverage, significance of the issues,
and demographic information such as environmental justice concerns.
677. 40 C.F.R. § 124.12(b). The presiding officer is ordinarily a regional judicial officer (RJO).
678. 40 C.F.R. § 124.12(c).
679. 40 C.F.R. § 124.12(d).
680. 40 C.F.R. § 124.13.
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The regional director issues a “final permit decision” after the public comment
period concludes. The final permit decision contains a response to comments specifying which provisions, if any, of the draft permit were changed in the final decision. It
also includes the reasons for the changes and describes and responds to all significant
comments on the draft permit.681
C. Appeal to the EAB
The EAB hears appeals from EPA enforcement and permit decisions (but not
decisions made under state authority). The EAB was created in 1992 “to recognize
the growing importance of EPA adjudicatory proceedings as a mechanism for implementing and enforcing the environmental laws and to ‘inspire confidence in the
fairness of Agency adjudication.’”682 It alleviated decisionmaking burdens on the EPA
Administrator.683 The EAB is independent of all Agency components and answers
only to the Administrator.684
When the EAB is the decisionmaker in an enforcement proceeding (whether
Type A or Type B), its members and their decisional advisers are prohibited from
engaging in ex parte discussion on the merits of the proceeding with agency staff
members who performed a prosecutorial or investigative function in the proceeding
(or a factually related proceeding) or with any interested person outside EPA.685 The
principle of exclusive record applies to the EAB.686
Any person who filed comments on the draft permit or participated in a public
hearing on the draft permit may file a petition for review, including review of any
conditions imposed by the permit.687 The EPA will consider only issues that had
been raised by the petitioner or by others at the permit issuance stage.688 The EAB
assigns a lead judge to the case who works with an assigned staff attorney to determine
whether the case is properly within the scope of the Board’s jurisdiction, whether
it was timely filed, and whether it should be dismissed on jurisdictional grounds
without an adjudication of the merits. For the vast majority of appeals, the case then
proceeds to briefing.689

681. 40 C.F.R. § 124.17.
682. EAB Practice Manual, supra note 656, at 1. See also Changes to Regulations to Reflect the
Role of the New Environmental Appeals Board in Agency Adjudications, 57 Fed. Reg. 5320 (Feb. 13,
1992) (amending 40 C.F.R. 1.25 to establish the EAB). The preamble has a thorough discussion of the
reasons for establishing the Board.
683. See Wolgast, supra note 653, at 186–87.
684. Id.
685. 40 C.F.R. § 22.8.
686. 40 C.F.R. § 124.18.
687. EAB permits electronic filing of documents. EAB Practice Manual, supra note 656, at 11.
688. Id. at 43.
689. Wolgast, supra note 653, at 191.
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The EAB may hold oral argument on its own initiative or at its discretion if
requested. The request must explain why oral argument should be permitted.690
Opinions are published in Environmental Appeals Decisions and posted online.691
The EAB acts as an appellate body. It considers cases solely on the administrative
record692 and exercises a limited scope of review of the initial permit decision. A petition to the EAB must be based on a “finding of fact or conclusion of law that is clearly
erroneous or an exercise of discretion or an important policy consideration that the
[EAB] should, in its discretion, review.’’693 The EAB’s review power is exercised sparingly because most permit issues should be resolved at the regional level.694 However,
the Board thoroughly considers the merits of the issues presented to it and will remand
a permit if the region’s analysis is incomplete or its rationale unclear, if the region failed
to follow required procedures, or if the region failed to address significant comments.
The EAB is composed of four Environmental Appeals Judges appointed by
the EPA Administrator.695 The Board sits in randomly-assigned panels of three and
decides each matter by a majority vote. Each EAB judge is a career member of the
government’s Senior Executive Service with significant experience in EPA permit
and enforcement matters.696 An EAB judge shall recuse him or herself from deciding
a particular case if the member in previous employment performed prosecutorial or
investigative functions with respect to the case, participated in the preparation or
presentation of evidence in the case, or was otherwise personally involved in the case.697
Statistics concerning the regional appeal process are not available. I was advised
that EAB has considered about 600 appeals over the last 10 years, about two-thirds of
the cases involving permit appeals and one-third penalties.698 As of September 2015,
of 1,058 final decisions issued by EAB (including Type A, Type B, and CERCLA
reimbursement cases), approximately 91% were not judicially reviewed. Of the 9% of

690. 40 C.F.R. § 124.19(h). Video conference facilities are available so counsel can argue from a remote
location. Documents can be filed electronically. 40 C.F.R. §124.19(i)(ii); see Wolgast, supra note 653,
at 192.
691. Wolgast, supra note 653, at 192.
692. 40 C.F.R. § 124.19(a)(4)(ii); Hill, supra note 653, at 10.
693. 40 C.F.R. § 124.19(a)(4)(i).
694. In re Charles River Pollution Control Dist., 16 E.A.D. 622, 624 (EAB 2015) (citing Consolidated
Permit Regulations, 45 Fed. Reg. 33,290, 33,412 (May 19, 1980)).
695. The Board is assisted by eight attorneys who serve as counsel to the Board and three administrative professionals. Wolgast, supra note 653, at 191; Email from EAB Judge Kathie Stein to Michael
Asimow (Feb. 23, 2016).
696. Hill, supra note 653, at 2.
697. 40 C.F.R. § 1.25(e). Board members are also disqualified by reason of financial bias. Wolgast supra
note 653, at 191.
698. Email from EAB Judge Kathie Stein to Michael Asimow (Feb. 23, 2016).
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cases in which review was sought, 2% were settled on appeal or voluntarily dismissed,
6% were won by EPA, and less than 1% were reversed.699
The EAB encourages ADR and offers the services of an EAB judge acting as a
neutral evaluator and mediator. Video-conferencing equipment is available for use
in ADR proceedings.700
The EAB also considers petitions for reimbursement of reasonable costs incurred
by persons who have complied with orders issued by EPA or another federal agency
under CERCLA to abate actual or threatened releases of hazardous substances. The
statute provides for a reimbursement petition to the President.701 The President delegated his authority to decide claims for reimbursement to the EPA Administrator702
who re-delegated that authority to the EAB.703
The Board has established procedures for submission and review of reimbursement petitions. Under these procedures, petitioners must demonstrate that they were
not liable for response costs or that EPA’s selection of the ordered response action was
arbitrary and capricious. If the petition raises fact issues, EAB can designate an EPA
employee who had no prior involvement in the matter to serve as a hearing officer
and issue a recommended decision. EAB may also decide to hold oral argument. If
reimbursement is granted, there is a further proceeding to determine the amount.
Reimbursement decisions are reviewable by a de novo proceeding in federal court.
D. Releases from Toxic Waste Facilities
EPA also uses a streamlined form of Type B adjudication to resolve issues relating
to corrective measures following the release into the environment from a hazardous
waste facility.704 The Resource Conservation and Recovery Act (RCRA) calls for a
“public hearing” in such cases. The Type B procedure that EPA employs in RCRA
cases shows that it is possible to provide the safeguards implied by an evidentiary
hearing even in situations requiring urgent action.
Under the regulations,705 the Regional Administrator (RA) starts the proceeding
by issuing an Initial Administrative Order (IAO) which contains the administrative
record produced during the investigative process and proposed corrective measures.
The respondent triggers the “public hearing” procedure by filing a response. The
699. Id.
700. Envtl. Appeals Bd., EAB FAQ, ¶ 40, https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/General+Information/Frequently+Asked+Questions?OpenDocument (last visited July 12, 2018); Envtl.
Appeals Bd., Alternative Dispute Resolution Program Information Sheet.
701. CERCLA § 106, 42 U.S.C. § 9606(a), (b)(2).
702. Exec. Order No. 12,580, 52 Fed. Reg. 2923 (Jan. 29, 1987).
703. Envtl. Prot. Agency, Redelegation of Authority under CERCLA and SARA, R-14-27 Petitions
for Reimbursement (May 25, 1988).
704. 42 U.S.C. § 6928(b), (h).
705. 40 C.F.R. pt. 24. The streamlined procedure does not apply if EPA seeks to suspend or revoke a
hazardous waste permit or assess a civil monetary penalty.
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Regional Judicial Officer (or other EPA attorney) serves as the presiding officer (PO).
The PO cannot have had prior contact with the case and is prohibited from conducting any ex parte communications with outsiders or with staff members serving as
prosecutors or investigators in the case.706 The PO orders an “expeditious” schedule
setting the “public hearing” within 45 days. The respondent must file a detailed memorandum setting forth its position on all issues, including proposed modifications of
the IAO. The respondent can also request that not more than 25 questions be put to
the RA concerning factual issues in the case. If the PO approves the questions, the
RA must respond in writing within 14 days. The PO can order either side to provide
additional information and can exercise subpoena power.707
The hearing consists of oral arguments and rebuttals by each side. The PO can
put questions to either side, but there is no direct testimony or cross-examination.
The respondent can introduce new documents only if it can establish that the documents could not have been previously submitted.708 The PO submits a recommended
decision; either side has 21 days to submit comments on it. The RA makes the final
decision; there is no appeal to the EPA administrator or the EAB in these cases. Both
the recommended and final decisions are subject to the exclusive record principle,
meaning that they must be based solely on material in the record.709 This procedure
was judicially upheld.710

706. 40 C.F.R. § 24.13.
707. 40 C.F.R. § 24.14.
708. 40 C.F.R. § 24.15.
709. 40 C.F.R. § 24.17.
710. Chem. Waste Mgmt., Inc. v. EPA, 873 F.2d 1477 (D.C. Cir. 1989). Prior to the adoption of these
regulations, EPA used Type A adjudicatory procedure for RCRA orders, whether or not they involved
license revocation or civil penalties, even though the statute called only for a “public hearing.” It then
adopted the streamlined Type B procedure for cases involving only corrective actions without license
revocation or civil penalties. In Chemical Waste Management, the D.C. Circuit upheld the EPA’s interpretation of the term “public hearing,” using Chevron methodology because the term is ambiguous
and EPA’s interpretation was reasonable.
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APPENDIX A-8

EXECUTIVE OFFICE OF
IMMIGRATION REVIEW 711

This appendix discusses the adjudicatory process in immigration cases, including disputes relating to admissibility, removal (formerly referred to as deportation),
and asylum.712 The Executive Office of Immigration Review (EOIR), a division of
the Department of Justice, is responsible for conducting adjudicatory hearings and
administrative appeals in immigration cases.713 This Appendix considers adjudicatory
evidentiary hearings required by law, but excludes informal adjudication that precedes
evidentiary hearings in immigration cases or entirely supplants them.714
Immigration Courts (ICs) conduct adjudicatory hearings. Immigration judges
(IJs) preside at IC hearings. IJs are supervised by the Chief Immigration Judge.
Decisions of IJs are appealed to the Board of Immigration Appeals (BIA). Judicial
opinions and academic scholarship criticize the quality of IC and BIA decision-making, question the independence of the EOIR decisionmakers, and advance a variety

711. Thanks to Dana Leigh Marks, Russell Wheeler, Jill Family, and Jennifer Chacon for assistance
with this appendix.
712. For a summary of the removal process, see Lenni B. Benson & Russell R. Wheeler, Enhancing
Quality and Timeliness in Immigration Removal Adjudication 9–12 (June 7, 2012) (report to Admin.
Conf. of the U.S.), https://www.acus.gov/report/immigration-removal-adjudication-report. Many
immigration cases are criminal prosecutions, but these are not discussed in this memo. This administrative process is DOJXEOIR0001 in the ACUS database which lists 11 case types.
713. See 8 C.F.R. § 1003.0. EOIR also conducts hearings through its Office of the Chief Administrative Hearing Officer (OCAHO) in cases involving employer sanctions, anti-discrimination provisions,
and document fraud. These Type A hearings are not discussed in this Appendix.
714. Numerous adjudicatory decisions by immigration personnel do not trigger adjudicatory hearings
and thus should be considered Type C adjudication. For example, there is no right to an adjudicatory
hearing in connection with expedited removal by a DHS officer at ports of entry of an alien who makes
no claim to refugee status. 8 U.S.C. § 1225(b)(1)(A)(i). See Jennifer Lee Koh, Removal in the Shadows of
Immigration Courts, 90 S. Cal. L. Rev. 181 (2017) (vast majority of removal orders are not reviewable
by Immigration Court).
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of restructuring proposals.715 Such criticisms and proposals are beyond the scope of
this appendix and will not be further addressed.
A. Immigration Court
There are presently about 334 IJs in 58 ICs, although EOIR is trying to hire more.716
Each IJ on average currently handles more than 1,800 matters per year, although
per-judge caseloads range from less than 1,000 to over 3,000.717 IJs have been subject
to performance evaluation since 2008; the impact of these evaluations is subject to
debate.718 The Attorney General has imposed production quotas on IJs requiring
them to conclude at least 700 cases per year with less than a 15% remand rate in
order to obtain a satisfactory performance evaluation.719
Respondents (that is, non-citizens subject to removal proceedings) may face
waiting times of several years. In FY 2016, the IC received 328,112 cases and completed
273,390.720 There were 518,545 pending cases at the end of FY 2016.721 The backlog
has increased steadily from 262,681 cases at the end of FY 2010. Because many respondents are held in detention, the lengthy waiting times are a matter of serious concern,
although EOIR does prioritize cases of respondents in detention.

715. See, e.g., Stephen H. Legomsky, Restructuring Immigration Adjudication, 59 Duke L.J. 1635 (2010);
Emily Ryo, Detained: A Study of Immigration Bond Hearings, 50 Law & Soc’y Rev. 117 (2016) (inconsistent results in bond hearings); Appleseed, Reimagining the Immigration Court Assembly
Line: Transformative Change for Immigration Justice System (2012), http://www.appleseednetwork.org/wp-content/uploads/2012/03/Reimagining-the-Immigration-Court-Assembly-Line.
pdf.
716. See generally Benson & Wheeler, supra note 712, at 6–7, for discussion of the legal status of IJs.
EOIR is severely underfunded, a reality that constrains the hiring of additional IJs or providing them
with additional staff support. Id. at 31–32. Additional appropriations allocated in FY 2016 have
permitted hiring of additional personnel. Some IJs have administrative responsibilities and thus do not
carry full caseloads.
717. For analysis of IJ workloads, see id., at 24–30. These are much heavier caseloads than in other
federal Type B adjudications. Id. at 27.
718. See Legomsky, supra note 715, at 1662–63, arguing that the evaluations focus mostly on productivity
rather than on outcomes. Benson and Wheeler state that the evaluation process is subject to potential
manipulation, but they encountered little evidence of it. Benson & Wheeler, supra note 712, at 106–10,
117–18. The President of the National Association of Immigration Judges is critical of performance
evaluations. Email from Dana Leigh Marks to Michael Asimow, Dec. 18, 2015.
719. Attorney General Jeff Sessions, Remarks to the Executive Office of Immigration Review Legal
Training Program (June 11, 2018).
720. Exec. Office for Immigration Review, U.S. Dep’t of Justice, FY 2016 Statistics Yearbook 1 (2017) [hereinafter EOIR FY 2016 Statistics Yearbook].
721. Id. at W1. As of September 2017, the backlog was over 600,000 cases. PBS News Hour, How a
“Dire” Immigration Court Backlog Affects Lives, Sept. 18, 2017, https://www.pbs.org/newshour/show/
dire-immigration-court-backlog-affects-lives.
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Detailed regulations (supplemented by a practice manual) provide the rules of
practice at IC proceedings.722 IC jurisdiction commences when the Department of
Homeland Security (DHS) files a charging document (often called the “Notice to
Appear”) with an IC and serves it on the respondent.723 An attorney represents DHS.
Generally, the first encounter between a respondent and an IC is a “master calendar”
proceeding at which an IJ explains the respondent’s rights, notifies the respondent of
the right to retained counsel, and schedules further proceedings.724
The respondent may be represented by an attorney (at no expense to the government) who is eligible to practice in any state and is registered with EOIR.725 EOIR
permits representatives to make a limited appearance (for example appearing in a
bond or motions proceeding without having to represent the respondent in other proceedings). If the respondent is unrepresented, the respondent can request additional
time to hire an attorney. EOIR provides respondents with lists of pro bono providers.
EOIR also permits lay representation in IC proceedings according to detailed
regulations.726 Permitted lay representatives include law students,727 law graduates
not yet admitted to the bar,728 reputable individuals with a pre-existing relationship

722. See 8 C.F.R. pt. 1003, subpt. C and pt. 1240, subpt. A; Exec. Office for Immigration
Review, Dep’t of Justice, Immigration Court Practice Manual (Dec. 2016) [hereinafter
Practice Manual].
723. See 8 C.F.R. §§ 1003.13–.15; Practice Manual, supra note 722, ¶ 4.2.
724. Benson & Wheeler, supra note 712, at 14–15.
725. 8 C.F.R. § 1003.16. According to EOIR, approximately 55% of respondents before the IC are represented. See Exec. Office for Immigration Review, U.S. Dep’t of Justice, FY 2014 Statistics
Yearbook F1 (2017). However, Eagly & Shafer conclude that only 37% of respondents had counsel in
removal proceedings (using as a sample all cases decided between 2007 and 2012), and only 45% of that
number had representation at all IC hearings. Less than 2% of respondents facing removal secured pro
bono representation from nonprofits or law school clinics. Ingrid V. Eagly & Steven Shafer, A National
Study of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev 1, 7 (2016). The discrepancy arises
from the fact that respondents with counsel are involved in more proceedings than unrepresented respondents; consequently, counting only proceedings inflates the percentage of parties who are represented.
Only about 14% of respondents held in detention were represented. Success rates of respondents represented by counsel were much better than for unrepresented parties. In addition, Eagly & Shafer report
that the presence of counsel produced substantial efficiency gains. See also Benson & Wheeler, supra note
712, at 56 (reporting that almost all IJs believe that the presence of attorneys enhances efficiency and
makes their jobs easier); Ryo, supra note 715, at 30–32 (represented detainees have much better results in
bond hearings than unrepresented detainees).
726. 8 C.F.R. pt. 1292; Practice Manual, supra note 722, at ch. 2.
727. The student must file a statement that he or she is participating under the direct supervision
of a faculty member, licensed attorney, or accredited representative, in a legal aid program or clinic
conducted by the law school or non-profit organization and is appearing without remuneration from
the respondent.
728. The law graduate must file a statement that he or she is appearing under the supervision of a
licensed attorney or accredited representative without remuneration. In the case of law students
or graduates, the IJ (or other official before whom he or she wishes to appear) has discretion not to
permit such appearance or to require the presence of the supervising faculty member, attorney, or
accredited representative.
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to the person represented,729 accredited representatives,730 and an accredited official
of a foreign government to which the respondent owes allegiance. Both attorney and
lay representatives practicing before the IC or BIA are subject to disciplinary sanctions.731 Non-lawyer immigration specialists, visa consultants, and “notaries” are not
authorized to represent parties before the IC.732
At hearings, EOIR makes no special provisions for self-represented respondents.
Through its Office of Legal Access Programs (OLAP), EOIR operates the Legal
Orientation Program (LOP) which funds nonprofit organizations that provide
services to litigants, including training of attorneys and lay representatives. OLAP
also launched the Immigration Court Helpdesk (ICH) which provides information
to self-represented persons who are not in detention. It maintains Self-Help Legal
Centers in some IC facilities; these are bulletin boards providing resources in English
and Spanish, including “how-to” guides. Its website also contains forms, “self-help”
materials, a “virtual law library,” and various IC manuals.733
The statute and regulations make no provision for ADR. However, an IJ may
schedule a pre-hearing conference to narrow issues, obtain stipulations, exchange
information voluntarily, and otherwise to simplify and organize the proceeding.734
The ACUS study of IC procedures indicates that IJs used various techniques to
narrow the issues, but that prehearing conferences are not routine (largely because of
caseload pressures). The study recommends better utilization of various devices to
narrow the issues and improve pre-hearing document sharing.735 It also recommended
that the ICs employ pro se law clerks to assist self-represented parties.
The regulations and the practice manual relating to the IC and the BIA do not
require separation of functions or prohibit ex parte contacts. However, the Ethics

729. Practice Manual, supra note 722, ¶ 2.9. The relationship may be as a relative, neighbor, clergyman, business associate, or personal friend. The pre-existing relationship requirement may be waived
in cases where adequate representation would not otherwise be available. The IC must give permission for this representation. Such permission shall not be granted with respect to any individual who
regularly engages in immigration and naturalization practice or preparation or holds himself out to the
public as qualified to do so.
730. Accredited representatives work for non-profit charitable organizations recognized by the Board
that make only nominal charges for representation. Such representatives must be of good moral character and be accredited by the Board. 8 C.F.R. § 1292.2; Practice Manual, supra note 722, ¶ 2.4.
731. 8 C.F.R. § 1292.3.
732. Practice Manual, supra note 722, ¶ 2.7.
733. This information on EOIR’s assistance to self-represented parties is taken from Vogelmann, supra
note 310, at 37–40.
734. 8 C.F.R. § 1003.21(a); Practice Manual, supra note 722, ¶ 4.18. The IJ may also order any party to
file a pre-hearing statement of position that may include stipulated facts, a statement that the parties
have communicated in good faith to stipulate to the fullest extent possible, a list of proposed witnesses
and what they will establish, a list of and copies of exhibits, the time required to present the case, and a
statement of unresolved issues. The IJ may also require both parties to make any evidentiary objections
regarding matters in the pre-hearing statement.
735. Benson & Wheeler, supra note 712, at 68–74.
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and Professionalism Guide for Immigration Judges prohibits ex parte contacts (unless
expressly authorized by law). The Guide permits an IJ to “consult with court staff
and court officials, including supervisors, whose functions are to aid the Immigration Judge in carrying out the Immigration Judge’s adjudicative responsibilities, or
with other [IJs], provided the [IJ] makes reasonable efforts to avoid receiving factual
information that is not part of the record, and does not abrogate the responsibility to
personally decide the matter.” 736
Neither the regulations nor the practice manual contains provisions on bias;
however, the Ethics and Professionalism Guide requires IJs to be impartial and avoid the
appearance of prejudice or bias, and a memorandum outlines procedures for issuing
recusal orders in immigration proceedings.737
IJs have subpoena power and can order the taking of depositions of witnesses
who are not available to testify at the hearing.738
IC hearings are generally conducted in person or through video conference.739
Video conference hearings are generally used to hear cases of respondents in detention740 and are quite controversial.741
The IC provides interpreters for the native language of the respondent.742 It has
embarked on a program to provide full and complete interpretation to all respondents
in court proceedings but has had some difficulties in doing so.743
At IC hearings (often referred to as individual calendar or merits hearings), respondents are provided with a reasonable opportunity to examine the evidence against them,

736. Dep’t of Justice, supra note 275, at Rule XXXII(2).
737. Id. at Rules V, IX.
738. 8 C.F.R. § 1003.35; Practice Manual, supra note 722, ¶ 4.20.
739. Telephone hearings are also possible but only with consent of the respondent. 8 U.S.C. § 1229(b)
(2)(B); 8 C.F.R. § 1003.2(c); Practice Manual, supra note 722, ¶¶ 4.6–4.7. Credible fear determinations may be reviewed by the IJ through telephone conferences without consent of the respondent. 8
C.F.R. § 1003.25(c); Practice Manual, supra note 722, ¶ 4.7.
740. In 2012, IJs conducted about 134,000 hearings by video conference. See Ingrid V. Eagly, Remote
Adjudication in Immigration, 109 Nw. U. L. Rev. 933 (2015).
741. The ACUS study canvassed the arguments on both sides of the video conference issue and made
various suggestions for improving video hearings, assuming that video conferencing is here to stay.
Benson & Wheeler, supra note 712, at 89–100. EOIR contends that video conferencing is a “force
multiplier” that improves efficiency, lowers transportation costs, strengthens court safety, expands
access to counsel, and reduces the time immigrants spend in detention. Critics of televised adjudication
believe that the practice prejudices respondents as opposed to those who receive face-to-face hearings.
Eagly concludes that IJs do not appear to be biased against respondents whose cases are heard by video
conference rather than in person. However, she contends that video conferencing depresses the engagement of respondents with the adversarial process, making them less likely to retain counsel or request a
hearing or apply for discretionary relief.
742. Practice Manual, supra note 722, ¶ 4.11.
743. Jim Harvill, Immigration Courts Could Lose a Third of Their Interpreters, LinkedIn,
Oct. 7, 2015, https://www.linkedin.com/pulse/immigration-courts-could-lose-third-interpretersjim-harvill?articleId= 6057577953682866176 (discussing potential pay cuts for interpreters).
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to present evidence on their behalf, and to cross-examine witnesses.744 The respondent
cannot examine national security information proffered by the government in opposition to admission or discretionary relief.745 In absentia hearings are conducted if the
respondent fails to appear.746 IC hearings are generally open to the public.747
IJ decisions shall be based only on evidence produced at the hearing.748 An applicant for admission has the burden of establishing admissibility “clearly and beyond a
doubt.”749 Respondents have the burden to establish by clear and convincing evidence
that they are lawfully present in the U.S. pursuant to a prior admission. In contrast,
DHS has the burden to establish removability by clear and convincing evidence in the
case of a respondent who has been admitted to the U.S. No decision on removability is
valid unless based on reasonable, substantial, and probative evidence.750 A respondent
has the burden of proof (presumably by a preponderance of the evidence) to establish
eligibility for relief from removal and has the burden to establish that he or she merits
a favorable exercise of discretion.751
Many IC decisions require an assessment of witness credibility. The statute
allows the IJ to consider a variety of circumstances in assessing credibility including
demeanor and consistency of the statements.752
The IJ’s decision may be in writing or oral. If oral, a memorandum summarizing the oral decision is served on the parties.753 A respondent may file one motion to
reconsider an IJ decision that the respondent is removable; the motion must specify
the errors of law or fact in the IJ order. The respondent may also file one motion to

744. See Practice Manual, supra note 722, ¶ 4.16 for discussion of IC hearings.
745. 8 U.S.C. § 1229a(b)(4).
746. 8 C.F.R. § 1003.26.
747. 8 C.F.R. § 1003.27(a); Practice Manual, supra note 722, ¶ 4.9. However, hearings may be closed
to protect witnesses, parties, or the public interest. Hearings shall be closed in cases of spousal or child
abuse, and in national security cases. 8 C.F.R. §§ 1003.27(b)–(d), 1246.
748. 8 U.S.C. § 1229a(c)(1)(A).
749. 8 C.F.R. § 1240.12(a).
750. 8 U.S.C. § 1229a(c)(3).
751. 8 U.S.C. § 1229a(c)(4).
752. The IJ may base a credibility determination on the demeanor, candor, or responsiveness of the
witness, the inherent plausibility of the account, the consistency between witness’ oral and written
statements (considering the circumstances under which the statements were made), the internal consistency of such statements with other evidence of record, and any inaccuracies or falsehoods in such
statements whether they go to the heart of the applicant’s claim, or any other relevant factor. There
is no presumption of credibility, but if no adverse credibility determination is explicitly made, the
witness shall have a rebuttable presumption of credibility on appeal. 8 U.S.C. § 1229a(c)(4)(C).
753. 8 C.F.R. § 1003.37.
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reopen proceedings based on newly discovered facts.754 An IJ’s decision is final unless
the respondent or the government appeals to the BIA.755
B. Board of Immigration Appeals
The BIA is authorized to consist of 21 members headed by a Chair.756 The EOIR
director can appoint temporary Board members for a term not exceeding six months.
Temporary members are present or retired IJs, retired BIA members, or senior EOIR
attorneys.757 The BIA hears appeals of decisions by IJs or DHS.758 Cases can also be
certified to the BIA or the BIA can certify a case to the Attorney General.759
The Chairman divides the Board into three-member panels and designates a presiding member of each panel. Panels decide cases by majority vote.760 A single member
adjudicates most Board cases. Three-member panels are required:
• to settle inconsistencies among the rulings of different immigration judges;
• to establish a precedent construing the meaning of laws, regulations, or
procedures;
• to review a decision by an IJ or DHS that is not in conformity with the law
or with applicable precedents;
• to resolve a case or controversy of major national import;
• to review a clearly erroneous factual determination by an IJ; and
• to reverse the decision of an IJ or DHS in a final order, other than nondiscretionary dispositions.761
BIA does not engage in de novo review of fact findings. It is permitted to overturn IJ findings (including findings relating to credibility) only if they are clearly
erroneous. The Board decides questions of law, discretion, and judgment de novo. If
further fact-finding is needed, the BIA remands the case to the IJ.
The regulations provide that BIA decisions can be referred to the Attorney General (AG) for final decision. Referral can occur if the AG directs the case be referred
to him or her, if the chair or a majority of the BIA believes there should be a referral,

754. 8 U.S.C. § 1229a(c)(6)–(7). See 8 C.F.R. § 1003.23 for treatment of motions to reconsider and
reopen.
755. 8 C.F.R. § 1003.39.
756. 8 C.F.R. § 1003.1(a)(1)–(2); Exec. Office of Immigration Review, U.S. Dep’t of Justice,
BIA Practice Manual (Mar. 23, 2018) [hereinafter BIA Practice Manual]. The Chair supervises
and issues operating instructions for the Board but has no authority to direct the result of an adjudication assigned to another Board member.
757. 8 C.F.R. § 1003.1.
758. For list of decisions that can be appealed to BIA, see 8 C.F.R. § 1003.1(b); BIA Practice Manual,
supra note 756, at ch. 1.4.
759. 8 C.F.R. § 1003.1(c), (h).
760. 8 C.F.R. § 1003(a)(3).
761. 8 C.F.R. § 1003(e)(6); BIA Practice Manual, supra note 756.
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or if the DHS Secretary or the Secretary’s designee requests it.762 Referral is rare but
does occur.763
Single member decisions adopt the IJ decision without further explanation or
provide brief opinions of a few sentences.764 Oral argument can be scheduled at the
discretion of a three-judge panel, but no oral argument is allowed in a case assigned
to a single Board member.765
In FY 2016, BIA received 30,200 appeals and completed 33,240.766 Pending cases
at the end of FY 2016 totaled 13,930, which is considerably less than the pending case
total of 24,824 at the end of FY 2012.767 The respondent but not the government
can seek judicial review of BIA decisions in the Court of Appeals; such cases are a
significant part of the caseload of federal appellate courts.768

762. 8 C.F.R. § 1003(h). See Alberto Gonzales & Patrick Glen, Advancing Executive Branch Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa L. Rev. 841 (2016).
763. See Reynaldo Castro-Tum, 27 I.&N. Dec. 187 (A.G. 2018).
764. 8 C.F.R. § 1003(e)(4). Legomsky, supra note 715, at 1657.
765. 8 C.F.R. § 1003(e)(7). Oral argument is extremely rare—perhaps no more than three per year.
Benson & Wheeler, supra note 712, at 21.
766. EOIR FY 2016 Statistics Yearbook, supra note 720, at R2.
767. Id. at W3.
768. In the year ending March 31, 2017, immigration appeals accounted for 82% of administrative agency
appeals heard by the Court of Appeals. Admin. Office of the U.S. Courts, Federal Judicial Caseload
Statistics 2017, http://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2017 (last
visited July 12, 2018).
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APPENDIX A-9

MERIT SYSTEMS PROTECTION BOARD

The Merit Systems Protection Board (MSPB)769 functions as an independent
tribunal, adjudicating appeals taken by federal employees who complain of adverse
job action by their employer agencies. The most frequent cases heard by MSPB involve
removal and other disciplinary action taken by federal agencies against their civil service employees. In addition, MSPB adjudicates cases concerning veterans employed by
the federal government, retirement plan issues, whistleblower disputes, and numerous
other schemes involving federal employment. For the most part, the same procedural
regulations apply to all of them.770
MSPB primarily conducts Type B adjudication. However, in several classes
of cases (involving complaints by federal ALJs, Hatch Act cases, removal of Senior
Executive Service employees, and complaints by employees of the MSPB itself) it
conducts Type A adjudication.771
In FY 2016, MSPB resolved 9,794 appeal cases. This figure includes 8,602 cases
resolved at the AJ level, 12 initial decisions by ALJs, and 1,180 final decisions issued
by the three-member Board after a petition for review of an AJ decision. At the AJ
level, about 92% of cases affirmed the employer agency action. At the MSPB level,
about 87% of decisions affirmed the employer agency decision.772
MSPB conducts formal evidentiary hearings. Most such hearings are required
by statute,773 but some of them are required by regulations.774 With the exception of

769. MSPBAPPJ0001 in the ACUS database, listing 13 case types.
770. 5 C.F.R. pt. 1201.
771. These cases are heard by ALJs at other agencies including the FTC and the Coast Guard. Merit
Sys. Prot. Bd. Ann. Rep. 5 (2016).
772. Id.
773. By statute, an employee subject to various adverse personnel actions may submit an appeal to the
MSPB and shall have the right to “a hearing for which a transcript will be kept.” 5 U.S.C. § 7701(a)(1).
The statute makes clear that the hearing can be conducted by either by an ALJ or by an AJ employed by
the Board. In case of a removal, the Board employee shall be “experienced in hearing appeals.” 5 U.S.C.
§ 7701(b)(1).
774. For example, a regulation relating to claims that OPM has an unfair employment practice (such
as an irrationally discriminatory examination or job qualification) provides for an “appeal” to MSPB.
5 C.F.R. § 104(a). In turn, MSPB regulations provide for an evidentiary hearing in this class of cases. 5
C.F.R. § 1201.3(a)(7).
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its Type A hearings (not discussed in this appendix), the presiding officers are MSPB
administrative judges (AJs). AJ decisions are subject to review by the Board.
The procedural regulations provide that an employer agency that takes action
against its employee must furnish the employee with a notice that spells out the
employee’s right to appeal to MSPB.775 The employee then has 30 days to file an appeal
with one of the Board’s regional offices. The regulations provide for class as well as
individual appeals.776 Electronic filing of documents is permitted and encouraged.777
An employee is entitled to be represented by any person the employee chooses.778
The MSPB Judge’s Handbook779 requires special efforts to accommodate pro se appellants, including holding an early status conference to explain what is required. The
Handbook provides that filings by pro se appellants should not be rejected on technical
grounds and such appellants should receive great latitude in questioning witnesses.
MSPB strongly encourages settlement and mediation. The AJ can initiate settlement activity at any time.780 The AJ will suspend a pending hearing for 30 days
in order to allow the parties to seek mediation through MSPB’s Mediation Appeals
Program (MAP).781 MAP offers the services of certified mediators as an alternative
to the formal appeals processes set forth in the agency’s regulations. Participation
in MAP is free and confidential. The MAP website states that, since the program’s
inception in FY 2005, approximately 60% of all mediated cases have settled by the
conclusion of the MAP process. Surveys of MAP participants note that 95% of such
participants would use the program again.
MSPB judges can be disqualified for “personal bias.”782 A party asserting such
bias must file a withdrawal motion as soon as the party has reason to believe there is a
basis for disqualification. If the judge denies the motion, the party requesting withdrawal may request certification of the issue to the Board as an interlocutory appeal.
The regulations prohibit written or oral ex parte communications between an
interested party and a decision-making official (DMO). Interested parties are the parties
to the case and their representatives or any other person whose interest might be affected
by the decision. A DMO is any judge or employee designated to hear and decide cases.
Prohibited communications are those that involve the merits of the case or that violate
rules requiring submissions to be in writing. Accordingly, it is not a prohibited ex parte

775. 5 C.F.R. § 1201.21–.24.
776. 5 C.F.R. § 1201.27. See Class Actions, MSPB Judges Handbook, supra note 301, at ch. 3, ¶ 4.
777. 5 C.F.R. § 1201.14.
778. 5 C.F.R. § 1201.31.
779. MSPB Judges Handbook, supra note 301, at ch. 2, ¶ 7.
780. 5 C.F.R. § 1201.41(c). See MSPB Judges Handbook, supra note 301, at ch. 11.
781. 5 C.F.R. § 1201.28(d). See MSPB Judges Handbook, supra note 301.
782. 5 C.F.R. § 1201.42(b). The grounds for disqualification are expanded to include “a. A party,
witness, or representative is a friend or relative of, or has had a close professional relationship with the
AJ; or b. personal bias or prejudice of the AJ.” MSPB Judges Handbook, supra note 301, at 13.
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communication if a party asks about such matters as the status of a case, when it will be
heard, or methods of submitting evidence to the Board. 783 Ex parte communications
are prohibited from the time the persons involved know that the Board may consider
the matter until the time the board has issued a final decision.784
There are no specific provisions for separation of functions, but such provisions
seem unnecessary since MSPB is an independent tribunal that has no prosecuting or
investigating staff members.
The MSPB has subpoena power.785 In addition, the regulations provide for all
the methods of discovery contained in the Federal Rules of Civil Procedure, including depositions.786 The Federal Rules of Civil Procedure provisions on discovery are
instructive but not controlling. A prehearing conference or a status conference is held
in nearly every case.787
MSPB regulations also provide for intervention as of right by the Office of Personnel Management and Office of Special Counsel and by interested parties at the
AJ’s discretion.788 The AJ can certify important issues of law and policy to the Board
for an interim appeal.789
The normal procedure calls for a trial-type adversarial hearing with oral witness
testimony and cross-examination.790 On most issues, the agency has the burden to
establish the validity of its action by a preponderance of the evidence.791 The AJ can
take official notice of matters of common knowledge or matters that can be verified.792
The regulations do not state whether the AJ should follow the Federal Rules of
Evidence, noting only that “[a]ny evidence and testimony that is offered in the hearing
and excluded by the judge will be described, and that description will be made a part
of the record.”793

783. 5 C.F.R. § 1201.101. See MSPB Judges Handbook, supra 301, at 80.
784. 5 C.F.R. § 1201.102.
785. 5 C.F.R. § 1201.81; MSPB Judges Handbook, supra note 301, at 31.
786. 5 C.F.R. §§ 1201.71–.75.
787. MSPB Judges Handbook, supra note 301, at ch. 9.
788. 5 C.F.R. § 1201.34. MSPB Judges Handbook, supra note 301, at 16.
789. 5 C.F.R. §§ 1201.91–.93. MSPB Judges Handbook, supra note 301, at 29.
790. 5 C.F.R. §§ 1201.51–.58. This provision is not applicable to written (document-only) hearings
or to and oral arguments.
791. 5 C.F.R. § 1201.56.
792. 5 C.F.R. § 1201.64. The parties may be given an opportunity to object to the taking of official
notice. The taking of official notice of any fact satisfies a party’s burden of proving that fact.
793. 5 C.F.R. § 1201.61. The Judge’s Handbook is also silent on this issue, but cautions against receiving
irrelevant evidence. MSPB Judges Handbook, supra note 301, at ch. 10, ¶ 14.
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Although hearings are normally open to the public, the AJ may close the hearing
if necessary to protect the appellant’s privacy or for other reasons such as protection
of trade secrets or national security.794
MSPB’s regulations do not address the use of video or telephonic hearings.
However, the Board has held that AJs can order video conference in any case, even if
a party objects.795
The AJ must prepare an initial decision including provision for interim relief, if
any.796 The losing party has 35 days to file a petition for review by MSPB.797 MSPB has
discretion as to whether to accept the petition for review. It may but need not provide
for oral argument.798 Its final decisions may be designated as precedential.

794. 5 C.F.R. § 1201.52(a); MSPB Judges Handbook, supra note 301, at ch. 10, ¶ 3.
795. MSPB Judges Handbook, supra note 301, at 49. The Handbook also notes that, when facts are
undisputed and sole purpose of hearings is to provide opportunity for oral argument, hearings by
telephone may be appropriate.
796. 5 C.F.R. § 1201.111.
797. 5 C.F.R. § 1201.113.
798. 5 C.F.R. § 1201.117.
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APPENDIX A-10

UNITED STATES PATENT AND
TRADEMARK OFFICE (USPTO)

The United States Patent and Trademark Office (PTO) is located in the Department of Commerce.799 This appendix covers the PTO’s adjudication of patent and
trademark disputes.
A. Patent Trial and Appeal Board (PTAB)
The Patent Trial and Appeal Board (PTAB)800 carries out the USPTO’s adjudicatory functions related to patents. PTAB consists of the PTO Director and Deputy
Director, the Commissioner for Patents, the Commissioner for Trademarks, and
administrative patent judges (APJs). Decisions of PTAB are not further reviewable
at the administrative level but are subject to judicial review.801
APJs shall be “persons of competent legal knowledge and scientific ability who
are appointed by the Secretary of Commerce in consultation with the Director.”802
There are currently about 284 APJs.803 The APJs are highly experienced; most of them
are former private patent attorneys.804 Most of the APJs are located at the PTAB office
in Alexandria, Va., but some are located at one of the four satellite office of the Board.
PTAB has two different functions—appeals and trials. 805 It hears appeals by patent
applicants of adverse decisions by patent examiners and from ex parte re-examination
decisions.806 It conducts trials in cases of disputes between patent holders and third

799. 35 U.S.C. § 1. I appreciate the assistance of Mark Lemley, Lisa Ouellette, Michelle Lee, Melissa
Wasserman, Emily Bremer, and Melissa Brand in preparing this appendix.
800. PTAB is the successor to the Board of Patent Appeals and Interferences. See America Invents Act,
Pub. L. No. 112-29, 125 Stat. 284 (2011).
801. In the ACUS database PTAB is USDCPATE0021.
802. 35 U.S.C. § 6(a).
803. Melissa Brand, The Potential Expansion of Chevron at the United States Patent and Trademark
Office, 43 Admin. & Reg. L. News 12, Fall 2017; Michael Wagner, An Introduction to Administrative
Patent Judges at the Patent Trial and Appeal Board, 62 Fed. Law. 36, May 2015.
804. Wagner, supra note 803.
805. For discussion of PTAB trial and appeal procedures, see Cuozzo Speed Techs., LLC v. Lee, 136 S.
Ct. 2131 (2016).
806. 35 U.S.C. § 6(b).
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parties.807 A three-member APJ panel decides each appeal or trial.808 There is no administrative appeal of APJ decisions, but the PTO director has power to order a rehearing
of APJ decisions and can select the APJs who will sit on the rehearing.
The statute does not specifically provide for evidentiary hearings. In context,
however, the statutory provisions calling for “appeals,” “reviews,” and “proceedings”
require evidentiary hearings, although as discussed below these hearings are based
entirely on written evidence. Therefore, PTAB conducts Type B adjudication.809
The regulations permit parties to be represented by a registered patent attorney
or a registered non-attorney patent agent.810 In appeal cases, the Board may allow the
appearance of counsel who is not a registered representative, but not by an unregistered lay
representative.811 In trial cases, parties may represent themselves. If represented by counsel,
parties must appoint both a lead and backup counsel, both of whom must be registered
representatives.812 In either case, counsel can be disqualified and subject to sanctions.813
The regulations prohibit ex parte communications with PTAB members or
employees assigned to the proceeding in trial cases,814 but this provision does not
apply to appeal cases.815 Electronic document filing is accepted.816 Video hearings are
available on request.817 Oral arguments are open to the general public.818

807. Id. The Supreme Court has ruled that assigning inter partes review cases to PTAB does not
offend Article III of the Constitution because such claims involve a matter of public rather than
private right. Even though inter partes review trials involve disputes between two private parties, the
issue is whether the patent should have issued in the first place, a matter of public right. Also, the fact
that PTAB uses court-like processes does not mean that it is a court. Oil States Energy Servs., LLC v.
Greene’s Energy Grp., LLC, 138 S. Ct. 1365 (2018).
808. 35 U.S.C. § 6(c). The judges are connected by video conference facilities so they may be located at
different offices of the Board. Wagner, supra note 803, at 36.
809. The Federal Circuit has directly applied provisions of the APA to PTAB hearings, thus treating
them as Type A adjudication. See text at notes 63–65.
810. 37 C.F.R. § 1.31.
811. 37 C.F.R. § 41.5(a). The regulations do not permit lay representation before the PTAB.
812. The Board may allow a backup counsel who is not a registered practitioner “upon showing that
counsel is an experienced litigating attorney and has an established familiarity with the subject matter
at issue in the proceeding.” 37 C.F.R. § 42.10(c).
813. 37 C.F.R. §§ 41.5(b), (e), 42.10(d). See 37 C.F.R. pt. 11 for detailed regulations about registration
of patent attorneys and agents.
814. “Communication regarding a specific proceeding with a Board member . . . is not permitted
unless both parties have an opportunity to be involved in the communication.” 37 C.F.R. § 42.5(d).
815. 37 C.F.R. § 41.11.
816. 37 C.F.R. § 42.6(b).
817. U.S. Patent & Trademark Office, Video and Telephonic Hearings, https://www.uspto.gov/page/
video-and-telephonic-hearings (last visited July 12, 2018).
818. U.S. Patent & Trademark Office, Hearings, https://www.uspto.gov/patents-application-process/
patent-trial-and-appeal-board/hearings (last visited July 12, 2018).
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1. Appeals (Ex Parte Cases)
Part 41 of the regulations prescribes procedures for appeals.819 Appeals are
sometimes referred to as ex parte proceedings, meaning that the only parties are the
patent examiner and a patent applicant or a patentee. Any person can trigger the ex
parte reexamination process through a request to the PTO claiming that a “substantial
new question of patentability” exists with respect to the patent.820 An applicant can
appeal if a patent application has been rejected or an ex parte reexamination request
has been granted.821
In an appeal, the APJ panel considers all the evidence presented in the appellant’s
briefs. The briefs can rely only on evidence previously considered by the examiner
(except when a new administrative or judicial precedent arose after the examiner’s
consideration).822 The appellant can request an oral argument if the appellant believes
it would be necessary or desirable. The Board can refuse the application for an oral
argument if it is determined to be unnecessary.823 Cases are given the same consideration whether there is an oral argument.
2. Trials (Inter Partes Cases)
Part 42 of the regulations describes the procedure in trials.824 Trial cases involve a
third party that is challenging a patent. These include inter partes reviews (IPRs),825 postgrant reviews,826 derivations,827 and challenges to covered business method patents.828

819. 37 C.F.R. § 41.30. Part 41 of the regulations describes procedures for both trials and appeals
but now seem applicable only to appeals. Part 42 of the regulations (promulgated in 2013) describes
procedures for trials.
820. 35 U.S.C. § 303(a). See Stefan Blum, Ex Parte Reexamination: A Wolf in Sheep’s Clothing, 73 Ohio
St. L.J. 395, 413–19 (2012); Jacob S. Sherkow, Administrating Patent Litigation, 90 Wash. L. Rev.
205, 236 (2015) (in most patent infringement cases in court, the defendant requests USPTO re-examination and district court case is often stayed until USPTO acts).
821. Appeals are Case Type 6 in USDCPATE0021.
822. 37 C.F.R. § 41.47(e)(1).
823. 37 C.F.R. § 41.47(f).
824. For detailed procedural rules including a timeline, see the Patent Office Trial Practice Guide, 77
Fed. Reg. 48,756 (2012). In the ACUS database, PTAB trial proceedings are case types 1 through 5 in
USDCPATE0021.
825. An inter partes review arises when a third party challenges a patent because it lacks novelty or is
obvious. See 35 U.S.C. §§ 102, 103, 311; 37 C.F.R. pt. 42, subpt. C. This replaces the former category
of inter partes re-examination.
826. Post-grant review involves a challenge to a patent on grounds other than lack of novelty or obviousness, such as a failure to meet the clear statement requirements of § 112. See 35 U.S.C. ch. 32; 37
C.F.R. pt. 42, subpt. C.
827. In a derivation proceeding, a patent applicant B complains that an earlier patent held by A was
derived from B’s idea and A’s application was not authorized. See 35 U.S.C. § 135(a)(1); 37 C.F.R. pt.
42, subpt. E.
828. 37 C.F.R. pt. 42, subpt. D.
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Proceedings challenging the validity of a patent can also be brought as civil
actions in federal district court.829 The IPR remedy is attractive to challengers because
PTAB proceedings cost much less than federal court litigation830 and the APJs are
more expert than federal district judges and juries in matters of patent law. Moreover,
the burden of proof before PTAB on the issue of invalidity is preponderance of the
evidence, rather than the clear and convincing standard used in federal court.831 About
70% of PTAB trial cases are “substitution” cases, meaning they result from prior
patent infringement cases brought in federal court; the defendant is granted a stay,
so it can challenge the validity of the patent in an IPR proceeding before PTAB. The
remaining 30% of PTAB trial cases do not result from prior federal court litigation.832
Under the regulations, the term “trial” means a “contested case instituted by the
PTAB based upon a petition.” PTO trial proceedings have two phases: an APJ panel
first decides whether the petition shows a reasonable likelihood that at least one claim
might be invalid. If so, the panel institutes review.833 After institution of review, the
panel must generally make the final decision on the patent’s validity within one year.834
The regulations provide for discovery during trial proceedings.835 Discovery includes a series of initial disclosures (either by agreement or by order)836 plus
additional discovery (either by agreement or by order on a showing that additional
discovery is in the interest of justice).
Uncompelled direct testimony must be submitted in the form of an affidavit or
deposition transcript. Compelled testimony (including cross-examination of affiants)
is also presented in the form of depositions.837 Expert testimony is furnished in affidavit

829. See 35 U.S.C. § 315. When PTAB declares a patent valid, the patentee must pursue issues of
infringement and damages in federal district court.
830. See Saurabh Vishnubhakat, Arti K. Rai & Jay P. Kesan, Strategic Decision Making in Dual PTAB
and District Court Proceedings, 31 Berkeley Tech. L.J. 45, 51, 59 (2016) [hereinafter Vishnubhakat].
IPR costs about $350,000, whereas federal court litigation costs about $700,000 for low-stakes cases
and many millions for high stakes cases.
831. See Stuart Minor Benjamin & Arti K. Rai, Administrative Power in the Era of Patent Stare Decisis,
65 Duke L.J. 1563, 1565–67, 1570–71 (2016). In addition, PTAB uses a different standard for construction of patent claims than is used in court, which could make it easier to invalidate the patent. See
Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131 (2016).
832. Vishnubhakat, supra note 830.
833. The decision to institute review is normally non-appealable, even after PTAB has rendered its
final order. See Cuozzo Speed Techs., 136 S. Ct. at 2140. The Cuozzo decision leaves open the question
of appealability of the decision on constitutional grounds or in cases in which PTAB acts outside its
statutory limits. Once review is granted, PTAB must review all of the claims of invalidity, even those
that it believes have no merit. SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018) (overturning a regulation
that allowed PTAB to refuse to adjudicate claims that the APJ panel determined had no merit).
834. Benjamin & Rai, supra note 831, at 1569.
835. See 37 C.F.R. § 42.51.
836. See 77 Fed. Reg. 48,756, 48,761–62 (2012).
837. See 37 C.F.R. § 42.53(a).
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form.838 The Federal Rules of Evidence are applicable to trial proceedings.839 Any party
can request oral argument.840 The parties may agree to settle any case, but the proposed
settlement is not binding on the APJs.841 The parties may resort to binding arbitration,
but the Board is not a party to the arbitration.842 The case terminates in a judgment
rendered by the APJ panel.843
PTAB occasionally designates APJ decisions as precedential,844 but otherwise
APJ decisions are not treated as precedents.845 PTAB practice requires that a majority
of all of the active APJs approve the designation of a decision as precedential which
seems unduly cumbersome.
3. Statistical Information846
In FY 2016, PTAB received 1,701 trial petitions.847 It disposed of 1,780 cases
(through refusal to institute proceedings,848 termination, or decision). At the end of
FY 2016, 1,614 trial cases were pending. Historically, about 23% of petitions resulted
in actual trials, so it is estimated that in 2016 there were about 391 PTAB hearings
in trial cases.849
In FY 2016, PTAB received 8,544 ex parte appeals. It decided or terminated
14,468 appeals. Pending appeal cases at the end of FY17 numbered 13,034. The
backlog of appeal cases has been substantially reduced from prior years.

838. 37 C.F.R. § 42.65.
839. 37 C.F.R. § 42.62(a).
840. 37 C.F.R. § 42.70(a).
841. 37 C.F.R. § 42.74(a).
842. 37 C.F.R. § 42.410.
843. 37 C.F.R. § 42.73.
844. U.S. Patent & Trademark Office, Precedent Opinions, https://www.uspto.gov/patents-application-process/appealing-patent-decisions/decisions-and-opinions/precedential (last visited July 12,
2018). Only 11 of the 37 precedent decisions to date involve trials rather than appeals.
845. Brand, supra note 803. The Chief Judge can designate an APJ panel opinion as an “informative
decision” without a vote of the APJs and without approval of the Director, but informative decisions
are not treated as precedents. They are intended as guidance. See Aqua Prods. Inc. v. Matal, 872 F.3d
1290, 1336 (Fed. Cir. 2017) (op. of Reyna, J.). In the Aqua Products case, the Federal Circuit divided on
whether precedential and informative decisions of PTAB are entitled to Chevron deference.
846. U.S. Patent & Trademark Office, Performance and Accountability Rep. (2016)
(more statistical information is available in Tables 13a and 14); U.S. Patent & Trademark Office,
Performance and Accountability Report (2017).
847. Of the 1,701 trial petitions, 1,570 were IPR reviews.
848. In FY 2016, PTAB made 933 decisions to institute trial proceedings and 496 refusals to institute
trial proceedings. There were 456 settlements of trial proceedings, including those before and after
institution of trial proceedings.
849. Historically, about 20% of challengers won; 52% of patent owners won; and the balance were
mixed results. By comparison, 4,529 patent challenges were filed in federal district court during 2016.
This data was extracted from LexMachina.com.
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If we assume that in FY 2017, PTAB will receive about 2,000 trial petitions and
8,000 appeals, and that APJs sit in panels of three, the workload for each of 225 APJs
would be about 132 cases per year.
B. Trademark Trial and Appeal Board (TTAB)850
Trademark adjudication occurs before the Trademark Trial and Appeal Board
(TTAB). The governing statute is the Lanham Act.851 Procedural regulations are set
forth in 37 C.F.R. Part 2. USPTO has published a useful practice manual.852
Like PTAB, TTAB practice is divided into trials (often called “inter partes” proceedings, meaning that they involve disputes between a third party and a trademark registrant)
and appeals (often referred to as “ex parte” cases, meaning challenges by persons whose
application for registration of a mark was rejected by a trademark examiner).853
The TTAB includes the Director and Deputy Director of the USPTO, the Commissioner for Patents, the Commissioner for Trademarks, and administrative trademark
judges (ATJs). There are currently about 25 ATJs who sit in panels of three.854
As in the case of patents, the relevant statutes do not call for evidentiary hearings.
Instead the statue provides for an “appeal” to the TTAB from the final decision
of a trademark examiner.855 The TTAB shall “determine and decide” in cases of
interference, opposition to registration, application to register as a concurrent user,
or application to cancel the registration of a mark.856 In context, however, it is clear
that an evidentiary hearing is required, although these hearings are entirely in writing except for oral argument. Oral argument is voluntary and can be done through
videoconference.857 The exclusive record principle is protected.858 Therefore TTAB
proceedings are Type B adjudication.
There is no administrative appeal from a decision by an ATJ. As in the case of
PTAB, the director of the PTO can order a rehearing of an ATJ decision and can designate the ATJs who will sit on the rehearing. TTAB decisions are reviewable by the
U.S. Court of Appeals for the Federal Circuit859 or alternatively by a de novo federal

850. The TTAB is USDCTRAD0020 in the ACUS database.
851. 15 U.S.C. § 1051 et seq.
852. U.S. Patent & Trademark Office, Trademark Trial and Appeal Board Manual of
Procedure (June 2017) [hereinafter TTAB Practice Manual].
853. Trials are case type 1 in ACUS database USDCTRAD0020; appeals are case type 2.
854. L.A. Intellectual Prop. Law Ass’n, Current Roster of TTAB Administrative Trademark Judges, Jan.
26, 2018, http://www.laipla.net/current-roster-of-ttab-administrative-trademark-judges/.
855. 15 U.S.C. § 1070.
856. 15 U.S.C. § 1067(a).
857. TTAB Practice Manual, supra note 852, at § 802.03.
858. Id. at §§ 802.02, 803.
859. 15 U.S.C. § 1071(a)(1); 37 C.F.R. § 2.145(a)–(b).
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district court action.860 In addition, the Code provides that any person who could seek
judicial review in the Federal Circuit can bring a civil action in federal district court.861
Only attorneys can represent parties before the Trademark Office.862 Unlike
patent litigation, there is no registration requirement for attorneys. Although parties
can represent themselves,863 non-lawyers cannot represent clients.864 Thus there is no
lay representation in trademark practice.
1. Appeals (Ex Parte Cases)
An applicant for trademark registration may appeal a final refusal by the examiner to the TTAB.865 The applicant and the examiner file briefs with the TTAB.866
The record is complete prior to the filing of an appeal. TTAB will ordinarily not
consider additional evidence after an appeal is filed.867 The appellant may request oral
argument; in that case, the examiner will also make an oral argument.868
2. Trials (Inter Partes Cases)869
Inter partes trademark disputes (such as opposition to registration,870 cancellation of registration,871 interference,872 or concurrent use873) commence upon filing a
notice with the Trademark Office.874 The applicant or registrant must file an answer
to this notice.875

860. 15 U.S.C. § 1071(b).
861. Id.; 37 C.F.R. § 2.145(c). If a defeated party seeks review in the Court of Appeals, the adverse
party may elect to transfer the matter to district court.
862. 37 C.F.R. § 11.14(a). However, foreign lawyers are permitted. § 11.14(c). This rule applies to
TTAB proceedings as well as to proceedings before examiners. 37 C.F.R. § 2.17(a).
863. Self-representation includes representation by a non-lawyer representing a corporation in which
the person is an officer, a partnership in which the person is a partner, or a firm in which the person is a
member. 37 C.F.R. § 11.14(e).
864. 37 C.F.R. §§ 2.17(f), 11.14(b), (e).
865. See 15 U.S.C. § 1062(b).
866. 37 C.F.R. § 2.142(b).
867. If either party desires to introduce additional evidence, it can request the Board to suspend the
appeal and remand the application for further examination. 37 C.F.R. § 2.142(d).
868. 37 C.F.R. § 2.142(e)(1).
869. TTAB decisions in opposition cases have collateral estoppel effect when the same issue arises in
infringement litigation in court. B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293 (2015).
870. 15 U.S.C. § 1063.
871. 15 U.S.C. § 1064. Typically, cancellation petitions allege that a registered mark would cause the
owner of an existing mark damages by blurring or dilution.
872. 15 U.S.C. § 1066.
873. 15 U.S.C. § 1052(d).
874. 37 C.F.R. §§ 2.101, 2.111.
875. 37 C.F.R. § 2.104.
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The Federal Rules of Civil Procedure govern inter partes proceedings.876 The
assignment of testimony periods corresponds to setting a case for trial in court
proceedings; the taking of depositions during the assigned testimony periods corresponds to the trial in court proceedings; and the oral hearing corresponds to the oral
summation in court proceedings.877
The discovery rules are modeled on the Federal Rules of Civil Procedure,878
including the requirement of mandatory initial disclosures879 and a mandatory conference to discuss settlement and agree on a discovery plan.880 A TTAB attorney or
an ATJ may participate in this conference. In general, the material so discovered can
be offered in evidence by the adverse party.
The TTAB then schedules a second discovery period in which the plaintiff and
defendant present their case in chief, again by taking the deposition of the party’s
witnesses881 either upon written or oral questions.882 Adverse parties can cross-examine
the witnesses.883 Objections to questions are noted in the record. The Federal Rules
of Evidence apply to TTAB proceedings.884
After completion of the discovery period, the parties file briefs with the TTAB.885
On request, the parties conduct oral argument before at least 3 ATJs.886 Parties can
participate through video-conference.887 Arguments are open to the public.888

876. 37 C.F.R. § 2.116. The opponent in an opposition proceeding or petitioner in a cancellation
proceeding shall be in the position of a plaintiff, and the applicant in an opposition proceeding or the
respondent in a cancellation proceeding shall be in the position of defendant.
877. 37 C.F.R. § 2.116(d)–(f).
878. 37 C.F.R. § 2.120(a)–(b).
879. Fed. R. Civ. P. 26(a).
880. Fed. R. Civ. P. 26(f).
881. See 37 C.F.R. § 2.121.
882. 37 C.F.R. § 2.123(a). If the parties so stipulate, an affidavit can be substituted for a deposition.
37 C.F.R. § 2.123(b). If the witness’ deposition is to be by written questions, the opposing party must
receive copies of the questions and can submit cross-examination questions. 37 C.F.R. § 2.124.
883. 37 C.F.R. § 2.123(e)(3).
884. 37 C.F.R. § 2.122(a).
885. 37 C.F.R. § 2.128.
886. 37 C.F.R. § 2.129.
887. TTAB Practice Manual, supra note 852, at § 802.03.
888. U.S. Patent & Trademark Office, General Counsel—Public Board Hearing Information, https://
www.uspto.gov/learning-and-resources/ip-policy/general-counsel-public-board-hearing-information
(last visited July 12, 2018).
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3. Statistical Information889
In FY 2017, the TTAB received 3,158 appeals. Of these, 517 matured to the point
they were ready for decision, and 649 were actually decided. At the end of FY 2017,
65 appeals were awaiting decisions.890
In FY 2017, TAB received filings of 8,357 trial cases—6,156 oppositions and
1,722 cancellations. Of these, 162 matured to the point that they were ready for
decision and 160 cases were decided. At the end of FY 2014, 28 trials were awaiting
decisions. The workload of the 25 ATJs is calculated based on the actual number
of appeals and trial cases they decided. In 2017 there were 809 decisions. Assuming
panels of 3 ATJs per case, the workload per ATJ is 96 cases per year.

889. U.S. Patent & Trademark Office, TTAB Incoming Filings and Performance Measures for Decisions,
http://www.uspto.gov/trademarks-application-process/appealing-trademark-decisions/ttab-incoming-filings-and-performance (last visited July 12, 2018).
890. At the end of the third quarter of 2015, 119 appeals and 36 trials were awaiting decision.
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171

APPENDIX A-11

PROVIDER REIMBURSEMENT
REVIEW BOARD 891

The Provider Reimbursement Review Board (PRRB) is one of numerous adjudicatory schemes arising out of Medicare, Medicaid, and the Affordable Care Act.892 PRRB
reviews determinations concerning the amounts that Medicare will pay to providers
of services under Medicare Part A, which, broadly speaking, applies to hospital care.
Providers of services request reimbursement for services provided under Part A.
These claims are reviewed by private fiscal intermediaries (referred to by the regulations as “contractors”). If the dispute involves at least $1,000 but less than $10,000,
providers that disagree with contractor decisions have a right to a hearing by a contractor hearing officer or panel of hearing officers893 who are unbiased and have had no
“direct responsibility” for the decision under review.894 The exclusive record principle
applies.895 Decisions by contractor hearing officers are subject to a further review
by a reviewing officer of the Centers for Medicare and Medicaid Services (CMS).896
Because contractor hearing officers are private rather than government adjudicators,
they are beyond the scope of this study.
If the dispute is for $10,000 or more (or in the case of a group appeal, the aggregate claims involving a common issue total $50,000 or more897), the providers can
appeal an unfavorable contractor decision to the PRRB. PRRB hearings are subject

891. Thanks to Eleanor Kinney and Suzanne Cochran for assistance on this Appendix. PRRB is
HHSOPRRB0005 in the ACUS database.
892. Many such programs, such as the Medicare Office of Hearings and Appeals, utilize Type A
adjudication. See HHSOOBEN0001 in the ACUS website. See generally Eleanor D. Kinney,
Administrative Law of Health Care in a Nutshell (2017).
893. Provisions for contractor hearings are provided in 42 C.F.R. §§ 405.1809–.1834.
894. 42 C.F.R. §§ 405.1817, .1831(b).
895. 42 C.F.R. §§ 405.1827(b), .1845(g).
896. 42 C.F.R. § 405.1834.
897. 42 C.F.R. § 405.1837.
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to discretionary review by the Administrator or Deputy Administrator of CMS (on
its own motion or on request from a party)898 and then to judicial review.899
PRRB hearings are subject to the exclusive record requirement.900 Hence PRRB
provides Type B adjudication. PRRB consists of five members,901 all of whom participate in each PRRB decision. The parties may opt for a “record hearing” in which the
case is submitted based on the existing written record902 or for an oral adversarial hearing including cross-examination903 and oral argument.904 Oral hearings are conducted
by the full board. The PRRB resolved about 20% of cases through record hearings,
65% through in-person oral hearings, and 10% through telephone hearings.905 Video-conference is available to present testimony of a witness who cannot be physically
present. Electronic document filing is now permitted although not reflected in the
Board’s rules. PRRB does not employ AJs.
PRRB regulations provide for discovery that is controlled by Board members.906
PRRB has subpoena power.907 Parties may be represented by an attorney or by any
other chosen representative.908 The Federal Rules of Evidence do not apply.909 The

898. 42 C.F.R. § 405.1875.
899. 42 C.F.R. § 405.1877. According to the ACUS website, there are 12 appellate officials at CMS,
and a panel of three CMS officials considers each appeal.
900. 42 U.S.C. § 1395oo(d); 42 C.F.R. § 405.1871(a)(2).
901. The members of the Board “shall be persons knowledgeable in the field of payment of cost reimbursement,” and at least one of them shall be a certified public accountant. Two Board members shall
be “representative of providers of services.” Board members serve staggered three-year terms. 42 C.F.R.
§ 405.1845(a)–(b).
902. Record hearings are appropriate if the case involves only legal interpretation or very limited fact
disputes and the parties agree that the case is appropriate for a record hearing. Ctrs. for Medicare
& Medicaid Servs., Provider Reimbursement Review Board Rules, Rule 32.3 (2013)
[hereinafter PRRB Rules].
903. 42 C.F.R. § 405.1859.
904. 42 C.F.R. § 405.1861.
905. Telephone hearings are appropriate in a case involving a strictly legal issue or one that has few
factual issues. PRRB Rules, supra note 902, at Rule 32.2. The statistics provided on the website do not
add up to 100%.
906. 42 C.F.R. § 405.1853(e); PRRB Rules, supra note 902, at Rule 26. “The Board may permit discovery of a matter that is relevant to the specific subject matter of the Board hearing, provided the matter
is not privileged or otherwise protected from disclosure and the discovery request is not unreasonable,
unduly burdensome, or expensive, or otherwise inappropriate.” 42 C.F.R. § 405.1853(e)(1)(ii).
907. 42 C.F.R. § 405.1857.
908. 42 C.F.R. § 405.1881.
909. 42 U.S.C. § 1395oo(c), 42 C.F.R. § 405.1855.
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regulations require disqualification of biased board members.910 The PRRB rules
(though not the regulations) prohibit substantive ex parte communication with Board
members or staff.911 There is no provision for separation of functions or any restrictions
on communication between the staff and Board members; separation of functions may
be unnecessary, however, since PRRB is an adjudicating tribunal without a prosecuting
or investigating function.912 PRRB hearings are not open to the public.913
The regulations encourage negotiation between providers and contractors to
resolve disputed issues.914 Mediation is provided by PRRB staff members. About
two-thirds of the Board’s cases are settled through negotiation or mediation. The
regulations provide for an initial status conference conducted by one or more members of the Board (in person or by telephone) which includes discussion of potential
settlement; the Board may conduct further status conferences where it is necessary
and appropriate to do so.915
The Board is able to reduce its caseload by deciding many cases on an aggregate
basis.916 Providers subject to common control must aggregate their cases. The Board
also aggregates cases (sometimes involving hundreds of providers) if their claims
present a common issue. This class action technique seems like a valuable innovation.
The Board’s written decision must include findings of fact and conclusions
of law, specifically explaining whether the provider carried its burden of proof to
establish entitlement of relief by a preponderance of the evidence and containing
appropriate citations. The Board must give “great weight” to CMS interpretive rules
or policy statements.917

910. 42 C.F.R. § 405.1847 provides: “No Board member shall join in the conduct of a hearing in a
case in which he is prejudiced or partial with respect to any party or in which he has any interest in the
matter pending for decision before him.” Under the PRRB Rules, a Board member “may recuse him or
herself if there are reasons that might give the appearance of an inability to render a fair and impartial
decision.” A party may request recusal prior to the hearing date. PRRB Rules, supra note 902, at Rules
45.1–45.2.
911. PRRB Rules, supra note 902, at Rule 40.2. Ex parte communication with staff regarding procedural matters is not prohibited. The regulations prohibit ex parte communication during the CMS
appeal process but not the PRRB hearing process. 42 C.F.R. § 405.1875(d).
912. See Phyllis E. Bernard, Social Security and Medicare Adjudications at HHS: Two Approaches to
Administrative Justice in an Ever-Expanding Bureaucracy, 3 Health Matrix 339, 410–12 (1993)
(discussing importance of the PRRB’s Board Advisors in the processing and decision of cases).
913. Hearings are open to the parties, to CMS representatives, and to “such other persons as the Board
deems necessary and proper.” 42 C.F.R. § 405.1851. Presumably this provision is justified since the
hearings concern private financial information of service providers.
914. 42 C.F.R. § 405.1853(a).
915. 42 C.F.R. § 405.1853(c)–(d).
916. See Admin. Conf. of U.S., Recommendation 2016-2, Aggregate Agency Adjudication, 81 Fed. Reg.
40,259, 40,260 (Jun. 21, 2016), for discussion of aggregate agency adjudication.
917. 42 C.F.R. § 405.1871.
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According to the ACUS database, 3,907 PRRB cases were filed in FY 2013, and
1,833 were decided. This figure for decided cases includes the many cases settled by
negotiation or mediation.
The PRRB’s website listing its substantive decisions918 provides information on
only 25 decisions in 2012, 42 in 2013, 30 in 2014, 30 in 2015, 27 in 2016, and 31 in
2017. I understand that this is the full number of cases decided on the merits. PRRB
issues a much larger number of jurisdictional determinations which concern various
procedural issues arising in its cases. It publishes about 300 jurisdictional decisions
that present important issues but decides many more than that without publishing
the decisions. Many of the Board’s decisions give permission to the claimant to secure
expedited judicial review of issues of law (such as the validity of regulations) that are
outside the Board’s jurisdiction.

918. Ctrs. for Medicare & Medicaid Servs., List of PRRB Decisions, https://www.cms.gov/Regulations-and-Guidance/Review-Boards/PRRBReview/List-of-PRRB-Decisions.html# (last visited July
12, 2018).
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APPENDIX A-12

VETERANS’ BENEFITS 919

This appendix focuses on the Board of Veterans Appeals (BVA), which conducts
Type B adjudication.920
A. VA Claims Adjudication—Introduction
The Department of Veterans Affairs (VA) decides a vast number of benefit claims.921
The caseload is rising steadily. The number of new claims currently exceeds one million per year, but this figure understates the caseload because many such claims seek
several different benefits.922 As of the end of 2017, there were about 327,000 pending
claims before VA Regional Offices (VAROs), which make the initial decision in
claims cases. Of this number, about 74,000 had been pending more than 125 days.923
There have been many criticisms of the VA’s claims process and numerous proposals
for improving it,924 but these are beyond the scope of this appendix.

919. Thanks to James Ridgway, Stacey-Rae Simcox, and Ron Smith for assistance with this appendix.
The system of hearings for resolution of disputes about veterans’ benefits is DOVABENE0001 in the
ACUS website. It lists 34 case types.
920. By statute the BVA shall “conduct hearings and dispose of appeals properly before the Board in a
timely manner.” 38 U.S.C. § 7101.
921. Over 4,500,000 veterans receive pensions or benefits, and about more than one million were
added during the last 4 years. The annual outlay in FY 2015 to pay these benefits is over $63.5 billion.
See U.S. Dep’t of Veterans Affairs, Veterans Benefits Administration Reports, https://www.benefits.
va.gov/reports/detailed_claims_data.asp# (last visited May 5, 2018).
922. See James D. Ridgway, Why So Many Remands? A Comparative Analysis of Appellate Review by
the United States Court of Appeals for Veterans Claims, 1 Veterans L. Rev. 113, 145–50 (2009). Each
unrelated benefit in a claim is referred to as an “issue.” Ridgway observes that 22% of disability claims
had at least eight issues. Id. at 146. He estimates that the number of different benefits sought is at least
double and probably more than triple the number of claims that VA receives each year. In FY 2016, the
BVA decided 52,011 cases, but these cases involved 146,128 issues. Bd. of Veterans’ Appeals Ann.
Rep. 28 (2016) [hereinafter BVA 2016 Ann. Rep.].
923. See U.S. Dep’t of Veterans Affairs, supra note 921. These figures are a remarkable improvement
from the situation a few years ago, apparently achieved by transferring personnel from the appeals level
into claims processing. Michael J. Wishnie, ‘A Boy Gets Into Trouble’ Service Members, Civil Rights, and
Veterans’ Exceptionalism, 97 B.U. L. Rev. 1709 (2017). In 2012, there were 883,930 cases pending and
611,073 pending more than 125 days. As discussed below, however, there are much longer delays at the
BVA level.
924. See, e.g., James D. Ridgway, A Benefits System for the Information Age, 7 Veterans L. Rev. 36 (2015).
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Assessing claims for service-connected disability (by far the most common type
of claim) requires complex medical judgments. The claimant must suffer from a
current disability that is connected to a disease or injury received during service (the
“nexus” requirement). VA assigns a rating (from 0% to 100%) to the disability. It is
estimated that around 88% of claims for disability compensation are granted, at least
in part.925
Claimants who disagree with a VARO decision can seek relief before the BVA.
A veteran who loses before the BVA can obtain judicial review from the Court of
Appeals for Veterans Claims (CAVC). The Court of Appeals for the Federal Circuit
(CAFC) reviews CAVC decisions on questions of statutory or regulatory interpretation. Discussion of the judicial review phase of veterans’ claims is beyond the scope
of this book.
B. The VA Claims Process Is Inquisitorial and Paternalistic
The adjudicatory process for resolving VA claim disputes is uniquely inquisitorial
and paternalistic. Thus, there is no statute of limitations on making a claim. VAROs
are subject to elaborate notice requirements. It must notify the claimant of any
information or evidence that is necessary to substantiate the claim and furnish all
necessary assistance to the claimant in obtaining evidence and medical opinions.926
The various procedural rules are heavily slanted in the direction of assisting veterans
and requiring the VA to develop all issues raised in any documents or testimony. No
government official appears during VARO consideration or BVA hearings to oppose
the granting of benefits. At all levels, the VA must give the veteran the benefit of the
doubt if the positive and negative evidence is approximately balanced.927 A veteran may
“reopen” a rejected application by presenting “new and material evidence,” and some
cases are reopened on multiple occasions (in fact about three-quarters of the claims
filed with the VA are actually reopened claims rather than new ones). A decision by
the VARO or BVA can be administratively set aside at any time if based on a “clear
and unmistakable error.”
The VA’s inquisitorial system of fact determination and decisionmaking is rooted
in the long and convoluted history of veterans’ benefits.928 In the past, these benefits
925. James D. Ridgway, The Veterans’ Judicial Review Act Twenty Years Later, N.Y.U. Ann. Surv. Am.
L. 116 (2010).
926. See 38 U.S.C. §§ 5102(b), 5103(a) (imposing obligations to notify claimant of any information
needed to complete the application or to substantiate the claim); 38 U.S.C. § 5103A (imposing on the
VA an obligation to exercise reasonable efforts to assist the claimant in obtaining evidence and records
and in providing medical examinations and opinions). See Shinseki v. Sanders, 556 U.S. 396, 406–11
(2009) (simplifying rules of prejudicial error when VA fails to follow the notice requirements in the
statute and regulations).
927. 38 U.S.C. § 5107(b).
928. For a detailed account of the history of veterans’ benefits, see James D. Ridgway, The Splendid
Isolation Revisited: Lessons from the History of Veterans’ Benefits Before Judicial Review, 3 Veterans L.
Rev. 135 (2011).
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were regarded as gratuities, not entitlements, and the bureaucratic structure that
delivered the benefits was wholly paternalistic. In a paternalistic system, there was
no place for lawyers or for adversarial procedures like administrative trials.929 Today,
veterans’ benefits are an entitlement, not a gratuity, but the older paternalistic and
inquisitorial decisionmaking process has survived.930 However, the judicial review
system is adversarial, not inquisitorial, and has compelled the VA to move in the
direction of more adversarial claims procedures.931
C. The VA Claims Process—VARO Level932
Various teams at the VAROs process VA claims, but the decision is the responsibility of a single lay adjudicator (referred to herein as a “ratings specialist”).933 The file
includes the detailed medical opinions submitted by the claimant (such as reports of
personal physicians), the VA medical staff, and independent physicians consulted by
the VA. For the most part, the VARO process operates on a documents-only basis
without a personal appearance by the veteran.
Claimants dissatisfied with the VARO decision file a Notice of Disagreement
(NOD). The claimant can obtain a review of the case by a Decision Review Officer
(DRO), a senior VARO adjudicator who has not previously been involved in investigation of the case.934 The DRO may seek additional evidence. At the veteran’s request,
the DRO will provide an informal hearing. If the claimant remains dissatisfied with
the VARO decision after DRO review, the VARO prepares a Statement of the Case
(SOC) which contains detailed findings and an explanation of the decision. Within
60 days from the mailing of the SOC, the veteran must file Form VA-9 to perfect the
right of appeal to the BVA.

929. See Richard E. Levy, Of Two Minds: Charitable and Social Insurance Models in the Veterans Benefit
System, 13 Kan. J.L. & Pub. Pol’y 303, 304–15 (2003) (distinguishing the paternalistic model from
the social insurance model applicable to more modern benefit programs).
930. Even the judicial review system has paternalistic elements. By statute a claimant must file an
appeal with CAVC within 120 days after mailing of the BVA’s decision. This deadline is not “jurisdictional,” so it is subject to equitable tolling. The paternalistic nature of VA benefits was an important
factor in the Supreme Court’s decision on this point. “What is most telling [of Congress’ intent in
imposing the 120-day rule] are the singular characteristics of the review scheme that Congress created
for the adjudication of veterans’ benefit claims. The solicitude of Congress for veterans is of long
standing . . . . And that solicitude is plainly reflected in the VJRA, as well as in subsequent laws that
place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of
VA decisions . . . .” Henderson v. Shinseki, 562 U.S. 428, 440 (2011) (internal citations and quotation
marks deleted).
931. See Ridgway, supra note 924, at 45–47; Charles L. Cragin, The Impact of Judicial Review on the
Department of Veterans Affairs’ Claim Adjudication Process: The Changing Role of the Board of Veterans’
Appeals, 46 Me. L. Rev. 23 (1994).
932. For an outline of the claims process, see U.S. Dep’t of Veterans Affairs, Compensation, http://
www.benefits.va.gov/compensation/process.asp (last visited July 12, 2018).
933. 38 C.F.R. § 3.103(c)(1).
934. 38 C.F.R. § 3.2600.
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Congress enacted the Veterans Appeals Improvement and Modernization Act
in 2017.935 The Act goes into effect in 2019 and is currently being implemented by
administrative action.936 It allows a claimant who has been rejected by the VARO
officer to choose one of three alternatives. The claimant can obtain a closed-record
appeal from a higher-level VARO review officer (apparently replacing the DRO).
The claimant can elect to submit new evidence to the same VARO official who had
denied the claim. Or the claimant can get an immediate appeal to the BVA. The Act
also limits the VA’s obligation to assist the veteran. This appendix does not further
discuss the provisions of the 2017 Act.
D. The Board of Veterans Appeals (BVA)
The BVA’s decision is de novo but is based primarily on the written record made at
the VARO level.937 Claimants frequently seek to introduce new evidence at the BVA
level. If the claimant waives remand to the VARO to evaluate the new evidence, the
BVA judge considers this evidence and decides the case accordingly.938 BVA is required
to consider and decide every possible issue or claim raised by the appellant’s appeal
documents as well as the documents and oral testimony submitted prior to the Board’s
decision.939 BVA is pursuing legislative changes to the appeals process which would,
among other things, preclude appellants to the BVA from introducing new evidence
and might well speed up the incredibly slow process of BVA review by eliminating
some of the time-consuming procedural steps in existing practice.940
The BVA has about 72 Veterans Law Judges (VLJs). The BVA decided about
52,011 cases in FY 2016. The Board states that it renders 660 decisions per fulltime
VLJ (up from 532 in FY 2013 and 645 in FY 2015).
During FY 2016, BVA provided 13,353 oral hearings (of the total of 52,011 decisions). Requesting a hearing considerably prolongs the BVA decisional process, so the
great majority of the claimants waive the hearing; their cases are decided on the written
record. Single VLJs conduct BVA hearings either in person or by video-conference. The

935. Pub. L. No. 115-55, 131 Stat. 1105.
936. See Robert Chisholm, An On-Ramp to the Future of VA Appeals, 43 Admin. & Reg. L. News 6,
Spring 2018.
937. 38 U.S.C. § 7104(a). 38 C.F.R. § 19.4.
938. 38 C.F.R. §§ 19.9(b), (d)(3), 20.1304(c) (new evidence can be introduced before BVA if appellant waives the right to have it considered by the regional office or if the Board believes that the new
evidence will enable it to award benefits).
939. Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) (citing numerous cases).
940. BVA 2016 Ann. Rep., supra note 922, at 9.
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proceedings are quite informal.941 The Board handled about 61% of its oral hearings by
video-conference in FY 2016 and hopes to increase this percentage.942
During FY 2016, the Board received 86,386 cases. It expects to receive 92,868
cases in FY 2017. At the end of FY 2016, the Board’s backlog was about 115,847
cases. The waiting time between the filing of a NOD and a BVA decision averaged
six years in FY 2016;943 the period between the time an appeal was received by BVA
and the time of decision was about 374 days. If the BVA remands the case, the remand
proceedings averaged 422 days.
Of the 52,011 decisions in FY 2016, the Board allowed 31.8% of the appeals,
remanded 46.0%, and denied 18.0%.944
The regulations do not prohibit ex parte communications with BVA judges,
either by VA personnel or by outsiders, and it is unknown whether such communications occur. The regulations do not provide for any ADR in BVA cases. The BVA
employs pre-hearing conferences or other case management procedures, especially in
the case of unrepresented claimants.945
E. Representation in the VA Claims Process
VA practice at the VARO level is mostly de-lawyered. Veterans are usually represented at both the VARO and BVA levels by lay representatives supplied free by
veteran service organizations (VSOs) such as the American Legion.946 Veterans are
seldom represented by lawyers during the VARO process because the statute prohibits compensation of lawyers before the filing of a NOD.947 The regulations permit

941. See Bd. of Veterans’ Appeals, U. S. Dep’t of Veterans Affairs, How Do I Appeal?
(May 2015).
942. At present, the video-conference system is not very convenient because the terminals are often
located far from veterans and their representatives. However, BVA is working to improve access to
terminals. Email from Stacey-Rae Simcox to Michael Asimow (Jan. 5, 2016).
943. The delay in preparing the statement of the case at the VARO level was 480 days; it took an additional 644 days to certify the record to the BVA. BVA 2016 Ann. Rep. supra note 922, at 22.
944. Id. In FY 2016, 4.2% of the cases were classified as “other” (apparently meaning dismissal).
945. 38 CFR § 20.708; Vogelmann, supra note 310, at 32.
946. See 38 C.F.R. §§ 14.628, 14.629(a). All representatives (including those employed by the VSOs)
are subject to a code of conduct and to suspension from practice for violations. 38 U.S.C. § 5904(a); 38
C.F.R. § 14.632. In 2014, VSOs represented claimants in 76.8% of BVA cases; attorneys represented
veterans in 10.9% of BVA cases; claimants represented themselves in 9.4% of cases; and “others” represented claimants in 2.9% of cases.
947. 38 U.S.C. § 5904(c)(1). This statute formerly prohibited compensation of attorneys at any stage of
the VA claims process in excess of $10. The Supreme Court upheld the constitutionality of the $10 fee
limit on compensation of attorneys in Walters v. National Association of Radiation Survivors, 473 U.S.
3045 (1985). The Court believed that the presence of attorneys would be detrimental to the paternalistic and inquisitorial VA adjudication system. It also believed that the free VSO representatives probably
did about as good a job as attorneys. For criticism of the assumptions in Walters in light of present day
realities at the VA, see Stacey Rae-Simcox, Thirty Years After Walters, 84 U. Cin. L. Rev. 671 (2015).
After Walters, Congress permitted compensation of attorneys after the veteran files a NOD.
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representation by non-lawyer “agents” (who must pass an examination and take CLE
courses) and by other lay representatives on a one-time only basis.948 The success rate of
lawyers and non-lawyer representatives before BVA is similar, but attorneys had a clear
edge in denied cases.949
About 10% of veterans are self-represented before the BVA. Consistent with its
paternalistic roots, the VA provides significant assistance to self-represented parties (as
well as to those represented by lawyers or lay representatives). In addition to pre-hearing conferences, used to “make the claimant feel comfortable and able to present
his or her case,”950 the various rules requiring the VA to assist the claimant, giving
claimant the benefit of the doubt, permitting the record to be supplemented before
the BVA, flexible deadlines, and leaving the record open to allow additional evidence,
are all particularly helpful to self-represented parties. The VA also provides helpful
plain-English manuals on its website and maintains call centers to assist claimants.951

948. 38 C.F.R. § 14.630.
949. Attorneys were successful in 35.5% of their cases, agents 30.3%, others 28.1%, and no representation 22%. The various VSOs fell within a range of 28.1% (American Legion) to 35.7% (Military Order
of the Purple Heart). In the defeat column, lawyers lost 13.7% of their cases while the VSO’s were in
a range of 18.7% (Paralyzed Veterans of America) to 23.6% (State Service Organizations). BVA 2016
Ann. Rep. supra note 922, at 27. These statistics do not cover success rates at the VARO level, only
the BVA level. There is no empirical evidence about whether the VSO representatives or the agents
perform as well as lawyers.
950. Vogelmann, supra note 310, at 32.
951. Id. at 32–34.
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APPENDIX B
ADMINISTRATIVE CONFERENCE
Recommendation 2016-4
Evidentiary Hearings Not Required
by the Administrative Procedure Act
Adopted December 13, 2016

Federal administrative adjudication can be divided into three categories:
(a) Adjudication that is regulated by the procedural provisions of the
Administrative Procedure Act (APA) and usually presided over by an
administrative law judge (referred to as Type A in the report that underlies
this recommendation and throughout the preamble)1;
(b) Adjudication that consists of legally required evidentiary hearings
that are not regulated by the APA’s adjudication provisions in 5 U.S.C. §§
554 and 556–557 and that is presided over by adjudicators who are often
called administrative judges, though they are known by many other titles
(referred to as Type B in the report that underlies this recommendation and
throughout the preamble)2; and
(c) Adjudication that is not subject to a legally required (i.e., required
by statute, executive order, or regulation) evidentiary hearing (referred to as
Type C in the report that underlies this recommendation and throughout
the preamble).3

1. See Administrative Procedure Act, 5 U.S.C. §§ 554–559 (2012). In a few kinds of cases, the “presiding employees” in APA hearings are not administrative law judges. Congress may provide for a
presiding employee who is not an ALJ. See id. § 556(b).
2. This type of adjudication is subject to 5 U.S.C. § 555 (requiring various procedural protections in all
adjudication) and 5 U.S.C. § 558 (relating to licensing), as well as the APA’s judicial review provisions.
3. See generally Michael Asimow, Evidentiary Hearings Outside the Administrative Procedure Act
(Nov. 10, 2016) [hereinafter Asimow], available at https://www.acus.gov/report/evidentiary-hearings-outside-administrative-procedure-act-final-report.
Appendix B

183

This recommendation concerns best practices for the second category of adjudication, that is, Type B adjudication.4 In these adjudications, although there is no
statutory mandate to hold an “on the record” hearing,5 a statute, regulation, or other
source of law does require the agency to conduct an evidentiary hearing. Because the
APA’s adjudication provisions in 5 U.S.C. §§ 554 and 556–557 are not applicable to
these adjudications, the procedures that an agency is required to follow are set forth
elsewhere, most commonly in its own procedural regulations.
Type B adjudications are extremely diverse.6 They involve types of matters
spanning many substantive areas, including immigration, veterans’ benefits, environmental issues, government contracts, and intellectual property. Some involve
disputes between the federal government and private parties; others involve disputes
between two private parties. Some involve trial-type proceedings that are at least as
formal as Type A adjudication. Others are quite informal and can be decided based
only on written submissions. Some proceedings are highly adversarial; others are
inquisitorial.7 Caseloads vary. Some have huge backlogs and long delays; others seem
relatively current. The structures for internal appeal also vary.
The purpose of this recommendation is to set forth best practices that agencies
should incorporate into regulations governing hearing procedures in Type B adjudications. The procedures suggested below are highlighted as best practices because they
achieve a favorable balance of the criteria of accuracy (meaning that the procedure
produces a correct and consistent outcome), efficiency (meaning that the procedure
minimizes cost and delay), and acceptability to the parties (meaning that the procedure meets appropriate standards of procedural fairness).
Some of the best practices set forth in this recommendation may not be applicable
or desirable for every Type B adjudicatory program. Accordingly, the recommendation does not attempt to prescribe the exact language that the agency should employ

4. Traditionally, Type A adjudication has been referred to as “formal adjudication” and Type B
and Type C adjudication have been treated in an undifferentiated way as “informal adjudication.”
This recommendation does not use that terminology for several reasons. First, the nature of Type B
adjudication as involving a legally required hearing sharply distinguishes it from Type C adjudication
and makes it feasible to prescribe best practices. Second, the term “informal adjudication” can be a
misnomer when applied to Type B adjudication; in fact, Type B adjudication is often as “formal” or
even more “formal” than Type A adjudication. Finally, Type C adjudication—which can properly
be referred to as “informal adjudication”—is an enormous category, consisting of many millions of
adjudications each year. This type of adjudication is highly diverse and does not easily lend itself to an
overarching set of best practices.
5. See id. at 7–9 (discussing the boundary between Type A and Type B adjudication).
6. See generally id. (describing the vast variety of evidentiary hearings that are not required by the
APA). See also Federal Administrative Adjudication, available at https://www.acus.gov/research-projects/federal-administrative-adjudication (providing an extensive database that maps the contours of
administrative adjudication across the federal government).
7. See Asimow, supra note 3, at 11–12, 84–88 (providing examples of inquisitorial adjudications).
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in its procedural regulations.8 This recommendation should be particularly useful
to agencies that are either fashioning procedural regulations for new adjudicatory
programs or seeking to revise their existing procedural regulations.
RECOMMENDATION
Integrity of the Decisionmaking Process
1. E
 xclusive Record. Procedural regulations should require a decision to be based
on an exclusive record. That is, decisionmakers should be limited to considering factual information presented in testimony or documents they received
before, at, or after the hearing to which all parties had access, and to matters
officially noticed.
2. E
 x Parte Communications. Procedural regulations should prohibit ex parte
communications relevant to the merits of the case between persons outside
the agency and agency decisionmakers or staff who are advising or assisting
the decisionmaker. Communications between persons outside the agency and
agency decisionmakers or staff who advise or assist decisionmakers should
occur only on the record. If oral, written, or electronic ex parte communications occur, they should be placed immediately on the record.
3. S eparation of Functions. In agencies that have combined functions of investigation, prosecution, and adjudication, procedural regulations should require
internal separation of decisional and adversarial personnel. The regulations
should prohibit staff who took an active part in investigating, prosecuting,
or advocating in a case from serving as a decisionmaker or staff advising or
assisting the decisionmaker in that same case. Adversary personnel should
also be prohibited from furnishing ex parte advice or factual materials to a
decisionmaker or staff who advise or assist decisionmakers.
4. S taff Who Advise or Assist Decisionmakers. Procedural regulations should
explain whether the agency permits ex parte advice or assistance to decisionmakers by staff. The staff may not have taken an active part in investigating,
prosecuting, mediating, or advocating in the same case (see paragraph 3).
The advice should not violate the exclusive record principle (see paragraph 1)
by introducing new factual materials. The term “factual materials” does not
8. Drafters of procedural regulations implementing these best practices may want to consult the
Conference-prepared 1993 Model Adjudication Rules for guidance on language, though those
rules are directed to adjudication governed by the APA. See Michael Cox, The Model Adjudication
Rules (MARS), 11 T.M. Cooley L. Rev. 75 (1994). The Conference has initiated a new Model
Adjudication Rules Working Group to revise the model rules. See Admin. Conf. of the U.S., Office
of the Chairman Model Adjudication Rules Working Group, available at https:// www.acus.gov/
research-projects/office-chairman-model-adjudication-rules-working-group for more information.
Appendix B

185

include expert, technical, or other advice on the meaning or significance of
“factual materials.”
5. B
 ias. Procedural regulations should prohibit decisionmaker bias in adjudicatory proceedings by stating that an adjudicator can be disqualified if any of
the following types of bias is shown:
a. Improper financial or other personal interest in the decision;
b. Personal animus against a party or group to which that party belongs; or
c. Prejudgment of the adjudicative facts at issue in the proceeding.
Procedural regulations and manuals should explain when and how parties
should raise claims of bias, and how agencies resolve them.
Pre-Hearing Practices
6. N
 otice of Hearing. Procedural regulations should require notice to parties by
appropriate means and sufficiently far in advance so that they may prepare
for hearings. The notice should contain a statement of issues of fact and law
to be decided. In addition, the notice should be in plain language and, when
appropriate, contain the following basic information about the agency’s
adjudicatory process:
a. Procedures for requesting a hearing;
b. Discovery options, if any (see paragraph 10);
c. I nformation about representation, including self-representation and
non-lawyer or limited representation, if permitted (see paragraphs 13–16),
and any legal assistance options;
d. Available procedural alternatives (e.g., in-person, video, or telephonic hearings (see paragraph 20); written and oral hearings (see paragraph 21); and
alternative dispute resolution (ADR) opportunities (see paragraph 12));
e. Deadlines for filing pleadings and documents;
f. Procedures for subpoenaing documents and witnesses, if allowed (see
paragraph 11);
g. Opportunity for review of the initial decision at a higher agency level (see
paragraph 26);
h. Availability of judicial review; and
i. Website address for and/or citation to the procedural regulations and any
practice manuals.
7. Confidentiality. Procedural regulations should provide a process by which the
parties may seek to keep certain information confidential or made subject to a
protective order in order to protect privacy, confidential business information,
or national security.
8. P
 re-Hearing Conferences. Procedural regulations should allow the decisionmaker discretion to require parties to participate in a pretrial conference if the
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Federal Administrative Adjudication Outside the Administrative Procedure Act

decisionmaker believes the conference would simplify the hearing or promote
settlement. The decisionmaker should require that (a) parties exchange witness
lists and expert reports before the pretrial conference and (b) both sides be
represented at the pretrial conference by persons with authority to agree to
a settlement.
9. Inspection of Materials. Procedural regulations should permit parties to inspect
unprivileged materials in agency files that are not otherwise protected.
10. D
 iscovery. Agencies should empower their decisionmakers to order discovery
through depositions, interrogatories, and other methods of discovery used in
civil trials, upon a showing of need and cost justification.
11. S ubpoena Power. Agencies with subpoena power should explain their subpoena practice in detail. Agencies that do not have subpoena power should
seek congressional approval for subpoena power, when appropriate.
12. Alternative Dispute Resolution. Agencies should encourage and facilitate
ADR, and ensure confidentiality of communications occurring during the
ADR process.
Hearing Practices
13. Lawyer Representation. Agencies should permit lawyer representation.
14. Non-Lawyer Representation. Agencies should permit non-lawyer representation. Agencies should have the discretion to (a) establish criteria for
appearances before the agency by non-lawyer representatives or (b) require
approval on a case-by-case basis.9
15. L
 imited Representation. Agencies should permit limited representation by
lawyers or non-lawyers, when appropriate (i.e., representation of a party with
respect to some issues or during some phases of the adjudication).
16. S elf-Representation. Agencies should make hearings as accessible as possible to
self-represented parties by providing plain language resources, legal information, and other assistance, as allowed by statute and regulations.10
9. Agencies should refer to Recommendation 86-1, Nonlawyer Assistance and Representation, 51 Fed. Reg.
25,641 (June 16, 1986), available at https://www.acus.gov/recommendation/nonlawyer-assistance-and-representation, when establishing or improving their procedures related to non-lawyer representation.
10. Agencies should refer to Recommendation 2016-6, Self-Represented Parties in Administrative
Hearings, 81 Fed. Reg. 94,319 (Dec. 23, 2016), available at https://www.acus.gov/recommendation/
self-represented-parties-administrative-proceedings-final-recommendation, when establishing or
improving their procedures related to self-represented parties.
Appendix B

187

17. Sanctions. Agencies with the requisite statutory power should authorize
decisionmakers to sanction attorneys and parties for misconduct. Sanctions
can include admonitions, monetary fines, and preclusion from appearing
before the agency. Agencies should have a mechanism for administrative
review of any sanctions.
18. O
 pen Hearings. Agencies should adopt the presumption that their hearings
are open to the public, while retaining the ability to close the hearings in
particular cases, including when the public interest in open proceedings is
outweighed by the need to protect:
a. National security;
b. Law enforcement;
c. Confidentiality of business documents; and
d. Privacy of the parties to the hearing.
19. Adjudicators. Agencies that decide a significant number of cases should use
adjudicators—rather than agency heads, boards, or panels—to conduct
hearings and provide initial decisions, subject to higher-level review (see
paragraph 26).
20. V
 ideo Teleconferencing and Telephone Hearings. Agencies should consult the
Administrative Conference’s recommendations11 in determining whether
and when to conduct hearings or parts of hearings by video conferencing
or telephone.
21. W
 ritten-Only Hearings. Procedural regulations should allow agencies to
make use of written-only hearings in appropriate cases. Particularly good
candidates for written-only hearings include those that solely involve disputes
concerning:
a. Interpretation of statutes or regulations; or
b. Legislative facts as to which experts offer conflicting views.
Agencies should also consider the adoption of procedures for summary judgment in cases in which there are no disputed issues of material fact.

11. Agencies should refer to Recommendation 2011-4, Agency Use of Video Hearings: Best Practices and Possibilities for Expansion, 76 Fed. Reg. 48,795 (Aug. 9, 2011), available at https://www.
acus.gov/recommendation/agency-use-video-hearings-best-practices-and-possibilities-expansion;
Recommendation 2014-7, Best Practices for Using Video Teleconferencing for Hearings, 79 Fed.
Reg. 75,119 (Dec. 17, 2014), available at https://www.acus.gov/ recommendation/best-practices-using-video-teleconferencing-hearings; and the Conference’s Handbook on Best Practices for
Using Video Teleconferencing in Adjudicatory Hearings, available at https://www.acus.gov/report/
handbook-best-practices-using-video-teleconferencing-adjudicatory-hearings, when establishing or
improving their video teleconferencing hearings.
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22. O
 ral Argument. Agencies generally should permit oral argument in connection with a written-only hearing if a party requests it, while retaining the
discretion to dispense with oral argument if it appears to be of little value in
a given case or parts of a case.
23. E
 videntiary Rules. Procedural regulations should prescribe the evidentiary
rules the decisionmaker will apply in order to avoid confusion and time-consuming evidentiary disputes.12
24. Opportunity for Rebuttal. Agencies should allow an opportunity for rebuttal,
which can take the form of cross-examination of an adverse witness as well
as additional written or oral evidence. Agencies should have the discretion
to limit or preclude cross-examination or have it be conducted in camera in
appropriate cases, such as when:
a. T he dispute concerns a question of legislative fact where the evidence
consists of expert testimony;
b. Credibility is not at issue;
c. The only issue is how a decisionmaker should exercise discretion;
d. National security could be jeopardized; or
e. The identity of confidential informants might be revealed.
Post-Hearing Practices
25. Decisions. Procedural regulations should require the decisionmaker to provide
a written or transcribable decision and specify the contents of the decision.
The decision should include:
a. Findings of fact, including an explanation of how the decisionmaker made
credibility determinations; and
b. Conclusions of law, including an explanation of the decisionmaker’s
interpretation of statutes and regulations.
26. Higher-Level Review. Apart from any opportunity for reconsideration by
the initial decisionmaker, procedural regulations should provide for a higher-level review of initial adjudicatory decisions. Agencies should give parties
an opportunity to file exceptions and make arguments to the reviewing
authority. The reviewing authority should be entitled to summarily affirm
the initial decision without being required to write a new decision.

12. Agencies should refer to Recommendation 86-2, Use of Federal Rules of Evidence in Federal
Agency Adjudications, 51 Fed. Reg. 25,642 (June 16, 1986), available at https://www.acus.gov/recommendation/use-federal-rules-vidence-federal-agency-adjudications, when considering whether or how
to use the Federal Rules of Evidence.
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189

27. Precedential Decisions. Procedural regulations should allow and encourage
agencies to designate decisions as precedential in order to improve decisional
consistency. These decisions should be published on the agency’s website to
meet the requirements of 5 U.S.C. § 552.
Management of Procedures
28. C
 omplete Statement of Important Procedures. Agencies should set forth all
important procedures and practices that affect persons outside the agency
in procedural regulations that are published in the Federal Register and the
Code of Federal Regulations and posted on the agency website.
29. Manuals and Guides. Agencies should provide practice manuals and guides
for decisionmakers, staff, parties, and representatives in which they spell out
the details of the proceeding and illustrate the principles that are set forth in
regulations. These manuals and guides should be written in simple, non-technical language and contain examples, model forms, and checklists, and they
should be posted on the agency website.
30. R
 eview of Procedures. Agencies should periodically re-examine and update
their procedural regulations, practice manuals, and guides.
31. F
 eedback. Agencies should seek feedback from decisionmakers, staff, parties,
representatives, and other participants in order to evaluate and improve their
adjudicatory programs.

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APPENDIX C
ADMINISTRATIVE CONFERENCE
Recommendation 2018-3
Electronic Case Management in
Federal Administrative Adjudication
Adopted June 15, 2018

C

ourts and adjudicative agencies have increasingly come to rely on technology
to manage various aspects of their adjudicative activities. Some of these federal
agencies have adopted and implemented a form of electronic management for their
casework, but others have not done so. Although practical considerations or resource
constraints may sometimes weigh against the use of an electronic case management
system (eCMS), agencies can often realize considerable efficiencies and reap other
benefits by adopting such a system.
Benefits of an Electronic Case Management System
As referred to here, an electronic case management system includes the functions
usually associated with a paper-based case management system from the filing of a
case to its resolution and beyond, such as: the initial receipt of the claim, complaint,
or petition; the receipt, organization, and secure storage of evidence and briefs; the
scheduling of hearings or other proceedings; the maintenance of tools to facilitate the
analysis and resolution of the case; and the collection and reporting of data relating to
the case, including when evidence was received, the time the case has remained pending, employees who have processed the case, and the outcome of the case, including
any agency decision.

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191

An eCMS, properly implemented, may perform these functions in a more efficient and cost-effective manner than a paper-based management system.1 For example,
maintaining paper records can be costly with respect to storage space, mailing fees,
and staff time for agency employees needed to receive, store, track, and retrieve records,
and locate lost or misfiled records. An eCMS may reduce these costs in addition to
reducing processing time and improving interactions with litigants and the public.
In addition to improving the traditional functions of a paper-based case management
system, an eCMS may also provide new functionalities, such as making structured
data available for analysis that can be used to improve an agency’s operations.
Perhaps more importantly, an eCMS can assist adjudicative agencies in fulfilling their duties under various laws that impose requirements related to paperwork
reduction, agency efficiency, public access to records, and technology management.
For example, the Government Paperwork Elimination Act requires that federal
agencies use electronic forms, electronic filing, and electronic signatures to conduct
official business with the public, when practicable.2 Further, the E-Government Act
of 2002 directs agencies to establish “a broad framework of measures that require
using Internet-based information technology to improve citizen access to government
information and services.”3 And finally, beyond statutory requirements, an eCMS
can also assist an agency’s implementation of best practices for public access and participation, consistent with the objectives of past ACUS recommendations relating to
both adjudication and rulemaking.4
Considerations in Adopting an Electronic Case Management System
Despite the advantages of an eCMS, the decision to implement an eCMS must be
carefully considered. It may not be cost efficient for every adjudicative agency to
implement an eCMS given agency-specific factors such as caseload volume. For
example, there may be significant costs associated with the development, purchase,
and maintenance of new hardware and software. Further, the need to train agency
staff in new business processes associated with the eCMS may also be significant,
as the new operations may be substantially different. In addition, an agency may
need to allocate resources to ensure that any new eCMS complies with existing legal

1. Felix F. Bajandas & Gerald K. Ray, Implementation and Use of Electronic Case Management Systems in Federal Agency Adjudication (May 23, 2018) (report to the Admin. Conf. of the U.S.), https://
acus.gov/report/final-report-implementation-and-use-electronic-case-management-systems-federal-agency.
2. Government Paperwork Elimination Act, Pub. L. No. 105-277, 112 Stat. 2681-749 (1998) (codified
at 44 U.S.C. § 3504 note).
3. E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899 (codified at 44 U.S.C. § 101 note).
4. See Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication Materials on Agency Websites,
82 Fed. Reg. 31,039, 31,039 (Jul. 5, 2017); Admin. Conf. of the U.S., Recommendation 2013-5, Social
Media in Rulemaking, 78 Fed. Reg. 76,269, 76,269 (Dec. 17, 2013); and Admin. Conf. of the U.S., Recommendation 2011-1, Agency Innovations in E-Rulemaking, 77 Fed. Reg. 2,257, 2,264 (Jan. 17, 2012).
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requirements, such as the protection of private information about individuals, as
required by the Privacy Act.5
If, after considering the costs, an agency decides to implement an eCMS to partially or fully replace a paper-based case management system, the agency must consider
a number of factors in deciding what particular eCMS features are to be used and how
they are to be designed and implemented. Planning for an eCMS implementation
thus requires a comprehensive understanding of an agency’s structure and business
process. Agencies considering implementing or enhancing an eCMS may find further
benefit in studying the experiences of other agencies’ eCMS implementations, and
they should examine those experiences carefully, due to the highly fact-specific nature
of a consideration of the costs and benefits of an eCMS.
The implementation or expansion of an eCMS deserves full and careful consideration by federal adjudicative agencies, with recognition that each agency is unique
in terms of its mission, caseload, and challenges. This Recommendation suggests that
agencies implement or expand an eCMS only when they conclude, after conducting
a thorough consideration of the costs and benefits, that doing so would lead to
benefits such as reduced costs and improved efficiency, accuracy, public access, and
transparency without impairing the fairness of the proceedings or the participants’
satisfaction with them.
RECOMMENDATION
1. Federal adjudicative agencies should consider implementing electronic case
management systems (eCMS) in order to reduce costs, expand public access
and transparency, increase both efficiency and accuracy in the processing of
cases, identify opportunities for improvement through the analysis of captured
data, and honor statutory requirements such as the protection of personally
identifiable information.
2. Federal adjudicative agencies should consider whether their proceedings are
conducive to an eCMS and whether their facilities and staff can support the
eCMS technology. If so, agencies should then consider the costs and benefits
to determine whether the implementation or expansion of an eCMS would
promote the objectives identified in Recommendation 1 as well as the agency’s
statutory mission without impairing the fairness of proceedings or the participants’ satisfaction with them. This consideration of the costs and benefits
should include the following non-exclusive factors:
a. Whether the agency’s budget would allow for investment in appropriate
and secure technology as well as adequate training for agency staff.

5. Privacy Act of 1974 (codified at 5 U.S.C. § 552a), as amended by the FOIA Improvement Act of
2016, Pub. L. No. 114-185, 130 Stat. 538 (codified at 5 U.S.C. § 101 note).
Appendix C

193

b. Whether the use of an eCMS would reduce case processing times and save
costs, including printing of paper and the use of staff resources to store,
track, retrieve, and maintain paper records.
c. Whether the use of an eCMS would foster greater accessibility and better
public service.
d. Whether users of an eCMS, such as administrative law judges, other adjudicators, other agency staff, parties, witnesses, attorneys or other party
representatives, and reviewing officials would find the eCMS beneficial.
e. Whether the experiences of other agencies’ eCMS implementations provide insight regarding other factors which may bear on the manner of an
eCMS implementation.
3. The following possible eCMS features, currently implemented by some federal
adjudicative agencies, should be considered by other agencies for their potential benefits:
a. Web access to the eCMS that allows parties the flexibility to file a claim,
complaint, or petition; submit documents; and obtain case information
at any time.
b. Streamlining of agency tasks in maintaining a case file, such as sorting
and organizing case files, providing simultaneous access to files and
documents by authorized users, tracking deadlines and elapsed age of a
case, notifying parties of new activity in a case, and pre-populating forms
with data from the case file.
c. T he comprehensive capture of structured and unstructured data that
allows for robust data analysis to identify opportunities for improving
an agency’s operations, budget formulation, and reporting.
d. Streamlined publication of summary data on agency operations.
4. Federal adjudicative agencies that decide to implement or expand an eCMS
should plan and manage their budgets and operations in a way that balances
the needs of a sustainable eCMS with the possibility of future funding limitations. Those agencies should also:
a. Consider the costs associated with building, maintaining, and improving
the eCMS.
b. Consider whether the adoption of an eCMS requires modifications of
an agency’s procedural rules. This would include addressing whether the
paper or electronic version of a case file will constitute the official record
of a case and whether filing methods and deadlines need to be changed.
c. Consider whether to require non-agency individuals to file claims, complaints, petitions, and other papers using the eCMS. Such consideration
should include the accessibility, suitability, usability, and burden of the
eCMS for its likely user population, and whether creating exceptions
to electronic filing procedures would assist in maintaining sufficient
public access.
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d. Create a map or flow chart of their adjudicative processes in order to
identify the needs of an eCMS. This involves listing the tasks performed
by employees at each step in the process to ensure the eCMS captures all
of the activities that occur while the case is pending, from initial filing to
final resolution. It also includes identifying how members of the public
or other non-agency users will access and interact with the eCMS. To the
extent practical, this effort should also involve mapping or flow-charting
the legal and policy requirements to decisional outcomes.
e. Put in place a management structure capable of: (1) restoring normal
operations after an eCMS goes down (incident management); (2) eliminating recurring problems and minimizing the impact of problems
that cannot be prevented (problem management); (3) overseeing a new
release of an eCMS with multiple technical or functional changes (release
management); (4) handling modifications, improvements, and repairs to
the eCMS to minimize service interruptions (change management); and
(5) identifying, controlling, and maintaining the versions of all of the
components of the eCMS (configuration management).
f. Establish a “service desk,” which is a central hub for reporting issues with
the eCMS, providing support to eCMS users, and receiving feedback on the
resolution of problems. A service desk should gather statistics of eCMS issues
in order to help guide future improvements of the eCMS. A service desk could
also enable eCMS users to offer suggestions for improving the eCMS.
g. Plan adequate and timely training for staff on the use of the eCMS.
5. Federal adjudicative agencies that decide to implement or expand an eCMS
must do so in such a way that appropriate protections for privacy, transparency,
and security are preserved by:
a. Ensuring that the agency’s compliance with the Privacy Act, other statutes
protecting privacy, and the agency’s own privacy regulations and policies
remains undiminished by the implementation or expansion of an eCMS.
b. To the extent it is consistent with Recommendation 5(a) above, making
case information available online to parties and, when appropriate, the
public, taking into account both the interests of transparency (as embodied in, for example, the Freedom of Information Act’s proactive disclosure
requirements) as well as the benefits of having important adjudicative
documents publicly available.
c. Adopting security measures, such as encryption, to ensure that information
held in an eCMS cannot be accessed or changed by unauthorized persons.
d. Ensuring that sensitive information is not provided to unintended third
parties through private email services, unsecured data transmission,
insider threats, or otherwise.

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195

e. Keeping track of the evolution of security technologies and considering
the adoption of those technologies as they mature in order to ensure the
integrity of agency information systems.
6. Federal adjudicative agencies that decide to implement or expand an eCMS
should consider how to analyze and leverage data that is captured by the eCMS
to improve their adjudicative processes, including through the use of natural
language processing, machine learning, and predictive algorithms. Agencies
should consider:
a. Evaluating how eCMS features could generate the types of data that
would be useful for evaluating the effectiveness of their adjudicative
processes and policies.
b. Capturing and analyzing such data about adjudicative processes and
policies to detect and define problem areas that present opportunities
for improvement.
c. Upon identification of areas for improvement in the adjudication process,
taking corrective action, refining performance goals, and measuring
performance under the newly improved process.
d. Hiring staff trained in data science to facilitate data analysis and giving
that staff access to subject matter experts within agencies.
7. Collaborating with other agencies on best practices for data analytics.

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APPENDIX D
ADMINISTRATIVE CONFERENCE
Recommendation 2016-6
Self-Represented Parties in Administrative
Proceedings
Adopted December 14, 2016

F

ederal agencies conduct millions of proceedings each year, making decisions that
affect such important matters as disability or veterans’ benefits, immigration
status, and home or property loans. In many of these adjudications, claimants appear
unrepresented for part or all of the proceeding and must learn to navigate hearing
procedures, which can be quite complex, without expert assistance.1 The presence
of self-represented parties in administrative proceedings can create challenges for
both administrative agencies and for the parties seeking agency assistance. Further,
the presence of self-represented parties raises a number of concerns relating to the
consistency of outcomes and the efficiency of processing cases.
Because of these concerns, in the spring of 2015 the Department of Justice’s
Access to Justice Initiative asked the Administrative Conference to co-lead a working
group on self-represented parties in administrative proceedings, and the Conference
agreed. The working group, which operates under the umbrella of the Legal Aid

1. The term “self-represented” is used to denote parties who do not have professional representation,
provided by either a lawyer or an experienced nonlawyer. Representation by a non-expert family
member or friend is included in this recommendation’s use of the term “self-represented.” Administrative agencies generally use the term “self-represented,” in contrast to courts’ use of the term pro
se. Because this recommendation focuses on agency adjudication, it uses the term “self-represented,”
while acknowledging that the two terms are effectively synonymous.
Appendix D

197

Interagency Roundtable (LAIR), has been meeting since that time.2 During working group meetings, representatives from a number of agencies, including the Social
Security Administration (SSA), Executive Office for Immigration Review (EOIR),
Board of Veterans’ Appeals (BVA), Internal Revenue Service (IRS), Department
of Health and Human Services (HHS), Department of Agriculture (USDA), and
Department of Housing and Urban Development (HUD) participated and shared
information about their practices and procedures relating to self-represented parties.
In working group meetings, agency representatives agreed that proceedings involving
self-represented parties are challenging, and expressed interest both in learning more
about how other agencies and courts handle self-represented parties and in improving
their own practices. This recommendation, and its accompanying report,3 arose in
response to those concerns.4
While civil courts have long recognized and worked to address the challenges
introduced by the presence of self-represented parties, agencies have increasingly
begun to focus on issues relating to self-representation only in recent years. Agencies are undertaking numerous efforts to accommodate self-represented parties in
their adjudication processes.5 Yet quantitative information on self-representation
in the administrative context is comparatively scarce, and there is much insight to
be gained from the civil courts in identifying problems and solutions pertaining to
self-representation. Although there are important differences between procedures in
administrative proceedings and those in civil courts, available information indicates
that the two contexts share many of the same problems—and solutions—when dealing with self-represented parties.
Challenges related to self-represented parties in administrative proceedings can
be broken down into two main categories: those pertaining to the efficiency of the
administrative proceeding and those relating to the outcome of the procedure.
From an efficiency standpoint, self-represented parties’ lack of familiarity with
agency procedures and administrative processes can cause delay both in individual
cases and on a systemic level. Delays in individual cases may arise when self-represented
2. LAIR was established in 2012 by the White House Domestic Policy Council and the Department of
Justice. See White House Legal Aid Interagency Roundtable, U.S. Dep’t of Just., https://www.justice.
gov/lair (last visited Aug. 16, 2016). It was formalized by presidential memorandum in the fall of 2015.
See Memorandum from the President to the Heads of Exec. Dep’ts and Agencies (Sept. 14, 2015),
https://www.whitehouse.gov/the-press-office/2015/09/ 24/presidential-memorandum-establishment-white-house-legal-aid-interagency.
3. Connie Vogelmann, Self-Represented Parties in Administrative Hearings (Sept. 7, 2016), https://
www.acus.gov/sites/default/files/documents/Self-Represented-Parties-Administrative-Hearings-Draft-Report. pdf.
4. This recommendation primarily targets the subset of administrative agencies that conduct their own
administrative hearings. Components of a number of federal agencies—including HUD, HHS, and
USDA—do not conduct hearings directly, and instead delegate adjudication responsibilities to state or
local entities. Because the challenges facing these components are quite distinct, they are not addressed
in this recommendation.
5. Id. at 28–50.
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parties fail to appear for scheduled hearings, file paperwork incorrectly or incompletely, do not provide all relevant evidence, or make incoherent or legally irrelevant
arguments before an adjudicator. In the aggregate, self-represented parties also may
require significant assistance from agency staff in filing their claims and appeals,
which can be challenging given agencies’ significant resource constraints. Finally,
self-represented parties may create challenges for adjudicators, who may struggle to
provide appropriate assistance to them while maintaining impartiality and the appearance of impartiality. These problems are exacerbated by the fact that many agencies
hear significant numbers of cases by self-represented parties each year.
Self-represented parties also may face suboptimal outcomes in administrative
proceedings compared to their represented counterparts, raising issues of fairness.
Even administrative procedures that are designed to be handled without trained representation can be challenging for inexperienced parties to navigate, particularly in
the face of disability or language or literacy barriers. Furthermore, missed deadlines or
hearings may result in a self-represented party’s case being dismissed, despite its merits.
Self-represented parties often struggle to effectively present their cases and, despite
adjudicators’ best efforts, may receive worse results than parties with representation.
Civil courts face many of these same efficiency and consistency concerns, and
in response have implemented wide-ranging innovations to assist self-represented
parties. These new approaches have included in-person self-service centers; workshops
explaining the process or helping parties complete paperwork; and virtual services
such as helplines accessible via phone, email, text, and chat. Courts have also invested
in efforts to make processes more accessible to self-represented parties from the outset,
through the development of web resources, e-filing and document assembly programs,
and plain language and translation services for forms and other documents. Finally,
courts have also used judicial resources and training to support judges and court personnel in their efforts to effectively and impartially support self-represented parties.
These innovations have received extremely positive feedback from parties, and
early reports indicate that they improve court efficiency and can yield significant cost
savings for the judiciary.6 Administrative agencies have also implemented, or are in
the process of implementing, many similar innovations.7 For instance, some agencies
make use of pre-hearing conferences to reduce both the necessity and the complexity
of subsequent hearings.8
This recommendation builds on the successes of both civil courts and administrative agencies in dealing with self-represented parties and makes suggestions for further
improvement. In making this recommendation, the Conference makes no normative
judgment on the presence of self-represented parties in administrative proceedings. This
6. Richard Zorza, Trends in Self-Represented Litigation Innovation, in Future Trends In State
Courts 85 (Carol R. Flango et al. eds., 2006). See generally John Greacen, The Benefits And
Costs Of Programs To Assist Self-Represented Litigants (2009).
7. Vogelmann, supra note 3, at 28–50.
8. Id. at 32-33.
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199

recommendation assumes that there will be circumstances in which parties will choose
to represent themselves, and seeks to improve the resources available to those parties and
the fairness and efficiency of the overall administrative process.
The recommendation is not intended to be one-size-fits-all, and not every recommendation will be appropriate for every administrative agency. To the extent that
this recommendation requires additional expenditure of resources by agencies, innovations are likely to pay dividends in increased efficiency and consistency of outcome
in the long term.9 The goals of this recommendation are to improve both the ease with
which cases involving self-represented parties are processed and the consistency of the
outcomes reached in those cases.
RECOMMENDATION
Agency Resources
1. Agencies should consider investigating and implementing triage and diagnostic
tools to direct self-represented parties to appropriate resources based on both the
complexity of their case and their individual level of need. These tools can be
used by self-represented parties themselves for self-diagnosis or can be used by
agency staff to improve the consistency and accuracy of information provided.
2. Agencies should strive to develop a continuum of services for self-represented
parties, from self-help to one-on-one guidance, that will allow parties to
obtain assistance by different methods depending on need. In particular, and
depending on the availability of resources, agencies should:
a. Use websites to make relevant information available to the public, including self-represented parties and entities that assist them, to access and
expand e-filing opportunities;
b. Continue efforts to make forms and other important materials accessible to self-represented parties by providing them at the earliest possible
stage in the proceeding in plain language, in both English and in other
languages as needed, and by providing effective assistance for persons
with special needs; and
c. Provide a method for self-represented parties to communicate in “realtime” with agency staff or agency partners, as appropriate.
3. Subject to the availability of resources and as permitted by agency statutes and
regulations, agencies should provide training for adjudicators for dealing with
self-represented parties, including providing guidance for how they should interact with self-represented parties during administrative proceedings. Specifically,
training should address interacting with self-represented parties in situations of
limited literacy or English proficiency or mental or physical disability.
9. See generally Greacen, supra note 6.
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Data Collection and Agency Coordination
4. Agencies should strive to collect the following information, subject to the
availability of resources, and keeping in mind relevant statutes including
the Paperwork Reduction Act, where applicable. Agencies should use the
information collected to continually evaluate and revise their services for
self-represented parties. In particular, agencies should:
a. Seek to collect data on the number of self-represented parties in agency
proceedings. In addition, agencies should collect data on their services
for self-represented parties and request program feedback from agency
personnel.
b. Seek to collect data from self-represented parties about their experiences
during the proceeding and on their use of self-help resources.
c. Strive to keep open lines of communication with other agencies and with
civil courts, recognizing that in spite of differences in procedures, other
adjudicators have important and transferable insights in working with
self-represented parties.
Considerations for the Future
5. I n the long term, agencies should strive to re-evaluate procedures with an
eye toward accommodating self-represented parties. Proceedings are often
designed to accommodate attorneys and other trained professionals. Agencies should evaluate the feasibility of navigating their system for an outsider,
and make changes—as allowed by their organic statutes and regulations—to
simplify their processes accordingly. Although creation of simplified procedures would benefit all parties, they would be expected to provide particular
assistance to self-represented parties.

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201

APPENDIX E
ADMINISTRATIVE CONFERENCE
Recommendation 2014-7
Best Practices for Using
Video Teleconferencing for Hearings
Adopted December 5, 2014

A

gencies conduct thousands of adjudicative hearings every day, but the format
of the hearing, whether face-to-face or by video, has not been analyzed in any
systematic way. Some agencies have provided hearings by video teleconferencing
technology (VTC) for decades and have robust VTC programs. These programs strive
consistently to provide the best hearing experience, even as technology changes. Other
agencies have been reluctant to depart from traditional formats. Some are skeptical
that hearings may be conducted as effectively via VTC as they are in person. Others
are uncertain about how to implement VTC hearings. But all could benefit from an
impartial look at the available technologies for conducting adjudications.
The varied agency experiences and concerns reflect the tension between long-established values and technological innovations. Adjudicative hearings must be
conducted in a manner consistent with due process and the core values of fairness,
efficiency, and participant satisfaction reflected in cases like Goldberg v. Kelly1 and
Mathews v. Eldridge.2 At the same time, agencies that have explored the use of technological alternatives have achieved benefits in the effective use of decisionmaking
resources and reduction in travel expenses.3 Upholding core values and making the
best use of technology—both in hearings and related proceedings such as initial
1. 397 U.S. 254 (1970).
2. 424 U.S. 319 (1976); see also infra note 9.
3. In fact, agencies have been directed to increase efficiency through their use of technology. See Exec.
Order No. 13,589, 76 Fed. Reg. 70,861 (Nov. 15, 2011) (directing agencies to “devise strategic alternatives
to Government travel, including . . . technological alternatives, such as . . . video conferencing” and to
“assess current device inventories and usage, and establish controls, to ensure that they are not paying for
unused or underutilized information technology (IT) equipment, installed software, or services”).
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203

appearances, pre-hearing conferences, and meetings—is the challenge this recommendation seeks to meet.4
In 2011, the Administrative Conference adopted Recommendation 20114, Agency Use of Video Hearings: Best Practices and Possibilities for Expansion.5
Recommendation 2011-4 had two main purposes. First, it identified factors for
agencies—especially agencies with high volume caseloads—to consider as they determined whether to conduct VTC hearings.6 Second, it offered several best practices
agencies should employ when using VTC hearings.7 The recommendation concluded
by encouraging agencies that have decided to conduct VTC hearings to “[c]onsult
the staff of the Administrative Conference of the United States . . . for best practices,
guidance, advice, and the possibilities for shared resources and collaboration.”8
This recommendation builds on Recommendation 2011-4 by providing practical guidance regarding how best to conduct VTC hearings. The Administrative
Conference is committed to the principles of fairness, efficiency, and participant
satisfaction in the conduct of hearings. When VTC is used, it should be used in a
manner that promotes these principles, which form the cornerstones of adjudicative
legitimacy.9 The Conference recognizes that VTC is not suitable for every kind of
hearing, but believes greater familiarity with existing agency practices and awareness
of the improvements in technology will encourage broader use of such technology.10
This recommendation aims to ensure that, when agencies choose to offer VTC
hearings, they are able to provide a participant experience that meets or even exceeds

4. While this recommendation refers primarily to adjudication, it may apply to other proceedings as well.
5. See 76 Fed. Reg. 48,795 (Aug. 9, 2011), available at http://www.acus.gov/recommendation/agency-use-video-hearings-best-practices-and-possibilities-expansion.
6. Such factors include whether (1) the agency’s statute permits use of VTC; (2) the agency’s proceedings are conducive to VTC; (3) VTC may be used without affecting case outcomes; (4) the agency’s
budget allows adequate investment in VTC; (5) the use of VTC would result in cost savings; (6) the use
of VTC would result in a reduction in wait time; (7) the participants (e.g., judges, parties, representatives, witnesses) would find VTC beneficial; (8) the agencies’ facilities and administration would be
able to support VTC hearings; and (9) the use of VTC would not adversely affect either representation
or communication. See id.
7. Best practices include (1) offering VTC on a voluntary basis; (2) ensuring that the use of VTC is
outcome-neutral and meets the needs of users; (3) soliciting feedback from participants; (4) implementing VTC via a pilot program and evaluating that program before establishing it more broadly; and (5)
providing structured training and ensuring available IT support staff. Id.
8. Id.
9. See EF Int’l Language Schools, Inc., 2014 N.L.R.B. 708 (2014) (admin. law judge recommended
decision) (finding “that the safeguards utilized at hearing [to take witness testimony by VTC] amply
ensured that due process was not denied to” the party).
10. For greater detail about how to implement VTC hearings, see Center for Legal and Court Technology, Best Practices for Using Video for Hearings and Related Proceedings (Nov. 6, 2014), available at
http://www.acus.gov/ report/best-practices-using-video-teleconferencing-final-report.
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the in-person hearing experience.11 This recommendation does not take a position on
when parties should be entitled to, or may request, an in-person hearing.
RECOMMENDATION
Foundational Factors
1. Agencies should consider the various physical and logistical characteristics of
their hearings, including the layout of the hearing room(s) and the number
and location(s) of hearing participants (i.e., judge, parties, representatives,
and witnesses) and other attendees, in order to determine the kind of video
teleconferencing (VTC) system to use. These general principles should guide
agencies’ consideration:
(a) Video screens should be large enough to ensure adequate viewing of all
participants;
(b) Camera images should replicate the in-person hearing experience, including participants’ ability to make eye contact with other participants and
see the entire hearing room(s). If interpreters are involved, they should
be able to see and hear the participants clearly;
(c) Microphones should be provided for each participant who will be speaking during the hearing;
(d) The speaker system should be sufficient to allow all participants to hear
the person speaking. If a participant has a hearing impairment, a system
that complies with the Americans with Disabilities Act and other applicable laws should be used to connect to the VTC system;
(e) The record should be adequately captured, either by ensuring that the
audio system connects with a recording system, or by ensuring that the
court reporter can clearly see and hear the proceeding;
(f) Sufficient bandwidth should be provided so that the video image and
sound are clear and uninterrupted; and
(g) Each piece of equipment should be installed, mounted, and secured
so that it is protected and does not create a hazardous environment for
participants or staff.
2. Agencies should ensure that the hearing room conditions allow participants
to see, be seen by, and hear other participants, and to see written documents
and screens, as well as, or better than, if all of the participants were together
in person. These general principles should guide agencies’ consideration in
creating the best hearing room conditions:
(a) Lighting should be placed in a way to create well-dispersed, horizontal,
ambient light throughout all rooms used in the proceeding;
11. This recommendation does not take a position on when parties should be entitled to, or may
request, an in-person hearing.
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205

(b) N
 oise transference should be kept to a minimum by:
(i) Locating hearing rooms in the inner area of the office and away
from any noise or vibration-producing elements (e.g., elevator shafts,
mechanical rooms, plumbing, and high-traffic corridors); and
(ii) Installing solid doors with door sweeps, walls that run from floor
to ceiling, and sound absorption panels on the walls.
(c) Room décor, including colors and finishes of walls and furniture, should
allow for the camera(s) to easily capture the image(s).
3. Agencies should retain technical staff to support VTC operators and maintain equipment.
Training
4. A gencies should provide training for agency staff, especially judges, who
will operate the VTC equipment during the hearing. Agencies should also
provide a reference chart or “cheat sheet” to keep with each VTC system that
provides basic system operation directions that operators can easily reference,
as well as a phone number (or other rapid contact information) for reaching
technical staff.
5. A gencies should provide advanced training for technical support staff to
ensure they are equipped to maintain the VTC equipment and provide support to operators, including during a proceeding if a problem arises.
Financial Considerations
6. T he capabilities and costs of VTC systems vary widely. Before purchasing
or updating their VTC systems, agencies should first consider their hearing
needs (e.g., the needs of hearings conducted by judges at their desks with a
single party will be different than the needs of hearings conducted in full-sized
federal courtrooms with multiple participants and attendees present at several
locations) both now and in the future (e.g., the bandwidth needed today may
be different than the bandwidth needed tomorrow).
7. Once agencies have identified their hearing needs, they should consider the
costs and benefits of implementing, maintaining, and updating their VTC
systems to suit those needs.
(a) Costs to be considered include those associated with purchasing, installing, and maintaining the VTC system; creating and maintaining the
conditions necessary to allow participants to see and hear each other
clearly; and providing training to staff.
(b) Benefits to be considered include better access to justice by increased
accessibility to hearings, more efficient use of time for judges and staff,
reduced travel costs and delays, and backlog reductions.
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Procedural Practices
8. Judges should consider how to establish and maintain control of the hearing
room, such as by wearing robes as a symbol of authority, appearing on the
screen before the other participants enter the room(s), requiring parties and
representatives to use hand signals to indicate that they would like to speak,
and reminding representatives that they are officers of the court.
9. Agencies should install VTC equipment so that judges can control the camera
at the other location(s), if possible.
10. Agency staff should ensure that the hearing will run as smoothly as possible
by removing any obstacles blocking lines-of-sight between the camera and
participants and testing the audio on a regular basis.
Fairness and Satisfaction
11. Agencies should periodically assess their VTC hearings program to ensure
that the use of VTC produces outcomes that are comparable to those achieved
during in-person hearings.
12. Agencies should maintain open lines of communication with representatives
in order to receive feedback about the use of VTC. Post-hearing surveys or
other appropriate methods should be used to collect information about the
experience and satisfaction of participants.
Collaboration Among Agencies
13. Agencies should consider sharing VTC facilities and expertise with each other
in order to reduce costs and increase efficiency, while maintaining a fair and
satisfying hearing experience.
14. A gencies that conduct hearings should work with the General Services
Administration (GSA) in procuring and planning facilities that will best
accommodate the needs of VTC hearings.
Development of a Video Teleconferencing Hearings Handbook
15. The Office of the Chairman of the Administrative Conference of the United
States should create a handbook on the use of VTC in hearings and related
proceedings that will be updated from time to time as technology changes.
The handbook should reflect consultation with GSA and other agencies
with VTC hearings expertise. It should be made publicly accessible online
to agencies, and include specific guidance regarding equipment, conditions,
training that meets industry standards, and methods for collecting feedback
from participants.

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207

APPENDIX F
ADMINISTRATIVE CONFERENCE
Recommendation 86-3
Agencies’ Use of Alternative Means
of Dispute Resolution
Adopted June 20, 1986

F

ederal agencies now decide hundreds of thousands of cases annually—far more
than do federal courts. The formality, costs and delays incurred in administrative
proceedings have steadily increased, and in some cases now approach those of courts.
Many agencies act pursuant to procedures that waste litigants' time and society's
resources and whose formality can reduce the chances for consensual resolution.
The recent trend toward elasborate procedures has in many cases imposed safeguards
whose transaction costs, to agencies and the public in general, can substantially outweigh their benefits.
A comprehensive solution to reducing these burdens is to identify instances
where simplification is appropriate. This will require a careful review of individual
agency programs and the disputes they involve. A more immediate step is for agencies
to adopt alternative means of dispute resolution, typically referred to as "ADR," or
to encourage regulated parties to develop their own mechanisms to resolve disputes
that would otherwise be handled by agencies themselves. ADR methods have been
employed with success in the private sector for many years, and when used in appropriate circumstances, have yielded decisions that are faster, cheaper, more accurate or
otherwise more acceptable, and less contentious. These processes include voluntary
arbitration, mandatory arbitration, factfinding, minitrials, mediation, facilitating,
convening and negotiation. (A brief lexicon defining these terms is included in the
Appendix to this recommendation.) The same forces that make ADR methods
attractive to private disputants can render them useful in cases which a federal agency
decides, or to which the government is a party. For these methods to be effective,
however, some aspects of current administrative procedure may require modification.

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209

It is premature to prescribe detailed procedures for a myriad of government activities since the best procedure for a program, or even an individual dispute, must grow
out of its own needs. These recommendations therefore seek to promote increased,
and thoughtful, use of ADR methods. They are but a first step, and ideally should
be supplemented with further empirical research, consultation with experts and
interested parties, and more specific Conference proposals.
RECOMMENDATION
A. General
1. Administrative agencies, where not inconsistent with statutory authority,
should adopt the alternative methods discussed in this recommendation for resolving a broad range of issues. These include many matters that arise as a part of formal
or informal adjudication, in rulemaking,1 in issuing or revoking permits, and in
settling disputes, including litigation brought by or against the government. Until
more experience has been developed with respect to their use in the administrative
process, the procedures should generally be offered as a voluntary, alternative means
to resolve the controversy.
2. Congress and the courts should not inhibit agency uses of the ADR techniques
mentioned herein by requiring formality where it is inappropriate.
B. Voluntary Arbitration
3. Congress should act to permit executive branch officials to agree to binding
arbitration to resolve controversies. This legislation should authorize any executive
official who has authority to settle controversies on behalf of the government to
agree to arbitration, either prior to the time a dispute may arise or after a controversy
has matured, subject to whatever may be the statutory authority of the Comptroller
General to determine whether payment of public funds is warranted by applicable
law and available appropriations.
4. Congress should authorize agencies to adopt arbitration procedures to resolve
matters that would otherwise be decided by the agency pursuant to the Administrative
Procedure Act ("APA") or other formal procedures. These procedures should provide
that—
	(a) All parties to the dispute must knowingly consent to use the arbitration
procedures, either before or after a dispute has arisen.
	(b) The parties have some role in the selection of arbitrators, whether by
actual selection, by ranking those on a list of qualified arbitrators, or by
striking individuals from such a list.
1. See ACUS Recommendations 82-4 and 85-5, “Procedures for Negotiating Proposed Regulations,” 1
CFR 305.82-4 and 305.85-5.
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	(c) Arbitrators need not be permanent government employees, but may be
individuals retained by the parties or the government for the purpose of
arbitrating the matter.
	(d) Agency review of the arbitral award be pursuant to the standards for
vacating awards under the U.S. Arbitration Act, 9 U.S.C. 10, unless the
award does not become an agency order or the agency does not have any
right of review.
	(e) The award include a brief, informal discussion of its factual and legal
basis, but neither formal findings of fact nor conclusions of law.
	(f) Any judicial review be pursuant to the limited scope-of-review provisions
of the U.S. Arbitration Act, rather than the broader standards of the APA.
	(g) The arbitral award be enforced pursuant to the U.S. Arbitration Act,
but is without precedential effect for any purpose.
5. Factors bearing on agency use of arbitration are:
(a) Arbitration is likely to be appropriate where—
		(1) The benefits that are likely to be gained from such a proceeding outweigh the probable delay or costs required by a full trial-type hearing.
		(2) The norms which will be used to resolve the issues raised have
already been established by statute, precedent or rule, or the parties
explicitly desire the arbitrator to make a decision based on some general
standard, such as "justice under the circumstances," without regard to
a prevailing norm.
		(3) Having a decisionmaker with technical expertise would facilitate
the resolution of the matter.
		(4) The parties desire privacy, and agency records subject to disclosure
under the Freedom of Information Act are not involved.
(b) Arbitration is likely to be inappropriate where—
		(1) A definitive or authoritative resolution of the matter is required or
desired for its precedential value.

(2) Maintaining established norms or policies is of special importance.
		(3) The case significantly affects persons who are not parties to the
proceeding.

(4) A full public record of the proceeding is important.

(5) The case involves significant decisions as to government policy.
6. Agency officials, and particularly regional or other officials directly responsible for implementing an arbitration or other ADR procedure, should make persistent
efforts to increase potential parties' awareness and understanding of these procedures.
C. Mandatory Arbitration
7. Arbitration is not in all instances an adequate substitute for a trial-type hearing
pursuant to the APA or for civil litigation. Hence, Congress should consider
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211

mandatory arbitration only where the advantages of such a proceeding are clearly
outweighed by the need to (a) save the time or transaction costs involved or (b)
have a technical expert resolve the issues.
8. Mandatory arbitration is likely to be appropriate only where the matters to
be resolved—
(a) Are not intended to have precedential effect other than the resolution of
the specific dispute, except that the awards may be published or indexed as
informal guidance;
(b) May be resolved through reference to an ascertainable norm such as statute,
rule or custom;2
(c) Involve disputes between private parties; and
(d) Do not involve the establishment or implementation of major new policies
or precedents.
9. Where Congress mandates arbitration as the exclusive means to resolve a dispute, it should provide the same procedures as in Paragraph 4, above.
D. Settlement Techniques
10. In many situations, agencies already have the authority to use techniques to
achieve dispute settlements. Agencies should use this authority by routinely taking
advantage of opportunities to:
(a) Explicitly provide for the use of mediation.
(b) Provide for the use of a settlement judge or other neutral agency official
to aid the parties in reaching agreement.3 These persons might, for instance,
advise the parties as to the likely outcome should they fail to reach settlement.
(c) Implement agreements among the parties in interest, provided that some
means have been employed to identify other interested persons and afford
them an opportunity to participate.
(d) Provide for the use of minitrials.
(e) Develop criteria that will help guide the negotiation of settlements.4
11. Agencies should apply the criteria developed in ACUS Recommendations
82-4 and 85-5, pertaining to negotiated rulemaking,5 in deciding when it may be
2. For example, the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et seq., provides
for mandatory arbitration with respect to the amount of compensation one company must pay another
and yet provides no guidance with respect to the criteria to be used to make these decisions. The program has engendered considerable controversy and litigation.
3. See, e.g., the procedure used by the Federal Energy Regulatory Commission.
4. See ACUS Recommendation 79-3, “Agency Assessment and Mitigation of Civil Money Penalties,” 1
CFR 305.79-3.
5. See also ACUS Recommendation 84-4, “Negotiated Cleanup of Hazardous Waste Sites Under
CERCLA,” 1 CFR 305.84-4.
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appropriate to negotiate, mediate or use similar ADR techniques to resolve any contested issue involving an agency. Settlement procedures may not be appropriate for
decisions on some matters involving major public policy issues or having an impact
on persons who are not parties, unless notice and comment procedures are used.
12. Factors bearing on agency use of minitrials as a settlement technique are:
(a) Minitrials are likely to be appropriate where—
	(1) The dispute is at a stage where substantial additional litigation costs, such
as for discovery, are anticipated.
	(2) The matter is worth an amount sufficient to justify the senior executive
time required to complete the process.
	(3) The issues involved include highly technical mixed questions of law
and fact.
	(4) The matter involves materials that the government or other parties
believe should not be revealed.
(b) Minitrials are likely to be inappropriate where—
(1) Witness credibility is of critical importance.
(2) The issues may be resolved largely through reference to an ascertainable norm.
(3) Major questions of public policy are involved.
13. Proposed agency settlements are frequently subjected to multiple layers
of intra-agency or other review and therefore may subsequently be revised. This
uncertainty may discourage other parties from negotiating with federal officials.
To encourage settlement negotiations, agencies should provide means by which all
appropriate agency decisionmakers are involved in, or regularly apprised of, the course
of major negotiations; agencies should also endeavor to streamline intra-agency review
of settlements. These efforts should serve to ensure that the concerns of interested
segments of the agency are reflected as early as possible in settlement negotiations, and
to reduce the likelihood that tentative settlements will be upset.
14. In cases where agencies must balance competing public policy interests,
they should adopt techniques to enable officials to assess, in as objective a fashion as
possible, the merits of a proposed settlement. These efforts might include establishing
a small review panel of senior officials or neutral advisors, using a minitrial, publishing the proposed settlement in the Federal Register for comment, securing tentative
approval of the settlement by the agency head or other senior official, or employing
other means to ensure the integrity of the decision.
15. Some agency lawyers, administrative law judges, and other agency decisionmakers should be trained in arbitration, negotiation, mediation, and similar ADR
skills, so they can (a) be alert to take advantage of alternatives or (b) hear and resolve
other disputes involving their own or another agency.

Appendix F

213

E. Private Sector Dispute Mechanisms
16. Agencies should review the areas that they regulate to determine the potential
for the establishment and use of dispute resolution mechanisms by private organizations as an alternative to direct agency action. Where such use is appropriate, the
agency should—
(a) Specify minimal procedures that will be acceptable to qualify as an
approved dispute resolution mechanism.
(b) Oversee the general operation of the process; ordinarily, it should not review
individual decisions.
(c) Tailor its requirements to provide an organization with incentives to
establish such a program, such as forestalling other regulatory action, while
ensuring that other interested parties view the forum as fair and effective.
Appendix—Lexicon of Alternative Means of Dispute Resolution
Arbitration. Arbitration is closely akin to adjudication in that a neutral third
party decides the submitted issue after reviewing evidence and hearing argument from
the parties. It may be binding on the parties, either through agreement or operation
of law, or it may be non-binding in that the decision is only advisory. Arbitration may
be voluntary, where the parties agree to resolve the issues by means of arbitration, or
it may be mandatory, where the process is the exclusive means provided.
Factfinding. A "factfinding" proceeding entails the appointment of a person or
group with technical expertise in the subject matter to evaluate the matter presented
and file a report establishing the "facts." The factfinder is not authorized to resolve
policy issues. Following the findings, the parties may then negotiate a settlement, hold
further proceedings, or conduct more research.
Minitrial. A minitrial is a structured settlement process in which each side
presents a highly abbreviated summary of its case before senior officials of each party
authorized to settle the case. A neutral adviser sometimes presides over the proceeding
and will render an advisory opinion if asked to do so. Following the presentations, the
officials seek to negotiate a settlement.
Mediation. Mediation involves a neutral third party to assist the parties in negotiating an agreement. The mediator has no independent authority and does not render
a decision; any decision must be reached by the parties themselves.
Facilitating. Facilitating helps parties reach a decision or a satisfactory resolution
of the matter to be addressed. While often used interchangeably with "mediator," a
facilitator generally conducts meetings and coordinates discussions, but does not
become as involved in the substantive issues as does a mediator.
Convening. Convening is a technique that helps identify issues in controversy and
affected interests. The convenor is generally called upon to determine whether direct
negotiations among the parties would be a suitable means of resolving the issues, and
if so, to bring the parties together for that purpose. Convening has proved valuable
in negotiated rulemaking.

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Negotiation. Negotiation is simply communication among people or parties in
an effort to reach an agreement. It is used so routinely that it is frequently overlooked
as a specific means of resolving disputes. In the administrative context, it means
procedures and processes for settling matters that would otherwise be resolved by
more formal means.

Appendix F

215

APPENDIX G
ADMINISTRATIVE CONFERENCE
Recommendation 86-2
Use of Federal Rules of Evidence in
Federal Agency Adjudications
Adopted June 20, 1986

F

ederal agencies have adopted hundreds of different sets of rules governing admission of evidence in formal adjudications. While those rules vary in their details,
they can be placed in three general categories: (1) Rules that reflect the wide open
standard of APA section 556(d); (2) rules that require presiding officers to apply the
Federal Rules of Evidence (FRE) "so far as practicable"; and (3) rules that permit presiding officers to use the FRE as a source of guidance in making evidentiary rulings.
In a few instances, Congress has required the agency to adopt a standard that refers
to the FRE; in other cases the agency voluntarily adopted such a standard.
Presiding officers vary substantially in the extent of their use of the FRE as a
source of guidance in making evidentiary rulings. Presiding officers at agencies whose
rules refer to the FRE rely on the FRE as a source of guidance much more frequently
than presiding officers at agencies whose rules reflect only the APA standard. Presiding officers at agencies with rules that refer to the FRE are more satisfied with the
rule they apply than presiding officers at agencies with rules that reflect only the APA
standard. The relative dissatisfaction expressed by many presiding officers in the latter
group seems to be based on their perception that the APA standard does not accord
them sufficient discretion to engage in responsible case management. Because they
perceive that they do not have the discretion to exclude evidence they consider clearly
unreliable, they must devote valuable hearing and opinion-writing time to reception
and consideration of such evidence.
Because the APA evidentiary standard is broadly permissive, courts routinely
decline to reverse agencies that have adopted this standard on the basis of alleged
erroneous admission of evidence. However, courts seem confused by the FRE "so far
as practicable" evidence standard. Some courts apparently interpret it to accord near
Appendix G

217

total discretion to agencies. Other courts interpret it as a mandate to comply with
the FRE except in unusual circumstances. Still others apparently view the standard
as a mandate to admit evidence inadmissible under the FRE except when unusual
circumstances require application of the FRE.
Independent of the evidentiary standard adopted by the agency, reviewing courts
apply three general rules: (1) An agency must respect evidentiary privileges; (2) an
agency can be reversed if it declines to admit evidence admissible under the FRE; and
(3) an agency will be reversed if it bases a finding on unreliable evidence.
The FRE “so far as practicable” standard has four significant disadvantages:
(1) Courts seem confused as to what it means or how to enforce it; (2) instructing
presiding officers to exclude evidence based on the standard forces them to undertake
a difficult and hazardous task; (3) excluding evidence on the basis that it is inadmissible in a jury trial is totally unnecessary to insure that agencies act only on the basis
of reliable evidence; and (4) agencies, like other experts, should be permitted to rely
on classes of evidence broader than those that can be considered by lay jurors. Yet
the APA standard alone has the disadvantage that presiding officers perceive it as
an inadequate tool for effective case management, despite the fact that it permits
presiding officers to use relevant parts of the FRE and scholarly texts as sources of
general guidance in making evidentiary rulings in formal adversarial adjudications.
Federal Rule 403 can be particularly valuable to presiding officers in discharging
their case management responsibilities. That rule authorizes exclusion of evidence
the probative value of which is substantially outweighed by other factors, including
the consideration of undue delay. In addition, under any set of evidentiary rules, an
agency can assist presiding officers in their evidentiary decision making by specifying,
insofar as they can be foreseen, the factual issues the agency considers material to the
resolution of various classes of adjudications and the types of evidence it considers
reliable and probative with respect to recurring factual issues.
RECOMMENDATION
1. Congress should not require agencies to apply the Federal Rules of Evidence,
with or without the qualification “so far as practicable,” to limit the discretion of
presiding officers to admit evidence in formal adjudications.1
2. Agencies should adopt evidentiary regulations applicable to formal adversarial
adjudications that clearly confer on presiding officers discretion to exclude unreliable
evidence and to use the weighted balancing test in Rule 403 of the Federal Rules of
Evidence, which allows exclusion of evidence the probative value of which is substan1. The term “formal adjudications” refers to adjudications required by statute to be determined on
the record after opportunity for an agency hearing in accordance with the Administrative Procedure
Act, U.S.C. 554, 556 and 557, and also includes agency adjudications which by regulation or by agency
practice are conducted in conformance with these provisions. The recommendation does not apply to
nonadversarial hearings, e.g., many Social Security disability proceedings.
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Federal Administrative Adjudication Outside the Administrative Procedure Act

tially outweighed by other factors, including its potential for undue consumption
of time.
3. To facilitate the efficient and fair management of the proceeding, when otherwise appropriate, an agency should announce in advance of a formal adjudication
as many of the factual issues as the agency can foresee to be material to the resolution
of the adjudication.

Appendix G

219

APPENDIX H
ADMINISTRATIVE CONFERENCE
Recommendation 86-1
Nonlawyer Assistance and Representation
Adopted June 20, 1986

A

substantial number of individuals involved in Federal “mass justice”1 agency
proceedings need and desire assistance2 in filling out forms, filing claims, and
appearing in agency proceedings, but are unable to afford assistance or representation by lawyers. A lack of assistance or representation reduces the probability that an
individual will obtain favorable results in dealing with an agency. Further, unassisted
individuals are more likely than those who are assisted to cause a loss of agency efficiency by requiring more time, effort, and help from the agency.
Federal agencies currently provide help to persons involved in agency proceedings
through information given by agency personnel and through funding of legal aid
programs and approval or payment of attorney fee awards. This recommendation does
not deal with whether government aid may be needed for persons who cannot afford
any form of assistance. This recommendation focuses on the potential for increasing
the availability of assistance by nonlawyers. Federal agency experience and statistics
indicate that qualified persons who are not lawyers generally are capable of providing
effective assistance to individuals in mass justice agency proceedings.
While it is recognized that no established privilege protects the confidentiality
of communications between nonlawyers and their clients, agencies may adopt some
1. The term “mass justice” is used here to categorize an agency program in which a large number of
individual claims or disputes involving personal, family, or personal business matters come before
an agency; e.g., the Old Age Survivors and Disability Insurance program administered by the Social
Security Administration. To the extent that principles incorporated in this Recommendation may be
applicable to other programs in which nonlawyer assistance or representation is (or could be made)
available, the Conference recommends the consideration of these principles by the agencies involved.
2. The term “assistance” is used here to indicate all forms of help, including representation, that may be
beneficial to a person in dealing with an agency. The term “representation” is used whenever the most
likely form of assistance involves such activities as making an appearance, signing papers, or speaking
for the assisted individual. Neither term is meant to be exclusive.
Appendix H

221

protections covering their own proceedings. The possible limitation of such protections does not outweigh the benefits of increased assistance and representation.
Agency practices do not currently maximize the potential for free choice of
assistance, and, in some instances, may hinder the availability of qualified, low-cost
assistance by nonlawyers. Agencies should take the steps necessary to encourage—as
well as eliminate inappropriate barriers to—nonlawyer assistance and representation.
Agencies generally have the authority to authorize any person to act as a representative for another person having business with the agency. Where an agency
intends to permit nonlawyers to assist individuals in agency matters, the agency
needs to state that intention affirmatively in its regulations for two reasons. First, an
affirmative statement is essential, under existing case law, to protect a nonlawyer from
prosecution—under state "unauthorized practice of law" prohibitions—for assisting
and advising a Federal client preparatory to commencing agency proceedings, as well
as for advertising the availability of services. Second, an affirmative agency position
is needed to overcome a common assumption of nonlawyers that agencies welcome
only lawyers as representatives, and thereby to encourage an increase in the provision
of nonlawyer services.
RECOMMENDATION
1. The Social Security Administration, the Immigration and Naturalization
Service, the Veterans Administration, the Internal Revenue Service, and other Federal agencies that deal with a significant number of unassisted individuals who have
personal, family, or personal business claims or disputes before the agency, should
review their regulations regarding assistance and representation. The review should
be directed toward the goals of authorizing increased assistance by nonlawyers, and
of maximizing the potential for free choice of representative to the fullest extent
allowed by law.
2. If an agency determines that some subject areas or types of its proceedings are
so complex or specialized that only specially qualified persons can adequately provide
representation, then the agency may need to adopt appropriate measures to ensure
that nonlawyers meet specific eligibility criteria at some or all stages of representation.
Agencies should tailor any eligibility requirements so as not to exclude nonlawyers
(including nonlawyers who charge fees) as a class, if there are nonlawyers who, by
reason of their knowledge, experience, training, or other qualification, can adequately
provide assistance or representation.
3. Agencies should declare unambiguously their intention to authorize assistance
and representation by nonlawyers meeting agency criteria. Where a declaration by an
agency may have the effect of preempting state law (such as "unauthorized practice of
law" prohibitions), then the agency should employ the procedures set out in Recommendation 84-5 with regard to notification of and cooperation with the states and
other affected groups.

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4. Agencies should review their rules of practice that deal with attorney conduct
(such as negligence, fee gouging, fraud, misrepresentation, and representation when
there is a conflict of interest) to ensure that similar rules are made applicable to nonlawyers as appropriate, and should establish effective agency procedures for enforcing
those rules of practice and for receiving complaints from the affected public.

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APPENDIX I
Administrative Conference
Recommendation 70-4
Discovery in Agency Adjudication
Adopted June 2-3, 1970

P

rehearing discovery in agency adjudication insures that the parties to the proceeding have access to all relevant, unprivileged information prior to the hearing. Its
primary objectives include the more expeditious conduct of the hearing itself, the
encouragement of settlement between the parties, and greater fairness in adjudication.
Agencies that conduct adjudicatory proceedings generally enjoy broad investigatory
powers, and fairness requires that private parties have equal access to all relevant,
unprivileged information at some point prior to the hearing.
RECOMMENDATION
It is therefore recommended that each agency recognize the following minimum
standards for discovery in adjudicatory proceedings subject to sections 5, 7 and 8 of
the Administrative Procedure Act, now codified as 5 U.S.C. 554, 556 and 557. Individual agencies may permit additional discovery where appropriate and may tailor the
recommended standards to meet the needs of particular types of proceedings where
special or less elaborate discovery procedures will accomplish the same basic objectives
or where the protective measures here recommended will be inadequate to achieve
the ends sought. Each agency should undertake to train its hearing examiners in the
application of the rules it promulgates to implement these standards. This training
should draw upon the experience of other agencies, the Federal Courts, private practitioners, and bar associations.
The recommended minimum standards include the following procedures:
1. Prehearing Conferences. The presiding officer should have the authority to hold
one or more prehearing conferences during the course of the proceeding on his own
motion or at the request of a party to the proceeding. The presiding officer should
normally hold at least one prehearing conference in proceedings where the issues are
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complex or where it appears likely that the hearing will last a considerable period of
time. The presiding officer at a prehearing conference should have the authority to
direct the parties to exchange their evidentiary exhibits and witness lists prior to the
hearing. Where good cause exists, the parties should have the right at any time to
amend, by deletion or supplementation, their evidentiary exhibits and witness lists.
2. Depositions. A party to the proceeding should be able to take depositions of
witnesses upon oral examination or written questions for purposes of discovering
relevant, unprivileged information, subject to the following conditions:
(1) the taking of depositions should normally be deferred until there has been at
least one prehearing conference;
(2) the party seeking to take a deposition should apply to the presiding officer
for an order to do so;
(3) the party seeking to take a deposition should serve copies of the application
on the other party or parties to the proceeding, who should be given an opportunity,
along with the deponent, to notify the presiding officer of any objections to the taking
of the deposition;
(4) the presiding officer should not grant an application to take a deposition if he
finds that the taking of the deposition would result in undue delay;
(5) the presiding officer should otherwise grant an application to take a deposition unless he finds that there is not good cause for doing so; and
(6) the deposing of an agency employee should only be allowed upon an order
of the presiding officer based on a specific finding that the party applying to take
the deposition is seeking significant, unprivileged information not discoverable by
alternative means. Any such order should be subject to an interlocutory appeal to
the agency.
An order to take a deposition should be enforceable through the issuance of a
subpoena ad testificandum.
3. Witnesses— (a) Prior Statements. At the prehearing conference or at some
other reasonable time prior to the hearing the attorney or employee appearing on
behalf of the agency in the proceeding should make available to the other parties to
the proceeding any prior statements of agency witnesses which are in the possession
of the agency or obtainable by it from any other Federal agency and which relate to
the subject matter of the expected testimony. "Statement" is defined to include only
a written statement signed or adopted by the witness or a recording or transcription
which is a substantially verbatim recital of an oral statement made by the witness to
an agent of the Federal government.
(b) Narrative Summaries of Expected Testimony. At the prehearing conference or
at some other reasonable time prior to the hearing each party to the proceeding should
make available to the other parties to the proceeding the names of the witnesses he
expects to call and a narrative summary of their expected testimony. The attorney
or employee appearing on behalf of the agency in the proceeding should have the
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authority to designate any prior statement or statements of an agency witness which
he makes available to the other parties under Recommendation 3 (a) as all or part of
the narrative summary of that witness' expected testimony. Where good cause exists,
the parties should have the right at any time to amend, by deletion or supplementation,
the list of names of the witnesses they plan to call and the narrative summaries of the
expected testimony of those witnesses.
4. Written Interrogatories to Parties—(a) Availability. A party to the proceeding
should be able to serve written interrogatories upon any other party for purposes of
discovering relevant, unprivileged information. A party served with interrogatories
should be able, before he must answer the interrogatories, to apply to the presiding
officer for the holding of a prehearing conference for the mutual exchange of evidentiary exhibits and other information. Each interrogatory which requests information
not previously supplied at a prehearing conference should be answered separately and
fully in writing under oath, unless it is objected to, in which event the reasons for the
objection should be stated in lieu of answer. The party upon whom the interrogatories have been served should serve a copy of the answers and objections within a
reasonable time upon the party submitting the interrogatories. The party submitting
the interrogatories may move the presiding officer for an order compelling an answer
to an interrogatory or interrogatories to which there has been an objection or other
failure to answer.
(b) Interrogatories Directed to the Agency. Each agency should designate an
appropriate official on whom other parties to the proceeding may serve written interrogatories directed to the agency. That official should arrange for agency personnel
with knowledge of the facts to answer and sign the interrogatories on behalf of the
agency. The attorney or employee appearing on behalf of the agency in the proceeding
should have the authority to make and sign objections to interrogatories served upon
the agency. Interrogatories directed to the agency which seek information available
only from the agency head, member, or members should only be allowed upon an
order of the agency based on a specific finding that the interrogating party is seeking
significant, unprivileged information not discoverable by alternative means.
5. Requests for Admissions— (a) Availability. A party to the proceeding should be
able to serve upon any other party a written request for the admission, for purposes of
the pending proceeding, of any relevant, unprivileged facts, including the genuineness
of any document described in the request.
(b) Requests Directed to the Agency. Each agency should designate an appropriate
official on whom other parties to the proceeding may serve requests for admissions
directed to the agency. That official should arrange for agency personnel with knowledge of the facts to respond to the requests on behalf of the agency. The attorney
or employee appearing on behalf of the agency in the proceeding should have the
authority to make and sign objections to requests for admissions served upon the
agency. Requests directed to the agency which seek admissions obtainable only from
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the agency head, member or members should only be allowed upon an order of the
agency based on a specific finding that the requesting party is seeking significant,
unprivileged information not discoverable by alternative means.
6. Production of Documents and Tangible Things—(a) From Non-Parties. A party
to the proceeding should be able to obtain in accordance with agency rules a subpoena duces tecum requiring a non-party to produce relevant designated documents
and tangible things, not privileged, at a prehearing conference, at the taking of the
non-party's deposition, or at any other specific time and place designated by the
issuing officer.
(b) From Parties. A party to the proceeding should be able to apply to the presiding officer for an order requiring any other party to produce and to make available for
inspection, copying or photographing, at a prehearing conference or other specific
time and place, any designated documents and tangible things, not privileged, which
constitute or contain relevant evidence. The party seeking production should serve
copies of the application on the other party or parties to the proceeding, who should
be given an opportunity to notify the presiding officer of any objections. The presiding officer should order the production of such designated documents and tangible
things unless he finds that there is not good cause for doing so.
(c) From the Agency. For the purposes of paragraph 6, the agency conducting the
proceeding should be considered a party to the proceeding whether or not the agency
staff participates as a party to the proceeding.
7. Role of the Presiding Officer—(a) Control over Discovery. The presiding officer should have the authority to impose schedules on the parties to the proceeding
specifying the periods of time during which the parties may pursue each means of
discovery available to them under the rules of the agency. Such schedules and time
periods should be set with a view to accelerating disposition of the case to the fullest
extent consistent with fairness.
(b) Interlocutory Appeals. Except as provided by paragraph 2 (6) above, an interlocutory appeal from a ruling of the presiding officer on discovery should be allowed
only upon certification by the presiding officer that the ruling involves an important
question of law or policy which should be resolved at that time by the appropriate
review authority. Notwithstanding the presiding officer's certification, the review
authority should have the authority to dismiss summarily the interlocutory appeal
if it should appear that the certification was improvident. An interlocutory appeal
should not result in a stay of the proceedings except in extraordinary circumstances.
8. Protective Orders—(a) Authority of Presiding Officer in General. The presiding
officer should have the authority, upon motion by a party or by the person from
whom discovery is sought, and for good cause shown, to make any order which justice
requires to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense, including one or more of the following: (1) that the
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discovery not be had; (2) that the discovery may be had only on specified terms and
conditions, including a designation of the time or place; (3) that the discovery may
be had only by a method of discovery other than that selected by the party seeking
discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present
except persons designated by the presiding officer; (6) that a deposition after being
sealed be opened only by order of the presiding officer; (7) that a trade secret or other
confidential research, development, or commercial information not be disclosed or
be disclosed only in a designated way; (8) that the parties simultaneously file specified
documents or information enclosed in sealed envelopes to be opened as directed by
the presiding officer.
(b) Names of Witnesses. The presiding officer should have the authority upon
motion by a party or other person, and for good cause shown, by order (a) to restrict
or defer disclosure by a party of the name of a witness, a narrative summary of the
expected testimony of a witness or, in the case of an agency witness, any prior statement of the witness, and (b) to prescribe other appropriate measures to protect a
witness. Any party affected by any such action should have an adequate opportunity, once he learns the name of a witness and obtains the narrative summary of his
expected testimony or, in the case of an agency witness, his prior statement or statements, to prepare for cross-examination and for the presentation of his case.
(c) In Camera Proceedings. The presiding officer should have the authority to permit a party or person seeking a protective order to make all or part of the showing of
good cause in camera. A record should be made of such in camera proceedings. If the
presiding officer enters a protective order following a showing in camera, the record
of such showing should be sealed and preserved and made available to the agency or
court in the event of an appeal.
9. Subpoenas. The presiding officer should have the power to issue subpoenas
ad testificandum and duces tecum at any time during the course of the proceeding.
Agencies affected by this Recommendation that do not have the statutory authority
to issue subpoenas should seek to obtain any necessary authority from the Congress.
Note: Recommendation No. 71-1 supersedes section 5 of Recommendation No.
70-3 and paragraphs 2 (6) and 7 (b) of Recommendation No. 70-4, adopted June 2-3,
1970, insofar as they deal with interlocutory appeals.

Appendix I

229