____________________________________________________________________________________
STAFF REPORT

Final Version
June 16, 2020
____________________________________________________________________________________

LEGAL CONSIDERATIONS FOR REMOTE HEARINGS
IN AGENCY ADJUDICATIONS
Jeremy Graboyes
Deputy Research Director
Administrative Conference of the United States

This report was prepared for the Office of the Chairman of the Administrative Conference of the United
States. It does not necessarily reflect the views of the Office of the Chairman or the Conference (including
the Conference’s Council, committees, or members).
Recommended Citation
Jeremy Graboyes, Admin. Conf. of U.S., Legal Considerations for Remote Hearings in Agency
Adjudications (June 16, 2020), https://www.acus.gov/report/legal-considerations-remote-hearingsagency-adjudications.

BACKGROUND
Agencies are increasingly using and relying on remote hearings to fulfill their workload
responsibilities during the COVID-19 pandemic.1 The Administrative Conference of the United
States (ACUS) has previously recommended best practices for using and expanding the use of
video teleconferencing (VTC) in agency adjudications 2 and published a Handbook on Best
Practices for Using Video Teleconferencing in Adjudicatory Hearings.3 ACUS has also addressed
the use of written-only hearings in adjudications not subject to the Administrative Procedure Act’s
(APA) formal-hearing requirements.4
This Report is intended to supplement those materials by providing an overview of legal
issues that federal agencies may encounter as they develop and implement processes for remote
hearings, defined broadly to include any adjudicatory hearing in which at least one individual
participates by VTC, by telephone or internet telephony, or through written submissions. It does
not condone or condemn the use of remote participation in any circumstance or attempt to set forth
best practices for its implementation. Readers interested in these subjects should refer to the ACUS
materials noted above.

1

ACUS is collecting materials related to federal agency adjudication during the pandemic on its website at
https://www.acus.gov/coronavirus-and-adjudication.
2
Admin. Conf. of the U.S., Recommendation 2014-7, Best Practices for Using Video Teleconferencing for
Hearings, 79 Fed. Reg. 75,114 (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. 48,795 (Aug. 9, 2011); Ctr. for Legal
& Court Tech., Best Practices for Using Video Teleconferencing for Hearings and Related Proceedings (2014) (report
to the Admin. Conf. of the U.S.), https://www.acus.gov/report/best-practices-using-video-teleconferencing-finalreport; Nathaniel Flanders & Amber Williams, Admin. Conf. of the U.S., Memorandum on the History of Agency
Video Teleconferencing Adjudications (Nov. 26, 2014), https://www.acus.gov/sites/default/files/documents/
VTC%20Hearing%20History_FINAL.pdf; Funmi E. Olorunnipa, Agency Use of Video Hearings: Best Practices and
Possibilities for Expansion (May 10, 2011) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/
report/agency-use-video-hearings-final-report.
3
MARTIN E. GRUEN & CHRISTINE R. WILLIAMS, ADMIN. CONF. OF THE U.S., HANDBOOK ON BEST PRACTICES OR
USING
VIDEO
TELECONFERENCING
IN
ADJUDICATORY
HEARINGS
(2015),
available
at
https://www.acus.gov/report/handbook-best-practices-using-video-teleconferencing-adjudicatory-hearings.
4
Admin. Conf. of the U.S., Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative
Procedure Act, 81 Fed. Reg. 94,314 (Dec. 23, 2016); see also MICHAEL ASIMOW, ADMIN. CONF. OF THE U.S., FEDERAL
ADMINISTRATIVE ADJUDICATION OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT 80–81 (2019), available at
https://www.acus.gov/publication/federal-administrative-adjudication-outside-administrative-procedure-act.

1

CONTENTS
Introduction

3

I.

Voluntary Remote Participation by Private Parties

4

II.

Mandatory Remote Participation by Private Parties

6

A. Agency-Specific Statutes
B. Generally Applicable Statutes
C. Constitutional Due Process

6
9
11

III.

Remote Participation by Opposing Parties and Witnesses

18

IV.

Remote-Hearing Infrastructure

19

A. Technical Issues
B. Accessibility for Parties
C. Privacy and Confidentiality
D. Open Hearings

20
21
21
22

Conclusion

23

2

INTRODUCTION
Adjudicatory hearings vary widely across federal agencies. While some evidentiary
hearings resemble federal-court proceedings, complete with formal rules of procedure and
evidence, others are as simple as an informal conversation or the exchange of documents.
Depending on the proceeding, participants may include a single adjudicator or multiple
adjudicators, adjudicative staff, representatives of the agency as a party, a private party or multiple
private parties, attorney or non-attorney representatives of private parties, agency witnesses, nonagency expert and lay witnesses, and foreign- and sign-language interpreters.
Adjudicators ordinarily conduct adjudicative hearings from their official duty station or a
designated hearing space managed by the agency or another federal-, state-, or local-government
entity. They sometimes also conduct hearings from non-government spaces secured for the
purpose of holding a hearing. During the COVID-19 pandemic, many adjudicators are, for the first
time, conducting hearings remotely from their alternative duty stations—generally their homes.5
This raises new practical and potentially legal questions as adjudicators are unlikely to have ready
home access to the same quality of remote-hearing infrastructure or level of administrative support.
Non-adjudicator participants participate in evidentiary hearings in person or remotely by
VTC or telephone from designated agency hearing spaces or elsewhere, or through the interchange
of written correspondence. The basic features of each of these four manners of participation are:

In person
Video teleconference
Telephone
In writing

Same Space as
Adjudicator
=

Synchronous
Visual
=
=

Synchronous
Audio
=
=
=

Information
Exchange
=
=
=
=

Although we often speak of “in-person hearings” and “remote hearings,” all participants in a
proceeding need not participate in the same manner. One party may appear in person before the
adjudicator while another participates remotely. Both parties may participate remotely from the
adjudicator, separately or sometimes from the same location. A witness or interpreter may
participate remotely in an otherwise in-person hearing. Indeed, individual participants may
participate by different means at various stages of a case—in person at an initial hearing and
remotely at a supplemental hearing, for example. For purposes of this Report, a “remote” hearing
means any evidentiary hearing in which at least one participant participates by VTC,
telephonically, or in writing.
As a matter of policy, each manner of participation has its benefits and costs and the
potential to provide, in appropriate circumstances, an effective and efficient means of exchanging
information and developing a record for decisionmaking. However, this Report addresses only the
legal questions regarding their use. Part I examines legal questions agencies may encounter when
parties voluntarily participate by remote means. Part II examines legal questions agencies may
5

See supra note 1.

3

encounter when they require private parties to participate remotely. Part III examines legal
questions that have arisen when witnesses and opposing parties participate remotely. Part IV
addresses potential legal questions related to remote-hearing infrastructure, including technical
problems that may occur during remote hearings and legal standards governing privacy,
accessibility, and open hearings.
I. VOLUNTARY REMOTE PARTICIPATION BY PRIVATE PARTIES
Many agencies, by rule or practice, permit parties to voluntarily participate in evidentiary
hearings by remote means. Depending on an agency tribunal’s rules of practice, parties may
voluntarily participate by remote means when:
•
•
•
•
•

an adjudicator grants a party’s individual request to participate remotely;
an adjudicator grants opposing parties’ joint request to participate remotely;
a party agrees to an adjudicator’s offer or request that he or she participate remotely;
a party declines or fails to follow procedures to inform the adjudicator in advance of
scheduling that he or she would prefer not to participate remotely; or
an adjudicator notifies a party that he or she is scheduled to participate remotely, and
the party declines or fails to avail himself or herself of procedures to opt out of remote
participation.

Legal questions may arise when a party claims that his or her remote participation was not
truly voluntary. A party may allege, for example, that he or she followed procedures to opt out of
remote participation, 6 showed good cause for not following opt-out procedures, 7 did not
understand or receive legally required notice that he or she would be participating remotely, 8
lacked knowledge of a deadline to object to remote participation,9 did not understand the effect of
participating remotely,10 or was not given adequate time to make travel arrangements to attend in
person.11 Agencies should be mindful of any statutory or regulatory requirements for obtaining
parties’ consent or processing objections to remote participation.
Even in instances in which a party explicitly agrees to participate by remote means, legal
questions may arise related to another participant’s manner of participation, technical problems
6

See, e.g., Dudek v. Comm’r of SSA, 2018 U.S. Dist. LEXIS 164261, at *3–4 (E.D. Mich. Aug. 24, 2018),
adopted by 2018 U.S. Dist. LEXIS 163588 (E.D. Mich. Sep. 25, 2018); McDavid v. Colvin, 2017 U.S. Dist. LEXIS
32397, at *5–10 (N.D. Ill. Mar. 7, 2017); Alzamora v. Comm’r of Soc. Sec., 2014 U.S. Dist. LEXIS 176093, at *8–
11 (M.D. Fla. Dec. 22, 2014); Pittman v. Astrue, 2013 U.S. Dist. LEXIS 122707, at *3–5 (M.D. Ga. July 29, 2013),
adopted by 2013 U.S. Dist. LEXIS 121523 (M.D. Ga. Aug. 27, 2013).
7
See, e.g., Cavazos v. Berryhill, 2018 U.S. 2018 U.S. Dist. LEXIS 215851, at *7–9 (W.D.N.Y. Dec. 21, 2018).
8
See, e.g., Zuniga v. Barr, 934 F.3d 1083, 1085 n.2 (9th Cir. 2019); Birdwell v. Berryhill, 2018 U.S. Dist. LEXIS
128999, at *15 (E.D. Tenn. June 22, 2018), adopted by 2018 U.S. Dist. LEXIS 128571 (E.D. Tenn. Aug. 1, 2018);
Kilcrease v. Comm’r of Soc. Sec, 2018 U.S. Dist. LEXIS 38675, at *25–31 (E.D. Tenn. Mar. 9, 2018); Pokluda v.
Colvin, 2014 U.S. Dist. LEXIS 59337, at*11–13 (N.D.N.Y. Mar. 21, 2014), adopted by 2014 U.S. Dist. LEXIS 58394
(N.D.N.Y. Apr. 28, 2014).
9
See, e.g., Scott v. Comm’r, 2014 U.S. Dist. LEXIS 45266, at *24–27 (D. Md. Apr. 2, 2014).
10
See, e.g., Gunter v. OPM, 15 Fed. Appx. 873, 874 (Fed. Cir. 2001).
11
Momentum EMS v. Sebelius, 2013 U.S. Dist. LEXIS 183591, at *29 (S.D. Tex. Dec. 18, 2013).

4

which occur during the hearing, or other issues related to the agency’s remote-hearing
infrastructure. These issues are discussed in Parts III and IV.
Legal questions may also arise when an agency denies a party’s request to participate
remotely and mandates that he or she participate in person. Such disputes typically arise when a
party contends that a disability or other limitation prevents him or her from traveling to an inperson hearing site or participating in an in-person setting. When evaluating claims that due
process requires an agency to accommodate an individual’s request to participate remotely, courts
seem to consider factors including the party’s compliance with agency procedures to request an
alternative manner of participation, the nature of the alleged limitation and evidence of its limiting
effects, and any actual effect on the conduct of the hearing or the outcome of the proceeding.12
Parties may also raise parallel claims of disability discrimination under section 504 of the
Rehabilitation Act. Section 504 provides that “[n]o otherwise qualified individual with a disability
in the United States . . . shall, solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination
. . . under any
program or activity conducted by any Executive agency or by the United States Postal Service.”13
(Similar requirements under the Americans with Disabilities Act are inapplicable to federal
agencies.14) Parties have occasionally alleged that agencies violate section 504 when they mandate
in-person participation for parties whose disabilities may with their ability to travel to a hearing
site or participate in an in-person setting.15
During the COVID-19 pandemic, most federal agencies have postponed in-person hearings
or encouraged parties to agree to participate remotely to curb the virus’s spread. At least one
federal agency, the Executive Office for Immigration Review, has continued to conduct in-person
hearings in some circumstances. 16 A recent suit requested that a federal district court issue a
temporary restraining order that would require the EOIR to “postpone all in-person detained
hearings, with the exception of bond hearings, for the longer of the duration of the currently
declared National Health Emergency or a Relevant State Emergency” and install adequate remotehearing infrastructure.17 Although the court ultimately concluded it lacked jurisdiction to hear the
case, it stressed that “promoting public health—especially during a pandemic—is in the public

12

See, e.g., Calderon v. Comm’r of Soc. Sec., 2013 U.S. Dist. LEXIS 89079, at *13–18 (M.D. Fla. May 31, 2013),
adopted by 2013 U.S. Dist. LEXIS 89264 (M.D. Fla. June 24, 2013); Pitts v. Comm’r, 2010 Tax Ct. Memo LEXIS
136, at *27–28 (2010); Walker v. Astrue, 2009 U.S. Dist. LEXIS 65096, at *53–55 (E.D.N.Y. July 28, 2009); Vicari
v. Astrue, 2009 U.S. Dist. LEXIS 9670, at *17–18 (E.D.N.Y. Feb. 10, 2009); Davidson v. Astrue, 2008 U.S. Dist.
LEXIS 91401, at *27–28 (W.D. Wis. Nov. 6, 2008)
13
29 U.S.C. § 794(a).
14
See Sanders v. Herin, 2019 U.S. Dist. LEXIS 230540, at *9–10 (D.S.C. Dec. 12, 2019), adopted by 2020 U.S.
Dist. LEXIS 75272 (D.S.C. Apr. 29, 2020); Pitts v. Comm’r, 2010 Tax Ct. Memo LEXIS 136, at *27–28 (2010).
15
See, e.g., Sanders v. Herin, 2019 U.S. Dist. LEXIS 230540, at *10–12 adopted by 2020 U.S. Dist. LEXIS 75272
(D.S.C. Apr. 29, 2020); Wilson v. Astrue, 2012 U.S. Dist. LEXIS 89923, at *9–13 (W.D.N.C. May 23, 2012), adopted
by 2012 U.S. Dist. LEXIS 88861 (W.D.N.C. June 26, 2012).
16
Exec. Office for Immigr. Rev., EOIR Operational Status During Coronavirus Pandemic,
https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic (last visited May 15, 2020).
17
Nat’l Immigration Project of the Nat’l Lawyers Guild v. EOIR, 2020 U.S. Dist. LEXIS 74324, at *25–29
(D.D.C. Apr. 28, 2020).

5

interest” and that the court is “certainly not well-positioned to second-guess [the agency’s] health
and safety determinations.”18
II. MANDATORY REMOTE PARTICIPATION BY PRIVATE PARTIES
Some agencies have adopted policies or practices that permit officials to compel parties to
participate remotely in agency evidentiary hearings. These policies, and their application in
individual cases, have faced legal challenges under agency-specific statutes, generally applicable
statutes such as the Administrative Procedure Act (APA) and Rehabilitation Act, and the Fifth
Amendment’s Due Process Clause.
A.

Agency-Specific Statutes

Many statutes guarantee parties the opportunity for a hearing before a federal agency
decisionmaker. Some explicitly authorize or prohibit an agency from compelling a party to
participate by any or by specific remote means. Most, however, require the agency to provide the
opportunity for a hearing without specifying its format.
1.

Statute Explicitly Authorizes an Agency to Mandate Remote Participation

At least one statute, the Immigration and Nationality Act (INA), explicitly grants an agency
the discretion to compel parties to participate by VTC.19 As discussed in Part II.C., courts have
thus far rejected facial due-process challenges against this broad grant of discretion.
2.

Statute Explicitly Prohibits an Agency from Mandating Remote Participation

Some statutes explicitly prohibit an agency from compelling a private party to participate
by any or by specific remote means. They do so either by requiring the agency to secure the party’s
consent prior to scheduling him or her to participate remotely, or by granting the party an absolute
right to opt out of remote participation. For example:
•

Immigration courts may only schedule removal hearings by telephone “with the
consent of the alien involved after the alien has been advised of the right to proceed in
person or through video conference.”20

•

The Department of Agriculture’s (USDA) National Appeals Division must conduct
evidentiary hearings in person, “unless the appellant agrees to a hearing by telephone
or by a review of the case record.”21

18

Nat’l Immigration Project of the Nat’l Lawyers Guild, 2020 U.S. Dist. LEXIS 74324, at *40–41.
8 U.S.C. § 1229a(b)(2); see also Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012); Melgar v. AG of the
U.S., 442 Fed Appx. 695, 697–98 (3d Cir. 2011); Veliz v. Holder, 375 F. Appx. 148, 149 (2d Cir. 2010); Eke v.
Mukasey, 512 F.3d 372, 382 (7th Cir. 2008); Ezenabo v. CBP, 2019 U.S. Dist. LEXIS 81771, at *4–6 (E.D. Mich.
May 15, 2019).
20
8 U.S.C. § 1229a(b)(2); accord Gaye v. Lynch, 788 F.3d 519, 533 (6th Cir. 2015).
21
7 U.S.C. § 6997(c)(2).
19

6

•

The America Invents Act requires an “oral” hearing before the Patent Trial and Appeal
Board on post-grant and inter partes review of patents.22

•

Although the Board of Veterans Appeals (BVA) is authorized to docket cases for a
hearing “by picture and voice transmission at a facility of the Department where the
Secretary has provided suitable facilities and equipment to conduct such hearings,” it
must grant a party’s request to participate in person. (Parties who are scheduled to
appear in person are also entitled to participate remotely from a Department facility.
Additionally, any party can request to appear from a location of their choosing “via a
secure internet platform established and maintained by the Secretary that protects
sensitive personal information from data breach.”23)

An agency would almost certainly violate federal law by compelling a party to participate
remotely or by proscribed remote means in contravention of its organic statute. The only question
would be whether the party enjoys a remedy on judicial review. Legal questions are more likely to
focus on whether an agency’s procedures to secure parties’ consent or process parties’ objections
comply with statutory directives, or whether the agency or an individual party complied with those
procedures in a specific case.24
3.

Statute Requires a “Hearing” Without Explicitly Specifying Its Format

Federal statutes more commonly require agencies to provide parties the opportunity for a
“hearing” without specifying its format. Some agencies have either declined to recognize statutory
authority to compel parties to participate remotely or have simply not exercised it. Others—
especially those that adjudicate a higher volume of cases—have interpreted such language to
permit officials to compel parties to participate by remote means in at least some circumstances.
For example:
•

The Internal Revenue Code guarantees taxpayers a “fair hearing” before the Internal
Revenue Service (IRS) files a lien notice or imposes a levy on a person’s property or
right to property.25 Treasury Department rules grant the IRS Independent Office of
Appeals discretion to conduct informal Collection Due Process (CDP) hearings in
person (“face-to-face”), by telephone, or through written correspondence. The
Independent Office of Appeals ordinarily grants a taxpayer’s request for an in-person
CDP hearing only if he or she presents “relevant, non-frivolous reasons for

22

See, e.g., id. §§ 316(a)(10), 326(a)(9). Federal law tends to contrast “oral” and “written” hearings. See, e.g., id.
§ 5327(c)(1) (Financial Stability Oversight Council).
23
Id. § 7107(c). The virtual hearings program has been fully operational since early 2020 via the Department of
Veterans Affairs’ telehealth application, VA Video Connect. Under the program, veterans can participate in BVA
hearings from home using their mobile phone or personal computer.
24
See, e.g., McDavid v. Colvin, 2017 U.S. Dist. LEXIS 32397, at *5–10 (N.D. Ill. Mar. 7, 2017); Garcia v. Colvin,
2014 U.S. Dist. LEXIS 183925, at *15–17 (S.D. Cal. Dec. 17, 2014), adopted by 2015 U.S. Dist. LEXIS 65542 (S.D.
Cal. May 15, 2015).
25
26 U.S.C. §§ 6320(b), 6330(b); see generally Danshera Cords, How Much Process Is Due? I.R.C. Sections
6320 and 6330 Collection Due Process Hearings, 29 VT. L. REV. 51 (2004).

7

disagreement with the proposed levy;” provides certain materials; and agrees to appear
at a local agency office.26
•

The Social Security Act guarantees parties the “opportunity for a hearing” in disputes
concerning Social Security Old-Age, Survivors, and Disability Insurance (OASDI) and
Supplemental Security Income (SSI).27 SSA rules provide parties a 30-day window to
object to appearing by VTC, after which the agency may schedule parties to appear
before an administrative law judge (ALJ) in person or, absent an objection, by VTC
subject to certain good-cause exceptions.28 However, the rules permit the agency to
direct incarcerated parties to appear by telephone or VTC subject to certain good-cause
exceptions. 29 (SSA abandoned a 2018 proposal that would have removed the
opportunity for non-incarcerated parties to opt out of appearing by VTC.30)

•

The Social Security Act grants parties in disputes over Medicare Parts A, B, and C the
same opportunity for a “hearing.”31 HHS rules direct ALJs in the Health and Human
Services Department’s Office of Medicare Hearings and Appeals (OMHA) to schedule
unrepresented Part A and Part B beneficiaries and Part C enrollees to appear by VTC
and other appellants to appear by telephone or in some cases by VTC with exceptions
for good cause. Parties who wish to appear in person must explain their objection “at
the earliest possible opportunity before the time set for the hearing” but are not
guaranteed in-person participation.32

•

The Perishable Agricultural Commodities Act (PACA) provides for a “hearing . . .
before a duly authorized examiner of the Secretary [of Agriculture]” in cases where an
investigation substantiates the existence of PACA violations with alleged damages
exceeding $30,000.33 USDA rules provide that such hearings “shall be conducted by
audio-visual telecommunication” with certain good-cause exceptions for in-person
participation. Examiners may also conduct hearings by telephone when doing so would
be more cost-effective, “[w]ould provide a full and fair evidentiary hearing,” and
“[w]ould not prejudice any party.”34

•

Certain federal employees and applicants have a statutory right to a “hearing” before
the Merit Systems Protection Board.35 The Board has held that MSPB administrative
judges (AJ) “may hold videoconference hearings in any case, regardless of whether the

26

26 C.F.R. § 301.6330-1(d)(2) (Q&A-D6, Q&A-D7, and Q&A-D8).
42 U.S.C. §§ 405(b)(1), 1383(c)(1)(A).
28
20 C.F.R. §§ 404.936, 416.1436.
29
20 C.F.R. §§ 404.936, 416.1436.
30
See Setting the Manner for the Appearance of Parties and Witnesses at a Hearing, 84 Fed. Reg. 69,298, 69,300
(Dec. 18, 2019).
31
42 U.S.C. §§ 1395w–22(g)(5), 1869(b)(1)(A).
32
42 C.F.R §§ 405.1020, 423.2020.
33
7 U.S.C. § 499f(c)(2).
34
7 C.F.R. § 47.15(c)(3).
35
5 U.S.C. § 7701(a)(1).
27

8

appellant objects,” so long as individual adjudications are “fair and just.”36 (The Board
undertakes a more searching inquiry when an AJ directs a private party to participate
by telephone and credibility is at issue.37)
Courts have applied a variety of interpretive methods and deference doctrines to reach
different conclusions on whether a right to a “hearing” guarantees parties the right to an in-person
hearing. For example:
•

Courts have consistently upheld the Treasury Department’s CDP-hearing rules under
both textualist and intentionalist readings of the Internal Revenue Code, emphasizing
that the statute does not specify the format for a “hearing” and that Congress was aware
of the IRS’s practice of using telephone hearings when it enacted the statute.38

•

An earlier version of the INA required that determinations of deportability be made “in
a proceeding before a special inquiry officer.”39 Relying on a popular dictionary, the
Ninth Circuit held that Congress “used ‘before’ to require the appearance of the
[immigration judge] and the persons charged in each other’s physical presence during
the course of a deportation proceeding.”40 The Eleventh Circuit rejected that holding,
instead deferring to the agency’s “reasonable interpretation” of the INA.41

•

Before it was repealed, a 1976 statute granted prisoners the right to “appear” before the
Parole Commission. The Sixth Circuit held that the statute unambiguously barred the
agency from compelling prisoners to appear by VTC because Congress could not have
foreseen using VTC for parole proceedings when it enacted the statute in 1976.42

Except for persons outside the United States,43 the courts have not definitively resolved whether
mandatory remote participation comports with the broad language of the Social Security Act.
B.

Generally Applicable Statutes

Parties have sometimes alleged that policies that permit agencies to compel a party to
participate by remote means, or their application in specific cases, contravenes generally
applicable statutes such as the APA and the Rehabilitation Act.

36

Koehler v. Dept. of the Air Force, 99 M.S.P.R. 82, 87–88 (2005).
See Lowe v. Dept. of Defense, 67 M.S.P.R. 97, 99 (1995); see also Robertson v. Dept. of Transp., 2009
M.S.P.B. 229 (2009).
38
Robinson v. Comm’r, 572 Fed. Appx. 846, 847–48 (11th Cir. 2014); Murphy v. Comm’r of Internal Revenue,
469 F.3d 27, 30 (1st Cir. 2006); Kindred v. Comm’r of Internal Revenue, 454 F.3d 688, 691 n.4 (7th Cir. 2006); Katz
v. Comm’r, 115 T.C. 329, 337–338 (2000); Davis v. Comm’r, 115 T.C. 35, 41 (2000).
39
8 U.S.C. § 1252(b) (1982) (emphasis added).
40
Purba v. INS, 884 F.2d 516, 517 (9th Cir. 1989).
41
Bigby v. U.S. INS, 21 F.3d 1059, 1963 (11th Cir. 1994).
42
Terrell v. U.S., 564 F.3d 442, 449–54 (6th Cir. 2009).
43
Courts have upheld mandatory remote participation for persons outside the United States. Mendoza v. Soc. Sec.
Comm’r, 92 Fed. Appx. 3, 4 (D.C. Cir. 2004); Reyes v. Sec. of HEW, 476 F.2d 910, 915 (D.C. Cir. 1973).
37

9

1.

Administrative Procedure Act

The APA’s formal-adjudication provisions generally require that agencies provide an
opportunity for a “hearing” before it takes final action.44 In claims for money or benefits and
applications for initial licenses, the APA explicitly permits agencies to “adopt procedures for the
submission of all or part of the evidence in written form” so long as those procedures will not
“prejudice” the parties.45 Parties in other proceedings are generally entitled to present their case
“by oral or documentary evidence, . . . and to conduct such cross-examination as may be required
for a full and true disclosure of the facts.”
The Supreme Court has held that the term “hearing” as used in the APA “does not
necessarily embrace either the right to present evidence orally and to cross-examine opposing
witnesses or the right to present oral argument to the agency’s decisionmaker.”46 Although the
Supreme Court reached this holding in the context of a formal rulemaking, its logic likely
forecloses the argument that the APA necessarily grants parties the right to an in-person or oral
hearing in all formal adjudications.47
This is not to suggest that remote or non-oral participation will satisfy the APA in all
contexts. The APA’s text contemplates that written participation could, in some cases, “prejudice”
a party. And it is conceivable that a particular form of remote participation could, in some
circumstances, inhibit the “full and true disclosure” of certain facts. For example, it may be more
difficult to accurately assess a party’s credibility when he or she participate by phone or through
the submission of written materials.48 When an agency in a proceeding governed by the APA’s
formal-adjudication provisions intends to compel a party to participate in a particular remote
manner, it should, as applicable, consider whether the chosen form of remote participation will
facilitate a “full and true disclosure” of the facts in issue or will not “prejudice” the party.
2.

Rehabilitation Act

As discussed before, section 504 of the Rehabilitation Act provides that “[n]o otherwise
qualified individual with a disability in the United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination . . . under any program or activity conducted by any Executive agency or by the
United States Postal Service.”49 (Similar requirements under the Americans with Disabilities Act
are inapplicable to federal agencies.50)
Advocates in both the Social Security and immigration contexts have argued that agencies
violate section 504 when they mandate remote participation for parties whose disabilities may
44

5 U.S.C. § 554(a).
Id. § 556(d).
46
U.S. v. Fla. E. Coast Rwy., 410 U.S. 224, 240–42 (1973).
47
See Lunsford v. Comm’r, 117 T.C. 159, 171–73 (2001) (Halpern, J., concurring).
48
Cf. ASIMOW, supra note 4, at 81.
49
29 U.S.C. § 794(a).
50
See Sanders v. Herin, 2019 U.S. Dist. LEXIS 230540, at *9–10 (D.S.C. Dec. 12, 2019), adopted by 2020 U.S.
Dist. LEXIS 75272 (D.S.C. Apr. 29, 2020); Pitts v. Comm’r, 2010 Tax Ct. Memo LEXIS 136, at *27–28 (2010).
45

10

negatively impact their ability to participate by remote means.51 While courts have so far decided
these challenges on jurisdictional grounds without reaching the merits, agencies should be mindful
of section 504’s requirement to provide reasonable accommodations or respond to reasonableaccommodation requests.52
C.

Constitutional Due Process

Many parties and other stakeholders have argued that agencies deny parties due process of
law when they compel them to participate by remote means generally, by particular remote means,
or by remote means in specific circumstances.
The basic guarantee of due process is the opportunity to be heard “at a meaningful time
and in a meaningful manner” before an agency deprives a person of a liberty or property interest.53
With few exceptions, courts have rejected the general argument that agencies inherently deny
parties such an opportunity when they compel them to participate by remote means.54
Courts instead evaluate claims under the familiar three-part rubric of Mathews v.
Eldridge.55 This framework requires courts to consider (1) “the private interest that will be affected
by the official action;” (2) “the risk of an erroneous deprivation of such interest through the
procedure used, and the probable value, if any, of additional or substitute procedural safeguards;”
51

See Class Action Complaint at 52–54, P.L. v. U.S. ICE, 2019 U.S. Dist. LEXIS 104478 (S.D.N.Y. June 21,
2019) (No. 19 Civ. 01336), available at https://www.bronxdefenders.org/wp-content/uploads/2019/02/19-Civ.01336-Complaint-Digital.pdf (last visited May 6, 2020); Comment of Nat’l Ass’n of Disability Representatives (Jan.
11, 2019), https://www.regulations.gov/document?D=SSA-2017-0015-0063; Comment of Nat’l Org. of Soc. Sec.
Claimants’ Representatives (Dec. 21, 2018), https://www.regulations.gov/document? D=SSA-2017-0015-0041.
52
Cf. Alexander v. Choate, 469 U.S. 287, 301 (1985) (requiring that service provides offer “meaningful access to
the benefit that the grantee offers” including “reasonable accommodations” under some circumstances).
53
Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
54
Reyez v. AG U.S., 767 Fed. Appx. 358, 362 (3d Cir. 2019); Gibbs v. U.S., 517 Fed. Appx. 664, 668 (11th Cir.
2013); Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012); Melgar v. Atty. Gen. of the U.S., 442 F. App’x 695,
698 (6th Cir. 2011); Swidecki v. DOC, 431 Fed. Appx. 900, 902–03 (Fed. Cir. 2011); Leiva-Molina v. Holder, 439
Fed. Appx. 571, 573 (9th Cir. 2011); Miller v. AG of the U.S., 397 Fed. Appx. 780, 783 (3d Cir. 2010); Veliz v.
Holder, 375 F. App’x 148, 149 (2d Cir. 2010); Toyama v. Leavitt, 408 Fed. Appx. 351, 353 (Fed. Cir. 2010); Jhin v.
OPM, 368 Fed. Appx. 118, 121–22 (Fed. Cir. 2010); Chavez-Vasquez v. Mukasey, 548 F.3d 1115, 1118 (7th Cir.
2008); Raphael v. Mukasey, 533 F.3d 521 (7th Cir. 2008); Eke v. Mukasey, 512 F.3d 372, 382 (7th Cir. 2008);
Ligoussou v. Mukasey, 297 Fed. Appx. 11, 12 (1st Cir. 2008); Fall v. Gonzales, 218 Fed. Appx. 385, 389 (6th Cir.
2007); Brienza-Schettino v. AG of the U.S., 221 Fed. Appx. 140, 145 (3d Cir. 2007); Burroughs v. Dep’t of the Army,
254 Fed. Appx. 814, 818–19 (Fed. Cir. 2007); Rusu v. INS, 296 F.3d 316, 321–22 (4th Cir. 2002); Butler v. Apfel,
144 F.3d 622, 627–28 (9th Cir. 1998); Gray Panthers v. Schweiker, 652 F.2d 146 (D.C Cir. 1980); Ezenabo v. CBP,
2019 U.S. Dist. LEXIS 81771, at *6 (E.D. Mich. May 15, 2019); Kollmeyer v. Comm’r of SSA, 2019 U.S. Dist.
LEXIS 13158, at *46 (D. Ariz. Jan. 28, 2019); Sahin v. Green, 2018 U.S. Dist. LEXIS 3138, at *5 (D.N.J. Jan. 8,
2018); Brown v. Comm’r of Soc. Sec, 2015 U.S. Dist. LEXIS 177223, at *17 (M.D. Fla. Nov. 24, 2015), adopted by
2016 U.S. Dist. LEXIS 40192 (M.D. Fla. Mar. 28, 2016); Loya v. Colvin, 2015 U.S. Dist. LEXIS 35787, at *8–10
(D. Colo. Mar. 20, 2015); Dalton v. Comm’r of Soc. Sec., 2012 U.S. Dist. LEXIS 15324, at *14 (E.D. Mich. Jan. 23,
2012), adopted by 2012 U.S. Dist. LEXIS 15344 (E.D. Mich. Feb. 8, 2012); Doyle v. Astrue, 2009 U.S. Dist. LEXIS
117142, at *22–23 (N.D.N.Y. Sep. 30, 2009), adopted by 2009 U.S. Dist. LEXIS 117110 (N.D.N.Y. Dec. 15, 2009).
But see Kirby v. Astrue, 731 F. Supp. 2d 453 (E.D.N.C. Aug. 3, 2010) (“The use of video conferences for hearings
before an ALJ raises serious questions as to a claimants [sic] due process rights to receive a full and fair hearing.”).
55
Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976); see Eke, 512 F.3d at 383; Rusu, 296 F.3d at 316.

11

and (3) “the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would entail.”56
The Mathews calculus will necessarily differ from agency to agency and from case to case
given factors including the nature of the private interests at stake; the factual and legal issues in
question; the nature of probative evidence and the probable value of an alternative manner of
participation for adducing such evidence; and the governmental interests at stake, including the
fiscal and administrative costs associated with providing the alternative manner of participation.
The first three of the following sections compare certain compelled means of participation with
frequently requested alternatives. The fourth section addresses additional legal questions that
agencies may encounter during the COVID-19 pandemic.
1.

Video Teleconference Participation Versus In-Person Participation

Both in-person and VTC participation provide parties and adjudicators synchronous oral
and visual communication with other participants. However, when a party participates by VTC,
he or she does not participate in the adjudicator’s physical presence and must communicate with
the adjudicator through software and hardware systems. Parties may request in-person
participation in place of VTC participation.
Proponents of VTC often assert that video participation preserves the most salient features
of in-person participation—sight and sound—while allowing for more efficient case processing,
greater scheduling flexibility for agency and non-agency participants, and reduced travel
expenses.57 Critics often assert that the lack of physical presence or the need to participate through
hardware and software systems can substantially increase the risk of an erroneous deprivation of
the private interest at stake in agency proceedings.
A growing body of anecdotal and empirical research suggests that private parties in some
mass adjudication programs may be more likely to prevail when they participate in person rather
than by VTC.58 Some agencies have argued that disparities in decisional outcomes between inperson and VTC hearings are not statistically significant, or that such disparities result from factors

56

Mathews, 424 U.S. at 334–35 (1976).
See Recommendation 2014-7, supra note 2; Recommendation 2011-4, supra note 2.
58
See, e.g., U.S. GOV’T ACCOUNTABILITY OFF., GAO-18-37, SOCIAL SECURITY DISABILITY: ADDITIONAL
MEASURES AND EVALUATION NEEDED TO ENHANCE ACCURACY AND CONSISTENCY OF HEARINGS DECISIONS 26, 44
(2017); U.S. GOV’T ACCOUNTABILITY OFF., GAO-17-438, IMMIGRATION COURTS: ACTIONS NEEDED TO REDUCE
CASE BACKLOG AND ADDRESS LONG-STANDING MANAGEMENT AND OPERATIONAL CHALLENGES 51–59 (2017);
Lenni B. Benson & Russell R. Wheeler, Enhancing Timeliness and Quality in Immigration Removal Adjudication
100 (2012) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/immigration-removal-adjudicationreport; Ingrid V. Eagly, Remote Adjudication in Immigration, 109 NW. U. L. REV. 933 (2015); Ctr. for Legal & Court
Tech., supra note 2, at 16–17; Harold Krent & Scott Morris, Achieving Greater Consistency in Social Security
Disability Adjudication: An Empirical Study and Suggested Reforms 46–47 (2013) (report to the Admin. Conf. of the
U.S.),
https://www.acus.gov/report/achieving-greater-consistency-social-security-disability-adjudication-reportfinal; Comment of Ass’n of Admin. Law Judges (Dec. 20, 2018), https://www.regulations.gov/document?D=SSA2017-0015-0040.
57

12

other than those that distinguish the two forms of participation.59 Critics suggest several possible
explanations for these disparities, including that:
•
•

•
•
•
•
•

technical issues affecting a party’s opportunity to be heard in a meaningful manner are
more likely to arise when a party participates through the hardware and software
systems required by VTC;
adjudicators may have greater difficulty assessing the credibility, trustworthiness,
demeanor, presentation, or symptomology of parties who participate by VTC due to a
video screen’s constraints on an adjudicator’s field of vision, diminished eye contact,
or difficulty interpreting nonverbal cues such as body language, facial expressions, and
tone of voice over video;
parties may feel greater discomfort interacting or communicating with other
participants by VTC;
parties and adjudicators may become distracted when they communicate using VTC;
VTC participation may not foster the same degree of interpersonal rapport or emotional
connection among hearing participants;
non-local adjudicators, who frequently conduct hearings in which a party participates
by VTC, may have less familiarity with regional conditions than local adjudicators who
frequently preside over in-person hearings;
members of the public or press may be less likely to attend or face greater difficulty
attending hearings conducted using VTC.60

These possible effects may be more consequential in some circumstances than in others.
For example, the Fourth Circuit in a seminal opinion acknowledged “[t]he potential negative
impact of video conferencing on a factfinder’s credibility assessments” but cautioned that this
“may be of little consequence in certain types of proceedings” where credibility is not central to
an adjudicator’s decision.61 When agencies compel parties to participate by VTC rather than in
59

SOC. SEC. ADMIN., FISCAL YEAR 2017 VIDEO TELECONFERENCE REPORT: ADMINISTRATIVE LAW JUDGE
HEARING DECISIONS (2017), https://www.regulations.gov/document?D=SSA-2017-0015-0006; GAO-18-37, supra
note 58, at 76; GAO-17-438, supra note 58, at 76, 145 (2017).
60
See, e.g., Rusu, 296 F.3d at 322–23; GAO-17-438, supra note 58, at 51–59 (2017); Booz Allen Hamilton, Legal
Case Study: Summary Report 23 (Apr. 6, 2017) (report to the Exec. Office for Immigr. Rev.); Ctr. for Legal & Court
Tech., supra note 2, at 13–16; Eagly, supra note 58; Neil Fox, Note, Telephonic Hearings in Welfare Appeals: How
Much Process Is Due?, 1984 U. ILL. L. REV. 445 (1984); D. Randall Frye, Statement of the Association of
Administrative Law Judges, Committee on Ways and Means, Subcommittee on Social Security, June 27, 2012, 33 J.
NAT’L ASS’N ADMIN. L. JUD. 35, 50–51 (2013); Allan A. Toubman, Tim McArdle & Linda Rogers-Tomer,
Unemployment Compensation and Procedural Issues: Due Process Implications of Telephone Hearings: The Case
for an Individualized Approach to Scheduling Telephone Hearings, 29 U. MICH. J.L. REFORM 407 (1995–1996); Frank
M. Walsh & Edward M. Walsh, Effective Processing or Assembly-Line Justice? The Use of Teleconferencing in
Asylum Removal Hearings, 22 GEO. IMMIGR. L.J. 259 (2008); Comment of Rep. Richard E. Neal et al. (Jan. 31, 2019),
https://www.regulations.gov/document?D=SSA-2017-0015-0247; Comment of Nat’l Ass’n of Disability
Representatives (Jan. 11, 2019), https://www.regulations.gov/document?D=SSA-2017-0015-0063; Comment of Nat’l
Org. of Soc. Sec. Claimants’ Representatives (Dec. 21, 2018), https://www.regulations.gov/document?D=SSA-20170015-0041; Comment of Ass’n of Admin. Law Judges (Dec. 20, 2018), https://www.regulations.gov/
document?D=SSA-2017-0015-0040.
61
Rusu v. INS, 296 F.3d 316, 322–24 (4th Cir. 2002); see also Vilchez, 682 F.3d at 1199 (9th Cir. 2012) (quoting
Rusu).

13

person, they should consider whether any adverse effects are particularly likely under the
circumstances.
Both ACUS and the Government Accountability Office have recommended that agencies
take steps to measure and remedy differences that develop in the decisional outcomes of in-person
and VTC hearings. 62 Agencies should be prepared to respond to due-process concerns where
measurable disparities in decisional outcomes exist, regardless of their cause—not only in
litigation but also in rulemaking proceedings, congressional interactions, and public affairs.
To succeed on a due-process claim, courts have typically required parties to demonstrate
that their participation by VTC actually resulted in substantial prejudice.63 For example, some
parties have argued that the lack of physical presence in VTC hearings or reliance on current VTC
technologies impeded an adjudicator’s ability to assess their credibility or demeanor. Although
federal courts have occasionally found that VTC negatively impacted an adjudicator’s credibility
assessment and resulted in great consequence,64 parties appear to face a high bar demonstrating
that the non-voluntary use of VTC likely affected an adjudicator’s decision or otherwise resulted
in actual prejudice. For example, courts have frequently denied relief, finding that a party failed to
show how VTC prevented an adjudicator from accurately assessing his or her credibility; that an
adjudicator did not make an adverse credibility determination; that an adjudicator made an adverse
credibility determination based on inconsistencies between a party’s testimony at the hearing and
other evidence, a lack of corroborating evidence in the record, or other evidence of record; or that
an adjudicator decided the case based primarily on factors other than an adverse credibility
determination.65
62

GAO-17-438, supra note 58, at 51–59 (2017); Recommendation 2014-7, supra note 2, ¶ 11; Recommendation
2011-4, supra note 2, ¶ 2(c)
63
See, e.g., Vilchez v. Holder, 682 F.3d 1195, 1199–1200 (9th Cir. 2012). But see Pataro v. Berryhill, 2019 U.S.
Dist. LEXIS 47150, at *54 (quoting Absalon v. Comm’r of Soc. Sec., 2009 U.S. Dist. LEXIS 32767, at *8 n.4
(S.D.N.Y. Apr. 17, 2009)), adopted by 2019 U.S. Dist. LEXIS 43979 (S.D.N.Y. Mar. 18, 2019); Taylor v. Astrue,
2010 U.S. Dist. LEXIS 112583, at *7 (E.D.N.C. Oct. 22, 2010).
64
Many of the cases identified present fairly idiosyncratic fact patterns. See, e.g., McDavid v. Colvin, 2017 U.S.
Dist. LEXIS 32397, at *8–10 (N.D. Ill. Mar. 7, 2017); Benson v. Colvin, 2016 U.S. Dist. LEXIS 125222, at *33–34
(D. Idaho Aug. 18, 2016), adopted by 2016 U.S. Dist. LEXIS 125807 (D. Idaho Sep. 12, 2016); Perry v. Colvin, 2015
U.S. Dist. LEXIS 164239, at *7–8 (E.D.N.C. Dec. 8, 2015); Hernandez v. Colvin, 2014 U.S. Dist. LEXIS 177950, at
*19–20 (C.D. Cal. Dec. 29, 2014); Kalishek v. Astrue, 2011 U.S. Dist. LEXIS 107615, at *17 (M.D. Fla. Aug. 23,
2011), adopted by 2011 U.S. Dist. LEXIS 107554 (M.D. Fla. Sep. 21, 2011); Kirby v. Astrue, 731 F. Supp. 2d 453,
457 (E.D.N.C. Aug. 1, 2010); Jopson v. Astrue, 517 F. Supp. 2d 689, 707 (D. Del. 2007)).
65
See, e.g., Talipov v. Holder, 591 Fed. Appx. 4, 7 (2d Cir. 2014); Liu v. Holder, 566 Fed. Appx. 333, 334 (5th
Cir. 2014); Vilchez, 682 F.3d at 1200; Li v. Holder, 478 Fed. Appx. 884, 887 (5th Cir. 2012); Veliz v. Holder, 375
Fed. Appx. 148, 149–50 (2d Cir. 2010); Miller v. AG of the U.S., 397 Fed. Appx. 780, 783 (3d Cir. 2010); Atugah v.
Holder, 321 Fed. Appx. 431, 436 (6th Cir. 2009); Eke v. Mukasey, 512 F.3d 372, 382–83 (7th Cir. 2008); Jean v.
Gonzales, 461 F.3d 87, 91 n.1 (1st Cir. 2006); Vanepps v. Comm’r of Soc. Sec., 2019 U.S. Dist. LEXIS 43300 (N.D.
Iowa Mar. 18, 2019); Kilcrease v. Comm’r of Soc. Sec., 2018 U.S. Dist. LEXIS 38675, at *28–30 (E.D. Tenn. Mar.
9, 2018); Loya v. Colvin, 2015 U.S. Dist. LEXIS 35787, at *9–10 (D. Colo. Mar. 20, 2015);Maurice v. Colvin, 2014
U.S. Dist. LEXIS 91263, at *61–62 (S.D.N.Y. July 2, 2014); Walker v. Comm’r of Soc. Sec., 2014 U.S. Dist. LEXIS
46013, at *23–25 (D.N.J. Apr. 3, 2014); Scott v. Comm’r, 2014 U.S. Dist. LEXIS 45266, at *27–28 (D. Md. Apr. 2,
2014); Shreve v. Colvin, 2014 U.S. Dist. LEXIS 23098, at *22 (D. Colo. Feb. 24, 2014); Yearby v. Astrue, 2013 U.S.
Dist. LEXIS 46604, at *18 n.4 (N.D. Ala. Apr. 1, 2013); Encinas v. Astrue, 2012 U.S. Dist. LEXIS 59890, *25–28
(D. Ariz. Apr. 30, 2012), adopted by 2015 U.S. Dist. LEXIS 142373 (D. Ariz. Oct. 20, 2015); Warner v. Comm’r of
Soc. Sec, 2012 U.S. Dist. LEXIS 38875, at *8–10 (E.D. Mich. Mar. 22, 2012); McGovern v. Astrue, 2012 U.S. Dist.

14

Some parties have alleged that they possess some attribute which makes it difficult for
them to participate by VTC.66 Individuals whom stakeholders have suggested may have difficulty
participating by VTC include:
•
•
•
•
•
•
•
•
•

individuals with hearing or vision impairments;
individuals who require the services of a foreign- or sign-language interpreter
(especially where the interpreter participates telephonically or from another location);
individuals who speak softly or have speech impairments, as a result of a physical or
mental disorder;
individuals with auditory or visual hallucinations;
individuals with epilepsy or other seizure disorders;
individuals who, as a result of mental impairments, do not recognize the individual with
whom they are remotely interacting as the adjudicator who will decide their case,
distrust technology, or fear being recorded;
individuals with intellectual disabilities, borderline intellectual functioning, brain
injury, learning disabilities, and developmental disorders such as autism;
low-income and elderly individuals who may be less familiar with VTC; and
children.67

Several agencies have adopted policies that provide adjudicators the flexibility to permit in-person
participation as circumstances require. SSA rules, for example, require the agency to consider
“[a]ny facts in [a party’s] particular case that provide a good reason to schedule [his or her]
appearance . . . in person.”68 OMHA rules require agency officials to consider whether “[s]pecial
or extraordinary circumstances exist” which may warrant in-person participation.69 And PACA
examiners at the USDA have discretion to permit in-person appearances when “necessary because
of a disability.”70
When courts confront challenges that an agency denied a party due process by requiring
him or her to participate remotely despite a limitation, they seem to consider factors such as the
nature of the alleged limitation, the existence of evidence corroborating the alleged limitation, the
party’s compliance with agency procedures to request an accommodation or object to remote
LEXIS 38551, at *51 (W.D. Wash. March 1, 2012), adopted by 2012 U.S. Dist. LEXIS 38548 (W.D. Wash. Mar. 21,
2012); Dalton v. Comm’r of Soc. Sec., 2012 U.S. Dist. LEXIS 15324, at *13–15 (E.D. Mich. Jan. 23, 2012), adopted
by 2012 U.S. Dist. LEXIS 15344 (E.D. Mich. Feb. 8, 2012); Cassidy v. Astrue, 2011 U.S. Dist. LEXIS 104094, at
*39–41 (N.D. Fla. Aug. 9, 2011), adopted by 2011 U.S. Dist. LEXIS 104093 (N.D. Fla. Sep. 13, 2011).
66
See Goldberg v. Kelly, 397 U.S. 254, 268–69 (1970) (“[t]he opportunity to be heard must be tailored to the
capacities and circumstances of those who are to be heard.”).
67
See, e.g., Comment of Rep. Richard E. Neal et al. (Jan. 31, 2019), https://www.regulations.gov/
document?D=SSA-2017-0015-0247; Comment of National Ass’n of Disability Representatives (Jan. 11, 2019),
https://www.regulations.gov/document?D=SSA-2017-0015-0063; Comment of Nat’l Org. of Soc. Sec. Claimants’
Representatives (Dec. 21, 2018), https://www.regulations.gov/document?D=SSA-2017-0015-0041; Comment of
Ass’n of Admin. Law Judges (Dec. 20, 2018), https://www.regulations.gov/document?D=SSA-2017-0015-0040; see
also Legal v. Lynch, 838 F.3d 51, 53 (1st Cir. 2016); Tankisiv v. Comm’r of Soc. Sec., 521 Fed. Appx. 29, 31 (2d
Cir. 2013); see also Ctr. for Legal & Court Tech., supra note 2, at 44–45.
68
20 C.F.R. §§ 404.936(c)(1)(iii), 416.1436(c)(1)(iii).
69
Id. §§ 404.1520(b)(1)(ii)(B), 423.2020(b)(1)(ii)(B).
70
7 C.F.R. § 47.15(c)(3).

15

participation, and any effects on the outcome of the proceeding that actually resulted from the
alleged limitation.71
Finally, parties may allege that that a technical issue interfered with their opportunity to be
heard in a meaningful manner. Technical issues—which can also occur when parties voluntarily
participate by VTC—are discussed in Part IV.A.
2.

Telephonic Participation Versus In-Person or Video Teleconference Participation

Parties may request in-person or VTC participation in place of telephonic participation. Inperson, VTC, and telephonic participation all provide parties and adjudicators synchronous oral
communication. Of course, telephonic participation lacks the physical presence of in-person
participation. Compared with VTC, its primary benefit is that it can be simpler to install and use.
(Telephonic participation often requires nothing more than an operable telephone at each location,
a conference bridge, and perhaps a means to record the conversation.) However, parties may argue
that accurate decisionmaking requires that some participants be able to see each other.72
Although courts have generally found compulsory telephonic participation consistent with
due process,73 visual observation may be fundamental to the accurate resolution of a genuine issue
of material fact in some circumstances. For example, administrative and judicial decisionmakers
have been skeptical of telephonic participation when a participant’s credibility is central to a
decision given the potential significance of nonverbal cues.74
As with VTC participation, agencies should also consider whether individual parties have
attributes (e.g., hearing loss) which might make it difficult for them to participate by telephone.75
3.

Written Participation vs. Oral Participation

Although written participation allows for the exchange of information, it lacks the physical
presence of in-person participation, the visual aspect of in-person and VTC participation, and the
opportunity for oral communication common to all others manners of participation. In many cases,
parties have instead requested a manner of participation that permits oral communication.

71

See, e.g., Brown v. Comm’r of Soc. Sec., 2015 U.S. Dist. LEXIS 177223, at *11–21 (M.D. Fla. Nov. 24, 2015),
adopted by 2016 U.S. Dist. LEXIS 40192 (M.D. Fla. Mar. 28, 2016); Pitts v. Comm’r, 2010 Tax Ct. Memo LEXIS
136, at *27–28 (2010); Evans v. Astrue, 2009 U.S. Dist. LEXIS 123360, at *22–25 (E.D. Tenn. Nov. 16, 2009),
adopted by 2010 U.S. Dist. LEXIS 3502 (E.D. Tenn. Jan. 15, 2010).
72
See, e.g., Koehler v. Dept. of the Air Force, 99 M.S.P.R. 82, 87 n.3 (2005); Comment of Center for Medicare
Advocacy (Aug. 29, 2016), https://www.regulations.gov/document?D=CMS-2016-0122-0060.
73
See, e.g., Jhin v. OPM, 368 Fed. Appx. 118, 121–22 (Fed. Cir. 2010); Sanford v. Comm’r, 283 Fed. Appx. 780,
783 (11th Cir. 2008); Casey v. O’Bannon, 536 F. Supp. 350, 353–55 (E.D. Pa. 1982).
74
See, e.g., Johnson v. Colvin, 2016 U.S. Dist. LEXIS 166436, at *53 (M.D. Pa. Dec. 2, 2016); Couch v. Comm’r
of Soc. Sec., 2012 U.S. Dist. LEXIS 36223, at *18 (S.D. Ohio Mar. 19, 2012); see also infra note 90 (discussing
telephone participation by witnesses); Krehibel v. USPS, 2011 MSPB LEXIS 4568 (July 25, 2011); Leighton v. OPM,
2007 MSPB LEXIS 8188 (Oct. 18, 2007), review denied by 2008 MSPB LEXIS 116 (Jan. 24, 2008). But see Lev v.
Astrue, 2010 U.S. Dist. LEXIS 77456, at *20–21 (N.D. Cal. July 30, 2010).
75
See supra notes 67–71 and accompanying text.

16

Whether compulsory written participation satisfies due process likely depends on the
material issues in dispute, the nature of probative evidence, and the usefulness of oral testimony
or argument. In Goldberg v. Kelly, for example, the Supreme Court held that written participation,
at least by beneficiaries of public benefits, provides a “wholly unsatisfactory basis for decision”
“where credibility and veracity are at issue.”76 And in hearings not governed by the APA’s formaladjudication provisions, ACUS has recommended that “good candidates for written-only
hearings” are those that “solely involve disputes concerning: (a) Interpretation of statutes or
regulations; or (b) Legislative facts as to which experts offer conflicting views.”77
As with VTC and telephonic participation, agencies should also consider whether
individual parties have attributes which might make it difficult for them to participate in an
adjudicative hearing through the submission of written materials. 78 Again in Goldberg, for
example, the Supreme Court held that written participation is “an unrealistic option for most
[public assistance benefits] recipients, who lack the educational attainment necessary to write
effectively and who cannot obtain professional assistance.”79 Other factors may make it difficult
for certain persons or persons with certain attributes to effectively present evidence and arguments
in written form.
4.

Remote Participation Versus In-Person Participation During the COVID-19
Pandemic

During the ongoing COVID-19 pandemic, many federal agencies have closed their
facilities to the public and adopted or encouraged maximum telework. State stay-at-home
directives and social-distancing guidelines may also be in place. As a result, many agencies have
adopted or explored policies that would mandate remote participation in appropriate
circumstances.80 In many cases, the only alternative may be to indefinitely delay an in-person
hearing.
The courts have not yet addressed the fiscal and administrative burdens associated with
indefinitely delaying case processing during a global pandemic or requiring agency officials to
conduct in-person hearings. In a recent suit, a family asked a federal district court to enjoin the
EOIR from mandating that they participate by VTC during the pandemic.81 Although the court
ultimately concluded it lacked jurisdiction to hear the case, as noted before, at least one federal
court has stressed that “promoting public health—especially during a pandemic—is in the public
interest” and that the court is “certainly not well-positioned to second-guess [the agency’s] health

76

Goldberg v. Kelly, 397 U.S. 254, 268–69 (1970).
Recommendation 2016-4, supra note 4, ¶¶ 21–22.
78
See supra notes 67–71 and accompanying text.
79
Goldberg v. Kelly, 397 U.S. 254, 268–69 (1970). In Goldberg, the Court found that written participation is “an
unrealistic option for most [public assistance benefits] recipients, who lack the educational attainment necessary to
write effectively and who cannot obtain professional assistance” and are a “wholly unsatisfactory basis for decision”
“where credibility and veracity are at issue.” Id.
80
ACUS is collecting materials related to federal agency adjudication during the pandemic on its website at
https://www.acus.gov/coronavirus-and-adjudication
81
Rosales v. Barr, 2020 U.S. Dist. LEXIS 55132, at *24 (N.D. Cal. Mar. 30, 2020).
77

17

and safety determinations.”82 Other courts may apply similar reasoning. Courts may also consider
factors such as the government’s interest in promptly resolving matters before it, avoiding
litigation resulting from an indefinite delay of in-person hearings, and protecting the health and
wellbeing of agency employees and the public.83
III. REMOTE PARTICIPATION BY OPPOSING PARTIES AND WITNESSES
Parties who participate in person have sometimes objected to remote participation by
opposing parties and witnesses based on a statutory or regulatory right to an in-person hearing or
to cross-examine witnesses, the Fifth Amendment’s Due Process Clause, and the Sixth
Amendment’s Confrontation Clause.
The Confrontation Clause applies only in criminal proceedings and is inapplicable in the
civil administrative context.84 Courts have not identified a general due-process right to confront
opposing parties or witnesses in person. 85 They have also typically rejected arguments that a
statutory or regulatory right to an in-person hearing or to cross-examine witnesses entitles parties
to confront other participants in person.86
Courts have tended to reject arguments that remote participation by witnesses, standing
alone, inherently denies parties due process. In the Social Security context, for example the Eighth
Circuit has held that due process “does not require in-person cross-examination,” reasoning, “we
do not believe that, in a non-adversarial proceeding, an in-person cross-examination would
significantly increase the accuracy of determining a witness’s credibility over that of a telephone
cross-examination.” 87 The Ninth Circuit has rejected the argument that telephonic testimony
undermined the reasonableness of credibility findings in a disciplinary action affirmed by the

82

Nat’l Immigration Project of the Nat’l Lawyers Guild, 2020 U.S. Dist. LEXIS 74324, at *40–41.
See Doe v. Transylvania, 2020 U.S. 63965, at *37 (E.D. Ky. Apr. 13, 2020); MPLX Ozark Pipe Line LLC, 171
F.E.R.C. 63,018 (May 4, 2020); FERC Chief Administrative Law Judge’s Notices to the Public, Docket No. AD2012-000, Notice of Remote Hearings (Apr. 23, 2020).
84
Cf. Akinwande v. Ashcroft, 380 F.3d 517, 522 (1st Cir. 2004); Gibbs v. SEC, 1994 U.S. App. LEXIS 10771,
at *10–11 (10th Cir. May 13, 1994) (citing SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 742 (1984)); Peretti v. NTSB
FAA, 1993 U.S. App. LEXIS 16132, at *3–5 (10th Cir. 1993) (same); see also Ctr. for Legal & Court Tech., supra
note 2, at 10.
85
See, e.g., EF Int’l Language Schs. v. NLRB, 673 Fed. Appx. 1, 3–4 (D.C. Cir. 2017); Reyes v. U.S. A.G., 565
Fed. Appx. 785, 787–88 (11th Cir. 2014); Aslam v. Mukasey, 537 F.3d 110, 114–15 (2d Cir. 2008); Akinwande, 380
F.3d at 522; Pujols v. Ashcroft, 2003 U.S. App. LEXIS 23042, at *10 (3d Cir. Oct. 6, 2003); Beltran-Tirado v. INS,
213 F.3d 1179, 1185–86 (9th Cir. 2000); Gibbs, 1994 U.S. App. LEXIS 10771, at *8–10.
86
See, e.g., Pujols, 2003 U.S. App. LEXIS 23042, at *10 n.5; Beltran-Tirado, 213 F.3d at 1185–86; Wight v.
Vilsak, 2011 U.S. Dist. LEXIS 167723, at *17–18 (W.D. Tex. Apr. 7, 2011); see also U.S. v. Fla. E. Coast Rwy., 410
U.S. 224, 240–42 (1973). A notable exception is the federal Individuals with Disabilities Education Act (IDEA) whose
text guarantees parts the right to “confront” witnesses. Many courts have interpreted this language to provide parties
a right to in-person confrontation. See, e.g., Genn v. New Haven Bd. Of Educ., 2015 U.S. Dist. LEXIS 29663, at *3–
8 (Mar. 11, 2015); Farmington Public Schools v. Lenhoff, 1989 U.S. Dist. LEXIS 17801, at *8–13 (E.D. Mich. May
25, 1989). State agencies administer the IDEA. No statute administered by a federal agency appears to include explicit
language permitting a party to “confront” witnesses.
87
Hepp v. Astrue, 511 F.3d 798, 805–06 (8th Cir. 2008); see also Henry, 561 Fed. Appx. at *57–58; Johnson v.
Colvin, 2014 U.S. Dist. LEXIS 49372, at *10–11 (W.D.N.Y. Apr. 9, 2014).
83

18

Securities and Exchange Commission.88 And although the Tenth Circuit has upheld telephonic
testimony by an Immigration and Customs Enforcement agent, it cautioned that in other cases “the
lack of in-person confrontation might so undercut the purposes of cross-examination as to deprive
a lawful resident of the fundamental protections of procedural due process.”89
However, individual cases may present factors that raise due process concerns, especially
when a technical problem interfered with a party’s ability to examine or cross-examine a remote
witness (see Part IV.A) or a party demonstrates that a witness’s remote participation negatively
impacted an adjudicator’s ability to assess his or her credibility. For reasons discussed earlier,
credibility arguments may be stronger when a witness participates by telephone rather than VTC,90
so long as the party can demonstrate that telephonic testimony resulted in actual prejudice to a
party, likely affected the outcome of the case,91 or otherwise violated an agency rule.92
Of note, parties have occasionally (and unsuccessfully) challenged an adjudicator’s
decision not to permit a witness to testify remotely.93
IV. REMOTE-HEARING INFRASTRUCTURE
Another class of potential legal issues relates to the design and functioning of remote
hearings, including the privacy and accessibility of physical spaces designated for remote hearings;
the security and usability of the hardware and software systems that enable remote participation;
procedures for resolving technical issues when they arise; and compliance with open-hearing
requirements. Agencies are facin new legal questions during the COVID-19 pandemic due to

88

Alderman v. SEC, 104 F.3d 285, 288 n.4 (9th Cir. 1997).
Barrera-Quintero v. Holder, 699 F.3d 1239, 1247–49 (10th Cir. 2012).
90
See, e.g., EF Int’l Language Schs. v. NLRB, 673 Fed. Appx. 1, 3–4 (D.C. Cir. 2017); Ngassaki v. Holder, 538
Fed. Appx. 28, 30 (2d Cir. 2013); Edwards v. Astrue, 2011 U.S. Dist. LEXIS 88293, at *28–29 (D. Conn. Aug. 10,
2011), adopted by 2018 U.S. Dist. LEXIS 15156 (D. Conn. Jan. 31, 2018); Ainsworth v. Astrue, 2010 U.S. Dist.
LEXIS 60686, at *10–12 (D.N.H. June 17, 2010); see also Robertson v. Dept. of Transp., 2009 M.S.P.B. 229 (2009).
91
See Barrera-Quintero, 699 F.3d at 288 n.4.
92
See, e.g., Bryant v. Colvin, 661 Fed. Appx. 686, 689–91 (11th Cir. 2016); Henry v. Colvin, 561 Fed. Appx. 55,
at *57–58 (2d Cir. 2014); De Rojas v. Gonzales, 2007 U.S. App. LEXIS 5511, at *5–6 (9th Cir. 2007); Torres v.
Colvin, 2015 U.S. Dist. LEXIS 177283, at *9–24 (D. Conn. Dec. 2, 2015), adopted by 2016 U.S. Dist. LEXIS 40078
(D. Conn. Mar. 28, 2016); Ramsay v. Comm’r of Soc. Sec., 2015 U.S. Dist. LEXIS 73125, at *22–26 (S.D. Ohio June
5, 2015); Cooley v. Comm’r of SSA, 2015 U.S. Dist. LEXIS 43022, at *48–59 (D.S.C. Mar. 13, 2015); Hannah v.
Colvin, 2014 U.S. Dist. LEXIS 85751, at *7–19 (M.D. Fla. June 4, 2014), adopted by 2014 U.S. Dist. LEXIS 85754
(M.D. Fla. June 24, 2014); Brown v. Comm’r, SSA, 2014 U.S. Dist. LEXIS 37942, at *20–24 (E.D. Tex. Mar. 24,
2014); Lipincott v. Comm’r of Soc. Sec., 982 F. Supp. 2d 358, 378–81 (D.N.J. Nov. 8, 2013); Richey v. Colvin, 2013
U.S. Dist. LEXIS 133683, at *65–66 (N.D. Cal. Sep. 17, 2013); Cheatham v. Comm’r of Soc. Sec., 2013 U.S. Dist.
LEXIS 62386, at *27–31 (E.D. Mich. Mar. 19, 2013), adopted by 2013 U.S. Dist. LEXIS 61311 (E.D. Mich. Apr. 30,
2013); King v. Comm’r of Soc. Sec., 2013 U.S. Dist. LEXIS 46392 (D. Mass. Mar. 28, 2013); Green v. Astrue, 2013
U.S. Dist. LEXIS 23629, at *30–34 (D. Mass. Feb. 20, 2013); Tardiff v. Astrue, 2012 U.S. Dist. LEXIS 30132, at
*15–20 (D.N.H. Mar. 7, 2012); Koutrakos v. Astrue, 2012 U.S. Dist. LEXIS 52319, at *13–27 (D. Conn. Jan. 9, 2012),
adopted by 906 F. Supp. 2d. 30 (D. Conn. 2012); Porter v. Barnhart, 2006 U.S. Dist. LEXIS 101838, at *3–6 (W.D.
Wash. Apr. 12, 2006).
93
See, e.g., Barriga v. Barr, 2020 U.S. App. LEXIS 7537, at *3 (2d Cir. Mar. 11, 2020); Zhang v. AG U.S., 632
Fed. Appx. 680, 683 (3d Cir. 2015).
89

19

office closures, increased telework, state and local stay-at-home directives, social-distancing
guidelines, travel limitations, and other factors.
A.

Technical Issues

Many of the most successful legal challenges related to remote participation are those in
which a party demonstrates that a limitation or technical problem with an agency’s remote-hearing
technology interfered with the conduct of the hearing, resulted in an incomplete recording or
transcript, or may have affected the proceeding’s outcome.94
Whether a court will actually find that a specific limitation or technical problem denied a
party due process and warrants remedial action depends heavily on both the facts and outcomes of
the individual case, including whether the issue substantively prejudiced the party. Courts have
remanded for a new hearing where a VTC participant was unable to review important documents;95
where an immigration court did not record a witness’s telephonic testimony;96 where an expert’s
telephone testimony “cut out;” 97 and where the hearing transcript indicated that telephonic
testimony was frequently “indiscernible” or “inaudible.”98 Courts have declined to remand cases
when they found the technical issue harmless, for example where an adjudicator was briefly unable
to see a private party,99 where testimony was “indiscernible” but the broader context suggested
that the participants were ultimately able to communicate or that the technical issues did not affect
the outcome of the proceeding, 100 and where only a few words were inaudible and not so
significant as to create an “evidentiary gap” that could change the outcome of the proceeding.101
Agencies should be mindful of potential limitations and technical problems in remote
hearings and take steps to address them systemwide before they occur. Useful resources include
ACUS materials on best practices in VTC hearings, especially the Handbook on Best Practices for
Using Video Teleconferencing in Adjudicatory Hearings .102 When technical issues do occur in
individual proceedings, initial and appellate adjudicators should consider their likely effect, if any,
on the outcome of the proceeding to determine an appropriate response.

94
See Vilchez v. Holder, 682 F.3d 1195, 1199 (9th Cir. 2012); Fall v. Gonzales, 218 Fed. Appx. 385, 389 (6th
Cir. 2007); Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002).
95
Rapheal, 533 F.3d at 532–34.
96
Millian-Zamora v. Ashcroft, 228 F. Supp. 2d 272, 277–80 (E.D.N.Y. 2002).
97
Edwards v. Astrue, 2011 U.S. Dist. LEXIS 88293, at *28–29 (D. Conn. Aug. 10, 2011), adopted by 2018 U.S.
Dist. LEXIS 15156 (D. Conn. Jan. 31, 2018).
98
See, e.g., Semenov v. AG of the U.S., 346 Fed. Appx. 783, 787–90 (3d Cir. 2009); Ainsworth v. Astrue, 2010
U.S. Dist. LEXIS 60686, at *10–12 (D.N.H. June 17, 2010).
99
Loya v. Colvin, 2015 U.S. Dist. LEXIS 35787, at *9 (D. Colo. Mar. 20, 2015).
100
Vilchez v. Holder, 682 F.3d 1195, 1200 (9th Cir. 2012); Garza-Moreno v. Gonzales, 489 F.3d 239, 241–42
(6th Cir. 2007); Rusu v. INS, 296 F.3d 316, 323–24 (4th Cir. 2002); Cherry v. Comm’r of Soc. Sec., 2019 U.S. Dist.
48080, at *25–26 (S.D.N.Y. Mar. 22, 2019); Momentum EMS v. Sibelius, 2013 U.S. Dist. LEXIS 183591, at *29–31
(S.D. Tex. Dec. 18, 2013); Bates v. Astrue, 2008 U.S. Dist. LEXIS 30817, at *38–39 (D. Del. Apr. 11, 2008); see also
Jhin v. OPM, 368 Fed. Appx. 118, 121–22 (Fed. Cir. 2010).
101
Ford v. Astrue, 2009 U.S. Dist. LEXIS 24204, at *14–16 (M.D. Fla. Mar. 23, 2009).
102
See supra notes 2–4.

20

During the COVID-19 pandemic, hearing participants (including parties, their
representatives, witnesses, and even adjudicators) are unlikely to have ready home access to the
same quality of remote-hearing infrastructure or level of administrative support. Although some
agencies, notably the Board of Veterans Appeals,103 have experience with fully virtual hearings,
most
have had to quickly adopt commercially available programs such as Zoom for Government.104
Adjudicators and other participants may be relatively unfamiliar with these programs, or they may
not offer the same features as technologies previously procured for agency hearing rooms. Some
individuals may also lack home access to a computer; reliable, high-speed internet; or a private
location from which to participate.105
B.

Accessibility for Parties

As agencies develop infrastructure to facilitate remote participation by parties, they should
remain mindful of the requirements of laws governing access to federal buildings and programs,
including section 504 of the Rehabilitation Act, which bars discrimination against persons with
disabilities;106 section 508 of the Rehabilitation Act, which sets minimum standards for federalgovernment information technology systems;107 and the Architectural Barriers Act (ABA), which
mandates that federal buildings be accessible to persons with disabilities.108 Although courts have
not decided the merits of section 504 challenges, and parties do not appear to have litigated the
application of section 508 and the ABA to remote-hearing infrastructure, agencies should consider
potential implications for telephone- and VTC-hearing systems, remote interpretation services, and
VTC-only hearing rooms.
Several agencies have considered or begun using commercially available programs to
conduct remote hearings during the COVID-19 pandemic. Agencies should ensure that these
systems satisfy federal accessibility requirements, including sections 504 and 508 of the
Rehabilitation Act.
C.

Privacy and Confidentiality

Agencies are subject to various laws intended to protect sensitive information, including
the Freedom of Information Act, 109 the Privacy Act, 110 and the Federal Information Security
103

U.S. Dept. of Veterans Affairs, Board of Veterans’ Appeals Virtual Hearing Option,
https://www.bva.va.gov/docs/VirtualHearing_FactSheet.pdf (last visited June 16, 2020).
104
See, e.g., Merit Systems Protection Bd., Zoom for Government Privacy Act Statement (Apr. 2020),
https://www.mspb.gov/privacy/MSPB_Privacy_Act_Statement_for_Zoom_for_Government_Apr_2020.pdf.
105
Brennan Ctr. for Justice, Promise and Peril as Courts Go Virtual Amid Covid-19 (May 29, 2020),
https://www.brennancenter.org/our-work/analysis-opinion/promise-and-peril-courts-go-virtual-amid-covid-19;
Letter of New Yorkers for Responsible Lending to Chief Administrative Judge, New York State Unified Court System
(Apr.
15,
2020),
http://www.nyrl.org/wp-content/uploads/2019/01/2020.4.15-NYRL-Ltr-re-virtualappearances.pdf?fbclid=IwAR1tJJnALfomjBs7H0KNqt0NrskvmN8_uaFR9lcaz2SO-wTDuo5DirYxdXU.
106
29 U.S.C. § 701.
107
Id. § 794d.
108
42 U.S.C. § 4151 et seq.
109
5 U.S.C. § 552.
110
Id. § 552a.

21

Modernization Act (FISMA). 111 Although parties have not litigated the application of these
statutes to remote-hearing infrastructure, agencies should consider whether their remote-hearing
infrastructure—including systems for exchanging written information and oral testimony over the
internet—complies with the requirements of these and other generally applicable statutes and
regulations under them. 112 Personally identifiable information that an agency collects through
remote-hearing technologies may constitute a system of records for Privacy Act purposes.113
Agencies should also be mindful of relevant agency-specific statutory and regulatory
requirements. For example, federal law directs the Department of Veterans’ Affairs to establish
and maintain a “security internet platform” for VTC participation in BVA hearings “that protects
sensitive personal information from a data breach.”114
Several agencies have considered or begun using commercially available programs to
conduct remote hearings during the COVID-19 pandemic. Agencies should ensure that these
systems satisfy federal privacy and confidentiality requirements.
D.

Open Hearings

The First Amendment may require that agencies open hearings to the public in certain
circumstances. 115 The Government in the Sunshine Act generally requires that multi-member
agencies conduct agency business in open hearings.116 Provisions of the APA, agency-specific
statutes, and agency rules of practice may also provide for open hearings in at least some
circumstances.117
Open-hearing issues are likely to arise when adjudicators conduct hearings individually
from their offices, homes, or elsewhere, or jointly from a space to which members of the public
lack access. Although courts do not appear to have addressed the application of open-hearing
requirements to wholly remote hearings, agencies should consider whether their remote-hearing
infrastructure complies with relevant statutory and regulatory requirements and provides public
access to remote hearings when appropriate.
Many individual adjudicators and members of multi-member panels are participating in
hearings from their homes during the COVID-19 pandemic. Agencies should ensure that the use

111

44 U.S.C. § 3541 et seq.
See, e.g., Scott v. Shinseki, 2014 U.S. App. Vet. Claims LEXIS 191, at *3–4 (Feb. 7, 2014).
113
See 5 U.S.C. § 552a; see also supra note 104.
114
38 U.S.C. § 7107(c)(2)(C)(i)(II).
115
See N.Y. Civ. Liberties Union v. N.Y. City Transit Auth. 684 F.3d 286, 300–01 (2d Cir. 2011); N.J. Media
Gp. v. Ashcroft, 308 F.3d 198, 208–09 (3d Cir. 2002); Detroit Free Press v. Ashcroft, 303 F.3d 681, 700 (6th Cir.
2002); see generally Christopher B. McNeil, The Public’s Right of Access to “Some Kind of Hearing”: Creating
Policies That Protect the Right to Observe Agency Hearings, 68 LA. L. REV. 1121 (2008); Comm. on Comm. and
Media Law of the Ass’n of the Bar of the City of N.Y., “If It Walks, Talks, and Squawks . . . .” The First Amendment
Right of Access to Administrative Adjudications: A Position Paper, 23 CARDOZO ARTS & ENT. L. 21 (2005).
116
5 U.S.C. § 552b. The Sunshine Act makes some exception for certain adjudicatory actions. Id. § 552b(c)(10);
see Philadelphia Newspapers v. NRC, 727 F.2d 1195, 1200 (D.C. Cir.); Shurberg Broadcasting of Hartford v. FCC,
617 F. Supp. 825, 828–30 (D.D.C. 1985).
117
ASIMOW, supra note 4, at 77–78; see, e.g., 8 C.F.R. § 1003.27 (immigration courts).
112

22

of remote hearing technologies to conduct such proceedings complies with applicable openhearing requirements.
CONCLUSION
If there are any clear lessons regarding the law of remote hearings in agency adjudication,
it is that the law is rarely clear. With scarce exceptions, there are relatively few bright-line rules.
As agencies weigh the benefits and costs of developing and implementing remote-hearing policies
and practices, they should carefully consider relevant statutory directives and the application of
the Mathews balancing test given factors including the public and private interests at stake in
agency proceedings, the nature of the facts in issue and testimony adduced at typical evidentiary
hearings, the quality of their remote-hearing infrastructure and any technical problems that arise,
and any personal attributes that may impact individuals’ ability to participate remotely.

23


MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:

Ad Hoc Committee on Regulation of Representatives in Agency Proceedings
Jeremy Graboyes, Principal Deputy Research Director
November 5, 2021
Statutory Authority of Federal Agencies to Admit to Practice and Regulate the
Conduct of Representatives in Agency Proceedings

This memorandum addresses federal administrative agencies’ statutory authority to admit
individuals to represent persons in proceedings before them and to regulate representatives’
conduct. Part I addresses relevant statutes that apply to agencies broadly, most notably the
Agency Practice Act and the Administrative Procedure Act. Part II addresses statutes that govern
the admission or regulation of representatives by particular agencies. By way of illustration, it
describes statutory provisions applicable to 14 agencies and agency subcomponents.
As an initial matter, it is important to note that courts have consistently found that the
authority to regulate the conduct of representatives is inherent in agencies’ general rulemaking
authority or their power to protect the integrity of their processes, regardless of whether
Congress has explicitly authorized them to do so by statute.1
I.

Generally Applicable Statutes

At least three generally applicable statutes—the Agency Practice Act, the Administrative
Procedure Act, and the Alternative Dispute Resolution Act—govern how federal agencies can
regulate representatives who practice before them. Another generally applicable statute, the
Ethics in Government Act,2 governs who can practice before agencies but does not assign
responsibility for the Act’s implementation and enforcement to individual agencies.
A.

Agency Practice Act

The Agency Practice Act provides generally that “[a]n individual who is a member in
good standing of the bar of the highest court of a State may represent a person before an agency
on filing with the agency a written declaration that he is currently qualified as provided by this
subsection and is authorized to represent the particular person in whose behalf he acts.”3 As
1

See e.g., Checkovsky v. SEC, 23 F.3d 452, 456 (D.C. Cir. 1994); Davy v. SEC, 792 F.2d 1418, 1421 (9th Cir.
1986) (“[A]gencies have been given the power to police the conduct of those who practice before them.”);
Polydoroff v. ICC, 773 F.2d 372, 374 (D.C. Cir. 1985) (“There can be little doubt that the Commission, like any
other institution in which lawyers or other professionals participate, has authority to police the behavior of
practitioners before it.”); Touche Ross & Co. v. SEC, 609 F.2d 570, 580–82 (2d Cir. 1979) (“These concerns [about
the integrity of agency processes] have led courts to reject challenges to the authority of other agencies to discipline
attorneys practicing or appearing before them.”); Koden v. U.S. DOJ, 564 F.2d 228, 233 (7th Cir. 1977) (“It is
elementary that any court or administrative agency which has the power to admit attorneys to practice has the
authority to disbar or discipline attorneys for unprofessional conduct.”); see also Goldsmith v. Bd. of Tax Appeals,
270 U.S. 117, 122 (1926) (rejecting arguments that the absence of explicit statutory authorization to regulate
attorney conduct indicated that Congress did not intend the Board of Tax Appeals to exercise such power).
2
18 U.S.C. § 203 et seq.
3
5 U.S.C. § 500(b).

noted below, the Act also entitles certified public accountants to represent persons before the
Internal Revenue Service.4
By its own terms, the Agency Practice Act does not grant or deny others the right to
represent persons in agency proceedings or authorize former agency employees to represent
persons before the agencies where they previously worked “when the representation is prohibited
by statute or regulation.”5 Moreover, the Act does not “authorize or limit the discipline,
including disbarment” of representatives.6 As noted above, courts have consistently found such
authority inherent in agencies’ general rulemaking authority and power to protect the integrity of
their processes.7
B.

Administrative Procedure Act

Several provisions of the Administrative Procedure Act relate to representation. The Act
makes clear that parties and persons compelled to appear before agencies are entitled to be
represented by an attorney or, “if permitted by the agency, by other qualified representative.”8
The Act does not itself “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.”9
Less explicitly, the Act’s formal-hearing provisions specify that, “[s]ubject to published
rules of the agency and within its powers,” presiding officials may, among other things, “regulate
the course of the hearing” and “take other action authorized by agency rule consistent with this
subchapter.”10 The Act grants each agency “authority necessary to comply with the requirements
of this subchapter through the issuance of rules or otherwise.”11
C.

Alternative Dispute Resolution Act

The Alternative Dispute Resolution Act of 1990 directed each agency, in developing a
policy on the use of alternative dispute resolution (ADR), to “develop a policy with regard to the
representation by persons other than attorneys of parties in alternative dispute resolution
proceedings.”12 The Act specified that non-attorneys may represent persons in proceedings that
agencies determine do “not necessitate representation or assistance by an attorney” (e.g., are not
“so complex or specialized that only attorneys may adequately provide such representation or
assistance”), so long as they meet “any requirement of the agency to provide representation or
assistance in such a claim or dispute.”13

4

Id. § 500(c)
Id. § 500(d).
6
Id.
7
See supra note 1.
8
5 U.S.C. § 555(b).
9
Id.
10
5 U.S.C. § 556(c)(5), (11).
11
5 U.S.C. § 559.
12
5 U.S.C. § 571 note.
13
Id.
5

Regulation of Representatives in Agency Proceedings

2

Agencies that permit representation by non-attorneys must “ensure that any rules
pertaining to disqualification of attorneys from practicing before the agency shall also apply, as
appropriate, to other persons who provide representative or assistance.”14 Such agencies must
also “establish effective agency procedures for enforcing such rules of practice and for receiving
complaints from affected persons.”15
II.

Agency- and Program-Specific Statutes

Congress has, in some cases, specifically authorized or directed individual agencies to
regulate representatives for purposes of one or more of programs they administer. The following
sections describe provisions governing 13 agencies and agency subcomponents. These sections
are intended to be illustrative and may not exhaustively catalog all such provisions.
A.

Bureau of Justice Assistance (Justice Department)

Congress authorized the Bureau to issue “regulations governing the recognition of agents
or other persons representing claimants” before it.16
B.

Executive Office for Immigration Review (Justice Department)

By statute, each immigration judge has “authority (under regulations prescribed by the
Attorney General) to sanction by civil money penalty any action (or inaction) in contempt of the
judge’s proper exercise of authority under this chapter.”17 The statute also directs the Attorney
General to define, by regulation, “frivolous behavior for which attorneys may be sanctioned” and
to “impose appropriate sanctions (which may include suspension and disbarment) in the case of
frivolous behavior.”18 The statute clarifies that this section should not be “construed as limiting
the authority of the Attorney General to take actions with respect to appropriate behavior.”19
C.

International Trade Commission

The Commission is directed to provide by regulation for such sanctions as it deems
appropriate, “including disbarment from practice before the agency,” for violating the terms of a
protective order.20
D.

Interior Department

Congress authorized the Secretary to “prescribe rules and regulations governing the
recognition of agents, attorneys, or other persons representing claimants” before the
Department.21 Under the statute, the Secretary may require that would-be representatives first
14

Id.
Id.
16
34 U.S.C. § 10285(a).
17
8 U.S.C. § 1229a(b)(1).
18
Id. § 1229a(b)(6).
19
Id.
20
19 U.S.C. § 1677f(c)(1)(B).
21
43 U.S.C. § 1464.
15

Regulation of Representatives in Agency Proceedings

3

“show that they are of good moral character and in good repute, possessed of the necessary
qualifications to enable them to render such claimants valuable service, and otherwise competent
to advise and assist such claimants in the presentation of their claims.”22
The statute authorizes the Secretary to, after notice and opportunity for a hearing,
“suspend or exclude from further practice before his department any such person, agency, or
attorney shown to be incompetent, disreputable, or who refuses to comply with the said rules and
regulations, or who shall with intent to defraud in any manner, deceive, mislead, or threaten any
claimant, or prospective claimant, by word, circular, letter, or by advertisement.”23
E.

Labor Department

Statutory provisions governing the longshore and harbor workers’ compensation program
direct the Secretary to prepare and disseminate a list of individuals who are not authorized to
represent claimants under the program.24 The Secretary must list any individuals determined,
after notice and opportunity for a hearing, to have (1) been convicted of a crime in connection
with representation of a claimant under any workers’ compensation statute; (2) engaged in fraud
in connection with the presentation of a claim under any workers’ compensation statute; (3) been
prohibited from representing claimants before any other workers’ compensation agency for
reasons of professional misconduct similar to those listed in the statute; which are similar in
nature to those which would be grounds for disqualification under this paragraph; or (4) accepted
unapproved or excessive fees for claimants.25 Determinations must “remain in effect for a period
of not less than three years and until the Secretary finds and gives notice to the public that there
is reasonable assurance that the basis for the determination will not occur.”26
F.

Patent and Trademark Office (Commerce Department)

The Agency Practice Act, by its terms, does not apply to practice before the Patent and
Trademark Office with respect to patent matters.27 Instead, a separate statute authorizes the
Office to establish regulations governing the “recognition and conduct of agents, attorneys, or
other persons representing applicants or other parties before the Office.” The Office may require
would-be representatives “to show that they are of good moral character and reputation and are
possessed of the necessary qualifications to render to applicants or other persons valuable
service, advice, and assistance in the presentation or prosecution of their applications or other
business before the Office.”28
The Director may suspend or exclude from further practice, either generally or in any
particular case, any representative who, after notice and opportunity for a hearing, is shown “to
be incompetent or disreputable, or guilty of gross misconduct, or who does not comply with the
regulations [governing recognition and conduct of representatives], or who shall by word,
22

Id.
Id.
24
33 U.S.C. § 931(2)(A).
25
Id. § 931(2)(B).
26
Id. § 931(2)(D).
27
5 U.S.C. § 500(e).
28
35 U.S.C. § 2(b)(2)(D).
23

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circular, letter, or advertising, with intent to defraud in any manner, deceive, mislead, or threaten
any applicant or prospective applicant, or other person having immediate or prospective business
before the Office.”29
G.

Plant Variety Protection Office (Agriculture Department)

Congress directed the Secretary of Agriculture to “prescribe regulations governing the
admission to practice and conduct of persons representing applicants or other parties before the
Plant Variety Protection Office.”30 The Secretary may, after notice and opportunity for a hearing,
“suspend or exclude, either generally or in any particular case, from further practice before the
[Office] any person shown to be incompetent or disreputable or guilty of gross misconduct.”31
H.

Securities and Exchange Commission

The Sarbanes-Oxley Act directed the Commission to “issue rules, in the public interest
and for the protection of investors, setting forth minimum standards of professional conduct for
attorneys appearing and practicing before the Commission in any way in the representation of
issues.”32 Congress specified that such rules should require attorneys “to report evidence of a
material violation of securities law or breach of fiduciary duty or similar violation by the
company or any agent thereof.”33
A separate statutory provision authorizes the Commission to “censure any person, or
deny, temporarily or permanently, to any person the privilege of appearing or practicing before
the Commission in any way, if that person is found by the Commission, after notice and
opportunity for hearing in the matter (1) not to possess the requisite qualifications to represent
others; (2) to be lacking in character or integrity, or to have engaged in unethical or improper
professional conduct [as defined in the statute]; or (3) to have willfully violated, or willfully
aided and abetted the violation of, any provision of the securities laws or the rules and
regulations issued thereunder.”34
I.

Social Security Administration and Health and Human Services Department

Under the Social Security Act, any “attorney in good standing who is admitted to practice
before the highest court of the State, Territory, District, or insular possession of his residence or
before the Supreme Court of the United States or the inferior Federal courts, shall be entitled to
represent claimants before the Commissioner of Social Security.”35
Congress authorized the Commissioner to prescribe rules and regulations governing the
recognition of non-attorney representatives other than attorneys representing claimants before the
29

35 U.S.C. § 31.
7 U.S.C. § 2356.
31
Id.
32
15 U.S.C. § 7245.
33
Id.
34
Id. § 78d-3(a).
35
42 U.S.C. § 406(a)(1); see also 42 U.S.C. § 1383(d)(2)(A) (applying section 406 to supplemental security income
claims).
30

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agency.36 The Commissioner may require would-be representatives to “show that they are of
good character and in good repute, possessed of the necessary qualifications to enable them to
render such claimants valuable service, and otherwise competent to advise and assist such
claimants in the presentation of their cases.”37
The Commission may, after notice and opportunity for a hearing, refuse to recognize or
disqualify as a representative any “attorney who has been disbarred or suspended from any court
or bar to which he or she was previously admitted to practice or who has been disqualified from
participating in or appearing before any Federal program or agency.”38 The Commissioner may
also refuse to recognize or disqualify as a non-attorney representative “any attorney who has
been disbarred or suspended from any court or bar to which he or she was previously admitted to
practice.”39
More generally, the Commissioner may, after notice and opportunity for a hearing,
“suspend or prohibit from further practice before the Commissioner any such person, agent, or
attorney who refuses to comply with the Commissioner’s rules and regulations or who violates
any provision of this section for which a penalty is prescribed.”40 Any representative disqualified
or suspended for collecting or receiving an excessive fee is barred from appearing before the
agency as a representative until full restitution is made and the Commissioner decides to reinstate
the person as a representative under agency rules.41
These same statutory provisions govern the Secretary of Health and Human Services with
respect to certain aspects of the Medicaid program.42
J.

Surface Transportation Board

The Board may, subject to the Agency Practice Act, “regulate the admission of
individuals to practice before it” and “impose a reasonable admission fee.”43
K.

Treasury Department

The Secretary may, subject to the Agency Practice Act, “regulate the practice of
representatives of persons before the Department of the Treasury.”44 Aside from attorneys, the
Agency Practice Act specifies that any “individual who is duly qualified to practice as a certified
public accountant in a State may represent a person before the Internal Revenue Service . . . .”45

36

42 U.S.C. § 406(a)(1).
Id.
38
Id.
39
Id.
40
Id.
41
Id.
42
42 U.S.C. § 1395ff(b)(1)(B)(iv).
43
49 U.S.C. § 1303(c).
44
31 U.S.C. § 330(a).
45
5 U.S.C. § 500(c).
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The Secretary may require that would-be representatives show that they are of “good
character” and “good reputation” and that they have “necessary qualifications to enable the
representative to provide to persons valuable service” and “competency to advise and assist
persons in presenting their cases.”46
Congress authorized the Secretary to, after notice and opportunity for a proceeding,
“suspend or disbar from practice before the Department, or censure, a representative who (1) is
incompetent; (2) is disreputable; (3) violates regulations prescribed under this section; or (4) with
intent to defraud, willfully and knowingly misleads or threatens the persons being represented or
a prospective person to be represented.”47 The Secretary also has authority to impose monetary
penalties on any such representatives.48
L.

Veterans Affairs Department

Congress authorized the Secretary to “recognize any individual as an agent or attorney
for the preparation, presentation, and prosecution of claims under laws administered by the
Secretary,”49 except that the Secretary may not recognize representatives who have “been
suspended or disbarred by any court, bar, or Federal or State agency to which the individual was
previously admitted to practice has not been subsequently reinstated.”50
Congress directed the Secretary to “prescribe in regulations (consistent with the Model
Rules of Professional Conduct of the American Bar Association) qualifications and standards of
conduct for individuals recognized under this section, including a requirement that, as a
condition of being so recognized, an individual must (A) show that such individual is of good
moral character and in good repute, is qualified to render claimants valuable service, and is
otherwise competent to assist claimants in presenting claims; (B) have such level of experience
or specialized training as the Secretary shall specify; and (C) certify to the Secretary that the
individual has satisfied any qualifications and standards prescribed by the Secretary under this
section.”51 The Secretary must provide in such rules that recognized representatives must
annually report whether they remain in good standing in every jurisdiction to which they are
admitted to practice or authorized to appear.52
The Secretary may, after notice and opportunity for a hearing, suspend or exclude
representatives “from further practice before the Department” for any of nine reasons, i.e., upon
a showing that the representative “(1) has engaged in any unlawful, unprofessional, or dishonest
practice; (2) has been guilty of disreputable conduct; (3) is incompetent; (4) has violated or
refused to comply with any of the laws administered by the Secretary, or with any of the
regulations or instructions governing practice before the Department; (5) has in any manner
deceived, misled, or threatened any actual or prospective claimant; (6) has presented to the
Secretary a frivolous claim, issue, or argument, involving conduct inconsistent with ethical
46

31 U.S.C. § 330(a).
Id. § 330(c).
48
Id.
49
38 U.S.C. § 5904(a)(1).
50
Id. § 5904(a)(4).
51
Id. § 5904(a)(2).
52
Id. § 5904(a)(3).
47

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standards for the practice of law; (7) has been suspended or disbarred by any court or bar to
which such agent or attorney was previously admitted to practice, or has been disqualified from
participating in or appearing before any Federal agency, and has not been subsequently
reinstated; (8) has charged excessive or unreasonable fees, as determined by the Secretary in
accordance with subsection (c)(3)(A); or (9) has failed to comply with any other condition
specified in regulations prescribed by the Secretary for purposes of this subsection.”53
Suspension or exclusion from practice for an excessive fee “shall continue until the agent
or attorney makes full restitution to each claimant from whom the agent or attorney collected or
received an excessive fee. If the agent or attorney makes such restitution, the Secretary may
reinstate such agent or attorney under such rules as the Secretary may prescribe.”54

53
54

Id. § 5904(b).
Id. § 5904(c)(3)(C).

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