Administrative Conference of the United States

EVIDENTIARY HEARINGS OUTSIDE THE
ADMINISTRATIVE PROCEDURE ACT

Final Report: November 10, 2016

Michael Asimow
Stanford Law School

This report was prepared for the consideration of the Administrative Conference of the United
States. The opinions, views, and recommendations expressed are those of the author and do not
necessarily reflect those of the members of the Conference or its committees, except where
formal recommendations of the Conference are cited.

EVIDENTIARY HEARINGS OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT
By Michael Asimow1

Table of Contents
INTRODUCTION .......................................................................................................................... 1
I. DEFINITIONS, DATABASE, AND SCOPE OF REPORT ...................................................... 2
A. TYPE A, B, AND C ADJUDICATION ................................................................................ 2
B. DATABASE........................................................................................................................... 2
C. FORMAL AND INFORMAL ADJUDICATION ................................................................. 3
D. DEFINITIONS ....................................................................................................................... 3
E. SCOPE OF THE REPORT ................................................................................................... 4
F. PRIOR RESEARCH ............................................................................................................... 5
II. THE LEGAL STRUCTURE OF TYPES A, B, AND C ADJUDICATION ............................. 7
A.THE BORDER BETWEEN TYPE A AND TYPE B ADJUDICATION .............................. 7
B. THE BORDER BETWEEN TYPE B AND TYPE C ADJUDICATION .......................... 10
III. THE WORLD OF TYPE B ADJUDICATION ...................................................................... 14
TABLE 1: WORKLOAD OF TYPE B ADJUDICATING AGENCIES ................................. 15
TABLE 2: NUMBER OF AJS AND CASELOAD PER AJ .................................................... 16
IV. BEST PRACTICES IN TYPE B ADJUDICATION.............................................................. 17
A. BEST PRACTICES AND CAUTION ................................................................................. 17
B. BEST PRACTICES FOR TYPE B ADJUDICATION........................................................ 19
1. Integrity of the decisionmaking process .......................................................................... 20
2. Pre-hearing practices ......................................................................................................... 24
3. Hearing practices .............................................................................................................. 28

Visiting Professor of Law, Stanford Law School; Professor of Law Emeritus, UCLA School of Law. The author’s
email address is asimow@law.stanford.edu and he welcomes all comments or suggestions about this report. The
author gratefully acknowledges the guidance and encouragement offered by the staff of ACUS, particularly former
Chair Paul Verkuil and Amber Williams. In addition, he is extremely grateful for tremendous efforts of the ACUS
staff (both permanent members, legal fellows, and interns) in building the federal adjudication database which is
discussed in the text. Detailed input on this report from Russell Wheeler and Jeff Lubbers is also very much
appreciated. In many cases, academics, practitioners, and agency personnel commented on my drafts and assisted
me in formulating the memos. In the Appendices, I acknowledge this assistance. Of course, the government
employees who assisted me spoke only for themselves and not for the agencies they work for.
1

i

4. Post-hearing practices ...................................................................................................... 32
TABLE 3: TYPE B AGENCIES AND BEST PRACTICE PROPOSALS .............................. 35
APPENDICES .............................................................................................................................. 36
APP. A-1: DEPARTMENT OF AGRICULTURE ....................................................................... 36
A. TYPE A USDA SCHEMES ................................................................................................ 36
B. TYPE B USDA SCHEMES—PACA .................................................................................. 37
APP. A-2: CIVILIAN BOARD OF CONTRACT APPEALS ..................................................... 40
APP. A-3: DEPARTMENT OF ENERGY ................................................................................... 43
A. General information ............................................................................................................. 43
B. Detailed treatment of personnel and whistleblowing cases ................................................. 44
1. Generic hearing regulations .............................................................................................. 45
2. Personnel security cases .................................................................................................... 45
3. Whistleblower complaints ................................................................................................ 47
4. FOIA & Privacy Act requests ........................................................................................... 49
5. Exceptions ......................................................................................................................... 50
6. Medical certificates ........................................................................................................... 50
7. Worker safety provisions .................................................................................................. 51
APP. A-4: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ................................... 52
APP. A-5: ENVIRONMENTAL PROTECTION AGENCY ....................................................... 56
A. Minor civil penalties............................................................................................................. 57
B. Initial decisions to grant, deny, or terminate permits ........................................................... 58
C. Appeal to the EAB ............................................................................................................... 59
APP. A-6: EXECUTIVE OFFICE FOR IMMIGRATION REVIEW.......................................... 62
A. Immigration Court................................................................................................................ 62
B. Board of Immigration Appeals ............................................................................................. 66
APP. A-7: MERIT SYSTEMS PROTECTION BOARD............................................................. 69
APP. A-8: UNITED STATES PATENT AND TRADEMARK OFFICE ................................... 73
A. Patent Trial and Appeal Board (PTAB) ............................................................................... 73
1. Appeals (ex parte cases).................................................................................................... 74
2. Trials (inter partes cases) .................................................................................................. 75
3. Statistical information ....................................................................................................... 76
B. Trademark Trial and Appeal Board (TTAB) ...................................................................... 77
1. Appeals (ex parte cases).................................................................................................... 78
2. Trials (inter partes cases) .................................................................................................. 79

ii

3. Statistical information ....................................................................................................... 80
APP. A-9: PROVIDER REIMBURSEMENT REVIEW BOARD .............................................. 81
APP. A-10: BOARD OF VETERANS’ APPEALS ..................................................................... 84
A. VA claims adjudication—introduction ................................................................................ 84
B. The VA claims process is inquisitorial and paternalistic ..................................................... 85
C. The VA claims process—VARO level ................................................................................ 86
D. The Board of Veterans Appeals ........................................................................................... 86
E. Representation in the VA claims process ............................................................................ 87

iii

INTRODUCTION
This study concerns federal administrative adjudication that consists of individualized
decisionmaking through legally required evidentiary hearings that is not regulated by the
adjudication provisions of the Administrative Procedure Act (APA). I refer to this as Type B
adjudication. Type A adjudication is regulated by the APA, whereas Type C adjudication does
not utilize legally required evidentiary hearings to make adjudicatory decisions. This study
proposes best practices that agencies engaged in Type B adjudication could adopt in procedural
regulations.
This study proceeds as follows: Part I contains definitions and discusses the scope of the
study and the Administrative Conference of the United States (ACUS) federal adjudication
database. Part II discusses the problem of differentiating Types A, B, and C adjudication. Part
III furnishes statistical data about the world of Type B adjudication. Part IV proposes an ACUS
recommendation for best practices in Type B adjudication. The Appendix consists of ten “deep
dive” memoranda that represent a fair sample of Type B adjudicating schemes.
The agencies and schemes (with abbreviations used throughout this study) are:
o Department of Agriculture--Perishable Agricultural Commodities Act
(Appendix A-1) (USDA, PACA)
o General Services Administration--Civilian Board of Contract Appeals
o (Appendix A-2) (GSA, CBCA)
o Department of Energy--Personnel Security and Whistleblowing
o (Appendix A-3) (DOE)
o Equal Employment Opportunity Commission (Appendix A-4) (EEOC)
o Environmental Protection Agency--Environmental Appeals Board
o (Appendix A-5) (EPA, EAB)
o Department of Justice--Executive Office for Immigration Review
o (Appendix A-6) (DOJ, EOIR)
o Merit Systems Protection Board
o (Appendix A-7) (MSPB)
o Department of Commerce--US Patent and Trademark Office (Patent Trial &
Appeal Board; Trademark Trial & Appeal Board)
o (Appendix A-8) (DOC, USPTO, PTAB, TTAB)
o Department of Health & Human Services--Provider Reimbursement Review
Board
o (Appendix A-9) (HHS, PRRB)
o Department of Veterans Affairs--Board of Veterans’ Appeals Appendix A-10)
(DVA, BVA)

1

I. DEFINITIONS, DATABASE, AND SCOPE OF REPORT
A. TYPE A, B, AND C ADJUDICATION
This report concerns evidentiary hearings by federal administrative agencies that are not
governed by the adjudication sections of the Administrative Procedure Act (APA). It proposes a
set of best practices for adjudication outside the APA.
For purposes of this report, the term “Type A adjudication” refers to adjudicatory systems
governed by the adjudication sections of the APA.2 With a few exceptions, Type A hearings are
presided over by administrative law judges (ALJs). 3
The term “Type B adjudication” refers to systems of adjudication administered by federal
agencies through evidentiary hearings required by statute, regulation, or executive orders, that
are not governed by the adjudication provisions of the APA.4 The evidentiary hearings in Type
B adjudication are presided over the agency head or by administrative judges (AJs), although
AJs are known by many other titles. Because Type A adjudication is relatively uniform and wellstudied, this report focuses on Type B adjudication which is vastly more diverse and less well
studied.
The term “Type C adjudication” means adjudication by federal administrative agencies
that does not occur through legally required evidentiary hearings. This report does not cover the
vast array of Type C adjudicatory schemes.
B. DATABASE
This study began with the construction of a database that was jointly funded by the
Administrative Conference of the United States (ACUS) and Stanford Law School. The database
contains information about all of the schemes of Type A and Type B federal agency adjudication
(with the exceptions of military and foreign affairs adjudication, which were omitted because of
resource constraints).

2

5 U.S.C. §§ 554, 556, 557. The APA is referred to herein without the prefatory 5 U.S.C.
APA § 556(b)(3).
4
This description is imprecise, since some sections of the APA do apply to evidentiary hearings outside the APA.
See APA §§ 555 (providing minimal protections for all adjudication), 558 (providing protections in licensing), and
701-706 (providing judicial review rules for all agency action). However, APA §§554, 556, and 557, which provide
the elaborate procedural protections for APA adjudication, are not applicable to Type B adjudication.
3

2

ACUS staff did enormous amounts of work gathering, inputting, and verifying5
information in the database, which I gratefully acknowledge here.6 The database information was
my starting point in doing this report. The database is now open to the public and can be
accessed at https://acus.law.stanford.edu. The deep dive memoranda (located in the appendices
to this report) contain the database identifying numbers that enable the reader to quickly access
the relevant portions of the database.
C. FORMAL AND INFORMAL ADJUDICATION
This report does not refer to Type B adjudication as “informal.” The word “informal” is
commonly used in practice and in scholarship to cover both Types B and C adjudication, but it
creates a false picture of Type B adjudication. The hearings in many schemes of Type B
adjudication often contain most of the same formal elements and protections for private parties
as Type A adjudication.7 Indeed, in some cases, Type B adjudication is even more formal than
the familiar trial-type adjudication procedure prescribed by the APA. In contrast, some Type A
adjudication (such as the inquisitorial Social Security disability program) is less formal than
many Type B schemes. However, some Type B adjudication is relatively informal. The term
“informal adjudication” should be reserved for Type C adjudication in which decisions are not
required to be based on evidentiary hearings.
Type B adjudication should be recognized as a distinct category, different from both
Types A and C. Because Type B adjudication is characterized by legally required evidentiary
hearings, it is feasible to prescribe a set of best practices for such hearings. In contrast, Type C
adjudication, which is vastly more numerous than Type B, lacks any unifying procedural
element, which makes prescription of best practices infeasible. Although the term “informal
adjudication” is often used to cover both Type B and Type C adjudication, it blurs the important
distinction between them. As a result, the term “informal adjudication” is used in this report
only to describe Type C adjudication.
D. DEFINITIONS
For purposes of this report, the term “adjudication” (or “administrative adjudication”)
means:

5

The database was constructed from publicly available information; ACUS attempted to obtain verification from
agency officials of the information in the database but was not always successful in obtaining it. The database
indicates what information has been verified.
6
I also express my gratitude to Stanford Law School Dean Elizabeth Magill for helping to fund the database and to
professional database builders Irina Zachs and Alex Shor for their tremendous technical efforts in organizing it.
7
See United States v. Mead Corp. 533 U.S. 218, 230 (2001). The Mead decision states: It is fair to assume
generally that Congress contemplates administrative action with the effect of law when it provides for a relatively
formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement
of such force. Thus, the overwhelming number of our cases applying Chevron deference have reviewed the fruits of
notice-and-comment rulemaking or formal adjudication.” In context, it is clear that the term “formal adjudication”
includes adjudicatory proceedings both inside and outside the APA.

3





a decision by federal officials made through an administrative process
to resolve a claim or dispute between a private party and the government or
between two private parties
arising out of a federal program.

In Type A and Type B adjudications, the decision follows a legally required oral or written
evidentiary hearing. In the case of Type C adjudication, however, no evidentiary hearing is
legally required, and usually no such hearing occurs.
The definition of adjudication excludes adjudication by state or local officials even in
cases where the adjudication arises under a federal program and is governed by federal
regulations. It also excludes decisions by non-governmental federal contractors. As stated
above, because of resource constraints, the report does not include adjudication relating to
military or foreign affairs functions.
The term “decision” means an agency action of specific applicability, as distinguished
from action of general applicability such as rulemaking.
The term “evidentiary hearing” means a proceeding at which the parties make evidentiary
submissions, have an opportunity to rebut testimony and arguments made by the opposition, and
to which the exclusive record principle applies. The exclusive record principle means that the
decisionmaker is confined to considering inputs from the parties (as well as matters officially
noticed) when determining factual issues. As discussed in Part II, the word “evidentiary
hearing” excludes a variety of agency adjudicatory proceedings that might be described as
hearings but that lack the attributes of a determination at which the parties have an opportunity to
make evidentiary submissions and to which the exclusive record principle applies. The definition
of “evidentiary hearing” is discussed further in Part II below.
E. SCOPE OF THE REPORT
As most readers of this report are aware, the world of Type B adjudication is vast and
formless. How to study and map it presents a methodological puzzle. My approach has been to
write (and include as appendices) ten deep dive memoranda giving a detailed analysis of many of
the most important schemes of Type B adjudication. These memos include several of the most
important Type B adjudicatory schemes (measured by caseload volume and by importance of the
stakes being adjudicated). The adjudicatory schemes described in these memoranda are
representative of the tremendous diversity of the Type B world. The ultimate objective of this
report is to formulate recommendations for best practices for Type B adjudication that should be
embodied in agency procedural regulations.

4

F. PRIOR RESEARCH
The epic 1992 ACUS study, “The Federal Administrative Judiciary,”8 described and
analyzed both Type A and Type B adjudication and did extensive research into the status of the
AJs who conduct Type B adjudication. The 1992 ACUS report questioned the statutory
allocation of adjudicatory schemes between Type A and Type B.9
Former ACUS Chair Paul Verkuil10 analyzed a number of schemes involving Type B
and type C adjudication. 11 Verkuil assessed the degree to which these schemes complied with
the due process elements sketched by Goldberg v. Kelly, the leading procedural due process
case at that time.12 He discussed the appropriateness of various forms of procedural protection
in the context of the particular adjudicatory scheme.
Two earlier studies by John Frye and Ray Limon sought to map the world of Type B
adjudication. These studies gathered statistical data on the caseload of the various Type B
schemes and the judges who decided them. The studies take snapshots of Type B adjudication
in 1992 and again in 2002.13
The American Bar Association’s (ABA’s) Section of Administrative Law and
Regulatory Practice published a guide to APA adjudication.14 The Section also sponsored a
resolution adopted by the ABA’s House of Delegates that urged Congress to amend the APA to
extend some (but not all) of the APA’s Type A adjudication provisions to Type B
adjudication.15 I published an article supporting this resolution.16
Several works attempted to identify best practices for Type C adjudication 17 or
considered the criteria for the study of decisionmaking in Type C adjudicatory schemes. 18

8

Paul R. Verkuil, Daniel J. Gifford, Charles H. Koch, Jr., Richard J. Pierce, Jr., & Jeffrey S. Lubbers, The Federal
Administrative Judiciary, 1992 ACUS 779 (hereinafter “1992 ACUS Study”).
9
Id. at 843-873.
10
Former Chair Verkuil was then president of the American Automobile Association and former Dean of Tulane
University Law School, former President of the College of William and Mary, and former Dean of Cardozo School
of Law.
11
Paul R. Verkuil, A Study of Informal Adjudication Procedure, 43 U. CHI. L. REV. 739 (1976) (hereinafter
“Verkuil”).
12
397 U.S. 254 (1970).
13
John H. Frye, III, Survey of Non-ALJ Hearing Programs in the Federal Government, 44 ADMIN. L. REV. 261
(1992) (hereinafter “Frye”); Ray Limon, The Federal Administrative Judiciary Then and Now: A Decade of Change
1992-2002 (Office of Personnel Management, Office of Administrative Law Judges) (hereinafter “Limon”).
14
Jeffrey B. Litwak, ed., A GUIDE TO FEDERAL AGENCY ADJUDICATION (2d ed. 2012) (hereinafter “ABA Guide”).
15
Resolution 114, Feb. 2005.
16
Michael Asimow, The Spreading Umbrella: Extending the APA’s Adjudication Provisions to All Evidentiary
Hearings Required by Statute, 56 ADMIN. L. REV. 1003 (2004).
17
Warner W. Gardner, The Procedures by Which Informal Action is Taken, 24 ADMIN. L. REV. 155 (1972).
18
William J. Lockhart, The Origin and Use of “Guidelines” for the Study of Informal Action in Federal Agencies,
24 ADMIN. L. REV. 167 (1972).

5

Another paper produced a comparative analysis of high-volume adjudicatory systems (both
Types A and B).19

19

Daniel L. Skoler, The Many Faces of High-Volume Administrative Adjudication: Structure, Organization, and
Management, 15 J. OF NAT. ASS’N OF ADMIN. LAW JUDGES 43 (1996).

6

II. THE LEGAL STRUCTURE OF TYPES A, B, AND C ADJUDICATION
This section discusses the problem of distinguishing Type B adjudication from Types A
and C adjudication. As mentioned above, Type A is adjudication governed by the APA. In type
B adjudication the decision follows a legally required evidentiary hearing, but the APA
adjudication provisions do not apply. In Type C adjudication, no evidentiary hearing is legally
required.
A.THE BORDER BETWEEN TYPE A AND TYPE B ADJUDICATION
The “gateway provision” of the APA defines the type of adjudication that it regulates—
what this report calls Type A adjudication.20 According to the gateway, the APA adjudication
provisions cover “every case of adjudication required by statute to be determined on the record
after opportunity for an agency hearing.”21 In many cases, statutes that establish administrative
adjudicatory schemes are not explicit about whether the APA applies to them. The prevailing
view is that the APA applies only if the statute says it applies or the statute explicitly calls for a
hearing “on the record.” However, this “magic words” approach is defective. The
decisionmaker at most evidentiary hearings maintains a “record” of the proceedings in the sense
that what is said is written down or recorded; and the normal assumption is that this record is
“exclusive.” This means that the adjudicator is limited to that “record” (including material that is
the subject of official notice) in deciding factual issues in the case. Thus the term “on the
record” fails to distinguish Type A and Type B hearings.
Consequently, there is a gray area in application of statutes that call for evidentiary
hearings but do not explicitly resolve the issue of whether the APA applies. One approach states
that the issue of interpreting such statutes should be resolved through Chevron methodology. A
statute calling for a “hearing” is “ambiguous,” so that a reviewing court must defer to the
agency’s reasonable interpretation that the APA does not apply.22 As numerous authors have
pointed out,23 this approach is questionable. Chevron presumes a congressional decision to
delegate interpretive authority to an agency whenever Congress passes an ambiguous statute; it
seems unlikely that Congress would have intended agencies to make the final call on whether a
fundamental and quasi-constitutional trans-substantive statute like the APA should apply to their
adjudicatory activity.

As has often been pointed out, the APA’s definitions of “adjudication” and “rulemaking” are flawed and do not
reflect actual practice. See Ronald M. Levin, The Case for (Finally) Fixing the APA’s Definition of “Rule,” 56
ADMIN. L. REV. 1077 (2004). I ignore them here also, defining adjudication as agency action of individualized
impact. See Part I.D. for a more detailed definition of adjudication.
21
APA § 554(a). This section contains 6 exceptions.
22
Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006); Chemical Waste Mgmt., Inc. v.
EPA, 873 F.2d 1477 (D.C. Cir. 1989).
23
See e.g. Cooley Howarth, Restoring the Applicability of the APA’s Adjudicatory Procedures, 56 ADMIN. L. REV.
1043 (2004)
20

7

Another approach to the question is that courts assume that Congress wanted the APA to
apply to adjudicatory hearings involving serious issues of public policy. However, the leading
authority to that effect has been overruled.24
Still another approach assumes that Congress does not want the APA to apply unless it
explicitly says that it does or explicitly uses the magic words “on the record.”25
Finally, a fourth approach to the problem has recently emerged. Under this approach, the
APA applies to statutes that call for evidentiary hearings that appear to assume record exclusivity
but do not use the magic words “hearing on the record.” These cases all involve the question of
whether the Equal Access to Justice Act (EAJA)26 applies to decisions by the National Appeals
Division (NAD) of the Department of Agriculture (USDA). The Supreme Court has made it
clear that EAJA is applicable only to hearings governed by the APA adjudicatory provisions.27
NAD handles disputes arising under USDA’s numerous statutory provisions relating to
agricultural grants, loans, or insurance. The statute calls for evidentiary hearings that are
conducted by AJs appointed by the Secretary of Agriculture but does not use the magic words
“on the record.” Several decisions hold that the APA applies to NAD hearings because the
statutory provisions contain most of the elements of Type A adjudication and therefore that NAD
AJs are limited to the record in deciding factual issues.28 After losing in three circuits, USDA
conceded the issue and now applies the APA and EAJA to NAD hearings.29
Still another unresolved issue concerning APA applicability arises when an evidentiary
hearing is required by due process but not by a statute. In the famous Wong Yang Sung
decision,30 the Supreme Court ruled that the APA applies to a hearing required by due process
unless Congress specifically says that it does not. The Wong Yang Sung decision has been
studiously ignored in later cases, because of the development of due process balancing under
Mathews v. Eldridge.31 Under Mathews, the degree of procedural protections in a hearing
required by due process depends on the specific context. The more formal provisions of the rigid

24

Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978), overruled by Dominion Energy, note 22.
Arguably, Marathon Oil Co. v. EPA, 564 F.2d 1253 (9th Cir. 1977), stands for the same proposition as Seacoast,
and it has not been overruled.
25
City of West Chicago v. NRC, 701 F.2d 632 (7th Cir. 1983).
26
EAJA requires agencies to pay private party attorney fees (up to a rather low limit) when the government’s
position was not “substantially justified.” 5 U.S.C. §504, 28 U.S.C. § 2412(d).
27
Ardestani v. INS, 502 U.S. 129 (1991). There are some statutory exceptions allowing EAJA fees in a few type B
adjudications.
28
Lane v. USDA, 120 F.3d 106, 108-110 (8th Cir. 1997); Aageson Grain & Cattle v. USDA, 500 F.3d 1038, 104346 (9th Cir. 2007); Five Points Rd. Joint Venture v. Johanns, 542 F.3d 1121, 1125-29 (7th Cir. 2008).
29
7 C.F.R. §11.4(a). These decisions do not require that ALJs preside in NAD hearings because the statute
explicitly allows USDA to employ its own presiding officers. The APA requires that ALJs preside in Type A
hearings, but it permits statutes to designate other types of presiding officers. APA § 556(b).
30
Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).
31
424 U.S. 319 (1976).

8

APA adjudicatory procedures (including the requirement that ALJs preside) might be
inappropriate in many cases of hearings required by due process.
There is a pressing need for Congress or the Supreme Court to resolve the question of
whether the APA applies to gray area cases. This report takes no position on the issue of how to
distinguish Type A and Type B adjudication. If the agency conducts legally required evidentiary
hearings but does not presently apply the APA, this report assumes that its evidentiary hearings
are Type B proceedings.
The question of whether Congress should transfer Type B adjudicatory schemes to Type
A is beyond the scope of this study.32 The 1992 ACUS study recommended that some existing
schemes of Type B adjudication that involve serious sanctions (such as deportation) be converted
to Type A, because the use of ALJs instead of AJs would enhance the acceptability of the
process.33 However, Congress took no action in response to this recommendation. The ABA
recommended that future statutes calling for a “hearing” should be governed by the APA unless
Congress explicitly provides to the contrary.34 Again, this study does not take a position on that
issue. Nor does this study consider whether an agency conducting Type B adjudication should
adopt regulations that convert its hearings into Type A rather than Type B. Such a decision
(which would involve among other things turning AJs into self-created ALJs) would involve
complex legal and practical issues that I have not considered.35

32

See Kent Barnett, Against Administrative Judges, 49 UC DAVIS L. REV. 1643 (2016) (urging conversion of AJs to
ALJs). But see Gary J. Edles, An APA-Default Presumption for Administrative Hearings: Some Thoughts on
“Ossifying” the Adjudication Process, 55 ADMIN. L. REV. 787 (2003) (opposing conversion of Type B hearings to
Type A but favoring the adoption of procedural standards for Type B).
33
1992 ACUS Study, supra note 8, at 779, 1046-1050. See also Admin. Conf. of the U.S., Recommendation 92-7,
The Federal Administrative Judiciary, 57 Fed. Reg. 61,760 (Dec. 29, 1992), available at
https://www.acus.gov/recommendation/federal-administrative-judiciary.
34
ABA Rec. 113 (June, 2000). For criticism of this recommendation, see Edles, note 32.
35
An ACUS study relating to the EEOC gave detailed consideration to whether EEOC could place its federal
discrimination adjudicatory scheme under the APA, including the conversion of its AJs to become ALJs, without
first securing implementing legislation. The study indicates that the EEOC probably has power to place itself under
the APA. However, the Office of Personnel Management, which recruits and hires ALJs, would likely refuse to
cooperate, particularly with respect to the conversion of AJs to ALJs. ACUS, Equal Employment Opportunity
Commission: Evaluating the Status and Placement of Adjudicators in the Federal Sector Hearing Program 27-32
(2014). The budgetary cost to the EEOC of such a conversion would be quite substantial (several million dollars per
year, depending on various assumptions). Id. at 42-48.

9

B. THE BORDER BETWEEN TYPE B AND TYPE C ADJUDICATION
A Type B adjudicatory proceeding arises when a source of law (a statute, regulation,36 or
executive order37) requires an adjudicatory decision made after an evidentiary hearing.38 In
contrast, a Type C proceeding is one in which an evidentiary hearing is not legally required even
though the agency is empowered to render a legally binding adjudicatory decision. The definition
of “evidentiary hearing” thus becomes critical, but it is not an easy term to define and the
definition is not always easy to apply.
The term evidentiary hearing means one in which both parties have the opportunity to
offer testimony and rebut the testimony and arguments made by the opposition and to which the
exclusive record principle applies. This means that the decisionmaker receives written or oral
submissions of information from the parties and the decisionmaker is confined to those inputs (as
well as matters officially noticed) when making its decision.39
The term “evidentiary hearing” does not require orality; in some Type B hearings, the
decisionmaker considers only written documents (with or without an oral argument). Nor does it
require that a particular case involve a dispute about adjudicative or legislative facts. Quite a
few cases turn on questions of legal interpretation or the exercise of discretion.
The term evidentiary hearing does not include:


a “public hearing” at which the members of the public are invited to make
statements (for example in response to an application for development) but such
statements do not furnish the exclusive record for decision;40

36

The Appendices present several examples of evidentiary hearings required by procedural regulations but not by a
statute. See DOE Whistleblowers (App. A-3), EEOC (App. A-4); EPA EAB (App. A-5), MSPB (App. A-7).
37
DOE Personnel Security hearings are required by an executive order. (See App. A-3)
38
Evidentiary hearings may also be required by due process. However, this report does not include constitutionally
required evidentiary hearings in its definition of Type B adjudication. The elements of a due process hearing are
determined based on context, and often would not include all of the best practices discussed in this report. See
Mathews v. Eldridge, 424 U.S. 319 (1976). The Mathews balance may well call for a procedure that does not rise to
the level of an evidentiary hearing based on an exclusive record, which is the criterion for identifying Type B
adjudication. See discussion of Goss v. Lopez, text at note 41, infra.
39
For further discussion of the exclusive record principle, text starting at note 64, infra.
40
For example, before issuing a permit for discharge of material into navigable waters, the Army Corps of
Engineers must give public notice and conduct a public hearing. 33 U.S.C. § 1344(a). Similarly, the term
“evidentiary hearing” does not include hearings held by EPA when it finds a significant degree of public interest in a
draft permit. See EPA (App.-A5).

10






a legally required conference between a private party and the decisionmaker that
is not intended to be the exclusive source of the information considered by the
decisionmaker;41
a “front-line” decision by agency staff that constitutes the initial agency decision
about whether to deny a benefit or issue a complaint or impose a regulatory
sanction, when that or an initial decision is followed by an evidentiary hearing
before an agency or before a court.
a “review” that does not include an opportunity for submission of new evidence.42

In the end, a certain degree of judgment is called for in deciding whether a legallyrequired adjudicatory procedure is an evidentiary hearing. Examples of borderline situations:


Collection due process (CDP) Hearings. The IRS is required by statute to provide
a hearing to taxpayers at the time it imposes a tax lien or initiates a tax collection
action. The hearing is provided by an IRS Appeals Officer (AO) who has no
previous involvement in the dispute. A statute limits ex parte communications
from other IRS officials to the AO to the extent such communications “appear to
compromise the independence” of the AO.”43 CDP hearings are informal and
inquisitorial; they often consist of one or more phone calls. There is no provision
for cross-examination of adverse witnesses and no subpoena power. The hearing
requirement seems to entail a conference, little different from the normal function
of AOs in settling disputes about the amount of tax due. The AO’s decision is
reviewed by a team manager who makes the final IRS decision. The regulations at
least suggest that the decision in a CDP case is not limited to information that the
AO receives at the CDP hearing.44 I originally included IRS CDP hearings as
Type B adjudication, but have now decided that they are not “evidentiary
hearings.” Instead, they should be treated as Type C adjudication.



Affordable Care Act (ACA) Hearings. Under the ACA, the regulations provide
for a “review of adverse benefit determinations by health insurers or group health

41

An example is the conference required by due process when a school administrator suspends a student for
disciplinary reasons for ten days or less. The administrator is not limited to considering information provided at the
conference. Goss v. Lopez, 419 U.S. 565 (1975).
42
Most agencies provide for reconsideration of their initial adjudicatory decisions. See Best Practice
Recommendation t., text following note 125. The reconsideration is primarily a review of the record made at the
initial decision phase, not a de novo consideration of the case. The reconsideration function is not treated as a
separate Type B proceeding.
43
Internal Revenue Service Restructuring and Reform Act of 1998, § 1001(a)(4), 112 Stat. at 689. This section was
not codified in the Internal Revenue Code.
44
The IRS’ determination in a CDP case can be appealed to the Tax Court. The record before the Tax Court
includes “any other documents or materials relied on by the Appeals officer … in making the determination…”
Treas. Reg. § 301.6320-1, A F-4.

11

plans.45 There is first an internal review at the insurer or group plan level. Then
there is an external review at the state level. If there is no state external review
procedure that meets the requirements of the regulation, a federal review
procedure is provided for. I have not included the federal review procedure as
Type B adjudication. First, it is supplied by a private “independent review
organization” (IRO) rather than by federal officials. Second, the IRO is permitted
to consider non-record evidence such as the report of its own clinical reviewer as
well as practice guidelines developed by the federal government or by
professional medical societies as well as clinical review criteria used by the
plan.46


Supplemental Nutrition Assistance Program (SNAP) adjudication. Food and
Nutrition Service (FNS) of the Department of Agriculture (USDA) operates a
series of federal-state programs that supply food to the poor, including SNAP
(formerly known as food stamps). FNS adjudicates cases involving local vendors
authorized to sell food to SNAP recipients. Vendors can be disqualified from the
program for various offenses. The statute does not call for hearings but authorizes
USDA to adopt regulations providing for administrative review.47 The vendor
may file a written request to submit information in support of its position to a
reviewer (who considers the submitted information along with other available
information and makes a final determination. The sanctions are subject to de
novo judicial review. The reviewers are Administrative Review Officers in the
Administrative Review Branch of FNS. The review proceedings are entirely in
writing. I believe USDA’s SNAP adjudicatory scheme is Type C adjudication
because the exclusive record requirement does not appear to apply to the review
procedure.48

Fortunately, this study is not intended to lead to recommendations for congressional
action, because in a statute the muddiness of the borderline between Type B and Type C
adjudication would be problematic. Instead, the study is intended to lead to recommendations
for a set of best practices for Type B adjudication. As a result, agencies would be encouraged to
make common sense determinations as to whether their legally-required procedures are Type B

45 C.F.R. § 147.136, implementing 42 U.S.C. §300gg-19 (calling for “effective external review” at the federal
level if no effective state external review program exists).
46
42 C.F.R. §147.136(d)(5). A different appeals process, relating to rejection of applicants to health insurance
companies regulated by state exchanges, provides for evidentiary hearings by a state appeal entity with a backup
provision for an HHS appeal entity. 42 C.F.R. 155.500 et seq. This backup provision might well call for Type B
adjudication.
47
7 U.S.C. § 2023(a); 7 C.F.R. § 279.1 et seq.
48
7 C.F.R. § 279.5(a). In FY 2013, there were 1239 reviews requests relating to SNAP. SNAP hearings involving
claims by recipients are processed at the state level in accordance with USDA regulations which mandate great
solicitude for self-represented parties. 7 C.F.R. § 273.15.
45

12

rather than Type C. If Type C agencies decide to adopt some of the recommended best practices,
so much the better.
The study does not recommend that agencies convert their Type C adjudication to Type B
by adopting regulations that would require evidentiary hearings. This might well be a good idea,
but the study does not attempt to evaluate the circumstances in which it should occur.49

49

See Verkuil, supra note 11, at 779-92 for tentative recommendations relating to Type C adjudication.

13

III. THE WORLD OF TYPE B ADJUDICATION
This section of the report supplies statistical data about the world of Type B adjudication.
Table 1 concerns the workload of Type B agencies (as contrasted with their workload in 1992
and 2002, where that information is available). The final column supplies data on pending cases
but this information is incomplete.
For those schemes for which we have current data and also comparable 1992 or 2002
data, the table shows a significant increase in workload. For example, EOIR’s caseload
increased from 152,372 (1992) and 254,000 (2002) to about 335,000, if Immigration Court (IC)
and Board of Immigration Appeals (BIA) cases are combined. BVA cases increased from
31,000 (2002) to 47,000. DOE security clearance cases doubled from 65 to 121. EEOC federal
employee cases rose from 6,227 (1992) to 8,086. Thus the workload of Type B adjudicating
agencies is growing steadily.
In the following chart, a blank cell means information is not available because the current
Type B scheme did not exist in comparable form during 1992 or 2002. A question mark means
that I am still seeking the information.

14

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

USDA PACA

Caseload Frey
Study (1992)50

Caseload
Limon Study
(2002)51

255

CBCA
DOE Security
Clearance

65

DOE
Whistleblowers
EEOC

6,227

See note52

EPA-EAB

Caseload
(Current)

Pending cases

?

?

529

558

121

?

31

?

8,086

10,363

about 60

EOIR

152,372

IC 254,070

IC 284667
BIA 29,313

IC 457,106;
BIA 16945

MSPB

7,124

7,174

6,340 AJ; 952
Board53

4586

USPTO-PTAB

5,782 APJ

5,319 APJ

10,000 appeals
2,000 trials

25,000 appeals;
700 trials

USPTO-TTAB

3,503

754

405 appeals
127 trials

119 appeals; 36
trials

VA BVA

42,000

31,557

56,000

67,000

3,907

7,124

PRRB

50

See Frey, supra note 13.
See Limon, supra note 13.
52
Limon gives a figure of 21,734 for the EEOC workload. The figure does not seem comparable to current data.
Limon may be counting non-government employees whose cases are investigated and mediated by the EEOC.
53
MSPB had a temporary spike in its caseload during 2014. The figures given are for FY 2013.
51

15

Table 2 compares the number of AJs in the programs studied with the number of AJs in
1992 and 2002. It also makes a rough estimate of the current annual caseload per AJ (caseload
divided by the number of AJs). Table 2 shows a steady increase in the number of AJs from 1992
to 2002 to the present (although complete data are not yet available and some of the 1992 and
2002 statistics are not comparable to the present).
TABLE 2: NUMBER OF AJS AND CASELOAD PER AJ
Agency/Scheme

USDA PACA

# AJs
Frey Study
(1992)

# AJs
Limon Study
(2002)

86

EEOC

79

EPA EAB

Caseload per
AJ per Year
(Current)

?

?

16

99 (panels of 3)

19

12 OHA

21 OHA

See note54

110

65

4

4

45 (panels of 3)

CBCA
DOE (Security+
Whistleblowers)

# AJs
(Current)

EOIR

76

228

294 IJs; 17 BIA

MSPB

66

62

60

>1,800 IJs;
1,750 BIA
105

USPTO PTAB
APJs

58

6255

225

53

USPTO TTAB
ATJs

9

15

23

23

VA BVA

44

56

76 (incl. temps)

737

PRRB

0

54

See note56

Figures not comparable.
Limon figures are not comparable to current operations because PTAB’s jurisdiction has greatly increased.
56
PRRB has no AJs and decides all cases by the full five-member board. According to PRRM’s website, the PRRM
issues about 25 substantive decisions and hundreds of jurisdictional decisions per year. See App. A-9
55

16

IV. BEST PRACTICES IN TYPE B ADJUDICATION
A. BEST PRACTICES AND CAUTION
This section of the report summarizes proposals for best practices that should be spelled
out in the procedural regulations of agencies engaged in Type B adjudication. These practices
might be most useful when Congress creates a new scheme of Type B adjudication and the
agency responsible for implementing it must adopt procedural regulations. The best practices
should also be useful when existing agencies decide to re-examine and update their procedural
regulations.
A majority of the agencies I studied have already adopted most of the proposed best
practices in their procedural regulations, manuals, or adjudicatory decisions. It is worth pausing
here to make an obvious point—Type B agencies are not required to adopt any particular
procedures by statute, beyond whatever the vague word “hearing” would entail. Although due
process is usually applicable to Type B adjudicatory decisionmaking, the demands of due
process are modest. The procedural regulations of the agencies I studied provide protections far
in excess of what due process would require. Agencies want their procedures to provide the
optimum balance between accuracy, efficiency, and acceptability, and they provide far more
procedural protection than is legally required.57
Table 3 indicates whether a particular agency has adopted a procedural regulation setting
forth some version of the best practice in its regulations, manuals, or case law. Of course, it is
possible that a best practice is observed in practice by an agency, but has not been codified in
published sources of law.
The project of compiling “best practices” begs the question of how one should determine
that a particular practice is “best.” Necessarily this is a judgmental decision, not one easily
reducible to precise and measurable elements. A traditional method of analyzing whether a
particular procedure should be required is to balance the factors of accuracy, efficiency, and
acceptability to private parties.58 “Accuracy” refers to correct determination of the facts, law, or
agency policy; efficiency refers to minimizing cost and delay; and acceptability to private parties
is a surrogate for the “fairness” of the procedure. Of course, these factors often run in different
directions and a rather subjective balancing process is required. While I have not spelled out this
calculus for each of the best practices proposed in this report, I have attempted to balance these
factors in deciding whether to include a particular practice. In particular, I believe these

57

See Adrian Vermeule, Deference and Due Process, 129 HARV. L. REV. 1890, 1024-26 (2016) (rebutting the
notion that agencies offer as little procedure as possible); Elizabeth Magill, Agency Self-Regulation, 77 GEO. WASH.
L. REV. 859 (2009) (agencies often limit their options by adopting procedures or guidelines in excess of what is
legally required).
58
See Verkuil, note11 at 740; Roger Cramton, A Comment on Trial-Type Hearings in Nuclear Power Plant Siting,
58 VA. L. REV. 585 (1972).

17

proposals are efficient, in that they should not be costly to implement nor cause confusion or
delay, and they will increase the acceptability of the agency’s adjudication practices, while
improving (or at least not causing a decline in) the accuracy of decisions. Indeed, as Table 3
shows, most agencies already have adopted most of these practices.59
Many of the best practices are drawn from the adjudicatory provisions contained in the
APA. After all, like Type A adjudication, Type B adjudication involves legally required
evidentiary hearings. While the decisionmaker in Type B adjudication is an AJ, rather than an
ALJ, my judgment is that procedures in Type B adjudication should resemble those in Type A
adjudication unless there is a good reason for the contrary conclusion.60 The adjudicatory
procedures for evidentiary hearings that have developed over generations, before and after
enactment of the APA, should be generally applicable, whether or not the evidentiary hearing in
question falls under Type A or B.
Here I suggest an obvious caution: the world of Type B adjudication is wildly diverse.
The types of matters considered are all over the map—alien removal, civil penalties, government
contracts, hospital Medicare claims, veterans’ benefits, intellectual property disputes,
employment disputes with the federal government, agriculture, and environmental permitting,
just to mention those covered by the deep dive memos in the Appendix. Some of these involve
disputes between the federal government and a private party; others involve disputes between
two private parties. Some of the Type B agencies have the classic combined function structure—
they investigate, decide whether to pay benefits, prosecute, and adjudicate. Others are
adjudicatory tribunals, meaning that they adjudicate disputes between government agencies but
have no function other than adjudication.
Type B evidentiary hearings vary enormously. Some are trial-type hearings that are at
least as formal and private-party protective as those called for by the APA (except that the
presiding officer is not an ALJ). Others are quite informal and some are purely in writing. Some
programs are in the mass justice category with heavy caseloads and rushed proceedings. Others
have much lower caseloads and call for leisurely and thorough consideration. Some have huge
backlogs and long delays; others seem relatively current. Some proceedings are highly
adversarial; others are inquisitorial. The structures for internal appeal also vary. Thus the

59

Professor Robbins criticizes the use of best practice methodology in legal education. Ira P. Robbins, Best
Practices on “Best Practices”: Legal Education and Beyond, 16 CLINICAL L. REV. 269 (2009). Robbins criticizes
best practice proposals for legal education since there is no commonly shared goal for legal education, no objective
standards for measuring what is “best,” a lack of supportive research, and no methodology for putting such
proposals into practice. I believe the present proposal for best practices in Type B adjudication is defensible because
there is a commonly shared goal and a relatively objective standard for measuring whether any given proposal is
“best” in achieving that goal (that is, the three-factor balance discussed in the text). Hopefully, the proposals are
supported by adequate research and the proposals can be implemented through amendment of procedural
regulations.
60
ABA resolution 114, discussed in text at note 15, called on Congress to apply many of the adjudication provisions
of the APA to Type B adjudication required by statute--except for the requirement that ALJs preside. See Asimow,
supra note 16. The best practices discussed here often follow that approach but they also recommend a number of
practices that are not specified in the APA.

18

heterogeneity of Type B adjudication makes it challenging to prescribe a set of best practices that
would fit all of it.
I do not suggest that every best practice in the list that follows should be applicable to
every Type B scheme or that every regulatory provision implementing a best practice should take
the same form. The presumption is rebuttable. If a persuasive case can be made that a particular
practice is inappropriate for a particular scheme, then the agency should not be encouraged to
adopt it. For example, there is no need for a provision for internal separation of adversarial from
adjudicatory functions when the agency engages only in adjudicatory functions and has no staff
members engaged in investigation or prosecution. Whether a particular procedural device should
be employed (and the precise form in which it is provided) always requires a careful balance of
the conflicting variables involved in choosing optimal procedures--accuracy, efficiency, and
acceptability to the parties.
In 1993, an ACUS consultant and the Model Adjudication Rules Working Group
proposed a set of model rules intended for both Type A and Type B adjudication.61 These rules
were presented to the ACUS Assembly and published in the Federal Register. The approach
taken by these model rules makes sense for Type A adjudication, but I do not believe this
approach is appropriate for the highly diverse world of Type B adjudication. I have not sought to
draft precise language to be incorporated into procedural regulations implementing the best
practices itemized below, given the diversity of the adjudicatory schemes to which they would
apply. Still, drafters of procedural regulations implementing these best practice
recommendations should consult the 1993 Model Rules and may wish to borrow the language of
those proposals.
Clearly these best practices cannot be applied to the even more wildly diverse world of
Type C adjudication—individualized decisionmaking where no evidentiary hearing is legally
required. This is true informal adjudication. Attempts to provide a procedural template for this
vast universe of informal adjudication have failed to gain much traction.62 Yet, the drafters of
procedural regulations for Type C adjudication should consider whether some of these practices
might work and improve the procedural protections for the parties without costing the agency too
much in terms of additional staff, delays, unnecessary formality, or inflexibility.
B. BEST PRACTICES FOR TYPE B ADJUDICATION
The list of best practices that follows is broken into five larger categories—integrity of
the decisionmaking process, prehearing practices, hearing practices, post hearing processes, and
procedural regulations. I frequently give examples found in the statutes, regulations, or manuals

61

Michael Cox, The Model Adjudication Rules (MARS), 11 T.M. COOLEY L. REV. 75 (1994). ACUS has initiated a
new Model Adjudication Working Group to revise and update the model rules. See https://www.acus.gov/researchprojects/office-chairman-model-adjudication-rules-working-group for more information.
62
See Gardner, supra note 17; Verkuil, supra note 11.

19

of the agencies described in the deep-dive memos. It would be tedious to list each of the
regulations that implement these best practices in particular Type B schemes, and I have not
sought to do so.63
1. Integrity of the decisionmaking process
a. Exclusivity of the record
Type B adjudication means that the decision resulting from a legally required evidentiary
hearing must be based on an exclusive record.64 Consequently, procedural regulations should
spell out this exclusive record requirement. The APA imposes the exclusive record requirement
for Type A adjudication.65
The exclusive record requirement means that a decisionmaker (either an AJ or
reconsidering authority) is limited to considering factual information presented in testimony or
documents received by the decisionmaker before, at, or after the hearing to which all parties had
access. The decision can also be based on matters officially noticed (the official notice procedure
entails a rebuttal opportunity). The exclusive record concept means, for example, that the
decisionmaker cannot receive ex parte submissions of factual information or rely on his or her
personal knowledge of the facts (without giving the parties a chance to rebut it), or base a
judgment on a personal inspection or test without allowing the parties a rebuttal opportunity.
Of course, the decisionmaker does not violate the exclusive record requirement by
making use of his or her experience and expertise in evaluating the information that was
introduced into evidence (or officially noticed) or in making predictions and forecasts based on
that information. Concededly there is sometimes a fine line between the personal knowledge of
the decisionmaker about facts in issue and the decisionmaker’s use of expertise to evaluate the
information submitted into evidence by the parties.
b. Outsider ex parte communications
Best practices include a provision prohibiting ex parte communication relevant to the
merits of the case between outsiders and adjudicatory decisionmakers.66 The provision should
also prohibit ex parte communication between outsiders and staff decisional advisers. For this
purpose, the term “outsiders” includes parties to the case, third parties with an interest in the
proceedings greater than that of the general public, or government officials outside the agency.

63

Obviously, this study could not determine whether the agency actually follows the procedures prescribed in its
regulations. Follow up-studies would be necessary to determine this.
64
See text at note 39, supra.
65
“The transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes
the exclusive record for decision in accordance with section 557 of this title…” APA §557(e). See ABA Guide, note
14 supra, ¶ 7.08.
66
APA § 557(d) prohibits outsider ex parte communication. See also ABA Guide, note 14 supra, ¶ 7.04.

20

Submissions by outsiders (whether concerning facts, law, discretion, or policy) to agency
decisionmakers or their staff decisional advisers should occur only on the record.67 If oral or
written ex parte communications occur, they should be immediately placed on the record.
Outsider ex parte communications offend basic notions of adjudicatory fairness. Such
communications are objectionable because they may influence the decisional process through
off-record communication of arguments that opposing parties have no opportunity to rebut.
Moreover, such communications of a factual nature can undermine the exclusive record concept.
For those reasons, most Type B agencies I studied spell out the ex parte concept68 but some do
not do so.69
c. Separation of functions
Separation of functions means that the agency must internally separate its adversary and
decisional personnel. For this purpose, an “adversary” is a staff member who took an active part
in investigating, prosecuting or advocating in the same case (but not in a different case).
The separation of functions principle precludes an adversary from serving as a
decisionmaker (either an AJ or member of the reconsidering authority). The principle also
precludes an adversary from furnishing ex parte advice to a decisionmaker or decisional adviser.
Best practices for Type B adjudication require adherence to the separation of functions
concept.70 It is a fundamental principle of adjudication that is fair and perceived to be fair. A
staff adversary often develops a mindset opposed to the private party to the case that is
inconsistent with the required impartiality of the decisionmaker; for that reason, adversaries
should not serve as decisionmakers, or furnish ex parte advice to decisionmakers, in the same
case in which they played adversarial roles.

67

Ex parte communications from staff members to decisionmakers present different considerations from outsider ex
parte communications and are discussed below under “separation of functions” and “staff advice.”
68
Thus the EAB as well as the EPA’s regional judicial officers are precluded from ex parte communication. “At no
time after the issuance of the complaint shall the Administrator, the members of the Environmental Appeals Board,
the Regional Administrator, the Presiding Officer or any other person who is likely to advise these officials on any
decision in the proceeding, discuss ex parte the merits of the proceeding with any interested person outside the
Agency…” 40 C.F.R. § 22.8.
69
For example, there are no provisions precluding ex parte communication relating to the BVA. In the case of
PTAB, ex parte communications are prohibited in trial cases but apparently not in appeals cases.
70
See APA § 554(d); ABA Guide, note 14 supra, ¶ 7.06. The APA separation of functions rule does not apply to
determining applications for initial licenses; to proceedings involving rates, facilities, or practices of public utilities
or carriers; or to the agency or a member or member of the body comprising the agency. APA §§ 554(d)(A), (B),
(C). These exceptions may not be needed in most Type B agencies and seem generally undesirable. In addition, the
APA contains a command influence rule. An ALJ shall not “be responsible to or subject to the supervision or
direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an
agency.” APA §554(d)(2). While a command influence provision is obviously desirable, it may not be feasible in
smaller agencies.

21

The recommendation concerning separation of functions applies to agencies that have
combined functions of prosecution, investigation, and adjudication. However, agencies that
function as adjudicatory tribunals (without prosecuting or investigating functions) need not adopt
such provisions.71 Many of the regulations of combined-function Type B adjudicating agencies I
studied contain separation of functions provisions,72 but others do not.73
d. Staff advice
Ex parte advice to decisionmakers by non-adversarial agency staff members is
customary and appropriate, so long as it does not violate the exclusive record principle by
introducing new factual material. In technically difficult or complex cases, such advice is
essential to making the best possible adjudicatory decisions, particularly at the level of the
reconsidering authority (such as agency heads). For example, in cases presenting complex expert
testimony on scientific or economic issues, decisionmakers may need help from staff experts in
understanding the testimony. Decisionmakers may need help in locating and evaluating the
agency’s prior precedents or in exercising discretion to make wise policy. Decisionmakers need
candid staff advice, but the advice is likely to be less than candid if it must be disclosed to the
parties and to the general public.
However, such advice may not be necessary or appropriate
in many situations, such as mass justice adjudications or adjudications turning largely on
credibility determinations.
Agencies should consider what types of non-adversarial ex parte staff advice is necessary
and appropriate in their adjudicatory decisionmaking. Procedural regulations should spell out
which non-adversarial staff members can give ex parte advice and which agency decisionmakers
can receive such advice. The regulations should clearly screen staff adversaries in a case from

71

For example, CCAB, EEOC, MSPB, PRRB, and PTAB and TTAB (in their trial function) serve as tribunals.
However, PTAB and TTAB also consider appeals by applicants for patent or trademark protection; in the appeal
function, they combine investigatory and adjudicatory roles and should implement separation of functions.
72
Several provisions of EPA’s regulations implement the separation of functions principle. “At no time after the
issuance of the complaint shall the Administrator, the members of the Environmental Appeals Board, the Regional
Administrator, the Presiding Officer or any other person who is likely to advise these officials on any decision in the
proceeding, discuss ex parte the merits of the proceeding with … any Agency staff member who performs a
prosecutorial or investigative function in such proceeding or a factually related proceeding, or with any
representative of such person.” 40 C.F.R. § 22.8. A member of the EAB shall not be employed in any office
associated with matters that could come before the EAB and shall recuse him or herself from deciding a particular
case if in previous employment the member was personally involved in the case. 40 C.F.R. 1.25(e)(3). In addition,
in EPA Class I civil penalty cases, “A Regional Judicial Officer [RJO] shall not have performed prosecutorial or
investigative functions in connection with any case in which he serves as an [RJO]. [An RJO] shall not knowingly
preside over a case involving any party concerning whom the [RJO] performed any functions of prosecution or
investigation within the 2 years preceding the commencement of the case. [An RJO] shall not prosecute enforcement
cases and shall not be supervised by any person who supervises the prosecution of enforcement cases, but may be
supervised by the Regional Counsel.” 40 C.F.R. § 22.4(b).
73
For example, there are no provisions for separation of functions in the regulations relating to USDA PACA
hearings or BVA cases.

22

giving ex parte advice in the same case and should prohibit advisers from introducing factual
material not in evidence into their advisory communications. In my study of procedural
regulations of agencies conducting Type B adjudications, I found few examples of provisions
that elucidate the advisory function.
e. Bias
A Type B decisionmaker (either the AJ or the reconsidering authority) should not be
biased for or against any party. An impartial decisionmaker is an essential element of an
evidentiary hearing. Impartiality is required both by the APA74 and by due process.75
For this purpose, the term “bias” includes three different types of disqualifying
mindsets:76 i) a financial or other personal interest in the decision; ii) personal animus against
the private party or the group to which that party belongs, or against an agency or its attorney;
(iii) prejudgment of the adjudicative facts at issue in the proceeding (meaning facts specific to
the parties). Procedural regulations and manuals should spell out this standard and explain how
and when parties should raise bias claims. Some Part B procedural regulations and manuals do
not contain explicit provisions concerning bias or explain how and when bias claims should be
raised.77
Some agencies have dealt with the issue of bias by providing parties the option of making
one peremptory challenge against an AJ (meaning that they could disqualify a particular AJ
without establishing that the AJ fails to meet the criteria for impartiality). However, a
peremptory challenge procedure could be difficult and costly for agencies to implement
(especially a mass justice agency), and I do not propose it as a best practice.

See APA ¶ 556(b): “The functions of presiding employees and of employees participating in decisions in
accordance with section 557 of this title shall be conducted in an impartial manner. A presiding or participating
employee may at any time disqualify himself. On the filing in good faith of a timely and sufficient affidavit of
personal bias or other disqualification of a presiding or participating employee, the agency shall determine the
matter as a part of the record and decision in the case.”
75
Goldberg v. Kelly, 397 U.S. 254, 271 (1970).
76
See ABA Guide, supra note 14, ¶ 7.02 for discussion and illustration of the different types of mindsets that should
and should not disqualify an adjudicatory decisionmaker.
77
For example, I found no provisions concerning bias in the procedural regulations or manuals for USPTO or VA.
The regulations relating to PACA contain a disqualification provision that covers only financial or family
relationship, but not other types of bias. Similarly, the EAB regulations refer only to financial interest or personal
relationships. MSPB regulations provide that an AJ can be disqualified for “personal bias,” and a manual defines
this to include “A party, witness or representative is a friend or relative of, or has had a close professional
relationship with the AJ; or personal bias or prejudice of the AJ.” 8 C.F.R. § 47.11(a), (b).
74

23

2. Pre-hearing practices
f. Notice
Basic fairness to litigants requires that they receive proper notice of the issues in the case.
The notice must be sufficient to allow parties to prepare for hearings (or for settlement
negotiations).78 In his study of optimum informal adjudication procedures, Verkuil identified
proper notice as one of the essential and irreducible elements of administrative procedure (along
with the ability to make written or oral comments and to receive a statement of reasons).79
Thus the procedural regulations for Type B adjudication should contain a provision
calling for notice that is tailored to the specific circumstances of the particular adjudicatory
scheme. The agency’s notice documents should furnish information about the agency’s position
as to issues of fact, law, and discretion. This information should be specific enough to enable the
party to prepare for the legally required evidentiary hearing.
The notice should contain a copy of the agency’s procedural regulations and procedural
manuals or a citation to the internet address where such materials are located.
The notice should explain how a party can request a hearing and furnish information
about discovery options. It should contain information about representation at the hearing,
including self-representation and lay representation if that is permitted and about any legal
assistance options offered by the agency. The notice should include information about the
procedural choices open to the private party or parties (such as the choice between written and
oral hearings and ADR opportunities) and the deadlines for filing pleadings and documents. It
should contain information about subpoenaing documents and witnesses. The notice should also
contain information about whether the agency offers an opportunity for reconsideration of the
initial decision at a higher agency level and about judicial review. Each of the administrative
schemes I studied included notice provisions but they are too disparate to justify summarizing
them here.
g. Self-representation and lay representation
In many cases, private parties involved in agency adjudication cannot afford lawyers or
others and must represent themselves.80 Self-represented parties are often at a great

78

The APA requires that persons entitled to notice shall be timely informed of the time, place and nature of the
hearing; the legal authority and jurisdiction under which the hearing is to be held; and the matters of fact and law
asserted. APA §554(b). See ABA Guide, supra note 14, ¶ 4.02.
79
Verkuil, note 11 supra, at 748-49.
80
Depending on how proceedings are classified, between 37% and 55% of respondents appearing before the
Immigration Court in removal proceedings are represented by counsel. [See App. A-6, note 192] Although most
Social Security disability applicants are represented by lawyers, about 20% are self-represented. Additional
numbers of applicants have representation for only a portion of the disability hearing process. Connie Vogelmann,

24

disadvantage. Best practices include provisions that are designed to assist self-represented
parties. For example, the regulations might require AJs to assist self-represented parties, provide
them with plain language forms, assist them in locating pro bono providers, or provide for staff
members whose job it is to assist self-represented parties prepare for and participate in hearings.
ACUS is currently studying this problem and may propose best practices.81 Most of the
procedural regulations studied for this report make no explicit provision for assisting selfrepresented parties.82
Best practices should enable private litigants to be represented by non-lawyers in agency
proceedings.83 For parties who cannot afford lawyers, having the assistance of a knowledgeable
lay representative is better than nothing. Agencies should be permitted to license lay
representatives (including requirements of an examination and experience), require them to be
insured, permit them to charge fees, and make them subject to ethical conduct codes. Obviously,
lay representation may be inappropriate in cases in which the subject matter of the dispute is
highly technical and requires specialized knowledge.84
The procedural regulations of many agencies permit representation by authorized agents
who are not lawyers, as well as by law students in supervised clinical programs.85 The VA is
notable for its heavy reliance on representation by employees of veterans’ service organizations
at both the Veterans Affairs Regional Office (VARO) and BVA levels.86

Administrative Conference Study: Self-Represented Parties in Administrative Hearings, 41-3 ADMIN. & REGUL. L.
NEWS 28 (Spring 2016)
81
See https://www.acus.gov/research-projects/self-represented-parties-administrative-hearings.
82
The Ethics and Professionalism Guide for Immigration Judges (Part V.) states that IJs “should encourage and
facilitate pro bono representation” and Operating Policies and Procedures Memorandum 8-01 2008) provides
specific instructions on how this should be done. The MSPB Judges Handbook requires special efforts to assist pro
se appellants such as an early status conference to explain what is required. Filings by pro se appellants should not
be rejected on technical grounds and they should be allowed great latitude in questioning witnesses. The statutes
and regulations concerning VA benefit claims at the VARO level are very solicitous of self-represented parties,
requiring the VA to develop any issues raised in the documents or testimony even if not flagged by the veteran.
83
The APA authorizes (but does not require) adjudicating agencies (not limited to agencies conducting Type A
adjudication) to permit parties to be represented by a “qualified representative” (other than a lawyer). APA §555(b).
See generally Deborah L. Rhode, What We Know and Need to Know about the Delivery of Legal Services by
Nonlawyers, 67 SO. CARO. L. REV. 429 (2016) (urging courts to permit lay representation and facilitate selfrepresentation).
84
TTAB permits representation only by lawyers. PTAB but not TTAB allows representation by registered nonlawyer patent agents. See App. A-8. CBCA permits self-representation but not lay representation.
85
Thus EOIR allows representation by law students, law graduates not yet admitted to the Bar, reputable individuals
with a pre-existing relationship to the person represented, accredited representatives, and accredited officials of a
foreign government. However, it does not allow representation by non-lawyer immigration specialists, visa
consultants, and notaries.
86
See App. A-10. The statute prohibits compensation of attorneys at the VARO level but permits it at the BVA
level.

25

h. Alternative Dispute Resolution
The Administrative Dispute Resolution Act (ADRA) applies to both Type A and B
adjudication. ADRA broadly validates and encourages adjudicating agencies to use all available
ADR tools, including mediation and arbitration.87 ACUS has consistently sought to promote
ADR by federal agencies.88 Properly used, ADR techniques can make the adjudicatory process
less adversarial and can facilitate settlements, thus avoiding contentious and costly hearings.
Thus best practices of Type B adjudication agencies encourage and facilitate ADR,
particularly mediation in its various forms. The regulations should provide a system whereby
neutral mediators can be selected by agreement of the parties. The regulations should assure
confidentiality of communications occurring during the mediation process and they should spell
out who pays for mediation services provided outside the agency.
EEOC,89 MSPB, CBCA, PRRB90 and USDA-PACA have well developed provisions for
mediation. Note that each of these schemes with well-developed ADR practice is a tribunal in
which the adjudicating agency is not a party to the dispute; mediation may be more acceptable to
the parties in tribunal situations. In addition, DOE makes provision for mediation in its security
clearance and whistleblower cases, though DOE is not a tribunal.
i. Pretrial conferences
Pretrial conferences are a common feature of modern litigation because they can shorten
and simplify the hearing and promote settlement discussions. Pretrial conferences should play a
role in administrative litigation as well. Thus best practices should include the ability of an AJ to
require the parties to participate in a pretrial conference (in person or by telephone or
videoconference), if the AJ believes that such a conference would simplify the hearing or
promote settlement.91 Parties should be required to exchange witness lists and expert reports
before the pretrial conference. The AJ should be allowed to require that both sides be represented

87

5 U.S.C. §§ 571 to 583.
See ACUS Rec. 2014-1 and 95-1, relating to ADR and FOIA; 95-7, relating to ADR and the Americans with
Disability Act.
89
EEOC emphasizes ADR at all stages of its adjudicatory process relating to discrimination against federal
employees. Complaining employees must first consult an EEO counselor within the employing agency. The
counselors offer mediation as an option. ADR continues to be available during the time the employing agency
considers the complaint. When the dispute comes before EEOC, the employing agency can make an offer of
resolution and if the ultimate result is less favorable than the offer, the complainant can be denied attorney fees. See
Appendix A-4.
90
PRRB decides complex accounting disputes arising out of hospital and other provider claims against Medicare. It
has no AJs and its hearings are before the full five-member board. It has a well-developed mediation practice and
90-95% of all cases are settled. See Appendix A-10.
91
See APA § 556(c)(6).
88

26

at the pretrial conference by persons with authority to agree to a settlement. Many agencies I
studied include provisions for pretrial conferences in procedural regulations.92
j. Electronic document filing
Best practices should include provisions allowing parties to file documents with the
agency and the AJ electronically, as is now broadly permitted in the court system. Electronic
filing has significant efficiency benefits for both the agency and outside parties. Most agencies
now permit or require electronic document filing. MSPB and EAB have detailed regulations
governing electronic filing that could serve as models.93
k. Discovery
Pre-trial discovery is commonplace in the world of court litigation and it should be
considered in administrative litigation as well. The regulations should explain what unprivileged
information in the agency’s case files is subject to disclosure obligations or to inspection by
outside parties. In addition, AJs should be empowered to order discovery through depositions,
interrogatories, and the other methods of discovery used in civil trials, upon a showing that
discovery is needed (such as cases involving conflicting expert reports or in which a witness will
not be available to testify at the hearing).94 Requiring AJ permission for discovery should avoid
the problem of costly excess discovery (including unnecessary depositions or detailed
interrogatories) that plagues the court system.95 Discovery provisions are probably not
appropriate in mass adjudication situations because of caseload pressures on AJs, but may have a
useful role in Type B adjudication that involves larger disputes and lengthier hearings.
PTAB and TTAB conduct their trial proceedings (that is, disputes between patentees and
challengers) entirely through discovery. Evidence, including witness statements, is received in
deposition form and the depositions are then introduced at the hearing. No additional testimony
is permitted at the hearings. This is an interesting model that may work for other agencies in
cases in which cases seldom involve credibility disputes.

In DOE security clearance cases,” At least 7 calendar days prior to the date scheduled for the hearing, the
Administrative Judge will convene a prehearing conference for the purpose of discussing stipulations and exhibits,
identifying witnesses, and disposing of other appropriate matters. The conference will usually be conducted by
telephone.” 10 C.F.R. § 710.25(f).
93
See 5 C.F.R. § 1201.14 (MSPB); 40 C.F.R. § 124.19(i) (EAB).
94
Both EEOC and DOE allow discovery by agreement of the parties or in the AJ’s discretion. 29 C.F.R. §
1614.109(d); 10 C.F.R. § 708.28(b)(1) and (2).
95
For example, CBBA provides for depositions, interrogatories, and other methods of discovery but requires board
judge permission for their use.
92

27

l. Subpoena power
Best practices for Type B adjudication includes subpoena power.96 Subpoenas enable the
agency and private parties to compel the production of documents and the appearance of
witnesses at the hearing. Most Type B agencies have subpoena power. However, the agency
cannot give itself subpoena power; it must be provided by a statute.97 Procedural regulations
should explain an agency’s subpoena practice in detail.
m. Open hearings
Under best practices, a Type B adjudicating agency should open its hearings to the
public.98 Some of the procedural regulations I studied provide for open hearings but others are
silent on the issue. Allowing members of the public (including the media) to be present is an
important accountability mechanism and part of the American tradition of open trials.99
However, agencies should have the ability to close a hearing in particular cases due to concerns
about protection of law enforcement or national security100 or to protect confidentiality of
business documents or the privacy of parties to the hearing.101
3. Hearing practices
n. Use of administrative judges
Best practice for Type B agencies that decide a significant number of cases is to use AJs
to conduct hearings and provide an initial decision. The initial decision is usually subject to
review by upper-level decisionmakers such as the agency heads.
Of the agencies studied, only PRRM did not utilize AJs to conduct hearings and make
initial decisions. The five-member PRRM board conducts its hearings en banc. PRRM has a
large inventory of pending cases. The use of en banc hearings by the PRRM seems to be an
inefficient use of resources and drastically reduces the number of hearings that can be provided.

96

See ABA Guide, note 14 supra, ¶ 4.04.
APA § 555(c), (d). EEOC lacks power to subpoena non-party witnesses.
98
See ABA Guide, supra note 14, ¶ 5.03.
99
See Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) (First Amendment requires open deportation
hearings involving persons suspected of terrorist involvement unless agency establishes compelling interest for
closing the hearing.) Contra: North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3d Cir. 2002).
100
EOIR provides for open hearings but hearings may be closed to protect witnesses, parties, or the public interest.
EOIR hearings shall be closed in cases of spousal or child abuse and in national security cases. 8 C.F.R. §
1003.27(a). DOE closes its hearings in security clearance cases, which, by definition, involve security issues not
appropriate for public hearings. 10 C.F.R. § 710.26(c).
101
Thus the EEOC closes its hearings in employee discrimination cases in order to protect the privacy of the
complainant. 29 C.F.R. § 1614.109(e).
97

28

o. Video conferencing and telephone hearings
Agencies can achieve substantial economies by making use of video conference
technology in conducting adjudicatory hearings (or parts of the hearing). Video allows the
agency to avoid spending time and money to bring AJs, witnesses, and other staff members to
locations away from their office. It also promotes the convenience of parties and witnesses,
especially those living in remote locations, who need not travel long distances to participate in
hearings; obviously, however, at least with existing technology, the parties and witnesses must
still travel to an agency office that has video facilities. ACUS recently studied the video
conference procedure and suggested best practices.102
Nevertheless, video conference is controversial and it is not always appropriate.103 The
efficiency savings possible through the use of video must be balanced against the possible
dissatisfaction of private parties and their advocates. When video is used, the agency should
make every effort to structure the experience to maximize participant satisfaction, as discussed in
ACUS Rec. 2014-7.
Best practices for Type B adjudication include the ability to hold hearings through video
conference. DOE,104 EOIR,105 USDA-PACA,106 and BVA107 are among the agencies that hold a
substantial portion of their Type B hearings through video conference.
Video conference is obviously superior to the use of the telephone, since video allows the
AJ and the parties and their representatives to see as well as hear the witnesses and to see
documents. Nevertheless, in cases involving smaller stakes or which do not present credibility
issues, best practices include the ability to make use of telephone hearings, even if the private
party does not consent.
p. Written-only hearings
Best practices for Type B adjudication include the use of written-only hearings in
appropriate cases. Most agencies confront budget and caseload pressures and the use of written

102

ACUS Rec. 2014-7, 2011-4.
Video conference hearings are extensively used in EOIR proceedings, particularly when the respondent is located
at a remote detention facility.
104
See App. A-3 (about 60% of DOE hearings are conducted by video-conference).
105
See App. A-6. Video is heavily used for cases of respondents in detention since detention facilities are often
located at remote locations.
106
In cases of claimed damages in excess of $30,000, USDA-PACA provides oral hearings. However, oral hearings
are conducted by video-conference unless the examiner determines that an in-person hearing is necessary to prevent
prejudice to a party, or is necessary because of a disability of an individual expected to participate in the hearing, or
because an in-person hearing “would cost less than conducting the hearing by audio-visual communication.” 7
C.F.R. § 47.15(c)(3).
107
See App. A-10. Most BVA cases are written only. In cases in which hearings occur, 54% are by video
conference.
103

29

hearings can yield substantial efficiencies for both sides.108 Numerous agencies employ a written
summary judgment practice when affidavits reveal there is no disputed issue of material fact.
Normally, best practice is to allow oral argument in connection with a written-only hearing or a
summary judgment motion, but the agency should have discretion to dispense with oral argument
if it appears to be of little utility in a given case.
Written hearings are appropriate in cases that do not involve resolution of credibility
conflicts. Such cases may involve disputes concerning the interpretation of statutes or
regulations or may involve only the question of how to exercise discretion or may involve
disputes concerning legislative facts (that is, factual disputes that do not involve the conduct or
motivations of the parties to the case) in which experts offer conflicting views. Oral hearings
(including oral testimony and cross-examination) are of questionable utility in such cases.
CBCA regulations offer a useful model. The regulations permit either party to opt for a
written-only hearing in which the case is submitted on the written record. If one party (A) wants
an oral hearing and the other (B) wants to submit the case on the record, A receives an oral
hearing and B receives a written-only hearing; however, B is permitted to cross-examine A’s
witnesses.109
EPA permit cases are handled through a two-stage process that does not include an oral
evidentiary hearing. The initial decision stage is a written notice and comment type proceeding,
often with a public non-evidentiary hearing. The appellate stage before the EAB involves a
written hearing with clearly-erroneous review of the fact findings made at the initial decision
stage.110
In cases involving disputes of adjudicative fact but relatively small stakes, it should be
possible to substitute written for oral testimony, as occurs in USDA-PACA adjudication.111
Even when the stakes are large, some agencies offer a quicker decision if the parties agree to a
written-only consideration of their case.112 PTAB and TTAB use an innovative approach in
which oral testimony of parties and experts is taken exclusively through depositions; the AJ then
decides the case on these depositions plus oral argument.113

The APA provides that “In rule making or determining claims for money or benefits or applications for initial
licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or
part of the evidence in written form.” § 557(d).
109
See App. A-2.
110
See App. A-5.
111
See App. A-1; 7 C.F.R. § 47.15(a) (documentary rather than oral hearings in cases in which claimed damages do
not exceed $30,000).
112
BVA backlogs are quite long. Most parties appealing to BVA agree to a written-only hearing in order to receive
a quicker decision. See App. A-10.
113
App. A-8.
108

30

q. Evidentiary rules
Best practice requires that an agency’s procedural regulations prescribe the evidentiary
rules that the AJ will apply. Many agencies follow the APA provisions on evidence that apply to
Type A adjudication. Under the APA, the ALJ should exclude irrelevant, immaterial, or unduly
repetitious evidence but otherwise should admit any oral or documentary evidence. 114 The
Federal Rules of Evidence (FRE) are not applicable; hearsay evidence is admissible. The
advantage of the APA approach is that it avoids disputes about esoteric rules of evidence, such as
the many exceptions to the hearsay rule. AJs may not be competent to resolve disputes about the
rules of evidence and self-represented parties (or parties assisted by lay representatives) are
certainly not competent to deal with them.
One variation of the general rule is that the FRE can be consulted but not necessarily
followed. In DOE security clearance cases, the regulations provide that formal rules of evidence
do not apply but the FRE may be used as a guide to assure production of the most probative
evidence available; hearsay evidence “may in the AJ’s discretion and for good cause be admitted
without strict adherence to technical rules of admissibility and shall be accorded such weight as
the circumstances warrant.”115 In my view, this type of unclear formulation is likely to cause
confusion and time-consuming evidentiary disputes about whether specific FRE rules should be
applied.116
There are situations in which agencies should follow the FRE. PTAB and TTAB provide
examples of this situation. Administrative patent judges (APJs) and administrative trademark
judges (ATJs) apply the FRE (along with all of the discovery rules) in trial cases.117 The
apparent rationale is that such private-party patent disputes could be tried either in federal district
court or the PTAB or TTAB and the evidence rules should not differ between the two fora.
However, the FRE are not applicable in appeal proceedings before PTAB and TTAB (that is,
cases involving disputes between the patent examiner and the applicant or patentee). In appeal
proceedings, the judges admit any evidence that tends to prove or disproved alleged facts.118

“Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the
exclusion of irrelevant, immaterial, or unduly repetitious evidence. A sanction may not be imposed or rule or order
issued except on consideration of the whole record or those parts thereof cited by a party and supported by and in
accordance with the reliable, probative, and substantial evidence.” APA § 557(d).
115
10 C.F.R. § 710.26(h). Similarly, in whistleblower cases, OHA is not bound by the formal rules of evidence but
can use the FRE as a guide. 10 C.F.R. § 708.28(a)(4). In EEOC hearings, “the rules of evidence shall not be applied
strictly, but the administrative judge shall exclude irrelevant or repetitious evidence.” 29 C.F.R. § 1614.109(e).
116
See ACUS Rec. 86-2: “Congress should not require agencies to apply the FRE, with or without the qualification,
“so far as practicable,” to limit the discretion of presiding officers to admit evidence in formal adjudications.” A
footnote states that the term “formal adjudication” refers not only to adjudication governed by the APA but also to
“agency adjudications which by regulation or agency practice are conducted in conformance with these provisions.”
See Richard J. Pierce, Jr., Use of the Federal Rules of Evidence in Federal Agency Adjudications, 39 ADMIN. L.
REV. 1 (1987).
117
37 C.F.R. § 42.62; 37 C.F.R. § 2.122(a).
118
37 C.F.R. § 41.30.
114

31

r. Opportunity for rebuttal
Best practice for evidentiary hearings includes an opportunity for rebuttal. In cases
presenting credibility issues, the right to rebuttal normally entails cross-examination of an
adverse witness. However, best practice permits the abridgement of cross-examination in
appropriate circumstances. 119
In agency proceedings involving disputes concerning legislative facts where the evidence
consists of expert testimony, the costs of cross-examination may outweigh its benefits. Similarly,
cross seems unnecessary if credibility is not in issue or the only issue is how an AJ should
exercise his or her discretion. The agency should be able to limit or preclude cross examination
in such cases. The right of rebuttal of such evidence takes the form of additional written
evidence and oral argument.
Agencies appropriately limit or preclude cross examination if cross might jeopardize
national security or might reveal the identity of confidential informants. For example, in DOE
security clearance cases, the AJ can dispense with cross if a witness is a confidential informant,
or if cross-examination would jeopardize restricted data or national security.120 Instead, the
employee receives a summary or description of the information. The AJ should give appropriate
consideration to the lack of opportunity to cross examine.121 Similarly, in EOIR hearings, the IJ
must permit a reasonable opportunity for cross-examination,122 but the respondent cannot
examine national security information that the government introduces in opposition to admission
or discretionary relief.123
4. Post-hearing practices
s. Written decisions
Best practices require Type B decisionmakers to furnish a written opinion. The decision
should set forth findings of fact and an explanation of how the AJ resolved credibility conflicts.
The opinion should also furnish conclusions of law and an explanation of the AJ’s legal
interpretations of statutes or regulations. Finally, the opinion should state the AJ’s reasons for
discretionary choices.124
In some mass justice situations, the requirement of a written

Under the APA, a party is entitled only “to conduct such cross-examination as may be required for a full and true
disclosure of the facts.” APA § 557(d). See ABA Guide, note 14 supra, ¶ 5.09.
120
10 C.F.R. § 710.26(l).
121
10 C.F.R. § 710.26(m).
122
Immigration Court Practice Manual § 4.16(d).
123
8 U.S.C. § 1229a(b)(4); 8 C.F.R. § 1240.10(a)(4).
124
The APA requires that all decisions (including initial, recommended and tentative decisions) include a statement
of findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion
presented on the record.
§ 557(c)(A). See ABA Guide, note 14 supra, ¶ 6.02.
119

32

opinion can be satisfied by an oral decision delivered from the bench that is transcribed in the
record of the hearing.
A requirement of written findings and reasons improves the quality of agency
decisionmaking, assists parties in determining whether to seek judicial review, and improves the
quality of administrative reconsideration and judicial review.
Type B procedural regulations frequently prescribe the content of written AJ opinions.
For example, the regulations relating to DOE security clearance cases provide:
The Administrative Judge shall make specific findings based upon the record as to the
validity of each of the allegations contained in the notification letter and the significance
which the Administrative Judge attaches to such valid allegations. These findings shall be
supported fully by a statement of reasons which constitute the basis for such findings.125
t. Higher-level reconsideration
Best practice is that agencies should furnish an opportunity for a higher-level
reconsideration of an initial adjudicatory decision.126 The ability to obtain a higher-level
reconsideration of an adverse decision is useful to correct the inevitable errors made by AJs and
enhances the feelings of private parties that their case has been dealt with fairly and impartially.
To facilitate such reconsideration, the AJ decision should be disclosed to the parties and they
should have an opportunity to make arguments to the reconsidering authority. The reconsidering
body should be entitled to summarily affirm the lower-level decision without being required to
write a new opinion.
The intra-agency appellate structures vary greatly and provide a variety of models from
which regulation drafters can choose. Any of these models would satisfy the best practice
requirement that there be an opportunity for reconsideration of the initial decision.
Some reconsideration structures provide for reconsideration of AJ decisions as a matter
of right. Reconsideration is normally based on written briefs with or without oral argument. For
example, EOIR provides for both an initial Type B decision by an IJ followed by an appellate
procedure at the BIA level.127 Similarly, EEOC cases involve both an initial decision by an AJ
followed by an appellate-level decision by OFO.128

125

10 C.F.R. § 710.27(c).
See generally ABA Guide, note 14 supra, ¶ 6.03. The term “reconsideration” is also used to refer to a request to
an AJ to reopen and reconsider the AJ’s decision (as might occur if it contains errors in referring to the record or
there is newly discovered evidence). The reference to reconsideration in the text is to review of an initial decision
by a higher level official, either within the agency or within another agency. Of course, both forms of
reconsideration may be available in a given case.
127
See App. A-6.
128
See App. A-4.
126

33

Other agencies use different reconsideration models. In environmental permitting cases,
the initial decision is based on a notice and comment procedure that includes a public hearing;
the EAB functions as a reconsideration body and provides a Type B written procedure.
Similarly, in VA benefit cases, the only type B hearing occurs at the reconsideration
level. The Board of Veterans Appeals (BVA) reviews a regional office decision denying
benefits. The regional office decision is made by a ratings specialist that is reviewed in by a
Decision Review Officer (DRO). Both the regional office and DRO proceedings should
probably be classified as Type C adjudication.
PTAB and TTAB do not provide for reconsideration of decisions by APJs or ATJs. The
same is true of CBCA Board Judge decisions, but the regulations allow full Board
reconsideration to secure uniformity of decisions or because of a case’s exceptional
importance.129
Best practices also include regulations that allow and encourage the reconsidering body
to designate its important decisions as precedential in order to improve the consistency of lower
level decisions by staff or AJs.130 The use of a system of precedent decisions makes the
decisional process more transparent to outsiders and makes it much easier for them to research
the agency’s decisional law.
5. Procedural regulations
u. Complete statement of important procedures
Best practice is that all important procedures and practices that affect persons outside the
agency should be set forth in procedural regulations that are published in the Federal Register
and the Code of Federal Regulations. This is required by the APA.131 Important practices
relating to the decisional process should not be buried in practice manuals or guides for AJs.
Such practice manuals are quite useful to staff, AJs, and private litigants. The manuals
should spell out smaller details of procedures that are already set forth in the regulations, rather
than stating important procedures and practices that are not covered by the procedural
regulations. Manuals should be as user-friendly as possible and contain examples, illustrations,
model forms, and checklists.
In addition, agencies should periodically seek feedback on their procedures and reexamine and update their procedural regulations as well as their practice manuals and guidelines.

129

See App. A-2.
See, e.g., CMS Prop. Reg. 81 Fed. Reg. 43789 (July 5, 2016), creating a precedent decision system in the OMHA
Medicare Appeals program. OMHA conducts a severely backlogged Type A adjudicatory scheme and the provision
for precedent decisions may reduce the burden on ALJs. PTO guidelines provide for designating decisions by APJs
as precedential but have been rarely used. See Stuart Minor Benjamin & Arti K. Rai, Administrative Power in the
Era of Patent Stare Decisis, 65 DUKE L.J. 1563, 1586 (2016).
131
APA § 552(a)(1)(C).
130

34

TABLE 3: TYPE B AGENCIES AND BEST PRACTICE PROPOSALS
The following table indicates whether each agency I studied embodied the best practices recommended in this report in its generally
available written procedural documents (procedural regulations, manuals, or other sources of procedure law). Of course, agencies
might be observing these best practices without having codified them in regulations or manuals.
TYPE B SCHEMES
RECOMMENDATIONS
INTEGRITY OF PRCSS
a. Exclusive Record
b. Bias
c. Ex Parte Comm.
d. Sep. of Functions
PREHEARING
a. Written Notice
b. Lay Representation
c. ADR
d. Pretrial Conf.
e. Electronic Filing
f. Discovery
g. Subpoena Power
h. Open Hearings
HEARING
a. Use of AJs
b. Videoconference
c. Written-only Opp.
d. Evidence Rules
e. Rebuttal Opp.
POST-HEARING
a. Written Opinion
b. Reconsideration
PROCEDURAL REGS
a. Complete Statement
NUMBER OF YESSES

USDA
PACA

CBCA

DOE

EEOC

EPA EAB

EOIR

MSPB

PTAB &
TTAB

PRRB

BVA

N
Y
N
N

Y
N
Y
N/A134

Y
N
Y
Y-N

Y
Y
N
N/A

Y
Y
Y
Y

Y
Y-N132
Y-N
Y-N

Y
Y
Y
N/A

Y
N
Y-N133
Y-N

Y
Y
Y
N/A

N
N
N
N

Y
Y
Y
N
N
Y
Y
N

Y
N
Y
Y
Y
Y
Y
Y

Y
Y
Y
Y
Y
Y
Y
N

Y
Y
Y
N
N
Y
N
N

Y
Y
Y
Y
Y
Y
Y
Y

Y
Y
N
Y
N
Y
Y
Y

Y
Y
Y
Y
Y
Y
Y
Y

Y
N
N
Y
Y
Y
Y
N

Y
Y
Y
Y
Y
Y
Y
N

Y
Y
N
N
N
N
N
N

Y
Y
Y
N
Y

Y
N
Y
Y
Y

Y
Y
Y
Y
Y

Y
N
Y
Y
Y

Y
N
Y
Y
Y

Y
Y
N
N
Y

Y
Y
Y
N
Y

Y
N
Y
Y
Y

N
Y
Y
Y
Y

Y
Y
Y
N
Y

Y
Y

Y
N

Y
Y

Y
Y

Y
Y

Y
Y

Y
Y

Y
N

Y
Y

Y
N

Y
13

Y
15

Y
17.5

N
12

Y
19

N
13.5

Y
18

Y
13

N
16

N
7

132

Provisions in guidelines on bias, ex parte communication, and separation of functions apply to IC but not BIA.
PTAB and TTAB have separation of functions and ex parte communication restrictions for trials (meaning disputes between patentees and challengers) but
not appeals (meaning disputes between patent applicants and examiners).
134
No separation of functions in security clearance cases; separation of functions is required in whistleblower cases.
133

35

APPENDICES
APP. A-1: DEPARTMENT OF AGRICULTURE
A. TYPE A USDA SCHEMES
Numerous USDA adjudicatory programs are Type A adjudication.
These are USDAOALJ0001 in our database. The regulations provide for Type A hearings
before ALJs; appeals from ALJ decisions are decided by USDA’s judicial officer.
135

Many of the statutes covered by these regulations call for a “hearing on the record” and
thus trigger Type A adjudication. However, some statutes do not call for a hearing “on the
record” but USDA nevertheless has included these programs in its list of Type A adjudication.
For example, licensing provisions of the Animal Welfare Act call only for “notice and an
opportunity for hearing.”136 The same is true of licensing provisions in the Perishable
Agricultural Commodities Act. (PACA).137
The National Appeals Division (NAD) is an independent unit within USDA that conducts
evidentiary hearings arising from adverse decisions by agencies engaged in USDA’s credit, soil
conservation, and insurance functions.138 It is USDANADO0002 in the ACUS database. NAD is
headed by a Director who appoints its hearing officers.139 The hearing officers have no duties
other than adjudicating.140 In Lane v. USDA,141 the 8th Circuit held that NAD hearings are
covered by the APA; consequently, they are subject to the Equal Access to Justice Act. The Lane
decision has been followed by cases from two other circuits.142 USDA has acquiesced in the
Lane decision and the regulations now provide that the APA and EAJA apply to NAD

135

See 7 C.F.R. §§ 1.130 to 151. § 1.131 lists the USDA regulatory programs subject to these regulations.
7 U.S.C. § 2149 (a) (license suspension or revocation) and (b) civil penalties.
137
See, e.g., 7 U.S.C. § 499h(b).
138
Agencies covered are the Farm Service Agency. Commodity Credit Corporation, Farmers Home Administration,
Federal Crop Insurance Corporation, Rural Development Administration, Natural Resources Conservation Service,
and certain state and local committees. 7 U.S.C. § 6991(2); 7 C.F.R. § 11.1. NAD does not provide review of
statutes or regulations, only of individualized decisions. 7 C.F.R. § 11.3(b).
139
The Director serves for a 6-year term and is not subject to removal during that term except for cause. 7 U.S.C. §
6992(b)(2).
140
7 U.S.C. § 6992
141
120 F.3d 106 (8th Cir. 1997).
142
Five Points Road Joint Venture v. Johanns, 542 F.3d 1121 (7th Cir. 2008); Aageson Grain & Cattle v. USDA,
500 F.3d 1038 (9th Cir. 2007). This line of cases is questionable, however. Prevailing law gives Chevron deference
to an agency’s interpretation of whether its governing statute triggers the APA. Dominion Energy Brayton Point,
LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006). The Lane decision gave no deference to USDA’s interpretation. See
discussion at note 28-29, supra.
136

36

hearings.143 Thus I have treated NAD hearings as Type A adjudication—except that, by statute,
its hearings are conducted by hearing officers appointed by its Director, rather than by ALJs. 144
B. TYPE B USDA SCHEMES—PACA
PACA (originally enacted in 1930) includes provisions for reparation orders.145 PACA
provides for dispute resolution between private participants in the fresh or frozen fruit and
vegetable markets. The producers of fruits and vegetables are on one side; commission
merchants, brokers, and dealers in such products (who must hold licenses) are on the other side.
PACA allows USDA to adjudicate damage claims by producers against licensees for nonpayment or other delinquencies (such as unfair, deceptive, unreasonable, or discriminatory
practices, including unreasonable rejection of produce).146 PACA reparation proceedings are not
presently included in the ACUS database but should be included.147
USDA decisions in PACA reparation cases are reviewable in federal district court.
Review can occur either in a proceeding by a petitioner to enforce a reparation order or by either
party to review a reparation order. The cases are tried de novo, but USDA’s findings and
conclusions are treated as prima facie correct.148 In addition, producers who are victims of
breach of contract can go directly to court and bypass the USDA reparation procedure entirely.149
These unusual review provisions reflect the fact that the USDA reparation proceedings might
otherwise be treated as an unconstitutional delegation of adjudicative power or a denial of the
right to a jury trial. The existence of these unusual judicial review provisions may explain why
reparation orders are treated as Type B adjudication rather than Type A (like most of the other
USDA regulatory programs).

7 C.F.R. § 11.4(a). See 74 Fed. Reg. 57401 (Nov. 6, 2009) (USDA’s acquiescence in Lane).
In NAD hearings, the initial decisions are by AJs instead of ALJs, but this is a permissible arrangement for Type
A adjudication. The APA allows a statute to supersede the APA requirement that hearings be conducted by ALJs.
APA §556(b).
145
See 7 U.S.C. § 499a et seq. PACA reparation hearings are not included in the USDA’s list of Type A
adjudications. See 7 C.F.R.§ 1.131(a).
146
See 7 U.S.C. § 499b. PACA also treats the proceeds of sale of produce as being held in trust for producers as
well as giving the producers a floating lien over the producers’ assets. These provisions greatly improve the position
of the producers as creditors if a licensee files for bankruptcy. See 7 U.S.C. § 499e(c).
147
PACA procedure is discussed in Verkuil, supra note 11 at 764-65.
148
7 U.S.C. § 499g(b), (c). This means that either party can introduce additional evidence in court. Smith v. White,
48 F. Supp. 554 (E.D. Mo. 1942). The Secretary’s findings are rebuttably presumed to be correct. The presumption
is rebutted if a party introduces sufficient evidence to overcome them. Spano v. Western Fruit Growers, Inc., 83
F.2d 150 (10th Cir. 1936).
149
See 7 U.S.C. § 499e(b), stating that victims can recover damages either through the USDA process or by suing in
any court of competent jurisdiction. “[T]his section shall not in any way abridge or alter the remedies now existing
at common law or by statute, and the provisions of this chapter are in addition to such remedies.”
143
144

37

The procedures for PACA reparation orders are set forth in USCA’s regulations.150 The
examiners in PACA hearings are attorneys employed in the Office of the USDA General
Counsel.151 Examiners can be disqualified for bias, but the regulations define bias rather
narrowly to cover only a pecuniary interest or a blood or marital relationship to one of the
parties.152 There are no provisions prohibiting ex parte communications to the examiner or
involvement by USDA investigators in the proceedings. Examiners are given various powers
including subpoena power, power to order depositions, or to conduct hearings by telephone or
audiovisual equipment.153
Parties seeking PACA reparations trigger the process by filing an “informal complaint.”
Staff members of the Deputy Administrator investigate the complaint and a copy of the
investigational report is provided to the parties.154 During this period, the parties may settle the
dispute.155 The PACA branch also provides mediation services at this stage.156 If the case does
not settle, the petitioner files a “formal complaint” which is served on the respondent. 157
The regulations provide for an oral hearing if the amount of the claimed damages exceeds
$30,000. If the damages do not exceed $30,000, a documentary rather than an oral hearing is
provided (unless the examiner finds that peculiar circumstances make an oral hearing
necessary).158
Oral hearings can be conducted by an in-person proceeding or by telephone or by audiovisual telecommunication equipment. The default is audio-visual equipment unless the examiner
determines that an in-person hearing is necessary to prevent prejudice to a party, or is necessary
because of a disability of any individual expected to participate in the hearing, or because an inperson hearing “would cost less than conducting the hearing by audio-visual communication.“159
The examiner can substitute a telephone hearing for an in-person hearing or one by audio-visual

150

7 C.F.R. §§ 47.1 to .22.
7 C.F.R. § 47.2(i). In documentary reparation proceedings, the term “examiner” means “any other employee of
the PACA Branch whose work is reviewed by an attorney employed in the Office of the General Counsel.”
152
7 C.F.R.§ 47.11(a). The regulations also provide for “disqualification” of the examiner. It is not clear if the
grounds for disqualification go beyond a pecuniary or family relationship to the parties. Id., § 47.11(b).
153
7 C.F.R. § 47.11(c).
154
7 C.F.R. § 47.7.
155
“The Deputy Administrator, in an effort to effect an amicable or informal adjustment of the matter, shall give
written notice to the person complained against of the facts of conduct … and shall afford such person an
opportunity, within a reasonable time fixed by the Deputy Administrator, to demonstrate or achieve
compliance…” 7 C.F.R. § 47.3(a), (b).
156
http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=
PACAMediationServices
157
7 C.F.R. § 47.6(a).
158
7 C.F.R. § 47.15(a).
159
47 C.F.R. § 47.15(c)(3). “If the examiner determines that a hearing conducted by audio-visual telecommunication
would measurably increase the [USDA’s] cost of conducting the hearing, the hearing shall be conducted by personal
attendance of any individual who is expected to participate in the hearing or by telephone.” Id.
151

38

equipment if a phone hearing would provide a full and fair evidentiary hearing, would not
prejudice any party, and would cost less than conducting the hearing by audio-visual equipment
or personal attendance of any individual.160 The parties must exchange (ten days before the
hearing) a written verified narrative of the testimony any of its witnesses (including experts) will
present by phone.161
At the hearing, a party may appear in person or by counsel or other representative. Thus
USDA permits lay representation.162
After the hearing, the parties have an opportunity to submit proposed findings and
conclusions and submit briefs. They must also make claims for attorney fees and other costs
(although they do not yet know if they will be prevailing parties entitled to recover such
costs).163 The examiner “with the assistance and collaboration of department employees assigned
for this purpose” shall prepare a report on the basis of evidence received at the hearing. It is
prepared in the form of a final order for the signature of the Secretary of Agriculture but not
served on the parties until the Secretary signs it.164
The documentary procedure (applicable to most cases involving less than $30,000 in
damages165) dispenses with oral proceedings. The verified pleadings, investigation reports,
stipulations, and additional written verified statements or deposition transcripts serve as the
evidentiary record. The parties may submit briefs.166 The examiner’s report is the same as in the
case of oral hearings.167
The examiner’s report and the record in the case are transmitted to the Secretary of
Agriculture.168 If the Secretary agrees with the examiner’s report, the Secretary signs it without
further ado. If the Secretary disagrees with the examiner’s report and if the Secretary “deems it
advisable to do so,” the examiner’s proposed order is served on the parties as a tentative order
and the parties are allowed a period of time (not exceeding 20 days) to file exceptions to the
report and written argument or briefs in support thereof.169

160

7 C.F.R. § 47.15(c)(4).
7 C.F.R. § 47.15(f).
162
7 C.F.R. § 47.15(d)(1). The regulations provide for disqualification of counsel or a lay representative because of
unethical or unprofessional conduct. The examiner shall report such action to the Secretary who can, after notice
and hearing, bar counsel or other representative from participating in other hearings.
163
7 C.F.R. § 47.19(b), (c), (d).
164
7 C.F.R. § 47.19(e).
165
Parties in cases where the claimed damages exceed $30,000 can consent to use the documentary procedure in lieu
of oral hearings. 7 C.F.R. §47.20(b)(2).
166
7 C.F.R. § 47.20(a), (c) to (i).
167
7 C.F.R. § 47.20(k).
168
7 C.F.R. § 47.21.
169
7 C.F.R. § 47.23.
161

39

APP. A-2: CIVILIAN BOARD OF CONTRACT APPEALS170
CBCA (housed within the General Services Administration) is an adjudicating tribunal
that is responsible for resolving contract disputes between private contractors and most nonmilitary federal agencies.171 It is identified as GSAOCB0004 in the ACUS website. CBCA also
is responsible for resolving a variety of other types of disputes involving the federal government.
These include federal employee monetary claims and disputes relating to Federal Crop
Insurance, Federal Motor Carrier Safety, and Indian Self-Determination.172
Under the Contract Disputes Act, a private contractor who has a contract dispute with an
executive agency can take an “appeal” from an adverse decision of the agency’s contracting
officer to CBCA.173 Contractors have the choice of proceeding before CBCA or litigating in the
Court of Federal Claims.174 CBCA appeals are Type B adjudication. The exclusive record
principle applies.175 Unlike other Type B agencies, CBCA awards attorney fees to prevailing
private contractors under the Equal Access to Justice Act.176
CBCA cases are usually heard by panels of three Board Judges (BJs). BJs have many of
the job protections enjoyed by ALJs. BJs must have at least five years of experience in public
contract law.177 Unlike most AJs, they are not subject to performance evaluations. CBCA
currently has 16 BJs.178

170

This appendix does not discuss the Armed Service Board of Contract Appeals. ACUS excluded military and
foreign affairs adjudication from this study because of resource constraints. The appendix also does not discuss two
contract-related schemes operated by General Accountability Office (GAO). GAO’s scheme for making nonbinding recommendations concerning bid protests (GAOBIDS0003) appears to be Type C adjudication; neither the
statute nor the regulations appear to call for an evidentiary hearing although GAO may hold hearings. See 31 U.S.C.
§§ 3554(a) and 3555; 4 C.F.R. Part. 21. GAO’s scheme for resolving disputes relating to contracts by a legislative
branch agency does appear to be Type B adjudication but the number of cases appears to be very small. The ACUS
database does not include this scheme. See 4 C.F.R. Part. 22 (these regulations parallel those of CBCA).
171
A 2006 statute consolidated numerous agency-specific boards of contract appeals into CBCA. See Jeri Kaylene
Somers, The Boards of Contract Appeals: A Historical Perspective, 60 AMER. UNIV. L. REV. 745 (2011).
172
ACUS website lists 11 case types. See http://www.cbca.gov/board/index.html.
173
41 U.S.C. § 7104(a).
174
7104(a). See Michael Schaengold, Choice of Forum for Government Contract Claims: Court of Federal Claims
vs. Boards of Contract Appeals, 17 FED. CIR. BAR J. 279 (2008).
175
48 C.F.R. § 6101.9, .24.
176
5 U.S.C. § 504(b)(1)(C)(ii); 48 C.F.R. § 6101.1(b)(2) and .30.
177
41 U.S.C. § 7105(b)(2)(B). Board judges (referred to Board Members in the statute) are subject to removal in the
same manner as ALJs.
178
http://www.cbca.gov/board/judges.html

40

CBCA regulations prohibit ex parte communications by any person “directly or indirectly
involved in an appeal” to any Board member or Board staff.179 Because the Board is an
adjudicating tribunal, it has no need for a separation of functions provision. The regulations
contain no provision dealing with possible bias by BJs.
CBCA does not allow lay representation. Private parties can represent themselves and an
officer can appear on behalf of a corporation.180
The procedural regulations contain elaborate rules for pleading and notice to opposing
parties.181 Electronic filing is permitted.182 BJs have subpoena power.183 The Board permits all
forms of discovery (including depositions, interrogatories, and requests for production) but
discovery is permitted only to the extent authorized by BJs. The Board may limit the frequency
or extent of discovery if it would be burdensome or unduly expensive.184 BJs are authorized to
conduct pre-hearing conferences.185
ADR is strongly encouraged and the Board provides trained neutrals to attempt to settle
disputes by any ADR method (including mini-trials). ADR is even available before an agency
contracting officer has filed a written report (which is normally required before a contractor can
appeal to CBCA).186
CBCA’s rules provide that either party can waive an oral hearing and request a decision
based on documents in the file.187 The other party, however, may request an oral hearing. When
one party requests an oral hearing, the party who waived the oral hearing is allowed to appear to
cross-examine live witnesses. The rules direct BJs to admit any relevant and material evidence
including hearsay unless found to be unreliable or untrustworthy. As to other matters relating to
evidence, BJs look to the FRE for guidance.188 CBCA hearings are open to the public but can be
closed to protect confidential information.189 A written decision is required based on evidence in
the record and judicially noticed facts.190
The statute and regulations provide for small claims hearings if the dispute involves
$50,000 or less or the contractor is a “small business concern.” Small claims hearings are heard

179

48 C.F.R. § 6101.33(b) and (c).
48 C.F.R. § 6101.5.
181
48 C.F.R. § 6101.2 et seq.
182
48 C.F.R. § 6101.1(b)(2).
183
48 C.F.R. § 6101.16.
184
48 C.F.R. § 6101.13 to .15.
185
48 C.F.R. § 6101.11.
186
48 C.F.R. § 6101.54. See http://www.cbca.gov/adr/index.html.
187
48 C.F.R. § 6101.18 and .19.
188
48 C.F.R. § 6101.10.
189
48 C.F.R. § 6101.21.
190
48 C.F.R. § 6101.25.
180

41

by a single BJ and an accelerated time table.191 If the amount in dispute is $100,000 or less, the
regulations provide for an accelerated decision by only two BJs.192
There is no procedure for higher-level administrative reconsideration of BJ decisions.
However, a party can request full Board reconsideration of a case in order to secure uniformity
of decisions or because of the case’s exceptional importance. Such requests are disfavored.193
CBCA decisions can be appealed by either side to the Court of Appeals for the Federal Circuit.
According to ACUS website, in FY 2013, CBCA opened 529 cases and decided 451.
558 cases were pending at the end of the year. Of the 529 cases opened, 242 involved contract
disputes, 77 involved motor carriers, 64 involved federal employee relocation claims, and 51
involved the Indian Self Determination Act. The workload was about 99 cases per judge per
year (computed by dividing the number of cases by the number of BJs and multiplying by 3 to
take account of the three-judge panels—though this is imprecise since there are one-judge and
two-judge panels in smaller cases).

191

48 C.F.R. § 6101.52.
48 C.F.R. § 6101.53.
193
48 C.F.R. § 6101.28.
192

42

APP. A-3: DEPARTMENT OF ENERGY194
The Department of Energy’s (DOE) Office of Hearings and Appeals (OHA) adjudicates
six case types. The identifier code in the ACUS database is DOENOOH0001.
A. General information
The caseload of OHA (measured by cases opened in FY 2014) is as follows.195
Personnel security
Whistleblowing
FOIA & privacy
Exceptions, med certify, safety, others
TOTAL CASELOAD

121
31
79
26
257

This memo focuses on the first two categories—personnel security and whistleblowing,
which appear to be examples of Type B adjudication. The remaining case types do not involve
evidentiary hearings and thus do not qualify as Type B adjudication.
OHA has 12 administrative judges (AJs) who provide initial hearings. They work fulltime as judges and are subject to performance evaluation based on the timeliness and quality of
their work product. They are paid in the GS 13-15 range. Their title was formerly Hearing
Officer; the AJ title was adopted in 2013. The purpose of the change was to enhance their stature
and to bring them in line with the titles used at other federal agencies. Assuming 257 cases per
year distributed among the 12 AJs, their caseload is about 21 cases per year or about 1.75 cases
per month.
In initial hearings, DOE is represented by a lawyer. About half of respondents are
represented (some representatives are non-lawyers).
Discovery is permitted in all types of cases in the discretion of the AJ.196 Discovery
includes depositions and documents produced in response to a subpoena. 197 AJs have
subpoena authority. Ex parte contacts are prohibited. Parties receive notice of the hearing.
The exclusive record principle applies.198
The formality of DOE hearings varies by case type. About 20% are document-only
hearings (meaning no live-witness testimony or cross-examination). About 20% involve in-

194

Thanks for assistance by Dan Solomon, Ann Augustyn, and Alan Morrison.
The figures in the ACUS database are for FY 2013 and show 266 cases opened in that year.
196
See 10 C.F.R. § 708.28(b)(1), (2).
197
See id. at §§ 708.28, 1003.8.
198
10 C.F.R. § 1003.62(g).
195

43

person hearings and 60% are conducted via video. Some hearings are open to the public;
others (such as security clearance cases) are closed. 199
The AJ drafts the agency decision. In some cases, there is a time limit for preparing the
decision (60 days for whistleblower cases, 45 days for medical certificate cases).
Cases are generally heard on a first-in/first-out basis. However, this may vary based
upon the complexity of the issues presented and unforeseen difficulty in scheduling the
hearing. Web-based electronic filing is permitted. Final decisions are published or posted on
the agency website (except for those involving classified or other sensitive information). The
record is not closed at the initial decision phase but can be supplemented on agency appeal.
The regulations do not establish the contents of the record.
Voluntary ADR is available at all stages, from before the case or claim is filed to the
post-hearing stage. ADR includes mediation and arbitration as well as neutral evaluation,
mini-trials, peer review panels, ombudsmen, and partnering. ADR is provided by an agency
ADR official who is part of the Office of Conflict Prevention and Resolution (OCPR).200
During FY 2014, OCPR processed 38 mediations. During that year, mediations occurred in
eight cases, four of which were resolved, and four of which were pending at the end of the
year. 26 cases were withdrawn from mediation. Most mediations concern equal employment
opportunity issues, an area where OHA does not otherwise provide for hearings.
A party is dissatisfied with the decision of an AJ may appeal to the Director of
OHA.
The appeal structure varies depending on which case type is involved. Appeals are
considered on a document-only basis and must be decided within 60 days. During FY 2013,
four appeals were initiated. OHA decided four appeals (all whistleblower cases), some which
were initiated in earlier years. In security clearance cases, a further appeal is available to the
Secretary of Energy.
201

B. Detailed treatment of personnel and whistleblowing cases
The remainder of this memo is a more detailed description of the Type B adjudication
handled by DOE OHA. The hearings provided in personnel security and whistleblowing cases
are quite formal and serve as examples of Type B adjudication that is as formal as Type A
adjudication.

199

See id. at § 1003.62(a).
See Alternative Dispute Resolution, OFFICE OF CONFLICT PREVENTION AND RESOLUTION, U.S. DEPARTMENT OF
ENERGY, http://energy.gov/oha/services/applications-exceptions/alternative-dispute-resolution (last visited May 22,
2015).
201
See 10 C.F.R. § 1003.30 (2014).
200

44

1. Generic hearing regulations
OHA hearings are governed by a set of generic procedural regulations set forth in 10
C.F.R. Part 1003. These regulations provide for an evidentiary hearing if it would materially
advance the proceeding. 202 “If material factual issues remain in dispute after an application or
appeal has been filed, the Director of OHA or his designee may issue an order convening an
evidentiary hearing in which witnesses shall testify under oath, subject to cross-examination, for
the record and in the presence of a Presiding Officer. A Motion for Evidentiary Hearing should
specify the type of witness or witnesses whose testimony is sought, the scope of questioning that
is anticipated, and the relevance of the questioning to the proceeding.”203
The regulations described below furnish additional procedural protections beyond those
provided in the generic hearing regulations.
2. Personnel security cases
Personnel security cases (sometimes referred to as security clearance cases) involve
challenges by DOE or contractor employees to a decision that the employee be denied or
deprived of access to classified material (which presumably means that the applicant does not
get the job or an employee loses the job). The regulations204 applicable to personnel security
cases implement Executive Orders 12968 205 and 10865.206 Executive Order 10,865 provides
for a right to an adjudicatory hearing for a person denied access to classified material or whose
access is revoked. It appears that the right to an evidentiary hearing arises from these
executive orders rather than from an applicable statute. 207
The regulations provide for detailed notice by the Manager of a DOE facility to an
employee about whom there is substantial doubt concerning access. 208 The notice (which shall
be as comprehensive and detailed as national security permits) states the information that
creates a substantial doubt. The employee can choose to have the Manager make the decision
without a hearing or can elect a hearing before an AJ. If the employee selects a decision by the

202

See id. at § 1003.62(a).
Id. at § 1003.62(e).
204
10 C.F.R. Part 710.
205
See Exec. Order No. 12,968, 60 Fed. Reg. 40,245 (Aug. 7, 1995).
206
See Exec. Order No. 10,865, 25 Fed. Reg. 1,583 (Feb. 24, 1960).
207
42 U.S.C. § 2201 (2012) provides that the agency is authorized to “hold such meetings and hearings as the
[agency] may deem necessary or proper . . .” A summary of procedures for the Human Reliability Program (10
C.F.R. Part 712), which involves continuous evaluation of employees in sensitive positions for problems such as
drug and alcohol abuse and which can also trigger OHA hearings is not included here because there were no
OHA hearings under the Human Reliability Program in 2013 or 2014.
208
See 10 C.F.R. § 710.21 (2014).
203

45

Manager without a hearing and it is unfavorable, the employee can appeal the decision to the
DOE Headquarters Appeals Panel. 209
If the employee opts for an AJ hearing, the case is assigned to an AJ. The AJ has
subpoena authority. The AJ holds a prehearing conference and conducts a hearing within 90
days after a request for hearing is received. 210 At the hearing, the employee can be represented
by a “person of his own choosing.” 211 The AJ is prohibited from engaging in ex parte contacts
(with the exception of procedural or scheduling matters). Hearings are not open to the public.
“DOE Counsel shall assist the [AJ] in establishing a complete administrative hearing record in
the proceeding and bringing out a full and true disclosure of facts, both favorable and
unfavorable.”212 It is unclear whether this provision permits ex parte contact between DOE
Counsel and the AJ.
All witnesses are subject to cross-examination, “if possible,” and “[w]henever
reasonably possible, testimony shall be given in person.” 213 The AJ has the duty to assure that
restricted data or national security information is not disclosed to persons who are not
authorized to receive it. Formal rules of evidence do not apply but the Federal Rules of
Evidence (FRE) may be used as a guide to “assure production of the most probative evidence
available.”214 The regulations provide that the utmost latitude shall be permitted with respect
to relevancy, materiality, and competence. Every effort is made to obtain the best evidence
available.
Hearsay is admissible in the AJ’s discretion for good cause without strict adherence to
technical rules of admissibility and shall be accorded such weight as circumstances warrant.
Cross-examination can be dispensed with if the witness is a confidential informant and
disclosure of identity would be harmful to the national interest; or in various circumstances
relating to jeopardy to restricted data or national security. The employee receives a summary
or description of the information in these circumstances and appropriate consideration is given
to the lack of opportunity to cross-examine.215
The AJ’s decision must contain detailed and specific fact findings and a statement of
reasons. To decide favorably to the employee, the AJ must determine that “the grant or

209

See id. at § 710.22(c).
See id. at § 710.25.
211
Id. at § 710.26(a).
212
Id. at § 710.26(d).
213
Id.
214
Id. at § 710.26(h).
215
See id. at § 710.26(m).
210

46

restoration of access authorization to the individual would not endanger the common defense
and security and would be clearly consistent with the national interest.” 216
Both the employee and the Manager can appeal an unfavorable decision to the DOE
Headquarters Appeals Panel. The Appeals Panel has three members consisting of DOE
headquarters employees; one member is the Principal Deputy Chief for Mission Support
Operations. The second member is a DOE attorney designated by the General Counsel. The
third member is designated by the head of the DOE Headquarters element with cognizance
over the employee. Only one member of the Appeal Panel shall be from the “security field.” 217
The Appeals Panel can consider new information submitted by either side, provided that the
other side has an opportunity to respond. Appeals must be decided within 45 days of the
closing of the administrative record. 218 A further appeal to the Secretary of Energy is afforded
whenever an individual was denied an opportunity to cross-examine adverse witnesses; the
Secretary must personally review the record. 219
According to the 2014 OHA Annual Report, average case processing time for personnel
security cases was a brisk 96 days. In 59% of the cases, the AJ determined that the individual
should not be provided or should not retain a security clearance. The 2014 Annual Report,
provides an example of an individual whose security clearance was restored. He previously
had foreign citizenship and his wife had close contact with her family members in a foreign
country.220 The individual’s clearance was restored on a finding that his “heart and mind” are
allied with the US and that if he is ever confronted with the choice of deciding between the
interests of the US and his foreign national family or place of birth, he will choose US
interests.
3. Whistleblower complaints
Detailed regulations prescribe the rules for hearings in the case of whistleblower
complaints by employees of DOE contractors. The statutory authorization for these hearings is
somewhat unclear. The regulations claim to be authorized by various statutes, most of which
confer rulemaking authority on DOE but do not provide for hearings. The most relevant of the
statutes cited as authority 221 (a statute administered by the Department of Labor) calls for
“notice and opportunity for public hearing” in connection with whistleblower complaints.222
However, DOL apparently ruled that it had no jurisdiction over complaints by DOE
contractors. Consequently, DOE had to adopt its own whistleblower regulations. 223 Thus, it

216

Id. at § 710.27(a).
Id. at § 710.29(b).
218
See id. at § 710.29(f).
219
See id. at § 710.31.
220
See Case No. PSH-14-0011.
221
42 U.S.C. § 5851(b)(2)(A).
222
See 42 U.S.C. § 5851(b)(2)(A) (2012).
223
See 10 C.F.R. Part 708. See 57 Fed. Reg. 7,533 (Mar. 3, 1992).
217

47

may be these regulations do not implement any statutory hearing requirement. However, by
virtue of the detailed procedural regulations, they should be considered Type B adjudication.
The regulations are a welcome example of user-friendly language; they are directed to “you,”
meaning the complaining employee.
Whistleblower complaints by employees of DOE contractors allege retaliation by
employers for disclosure of information concerning dangers to public or worker safety,
substantial violations of law, fraud, or gross mismanagement. They also concern complaints
for retaliation because an employee participated in congressional proceedings or refused to
participate in dangerous activities. 224 DOE encourages informal settlement of whistleblower
complaints, including through mediation. 225
If complaints are not resolved informally, the employee can choose to have the
complaint referred to OHA for an investigation followed by a hearing. The employee can also
elect a hearing without an investigation. If there is an investigation by OHA, the investigator
“may not participate or advise in the initial or final agency decision” and may not supervise or
direct the AJ who hears the case. 226
An OHA AJ schedules a hearing to be held by the 90th day after receipt of the complaint
or after issuance of the investigator’s report, whichever is later.227 The AJ may recommend,
but not require, mediation at any time before the initial agency decision. 228
At the hearing, the parties have the right to be represented by a person of their own
choosing or proceed without representation. Testimony is given under oath and witnesses are
subject to cross-examination. Formal rules of evidence do not apply, but OHA may use the
Federal Rules of Evidence (FRE) as a guide. A court reporter makes a transcript. The AJ may
order discovery on a showing that discovery is designed to produce evidence regarding a
matter that is unprivileged and relevant. The AJ may permit discovery by deposition on oral
examination or written questions; written interrogatories; production of documents or things;
permission to enter upon land or other property for inspection; and requests for admission.
The AJ may issue subpoenas for appearance of witnesses or production of documents or
physical evidence. The AJ has typical powers over evidence and other procedural matters.
“The [AJ] is prohibited, beginning with his or her appointment and until a final agency

224

See 10 C.F.R. § 708.1.
See id. at § 708.20.
226
See id. at §§ 708.22(b), 708.25(b).
227
See id. at § 708.26.
228
See id. at § 708.27.
225

48

decision is issued, from initiating or otherwise engaging in ex parte (private) discussions with
any party on the merits of the complaint.” 229
The employee has the burden of proof to establish by a preponderance of the evidence
that he or she made a disclosure, participated in a proceeding or refused to participate in
dangerous activity, and that such act was a contributing factor to alleged retaliatory acts by the
contractor. Once the employee meets this burden, the burden shifts to the contractor to prove
by clear and convincing evidence that it would have taken the same action without the
employee’s disclosure, participation, or refusal. 230
The AJ must issue an initial decision after receiving the transcript of the hearing (or if
later, after receiving post-hearing submissions). The initial decision contains appropriate
findings, conclusions, an order remedying retaliation (if retaliation is found), and the factual
basis for each finding. The AJ may rely on, but is not bound by, the investigator’s report. 231
A dissatisfied party may file a notice of appeal with the OHA Director within 30 days
after receiving the initial decision. Such an appeal is necessary to exhaust administrative
remedies. Within 15 days, the appellant must file a statement identifying the issues it wishes
the OHA Director to review. The Director may consider any source of information that will
advance the evaluation, provided that all parties have a right to respond to third party
submissions.232 The appeal decision must be issued within 60 days after the record is closed.
In whistleblower cases, a second level of appeal is provided. Any party can file a
petition for review by the Secretary of Energy within 30 days after receiving an appeal
decision from the OHA Director. The Secretary will reverse or revise an appeal decision by
the OHA Director only under “extraordinary circumstances.” 233
According to the 2014 Annual Report, whistleblowing cases are concluded in an
average of 87 days.
4. FOIA & Privacy Act requests
The regulations provide for written appeals to OHA of denials by DOE officials of
requests for documents under the Freedom of Information Act (FOIA) and for information
about an individual under the Privacy Act. 234 These appeals consist of written reviews without
an oral hearing and without opportunity for further review within the agency.

229

Id. at § 708.28(b)(9).
See id. at § 708.29.
231
See id. at § 708.30(c).
232
See id. at § 708.33(b)(3).
233
Id. at § 708.35(d).
234
See 10 C.F.R. §§ 1004.8, 1008.11 (2014).
230

49

The review is initiated based on a request filed by the private party whose request for
information or documents was denied. The 2014 Annual Report states that a majority of the
FOIA requests are from labor unions seeking to determine whether DOE contractors are
complying with federal wage and hour laws. The average case processing time is 12 days.
The most common type of case concerns the adequacy of DOE’s search in response to a FO IA
request.
These written reviews are not required to be conducted by any statute or other source of
law and are not evidentiary hearings. The reviews provide an opportunity for the requestor to
make arguments concerning the applicability of FOIA or the Privacy Acts and presumably to
introduce relevant factual material. The reviews do not seem constrained by an exclusive
record requirement.
5. Exceptions
The case type concerns the process for granting exceptions or waivers to generally
applicable DOE requirements, such as energy conservation standards. An exception is granted
where the application of a rule or order would constitute a gross inequity, serious hardship, or
unfair distribution of regulatory burdens. Presumably, these cases are governed by the generic
procedure regulations of Part 1003 and probably involve an exchange of written documents.
Again, exception proceedings would appear to be Type C adjudication.
6. Medical certificates
Under the regulations, OHA provides a review in the case of a determination that a
security officer at DOE or its contractors is medically unqualified for the job. The
determination can be challenged by an “independent review” by DOE’s Office of Health,
Safety and Security following which OHA provides a final review. 235 The regulations do not
explain what sort of procedure OHA should use in conducting its final appeal beyond an
examination of the file and the security officer’s written request that states “with specificity”
the basis for disagreement with the independent review.236 It can be inferred, therefore, that no
oral proceeding is available. This appears to be Type C adjudication as no evidentiary hearing
is provided.

235
236

See 10 C.F.R. § 1046.15(c)–(d) (2014).
See id.

50

7. Worker safety provisions
This case type concerns worker safety programs administered by DOE. The only
programs currently in force involve compensation for beryllium exposure to workers at DOE
contractors,237 and civil penalties for contractors who violate DOE worker safety standards. 238
OHA provides hearings under these programs under its generic procedural regulations.239
Neither the 2013 nor 2014 annual reports of OHA list any cases decided under the worker
safety provisions (although they might be included under the “others” category).

237

See id. at Part 850.
See id. at Part 851.
239
See id. at Part 1003.
238

51

APP. A-4: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION240
The primary work of the Equal Employment Opportunity Commission (EEOC) is
enforcement of statutes and regulations against private companies and state/local employers—
first through investigation and conciliation, and failing that, through federal-court litigation.
However, the EEOC serves an adjudicatory function in connection with complaints of
employment discrimination by federal employees of certain federal agencies. Covered agencies
include executive branch agencies, non-uniformed employees of the military, the United States
Postal Service, and a few others. The EEOC functions as a neutral arbiter between federal
employees and their employer agencies. In the ACUS database, this function is coded as
EEOCFEDS0002 at the hearing level and EEOCGOVT0001 at the appellate level.
The adjudication is Type B because the EEOC’s procedural regulations provide for an
evidentiary hearing. The statutes that require EEOC to enforce anti-discrimination principles
against the federal government do not require hearings but authorize the EEOC to adopt
procedural regulations.
There are five case types: (i) discrimination based on race, color, religion, sex, and
national origin; (ii) discrimination based on age for employees aged 40 or older; (iii)
discrimination based on disability; (iv) discrimination based on genetic information; and (v)
unequal pay based on gender.241
The process by which federal employees adjudicate discrimination claims is carefully
prescribed and is idiosyncratic.242 EEOC maintains a helpful website.243 An ACUS study about
EEOC federal sector adjudication evaluated the status and organizational placement of EEOC’s
administrative judges (AJs).244
The following discussion assumes that an “employee” works for a covered agency or was
rejected when applying for employment by a covered agency. The employee believes that he or
she is the victim of a prohibited form of discrimination. The discussion omits various exceptions
and other nuances which are unnecessary for present purposes.

240

Thanks to Chai Feldblum and Anne Torkington for assistance with this memorandum.
The procedures for all five case types are set forth in 29 C.F.R. Part 1614.
242
See generally ROBERT E. MCKNIGHT, JR., REPRESENTING PLAINTIFFS IN TITLE VII ACTIONS, ch. 14 (3d ed. &
2014 supp.).
243
See Federal Sector, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, http://eeoc.gov/federal/ (last visited
May 26, 2015).
244
See Admin. Conf. of the U.S., Equal Employment Opportunity Commission: Evaluating the Status and
Placement of Adjudicators in the Federal Sector Hearing Program (2014), available at https://www.acus.
gov/report/equal-employment-opportunity-commission-evaluating-status-and-placement-adjudicators-federal
[hereinafter ACUS EEOC study]. Much information from the ACUS study is incorporated in this appendix.
241

52

The employee must first consult an Equal Employment Opportunity (EEO) counselor at
the employing agency within 45 days from the day the alleged discrimination occurred or the
employee became aware of it. The counselor explains the employee’s rights and duties under
Title VII. Only claims discussed during the counseling period can be the basis for a complaint
and eventually litigated in court. The counselor offers the employee a choice to participate in
EEO counseling or in an ADR process (including mediation).245 If the dispute does not settle,
the counselor issues a notice of right to file a complaint. This notice triggers a 15-day period for
filing a formal complaint with the employing agency (normally on a standard form complaint
document).
The agency can either dismiss the complaint (for a variety of reasons) or conduct an
impartial investigation that must be completed within 180 days.246 ADR continues to be
available during the investigation. When the investigation is completed, the employing agency
issues a notice giving the complainant two choices: (i) request a hearing before an EEOC AJ; or
(ii) ask the agency to issue an immediate final decision.247
The regulations relating to AJ hearings248 provide that the agency can make an offer of
resolution prior to the hearing. If the complainant rejects it and the AJ decision provides a less
favorable result than the offer of resolution, the complainant can be denied recovery of attorney
fees. The AJ can order discovery from the employer or the employee agency (including
depositions, interrogatories, disclosure of documents, or requests for admission)249 but lacks
subpoena power over third parties (such as ex-employees of the employer agency). The hearing
is closed to the public. AJs do not apply the rules of evidence, but shall exclude irrelevant or
repetitious evidence. The AJ can impose sanctions for non-disclosure of evidence. Summary
judgment is possible as to an issue or to the entire case if there is no issue of material fact.250
The hearing is transcribed by a court reporter; the employing agency pays for a verbatim
transcript if needed. The exclusive record principle applies251 The AJ must furnish a decision
within 180 days after receiving the file. Neither the regulations nor the EEOC’s annual reports
discuss whether videoconferencing is used for hearings.
The AJ Handbook defines and prohibits AJs from deciding cases in which they have a
conflict of interest or are biased in favor of or against any party.252 It also prohibits ex parte

245

See 29 C.F.R. § 1614.105 (2014).
See id. at § 1614.106.
247
See id. at § 1614.108(f).
248
29 C.F.R. § 1614.109.
249
29 C.F.R. §1614.109(f)(1). The Handbook for Administrative Judges, Ch. 4 (2002), contains a detailed treatment
of discovery. https://www.eeoc.gov/federal/ajhandbook.cfm#hearing
250
29 C.F.R. § 1614.109(g)
251
29 C.F.R. § 1610(h); Handbook for Administrative Judges, Ch. 7H, supra note 115.
252
Handbook for Administrative Judges, Ch. 7, III.A. 1 and 2. The bias provision is noteworthy: “Bias: The
Administrative Judge should not participate in any conduct during the hearing that presents the appearance of or
demonstrates actual bias in favor of or against one of the parties. For example, it is improper for the Administrative
246

53

communications.253 There is no provision in the regulations or the Handbook for separation of
functions, but such provision would probably be superfluous since the EEOC functions as a
tribunal to decide disputes between employees and other federal agencies and does not have
investigating or prosecuting staff members in federal employment cases.
The AJ’s decision is submitted to the employer agency, which has 40 days to issue a final
decision. The final decision states whether the agency agrees with the AJ decision and will grant
any relief the judge ordered or whether it elects to reject or modify the AJ decision. If the
employing agency rejects or modifies the AJ's decision, it must file an administrative appeal with
the EEOC Office of Federal Operations (OFO) at the same time that it issues its final decision on
the complaint.
A complainant might disagree with the employing agency’s final decision in one of two
situations. First, the complainant requested a final agency decision instead of an AJ hearing.
Second, the complainant requested an AJ hearing but disagrees with the agency’s final order
issued after the AJ hearing. In either case, the complainant can appeal the agency’s final
decision to OFO within 30 days (or can proceed directly to court for a de novo trial without
further exhausting EEOC remedies).254
The EEOC’s decision on such appeals is made by appellate attorneys in OFO who review
the entire file. The appeal does not involve oral proceedings, only examination of the written
record and written statements or briefs.255 The EEOC appellate decision is de novo but no new
evidence is submitted. The substantial evidence rule applies to review of the AJ’s findings of
fact. Complainants or agencies can request reconsideration of the appeal decision.
A complaining employee (but not the employer agency) can seek de novo review in the
federal district court after exhausting this complaint process (and in some situations without
exhausting it, such when the complainant requested a final agency decision and does not appeal
that decision).256 Alternatively, if an employee is satisfied with the EEOC’s decision but the
employing agency has not complied with it, the employee can seek judicial enforcement. 257

Judge to eat lunch with a representative of one party during the course of the hearing. If a party or a witness accuses
the Administrative Judge of bias during the course of the hearing, the Administrative Judge should document the
allegations and the response on the record.”
253
Id. Ch. I. E.
254
If the complainant goes to court, the action is not an appeal from agency action. Rather, it is an original action,
subject to an exhaustion requirement. The AJ’s decision may be entered as evidence, though the courts give it no
deference.
255
See 29 C.F.R. § 1614.403 (providing for filing statements or briefs with OFO).
256
See ACUS EEOC study, supra note 244, at 14–15; Chandler v. Roudebush, 425 U.S. 840 (1976) (federal
employee claiming prohibited discrimination entitled to de novo judicial trial).
257
Id.

54

The EEOC currently employs approximately 110 AJs. In FY 2013, employees sought AJ
hearings in 7,077 cases. In FY 2013, 6,789 cases were resolved at the AJ level; the number of
cases pending at the end of the year was 8,313. In FY 2014, 8,086 cases were filed and 6,347
were resolved at the AJ level. Cases pending at end of FY 2014 were 10,363. The average
processing time for each case increased from 383 days in FY 2013 to 419 days in FY 2014.
Thus, the workload per AJ is about 65 cases per year or about 1.3 per week.258 Of the cases
heard by AJs in FY 2014, 126 found that discrimination had occurred.
The EEOC currently employs about 30 appeals attorneys. In FY 2014, OFO received
4,003 appeals from final agency decisions and resolved 3,767 of them. 4,541 were pending at
the end of FY 2014. By comparison, OFO received 4,244 such appeals in FY 2013. Thus, the
workload of the appeals attorneys is about 125 per year or about 2.5 per week.
A complainant can be represented by an attorney or a lay advocate (such as a union
representative).259 If the representative is an employee of the agency, the representative must be
given time during the workday to prepare the case. There is provision for the recovery of
attorney fees if the employee is the prevailing party, but only if the employee was represented by
an outside attorney.
Alternative dispute resolution (ADR) is extensively employed in the EEOC’s federal
employee process.260 EEOC encourages federal agencies to provide ADR in employment
discrimination cases including counseling (which is mandatory as explained above), negotiation,
mediation and settlement conferences at various points in the process, including before and after
the complaint is filed.
The AJs and appeals attorneys are subject to performance evaluation. They are evaluated
quarterly and annually. Their opinions are read by supervisors and by other judges. Judges or
appeals attorneys perceived to be doing a poor job are placed on a performance improvement
plan. There is pressure to meet annual quotas. The AJs are almost all paid at the GS 14 levels
(7% were GS 13s).261

The statistics in this paragraph and the following paragraph are drawn from the EEOC’s Annual Report on the
Federal Work Force, Part I (2014). http://www.eeoc.gov/federal/reports/fsp2014/upload/Final-FY-2014-AnnualReport-Part-I.pdf, pp. I-21 to I-25 (last visited Dec. 18, 2015).
259
See 29 C.F.R. §1614.605.
260
See id. at §§ 1614.102(b)(2), 105(b)(2), 603; U.S. Equal Employment Opportunity Commission Handbook for
Administrative Judges, ch. 3 (2002); Federal Sector Alternative Dispute Resolution Fact Sheet, U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, http://eeoc.gov/federal/adr/facts.cfm (last visited May 26, 2015).
261
See ACUS EEOC study, supra note 244, at 43.
258

55

APP. A-5: ENVIRONMENTAL PROTECTION AGENCY262
The EPA conducts a large volume of adjudication.263 Most adjudication involving EPA
enforcement (such as assessment of major civil penalties) is conducted as Type A
adjudication.264 Our database EPAOOALJ0001 contains 48 case types. EPA employs 4 ALJs
who preside over Type A adjudicatory hearings.265
Adjudication involving minor civil penalties and the issuance, modification, reissuance,
and revocation of various environmental permits is conducted as Type B adjudication and is the
subject of this memorandum.266 Generally, the applicable statutes relating to permitting provide
for a “public hearing,”267 language that would not trigger the APA’s Type A adjudication
provisions. EPA’s Type B adjudication (EPAOPRMT0006 in our database) is governed by
detailed regulations.268 Many of the permit programs are administered by state environmental
agencies; the regulations require that states provide procedures parallel to those used by the
EPA.269 After an initial decision in either Type A or Type B adjudication, the parties can appeal
to an internal EPA appellate body called the Environmental Appeals Board (EAB).270 The EAB
is the final EPA decisionmaker on administrative appeals under all major environmental statutes
the EPA administers.
The EPA originally treated permit cases as Type A adjudication (that is, subject to the
APA’s adjudication provisions), but transitioned to a non-APA system in 1980 and 2000.271 The
decision to conduct permitting hearings as Type B adjudication was upheld by the First Circuit in
the Dominion Energy case. Dominion Energy applied Chevron to uphold the EPA’s
interpretation of statutes using the term “public hearing.”272 The EPA treats permit cases under
the environmental statutes it administers as Type B proceedings.

262

Thanks to Kathie Stein, Jonathan Fleuchaus, and Randy Hill for assistance with this memo.
See generally Randolph L. Hill, et al., Internal Administrative Appeals of Governmental Decisions on the
Environment, in ENVIRONMENTAL DECISIONMAKING (forthcoming 2016) (hereinafter Hill); Anna L. Wolgast et al.,
The United States Environmental Adjudication Tribunal, 3 J. COURT INNOV. 185 (2010) (hereinafter Wolgast).
264
Regulations for EPA APA hearings are set forth in 40 C.F.R. Part 22. See Wolgast 188-90.
265
http://www2.epa.gov/aboutepa/about-office-administrative-law-judges-oalj
266
EPA treats termination of a permit before its expiration date as a Type A proceeding as it is akin to a sanction.
See 40 C.F.R. § 22.3; EAB Practice Manual 4, 36.
267
E.g. 33 U.S.C. § 1342(a), relating to NPDES permits
268
40 C.F.R. Part 124.
269
See 40 C.F.R. § 124.1
270
The EAB is described in 40 C.F.R. § 1.25(e) and discussed further below.
271
40 C.F.R. § 124.21.
272
Dominion Energy Brayton Point, LLC v Johnson, 443 F.3d 12 (1st Cir. 2006) (interpreting language under the
Clean Water Act).
263

56

A. Minor civil penalties
Smaller civil penalties under several statutes, including the Clean Water Act, are
adjudicated as Type B cases. The smaller civil penalties are referred to as Class I cases; larger
civil penalties are referred to as Class II.273
The regulations relating to Class I cases provide that the presiding officer is a regional
judicial officer (RJO). The RJO is an EPA attorney rather than an ALJ.274 The detailed
regulations covering penalty adjudication are virtually the same for Class I and Class II cases,
except that RJOs preside in Class I cases.275 Discovery in Class I cases is limited.276 The
regulations contain detailed provisions preventing ex parte communication277 and assuring
separation of functions in Class I cases.278 Provisions relating to bias are the same for RJOs and
ALJs.279 RJOs can exercise subpoena power and order pre-hearing conferences.280 The Federal
Rules of Evidence do not apply.281 ADR is encouraged.282

273

See 33 U.S.C. § 1319(g)(2)—Class I penalties under Clean Water Act cannot exceed $10,000 per violation with a
maximum of $25,000. The APA does not apply to adjudication of Class I penalties but the statute calls for an
evidentiary hearing in such cases. “Such hearing shall not be subject to section 554 or 556 of Title 5, but shall
provide a reasonable opportunity to be heard and to present evidence.” Class II penalties, which cannot exceed
$10,000 per day with a $125,000 maximum, are adjudicated under the APA. Similarly, see 42 U.S.C. § 300h2(c)(3) (Safe Drinking Water Act); 42 U.S.C. § 9609(a) (Superfund); 42 U.S.C. § 11045(b)(1) & (2) (Emergency
Preparedness). See generally William Funk, Close Enough for Government Work? Using Informal Procedures for
Imposing Administrative Penalties, 24 SETON HALL L. REV. 1 (1993) (ACUS consultant’s report).
274
40 C.F.R. § 22.51.
275
The excluded provisions are 40 CFR §§ 22.11, 22.16(c), 22.21(a), 22.29. These sections relate to intervention
and non-party briefs and interlocutory appeals.
276
The normal discovery rules do not apply in Class I proceedings except that discovery of the respondent’s
economic benefit from the violation and respondent’s ability to pay civil penalties is permitted. 40 CFR § 22.52,
22.19.
277
40 CFR § 22.8.
278
“[An RJO] shall not have performed prosecutorial or investigative functions in connection with any case in which
he serves as a Regional Judicial Officer. [An RJO] shall not knowingly preside over a case involving any party
concerning whom the [RJO] performed any functions of prosecution or investigation within the 2 years preceding
the commencement of the case. [An RJO] shall not prosecute enforcement cases and shall not be supervised by any
person who supervises the prosecution of enforcement cases, but may be supervised by the Regional Counsel.” 40
C.F.R. § 22.4(b).
279
40 CFR § 22.4(d).
280
40 C.F.R. § 22.4(c)(8), (9).
281
40 C.F.R. § 22.22(a).
282
40 C.F.R. § 22.18(b).

57

In the period 2010-2015, 26 Class I civil penalties were adjudicated by RJOs and 11 were
appealed to EAB. In that period, ALJs adjudicated 6 Class II penalties.283
B. Initial decisions to grant, deny, or terminate permits
Broadly speaking, the regulations create a notice-and-comment system for making initial
permitting decisions. The process is collaborative and institutional. This procedure applies both
to the issuance (or refusal to issue) a permit as well as to terminate a permit.284 The regional
administrator (or state authority) first issues a draft permit or draft denial of an application,
accompanied by a statement of basis or a fact sheet explaining the decision including any
conditions placed on the permit.285 Members of the public and local governments are notified of
the draft decision and are invited to submit comments.286
EPA will hold a public hearing whenever the Regional Director finds a significant degree
of public interest in a draft permit (or on the Director’s own motion).287 The regional
administrator designates a presiding officer for the hearing who is responsible for its scheduling
and orderly conduct.288 Any person may submit oral or written statements and data concerning
the draft permit. The public comment period on the draft permit is extended to the close of the
public hearing and may be extended further.289 A tape recording or written transcript of the
hearing shall be made available to the public.290 Persons must “raise all reasonably ascertainable
issues and submit all reasonably available arguments supporting their position by the close of the
public comment period (including any public hearing)” and supply all supporting materials
during that period.291
The regional director issues a “final permit decision” after the public comment period
concludes. The final permit decision contains a response to comments specifying which

283

Email from Kathie Stein to Michael Asimow, Feb. 23, 2016.
See 40 C.F.R. § 124.13. Some permit revocation proceedings are handled as Type A adjudication.
285
40 C.F.R. §§ 124.6 to .8.
286
40 C.F.R. § 124.10 and .11.
287
40 C.F.R. § 124.12(a)(1) to (3). See generally Sierra Pacific Industries. 16 EAB – (July 18, 2013), pp. 33-36
(available on EAB website). The Sierra Pacific opinion held that the Director’s decision to deny a public hearing
was clearly erroneous. It enumerated the factors to be considered in determining whether the “significant degree of
public interest” standard has been met. These include the materiality of issues in the request for a hearing, the
number of requests and comments, media coverage, significance of the issues, and demographic information such as
environmental justice concerns.
288
40 C.F.R. § 124.12(b). The presiding officer is ordinarily a regional judicial officer (RJO).
289
40 C.F.R. § 124.12(c).
290
40 C.F.R. § 124.12(d).
291
40 C.F.R. § 124.13.
284

58

provisions, if any, of the draft permit were changed in the final decision. It also includes the
reasons for the changes, and describes and responds to all significant comments on the draft
permit.292
C. Appeal to the EAB
The EAB hears appeals from EPA enforcement and permit decisions (but not decisions
made under state authority). The EAB was created in 1992 “to recognize the growing
importance of EPA adjudicatory proceedings as a mechanism for implementing and enforcing
the environmental laws and to ‘inspire confidence in the fairness of Agency adjudication.’”293 It
alleviated decisionmaking burdens on the EPA administrator.294 The EAB is independent of all
Agency components and answers only to the Administrator.295
When the EAB is the decisionmaker in an enforcement proceeding (whether Type A or
Type B), its members and their decisional advisers are prohibited from engaging in ex parte
discussion on the merits of the proceeding with Agency staff members who performed a
prosecutorial or investigative function in the proceeding (or a factually related proceeding) or
with any interested person outside EPA.296 The principle of exclusive record applies to the
EAB.297
Any person who filed comments on the draft permit or participated in a public hearing on
the draft permit may file a petition for review, including review of any conditions imposed by the
permit.298 Only issues raised by the petitioner or by others at the permit issuance stage will be
considered by the EAB.299 The EAB assigns a lead judge to the case who works with an
assigned staff attorney to determine whether the case is properly within the scope of the Board’s
jurisdiction, has been timely filed, and whether it should be dismissed on jurisdictional grounds
without an adjudication of the merits. For the vast majority of appeals, the case then proceeds to
briefing.300

292

40 C.F.R. § 124.17.
EAB Practice Manual, p. 1. See also 57 Fed. Reg. 5320 (Feb. 13, 1992) (amending 40 C.F.R. 1.25 to establish
the EAB). This preamble has a thorough discussion of the reasons for establishing the Board.
294
See Wolgast 186-87.
295
Ibid.
296
40 C.F.R. § 22.8.
297
40 C.F.R. § 124.18.
298
EAB permits electronic filing of documents. Practice Manual 11.
299
Practice Manual 43.
300
Wolgast 191.
293

59

The EAB may hold oral argument on its own initiative or at its discretion if requested.
The request must explain why oral argument should be permitted.301 Opinions are published in
Environmental Appeals Decisions and posted on the web.302
The EAB acts as an appellate body. It considers cases solely on the administrative
record and exercises a limited scope of review of the initial permit decision. A petition to the
EAB must demonstrate that each challenge to the permit decision is based on: (A) A finding of
fact or conclusion of law that is clearly erroneous, or (B) An exercise of discretion or an
important policy consideration that the Environmental Appeals Board should, in its discretion,
review.”304 The EAB’s review power is exercised sparingly because most permit issues should
be resolved at the regional level.305 However, the Board thoroughly considers the merits of the
issues presented to it, and will remand a permit if the region’s analysis is incomplete or its
rationale unclear, if the region failed to follow required procedures, or if the region failed to
address significant comments.
303

The EAB is composed of four Environmental Appeals Judges appointed by the EPA
Administrator.306 The Board sits in randomly-assigned panels of three and decides each matter
by a majority vote. Each EAB judge is a career member of the government’s Senior Executive
Service with significant experience in EPA permit and enforcement matters.307 An EAB judge
shall recuse him or herself from deciding a particular case if the member in previous
employment performed prosecutorial or investigative functions with respect to the case,
participated in the preparation or presentation of evidence in the case, or was otherwise
personally involved in the case.308
Statistics concerning the regional appeal process are not available. We understand that
the EAB has considered about 600 appeals over the last 10 years, about 2/3 of the cases
involving permit appeals and 1/3 penalties.309 As of Sept. 2015, of 1,058 final decisions issued

301

40 C.F.R. § 124.19. Video conference facilities are available so counsel can argue from a remote location.
Documents can be filed electronically. 40 C.F.R. §124.19(i)(ii); Wolgast 192
302
Wolgast 192.
303
40 C.F.R. § 124.19(a)(4)(ii); Hill 10.
304
40 C.F.R. § 124.19(a)(4)(i).
305
In Re Charles River Pollution Control District 16 E.A.D. 622, 624 (EAB 2015) (citing Consolidated Permit
Regulations, 45 Fed. Reg. 33290, 33412 (May 19, 1980).
306
The Board is assisted by eight attorneys who serve as counsel to the Board and three administrative professionals.
Wolgast 191; Email from EAB Judge Kathie Stein to Michael Asimow.
307
Hill 2.
308
40 C.F.R. § 1.25(e). Board members are also disqualified by reason of financial bias. Wolgast 191.
309
Email from EAB Judge Kathie Stein to Michael Asimow.

60

by EAB (including Type A, Type B, and CERCLA reimbursement cases), approximately 91%
were not judicially reviewed. Of the 9% of cases in which review was sought, 2% were settled
on appeal or voluntarily dismissed, 6% were won by EPA, and less than 1% were reversed. 310
The EAB encourages ADR and offers the services of an EAB judge acting as a neutral
evaluator and mediator. Video-conferencing equipment is available for use in ADR
proceedings.311
The EAB also considers petitions for reimbursement of reasonable costs incurred by
persons who have complied with orders issued by EPA or another federal agency under
CERCLA to abate actual or threatened releases of hazardous substances. The statute provides
for a reimbursement petition to the President.312 The President delegated his authority to decide
claims for reimbursement to the EPA Administrator313 who re-delegated that authority to the
EAB.314 The Board is also authorized, as appropriate, to authorize payment of such claims.
The Board has established procedures for submission and review of reimbursement
petitions. Under these procedures, petitioners must demonstrate that they were not liable for
response costs or that EPA’s selection of the ordered response action was arbitrary and
capricious. If the petition raises fact issues, EAB can designate an EPA employee who had no
prior involvement in the matter to serve as a hearing officer and issue a recommended decision.
EAB may also decide to hold oral argument. If reimbursement is granted, there is a further
proceeding to determine the amount. Reimbursement decisions are reviewable by a de novo
proceeding in federal court.

310

Id.
EAB FAQ, item 40; EAB ADR Program Information Sheet.
312
CERCLA § 106, 42 U.S.C. § 9606(a), (b)(2).
313
Exec. Order 12,580, 52 Fed. Reg. 2923 (Jan. 29, 1987).
314
EPA Deleg. of Auth. 14-27, Petitions for Reimbursement (June 27, 2000).
311

61

APP. A-6: EXECUTIVE OFFICE FOR IMMIGRATION REVIEW315
This Appendix discusses the adjudicatory process in immigration cases, including
disputes relating to admissibility, removal (formerly referred to as deportation), and asylum.316
The Executive Office of Immigration Review (EOIR), a division of the Department of Justice, is
responsible for conducting adjudicatory hearings and administrative appeals in immigration
cases.317 This Appendix considers adjudicatory evidentiary hearings required by law, but
excludes informal adjudication that precedes evidentiary hearings in immigration cases or
entirely supplants them.318
Adjudicatory hearings are conducted by Immigration Courts (ICs). Immigration judges
(IJs) preside at IC hearings. IJs are supervised by the Chief Immigration Judge. Decisions of IJs
are appealed to the Board of Immigration Appeals (BIA). This administrative process is
DOJXEOIR0001 in the ACUS database which lists 11 case types.
A. Immigration Court
There are presently about 294 IJs in 58 ICs, although EOIR is trying to hire more.319 Each
IJ on average currently handles more than 1800 matters per year, although per-judge caseloads
range from less than 1,000 to over 3,000.320 IJs are subject to performance evaluation.
Respondents (that is, non-citizens placed in removal proceedings) may face waiting times
of several years. In FY 2015, the IC received 284,667 cases and completed 262,293.321 There

315

Thanks to Dana Leigh Marks, Russell Wheeler, and Jennifer Chacon for assistance with this Appendix.
For a summary of the removal process, see Lenni Benson & Russell Wheeler, Enhancing Quality and Timeliness
in Immigration Removal Adjudications 9-12 (ACUS 2012) (hereinafter Benson & Wheeler). Many immigration
cases are criminal prosecutions, but these are not discussed in this memo.
317
See 8 C.F.R. § 1003.0. EOIR also conducts hearings through its Office of the Chief Administrative Hearing
Officer (OCAHO) in cases involving employer sanctions, anti-discrimination provisions and document fraud. These
are Type A hearings and are not discussed in this Appendix.
318
Numerous adjudicatory decisions by immigration personnel do not trigger adjudicatory hearings are thus should
be considered Type C adjudication. For example, there is no right to an adjudicatory hearing in connection with
expedited removal by a DHS officer at ports of entry of an alien who makes no claim to refugee status. 8 U.S.C. §
1225(b)(1)(A)(i). See Jennifer Lee Koh, Removal in the Shadows of Immigration Courts, 90 SO. CALIF. L. REV. –
(2017) (vast majority of removal orders are not reviewable by Immigration Court).
319
See generally Benson & Wheeler 6-7, for discussion of the legal status of IJs. EOIR is severely underfunded, a
reality that constrains the hiring of additional IJs or providing them with additional staff support. Id. 31-32.
Additional appropriations allocated in FY 2016 have permitted hiring of additional personnel. Some IJs have
administrative responsibilities and thus do not carry full caseloads.
320
For analysis of IJ workloads, see Benson & Wheeler 24-30. These are much heavier caseloads than in other
federal Type B adjudications. Id. at 27.
321
EOIR, FY 2015 Statistics Yearbook, pp. A7–A8.
316

62

were 457,106 pending cases at the end of FY 2015.322 This number has increased steadily from
262,681 cases at the end of FY 2010. Because many respondents are held in detention, the
lengthy waiting times are a matter of serious concern, although EOIR does prioritize cases of
respondents in detention.
Detailed regulations (supplemented by a practice manual) provide the rules of practice at
IC proceedings.323 IC jurisdiction commences when the Department of Homeland Security
(DHS) files charging documents (often called the “Notice to Appear”) with an IC and serves
them on the respondent.324 An attorney represents DHS. Generally, the first encounter between
respondents and an IC is a “master calendar” proceeding at which an IJ explains the respondent’s
rights, notifies the respondent of the right to retained counsel, and schedules further
proceedings.325
The respondent may be represented by an attorney (at no expense to the government)
who is eligible to practice in any state and is registered with EOIR.326 EOIR permits
representatives to make a limited appearance (for example appearing in a bond or motions
proceeding without having to represent the respondent in other proceedings). EOIR provides
respondents with lists of pro bono providers.
EOIR also permits lay representation in IC proceedings according to detailed
regulations.327 Permitted lay representatives include law students,328 law graduates not yet

322

EOIR, FY 2015 Statistics Yearbook, p. W1. As of December, 2015, the backlog was 457,106 cases. Statement
of Juan P. Osuna, Director of EOIR, before the House of Representatives Committee on the Judiciary, “Oversight of
the Executive Office of Immigration Review,” Dec. 3, 2015.
323
See 8 C.F.R. §§ 1003.12 et seq., 1240.1 et seq.; Immigration Court Practice Manual (hereinafter Practice
Manual).
324
See 8 C.F.R. §§ 1003.13 to 15; Practice Manual ¶ 4.2.
325
Benson & Wheeler 14-15.
326
8 C.F.R. § 1003.16. According to EOIR, approximately 55% of respondents before the IC are represented. See
FY 2014 Statistics Yearbook, p. F1. However, Eagly & Shafer conclude that only 37% of respondents had counsel
in removal proceedings (using as a sample all cases decided between 2007 and 2012) and only 45% of that number
had representation at all IC hearings. Less than 2% of respondents facing removal secured pro bono representation
from nonprofits or law school clinics. Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in
Immigration Court, 164 U. PENN. L. REV [ms. p. 6-9] (2016). The discrepancy arises from the fact that respondents
with counsel are involved in more proceedings than unrepresented respondents; consequently, counting only
proceedings inflates the percentage of parties who are represented. Only about 14% of respondents held in detention
were represented. Success rates of respondents represented by counsel were much better than for unrepresented
parties. In addition, Eagly & Shafer report that the presence of counsel produced substantial efficiency gains. See
also Benson & Wheeler 56 (reporting that almost all IJs believe that the presence of attorneys enhances efficiency
and makes their jobs easier); Ryo 30-32 (represented detainees have much better results in bond hearings than
unrepresented detainees).
327
8 C.F.R. § 1292.1 et seq.; Practice Manual, ch. 2.
328
The student must file a statement that he or she is participating under the direct supervision of a faculty member,
licensed attorney, or accredited representative, in a legal aid program or clinic conducted by the law school or nonprofit organization and is appearing without remuneration from the respondent.

63

admitted to the bar,329 reputable individuals with a pre-existing relationship to the person
represented,330 accredited representatives,331 and an accredited official of a foreign government to
which the respondent owes allegiance. Both attorney and lay representatives practicing before
the IC or BIA are subject to disciplinary sanctions.332 Non-lawyer immigration specialists, visa
consultants, and “notaries” are not authorized to represent parties before the IC.333
The statute and regulations make no provision for ADR. However, an IJ may schedule a
pre-hearing conference to narrow issues, obtain stipulations, exchange information voluntarily,
and otherwise to simplify and organize the proceeding.334 The ACUS study of IC procedures
indicates that IJs used various techniques to narrow the issues, but that prehearing conferences
are not routine (largely because of caseload pressures). The study recommends better utilization
of various devices to narrow the issues and improve pre-hearing document sharing.335 It also
recommended that the ICs employ pro se law clerks to assist self-represented parties; it has not
done so but has set up helpdesks in a few ICs.
The regulations and the practice manual relating to the IC and the BIA do not require
separation of functions or prohibit ex parte contacts. However, the “Ethics and Professionalism
Guide For Immigration Judges” (2011) prohibits ex parte contacts (unless expressly authorized
by law).336 This Guide superseded an earlier code of conduct for both IJs and BIA (2007) that
prohibited ex parte communications from outsiders. It permitted ex parte contacts with DOJ
employees unless those employees were witnesses or counsel in the case.337 Neither the

329

The law graduate must file a statement that he or she is appearing under the supervision of a licensed attorney or
accredited representative without remuneration. In the case of law students or graduates, the IJ (or other official
before whom he or she wishes to appear) has discretion not to permit such appearance or to require the presence of
the supervising faculty member, attorney, or accredited representative.
330
Practice Manual ¶2.9. The relationship may be as a relative, neighbor, clergyman, business associate or personal
friend. The pre-existing relationship requirement may be waived in cases where adequate representation would not
otherwise be available. The IC must give permission for this representation. Such permission shall not be granted
with respect to any individual who regularly engages in immigration and naturalization practice or preparation or
holds himself out to the public as qualified to do so.
331
Accredited representatives work for non-profit charitable organizations recognized by the Board that make only
nominal charges for representation. Such representatives must be of good moral character and be accredited by the
Board. 8 C.F.R. § 1292.2; Practice Manual ¶ 2.4.
332
8 C.F.R. § 1292.3.
333
Practice Manual ¶2.7.
334
8 C.F.R. § 1003.21(a); Practice Manual ¶4.18. The IJ may also order any party to file a pre-hearing statement of
position that may include stipulated facts, a statement that the parties have communicated in good faith to stipulate
to the fullest extent possible, a list of proposed witnesses and what they will establish, a list of and copies of
exhibits, the time required to present the case, and a statement of unresolved issues. The IJ may also require both
parties to make any evidentiary objections regarding matters in the pre-hearing statement.
335
Benson & Wheeler 68-74.
336
http://www.justice.gov/eoir/immigration-judge-conduct-and-professionalism (Rule XXXII) (2011).
337
72 Fed. Reg, 35510 (2007), Canon XV (IJs), Canon XV (BIA members). Stephen H. Legomsky, Restructuring
Immigration Adjudication, 59 Duke L.J. 1635, 1674 (2010) (hereafter Legomsky). These provisions achieved some
separation of functions but did not apparently prohibit ex parte communications from staff members who had served
as investigators in the case (but were not counsel or witnesses).

64

regulations nor the practice manual contains provisions on bias; however, the Guide requires IJs
to be impartial and avoid the appearance of prejudice or bias and a memorandum outlines
procedures for issuing recusal orders in immigration proceedings. 338
IJs have subpoena power and can order the taking of depositions of witnesses who are not
available to testify at the hearing.339
IC hearings are generally conducted in person or through video conference.340 Video
conference hearings are generally used to hear cases of respondents in detention341 and are quite
controversial.342
The IC provides interpreters for the native language of the respondent.343 It has
embarked on a program to provide full and complete interpretation to all respondents in court
proceedings but has had some difficulties in doing so.344
At IC hearings (often referred to as individual calendar or merits hearings), respondents
are provided with a reasonable opportunity to examine the evidence against them and to present
evidence on their behalf and to cross-examine witnesses.345 The respondent cannot examine
national security information proffered by the government in opposition to admission or
discretionary relief.346 In absentia hearings are conducted if the respondent fails to appear.347 IC
hearings are generally open to the public.348

338

Rules V and IX; Operating Polices and Procedure Memorandum 05-02 (March 21, 2005).
8 C.F.R. §1003.35; Practice Manual ¶4.20.
340
Telephone hearings are also possible but only with consent of the respondent. 8 U.S.C. § 1229(b)(2)(B); 8 C.F.R.
§ 1003.2(c); IC Practice Manual Chapter 4.6, 4.7. Credible fear determinations may be reviewed by the IJ through
telephone conferences without consent of the respondent. 8 C.F.R. §1003.25(c); IC Practice Manual Ch.4.7, 7.
341
In 2012, IJs conducted about 134,000 hearings by video conference. See Ingrid V. Eagly, Remote Adjudication in
Immigration, 109 NW. U. L. REV. 933 (2015).
342
The ACUS study canvassed the arguments on both sides of the video conference issue and made various
suggestions for improving video hearings, assuming that video conferencing is here to stay. Benson & Wheeler 89100. EOIR contends that video conference is a “force multiplier” that improves efficiency, lowers transportation
costs, strengthens court safety, expands access to counsel, and reduces the time immigrants spend in detention.
Critics of televised adjudication believe that the practice prejudices respondents as opposed to those who receive
face-to-face hearings. Eagly concludes that IJs do not appear to be biased against respondents whose cases are heard
by video conference rather than in person. However, she contends that video conferencing depresses the engagement
of respondents with the adversarial process, making them less likely to retain counsel or request a hearing or apply
for discretionary relief.
343
Practice Manual 4.11.
344
https://www.linkedin.com/pulse/immigration-courts-could-lose-third-interpreters-jim-harvill?articleId=
6057577953682866176 (discussing potential pay cuts for interpreters).
345
See Practice Manual ¶4.16 for discussion of IC hearings.
346
8 U.S.C. § 1229a(b)(4).
347
8 C.F.R. § 1003.26.
348
8 C.F.R. § 1003.27(a); Practice Manual ¶4.9. However, hearings may be closed to protect witnesses, parties, or
the public interest. Hearings shall be closed in cases of spousal or child abuse, and in national security cases. 8
C.F.R. §§ 1003.27(b), (c), (d); 1246.
339

65

IJ decisions shall be based only on evidence produced at the hearing.349 An applicant for
admission has the burden of establishing admissibility “clearly and beyond doubt.” Respondents
have the burden to establish by clear and convincing evidence that they are lawfully present in
the U.S. pursuant to a prior admission. In contrast, DHS has the burden to establish removability
by clear and convincing evidence in the case of a respondent who has been admitted to the U.S.
No decision on removability is valid unless based on reasonable, substantial, and probative
evidence.350 A respondent has the burden of proof (presumably by a preponderance of the
evidence) to establish eligibility for relief from removal and has the burden to establish that he or
she merits a favorable exercise of discretion.351
Many IC decisions require an assessment of witness credibility. The statute allows the IJ
to consider a variety of circumstances in assessing credibility including demeanor and
consistency of the statements.352
The IJ’s decision may be in writing or oral. If oral, a memorandum summarizing the oral
decision shall be served on the parties.353 A respondent may file one motion to reconsider an IJ
decision that the respondent is removable; the motion must specify the errors of law or fact in the
IJ order. The respondent may also file one motion to reopen proceedings based on newly
discovered facts.354 An IJ’s decision is final unless the respondent or the government appeals to
the BIA.355
B. Board of Immigration Appeals
The BIA is authorized to consist of 17 members headed by a Chair.356 The EOIR
director can appoint temporary Board members for a term not exceeding six months.
Temporary members are present or retired IJs, retired BIA members, or senior EOIR

349

8 U.S.C. § 1229a(c)(1)(A).
8 U.S.C. § 1229a(c)(3).
351
8 U.S.C. § 1229a(c)(4).
352
The IJ may base a credibility determination on the demeanor, candor, or responsiveness of the witness, the
inherent plausibility of the account, the consistency between witness’ oral and written statements (considering the
circumstances under which the statements were made), the internal consistency of such statements with other
evidence of record, and any inaccuracies or falsehoods in such statements whether or not they go to the heart of the
applicant’s claim, or any other relevant factor. There is no presumption of credibility, but if no adverse credibility
determination is explicitly made, the witness shall have a rebuttable presumption of credibility on appeal. 8 U.S.C.
§ 1229a(c)(4)(C).
353
8 C.F.R. § 1003.37.
354
8 U.S.C. § 1229a(c)(6) and (7). See 8 C.F.R. §1003.23 for treatment of motions to reconsider and reopen.
355
8 C.F.R. § 1003.39.
356
8 C.F.R. § 1003.1(a)(1), (2); BIA Practice Manual. The Chair supervises and issues operating instructions for the
Board but has no authority to direct the result of an adjudication assigned to another Board member.
350

66

attorneys.357 The BIA hears appeals of decisions by IJs or DHS.358 Cases can also be
certified to the BIA or the BIA can certify a case to the Attorney General.359
The Chairman divides the Board into three-member panels and designates a presiding
member of each panel. Panels decide cases by majority vote.360 The majority of cases at the
Board are adjudicated by a single Board Member. In general, a single Board Member decides
the case unless the case falls into one of six categories that require a decision by a panel of three
Board Members. These categories are:







the need to settle inconsistencies among the rulings of different immigration judges
the need to establish a precedent construing the meaning of laws, regulations, or
procedures
the need to review a decision by an Immigration Judge or DHS that is not in
conformity with the law or with applicable precedents
the need to resolve a case or controversy of major national import
the need to review a clearly erroneous factual determination by an Immigration
Judge
the need to reverse the decision of an Immigration Judge or DHS in a final order,
other than nondiscretionary dispositions. 361

BIA does not engage in de novo review of fact findings. It is permitted to overturn IJ
findings (including findings relating to credibility) only if they are clearly erroneous. The Board
decides questions of law, discretion and judgment de novo. If further fact-finding is needed, the
BIA remands the case to the IJ.
Board decisions are rendered either by a single Board member, by a panel of three, or in
rare instances by the entire Board. Single member BIA members frequently make decisions
without opinions, adopting the IJ decision without further explanation, or writing brief opinions
of a few sentences.362 Oral argument can be scheduled at the discretion of a three-judge panel
but no oral argument is allowed in a case assigned to a single Board member.363
In FY 2015, BIA received 229,313 appeals and competed 34,244.364 Pending cases at
the end of FY 2014 totaled 16,945. which is considerably less than the pending case total of

357

8 C.F.R. § 1003(a)(4). In Sept. 2016, there were 15 BIA members and 4 temporary members.
For list of decisions that can be appealed to BIA, see 8 C.F.R. §1003.1(b); BIA Practice Manual Chapter 1.4.
359
8 C.F.R. §§ 1003.1(c), 1(h).
360
8 C.F.R. § 1003(a)(3).
361
8 C.F.R. § 1003(e)(6); BIA Practice Manual Chapter 1.3.
362
8 C.F.R. § 1003(e)(4). Legomsky 1657.
363
8 C.F.R. § 1003(e)(7). Oral argument is extremely rare—perhaps no more than three per year. Benson &
Wheeler 21.
364
EOIR FY 2014 Statistics Yearbook, p. Q1.
358

67

30,133 at the end of FY 2010.365 The respondent but not the government) can seek judicial
review of BIA decisions in the Court of Appeals; such cases are a significant part of the caseload
of the courts of appeal.366

365

Id. p. W3. For further analysis of the types of matters heard by BIA, see Benson & Wheeler 21-22.
In FY 2015, immigration appeals accounted for 84% of administrative agency appeals and constituted the largest
category of administrative agency appeals in each circuit except the DC Circuit. There was a 10% reduction of
immigration appeals in FHY 2015. Administrative Office of US Courts. http://www.uscourts.gov/statisticsreports/federal-judicial-caseload-statistics-2015
366

68

APP. A-7: MERIT SYSTEMS PROTECTION BOARD
The Merit Systems Protection Board (MSPB) is MSPBAPPJ0001 in the ACUS database.
It functions as an independent tribunal, adjudicating appeals taken by federal employees who
complain of adverse job action by their employer agencies. The most frequent cases heard by
MSPB involve removal and other disciplinary action taken by federal agencies against their civil
service employees. In addition, MSPB adjudicates cases concerning veterans employed by the
federal government as well as retirement plan issues, whistleblower disputes and numerous other
schemes involving federal employment. The ACUS database lists 13 case types.367 For the most
part, the same procedural regulations apply to all of them.368
MSPB primarily conducts Type B adjudication. However, in several classes of cases
(involving complaints by federal ALJs, Hatch Act cases, removal of Senior Executive Service
employees and complaints by employees of the MSPB itself) it conducts Type A adjudication. 369
In FY 2014, MSPB resolved 17,466 appeal cases. This figure includes 16,354 cases
resolved at the AJ level, 11 initial decisions by ALJs, and 1101 final decisions issued by the
three-member Board after a petition for review of an AJ decision.370 Of the 16,354 cases
resolved at the AJ level, about 33% were dismissed (for example, because MSPB lacked
jurisdiction of the case). Of the balance, about 10% were settled and 90% were adjudicated. Of
the cases adjudicated, about 98% affirmed the agency decision.
The number of initial AJ decisions in FY 2014 was about double the normal MSPB
workload. The increase resulted from a surge of 32,400 appeals filed during FY 2013 from
furlough decisions forced by budget sequestration. Of AJ initial decisions in FY 2014, 11,109
resulted from furlough appeals. This should not be a recurring problem. Excluding furlough
cases, about 42% of initial decisions resulted from adverse agency personnel actions and the
balance resulted from the numerous other federal employment statutes administered by MSPB.
In comparison, in FY 2013, AJs issued 6340 initial decisions and the Board issued 952
final decisions.371 In FY 2013, MSPB employed 74 AJs.

367

See 5 C.F.R. § 1201.2
5 C.F.R. § 1201 et seq.
369
These cases are heard by ALJs at other agencies including the FTC and the Coast Guard. MSPB 2013 Annual
Report, p. 4.
370
A recent statute involving removal of Senior Executive Service employees at the VA provided for review of
such decisions by MSPB AJs but without review by MSPB. 38 U.S.C. § 713(e)(2). The DOJ has announced it will
not defend a challenge to the constitutionality of this provision.
https://www.documentcloud.org/documents/2852384-DOJHelmanlet.html.
371
MSPB 2014 Annual Report, p. 9, 18. MSPB 2013 Annual Report, p. 7, 29.
368

69

MSPB conducts formal evidentiary hearings. Most such hearings are required by
statute
but some of them are required by regulations.373 With the exception of its Type A
hearings (not discussed in this memorandum), the presiding officers are MSPB administrative
judges (AJs). AJ decisions are subject to review by the Board.
372

The procedural regulations provide that an employer agency that takes action against its
employee must furnish the employee with a notice that spells out the employee’s right to appeal
to MSPB.374 The employee then has 30 days to file an appeal with one of the Board’s regional
offices. The regulations provide for class as well as individual appeals.375 Electronic filing of
documents is permitted and encouraged.376
An employee is entitled to be represented by any person the employee chooses.377 The
MSPB Judge’s Handbook378 requires special efforts to accommodate pro se appellants such as an
early status conference to explain what is required. The Handbook provides that filings by pro se
appellants should not be rejected on technical grounds and such appellants should receive great
latitude in questioning witnesses.
MSPB strongly encourages settlement and mediation. The AJ can initiate settlement
activity at any time.379 The AJ will suspend a pending hearing for 30 days in order to allow the
parties to seek mediation through MSPB’s Mediation Appeals Program (MAP). 380 MAP offers
the services of certified mediators as an alternative to the formal appeals processes set forth in
the agency's regulations. Participation in MAP is free and confidential. The MAP website
states that, since the program's inception in FY 2005, approximately 60% of all mediated cases
have settled by the conclusion of the MAP process. Surveys of MAP participants note that 95%
of such participants would use the program again.

372

By statute, an employee subject to various adverse personnel actions may submit an appeal to the MSPB and
shall have the right to “a hearing for which a transcript will be kept…” 5 U.S.C. § 7701(a)(1). The statute makes
clear that the hearing can be conducted by either by an ALJ or by an AJ employed by the Board. In case of a
removal, the Board employee shall be “experienced in hearing appeals.” 5 U.S.C. § 7701(b).
373
For example, a regulation relating to claims that OPM has an unfair employment practice (such as an irrationally
discriminatory examination or job qualification) provides for an “appeal” to MSPB. 5 C.F.R. § 104(a). In turn,
MSPB regulations provide for an evidentiary hearing in this class of cases. 5 C.F.R. § 1201.3(a)(7).
374
5 C.F.R. § 1201.21 to .24.
375
5 C.F.R. § 1201.27. See guidelines for class actions in the Judge’s Handbook, ch. 3, ¶4.
376
5 C.F.R. § 1201.14.
377
5 C.F.R. § 1201.31.
378
Judge’s Handbook, Ch. 2, ¶7. The handbook is available on line.
379
5 C.F.R. § 1201.41(c). See Judge’s Handbook ch. 11.
380
5 C.F.R. § 1201.28(d). See http://www.mspb.gov/appeals/mediationappeals.htm.

70

MSPB judges can be disqualified for “personal bias.”381 A party asserting such bias must
file a withdrawal motion as soon as the party has reason to believe there is a basis for
disqualification. If the judge denies the motion, the party requesting withdrawal may request
certification of the issue to the Board as an interlocutory appeal.
The regulations prohibit written or oral ex parte communications between an interested
party and a decision-making official (DMO). Interested parties are the parties to the case and
their representatives or any other person whose interest might be affected by the decision. A
DMO is any judge or employee designated to hear and decide cases. Prohibited communications
are those that involve the merits of the case or that violate rules requiring submissions to be in
writing. Accordingly, it is not a prohibited ex parte communication if a party asks about such
matters as the status of a case, when it will be heard, or methods of submitting evidence to the
Board. 382 Ex parte communications are prohibited from the time the persons involved know that
the Board may consider the matter until the time the board has issued a final decision on the
matter.383
There are no specific provisions for separation of functions, but such provisions seem
unnecessary since MSPB is an independent tribunal that has no prosecuting or investigating staff
members.
The MSPB has subpoena power.384 In addition, the regulations provide for all the
methods of discovery contained in the Federal Rules of Civil Procedure (FRCP), including
depositions.385 The FRCP provisions on discovery are instructive but not controlling. A
prehearing conference or a status conference is held in nearly every case.386
MSPB regulations also provide for intervention as of right by the Office of Personnel
Management and Office of Special Counsel and by interested parties at the AJ’s discretion.387
The AJ can certify important issues of law and policy to the Board for an interim appeal. 388
The normal procedure calls for a trial-type adversarial hearing with oral witness
testimony and cross examination.389 On most issues, the agency has the burden to establish the

5 C.F.R. § 1201.42(b). The grounds for disqualification are expanded in the Judge’s Handbook to include “A
party, witness, or representative is a friend or relative of, or has had a close professional relationship with the AJ; or
personal bias or prejudice of the AJ.” Ch. 3, ¶2.
382
5 C.F.R. § 1201.101. See Judge’s Handbook ch. 14.
383
5 C.F.R. § 1201.102.
384
5 C.F.R. § 1201.81; Judge’s Handbook ch. 7.
385
5 C.F.R. § 1201.71 to -75.
386
Judge’s Handbook, ch. 9.
387
5 C.F.R. § 1201.34. Judge’s Handbook ch. 3, ¶5.
388
5 C.F.R. § 1201.91 - .93. Judge’s Handbook ch. 6. ¶2.
389
5 C.F.R. § 1201.51 - .58. This provision is not applicable to written (document-only) hearings or to and oral
arguments.
381

71

validity of its action by a preponderance of the evidence.390 The AJ can take official notice of
matters of common knowledge or matters that can be verified.391
The regulations do not state whether the AJ should follow the Federal Rules of Evidence,
noting only that “Any evidence and testimony that is offered in the hearing and excluded by the
judge will be described, and that description will be made a part of the record.”392
Hearings are normally open to the public but may be closed by the AJ where necessary to
protect the appellant’s privacy or for other reasons such as protection of trade secrets or national
security.393
MSPB's regulations do not address the use of video or telephonic hearings. However,
the Board has held that AJ’s can order video conference in any case, even if a party objects. 394
The AJ must prepare an initial decision including provision for interim relief, if any.395
The losing party has 35 days to file a petition for review by MSPB.396 MSPB has discretion as to
whether to accept the petition for review. It may but need not provide for oral argument.397 Its
final decisions may be designated as precedential.

390

5 C.F.R. §1201.56
5 C.F.R. § 1201.64. The parties may be given an opportunity to object to the taking of official notice. The taking
of official notice of any fact satisfies a party's burden of proving that fact.
392
5 C.F.R. § 1201.61. The Judge’s Handbook is also silent on this issue, but cautions against receiving irrelevant
evidence. Ch. 10, ¶14.
393
5 C.F.R. § 1201.52(a); Judge’s Handbook ch. 10, ¶3.
394
Judge’s Handbook, ch. 10, ¶6. The Handbook also notes that, when facts are undisputed and sole purpose of
hearings is to provide opportunity for oral argument, hearings by telephone may be appropriate.
395
5 C.F.R. § 1201.111. The Judge’s Handbook provides detailed guidelines for the contents of the initial decision.
Ch. 12.
396
5 C.F.R. § 1201.113.
397
5 C.F.R. § 1201.117.
391

72

APP. A-8: UNITED STATES PATENT AND TRADEMARK OFFICE

The United States Patent and Trademark Office (PTO) is located in the Department of
Commerce.398 This memo covers the PTO’s adjudication of patent and trademark disputes.
A. Patent Trial and Appeal Board (PTAB)
The Patent Trial and Appeal Board (PTAB)399 carries out the USPTO’s adjudicatory
functions related to patents. In the ACUS database PTAB is USDCPATE0021. PTAB consists
of the PTO Director and Deputy Director, the Commissioner for Patents, the Commissioner for
Trademarks, and administrative patent judges (APJs). Decisions of PTAB are not further
reviewable at the administrative level but are subject to judicial review.
APJs shall be “persons of competent legal knowledge and scientific ability who are
appointed by the Secretary of Commerce in consultation with the Director.”400 There are about
225 APJs,401 earning $137,200 to $168,700 per year. The APJs are highly experienced; most of
them are former private patent attorneys.402 Most of the APJs are located at the PTAB office in
Alexandria, Va., but some are located at one of the four satellite office of the Board.
PTAB has two different functions—appeals and trials. It hears appeals by patent
applicants of adverse decisions by patent examiners and from ex parte re-examination
decisions.403 It conducts trials in cases of disputes between patent holders and third parties.404 A
three-member APJ panel decides each appeal or trial.405
The statute does not specifically provide for evidentiary hearings. In context, however,
the statutory provisions calling for “appeals,” “reviews,” and “proceedings,” require evidentiary
hearings, although as discussed below these hearings are based entirely on written evidence.
Therefore, PTAB conducts Type B adjudication.

398

35 U.S.C. § 1.
PTAB is the successor to the Board of Patent Appeals and Interferences. See America Invents Act, Pub. L. 11229, 125 Stat. 284 (2011).
400
35 U.S.C. § 6(a).
401
Michael Wagner, An Introduction to Administrative Patent Judges at the Patent Trial and Appeal Board,
FEDERAL LAWYER (March 2015, p. 36) (hereinafter Wagner). Wagner says that the USPTO plans to add an
additional 60 judges.
402
Id.
403
35 U.S.C. § 6(b).
404
Id.
405
35 U.S.C. § 6(c). The judges are connected by video conference facilities so they may be located at different
offices of the Board. Wagner 36.
399

73

The regulations permit parties to be represented by a registered patent attorney or a
registered non-attorney patent agent.406 In appeal cases, the Board may allow the appearance of
counsel who is other than a registered representative, but not by an unregistered lay
representative.407 In trial cases, parties may represent themselves but, if represented by counsel,
must appoint both a lead and backup counsel, both of whom must be registered representatives.
The Board may allow a backup counsel who is not a registered practitioner “upon showing that
counsel is an experienced litigating attorney and has an established familiarity with the subject
matter at issue in the proceeding.”408 In either case, counsel can be disqualified and subject to
sanctions.409
The regulations prohibit ex parte communications with PTAB members or employees
assigned to the proceeding in trial cases410 but this provision does not apply to appeal cases.411 It
is unclear whether the ex parte provision applicable to trials prohibits communications by PTAB
staff members to decisionmakers or decisionmaking staff. Electronic document filing is
accepted.412
1. Appeals (ex parte cases)
Part 41 of the regulations prescribe procedures for appeals.413 Appeals are sometimes
referred to as ex parte proceedings, meaning that the only parties are the patent examiner and a
patent applicant or a patentee. The ex parte reexamination process can be triggered by any person
through a request to the PTO claiming that a “substantial new question of patentability” exists
with respect to the patent.414 An applicant can appeal if a patent application has been rejected or
an ex parte reexamination request has been granted. Appeals are Case Type 6 in
USDCPATE0021.

406

37 C.F.R. § 1.31.
37 C.F.R. § 41.5(a). The regulations do not permit lay representation before the PTAB.
408
37 C.F.R. § 42.10(c).
409
37 C.F.R. § 41.5(b), (e); 37 C.F.R. §42.10(d). See 37 C.F.R. §37 Part 11 for detailed regulations about
registration of patent attorneys and agents.
410
“Communication regarding a specific proceeding with a Board member…is not permitted unless both parties
have an opportunity to be involved in the communication.” 37 C.F.R. § 42.5(d).
411
37 C.F.R. § 41.11.
412
37 C.F.R. § 42.6(b).
413
37 C.F.R. § 41.30 et seq. Part 41 of the regulations describes procedures for both trials and appeals. Part 42 of
the regulations (promulgated in 2013) describes procedures for trials. Yet the regulations relating to trials in Part 41
have not been explicitly repealed or superseded by Part 42. In this memo, I apply Part 41 to appeals and Part 42 to
trials. In the ACUS database, the references are only to Part 41 of the regulations, not Part 42. I believe this should
be corrected.
414
35 U.S.C. § 303(a). See Stefan Blum, Ex Parte Reexamination: A Wolf in Sheep’s Clothing, 73 OHIO ST. L. J.
395, 413-19 (2012); Jacob S. Sherkow, Administrating Patent Litigation, 90 WASH. L. REV. 205, 236 (2015) (in
most patent infringement cases in court, the defendant requests USPTO re-examination and district court case is
often stayed until USPTO acts).
407

74

All the evidence considered by the PTAB in deciding an appeal is presented in the
appellant’s briefs. The briefs can rely only on evidence previously considered by the examiner
(except when a new administrative or judicial precedent arose after the examiner’s
consideration).415 The appellant can request an oral argument if the appellant believes it to be
necessary or desirable; cases are given the same consideration whether or not there is an oral
argument. The Board can refuse the application for an oral argument if it is determined to be
unnecessary.416
2. Trials (inter partes cases)
Part 42 of the regulations describes the procedure in trials.417 Trial cases involve a third
party that is challenging a patent (in other words, a party other than the patent applicant or owner
and the USPTO). These include inter partes reviews,418 post-grant reviews,419 derivations,420 and
challenges to covered business method patents.421 These are case types 1 through 5 in
USDCPATE0021. As an alternative, proceedings challenging the validity of a patent can also be
brought as civil actions in federal district court.422 The trial remedy before PTAB is attractive to
patent challengers because the proceedings cost much less than federal court litigation and the
APJs are more expert than federal district judges in matters of patent law; moreover, the burden
of proof before PTAB on the issue of invalidity is preponderance of the evidence, rather than the
clear and convincing standard used in federal court.423
Under the regulations, the term “trial” means a “contested case instituted by the PTAB
based upon a petition.” A trial begins with a written decision notifying the petitioner and patent
owner of the institution of the trial.424 PTO trial proceedings have two phases: the APJ panel
first decides whether the petition shows a reasonable likelihood that at least one claim would be

415

37 C.F.R. § 41.47(e).
37 C.F.R. § 41.47(f).
417
For detailed procedural rules including a timeline, see the Patent Office Trial Practice Guide, 77 Fed. Reg. 48756
(2012).
418
An inter partes review arises when a third party challenges a patent because it lacks novelty or is obvious, based
on the prior art. See 35 U.S.C. §§ 311, 102, 103; 37 C.F.R. § 42.100 et seq. This replaces the former category of
inter partes re-examination. The provision for inter partes review does not violate Art. III of the Constitution.
MCM Portfolio LLC v. Hewlett-Packard, 812 F.3d 1284 (Fed. Cir. 2015).
419
Post-grant review involves a challenge to a patent on grounds other than lack of novelty or obviousness, such as a
failure to meet the clear statement requirements of §112. See 35 U.S.C. § 321 et seq.; 37 C.F.R. § 42.200 et seq.
420
In a derivation proceeding, a patent applicant B complains that an earlier patent held by A was derived from B’s
idea and A’s application was not authorized. See 35 U.S.C. § 135(a)(1); 37 C.F.R. § 42.400 et seq.
421
37 C.F.R. § 42.300 et seq.
422
See 35 U.S.C. § 315. When PTAB declares a patent valid, the patentee must pursue issues of infringement and
damages in federal district court.
423
See Stuart Minor Benjamin & Arti K. Rai, Administrative Power in the Era of Patent Stare Decisis, 65 DUKE L.J.
1563, 1565-67, 1570-71 (2016) (hereafter Benjamin & Rai).
424
37 C.F.R. § 42.2.
416

75

invalid. If so, the panel institutes review. After institution of review, the panel must generally
make the final decision on the patent’s validity within one year.425
The regulations provide for discovery during trial proceedings.426 Discovery includes a
series of initial disclosures (either by agreement or by order)427 plus additional discovery (either
by agreement or by order on a showing that additional discovery is in the interest of justice).
Uncompelled direct testimony must be submitted in the form of an affidavit or deposition
transcript; compelled testimony (including cross-examination of affiants) is also presented in the
form of depositions.428 Expert testimony is furnished in affidavit form.429 The Federal Rules of
Evidence are applicable to trial proceedings.430 Any party can request oral argument.431 The
parties may agree to settle any case but the proposed settlement is not binding on the Board.432
The parties may resort to binding arbitration but the Board is not a party to the arbitration.433 The
case terminates in a judgment rendered by the Board.434
3. Statistical information435
In FY 2014, 1494 trial petitions were filed with PTAB.436 In FY 2014, PTAB instituted
650 trials and rendered 143 written decisions.437 In FY 2015 (through 7/16/15), 1528 trial
petitions were filed which projects to about 2000 cases for the year.438 In FY 2015 (through
7/16/15), PTAB instituted 706 trials; there were 337 final written decisions.439 At the end of FY
2015, there were about 700 undecided cases.440
In FY 2013, there were 10,758 ex parte appeals fled with PTAB; in FY 2014, there were
9,585 appeals filed. In FY 2013, PTAB decided 9,489 appeals and decided 5,619 in FY 2014.

425

Benjamin & Rai at 1569.
See 37 C.F.R. § 42.51.
427
See 77 Fed. Reg. 48756, 48761-62 (2012).
428
See 37 C.F.R. § 42.53(a).
429
37 C.F.R. § 42.65.
430
37 C.F.R. § 42.62(a).
431
37 C.F.R. § 42.70(a).
432
37 C.F.R. § 42.74(a).
433
37 C.F.R. § 42.410.
434
37 C.F.R. § 42.73.
435
http://www.uspto.gov/sites/default/files/documents/aia_statistics_07-16-2015.pdf.
436
Of the 1494 filings, 1310 were for inter partes review; 177 for covered business method review; 2 for post-grant
review; and 5 for derivation proceedings.
437
In FY 2014, there were 226 denials (that is PTAB dismissed the case before the hearing). 239 cases were settled;
42 petitioners gave up (meaning they requested an adverse decision).
438
Of the 1528 filings, 1385 were for inter partes review, 130 for covered business methods, 8 for post-grant review,
and 5 for derivations.
439
In FY 2015 (through 7/16/15), there were 358 denials; 434 cases were settled; 63 requests for adverse decision.
440
See Lex Machina, Patent Trial and Appeal Board, 2015 Report.
426

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There were 23,508 appeals pending at the end of FY 2013, 25,527 pending at the end of FY
2014, and 24,403 pending as of March, 2015.441
If we assume that in FY 2015, there will be about 2,000 trial petitions filed and 10,000
appeals filed, the trial workload per each of the 200 APJs would be about 60 cases per year.
B. Trademark Trial and Appeal Board (TTAB)
Trademark adjudication occurs before the Trademark Trial and Appeal Board (TTAB).
The governing statute is the Lanham Act.442 Procedural regulations are set forth in 37 C.F.R. Part
2. USPTO has published a useful practice manual.443 The TTAB is USDCTRAD0020 in the
ACUS database.
Like PTAB, TTAB practice is divided into trials (often called “inter partes” proceedings,
meaning that they involve disputes between a third party and a trademark registrant) and appeals
(often referred to as “ex parte” cases, meaning challenges by persons whose application for
registration of a mark were rejected by a trademark examiner). Trials are case type 1 in
USDCTRAD0020; appeals are case type 2.
The TTAB includes the Director and Deputy Director of the USPTO, the Commissioner
for Patents, the Commissioner for Trademarks, and administrative trademark judges (ATJs).
There are currently about 23 ATJs.444
As in the case of patents, the relevant statutes do not call for evidentiary hearings.
Instead the statue provides for an “appeal” to the TTAB from the final decision of a trademark
examiner.445 The TTAB shall “determine and decide” in cases of interference, opposition to
registration, application to register as a concurrent user, or application to cancel the registration
of a mark.446 In context, however, it is clear that an evidentiary hearing is required (although
these hearings are entirely in writing except for oral argument). Oral argument is voluntary and
can be done through videoconference.447The exclusive record principle is protected.448
Therefore TTAB proceedings are Type B adjudication.

See Wagner, stating that at the end of 2014, PTAB had a “staggering” 25,370 ex parte appeals pending. Of these,
14,508 have been pending more than 14 months. Data on appeals were supplied in an email from Saurabh
Vishnubhakat to Michael Asimow, Feb. 29, 2016.
442
15 U.S.C. § 1051 et seq.
443
http://www.uspto.gov/sites/default/files/trademarks/process/appeal/TBMP_full_version.pdf.
444
http://thettablog.blogspot.com/2012/10/updated-roster-of-ttab-administrative.html.
445
15 U.S.C. § 1070.
446
15 U.S.C. § 1067(a).
447
TTAB Practice Manual § 802.03.
448
See TTAB Practice Manual § 1.2.03, 803.
441

77

There is no administrative appeal from a TTAB decision; TTAB decisions are reviewable
by the US Court of Appeals for the Federal Circuit449 or alternatively by a de novo federal
district court action.450 In addition, the Code provides that any person who could seek judicial
review in the Federal Circuit can bring a civil action in federal district court.451
Only attorneys can represent parties before the Trademark Office.452 Unlike patent
litigation, there is no registration requirement for attorneys. Although parties can represent
themselves,453 non-lawyers cannot represent clients.454 Thus there is no lay representation in
trademark practice.
1. Appeals (ex parte cases)
An applicant for trademark registration may appeal a final refusal by the examiner to the
TTAB.455 The applicant and the examiner file briefs with the TTAB.456 The record is complete
prior to the filing of an appeal. The TTAB will ordinarily not consider additional evidence after
an appeal is filed.457 The appellant may on request receive an oral argument before at least three
ATJs. In that case, the examiner will also make an oral argument.458

449

15 U.S.C. § 1071(a)(1); 37 C.F.R. § 2.145(a,) (b).
15 U.S.C. § 1071(b).
451
15 U.S.C. § 1071(b); 37 C.F.R. § 2.145(c). If a defeated party seeks review in the Court of Appeal, the adverse
party may elect to transfer the matter to district court.
452
37 C.F.R. § 11.14(a). However, foreign lawyers are permitted. § 11.14(c). This rule applies to TTAB
proceedings as well as to proceedings before examiners. 37 C.F.R. § 2.17(a).
453
Self-representation includes representation by a non-lawyer representing a corporation in which the person is an
officer, a partnership in which the person is a partner, or a firm in which the person is a member. Id. § 11.14(e).
454
37 C.F.R. §§ 11.14(b), (e); 2.17(f).
455
See 15 U.S.C. § 1062(b)
456
37 C.F.R. § 2.142(b).
457
If either party desires to introduce additional evidence, it can request the Board to suspend the appeal and remand
the application for further examination. 37 C.F.R. § 2.142(d).
458
37 C.F.R. § 2.142(e)
450

78

2. Trials (inter partes cases)459
Inter partes trademark disputes (such as opposition to registration,460 cancellation of
registration,461 interference,462 or concurrent use463) commence upon filing a notice with the
Trademark Office.464 The applicant or registrant must file an answer to this notice.465
The Federal Rules of Civil Procedure (FRCP) govern inter partes proceedings. 466 The
assignment of testimony periods corresponds to setting a case for trial in court proceedings and
the taking of depositions during the assigned testimony periods corresponds to the trial in court
proceedings. The oral hearing corresponds to the oral summation in court proceedings.467
The discovery rules are modeled on the FRCP,468 including the requirement of mandatory
initial disclosures469 and a mandatory conference to discuss settlement and agree on a discovery
plan.470 A TTAB attorney or an ATJ may participate in this conference. In general, the material
so discovered can be offered in evidence by the adverse party.
The TTAB then schedules a second discovery period in which the plaintiff and defendant
present their case in chief, again by taking the deposition of the party’s witnesses471 either upon
written or oral questions.472 Adverse parties can cross-examine the witnesses.473 Objections to
questions are noted in the record. The Federal Rules of Evidence apply to TTAB proceedings.474

459

TTAB decisions in opposition cases have collateral estoppel effect when the same issue arises in infringement
litigation in court. B & B Hardware, Inc. v. Hargis Industries, Inc., 135 S. Ct. 1293 (2015).
460
15 U.S.C. § 1063.
461
15 U.S.C. § 1064. Typically, cancellation petitions allege that a registered mark would cause the owner of an
existing mark damages by blurring or dilution.
462
15 U.S.C. § 1066.
463
15 U.S.C. § 1052(d).
464
37 C.F.R. §§ 2.101, 2.111. 054
465
37 C.F.R. § 2.104.
466
37 C.F.R. § 2.116. The opponent in an opposition proceeding or petitioner in a cancellation proceeding shall be
in the position of a plaintiff,
467
37 C.F.R. § 2.116(d), (e), (f).
468
7 C.F.R. § 2.120(a). (b).
469
FRCP 26(a).
470
FRCP 26(f).
471
See 7 C.F.R. § 2.121
472
37 C.F.R. § 2.123(a). If the parties so stipulate, an affidavit can be substituted for a deposition. Id. § 2.123(b). If
the witness’ deposition is to be by written questions, the opposing party must receive copies of the questions and can
submit cross examination questions. 37 C.F.R. § 2.124.
473
37 C.F.R. § 2.123(e)(3).
474
37 C.F.R. § 2.2.122(a).

79

After completion of the discovery period, the parties file briefs with the TTAB.475 On
request, the parties conduct oral argument before at least 3 ATJs.476
3. Statistical information477
In FY 2014, the TTAB received 2794 appeals.478 Of these, 456 matured to the point they
were ready for decision and 405 were actually decided.479 At the end of FY 2014, 81 appeals
were awaiting decisions.480 The mean time from commencement of an appeal to completion was
43.8 weeks; the median was 36 weeks.
Of inter partes (trial) cases in FY 2014, there were 5509 oppositions481 and 1722
cancellations.482 Of these, 127 matured to the point that they were ready for decision and 132
cases were decided.483 At the end of FY 2014, 24 trials were awaiting decisions.484
It is unclear what happened to most of the appeals, oppositions, and cancellations. Did
parties give up or were most of the cases settled? For purposes of the workload statistics (Tables
2 and 3), I used the actual number of appeals and trial cases heard by the ATJs, rather than the
much larger number of filings.

475

37 C.F.R. § 2.128.
37 C.F.R. § 2.129.
477
http://www.uspto.gov/trademarks-application-process/appealing-trademark-decisions/ttab-incoming-filings-andperformance.
478
There were 2219 appeals during the first three quarters of FY 2015.
479
In the first three 3 quarters of 2015, 355 appeals matured to be ready for decision and 291 were decided.
480
At the end of the third quarter of 2015, 119 appeals and 36 trials were awaiting decision.
481
3800 in first three quarters of FY 2015.
482
1288 in first three quarters of FY 2015.
483
In the first three quarters of 2015, 106 trial cases matured to be ready for decision and 86 were decided.
484
At the end of the d quarter of 2015, 119 appeals and 36 trials were awaiting decision.
476

80

APP. A-9: PROVIDER REIMBURSEMENT REVIEW BOARD485
The Provider Reimbursement Review Board (PRRB) is one of numerous adjudicatory
schemes arising out of Medicare, Medicaid, and the Affordable Care Act.486 It was established
in 1972. PRRB is HHSOPRRB0005 in the ACUS database. PRRB reviews certain
determinations concerning the amounts that Medicare will pay to providers of services under
Medicare Part A, which, broadly speaking, applies to hospital care.
Providers of services request reimbursement for services provided under Part A. These
claims are reviewed by private fiscal intermediaries (referred to by the regulations as
“contractors”). If the dispute involves at least $1,000 but less than $10,000, providers that
disagree with contractor decisions have a right to a hearing by a contractor hearing officer or
panel of hearing officers487 who are unbiased and have had no “direct responsibility” for the
decision under review.488 The exclusive record principle applies.489 Decisions by contractor
hearing officers are subject to a further review by a reviewing officer of the Centers for Medicare
and Medicaid Services (CMS).490 Because contractor hearing officers are private rather than
government adjudicators, they are beyond the scope of this study.
If the dispute is for $10,000 or more (or in the case of a group appeal, the aggregate
claims involving a common issue total $50,000 or more491), the providers can appeal an
unfavorable contractor decision to the PRRB. PRRB hearings are subject to discretionary review
by the Administrator or Deputy Administrator of CMS (on its own motion or on request from a
party)492 and then to judicial review.493
PRRB hearings are subject to the exclusive record requirement.494 Hence PRRB provides
Type B adjudication. PRRB consists of five members.495 All members participate in each PRRB
decision. The parties may opt for a “record hearing” in which the case is submitted based on the

485

Thanks to Eleanor Kinney and Suzanne Cochran for assistance on this Appendix.
Many such programs, such as the Medicare Office of Hearings and Appeals, utilize Type A adjudication. See
HHSOOBEN0001 in the ACUS website.
487
Provisions for contractor hearings are provided in 42 C.F.R. §§ 405.1809 to .1834.
488
42 C.F.R. § 405.1817,1831(b).
489
Id. § 405.1827(b); 42 C.F.R. § 405.1845(g).
490
Id. § 405.1834.
491
Id. § 405.1837
492
Id. §405.1875.
493
Id. § 405.1877. According to the ACUS website, there are 12 appellate officials at CMS and each appeal is
considered by a panel of three CMS officials.
494
42 U.S.C. § 1395oo(d); 42 C.F.R. § 405.1871(a)(2).
495
The members of the Board “shall be persons knowledgeable in the field of payment of providers of services” and
at least one of them shall be certified public accountant. Two Board members shall be “representative of providers
of services.” Board members serve staggered three-year terms. 42 C.F.R. §405.1845(a), (b).
486

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existing written record496 or for an oral adversarial hearing including cross-examination497 and
oral argument.498 Oral hearings are conducted by the full board. The ACUS website says that
about 20% of cases are record hearings, 65% are resolved by an in-person oral hearing, and 10%
by telephone.499 Video-conference is available to present testimony of a witness who cannot be
physically present. Electronic document filing is now permitted although not reflected in the
Board’s rules. PRRB does not employ AJs.
PRRB regulations provide for discovery that is controlled by Board members. 500 PRRB
has subpoena power.501 Parties may be represented by an attorney or by any other chosen
representative.502 The Federal Rules of Evidence do not apply.503 The regulations require
disqualification of biased board members.504 The PRRB rules (though not the regulations)
prohibit substantive ex parte communication with Board members or staff.505 There is no
provision for separation of functions or any restrictions on communication between the staff and
Board members; separation of functions may be unnecessary, however, since PRRB is an
adjudicating tribunal without a prosecuting or investigating function.506 PRRB hearings are not
open to the public.507

496

Record hearings are appropriate if the case involves only legal interpretation or very limited fact disputes and the
parties agree that the case is appropriate for a record hearing. PRRB Rule 32.3.
497
42 C.F.R. § 405.1859.
498
Id. § 405.1861.
499
Telephone hearings are appropriate in a case involving a strictly legal issue or one that has few factual issues.
PRRB Rule 32.2. The statistics provided on the website do not add up to 100%.
500
42 C.F.R. § 405.1853(e); PRRB Rule 26. “The Board may permit discovery of a matter that is relevant to the
specific subject matter of the Board hearing, provided the matter is not privileged or otherwise protected from
disclosure and the discovery request is not unreasonable, unduly burdensome, or expensive, or otherwise
inappropriate.” Id. § 405.1853(e)(1)(ii).
501
42 C.F.R. § 405.1857.
502
Id. 405.1881
503
§ 1395oo(c),42 C.F.R. § 405.1855.
504
42 C.F.R. § 405.1847 provides: “No Board member shall join in the conduct of a hearing in a case in which he is
prejudiced or partial with respect to any party or in which he has any interest in the matter pending for decision
before him.” Under the PRRB Rules, a Board member “may recuse him or herself if there are reasons that might
give the appearance of an inability to render a fair and impartial decision.” A party may request recusal prior to the
hearing date. PRRB Rule 45.1, 45.2.
505
PRRB Rule 40.2. Ex parte communication with staff regarding procedural matters are not prohibited. The
regulations prohibit ex parte communication during the CMS appeal process but not the PRRB hearing process. 42
C.F.R. § 405.1875(d).
506
See Phyllis E. Bernard, Social Security and Medicare Adjudications at HHS: Two Approaches to Administrative
Justice in an Ever-Expanding Bureaucracy, 3 Health Matrix 339, 410-12 (1993) (discussing importance of the
PRRB’s Board Advisors in the processing and decision of cases).
507
Hearings are open to the parties, to CMS representatives and to “such other persons as the Board deems
necessary and proper.” 42 C.F.R. § 405.1951. Presumably this provision is justified since the hearings concern
private financial information of service providers.

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The regulations encourage negotiation between providers and contractors to resolve
disputed issues.508 Mediation is provided by PRRB staff members. About 2/3 of the Board’s
cases are settled through negotiation or mediation. The regulations provide for an initial status
conference conducted by one or more members of the Board (in person or by telephone) which
includes discussion of potential settlement; the Board may conduct further status conferences
where it is necessary and appropriate to do so.509
The Board is able to reduce its caseload by deciding many cases on an aggregate basis. 510
Providers subject to common control must aggregate their cases. The Board also aggregates
cases (sometimes involving hundreds of providers) if their claims present a common issue. This
class action technique seems very desirable.
The Board’s written decision must include findings of fact and conclusions of law,
specifically explaining whether the provider carried its burden of proof to establish entitlement
of relief by a preponderance of the evidence, and containing appropriate citations. The Board
must give “great weight” to CMS interpretive rules or policy statements.511
According to the ACUS database, 3,907 PRRB cases were filed in FY 2013 and 1,833
were decided. This figure for decided cases includes the many cases settled by negotiation or
mediation.
The PRRB’s website listing its substantive decisions512 provides information on only 25
decisions in 2012, 42 in 2013, 30 in 2014, and 30 in 2015. We understand that this is the full
number of cases decided on the merits. 7,124 cases were pending at the end of FY 2013.513
PRRB issues a much larger number of jurisdictional determinations which concern various
procedural issues arising in its cases. It publishes about 300 jurisdictional decisions that present
important issues, but decides many more than that without publishing the decisions. Many of the
Board’s decisions give permission to the claimant to secure expedited judicial review of issues of
law (such as the validity of regulations) that are outside the Board’s jurisdiction.

508

42 C.F.R. § 405.1853(a).
Id. § 405.1853(c), (d).
510
See ACUS Rec. 2016-2 for discussion of aggregate agency adjudication.
511
Id. § 405.1871.
512
https://www.cms.gov/Regulations-and-Guidance/Review-Boards/PRRBReview/List-of-PRRB-Decisions.html#
513
The Frye and Limon studies (see note 13, supra) give no information about PRRB’s caseload during 1992 and
2002.
509

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APP. A-10: BOARD OF VETERANS’ APPEALS514
The system of hearings for resolution of disputes about veterans’ benefits is
DOVABENE0001 in the ACUS website. It lists 34 case types. This memo focuses on the Board
of Veterans Appeals (BVA), which conducts Type B adjudication.515
A. VA claims adjudication—introduction
The Department of Veterans Affairs (VA) decides a vast number of benefit claims.516 The
caseload is rising steadily. The number of new claims currently exceeds one million per year, but
this figure understates the caseload because many such claims seek several different benefits.517
As of the end of 2015, there were about 368,000 pending claims before VA Regional Offices
(VAROs), which make the initial decision in claims cases. Of this number, about 78,000 had
been pending more than 125 days.518 There have been many criticisms of the VA’s claims
process and numerous proposals for improving it,519 but these are beyond the scope of this
memorandum.
Assessing claims for service-connected disability (by far the most common type of claim)
require complex medical judgments. The claimant must suffer from a current disability that is
connected to a disease or injury received during service (the “nexus” requirement). VA assigns a
rating (from 0% to 100%) to the disability. It is estimated that around 88% of claims for
disability compensation are granted, at least in part.520
Claimants who disagree with a VARO decision can seek relief before the BVA. A
veteran who loses before the BVA can obtain judicial review from the Court of Appeals for
Veterans Claims (CAVC). The Court of Appeals for the Federal Circuit (CAFC) reviews CAVC

514

Thanks to James Ridgway, Stacey-Rae Simcox, and Ron Smith for assistance with this memo.
By statute the BVA shall “conduct hearings and dispose of appeals properly before the Board.” 38 U.S.C. § 7101.
516
Over 4,000,000 veterans receive pensions or benefits and about 940,000 were added during the last 4 years. The
annual outlay to pay these benefits is about $54 billion. http://www.benefits.va.gov/reports/detailed_claims_data.asp
(as of Dec. 5, 2015).
517
See James D. Ridgway, “Why So Many Remands? A Comparative Analysis of Appellate Review by the United
States Court of Appeals for Veterans Claims,” 1 VET. L. REV. 113, 145-50 (2009). Each unrelated benefit in a claim
is referred to as an “issue.” Ridgway observes that 22% of disability claims had at least eight issues. Id. at 146. He
estimates that the number of different benefits sought is at least double and probably more than triple the number of
claims that VA receives each year.
518
These figures are a remarkable improvement from the situation a few years ago, apparently achieved by a lot of
overtime and possibly an increase in mistakes. Email from Stacey-Rae Simcox to Michael Asimow, 1/5/16. In
2012, there were 883,930 cases pending and 611,073 pending more than 125 days. As discussed below, however,
there are much longer delays at the BVA level. It takes more than 3 years on average from the time of an
unfavorable VARO decision to a BVA decision.
519
See, e.g., James D. Ridgway, A Benefits System for the Information Age, 7 VET. L. REV. 36 (2015). s
520
James D. Ridgway, The Veterans’ Judicial Review Act Twenty Years Later, NYU ANN. SURVEY OF AMER. LAW
116 (2010) (hereinafter NYU).
515

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decisions on questions of statutory or regulatory interpretation. Discussion of the judicial review
phase is beyond the scope of this memorandum.
B. The VA claims process is inquisitorial and paternalistic
The adjudicatory process for resolving VA claim disputes is uniquely inquisitorial and
paternalistic. Thus there is no statute of limitations on making a claim. VAROs are subject to
elaborate notice requirements. It must notify the claimant of any information or evidence that is
necessary to substantiate the claim and furnish all necessary assistance to the claimant in
obtaining evidence and obtaining medical opinions.521 The various procedural rules are heavily
slanted in the direction of assisting veterans and requiring the VA to develop all issues raised in
any documents or testimony. No government official appears during VARO consideration or
BVA hearings to oppose the granting of benefits. At all levels, the VA must give the veteran the
benefit of the doubt if the positive and negative evidence is approximately balanced.522 A veteran
may “reopen” a rejected application by presenting “new and material evidence” and some cases
are reopened on multiple occasions (in fact about three-quarters of the claims filed with the VA
are actually reopened claims rather than new ones). A decision by the VARO or BVA can be
administratively set aside at any time if based on a “clear and unmistakable error.”
The VA’s inquisitorial system of fact determination and decisionmaking is rooted in the
long and convoluted history of veterans’ benefits.523 In the past, these benefits were regarded as
gratuities, not entitlements, and the bureaucratic structure that delivered the benefits was wholly
paternalistic. In a paternalistic system, there was no place for lawyers or for adversarial
procedures like administrative trials.524 Today, veterans’ benefits are an entitlement, not a
gratuity, but the older paternalistic and inquisitorial decisionmaking process has survived.525

521

See 38 U.S.C.§§ 5102(b) and 5103(a) (imposing obligations to notify claimant of any information needed to
complete the application or to substantiate the claim); 5103A (imposing on the VA an obligation to exercise
reasonable efforts to assist the claimant in obtaining evidence and records and in providing medical examinations
and opinions). See Shinseki v. Sanders, 556 U.S. 396, 406-11(2009) (simplifying rules of prejudicial error when
VA fails to follow the notice requirements in the statute and regulations).
522
38 U.S.C. § 5107(b).
523
For a detailed account of the history of veterans’ benefits, see James D. Ridgway, The Splendid Isolation
Revisited: Lessons from the History of Veterans Benefits Before Judicial Review, 3 VET. L. REV. 135 (2011).
524
See Richard E. Levy, Of Two Minds: Charitable and Social Insurance Models in the Veterans Benefit System, 13
KANSAS J. OF L. & PUB. POL. 303, 304-15 (2003) (distinguishing the paternalistic model from the social insurance
model applicable to more modern benefit programs).
525
Even the judicial review system has paternalistic elements. By statute a claimant must file an appeal with CAVC
within 120 days after mailing of the BVA’s decision. This deadline is not “jurisdictional,” so it is subject to
equitable tolling. The paternalistic nature of VA benefits was an important factor in the Supreme Court’s decision on
this point. “What is most telling [of Congress’ intent in imposing the 120-day rule] are the singular characteristics of
the review scheme that Congress created for the adjudication of veterans’ benefit claims. The solicitude of Congress
for veterans is of long standing…And that solicitude is plainly reflected in the VJRA, as well as in subsequent laws
that place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA
decisions…” Henderson v. Shinseki, 562 U.S. 428, 440 (2011) (internal citations and quotation marks deleted).

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However, the judicial review system is adversarial, not inquisitorial, and has compelled the VA
to move in the direction of more adversarial claims procedures.526
C. The VA claims process—VARO level527
A claim is processed by various teams at the VAROs, but the decision is the
responsibility of a single lay adjudicator (referred to herein as a “ratings specialist”).528 The file
includes the detailed medical opinions submitted by the claimant (such as reports of personal
physicians) and by the VA medical staff as well as by independent physicians consulted by the
VA. For the most part, the VARO process operates on a documents-only basis without a
personal appearance by the veteran.
Claimants dissatisfied with the VARO decision file a Notice of Disagreement (NOD).
The claimant can obtain a review of the case by a Decision Review Officer (DRO), a senior
VARO adjudicator who has not previously been involved in investigation of the case.529 The
DRO may seek additional evidence. At the veterans’ request, the DRO will provide an informal
hearing. If the claimant remains dissatisfied with the VARO decision after DRO review, the
VARO prepares a Statement of the Case (SOC) which contains detailed findings and an
explanation of the decision. Within 60 days from the mailing of the SOC, the veteran must file
Form VA-9 to perfect the right of appeal to the BVA.
D. The Board of Veterans Appeals
The BVA’s decision is de novo but is based primarily on the written record made at the
VARO level.530 Claimants frequently seek to introduce new evidence at the BVA level. If the
claimant waives remand to the VARO to evaluate the new evidence, the BVA judge considers
this evidence and decides the case accordingly.531 In many cases, BVA has no organized written
record from which to decide the case, only a disorganized case file that may run to hundreds or
thousands of pages.532 It is required to consider and decide every possible issue or claim raised
by the appellant’s appeal documents as well as the documents and oral testimony submitted prior
to the Board’s decision.533

526

See Ridgway, 7 VET. L. REV. at 45-47; Charles L. Cragin, The Impact of Judicial Review on the Department of
Veterans Affairs’ Claim Adjudication Process, 46 MAINE L. REV. 23 (1994).
527
For an outline of the claims process, see http://www.benefits.va.gov/compensation/process.asp
528
38 CFR § 3.103(c)(1).
529
38 C.F.R. § 3.2600.
530
38 U.S.C. § 7104(a). 38 C.F.R. § 19.4.
531
38 C.F.R. §§ 19.9(b)(3), 20.1304(c) (new evidence can be introduced before BVA if appellant waives the right to
have it considered by the regional office or if the Board believes that the new evidence will enable it to award
benefits).
532
The VA is in the process of converting its paper-based system to an electronic data system, but the conversion
process is costly and far from completed. About 30% of the BVA’s inventory of appeals in 2014 were paperless.
See BVA 2014 Annual Report, p. 16. http://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2014AR.pdf.
533
Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) (citing numerous cases).

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The BVA has about 64 Veterans Law Judges (VLJs) and about 400 staff counsel. BVA
has a total of 614 employees.534 In addition, there were 45 acting judges in FY 2014 (about 12
FTEs), so there are about 76 VLJs. The BVA decided about 56,000 cases in FY 2014 (about 736
for each judge). This was a considerable increase over the 42,000 cases decided in FY 2013.
During FY 2014, BVA provided about 11,000 informal hearings. Requesting a hearing
considerably prolongs the BVA decisional process, so the great majority of the claimants waive
the hearing; their cases are decided on the written record. BVA hearings are conducted by single
VLJs either in person or by video-conference. The proceedings are quite informal.535 The Board
handled about 54% of its hearings by video-conference in FY 2014 and hopes to increase this
percentage.536
During 2014, the Board received about 47,000 cases. It expects to receive 74,000 cases
in FY 2015 and 81,000 cases in FY 2017. At the end of FY 2014, the Board’s backlog was about
67,000. The waiting time between the filing of a NOD and a BVA decision averaged 1038 days
in FY 2014; the period between the time an appeal was received by BVA and the time of
decision was about 357 days. If the BVA remands the case, the remand proceedings averaged
311 days.
Of the approximately 56,000 decisions in FY 2014, the Board allowed 29.2% of the
appeals, remanded 45.5%, and denied 21.5%. 64% of the remanded cases were not the result of
mistakes on the part of VARO; usually they were the result of the veteran’s request to introduce
additional evidence at the BVA level which necessitated remand to the VARO.
The regulations do not prohibit ex parte communications with BVA judges, either by VA
personnel or by outsiders and it is unknown whether such communications occur. The
regulations do not provide for any ADR in BVA cases nor does the BVA employ prehearing
conferences or other case management procedures.
E. Representation in the VA claims process
VA practice at the VARO level is mostly de-lawyered. Veterans are usually represented
at both the VARO and BVA levels by lay representatives supplied free by veteran service
organizations (VSOs) such as the American Legion.537 Veterans are seldom represented by

534

See BVA 2014 annual report, p. 3. The statistics in the next three paragraphs are taken from this report.
See the BVA’s pamphlet “How Do I Appeal?” http://www.bva.va.gov/docs/Pamphlets/How-Do-I-AppealBooklet--508Compliance.pdf.
536
At present, the video-conference system is not very convenient because the terminals are often located far from
veterans and their representatives. However, BVA is working to improve access to terminals. Email from StaceyRae Simcox to Michael Asimow, 1/5/16.
537
See 38 C.F.R. §§ 14.628, 14.629(a). All representatives (including those employed by the VSOs) are subject to a
code of conduct and to suspension from practice for violations. 38 U.S.C. § 5904(a); 38 C.F.R. § 14.632. In 2014,
535

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lawyers during the VARO process because the statute prohibits compensation of lawyers before
the filing of a NOD.538 The regulations permit representation by non-lawyer “agents” (who must
pass an examination and take CLE courses) and by other lay representatives on a one-time only
basis.539 The success rate of lawyers and non-lawyer representatives before BVA is similar, but
attorneys had a clear edge in denied cases.540

VSOs represented 76.8% of veterans before the BVA. Of the remainder, attorneys represented veterans in 10.9% of
BVA cases, agents by 1.1%, “other” 1.8%, no representation 9.4%.
538
38 U.S.C. § 5904(c)(1). This statute formerly prohibited compensation of attorneys at any stage of the VA claims
process in excess of $10. The Supreme Court upheld the constitutionality of the $10 fee limit on compensation of
attorneys in Walters v. National Ass’n of Radiation Survivors, 473 U.S. 3045 (1985). The Court believed that the
presence of attorneys would be detrimental to the paternalistic and inquisitorial VA adjudication system. It also
believed that the free VSO representatives probably did about as good a job as attorneys. For criticism of the
assumptions in Walters in light of present day realities at the VA, see Stacey Rae-Simcox, Thirty Years After
Walters, SSRN 2650434 (2015). After Walters, Congress permitted compensation of attorneys after the veteran
files a NOD.
539
38 CFR § 14.630.
540
Attorneys were successful in 35.5% of their cases, agents 30.3%, others 28.1%, and no representation 22%. The
various VSOs fell within a range of 28.1% (American Legion) to 35.7% (Military Order of the Purple Heart). In the
defeat column, lawyers lost 13.7% of their cases while the VSO’s were in a range of 18.7% (Paralyzed Veterans of
America) to 23.6% (State Service Organizations). BVA 2014 Annual Report p 27. These statistics do not cover
success rates at the VARO level, only the BVA level. There is no empirical evidence about whether the VSO
representatives or the agents perform as well as lawyers.

88