FINAL REPORT FOR THE
A DMINISTRATIVE C ONFERENCE OF THE U NITED S TATES

AGENCY APPELLATE SYSTEMS
Christopher J. Walker
The Ohio State University Moritz College of Law
&
Matthew Lee Wiener
Administrative Conference of the United States

This report was prepared for the consideration of the Administrative Conference of the United States. It does not
necessarily reflect the views of the Conference (including its Council, committees, or members).
Recommended Citation
Christopher J. Walker & Matthew Lee Wiener, Agency Appellate Systems (Dec. 14, 2020) (report to the Admin.
Conf. of the U.S.), https://www.acus.gov/report/final-report-agency-appellate-systems.

AGENCY APPELLATE SYSTEMS
Christopher J. Walker * & Matthew Lee Wiener **

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................ I
LIST OF ACRONYMS ............................................................................................... III
INTRODUCTION ........................................................................................................ 1
I.

BACKGROUND ON AGENCY APPELLATE REVIEW................................................ 5
A.

Coverage: Defining Appellate Review.................................................... 5

B.

Structures of Agency Appellate Review ................................................. 7

C.

Models and Objectives of Agency Appellate Review ............................. 9

D.

Conference Recommendations and Model Appellate Rules ................ 16

E.

Judicial Review ..................................................................................... 18

II.

STUDY METHODOLOGY ................................................................................ 20

III.

FINDINGS..................................................................................................... 22

A.

Law of Appellate Review ...................................................................... 23

B.

Decisionmakers ..................................................................................... 28

C.

Selecting Cases for Appellate Review .................................................. 29

D.

Decision-Making Process and Decisions .............................................. 32

E.

Administration, Management, and Bureaucratic Oversight .............. 40

F.

Public Disclosure and Transparency ................................................... 46

G.

Common Challenges in Agency Appellate Programs .......................... 51

IV.

RECOMMENDATIONS .................................................................................... 53

A.

Objectives of Appellate Review ............................................................ 53

* John W. Bricker Professor of Law, The Ohio State University Moritz College of Law; Chair,
American Bar Association Section of Administrative Law and Regulatory Practice.

** Acting Chairman, Vice Chairman, and Executive Director, Administrative Conference of

the United States. For helpful comments at various stages of this study, we thank Michael
Asimow, Kent Barnett, Emily Bremer, Reeve Bull, Blake Emerson, Jeremy Graboyes, Jeff
Lubbers, David Marcus, and Gavin Young. For vital research assistance, we thank Andrew Bair,
Bret Baker, Ruben Garza, Morgan Huff, Sam Lioi, Megan Porter, and Brittney Welch. We also
thank the numerous agency officials who agreed to be interviewed or otherwise shared their
expertise and wisdom on the subject.

B.

Procedures for Appellate Review ......................................................... 54

C.

Case Selection for Appellate Review .................................................... 55

D.

Appellate Decision-Making Processes and Decisions.......................... 56

E.

Administration, Management, and Bureaucratic Oversight .............. 57

F.

Public Disclosure and Transparency ................................................... 58

CONCLUSION ......................................................................................................... 60
APPENDIX A TEMPLATE FOR AGENCY-SPECIFIC OVERVIEWS .................................... I
APPENDIX B APPELLATE PROVISIONS OF MODEL ADJUDICATION RULES (RULES
400–450) ............................................................................................................. VIII
INDEX OF ONLINE APPENDICES C–N: AGENCY-SPECIFIC OVERVIEWS .................. XVI

ii

LIST OF ACRONYMS
(PROPER NAMES)
Each acronym is written out the first time it appears in the Report. For
convenient reference, we have prepared the following list.
ACUS

Administrative Conference of the United States

ALJ

Administrative Law Judge

APA

Administrative Procedure Act

BIA

Board of Immigration Appeals

BVA

Board of Veterans’ Appeals

DOJ

Department of Justice

DOL

Department of Labor

EAB

Environmental Appeals Board (Environmental Protection
Agency)

EEOC

Equal Employment Opportunity Commission

EOIR

Executive Office of Immigration Review

EPA

Environmental Protection Agency

HHS

Department of Health and Human Services

MSPB

Merit Systems Protection Board

NLRB

National Labor Relations Board

OMHA

Office of Medicare Hearings and Appeals (Department of
Health and Human Services)

PTAB

Patent Trial and Appeal Board

PTO

Patent and Trademark Office

USCIS

U.S. Citizenship and Immigration Services

SEC

Securities and Exchange Commission

SSA

Social Security Administration

iii

INTRODUCTION
This Report returns to an important but little studied subject that the
Administrative Conference of the United States (ACUS) last addressed nearly
forty years ago: internal agency review (sometimes called administrative
review) 1 of hearing-level adjudicators’ decisions—or, as we call it, “agency
appellate review.” In 1983, ACUS addressed the legal structures of appellate
review. 2 The main question it asked then, as it had over a decade earlier, 3 is
when and how agencies heads, if not constrained by statute, should delegate
their authority to review the decisions of administrative law judges (ALJs).
The answers ACUS gave to that question (summarized in Part I.D) remain
generally sound despite intervening changes in agency adjudication. We see no
reason to revisit them. They should continue to inform Congress’s and agencies’
design of appellate programs, although we have recommended several
refinements. That is true whether the programs review decisions resulting from
proceedings governed by the formal hearing provisions of the APA 4 (the
exclusive subject of ACUS’s earlier inquiries) or decisions of non-APA
proceedings of sufficiently similar formality.
Our focus in this Report lies elsewhere. We take the legal structures of
appellate programs as they are now constituted and ask, among other important
questions: How should the programs structure their decision-making processes?
What cases should they review? Under what standards of review? What
procedural rules should they use? What form should those rules take? How
should they promulgate the rules? What form should their decisions take?
(When, for instance, should decisions be designated precedential?) What extradecisional activities might they undertake to improve the hearing-level
decisions they review and also their own decisions? What bureaucratic
See MODEL ADJUDICATION RULES WORKING GROUP, ADMIN. CONF. OF THE U.S., MODEL
ADJUDICATION RULES 75–85 (rev. 2018) [hereinafter MODEL RULES], https://www.acus.gov/
research-projects/model-adjudication-rules-2018-revisions.
1

2 Admin. Conf. of the U.S., Recommendation 83-3, Agency Structures for Review of Decisions
of Presiding Officers Under the Administrative Procedure Act, 48 Fed. Reg. 57,461 (Dec. 15,
1983). That Recommendation was supported by an excellent report by Professor Ronald Cass.
See Ronald Cass, Agency Review of Administrative Law Judges’ Decisions (1983) (report to the
Admin. Conf. of the U.S.), https://www.acus.gov/report/project-report-recommendation-83-3; see
also Russell L. Weaver, Appellate Structures in Executive Departments and Agencies, 48 ADMIN.
L. REV. 251 (1996); JEFFREY B. LITWAK, A GUIDE TO FEDERAL AGENCY ADJUDICATION, 2012
A.B.A. SEC. OF ADMIN. LAW & REG. PRAC. 110–18. Professor Russell Weaver’s study, like
Professor Cass’s, was limited to review of ALJ decisions. But unlike the latter, Weaver’s study
addressed only certain case-study agencies.
3 Admin. Conf. of the U.S., Recommendation 68-6, Delegation of Final Decisional Authority
Subject to Discretionary Review by the Agency, 38 Fed. Reg. 19,783 (July 23, 1973). The
associated report is James O. Freedman, Review Boards in the Administrative Process, 117 U.
PA. L. REV. 546 (1969).
4 See 5 U.S.C. §§ 554, 556–557.

mechanisms might they employ to carry out their missions as efficiently and
fairly as scarce resources allow? What information should they share with the
public? It is important to emphasize up front that these questions, and all others
we consider here, can usually be addressed by agencies as a matter of
administrative choice. Few agencies are constrained by statute.
Appellate review government-wide is a vast subject to say the least, and our
choice of questions to address has been necessarily selective. Our choice has
been driven by consideration of what questions might be given general answers
applicable to all or most appellate programs, but not so general as to be useless.
Pragmatic considerations have played an important role. They include whether
agencies are likely to find our suggestions worth serious consideration.
Some of our questions will need to be answered differently by different
appellate programs. Answers may depend on the nature of the decisions a
particular appellate program reviews, its caseload, the (often limited) resources
available to it, and the objective(s) it serves.
We give particular attention to the last of these considerations: the objective
of, or reason for, appellate review in any given program—or, more accurately in
most cases, the objectives of review, since most programs have multiple, and
sometimes competing, objectives. Of course, what is a best practice for a program
whose main objective is simple error correction may not be the best practice for
a program whose main objective is, say, formulating policy or achieving systemic
consistency across a high volume of cases. The important thing, though, is that
every agency appellate program should consider, decide, and disclose publicly
what objective(s) it is serving. Agencies seldom do so. Our first recommendation
is directed to remedying this shortcoming.
Some of the best practices we offer are cast at some level of generality—and
necessarily so. There are hundreds of agency appellate programs. Each is
different, often in significant ways. Procedural uniformity across programs—
sometimes called trans-substantive procedure 5—would be neither possible nor
desirable in administrative adjudication, 6 whatever its merits as an aspiration
for federal-court rulewriters. 7 Still less possible or desirable would be crosssystem uniformity with respect to internal management and other processes.
We expect, though, that agencies will find practical use for even our most
general recommendations. Some identify cross-cutting legal norms to which
nearly every program should adhere, no matter what it adjudicates and how it
does so. Others identify important foundational questions to which all agencies
5 See, e.g., David Marcus, Trans-Substantivity and the Process of American Law, 2013 B.Y.U.
L. REV. 1191 (2014).

6 See, e.g., Matthew Lee Wiener, General Rules for Agency Adjudication?, REG. REV. (Oct.
29, 2018), https://www.theregreview.org/2018/10/29/wiener-general-rules-agency-adjudications.

7 See, e.g., Stephen B. Burbank, Pleading and the Dilemmas of Modern American Procedure,

93 JUDICATURE 109 (2009).

2

should attend in designing new and reviewing existing appellate programs, even
if they must be answered differently for each such program. Of course, this study
is no substitute for studies of specific agencies. ACUS has already undertaken a
number of such studies; 8 it may want to undertake additional ones.
There are a number of important subjects related to agency appellate review
(other than those issues noted above) that lie outside the Report’s scope. Several
bear mention. One is the quality of appellate decisions and of the decisionmaking process that affects appellate review. Measuring decisional quality
would require specification of a standard for assessment—no simple matter9—
and then a statistical analysis of a program’s decisions. Neither is possible in a
broad study like this. Less possible still is an assessment of whether a program’s
decision-making process effectively advances the agency’s objective(s) for
appellate review.
A related subject we mention, but do not address, is bureaucratic qualityassurance review of hearing-level (or appellate) decision making. Qualityassurance programs may “operate,” as an excellent recent study notes, “as a
more systematic replacement for a laborious . . . system of appellate review.”10
That may be especially true in high-volume adjudication systems in which
accuracy and systemic consistency are especially important. In leaving qualityassurance programs largely unaddressed, we do not mean to foreclose the
possibility that they may sometimes serve as an alternative or (more
realistically) a supplement to conventional agency appellate review. We note in
the Conclusion that ACUS may wish to consider a study on this important
subject. 11
There are, finally, two legal issues not addressed here yet meriting mention.
The first concerns agency-appointed adjudicators who issue final agency
decisions—that is, without further agency-head review—under delegations of
authority from politically appointed agency heads or by statutory authorization.
A serious constitutional question has recently arisen as to whether these
8 See Part I.D infra.

9 Even the most obvious standard—success on judicial review—is problematic. See Jonah
Gelbach & David Marcus, A Study of Social Security Litigation in the Federal Courts 71–77
(2016) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/report-study-socialsecurity-litigation-federal-courts.

10 David Ames, Cassandra Handan-Nader, Daniel E. Ho & David Marcus, Due Process and
Mass Adjudication: Crisis and Reform, 72 STAN. L. REV. 1, 76 (2020); see also Robert A. Kagan,
Varieties of Bureaucratic Justice, in ADMINISTRATIVE LAW FROM THE INSIDE OUT: ESSAYS AND
THEMES IN THE WORD OF JERRY MASHAW (Nicholas R. Parrillo ed., 2017) (noting “administrative
audit system” as one alternative to “case-by-case appeal”).
11 ACUS addressed this subject in Recommendation 73-3, Quality Assurance Systems in the

Adjudication of Claims of Entitlement to Benefits or Compensation, 38 Fed. Reg. 16,840 (June 8,
1973). The underlying report is Jerry L. Mashaw, Quality Assurance Systems in the
Adjudication of Claims of Entitlement to Benefits or Compensation (1973) (report to the Admin.
Conf. of the U.S.), https://www.acus.gov/report/project-report-recommendation-73-3.

3

adjudicators are principal officers under the Constitution12 and hence must be
appointed by the President (with Senate confirmation) rather than by other
agency officials. 13 A case pending before the Supreme Court raises the issue in
one particular context. 14 Our recommendations do not depend on how that case
or any others are resolved, although some recommendations will be useful to
agencies that decide to provide for agency-head review, 15 whether for policy
reasons or to remediate potential constitutional problems.
A second and related legal issue we do not address concerns the terms and
conditions under which agencies employ appellate adjudicators who are not
agency heads. The most contentious of them is what, if any, legal protections
against removal agencies should accord them, above and beyond what the civil
service laws may already provide. 16 ACUS studied this issue several years ago,
but could not reach consensus on how it should be resolved on a cross-agency
basis for either hearing-level or appellate adjudicators. 17 Although we do not
revisit it here, we have recommended that agencies disclose certain information
12 U.S. CONST. art. II, § 2, cl. 2.
13 See Fleming v. Dep’t of Agric., No. 17-1246 (D.C. Cir.); see also Arthrex, Inc. v. Smith &

Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019) (holding that agency-appointed administrative
patent judges at the Patent and Trademark Office—who, by statute, issue final decisions—are
unconstitutionally appointed principal officers), cert. granted, No. 19-1434 (Oct. 13, 2020). See
generally Richard J. Pierce, Jr., The Collision Between the Constitution of the 1930s and the
Constitution of 2020, YALE J. ON REG.: NOTICE & COMMENT (Dec. 18, 2019),
https://www.yalejreg.com/nc/the-collision-between-the-constitution-of-the-1930s-and-theconstitution-of-2020-by-richard-j-pierce-jr; William Funk, Fallout from Lucia—The
Unconstitutionality of the Environmental Appeals Board and Interior Board of Land Appeals,
YALE J. ON REG.: NOTICE & COMMENT (Jan. 19, 2019), https://www.yalejreg.com/nc/fallout-fromlucia-the-unconstitutionality-of-the-environmental-appeals-board-and-interior-board-of-landappeals-by-william-funk.
14 Arthrex, 941 F.3d at 1320, cert. granted, No. 19-1434 (Oct. 13, 2020); see also Christopher

J. Walker, The Supreme Court Decides to Hear Arthrex Case to Consider Appointments Clause
Challenge to Administrative Patent Judges, YALE J. ON REG.: NOTICE & COMMENT (Jan. 19,
2019),
https://www.yalejreg.com/nc/the-supreme-court-decides-to-hear-arthrex-case-toconsider-appointments-clause-challenge-to-administrative-patent-judges/.

15 See U.S. Dep’t of Labor, Secretary’s Order No. 01-2020, Delegation of Authority and
Assignment of Responsibility to the Administrative Review Board, 85 Fed. Reg. 13,186 (Mar. 6,
2020) (amending procedures to provide for the Secretary’s review of decisions of internal
appellate bodies previously unreviewable).

16 See Kent Barnett et al., Non-ALJ Adjudicators in Federal Agencies: Status, Selection,
Oversight, and Removal (2018) (report to the Admin. Conf. of the U.S.) [hereinafter Barnett,
Non-ALJ Adjudicators], https://www.acus.gov/report/non-alj-adjudicators-federal-agenciesstatus-selection-oversight-and-removal. This report was published in part as Kent Barnett &
Russell Wheeler, Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and
Removal, 53 GA. L. REV. 1 (2019). Professor Barnett has since made a strong case for agencies
to adopt regulations that would enhance the impartiality of adjudicators. See Kent Barnett,
Regulating Impartiality in Agency Adjudication, 69 DUKE L.J. 1695 (2020).

See Admin. Conf. of the U.S., Administrative Judges, https://www.acus.gov/researchprojects/administrative-judges (last visited Nov. 24, 2020).
17

4

about adjudicators’ terms and conditions of employment. 18 That may overlap
with recommendations arising from another pending ACUS project devoted
exclusively to the disclosure of information about adjudicators. 19
The Report proceeds as follows. Part I provides necessary background on
agency appellate programs (their structures, objectives, and legal bases), prior
ACUS recommendations on the subject, and judicial review of agency
adjudication decisions. Part II explains our study methodology. Part III sets
forth our main findings. Part IV details our recommendations for ACUS’s
consideration. The Conclusion offers some possibilities for further ACUS study.

I.
A.

BACKGROUND ON AGENCY APPELLATE REVIEW

Coverage: Defining Agency Appellate Review

Defining agency “appellate review” can be problematic, especially outside the
context of review of ALJ decisions. The term does not have a single accepted
meaning in agency adjudication, as appellate review does in the federal courts.
Numerous adjudication programs hear “appeals”—and may even have “appeal”
in their names—but they would not normally be thought of as undertaking an
appellate function. While these programs provide for review of a front-line
official’s adjudication decision (rendered after an informal decision-making
process), 20 they usually do so through a de novo evidentiary proceeding that
results in a “new” decision, which itself is then subject to higher-level agency
review. (The evidentiary record before the front-line official may still play an
important role in the proceedings.) The proceedings are trial-like, not appellate.
Examples include the adjudication proceedings handled by HHS’s Office of
Medicare Hearings and Appeals (OMHA) 21 and the MSPB’s administrative
judges in the exercise of the MSPB’s so-called “appellate jurisdiction.” 22
At the same time, the term “appellate review” cannot be reserved exclusively
for agency programs (of which there are many) that review adjudication
decisions resulting from a full evidentiary hearing on the basis of a closed and
18 See Part III.F.6 infra.
19 Admin. Conf. of the U.S., Public Availability of Information About Agency Adjudicators,

https://www.acus.gov/research-projects/public-availability-information-about-agencyadjudicators (last visited Nov. 24, 2020).

20 As distinct from, say, a prosecutorial-type decision to issue a complaint. See MICHAEL
ASIMOW, ADMIN. CONF. OF THE U.S., FEDERAL ADMINISTRATIVE ADJUDICATION OUTSIDE THE
ADMINISTRATIVE PROCEDURE ACT 8–9 (2019) [hereinafter ASIMOW, ADJUDICATION SOURCEBOOK],
https://www.acus.gov/publication/federal-administrative-adjudication-outside-administrativeprocedure-act.
21 OMHA characterizes its decisions as “new.” U.S. Dep’t of Health & Hum. Servs., Level
Three Appeals (OMHA), https://www.hhs.gov/about/agencies/omha/the-appeals-process/level3/index.html (last visited Nov. 24, 2020).
22 See App. C (HHS); App. J (MSPB).

5

exclusive record of documentary evidence, transcripts, and dockets of the sort
familiar in federal courts. 23 One reason why is that any number of adjudicative
offices that otherwise perform only traditional appellate functions sometimes
hear new evidence on appeal in a way unknown to federal-court appellate
practice. The SSA Appeals Council is but one example. 24
Another reason is that some adjudicative offices that perform mostly triallike functions also perform appellate functions. The trial and appellate functions
can even be commingled. A notable example (though an outlier, to be sure) is
offered by the Patent Trial and Appeals Board (PTAB) at the U.S. Patent and
Trademark Office (PTO). 25 It has both hearing-level and appellate jurisdiction.
Even its original-jurisdiction adjudications have an appellate character. Its
judges sit in three-member panels and issue final agency decisions, reviewing
decisions by patent examiners. The decisions are subject to reconsideration,
sometimes with additional judges added to the panel, by order of the PTO’s
director. The director through a precedential opinion panel may designate panel
decisions as precedential and hence binding on the program’s several-hundred
judges in all future cases. 26 Any number of other adjudication programs likewise
defy easy categorization. 27 Among them is the benefits program administered
by the Board of Veterans’ Appeals (BVA). 28
This Report is mainly concerned with agency review of an adjudication
decision based largely—even if not always exclusively—on the evidentiary
record in the proceeding from which the decision arose, whether or not the
agency review is subject to yet additional layers of internal review. Hence it
covers what might be called conventional appellate review. But the Report is
also concerned with some adjudication decisions arising from de novo
evidentiary proceedings—most, but not all, following a decision by a frontline
adjudicator in an informal proceeding—that may have some appellate
characteristics. Again, the PTAB is illustrative. Any more precision in defining
“appellate review” is neither possible nor necessary to this undertaking. We
trust that it will be clear enough to agencies whether the findings and
recommendations offered here are relevant to their programs.
23 See Fed. R. App. P. 10. Fact-finding by the federal courts of appeals is limited. See, e.g.

Adam Zimmerman, The Appellate Class Action (unpublished manuscript).

24 See App. N (SSA); see also Office of the Chairman, Assessing the Impact of the Region I

Pilot Program (2013) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/
assessing-impact-region-i-pilot-program.
25 See App. L (PTO).

26 See Christopher J. Walker & Melissa F. Wasserman, The New World of Agency
Adjudication, 107 CALIF. L. REV. 141, 157–60, 178–80, 194–96 (2019); App. L (PTO); ASIMOW,
ADJUDICATION SOURCEBOOK, supra note 20, at 163–71.
27 Compare the Civilian Board of Contract Appeals, discussed in ASIMOW, ADJUDICATION
SOURCEBOOK, supra note 20, at 115.
28 See App. G (VA).

6

One final necessary point is that what we include under the rubric of
appellate review does not depend on whether the decision under review in the
context of an adjudication is subject to the APA’s formal hearing provisions. 29
Most agency adjudications are not subject to those provisions, and yet many of
them are conducted with sufficient procedural formality (sometimes more
formality than APA adjudications) so as to demand appellate review structures
and procedures the same or similar to those used in APA adjudications. 30
B.

Structures of Agency Appellate Review

1. Categories. Agency appellate review can be structured in a myriad of
ways. 31 In his 1983 study for ACUS, Professor Cass used a typology under which
he identified twenty-two possible appellate structures, fourteen of which were
then in use in APA adjudications alone. 32 He identified which structure each
APA adjudication program employed, either by statutory requirement or
administrative discretion. 33 Such a cataloguing exercise that covered both APA
and non-APA adjudications would be near impossible.
Most agency appellate programs, though, can comfortably fit within one of
the four broad categories that follow, allowing for minor qualifications. As our

29 See 5 U.S.C. §§ 554, 556–557.

30 In reliance on the work of Professor Michael Asimow, recent ACUS recommendations

divide adjudications into three categories: (1) those subject to formal hearing provisions of the
APA (or APA adjudications); (2) those in which a statute, regulation, or executive order requires
an evidentiary hearing, but are not subject to those provisions; and (3) those in which no
evidentiary hearing is legally required. See, e.g., Admin. Conf. of the U.S., Recommendation
2016-4, Evidentiary Hearings Not Required by the Administrative Procedure Act, 81 Fed. Reg.
94,314 (Dec. 23, 2016). Professor Asimow’s report underlying Recommendation 2016-4 calls
these adjudications Type A, Type B, and Type C, respectively. See Michael Asimow, Evidentiary
Hearings Outside the Administrative Procedure Act (2016) (report to the Admin. Conf. of the
U.S.) [hereinafter Asimow, Evidentiary Hearings], https://www.acus.gov/report/evidentiaryhearings-outside-administrative-procedure-act-final-report; see also Michael Asimow, Best
Practices for Evidentiary Hearings Outside the Administrative Procedure Act, 26 GEO. MASON L.
REV. 923 (2019). For an expanded discussion, see ASIMOW, ADJUDICATION SOURCEBOOK, supra
note 20, 15–24. Most of the appellate programs with which we are concerned review decisions
arising from Type A and Type B adjudication—but not all. Some programs that review Type C
decisions are functionally and structurally similar enough to justify coverage in this Report.
31 See Recommendation 2016-4, supra note 30, at 94,315; ASIMOW, ADJUDICATION
SOURCEBOOK, supra note 20, at 84; see also KENNETH CULP DAVIS, DISCRETIONARY JUSTICE: A
PRELIMINARY INQUIRY 145 (1969) (emphasizing “divers[ity]” of appellate agencies).

32 See Cass, supra note 2, at 157–59; cf. Weaver, supra note 2, at 253–270 (placing “review
structures” into one of four categories).
33 See Cass, supra note 2, at 201–17. A summary table appears on page 217.

7

classification system reflects, an important feature of appellate review programs
is whether they provide for some form of agency-head review. 34
a. Direct Review of Hearing-Level Adjudicator’s Decision by Agency Head.
The agency head directly reviews the decision of a hearing-level adjudicator. No
agency-head delegate or intermediate review body is interposed between the
adjudicator and the agency head. Review is usually either as of right at the
request of a party (mandatory review) or at the discretion of the agency head
(either on the application of a party or, less commonly, its own initiative). Even
when review is discretionary, a statute or, more commonly, a procedural rule
often sets forth a standard or criteria to guide or circumscribe the discretion. 35
Many agencies that fall into this first category are traditional independent
regulatory boards and commissions. They include the NLRB (review as of right
in unfair-labor-practice cases), the SEC (review at the discretion of the agency
head), and the MSPB (review at the discretion of the agency head). 36
b. Review by an Agency-Head Delegate—Often a Multi-Member Appellate
Body—Resulting in a Final Decision Unreviewable by the Agency Head. The
agency head delegates her authority to review the lower-level adjudicator’s
decision to a subordinate official(s), often a multi-member appellate body, who
issues a final decision on the agency head’s behalf. (The agency could be an
administration within an agency. 37) The delegation is sometimes, though not
usually, made with explicit statutory authorization. The delegation is almost
always on a standing, class-wide basis rather than a one-time, individual-case
basis. Review can be as of right or discretionary. Notable appellate bodies in this
category include the SSA Appeals Council, and, subject to narrow exceptions
and with allowances for minor qualifications, the Environmental Appeals Board
(EAB) at the Environmental Protection Agency (EPA). 38
c. Review by a Statutorily Authorized Appellate Decisionmaker—Often a
Multi-Member Body—Resulting in a Final Decision Unreviewable by the Agency
Head. Unlike in the previous category, in which the agency creates an appellate
body, this category involves a statutorily created appellate body. A statute vests
authority in an agency official(s) (often a multi-member board) to issue final
34 See Walker & Wasserman, supra note 26, at 174–88; Harold J. Krent, Presidential Control

of Adjudication within the Executive Branch, 65 CASE W. RES. L. REV. 1083 (2015); Weaver,
supra note 2.
35 See, e.g., App. J (MSPB).

36 See App. K (NLRB); App. M (SEC); App. J (MSPB); see also App. I (EEOC).

37 See Weaver, supra note 2, at 265; see also 5 U.S.C. § 551(1) (referring to agencies “within”
agencies).

38 See App. N (SSA); App. H (EPA). While EPA has not provided for appellate review of most

EAB decisions by its Administrator, its regulations do reserve the Administrator’s authority to
modify an EAB decision on her own initiative. That authority has not been exercised. EPA rules
also authorize the General Counsel to provide a binding interpretation of a statute or rule in
EAB proceedings. See App. H. (EPA).

8

decisions. Review by the official can be mandatory or discretionary, but is
usually mandatory. The decision is unreviewable by the agency head, as a
matter of either law or practice. A notable example is the VA’s Board of
Veterans’ Appeals. 39 Another is the Department of Agriculture’s Judicial
Officer. 40 The PTAB, noted above, can also be put in this category.
d. Review by an Intermediate Appellate Adjudicator—Often a Multi-Member
Appellate Body—Resulting in a Decision Subject to Agency Head Review. A
statute or agency rule assigns appellate review to an intermediate adjudicator,
often a multi-member appellate body. (If the assignment is made by a rule, the
review will be by an agency-head delegate.) That adjudicator’s decision will be
subject to (usually discretionary) review by the agency head. The most notable
example is DOJ’s immigration adjudication program, under which the Board of
Immigration Appeals’ decisions are subject to discretionary review by the
Attorney General. 41 Another notable example is Department of Labor’s (DOL’s)
Administrative Review Board, which decisions the Secretary of Labor recently
made subject to discretionary secretarial review. 42
2. Governing Law. The structure of an appellate program can be the result
of statutory law or an agency rule, or a combination of both. Most agencies’
programs are administratively established by rule as far as their particulars are
concerned, but there are notable exceptions, among them the PTO (for patent
cases) and the Veterans Administration (for veterans benefit cases). Whatever
the legal basis of an appellate program’s structure, it usually enjoys
considerable administrative discretion to make the procedural choices reflected
in Parts III (Findings) and IV (Recommendations) of this Report.
C.

Models and Objectives of Agency Appellate Review

“Modern administrative law,” as Professor Thomas Merrill chronicled nearly
a decade ago, “is built on the appellate review model of the relationship between
reviewing courts and agencies.” 43 This appellate review model resembles
judicial review of trial-court civil litigation. In particular, the appellate court
reviews a closed record, and the standard of review varies based on the
comparative competence of the trial and appellate court. At one extreme,
appellate courts defer to trial courts as to factual findings. At the other extreme
of purely legal questions, appellate courts engage in more searching review.

39 See App. G (VA).

40 See ASIMOW, ADJUDICATION SOURCEBOOK, supra note 20, at 109.
41 See App. E (DOJ). See generally Walker & Wasserman, supra note 26, at 171–73.

42 U.S. Dep’t of Labor, Secretary’s Order No. 01-2020, Delegation of Authority and
Assignment of Responsibility to the Administrative Review Board, 85 Fed. Reg. 13,186 (Mar. 6,
2020).

43 Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate

Review Model of Administrative Law, 111 COLUM. L. REV. 939, 940 (2011).

9

To be sure, an appellate review model is not the only one that could have
developed in the administrative law context. Indeed, as Professor Merrill
detailed, prior to the early twentieth century, the model was quite different,
with no judicial review at all for some agency actions and mandamus-like review
for others. 44 The appellate review model emerged, he argued, in response to
backlash over the Supreme Court’s searching review of rate and service orders
of the Interstate Commerce Commission and Congress’s enactment of the
Hepburn Act of 1906. 45
When we think of appellate review within an agency, we may be tempted to
gravitate to this familiar appellate model of judicial review of administrative
action. Put differently, we may view the objectives of agency appellate review as
the same as those for judicial review. That would be a mistake. Agency appellate
review may well serve distinct purposes. For example, as Professor Cass
outlined in his 1983 ACUS report, administrative law scholarship has often
reflected two different, contrasting models for agency decision making: (1) the
“judicial model,” in which “a neutral arbiter weighs evidence and ascertains
facts”; and (2) the “political model,” in which “decisions do not turn on
descriptive facts but on the identity of interested parties, the intensity of their
interests, and on assumptions about the impact of particular decisions on future
events.” 46 When it comes to agency adjudication, Professor Cass ultimately
concluded that these models are synthesized: the hearing-level agency
adjudicators largely embrace the judicial model, whereas the appellate review
function may incorporate more of the political model. 47
When it comes to agency appellate review, moreover, James Freedman in
1969 identified two distinct models: (1) the “judicial model,” which consists of
error correction and the application of law to fact without engaging in
policymaking; and (2) the “administrative model,” which includes “deciding
appeals in adjudication cases as well as formulating policy.” 48 In assessing
whether Congress should enact legislation to authorize intermediate appellate
review boards at federal agencies, Professor Freedman emphasized that
Congress should not mandate a one-size-fits-all model and set of procedures.
After all, “agencies that establish Review Boards will not do so for the same
reasons,” and the models they adopt “will reflect different estimates of different
needs in different agencies.” 49
44 See id. at 946–53.

45 See id. 953–65; see also id. at 965–972 (detailing the “entrenchment of the appellate review

model” by 1930).

46 Cass, supra note 2, at 117.

47 See id. at 121–24. One of us has made a similar observation with respect to the
constitutional tensions in agency adjudication between decisional independence and political
accountability. See Christopher J. Walker, Constitutional Tensions in Agency Adjudication, 104
IOWA L. REV. 2679 (2019).
48 Freedman, supra note 3, at 558–59.
49 Id. at 575.

10

In surveying agency appellate programs and interviewing their leaders
across the federal regulatory state, it becomes immediately apparent that the
judicial model of appellate review is not the predominant one within agencies,
although it does play an important role in many programs. Neither is there—
nor should there be—one unifying model. Agencies operate appellate review
programs for distinct purposes. Sometimes the agency does so because Congress
has commanded a certain objective or multiple objectives in appellate review.
Other times, the agency itself has exercised its discretion to focus appellate
review on certain objectives, which hopefully advance the statutory purposes of
the agency adjudication program as a whole.
This is not merely a point of academic interest. The purpose of appellate
review will dictate—or should dictate if the agency is functioning competently—
the key procedural choices an agency must make. One helpful example is
whether (when the agency has a choice) appellate review is discretionary or
mandatory, and, if discretionary, what criteria is used to decide which appeals
to hear. An agency cannot answer those questions without considering the
agency’s objectives in appellate review. Consider, for instance, the U.S. Supreme
Court’s approach to managing its discretionary certiorari docket. Supreme
Court Rule 10 outlines the considerations for granting review. It notes that
review is “granted only for compelling reasons,” and then it sets forth three
reasons that are “neither controlling nor fully measuring the Court’s discretion.”
The three reasons proffered (a circuit-court conflict, a state-supreme-court
conflict, and “an important question” of federal law) all underscore that the
Court’s discretionary docket is not about just error correction. Indeed, Rule 10’s
final sentence makes that plain, providing that a petition “is rarely granted
when the asserted error consists of erroneous factual findings or the
misapplication of a properly stated rule of law.”
With the vast and varied administrative adjudications taking place in the
federal administrative state today, it should surprise no one that there is not
one unified model of agency appellate review. Nor should there be, in light of
the diverse purposes in each administrative adjudication program. What is
surprising, however, is that the literature has not seemed to develop a taxonomy
of objectives that would motivate agency appellate review models. At least seven
such objectives emerged from our study of appellate programs. Each one merits
some elaboration here.
1. Error Correction. A conventional rationale for appellate review is to
correct errors in the hearing-level adjudication. 50 These errors could involve
articulating the legal standard, applying the law to particular facts, and perhaps
even factfinding. The correction of an error itself may be a compelling
justification for appellate review. Moreover, as Steven Shavell has explained, an
efficient appellate review process “may render society’s investment in the
appeals process economical by comparison to its improving the accuracy of the
50 See generally Chad M. Oldfather, Error Correction, 85 IND. L.J. 49 (2010).

11

trial process—an approach that, by its nature, would require extra expenditure
in every case.” 51 In other words, an agency may decide that, if the goal is to
minimize erroneous adjudication outcomes generally, investing in appellate
review is more cost-effective than investing in further improving the hearinglevel agency adjudications.
A related purpose that we group with error correction is “error prevention:
inducing trial court judges to make fewer errors because of their fear of
reversal.” 52 The threat of further review may well encourage the hearing-level
adjudicators to avoid errors in the first place.
2. Inter-Decisional Consistency. Much of the agency adjudication
scholarship in recent years has focused on the importance of inter-decisional
consistency among hearing-level adjudications. As David Hausman put it in the
immigration adjudication context, “Uniformity is both a goal of appeals
processes and an indication that they are functioning properly.” 53 In other
words, agency appellate review should seek to ensure that like individuals are
treated the same, regardless of the identity of the hearing-level adjudicator. In
the patent adjudication context, Professors Michael Frakes and Melissa
Wasserman have argued that inter-decisional inconsistency can be evidence of
hearing-level adjudicators committing routine errors and can erode public
confidence that the adjudication system is fair and nonarbitrary. 54 Some
scholars of the social security adjudication system have similarly argued that
consistency can serve as a proxy for accuracy, apart from whatever due-process
norms the former serves. 55
This focus on consistency is not new to the literature. Back in the 1980s, it
was captured in Jerry Mashaw’s “bureaucratic rationality” model for
administrative action, which aims “to minimize the sum of error costs and
administrative costs.” 56 At bottom, Professor Mashaw’s concept of “bureaucratic
rationality,” as Robert Kagan has summarized it, is a model of administrative
adjudication that facilitates “[g]reater control and consistency” by placing the
51 Steven Shavell, The Appeals Process as a Means of Error Correction, 24 J. LEGAL STUD.

379, 381–82 (1995).

52 Id. at 425–26.

53 David Hausman, The

(2016).

Failure of Immigration Appeals, 164 U. PA. L. REV. 1177, 1181

54 Michael D. Frakes & Melissa F. Wasserman, Patent Trial and Appeal Board's
Consistency-Enhancing Function, 104 IOWA L. REV. 2417, 2421–23 (2019).
55 See, e.g., Richard J. Pierce, Jr., Political Control Versus Impermissible Bias in Agency
Decisionmaking: Lessons from Chevron and Mistretta, 58 U. CHI. L. REV. 481, 510 (1990).

56 Jerry L. Mashaw, Conflict and Compromise Among Models of Administrative Justice, 1981

DUKE L.J. 181, 185 (1981). For purposes of this Report, we bracket Mashaw’s competing
“professional treatment” and “moral judgement” models, which emphasize client satisfaction
and fair resolution of controversies, respectively. See, e.g., id. at 190 tbl.A. These may well be
additional objectives for administrative action. Based on our study, however, they do not seem
to have much traction today in the rationales for agency appellate programs.

12

“overriding value” on “accurate, efficient and consistent implementation of
centrally-formulated policies.” 57
3. Policymaking. In the judicial appellate review context, the “creation and
refinement of law” is often proffered as a core rationale. 58 In the agency
appellate review context, the somewhat analogous function of policymaking may
be a legitimate objective. In its seminal decision in SEC v. Chenery, the Supreme
Court held that an agency has the discretion to proceed by rulemaking or caseby-case adjudication in order to establish agency policy. 59 There is a long history
of agency heads—as well as intermediate review bodies—utilizing appellate
review to establish or further develop policy for the agency as a whole. 60
At first blush, it may seem like policymaking through agency appellate
review falls exclusively within Professor Cass’s “political model” for
administrative action. 61 On closer examination, however, it is not just about
implementing the agency’s (or presidential administration’s) policy preferences
within the agency’s statutory authority. Effective policymaking via appellate
review can also advance the “judicial model” and related concerns about error
correction and inter-decisional consistency. As Judge Henry Friendly observed
long ago, a critical problem with administrative action “is the failure to develop
standards sufficiently definite to permit decisions to be fairly predictable and
the reasons for them to be understood.” 62 Policymaking via agency appellate
review can lead to greater consistency in adjudication outcomes at both the
hearing and appellate levels.

57 Robert A. Kagan, Inside Administrative Law, 84 COLUM. L. REV. 816, 820 (1984). See

generally JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY
CLAIMS 25–26 (1983); Jerry L. Mashaw, The Management Side of Due Process, 59 CORNELL L.
REV. 772 (1974).
58 Oldfather, supra note 50, at 49 (“Most depictions of appellate courts suggest that they

serve two core functions: the creation and refinement of law and the correction of error.”).

59 Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 203 (1947) (“There is thus a very

definite place for the case-by-case evolution of statutory standards. And the choice made
between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily
in the informed discretion of the administrative agency.”).

60 One of us has argued that the Executive Branch in the immigration context should flip
the policymaking default from agency adjudication to rulemaking. See Shoba Sivaprasad
Wadhia & Christopher J. Walker, The Case Against Chevron Deference in Immigration
Adjudication, 70 DUKE L.J. (forthcoming 2021), https://ssrn.com/abstract=3662827.
61 There is ample scholarship supportive and critical of agency policymaking by adjudication.
See, e.g., M. Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REV. 1383,
1396–97 (2004); David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development
of Administrative Policy, 78 HARV. L. REV. 921, 922 (1965).

HENRY FRIENDLY, THE FEDERAL ADMINISTRATIVE AGENCIES: THE NEED FOR BETTER
DEFINITION OF STANDARDS 5–6 (1962).
62

13

4. Political Accountability. Professor Ronald Levin has observed that the
“standard federal model” for administrative adjudication continues to vest final
decision-making authority in the agency head. 63 One reason for that is political
accountability. As noted in the Introduction, the Supreme Court has become
increasingly interested as a constitutional matter in ensuring that the President
has sufficient control over the bureaucracy.
In Lucia v. SEC, for instance, the Court held that ALJs at the SEC are at
least “inferior officers” under the Appointments Clause, and thus must be
appointed by the agency head (or the President). 64 In a concurring opinion joined
by Justice Gorsuch, Justice Thomas grounded his approach in the importance
of political accountability in the administrative state: “[B]y specifying only a
limited number of actors who can appoint inferior officers without Senate
confirmation, the Appointments Clause maintains clear lines of accountability—
encouraging good appointments and giving the public someone to blame for bad
ones.” 65 Agency appellate review, when designed to facilitate agency-head
oversight, can similarly help advance this political accountability value by
ensuring that the Senate-confirmed agency head, or her designee, can exercise
final decision-making authority in agency adjudication.
5. Management of the Hearing-Level Adjudication Program. Due to
concerns for decisional independence of the hearing-level agency adjudicators
and for the separation of enforcement and adjudicative functions at the agency,
the adjudicative functions hearing-level officials undertake are often quite
insulated from the agency head and other high-level policymakers. Yet for
political accountability and other policy reasons, and in some cases because a
statute mandates a particular approach, the agency head needs to ensure that
hearing-level adjudications are as fair, consistent, and efficient as possible.
Some agencies may also have a related objective of preventing fraud at the
hearing level. Appellate review helps the agency head promote and ensure such
values in the hearing-level adjudication program. It does so through the mix of
values already discussed—error correction, error prevention, inter-decisional
consistency, and policymaking.

63 Ronald M. Levin, Administrative Judges and Agency Policy Development: The Koch Way,
22 WM. & MARY BILL RTS. J. 407, 412 (2013).

64 Lucia v. Sec. & Exch. Comm’n, 138 S. Ct. 2044, 2049 (2018) (citing the Appointments
Clause, U.S. CONST. art. II, § 2, cl. 2).

65 Id. at 2056 (Thomas, J., concurring); see also Jennifer L. Mascott, Who Are “Officers of the

United States”?, 70 STAN. L. REV. 443, 564 (2018) (arguing that “realignment of Article II officer
status with the original meaning of the Appointments Clause would help to bring about greater
democratic accountability by making it clearer that department heads are responsible at every
step of the way for properly managing their agencies in the best interest of the public”).

14

6. Organizational Effectiveness and Systemic Awareness. A related
benefit of appellate review is, as Professor Russell Weaver has put it, that it
“helps the agency head gain greater awareness of how a regulatory system is
functioning.” 66 Such awareness does not just assist the agency head and agency
leadership more generally in tailoring training and instruction for the agency’s
adjudicators. It also helps the agency head consider whether adjustments to the
regulatory scheme are necessary via rulemaking, precedential adjudication,
agency guidance, legislative recourse, or other means. Such awareness is even
more critical with respect to agencies that have substantial enforcement or
similar regulatory responsibilities. As Melissa Wasserman and one of us have
observed in the patent adjudication context:
This benefit is quite significant to the Patent Office. The Patent
Office employs more than 8,000 patent examiners that process over
600,000 patent applications per year. As one of us [Wasserman]
has explored in a series of papers, the quality and consistency of
patent examination varies widely, and effective training can play
a significant role in improving agency adjudication at the patentissuing level. The better the Director understands how the
regulatory system is functioning, the better positioned she is to
address systemic issues through further guidance and training.
Final decision-making authority of PTAB decisions would aid on
that front. 67
7. Reduction of Federal-Court Litigation. A final objective for agency
appellate review programs is to reduce the number of cases that get appealed to
the federal courts. This is an objective that Congress cares about generally when
creating administrative agencies and procedures. One of ACUS’s five main
purposes, in fact, is “to reduce unnecessary litigation in the regulatory
process.” 68 And this objective is particularly salient in the agency adjudication
context, where adjudication is often perceived as a cheaper, more efficient
alternative to traditional litigation in federal court.
Consider, for instance, Congress’s creation of the PTAB in the America
Invents Act of 2011. 69 The America Invents Act was enacted, in part, to respond
to the growing criticism that the Patent Office issues too many invalid patents,
which harms consumer welfare. 70 Although federal courts can invalidate invalid
patents, the cost of patent litigation had skyrocketed over the prior decade. This
has hampered the ability of patent holders with meritorious claims to challenge
66 Weaver, supra note 2, at 289.
67 Walker & Wasserman, supra note 26, at 177–78 (footnotes omitted).
68 5 U.S.C. § 591(3).

69 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011).

70 Michael D. Frakes & Melissa F. Wasserman, Does the U.S. Patent and Trademark Office

Grant Too Many Bad Patents?: Evidence from a Quasi-Experiment, 67 STAN. L. REV. 613, 621
(2015).

15

invalid patents in federal court. The new PTAB adjudication proceedings were
designed to create a cheaper, faster alternative to district court litigation. 71
Agency appellate review can play an important role in filtering out cases
from reaching federal courts—thus reducing the use of federal court resources
for administrative actions and making the administrative process cheaper and
more accessible for everyday Americans.
D.

Conference Recommendations and Model Appellate Rules

1. Recommendations 68-6 and 83-3. ACUS has issued two cross-agency
recommendations on appellate review in APA adjudications: Recommendation
68-6, Delegation of Final Decisional Authority Subject to Discretionary Review
by the Agency, 72 and Recommendation 83-3, Agency Structures for Review of
Decisions of Presiding Officers Under the Administrative Procedure Act. 73 Both
favor discretionary rather than mandatory agency-head review. And both
provide for, in many cases at least, an intermediate level of review: in the case
of 68-6, by an “intermediate appellate body”; in the case of 83-3, by such a body
or individual delegate. Recommendation 83-3 is perhaps best seen as an
elaboration of Recommendation 68-6. A few differences are noted below.
Recommendation 68-6 asked agencies with “substantial caseloads” to
consider establishing—and Congress to amend the APA “as necessary to clarify”
their authority to establish 74—either (1) “intermediate appellate boards” or (2)
procedures for making presiding officers’ (usually ALJs’) decisions final, subject
to summary affirmance or discretionary review by the agency head. Appellate
boards, Recommendation 68-6 provided, should be authorized to make final
71 See Walker & Wasserman, supra note 26, at 157–58.
72 Recommendation 68-6, supra note 3. No ACUS recommendation specifically discusses
appellate review in non-APA adjudication programs except for Recommendation 2016-4, supra
note 30, which provides that agencies should provide for such review, but does not elaborate on
what form it should take. Professor Asimow’s ACUS-sponsored sourcebook on adjudication
addresses, and makes some recommendations concerning, certain features of appellate review
in non-APA adjudications. See ASIMOW, ADJUDICATION SOURCEBOOK, supra note 20, at 84–85.
Our recommendations are in accord.

73 Recommendation 83-3, supra note 2. A related recommendation on which we draw is

Admin. Conf. of the U.S., Recommendation 71-1, Interlocutory Appeal Procedures, 38 Fed. Reg.
19,787 (July 23, 1973). The associated report is Ernest Gellhorn & Paul B. Larsen, Interlocutory
Appeal Procedures in Administrative Hearings, 70 MICH. L. REV. 109 (1971). ACUS has issued
a number of agency-specific recommendations on appellate review. See, e.g., Recommendation
2013-1, Improving Consistency in Social Security Disability Adjudication, 78 Fed. Reg. 41,352
(July 10, 2013); Recommendation 90-4, Social Security Disability Program Appeals Process:
Supplemental Recommendation, 55 Fed. Reg. 34,213 (Aug. 22, 1990); Recommendation 87-7, A
New Role for the Social Security Appeals Council, 52 Fed. Reg. 49,143 (Dec. 30, 1987);
Recommendation 86-5, Medicare Appeals, 51 Fed. Reg. 46,987 (Dec. 30, 1986). For the associated
reports, see Adjudication, ACUS, https://www.acus.gov/adjudication#appellate_systems (last
visited Nov. 24, 2020).
74 See Cass, supra note 2, at 148 (noting ambiguity, reflected in Recommendation 68-3, as to

whether 5 U.S.C. § 557 requires agency-head review).

16

decisions, subject to discretionary review by the agency head, whether on a
party’ motion or its own initiative. When direct agency-head review of ALJ
decisions is provided, the agency should be able to “accord” finality to the
decision either by declining review or summarily affirming it unless a party
makes a “reasonable showing that” a “prejudicial error was committed” or the
“initial decision embodies” a “finding . . . of material fact which is erroneous or
clearly erroneous” or an erroneous legal conclusion. The agency head can also
review decisions that present an “important” issue of “law or policy.”
Recommendation 83-3 addressed the “organizational structures which
agencies establish to review” decisions of presiding officers. ACUS concluded
that existing appellate programs were too varied to prescribe any “single
structure” and that, “[b]y and large,” the existing “structures seem[ed] well
adapted to the particular circumstances of the agency.” Instead, ACUS provided
“general guidance” to agencies in establishing new and in reviewing existing
structures. Its most important recommendations were as follows:
a. Agency Head Review (§ 1). Congress should not require agency heads to
review every hearing-level decision. Review should be discretionary. Congress
should authorize agency heads to delegate—on an “ad hoc” or class-wide basis—
review authority to “subordinate” officials “either with the possibility for further
review by the agency head in his discretion or without further administrative
review.”
b. Forms of Delegation (§ 2). Agency heads that have delegable review
authority should delegate it on a class-wide (not ad hoc) basis in any system that
adjudicates a “substantial number of cases.” If the agency head retains further
review authority, it should “be exercisable” only when “important policy issues
are presented” or the “delegate erroneously interpreted agency policy.”
“Multilevel review of purely factual issues should be avoided.”
c. Agency Head Choice of Delegate (§ 3). Delegation can be to an individual
subordinate, a multi-member board, or, in the case of a multi-member agency
(e.g., SEC), a panel of the agency’s members. Individual delegates are favored
when the cases are voluminous, “simple,” and mostly fact-dependent. Board
delegates are favored when the case volume is still “substantial,” but the cases
are “more complex” and time-consuming. Agency panels, in the case of multimember agencies, are favored when the caseload is large, and it is “difficult” to
“elaborate or clarify” agency policy (especially through rulemaking) in “a
manner that will substantially limit the number of significant policy issues
presented in adjudications.”
d. Standards for Granting Review (§ 4). Agencies need not necessarily
provide review as of right before the delegate. They may wish to authorize the
delegate to decline review in “routine cases” absent a “reasonable showing” that
the ALJ committed “prejudicial procedural error” or that the ALJ’s decision
“embodies” a “finding or conclusion of material fact which is erroneous or clearly
erroneous,” a “legal conclusion which is erroneous,” or “an exercise of discretion
or decision of law or policy which is important and should be reviewed.” Sua
17

sponte review should be provided only for “policy issues.” This standard tracks
the standard of Recommendation 68-6 addressing when agency heads should
review decisions of ALJs.
Small differences—perhaps unintended—between Recommendation 68-6
and Recommendation 83-3 will be noticed. One is that Recommendation 68-6
seems to contemplate that intermediate appellate review should be as of right
(although it does provide that agencies might “[r]estrict the scope of review”),
whereas Recommendation 83-3 says that review need not necessarily be as of
right. Recommendation 83-3 provides standards governing when review might
be withheld in “routine” cases. Moreover, Recommendation 68-6 contemplates
intermediate review by a multi-member body, whereas Recommendation 83-3
provides that in some cases review might best be undertaken by a single
adjudicator.
2. Model Appellate Rules. In 2018, a working group commissioned by
ACUS’s Office of the Chairman issued a substantial revision to ACUS’s Model
Adjudication Rules. 75 Rules 400–450 (“Administrative Review”) offer model
rules for appellate practice, both in APA and similarly formal non-APA
adjudications. 76 They reflect the working group’s careful review of, among other
sources, numerous agency rules, the Federal Rules of Appellate Procedure, and
several federal circuits’ rules. Rules 400–450 are reproduced, with the reporter’s
comments, in Appendix B, and they are relied on in this Report. The Rules were
not put before ACUS’s Assembly for a vote. Hence they do not have the status
of a formal recommendation.
E.

Judicial Review

Just a few observations on this vast subject will be useful here. 77 Most final
agency adjudication orders are subject to judicial review in a federal court, if not
under a program-specific statute then under the APA. 78 The order must be
75 MODEL RULES, supra note 1.

76 Id. The reporter was Professor Kent Barnett. One of the authors of this Report (Wiener)
chaired the subgroup assigned to draft the appellate rules.

77 For more information on judicial review of agency adjudication orders, see MICHAEL HERZ,

RICHARD MURPHY & KATHRYN WATTS, EDS., A GUIDE TO JUDICIAL AND POLITICAL REVIEW OF
FEDERAL AGENCIES 1–257 (ABA, 2d ed. 2015); ABA SECTION OF ADMIN. LAW & REG. PRAC., A
BLACKLETTER STATEMENT OF FEDERAL ADMINISTRATIVE LAW 31–66 (2d ed. 2013). ACUS will
soon publish a sourcebook, written by Professor Jonathan Siegel, on federal statutes governing
judicial review of agency action. See JONATHAN SIEGEL, ADMIN. CONF. OF THE U.S., SOURCEBOOK
OF FEDERAL JUDICIAL REVIEW STATUTES (forthcoming), https://www.acus.gov/researchprojects/sourcebook-federal-judicial-review-statutes (last visited Nov. 24, 2020).
78 See 5 U.S.C. §§ 701–706. Jurisdiction is conferred either by a program-specific statute or

the general federal-question jurisdictional statute, 28 U.S.C. § 1331. The APA (in particular, 5
U.S.C. § 702) does not itself confer jurisdiction on federal courts. See Califano v. Sanders, 430
U.S. 99 (1977). A cause of action is provided either by a program-specific statute or, if there is
none, then by the APA itself. See 5 U.S.C. § 704.

18

final. 79 When it becomes final depends on the statute or regulations governing
the particular program. 80
Before seeking judicial review, litigants generally must have exhausted any
required administrative remedies—that is, for purposes of this Report, availed
themselves of any required agency appellate review. The review must
specifically be required by statute or regulation. If agency appellate review is
optional, then, under the APA, a litigant may seek judicial review without first
seeking agency appellate review. 81 Most agency rules of practice are drafted
with these principles in mind.
Jurisdiction to review adjudication orders lies in a federal district court, in
the first instance, unless a specific statute provides for review in an Article I
court or directly in an Article III federal court of appeals. A number of statutes
do just that, including those governing many adjudications under the APA’s
formal hearing provisions. 82 The decisions of about half the adjudication
programs studied in this Report are subject to direct review in the courts of
appeals. 83 Venue often lies not only in the circuit where the petitioner resides or
the case arose, but also in the D.C. Circuit. 84 A few agencies’ decisions are
subject to review only in a single circuit. 85
Under the APA’s scope-of-review provision, a reviewing court must “set
aside” an adjudication order that, among other things, is arbitrary and
capricious, contrary to law, or, in the case of its factual findings, “unsupported
by substantial evidence.” 86 Program-specific review statutes sometimes specify
a scope and standard of review. Most are substantially the same as the APA’s. 87
If a court finds an adjudication decision to be erroneous on an issue of fact or
law, it normally remands the case to the agency to revisit the matter anew
79 See 5 U.S.C. § 704.

80 See MODEL RULES, supra note 1.

81 See Darby v. Cisneros, 509 U.S. 137, 143 (1993). Darby interpreted 5 U.S.C. § 704, which
states that unless a statute provides otherwise, “agency action otherwise final is final . . .
whether or not there has been presented or determined an application for a declaratory order,
for any form of reconsideration, or, unless the agency otherwise requires by rule and provides
that the action meanwhile is inoperative, for an appeal to superior agency authority.” See
generally MODEL RULES, supra note 1, at 78 (Comment 4); John F. Duffy, Administrative
Common Law in Judicial Review, 77 TEX. L. REV. 113, 158–60 (1998).
82 See Admin. Conf. of the U.S., Recommendation 75-3, The Choice of Forum for Judicial
Review of Administrative Action, 40 Fed. Reg. 27,926 (July 2, 1975). One statute provides for
direct review in the courts of appeals of a number of agencies’ decisions in APA adjudications.
See Administrative Orders Review Act, 28 U.S.C. §§ 2341–2351.
83 See Apps. C–N.

84 See, e.g., 28 U.S.C. § 2343.

85 See, e.g., 5 U.S.C. § 7703(b)(1)(A) (specifying the Federal Circuit for review of most MSPB
orders).
86 5 U.S.C. § 706.

87 See, e.g., 5 U.S.C. § 7703(c) (MSPB).

19

rather than deciding the issue itself and directing a particular disposition before
the agency. This “ordinary remand rule,” which one us has explored elsewhere,
has important implications for agency appellate review. 88
A final aspect of judicial review that bears mention is the issue of agency
acquiescence in decisions of the courts of appeals. Agencies must, of course,
follow decisions of the Supreme Court. Whether and when they must acquiesce
in the decisions of particular circuits—which, on any given issue of law, may
conflict—can often be a difficult question. 89 Agency appellate reviewers must
sometimes answer that question when adjudicating cases—often without
knowing in which circuit a litigant will seek review—and they must sometimes
decide what directives to give lower-level adjudicators and by what means.

II.

STUDY METHODOLOGY

The landscape of agency appellate review is vast and varied, and little transsubstantive attention has been paid to it in nearly forty years. Accordingly, our
study is necessarily exploratory and qualitative. To structure our study
methodology, we began by reviewing the literature on agency appellate review,
ACUS’s recommendations and reports on the subject, 90 and the database
maintained by Stanford Law School that reflects ACUS’s extensive research on
administrative adjudication. 91 We also sought suggestions from a number of
leading academic experts on adjudication as well as various current and former
agency officials. 92
Based on this initial research, we settled on twelve agencies—in some cases,
limiting ourselves to particular adjudication programs of special importance
within them—for focused study. They are:
•

Department of Health and Human Services (HHS): Departmental
Appeals Board—Medicare Appeals Council;

•

Department of Homeland Security (DHS): U.S. Citizen and
Immigration Services (USCIS), Administrative Appeals Office;

•

Department of Justice (DOJ): Executive Office of Immigration
Review (EOIR)—Board of Immigration Appeals (BIA);

•

Department of Labor (DOL): Administrative Review Board;

Christopher J. Walker, The Ordinary Remand Rule and the Judicial Toolbox for
Agency Dialogue, 82 GEO. WASH. L. REV. 1553 (2014).
88 See

See generally Samuel Estreicher & Richard L. Revesz, Nonacquiesence by Federal
Administrative Agencies, 98 YALE L.J. 679 (1989).
89

90 See Part I.D supra. They include ASIMOW, ADJUDICATION SOURCEBOOK, supra note 20.

91 See Stanford Law School, Adjudication Research, http://acus.law.stanford.edu (last visited
Nov. 25, 2020). Of particular relevance are two of the twelve tables (which the database calls
“reports”) on the homepage: “Types and Hearings and Appeals” and “Ability to Appeal.”
92 See infra note **.

20

•

Department of Veterans Affairs (VA): Board of Veterans Appeals
(BVA);

•

Environmental Protection Agency (EPA): Environmental Appeals
Board (EAB);

•

Equal Opportunity Employment Commission (EEOC);

•

Merits Systems Protection Board (MSPB);

•

National Labor Relations Board (NLRB);

•

Patent and Trademark Office (PTO): Patent Trial and Appeals
Board (PTAB);

•

Securities and Exchange Commission (SEC); and

•

Social Security Administration (SSA): Appeals Council.

In compiling this list, we sought to include well-known agencies/programs
representative of the predominate structures of appellate review identified in
Part II.B, both executive-department agencies (e.g., DOL) and independent
agencies (e.g., NLRB, SSA), both traditional regulatory and benefits-conferring
agencies, and so forth. We also considered volume. The selected agencies, for the
most part, adjudicate a relatively large number of cases, and several of them
(SSA, VA, and PTAB) administer among the government’s largest adjudication
programs. 93
For each selected agency/program, we prepared an extensive written
overview that explains what it does and, in table form, its key institutional and
procedural attributes as ascertainable from publicly available sources (mostly
statutes, regulations, guidance documents, website explanatory materials, and
the like). Appendix A provides the template we used for these overviews. The
twelve appellate program overviews appear in Appendices C–N (in alphabetical
order by agency name), which due to their length are posted on ACUS’s
website. 94 We usually cite to the overviews in this Report rather than the
original sources unless the latter requires emphasis.
To better understand how these appellate programs operate in practice, we
conducted semi-structured interviews with at least one high-ranking official at
each agency—in most cases the head of the agency appellate program. In total,
we interviewed more than two dozen agency officials. Most of these interviews
93 Our list overlaps considerably with the list of twelve agencies/programs Professor Asimow
singled out for detailed review in his report underlying ACUS Recommendation 2016-4, see
Asimow, Evidentiary Hearings, supra note 30, and his ACUS-commissioned sourcebook on
adjudication, see ASIMOW, ADJUDICATION SOURCEBOOK, supra note 20, at 107–82. The best
practices in his report (and incorporated into the recommendation) were based mostly on his
study of the twelve agencies. See ASIMOW, ADJUDICATION SOURCEBOOK, supra note 20, at 6.

Admin. Conf. of the U.S., Agency Appellate Systems, https://www.acus.gov/researchprojects/agency-appellate-systems (last visited Nov. 25.2020) (the Appendix file is located under
the Project Documents heading).
94

21

were in person, but some were conducted by phone. To prepare for the
interviews, we constructed an interview script that largely tracks the topics and
structure of the findings section of the Report (Part III). Among other things, we
focused on the agency’s objectives for appellate review, the challenges the
appellate program faces, and any best practices the agency has adopted. To
develop the interview script, we consulted with various scholars and agency
officials. During the interviews, we largely followed the script, but we also asked
follow-up questions both as to answers given during the interview and as to
questions we had based on the extensive agency overview we had created in
advance of the interview.
Specific responses, we told interviewees, would not be attributed to them or
their agency. The exception would be for responses that identified what
interviewees considered best practices, especially those they might commend to
other agencies for consideration. Our findings (Part III) and recommendations
(Part IV) are written accordingly. Most of our findings are based on the abovenoted sources. Some are based on additional research of the agencies under
review as well as research into other agency appellate programs.
It should go without saying that there are significant methodological
limitations in our study design. Our findings and recommendations are based
largely on the existing literature, publicly available sources, and interviews with
high-ranking officials in each adjudication program. Publicly available sources
often do not reflect the realities of administrative practice. Interviews of highranking agency officials can shed important light on those realities. But
interviews are necessarily limited by the questions asked, by the perspectives
and knowledge of the interviewees, and by other explicit and implicit factors
that influence information gathering via semi-structured interviews. This is, in
essence, an exploratory study. It would be improper to, among other things,
attempt to generalize from our findings to other agency adjudication programs.
Indeed, a core finding from our study is that agency appellate programs are not
all the same.
Our hope is that the findings and recommendations we present in Part III
and Part IV, respectively, will be of use for agencies that operate appellate
programs and will spark further discussion and attention to agency appellate
programs—in terms of research and empirical analysis as well as practical,
doctrinal, and theoretical developments.

III. FINDINGS
Based on our interviews with agency officials and review of publicly available
sources on the agency appellate review programs detailed in Part II, we organize
our findings in seven subparts. We first explore the law of appellate review
established in these programs (Part III.A), followed by the characteristics of
agency decisionmakers (Part III.B) and the various criteria for selecting cases
for appellate review (Part III.C). We then focus on the decision-making process
22

and types of decisions (Part III.D), the characteristics for administration and
bureaucratic oversight (Part III.E), and the mechanisms for public disclosure
and transparency (Part III.F). Part III concludes with some observations on the
common challenges in agency appellate programs identified by the interviewees
(Part III.G). Following Part III, we detail our recommendations in Part IV.
A.

Law of Appellate Review

1. Codified Objectives of Appellate Review. As noted in Part I.C, the
objective(s) of an agency’s appellate review program will or should drive any
number of procedural choices an agency must make—among them: whether
review should be as of right or discretionary, whether and when decisions should
be designated as precedential, and what the scope and standard of review should
be. 95 Many of the key choices are addressed in the Report.
We received thoughtful answers from most interviewees, to be sure, about
the objective(s) of their programs. But we found few agency rules that actually
address them, at least with any useful specificity. One program’s rules of
practice that do so forthrightly is the BIA’s. They identify as one purpose of
review the provision of “clear and uniform guidance”—not only to immigration
judges, but also enforcement-level personnel at DHS and the “general public”—
“on the proper interpretation and administration” of federal immigration law. 96
Interviewees generally agreed on the value of this sort of codification. A few
programs include brief statements of purpose in explanatory materials on their
websites. 97
2. Sources, Types, and Coverage of Procedural Law. Some statutes
prescribe agency procedural law in some detail. But most leave key procedural
choices to agencies. Those choices are embodied in a number of different types
of legal pronouncements of varying degrees of formality, among their other
differences. A complete taxonomy is not possible here. 98 A few observations will
suffice.
Nearly all of the appellate programs we studied are governed by formal
procedural rules—often called rules of practice 99—codified in the Code of
See Jerry L. Mashaw, Reforming the Bureaucracy: The Administrative Conference
Technique, 26 ADMIN. L. REV. 261, 267 (1974) (arguing that rational administrative reform
depends on the identification of “a good conceptual model of various types of agency functions”
and a clear statement of “what a particular procedural regime [is] supposed to do”).
95

96 8 C.F.R. § 1003.1(d)(1).

97
See, e.g., U.S. Citizenship & Immigration Servs., Administrative Appeals,
https://www.uscis.gov/administrative-appeals (last visited Nov. 25, 2020) (providing that
appeals office conducts review “in order to promote consistency and accuracy in the
interpretation of immigration law and policy”).
98 For a list of the most common authorities, see Admin. Conf. of the U.S., Recommendation
2018-5, Public Availability of Adjudication Rules, 84 Fed. Reg. 2142 (Feb. 6, 2019).
99 See, e.g., App. K (NLRB); App. M (SEC).

23

Federal Regulations (CFR). 100 Appellate rules are often integrated into broader
procedural rules governing both hearings and appeals—a desirable
arrangement whenever possible—and some procedural rules are combined with
substantive rules. 101 These appellate rules serve much the same function as,
and observe forms similar to, the Federal Rules of Appellate Procedure.
CFR-codified rules of practice, though procedural and hence exempted from
APA notice-and-comment requirements, are best classified as legislative rules
under now-prevailing usage. 102 They are legally binding on agency and litigants
alike. That means they are externally enforceable, which is to say enforceable
on judicial review of agency action. 103 One recent ACUS Recommendation calls
them “agency-promulgated rules of procedure with legal effect.” 104 At some
agencies, case-specific or standing procedural orders may supplement these
rules.
Any number of other, less-formal agency pronouncements—which some
might call internal administrative law—govern or explain appellate procedures
and processes, as they do hearing-level procedures and processes. 105 They
include (to use commonly used names) manuals, policy statements, guidance,
guides, outlines, forms, website explainers, and internal memoranda. Some are
publicly available, others not. What legal classification they enjoy and what
legal effect they possess have often confounded courts and commentators. No
doubt many qualify as policy statements—often referred to, along with
interpretive rules, as guidance documents—under the APA. 106 Some may be
binding, but only internally on adjudicators and other agency staff through
internal disciplinary mechanisms, but otherwise lack the force of law. Others,
though, may be binding against the agency—that is, externally enforceable
100 An exception is DOL’s Administrative Review Board. See App. F (DOL). The Board
applies certain specified provisions of the Federal Rules of Appellate Procedure “to the extent
practicable.” DEP’T OF LABOR, RULES OF PRAC. & PROC. BEFORE THE ADMIN. REV. BOARD,
https://www.dol.gov/agencies/arb/resources/rules (last visited Nov. 25, 2020). The Board also has
several CFR-codified rules of practice for cases dealing with certain specific subject matters. See
id. (providing non-exhaustive list with links).
101 See, e.g., Sec. & Exch. Comm’n, 17 C.F.R. subpt. D.

102 See Admin. Conf. of the U.S., Recommendation 2019-6, Independent Research by Agency

Adjudicators in the Internet Age, 84 Fed. Reg. 71,350, 71,351 & n.18 (Dec. 27, 2019); see also,
e.g., Cary Coglianese, Public Availability of Agency Guidance Documents (2019) (report to the
Admin. Conf. of the U.S.), https://www.acus.gov/report/consultant-report-public-availabilityagency-guidance-documents; Ronald M. Levin, Rulemaking and the Guidance Exception, 70
ADMIN L. REV. 263 (2018).
103 See, e.g., Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 MICH.

L. REV. 1239, 1284–86 (2017).

104 Admin. Conf. of the U.S., Recommendation 2018-5, Public Availability of Adjudication
Rules, 84 Fed. Reg. 2142 (Feb. 6, 2019) (preamble at 1).
105 See, e.g., Metzger & Stack, supra note 103, at 1284–86; see also Peter L. Strauss, The
Rulemaking Continuum, 41 DUKE L.J. 1463, 1477 (1992).
106 See 5 U.S.C. §§ 551(4), 553(b).

24

through judicial review—on one legal basis or another, even if the agency
intended otherwise. 107
A notable example is the SSA Appeals Council’s Hearings, Appeals and
Litigation Manual (HALLEX), 108 which “conveys” “procedural guidance” for
adjudicative staff and “defines procedures for carrying out policy and provides
guidance for . . . adjudicating claims” at both the hearing and Appeals Council
level. SSA deems HALLEX to be an internally enforceable policy statement—
enforceable through discipline and, arguably, as a basis for the Appeals
Council’s assignment of error to ALJ decisions. 109 Circuit courts have split on
whether it is binding against SSA on judicial review. If it is binding, noncompliance can be the basis for the assignment of error, and thus reversal and
remand by the federal court. 110
A third and sometimes overlooked source of procedural law relevant here are
agency decisions. Agency decisional law sometimes addresses such important
matters as the standard of review and the interpretation of CFR-codified rules
of practice. It may also address the procedural and evidentiary law governing
hearings. Decisional law is generally both internally and externally (i.e.,
judicially) enforceable unless, under agency rule, it is deemed nonprecedential,
in which case it governs only the particular case in which it arose.
We found nearly all of the CFR-codified rules of practice we reviewed to be
at least serviceable. Many compare favorably, in both style and substance, to
the Federal Rules of Appellate Procedure, especially if allowance is made for the
superior resources enjoyed by the federal judiciary’s rulewriters.
Some agencies’ rules of practice are more comprehensive than others. 111 Not
all agencies’ rules address such important procedural matters as the standard
of review, the content of the record on appeal, aggregation, issue exhaustion,
107 See, e.g., Metzger & Stack, supra note 103, at 1278, 1284–86.

SOC. SEC. ADMIN., HEARINGS, APPEALS, AND LITIGATION LAW MANUAL § I-1-0-1
[hereinafter HALLEX], https://www.ssa.gov/OP_Home/hallex/I-01/I-1-0-1.html (last visited
Nov. 25, 2020). Cf. U.S. Citizenship & Immigration Servs., AAO Practice Manual—About the
Administrative Appeals Office Practice Manual, https://www.uscis.gov/administrativeappeals/aao-practice-manual (last visited Nov. 26, 2020).
108

109 HALLEX, supra note 108, § I-3-3-3 (“While sub-regulatory issuances (including the
Hearings, Appeals and Litigation Law manual) are not categorized as ‘law’ for this purpose, the
Appeals Council will grant review under the ‘error of law’ standard if an administrative law
judge (ALJ) does not adhere to sub-regulatory policy or procedure and the ALJ’s non-compliance
results in a due process violation.”). But see Envtl. Prot. Agency, Streamlining Procedures for
Permit Appeals, 85 Fed. Reg. 51,650, 51652 (Aug. 21, 2020) (eliminating rule so as to clarify that
EAB’s scope of review “does not extend to the [EPA’s] compliance with discretionary policies”
and thereby make EAB’s review “more akin to that of the federal courts”).
110 Timothy H. Gray, Manual Override? Accardi, Skidmore, and the Legal Effect of the Social
Security Administration’s HALLEX Manual, 114 COLUM. L. REV. 949 (2014).
111 Among especially comprehensive (and otherwise well drafted) rules are the SEC’s, see 17

C.F.R. §§ 201.400–201.490, and the MSPB’s, see 5 C.F.R. pt. 1201.

25

administrative exhaustion, the submission of evidence not part of the record
below, the assignment of cases to panels, interlocutory appeals, amicus
participation, the availability of and criteria for oral argument, reconsideration,
and the precedential status of decisions. (Not all of these subjects will be
relevant to every adjudication program.) These and other important matters are
sometimes addressed, if they are addressed at all, only in guidance documents
or adjudication decisions. The choice of placement sometimes seems haphazard.
Addressing all significant procedural matters in a CFR-codified legislative 112
rule of practice obviously has numerous advantages. Doing so should make them
more readily accessible to litigants and their lawyers (especially lawyers who do
not regularly practice before the agency), agency staff, courts, reviewing courts,
and policymakers. 113 It also serves the rule-of-law function of committing the
agency to follow standardized procedures in similarly situated cases. 114 Where
the agency wishes to reserve discretion with respect to a particular procedural
matter, it can do so in the rule. Legislative rules often do just that, as when they
commit to the adjudicator discretion as to whether to grant review, hear oral
arguments, or permit amicus briefs. Third, doing so may avoid litigation
disputes as to whether a particular pronouncement is enforceable against the
agency on judicial review. 115 Finally, it removes sticky questions that sometimes
arise as to whether and when certain adjudicators must follow non-legislative
(internal agency) rules and, if they do not, what consequences follow. 116
No hard-and-fast rule dictates which aspects of appellate procedure should
be addressed where. Certainly, some minor procedural matters—e.g., brief
formatting rules, citation requirements, and filing instructions—can or even
should be left to instructional documents like practice manuals that appear on
the agency’s website. But there are certain significant matters that all agencies
should consider including in their CFR-codified rules of practice and that
sometimes escape inclusion there. Sections 400–500 of the Model Appellate
Rules (Appendix B) provide helpful guidance as to what procedural matters
agencies should consider addressing. Matters addressed there, if applicable to a
program, should generally be addressed in a rule of practice rather than
relegated to a non-legislative rule unless the agency has a good reason for doing
otherwise. Other guidance as to what matters should be addressed in rules of
112 A rule’s placement in the CFR does not itself answer the question whether it is legislative.

See, e.g., Health Ins. Ass’n of Am., Inc. v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994) (stating that
“publication in the Code of Federal Regulations, or its absence” is only “a snippet of evidence of
agency intent” that the published pronouncement has binding effect).
113 Cf. Emily Bremer, Reckoning with Adjudication’s Exceptionalism Norm, 69 DUKE L.J.

1749, 1783–84 (2020) (discussing inaccessibility of adjudication rules generally).

114 See generally Elizabeth Magill, Agency Self-Regulation, 77 GEO. WASH. REV. 859 (2009).

115 Sometimes a court will hold an agency to a non-legislative rule under one doctrine or
another. See Metzger & Stack, supra note 103, at 1284–86 (discussing application of Accardi
doctrine to non-legislative rules); see also Gray, supra note 110 (discussing SSA’s HALLEX).
116 See, e.g., Social Sec. Admin. v. Butler, 2016 WL 4547551 (M.S.P.B. 2016).

26

practice may be found by the Federal Rules of Appellate Procedure, provisions of
the United States Code governing the structure of the courts of appeals, and the
various federal circuits’ rules. 117 One of our recommendations identifies
significant matters that should be addressed in rules of practice but do not
always appear in some agencies’ rules.
Two last findings bear mention. First, some of the rules of practice we
reviewed identify the statutory source of particular rules. The MSPB’s rules,
among others, are especially good. 118 Second, some rules of practice begin with
helpful background on the appellate programs they govern: the structure and
composition of the reviewing authority, the source of its powers, its place in the
overall adjudication system of which it is part, and so forth. 119 (Sometimes this
background appears only in website explanatory materials.) Both practices have
obvious benefits for private litigants, reviewing courts, and policymakers.
3. Public Input in the Development of Procedural Law. As noted
above, procedural rules are exempt from the APA’s notice-and-comment
requirements. 120 ACUS has recommended that agencies voluntarily seek public
comment on procedural rules unless the costs of doing so clearly outweigh the
benefits. 121 Our research has disclosed that, in recent years, agencies have
usually sought, and benefitted from, public comments on significant rule
changes. 122 (The notice often makes clear, as it generally should, that the agency
is acting voluntarily by seeking public comment.) These include, notably,
significant changes to appellate-specific rules. 123 The solicitation of public
comment on procedural rules—long a feature of the federal-court rule-writing
process 124—should remain a regularly followed practice. Seldom will the cost of
117 See 28 U.S.C. §§ 41–49.
118 See 5 C.F.R. § 1201.

119 See, e.g., id.; 40 C.F.R. § 22.4; Bd. of Veterans’ Appeals, 38 C.F.R. § 20.100–101.
120 See 5 U.S.C. § 553(b).

Admin. Conf. of the U.S., Recommendation 92-1, The Procedural and Practice Rule
Exemption from the APA Notice-and-Comment Rulemaking Requirements, 57 Fed. Reg. 30,102
(July 8, 1992).
121

122 See, e.g., Envtl. Prot. Agency, Streamlining Procedures for Permit Appeals, 85 Fed. Reg.
51,650 (proposed Dec. 3, 2019) (to be codified at 40 C.F.R. pts. 1, 49, 71, & 124); Sec. & Exch.
Comm’n, Amendments to the Commission’s Rules of Practice, 81 Fed. Reg. 50,212 (July 29, 2016)
(to be codified at 17 C.F.R. pt. 201).

123 See, e.g., U.S. Dep’t of Labor, Secretary’s Order No. 01-2020, Delegation of Authority and
Assignment of Responsibility to the Administrative Review Board, 85 Fed. Reg. 13,186 (Mar. 6,
2020).

124 See U.S. Courts, How the Rulemaking Process Works, https://www.uscourts.gov/rules-

policies/about-rulemaking-process/how-rulemaking-process-works (last visited Nov. 25, 2020).
The Judicial Conference affirmatively solicits suggestions for rule changes on its website. U.S.
Courts, How to Suggest a Change to Federal Court Rules and Forms, https://www.uscourts.gov/
rules-policies/about-rulemaking-process/how-suggest-change-federal-court-rules-and-forms
(last visited Nov. 25, 2020). Agencies might consider doing likewise.

27

soliciting public comment exceed the benefits of doing so. Of course, agencies
will sometimes be justified in making minor and technical changes to procedural
rules without soliciting public comment.
B.

Decisionmakers

Most agency appellate adjudicators fall into one of two broad categories:
Senate-confirmed, presidentially appointed agency heads, including the
members of boards and commissions; and agency officials appointed by agency
heads, usually to appellate boards and councils. (Before Lucia v. SEC, 125 the
latter were sometimes appointed by other agency officials.)
Agency-head adjudicators enjoy no fixed statutory terms, as in the case of
the heads of cabinet departments, or relatively short, fixed terms (five years is
common), as in the case of board and commission members. Many board and
commission members and a few other agency-head adjudicators enjoy for-cause
protection. (Whether such protection is constitutional is another matter; the
Supreme Court has been grappling with the question. 126) Some boards and
commissions, by statutory mandate, are subject to party-balancing
requirements. Few statutes prescribe qualification requirements.
Adjudicators appointed by agency heads have either no terms or
comparatively long terms (e.g., twelve years at the EAB), though there are
exceptions. Some enjoy for-cause removal protection, if only under the generally
applicable civil service laws enforced by the MSPB rather than adjudicatorspecific rules. 127 They are often thought of (though the term is imprecise) as
“career officials.” Their legal appointment and compensation status vary
considerably. Some, for instance, are hired as lawyers in the excepted service
and paid on the GS scale; some are members of the Senior Executive Service.
There are other possibilities. 128 Many are selected from among existing agency
employees (say, the ranks of hearing-level adjudicators or appellate-level staff
attorneys); some are selected from among applicants (internal and external)
recruited through publicized job-opening notices. Qualifications are usually
prescribed, whether by statute, agency rule, ad hoc agency policy, or otherwise.
Most would likely be considered merit, as opposed to political, appointees,
although those terms are slippery.
A few indicia of impartiality are important. Most agency-head adjudicators
are not governed by impartiality statutes or rules. Their impartiality obligations
arise only as a matter of constitutional due process. Adjudicators appointed by
125 138 S. Ct. 2044 (2018).
126 See, e.g., Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020).

127 Constitutional questions have arisen as to whether such adjudicators who issue final,
unreviewable agency decisions are principal officers, and, if so, what consequences follow. See
supra notes 12–15 and accompanying text.
128 See, e.g., 5 U.S.C. § 5372a (contracts appeals board members); id. § 5372b (administrative

appeals judges).

28

agency heads are sometimes governed by rules that require their impartiality
in deciding cases, though the term is often undefined and may, of course, mean
a number of different things. Some agencies—but by no means all—have recusal
rules that, at their most robust, require adjudicators to recuse themselves from
cases when their impartiality can reasonably be questioned. Recusal rules often
do not cover agency-head adjudicators. But they may be governed by other
recusal policies to root out conflicts of interest arising from prior private-sector
affiliations. 129
The research materials underlying a pending ACUS project provide valuable
insights into the subjects addressed here and the difficulty of researching
them. 130 A committee-proposed recommendation asks agencies to disclose
publicly on their websites specific information about adjudicators to help the
public assess their impartiality and constitutional status. 131
Finally, many adjudicators (other than ALJs) appointed by agency heads
receive performance evaluations and can be compensated accordingly. They may
be subject to case-volume requirements or goals. No program of which we are
aware uses case outcomes as a performance metric, or at least none admit to
doing so. Agencies generally disavow any reliance on case outcomes.
C.

Selecting Cases for Appellate Review

1. Nature, Form, and Timing of Appeals. The general approach across
appellate programs is that a dissatisfied party—usually not the government,
but sometimes that’s the case—can appeal a hearing-level agency decision.
Similar to the federal court system, the first action is to file a notice of appeal,
with the deadline set in the agency’s rules to do so generally ranging from a
month to three months from the issuance of the hearing-level decision. One
notable exception is the PTAB, where one must seek review within nine months
of the patent’s issuance. 132

129 See Admin. Conf. of the U.S., Recommendation 2018-4, Recusal Rules for Administrative

Adjudicators, 84 Fed. Reg. 2139 (Feb. 6, 2019); Louis J. Virelli, III, Administrative Recusal
Rules: A Taxonomy and Study of Existing Recusal Standards for Agency Adjudicators (2020)
(report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/administrative-recusalrules-taxonomy-and-study-existing-recusal-standards-agency-0.

130 See Leigh Anne Schriever, Public Availability of Information About Agency Adjudicators
(Oct. 21, 2020) (draft report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/draftreport-public-availability-information-about-agency-adjudicators. Attachments to the report
include Kent Barnett, Some Kind of Hearing Officer, 94 WASH. L. REV. 515 (2019).
131 See Admin. Conf. of the U.S., Proposed Recommendation, Public Availability of
Information About Agency Adjudicators (Nov. 6, 2020), https://www.acus.gov/recommendation/
recommendation-committee-adjudication-public-availability-information-about-agency.
132 App. L (PTO).

29

2. Standards for Granting (Discretionary) Review. Although some
appellate programs review on the merits every appeal filed, others have
discretionary appellate review. At the MSPB and SSA, for instance, the agencies
have identified categories of cases or errors that merit administrative appellate
review. 133 In many ways, these criteria reflect the agency’s objectives in
engaging in appellate review in the first place.
The SSA’s criteria, codified in regulation, is illustrative. The Appeals Council
will review a case for five distinct reasons:
(1) There appears to be an abuse of discretion by the
administrative law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the administrative law
judge are not supported by substantial evidence;
(4) There is a broad policy or procedural issue that may affect the
general public interest; or
(5) Subject to paragraph (b) of this section, the Appeals Council
receives additional evidence that is new, material, and relates
to the period on or before the date of the hearing decision, and
there is a reasonable probability that the additional evidence
would change the outcome of the decision. 134
These criteria seem quite similar to setting the standard and scope of review,
discussed below. They also may reflect the objectives the agency has set for its
appellate review program.
Other agencies have a discretionary review process more similar to the U.S.
Supreme Court certiorari review. At the SEC, for instance, the agency has
clarified and simplified its certiorari process by requiring only a three-page
petition to assist the Commission in deciding whether to hear the appeal on the
merits. 135 The PTAB, by statute, has a very formalized case institution process,
where the PTAB institution panel assesses whether it is reasonably likely that
the petitioner would prevail on at least one claim. 136 The PTAB’s institution
process has been subject to scrutiny at the Supreme Court. In SAS Institute, Inc.
v. Iancu, the Court rejected the agency’s approach that it only reviewed on the
merits the claims it certified at the institution stage. 137 Instead, the Court held

133 See, e.g., App. J (MSPB); App. N (SSA).
134 20 C.F.R. § 404.970(a).
135 App. M (SEC).
136 App. L (PTO).

137 138 S. Ct. 1348, 1352 (2018).

30

that, once the PTAB decides to institute the case, the statute requires the agency
to review every patent claim the petitioner has challenged. 138
3. Agency-Initiated, Sua Sponte, and Interlocutory Review. The
general approach in the appellate programs is to only review cases where a
dissatisfied party has appealed. To be sure, some agencies have by statute or
regulation the authority to review any hearing-level agency adjudication. 139 For
instance, the SEC has the authority to order review of any ALJ decision within
21 days of its issuance; only one commissioner is required to request such
review. 140 Yet as far as we are aware, this sua sponte discretionary review is
seldom used at the vast majority of agencies, the unique non-adversarial SSA
system (noted below) aside.
One notable exception is the Attorney General’s referral authority in the
immigration adjudication context. As one of us has explored elsewhere, the
Attorney General has the authority to sua sponte refer to himself any
immigration adjudication case pending before the BIA and decide it himself. 141
During the Trump Administration, the Attorney General has exercised this
referral authority about a dozen times to set immigration policy via
adjudication. 142 Some immigration scholars and advocates have been critical of
the Attorney General’s use of referral authority. 143
Some agency appellate programs have instituted sua sponte review for
quality assurance purposes. The most prominent example is the SSA. 144 The
Appeals Council uses random and selective sampling to identify cases for
potential quality assurance review. A recent ACUS report on the use of artificial
intelligence in the federal regulatory state examined the SSA’s use of these
quality assurance review mechanisms. 145 Similarly, at the SEC, the Office of
In dissent, Justice Ginsburg suggested that the PTAB could get around the Court’s
holding by denying the petition on the claims that had no “reasonable likelihood” of success and
then allowing the petitioner to amend or refile the petition with only the sufficient claims. Id.
at 1360 (Ginsburg, J., dissenting). See generally Saurabh Vishnubhakat, Renewed Efficiency in
Administrative Patent Revocation, 104 IOWA L. REV. 2643 (2019) (defending and further
developing Justice Ginsburg’s approach in SAS Institute).
138

139 See, e.g., App. J (MSPB); App. K (NLRB); App. D (DHS).
140 App. M (SEC).

141 Wadhia & Walker, supra note 60, at Part I.A.
142 Id.

143 See, e.g., Bijal Shah, The Attorney General’s Disruptive Immigration Power, 102 IOWA L.
REV. ONLINE 129 (2017). Cf. Christopher J. Walker, Referral, Remand, and Dialogue in
Administrative Law, 101 IOWA L. REV. ONLINE 84 (2016) (noting some advantages of the
Attorney General’s referral authority).
144 App. N (SSA).

145 David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey & Mariano-Florentino

Cuéllar, Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies
37–45 (2020) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/governmentalgorithm-artificial-intelligence-federal-administrative-agencies; see also Gerald K. Ray &

31

Adjudications within the Office of General Counsel randomly reviews decisions
not appealed. 146 The SSA Appeals Counsel also reviews cases on its own motion
or based on referral. Other appellate programs likewise allow a hearing-level
adjudicator to request review of a pending case. 147
D.

Decision-Making Process and Decisions

1. Multi-Adjudicator Decision Making. Similar to the federal court
system, most agency appellate programs use multi-member bodies to make
decisions. The NLRB, MSPB, and SEC, for example, hear many appeals as a full
body—though the MSPB’s process is for the case to start with one board member
and then circulate to each other member one at a time. 148
With respect to larger appellate bodies, a select number of appellate
adjudicators sit on each panel. At the PTAB, three administrative patent judges
generally sit on each merits panel. 149 At the BIA, merits panels are similarly
composed of three members, but the BIA also handles many appeal denials
through one-member decisions. 150
On the SSA Appeals Council, only one appellate adjudicator is required to
deny an appeal, but two are required to grant. 151 With the assistance and
recommendation of a staff attorney, if one adjudicator decides to grant, the case
record and draft decision are transmitted to a second adjudicator. If she agrees,
that becomes the final decision. If she disagrees, the case is sent to a third
adjudicator. The dissenting adjudicator’s vote (as well as the staff attorney’s
recommendation) are not included in the administrative record or noted in the
final decision.
Not all agency appellate review programs, however, use multi-member
panels. The USCIS and HHS, for example, use the one-judge model, with the
decisions from the USCIS all signed under the name of the head of the appellate
body. 152
During the interviews, the agency officials expressed many views on the costs
and benefits of these different approaches to staffing appellate programs. Most
seemed to agree that the multi-member approach is the most beneficial for
complex cases. Some, however, recommended the single-member approach for
simple cases and screening purposes. And others indicated that resource
Jeffrey S. Lubbers, A Government Success Story: How Data Analysis by the Social Security
Appeals Council (with a Push from the Administrative Conference of the United States) is
Transforming Social Security Disability Adjudication, 83 GEO. WASH. L. REV. 1575 (2015).
146 App. M (SEC).

147 See, e.g., App. C (HHS); App. D (DHS).

148 See, e.g., App. K (NLRB); App. J (MSPB); App. M (SEC).
149 App. L (PTO).

150 App. E (DOJ). See generally Hausman, supra note 53, at 1205–07.
151 App. N (SSA).

152 App. C (HHS); App. D (DHS).

32

constraints limited their ability to use multi-member review panels when they
would otherwise be ideal. Finally, even when an agency only uses the onemember review approach, the officials underscored that a number of agency
officials are often involved in the process. The use of staff attorneys and law
clerks is discussed below.
2. Docket/Case Management. During the interviews, agency officials
underscored the various innovations developed in their appellate programs to
improve docket and case management. Many agencies have implemented
mechanisms to screen and sort cases based on a variety of factors, including the
degree of difficulty, the subject matter, common issues, record length,
geographical area (especially where there are significant variations in circuit
law), the need for additional evidence or oral argument, or even likely
outcome. 153 Some agencies—like the SSA and HHS—have experimented with
using automation, advanced data analytics, and artificial intelligence to help
sort cases. Many rely on staff attorneys to help with docket management as well
as case screening and sorting.
Similarly, a number of agencies organize their appellate adjudicators based
on adjudicator expertise, familiarity with a common issue, or difficulty of case.
Some agencies expedite certain appeals based on various factors as well as group
like cases to be decided at the same time—instead of following a more
conventional first-in, first-out docket management approach. ACUS has
previously published an extensive study on aggregate agency adjudication,
which provides in-depth case studies on a number of such innovations. 154
3. Use of Staff Attorneys and Law Clerks. During the interviews, many
agency officials offered as a best practice their agency’s use of staff attorneys,
paralegals, law clerks, and other expert staff to help with docket management
and screening as well as with case review, decision recommendation, and
opinion drafting. At many agencies, these staff attorneys and law clerks are
integrated into the appellate bodies—either working for the appellate body
generally or for a specific adjudicator in particular. 155 Some staff attorneys and
clerks specialize in certain issues, whereas others are randomly assigned to
work on matters. At the MSPB and SEC, by contrast, the agency has a separate
office—the Office of Appeals Counsel and the Office of Adjudications,
respectively—where the staff attorneys work to assist the adjudicators. 156

153 See, e.g., App. C (HHS); App. D (DHS).

154 Michael Sant’Ambrogio & Adam Zimmerman, Aggregate Agency Adjudication (2016)
(report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/aggregate-agencyadjudication-final-report.
155 See, e.g., App. G (VA); App. H (EPA); App. K (NLRB); App. L (PTO).
156 App. J (MSPB); App. M (SEC).

33

4. Standard of Review and Submission of New Evidence. Many agency
appellate programs have adopted the federal court’s appellate review model,
discussed in Part I.C, with respect to the scope and standard of review. 157 In
other words, the appellate body reviews a closed administrative record, and the
standard of review varies based on the relevant competence of the trial- and
appellate-level adjudicator. Some appellate programs conduct de novo review,
often with a narrow exception for deference to hearing-level credibility
determinations. 158 Other agencies review factual findings under a substantialevidence standard. 159 The APA and most other statutes leave the choice to
agencies. 160
One way in which agency appellate bodies (even those that have embraced
the appellate model) differ from the federal courts of appeals concerns the
submission of new evidence. A number of agencies that otherwise function as
traditional appellate bodies in most respects allow the submission of new
evidence on appeal when there is good cause rather than remanding the case to
the hearing-level adjudicator to receive the evidence. 161
But, at least so far as the submission of new evidence is concerned, some
agencies have not adopted the appellate review model at all. 162 Instead, they
allow for the introduction of new evidence on appeal and, in essence, conduct a
trial de novo. The USCIS is a classic example, where the current regulations
allow for a trial de novo on appeal. In December 2019, however, the USCIS filed
a notice and sought public comment on changes to its scope and standard of
review. 163 In that notice, the agency proposed to only allow new evidence on
appeal that was not reasonably available in the hearing-level adjudication and
to review discretionary decisions for abuse of discretion. Another example
(allowing for some qualifications) is the BVA. 164
During the interviews, many agency officials emphasized the importance of
setting the right scope and standard of review for their appellate programs. The
appropriate scope and standard, some noted, depends on the objectives the
agency seeks to maximize via appellate review of hearing-level adjudications.

157 See, e.g., App. E (DOJ); App. L (PTO).

158 See, e.g., App. J (MSPB); App. K (NLRB); App. H (EPA).
159 See, e.g., App. N (SSA); App. I (EEOC).
160 See, e.g., 5 U.S.C. § 557.

161 See, e.g., App. I (EEOC); App. J (MSPB); App. K (NLRB); App. M (SEC); App. N (SSA).
162 See, e.g., App. G (VA); App. C (HHS) (some cases); App. D (DHS).

163 U.S. Citizenship & Immigration Servs., Agency Information Collection Activities;
Revision of a Currently Approved Collection: Notice of Appeal or Motion, 84 Fed. Reg. 66924
(Dec. 6, 2019), https://www.govinfo.gov/content/pkg/FR-2019-12-06/pdf/2019-26331.pdf.
164 See App. G (VA); see also ASIMOW, ADJUDICATION SOURCEBOOK, supra note 20, at 180.

The VA has sought legislation to limit the introduction of new evidence on appeal. See id.

34

5. Oral Argument. In accord with the appellate model in federal courts,
most agency appellate programs allow for the possibility of oral argument,
usually at the request of a party or at the instigation of the appellate body
itself. 165 Most agency appellate programs, like the federal courts of appeals,
retain discretion whether to grant oral argument. Few agencies’ procedural
rules, or even guidance documents, set forth any specific criteria for exercising
that discretion. 166 Some agencies grant it more frequently than others. Some
seldom use it. Many use videoconference technology as one means for conducting
oral argument.
6. Amicus Participation. Many agency appellate programs allow amicus
participation, but that is not always clear from their practice manuals or rules.
Some appellate bodies, like the NLRB, sometimes solicit amicus briefs in
significant cases. At the MSPB, for instance, the Office of Personnel
Management and the Office of Special Counsel can be asked to weigh in, and in
some cases have the statutory right to do so. 167 In immigration adjudication,
whether to allow amicus briefs is at the sole discretion of the BIA. 168 At the
USCIS, amicus briefs are only allowed if they are solicited by the party or the
USCIS. 169 Amicus briefs can be especially important at agencies like the NLRB
that rely heavily on adjudication for policymaking, which may require
consideration of legislative facts not present in the hearing-level record.
7. Deadlines for Decisions. Most agencies do not impose deadlines for
appellate decisions—by statute, regulation, or rules of practice. But there are a
few exceptions. For example, the HHS has a 90-day deadline for Medicare
appeals. 170 The PTAB has a one-year deadline for institution, which can be
extended up to six months for good cause. 171 At the SEC, there is no statutorily
imposed deadline, but the Rules of Practice encourage appellate decisions within
eight months. 172 And at the USCIS, the appellate body “strives” to complete its
review within 180 days of receiving the complete case record. 173
During the interviews and as discussed further below, many agency officials
observed that backlogs and delays were a significant challenge in their appellate
review programs. Yet, at the same time, those officials were not confident that
Cf. Envtl. Prot. Agency, Envtl. Appeals Bd., 40 C.F.R. § 124.19(h) (providing for
presumption against oral argument).
165

166 But see, e.g., Dept. of Labor, Medicare Appeals Council, 42 C.F.R. § 1124(a)) (providing

general criteria).

167 App. J (MSPB).
168 App. E (DOJ).

169 App. D (DHS).

App. C (HHS). Ongoing noncompliance with this deadline in the face of intractable
backlogs has resulted in extensive litigation. See, e.g., Am. Hosp. Ass’n v. Price, 867 F.3d 160
(D.C. Cir. 2017); Cumberland Cty. Hosp. Sys., Inc. v. Burwell, 816 F.3d 48 (4th Cir. 2016).
170

171 App. L (PTO).

172 App. M (SEC).

173 App. D (DHS).

35

a mandatory decision deadline would help address those problems. Instead, the
officials emphasized the need for more agency adjudicators and staff and for
technological advances, such as electronic case management and innovations in
the use of automation and artificial intelligence.
8. Forms of Decisions. In many ways, the forms of appellate decisions at
federal agencies are similar to the forms of appellate decisions in federal courts.
Agency appellate bodies can issue decisions that affirm, reverse (and grant relief
or remand), or vacate and remand the case to the hearing-level adjudicator. This
can involve detailed published or unpublished decisions, or shorter orders that
summarily affirm the hearing-level adjudicator’s decision.
Yet in reviewing appellate decisions from the various agencies, it
immediately becomes apparent that there is great diversity in terms of opinion
structure, format, style, readability, and overall quality. Some agency appellate
decisions, like those at the SEC, read very much like a published, precedential
opinion from a federal court of appeals. Others, like at the NLRB, often adopt
and incorporate at length the underlying ALJ decision and then just note and
discuss the exceptions to the ALJ decision. And others, to put it charitably, are
very difficult for a non-lawyer to understand. This is one area where some
agencies could strive to make their appellate programs more accessible to the
appellants in the system—some of whom have no legal representation. Clarity
and brevity, of course, should be the aspiration of any decision writer. One
agency’s appellate rules of practice actually mandate brevity in opinions. 174
During the interviews, many agency officials emphasized measures their
agency has taken to write opinions in plain language and to use templates and
standard language to improve the quality of decisions. For example, the BVA
has implemented an Interactive Decision Template (IDT), which “automatically
retrieves data from the Board’s case management software and allows attorneys
to populate important and relevant language into each appellate decision,
allowing attorneys and VLJs to focus their attention on legal research and
drafting. The IDT also ensures consistency and brevity of all Board decision and
encourages the use of clear and concise language to ensure all Board decisions
are understandable to Veterans.” 175 As some agencies have found on judicial
review, agency templates must be carefully drafted to accurately reflect
governing law and account for case-specific issues that may require variances. 176
9. Precedential Designation. Some agencies do not distinguish between
precedential (sometimes called published) and nonprecedential (sometimes
called unpublished) decisions. That is most often the case with the decisions of
174 See Envtl. Appeals Bd., 40 C.F.R. § 124,19(l)(3).

175 U.S. DEP’T OF VETERANS AFFAIRS, BOARD OF VETERANS’ APPEALS, ANNUAL REPORT 17 (FY
2018), https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2018AR.pdf.
176 One agency’s templates, now since modified, came under especially harsh criticism in the

courts. See, e.g., Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012) (per Posner, J.).

36

agency heads, especially boards and commissions like the NLRB. All of their
decisions may have precedential status—whether by explicit rule, 177 decisional
law, long-accepted practice, or perhaps even the judicial requirement of
reasoned decision-making across cases 178—with only small exceptions
sometimes made for summary affirmances and other short-form dispositions.
Many agencies, though, have increasingly adopted the practice of designating
only certain decisions—often few in number—as precedential.
There is great variation among agency appellate programs about whether
and how to designate an appellate decision as precedential. For some agencies,
their appellate programs are not designed to make policy, and thus the agencies,
rightly or wrongly, perceive no need for precedential opinions. At the BVA, for
instance, when the appellate body wants to make policy, it works with the VA’s
Office of General Counsel to bring consistency to adjudications. 179 The USCIS
seldom issues precedential decisions because the process is lengthy and resource
intensive, requiring signoffs from the DHS General Counsel, the Justice
Department’s Office of Legal Counsel, and the Attorney General, and then
publication by the BIA. 180
Other agencies engage more often in publishing precedential decisions. At
the SEC, opinions are generally precedential and published, as the Commission
routinely makes policy through adjudication. 181 In immigration adjudication,
the vast majority of BIA decisions are nonprecedential and unpublished. But the
BIA can and does go through an en banc process to select decisions to publish as
precedential. 182 As discussed above, immigration adjudication decisions by the
Attorney General are also precedential. During the Trump Administration, the
BIA and the Attorney General have issued around one-hundred precedential
decisions. 183
As one of us has detailed elsewhere, the PTAB had a very difficult process
for designating decisions as precedential. 184 In 2018, however, the PTAB
adopted new procedures, which established a precedential opinion panel and set
forth procedures to identify cases for this new panel to consider making
precedential. 185
For agencies that seek to make policy through adjudication, the use of
precedential opinions has great promise. Indeed, even for those that do not seek
177 See, e.g., App. J (MSPB).

178 See, e.g., Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374–77 (1998).
179 App. G (VA).

180 App. D (DHS).
181 App. M (SEC).
182 App. E (DOJ).

183 Wadhia & Walker, supra note 60, at Part II.B.

184 See Walker & Wasserman, supra note 26, at 188–96.
185 App. L (PTO).

37

to make policy via adjudication, the use of precedential opinions has the
potential to bring greater consistency and uniformity to their administrative
adjudication programs 186—an often-overlooked value—as the PTAB and a few
other agencies have explicitly noted in their rules setting for the criteria for
designating decisions as precedential. 187 But many agencies lack clear
procedures and criteria for publishing appellate decisions as precedential, and
others may lack the statutory or regulatory authority to even engage in this
practice.
One important procedural question suggested above is where and when the
authority to designate decisions as precedential lies. At some agencies, the
adjudicators who decide particular cases have that authority, which they
exercise incidental to deciding the case, much like a panel of a federal court of
appeals. This practice is most common when the decision-maker is a board or
commission. 188 It aligns very much with the judicial model of appellate review.
At other agencies, by contrast, the decision whether to designate a decision
as precedential is made after its issuance by an official other than the issuing
adjudicator—sometimes through a bureaucratic-like process that sets it apart
from the judicial model. In addition to the USCIS process described above,
examples include the Board of Immigration Appeals, at which a panel decision
is designated as precedential on the vote of the majority of the full Board (or at
the direction of the Attorney General); 189 the Medicare Appeals Council, at
which a panel decision is designated as precedential by the chair; 190 the
Environmental Appeals Board, at which the Board’s designation of a decision as
precedential (“published”) takes effect only after 15 days so as to give the EPA
administrator the opportunity to reverse the precedential designation; and,
most notably, the PTAB, at which a panel decision is designated as a
precedential by a special panel selected and convened by the PTO’s director. 191
The PTAB’s process is probably the most formalized and elaborate.
Several appellate programs have adopted processes under which they solicit
suggestions—from other adjudicators, agency officials, litigants, and the

186 See ASIMOW, ADJUDICATION SOURCEBOOK, supra note 20, at 85.

187 See, e.g., Patent Tr. & Appeal Bd., Standard Operating Procedure No. 2 (rev. 10) (noting

that the “Director has an interest in creating binding norms for fair and efficient Board
proceedings, and for establishing consistency across decision makers”), (https://www.uspto.gov/
sites/default/files/documents/SOP2%20R10%20FINAL.pdf (last visited Dec. 1 ,2020); Dept. of
Justice (Bd. of Immigr. Appeals), 8 C.F.R. § 1003.1(g) (stating that purpose of precedential
decisions is to bring “consistency and uniformity” to adjudication and enforcement decisions).
188 See Merit Sys. Protection Bd., 5 C.F.R. § 1201.117(c).
189 See 8 C.F.R. § 1003.1(g)(3).
190 App. C (HHS).
191 App. L (PTO).

38

public—for precedential designations. 192 The PTAB does so through an onlineform. 193
10. Reconsideration. Virtually all agency appellate programs have some
mechanism for reconsideration, re-opening, en banc review, or agency-head
review of agency appellate decisions. The criteria for such further review vary
by agency. Unsurprisingly, reconsideration is seldom granted, and is usually
reserved for when there is new evidence, egregious error, or some other
extraordinary circumstance.
11. Judicial Remand and Court-Agency Dialogue. Although not
abundantly apparent in the publicly available information, our interviews with
agency officials shed fascinating light on the interaction between agency
appellate bodies and federal courts. It turns out that in most agency appellate
programs, adjudicators pay close attention to judicial decisions that remand
cases to the agency. And they take a number of measures to interact with the
judicial decision on remand.
Most obviously, the agency on remand must issue a new decision that
responds to the federal court’s decision. (Some agencies also have the ability to
settle cases on remand.) To do this, many appellate bodies confer with their full
membership to discuss how to respond. Among potential responses, the
appellate adjudicators must often decide when to adopt the federal court’s
precedent nationwide; merely acquiesce to the precedent in the relevant federal
circuit court’s jurisdiction (or not); or, in the statutory interpretation context,
perhaps even adopt a different interpretation and seek Chevron deference under
the Brand X doctrine. 194 Sometimes the appellate adjudicators will decide to
remand the case to the hearing-level adjudicator to make new factual findings
or otherwise reconsider the remanded issue in the first instance.
It is important to note that the U.S. Court of Appeals for the Federal Circuit
has exclusive jurisdiction for three of the appellate programs in our study: BVA,
MSPB, and PTAB. (Only a small class of MSPB cases may be appealed to a
circuit other than the Federal Circuit.) For those agencies, there is no decision
whether to acquiesce. But officials from those agencies underscored how deep
and interactive their relationship with the Federal Circuit has become. The
agency appellate body and the Federal Circuit are in a continuing dialogue
about the development of policy and precedent and the functioning of the
adjudication program. Officials at agency appellate bodies that are regularly
192 See, e.g., id.; App. C (HHS) (Medicare Appeals Council).
193 Precedential Opinion Panel (POP) Amicus Form, https://www.uspto.gov/patentsapplication-process/patent-trial-and-appeal-board/precedential-opinion-panel-pop-amicus (last
visited Dec. 1, 2020).
194 See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)

(“A court’s prior judicial construction of a statute trumps an agency construction otherwise
entitled to Chevron deference only if the prior court decision holds that its construction follows
from the unambiguous terms of the statute and thus leaves no room for agency discretion.”).

39

reviewed by the U.S. Court of Appeals for the D.C. Circuit made similar
observations about the special relationship they have with the D.C. Circuit.
Federal agencies do not only respond to judicial remand through subsequent
agency decisions. They also respond by issuing guidance and training within the
agency—for the hearing-level and appellate adjudicators and for other agency
officials. At some agencies, the appellate body takes the lead in this training. At
others, the agency general counsel’s office plays that role. A number of officials
interviewed noted how the agency appellate bodies discuss these judicial
decisions at regular meetings and agency-wide conferences and trainings. In
other words, the judicial remand decisions have the potential to have a much
more systemic effect on agency operations and adjudication outcomes.
One final note: The agency officials interviewed underscored that this courtagency interaction is not a one-way street. It is not just the circuit court that
influences the agency; the agency’s decisions also influence the court’s approach.
They view this interaction as more of a partnership than a supervisory
relationship—and as more of a dialogue than a judicial monologue. We return
to this subject in Part III.G.
E.

Administration, Management, and Bureaucratic Oversight

The managerial and bureaucratic side of agency appellate programs, like
that of any adjudication program, is immensely important and could consume
multiple volumes. Below we address several aspects of the subject that lend
themselves to cross-agency consideration, though not necessarily the
formulation of best practices.
1. Guidance Documents Directed to Adjudicators. Adherents to the
judicial model, as opposed to a bureaucratic/managerial-type model, of agency
adjudication tend to see the legal authorities governing hearing-level and
appellate decision making as mostly limited to statutes; legislative rules,
whether substantive and procedural; and decisional law, both agency and
judicial. (Other legal pronouncements at certain agencies might be added to this
list. 195) They tend to reject internal administrative law—in particular,
interpretive rules and policy statements, which together are now often put
under the rubric of “guidance documents” 196—as being authoritative.
Our assessment is borne out by the agency appellate programs under review.
Few use guidance documents to direct the actual decision making of hearinglevel adjudicators, or appellate adjudicators for that matter. (Internal policies,
of course, govern all sorts of administrative and other matters that are critically

195 See, e.g., 38 U.S.C. 7104 (providing that the BVA’s decisions are governed not only by
regulations, but also “instructions of the Secretary, and the precedent opinions of the chief legal
officer of the Department”).
196 See, e.g., Levin, supra note 102.

40

important to appellate programs.) The arguable exception here are interpretive
rules issued by agency heads. 197
The obvious outlier here, not surprisingly, is the SSA Appeals Council. 198 The
Appeals Council’s appellate disposition of ALJ decisions consists of brief, casespecific, unpublished (on SSA’s website or otherwise), and nonprecedential
decisions. They do not establish a body of decisional law (substantive or
procedural) that governs the decisions of SSA ALJs generally. When the Appeals
Council speaks to ALJs outside the context of particular cases, it does so mostly
through the previously mentioned HALLEX manual 199—a guidance document
that exemplifies internal administrative law. 200 HALLEX addresses mostly
procedural matters that arise in ALJ hearings as well as proceedings before the
Appeals Council. One litigated provision, for example, tells an ALJ when a
translator must be provided rather than leaving it up the ALJ’s case-by-case
determination. 201
The SSA disclaims any status of HALLEX as a legislative rule—that is, a
rule that a litigant could enforce on judicial review of an SSA decision 202—and
to this end does not publish it in the Federal Register or the CFR. 203 But the SSA
deems HALLEX binding on ALJs—on pain of discipline through the MSPB 204—
and will use its provisions to assign error to an ALJ decision on appeal.
An especially notable aspect of HALLEX as far as this study is concerned is
what might be called its interpretive components. They take the form of Appeals
Council Interpretations: short interpretations of SSA law on discrete issues
which purposes include “resolv[ing] issues arising from gaps in policy or unclear
statements of policy to facilitate the adjudication of individual cases coming
before the Council for consideration.” 205 The impetus for an interpretation may
197 App. M (SEC).

See generally Nicholas R. Parrillo, Introduction, in ADMINISTRATIVE LAW FROM THE
INSIDE OUT, supra note 10, at 6 (questioning whether the extensive use of “internal law” in SSA’s
adjudication system, as advocated by Professor Mashaw in his pathbreaking scholarship, is
“replicable beyond SSA”).
198

199 The SSA Commissioner, as distinct from the Appeals Counsel, also issues Social Security
Rulings (SSRs) and Acquiescence Rulings, both guidance documents. The latter, as the name
suggests, sets forth the SSA’s position as to when the agency will acquiesce in circuit-court law
at variance with SSA policy in cases arising within the particular circuit. See Soc. Sec. Admin.,
Social Security Rulings and Acquiescence Rulings, https://www.ssa.gov/OP_Home/rulings/
rulings-toc.html (last visited Nov. 26, 2020).
200 See Part III.A.2 supra.

201 See HALLEX, supra note 108, § I-2-6-10.
202 See Part III.A.2 supra.

203 Nor has the SSA ever noticed HALLEX for public comment. Much of it, being procedural,
would be exempt from the APA’s notice-and-comment requirements, although the SSA generally
does not avail itself of that exemption even when it promulgates entirely procedural rules.
204 See, e.g., Social Sec. Admin. v. Butler, 2016 WL 4547551 (M.S.P.B. 2016).
205 HALLEX, supra note 108, § II-5-0-1.

41

be a particular case, but the interpretation is, and is styled as, a guidance
document rather than a case-specific decision. HALLEX establishes formal
procedures for the Appeals Council’s issuance of interpretations. 206
One reason agencies—and, in particular, non-agency-head appellate
adjudicators—may shy away from using guidance documents to direct the
decision making of hearing-level adjudicators is that the practice can raise
questions as to whether, when, and how they bind adjudicators. In its recent
recommendation on the internal bindingness of guidance documents, ACUS
itself avoided the issue as to whether agency adjudicators are among the agency
employees to whom “direction” can be given by policy statement. 207 Our own,
and we suspect the predominant, view is that agencies may do so in many
instances.
It may be that appellate programs do not really need to rely on guidance
documents to direct the decisional activities of their adjudicators and promote
inter-decisional uniformity and consistency. Precedential decisions, when welldrafted, may serve the same objectives, and do so in a way more consonant with
the judicial model of agency adjudication and the expectations of at least some
agency adjudicators. That is especially true when appellate programs effectively
communicate precedential decisions to adjudicators and facilitate their access
to them through summaries, digests, and other mechanisms discussed below.
2. Feedback to Hearing-Level Adjudicators. The SSA Appeals Council
aside, none of the appellate programs we studied provide direct feedback in any
form to hearing-level adjudicators on their decisions overall. The feedback comes
in the form of an appellate decision reviewing a hearing-level adjudicator’s
decision in an individual case. Occasionally an appellate decision notes a
recurring practice of the particular hearing-level adjudicator that needs
correction. Having noted such a problem in a decision, the appellate
decisionmaker usually leaves the matter in the hands of the hearing-level office
to address with the adjudicator, if it is to be addressed at all. Here again the
judicial model of agency adjudication dictates agency practice.
3. Dialogue with Rulewriters. A recurring issue in administrative law is
the choice between rulemaking or adjudication to make policy. 208 Appellate
adjudicators are often uniquely positioned to identify recurring issues in
adjudications, both procedural and substantive, that might be best addressed by
rules. When the appellate adjudicator(s) is the agency head, as in the case of a
multi-member board or commission, the adjudicators are obviously well
positioned to consider, and then initiate, possible rulemaking initiatives.
206 See id.

207 See Admin. Conf. of the U.S., Recommendation 2019-1, Agency Guidance Through
Interpretive Rules, 84 Fed. Reg. 38,927 (Aug. 8, 2019); Admin. Conf. of the U.S.,
Recommendation 2017-5, Agency Guidance Through Policy Statements, 82 Fed. Reg. 61,734
(Dec. 29, 2017).
208 The literature is voluminous. See, e.g., Magill, supra note 60; Shapiro, supra note 60.

42

Witness recent rulemaking initiatives (albeit substantively controversial ones)
at the NLRB. 209
We found that, when an appellate program resides below the level of the
agency head, dialogue between adjudicators and rulewriters is often sporadic
and ad hoc, when it occurs at all. One reason at some agencies appears to be
that adjudicators, socialized into the judicial review model of agency
adjudication discussed in Part I.C, do not consider policymaking to be their
concern. Some even think it to be incompatible with their adjudicative roles.
Another reason is administrative. Agency organizational structures sometimes
inhibit dialogue and collaboration between adjudicators and rulewriters.
We do not mean to imply that this problem is characteristic of all appellate
programs. Some agencies have done admirably well in facilitating regular
dialogue between rulewriters and adjudicators. The SSA is the most notable
example. It has even adopted a formal, though infrequently used, mechanism—
the above-mentioned Appeals Council Interpretations—to “identify[] and
surfac[e] to SSA policymakers conflicts or inconsistencies in program policy.” 210
But agencies like the SSA appear to be the exception.
As we note in the Conclusion, ACUS may wish to further study this issue
and, insofar as administrative best practices can be identified to institutional
adjudicator-rulewriter dialogue, embody them in a recommendation.
4. Notifying Adjudicators of Agency Appellate Decisions and
Judicial Decisions. Some appellate programs actively notify both appellate
and hearing-level adjudicators of their decisions and judicial decisions rather
than relying on the adjudicators to independently review them from the
program’s website or otherwise. What decisions a program notifies agency
adjudicators of and how it does so vary considerably.
As for their own decisions, agency appellate programs most often see the
need to notify appellate adjudicators when the program has a high-volume
caseload with many adjudicators, only one or a small number of whom (usually
sitting in a panel) actually participate in any given case. Notification is
especially important—and, in a high-volume program, often appropriately
reserved for—precedential and other important decisions of which adjudicators
must be aware when deciding future cases. (Notification would be impracticable
and often not very useful in high-volume programs where decisions involve
routine application of well-established law and policy—procedural and
substantive—to case-specific facts.) No generalization can be made about the
optimal format and means of delivery. Some agencies find that sending

209 See Nat’l Labor Relations Bd., National Labor Relations Board Rulemaking,
https://www.nlrb.gov/about-nlrb/what-we-do/national-labor-relations-board-rulemaking
(last
visited Nov. 26, 2020).
210 HALLEX, supra note 108, § II-5-0-1.

43

memoranda suffices. Agencies often find it useful, not surprisingly, to provide
summaries and commentary about the decisions.
As for judicial decisions, most agency appellate programs notify their
adjudicators about them or, in high-volume programs that result in a highvolume of judicial opinions, at least some of them. High-volume programs are
more likely to notify adjudicators about circuit-court rather than district-court
opinions. Here, again, such notifications are often best accompanied by
summaries and brief commentary.
Judicial decisions do differ from agency appellate decisions in one important
respect that bears on the issue of notice: Supreme Court decisions aside, federalcourt decisions are not usually binding on agencies except as to the law of the
case on review. The issue is especially pronounced when circuits split on a point
of law. A few agencies have found it necessary to provide guidance to their
adjudicators as to when they should follow federal-court decisions and when
agency policy remains unaffected.
The foregoing discussion has addressed only an appellate program’s
notification to its own appellate adjudicators. Direct notification of hearing-level
adjudicators—and, as we note below, direct communication with them
generally—appears uncommon. Appellate programs usually leave notification
to hearing-level administrators. This is one context in which any number of
agencies could improve dialogue, and at least some modest coordination,
between appellate-level offices and hearing-level offices.
5. Digests and Indexes of Decisions. Several of the studied agencies
maintain digests and indexes of agency and sometimes judicial decisions for
hearing-level and appellate adjudicators. This facilitates necessary research
and is especially important in adjudication programs in which decisional law (as
opposed to statutory or rule-based law) plays an important role in deciding even
routine cases. Some agencies post short-form versions of digests and indexes on
their website so that both adjudicators and the public can benefit from them. 211
Digests of agency precedents are especially useful when adjudication
decision making requires substantial engagement with an extensive body of
doctrinally complex agency precedent. Some agencies could make more
extensive use of them.
A still more ambitious mechanism that agencies might consider employing—
though none, as far as we know, have employed so far—would be internally
prepared restatements of the substantive law governing decisions with
extensive notes or comments and citations. (The closest analogue are “bench
books,” but they mostly concern procedural matters and emanate from the
hearing level.) Such restatements might save appellate and hearing-level
adjudicators time and prevent avoidable doctrinal errors. Most agencies, we

211 See examples cited in notes 221–226 infra.

44

suspect, would probably want to disclaim any intent to bind adjudicators or
establish judicially enforceable law through such restatements.
6. Electronic Case Management and Filing. Many but by no means all
appellate programs use an electronic case management system (eCMS). Some
programs’ transition from paper recordkeeping systems is only partially
complete, and some still rely substantially on paper records.
ACUS has already addressed that subject at length for adjudication
programs generally. 212 We have only one additional observation drawn from the
practices of several of the agencies we studied: an eCMS for appellate programs
should, as far as practicable, be integrated with the eCMS for hearing-level
programs to facilitate an appellate adjudicator’s access to hearing-level filings,
decisions, and (especially) the evidentiary record.
A related issue is electronic filing. Most appellate programs, like hearinglevel programs, provide for electronic filing. 213 Programs that have not yet done
so should do so as promptly as resources allow.
7. Video Hearings. ACUS has already addressed the use of video hearings
for adjudications 214 and recently began a successor project on a related
subject. 215 Moreover, ACUS has recommended that hearing-level proceedings be
presumptively open to the public, potentially with streamed or recorded audio
or video. 216 Our research and interviews suggest that these recommendations
should generally govern appellate proceedings, especially oral argument.
8. Interagency Dialogue. One overarching conclusion we can confidently
draw from our interviews is that most agencies seldom exchange information
and perspectives on the matters in this subsection with other agencies. This
inter-agency silo effect is an impediment to optimal administration. ACUS is
uniquely situated to address this problem—not only through the formal
recommendation of its Assembly but also through the information-exchange
functions undertaken by its Office of the Chairman under the Administrative

212 See Admin. Conf. of the U.S., Recommendation 2018-3, Electronic Case Management in

Federal Administrative Adjudication, 83 Fed. Reg. 30,686 (June 29, 2018); see also ASIMOW,
ADJUDICATION SOURCEBOOK, supra note 20, at 74.
213 See ASIMOW, ADJUDICATION SOURCEBOOK, supra note 20, at 78–80.

214 See Admin. Conf. of the U.S., Recommendation 2014-7, Best Practices for Using Video
Teleconferencing for Hearings, 79 Fed. Reg. 75,114 (Dec. 17, 2014); Admin. Conf. of the U.S.,
Recommendation 2011-4, Agency Use of Video Hearings: Best Practices And Possibilities For
Expansion, 76 Fed. Reg. 48,795 (Aug. 9, 2011).

215
See Admin. Conf. of the U.S., Virtual Hearings in Agency Adjudication,
https://www.acus.gov/research-projects/virtual-hearings-agency-adjudication (last visited Nov.
26, 2020).
216 Recommendation 2016-4, supra note 30.

45

Conference Act. 217 One modest, but important, step the Office has recently taken
to enhance this function is the establishment of its Council on Federal Agency
Adjudication. 218 This Council should address issues in appellate programs in
addition to hear-level adjudication programs.
9. Solicitation of Public Feedback. Several of the studied agencies solicit
public feedback on their procedures and processes. In Recommendation 2016-4,
ACUS recommended this practice for hearing-level adjudication programs. 219
This recommendation applies with similar force to appellate programs.
F.

Public Disclosure and Transparency

1. Adjudication Materials on Agency Websites Generally. ACUS has
adopted two recommendations on adjudication materials (rules of practice,
decisions, explanatory materials, and so forth) on agency websites. 220 Here are
a few additional observations on the subject particular to appellate programs
drawn from our review of the studied agencies’ appellate programs and other
websites:
a. Subject to resource constraints, appellate programs should consider
putting all their appellate decisions on their websites, unless they are so
voluminous and case-specific as to be of little public interest (as might be the
case with SSA Appeals Council decisions). This includes even high-volume
adjudication programs. The BVA, most notably, has shown that this can be
done. 221 Of course, it may be appropriate or legally necessary to redact
personally identifiable, confidential, private, and other such information. A
number of agency websites offer examples. 222
b. The best websites allow the public to search decisions for key words and
allow the public to sort agency decisions by name, date, docket number, and
217 See 5 U.S.C. §§ 591, 594(2), 595(b); cf. Jennifer Nou, Agency Coordinators Outside of the

Executive Branch, 128 HARV. L. REV. FORUM 64 (2015) (discussing possible role for ACUS in
inter-agency coordination involving adjudication).

Press Release, Admin. Conf. of the U.S., ACUS Announces New Council on Agency
Adjudication (Sept. 10, 2020), https://www.acus.gov/newsroom/news/acus-announces-newcouncil-federal-agency-adjudication.
218

219 See Recommendation 2016-4, supra note 30, § 31.

220 See Recommendation 2018-5, supra note 104; Admin. Conf. of the U.S., Recommendation
2017-1, Adjudication Materials on Agency Websites, 82 Fed. Reg. 31,039 (July 5, 2017). The
report associated with the latter is Daniel J. Sheffner, Access to Adjudication Materials on
Federal Agency Websites, 51 AKRON L. REV. 447 (2017).

221 See U.S. Dep’t of Veterans Affairs, The Board of Veterans’ Appeals Decision Search
Results, https://www.index.va.gov/search/va/bva.jsp (last visited Nov. 26, 2020).

See, e.g., Equal Emp’t Opportunity Comm’n, The DIGEST of Equal Employment
Opportunity
Law,
https://www.eeoc.gov/federal-sector/digest/digest-equal-employmentopportunity-law (last visited Nov. 26, 2020); U.S. Citizenship & Immigration Servs., AAO NonPrecedent Decisions, https://www.uscis.gov/administrative-appeals/aao-decisions/aao-nonprecedent-decisions (Nov. 26, 2020).
222

46

other criteria. Allowing sorting by subject matter is an especially useful
feature. 223 The NLRB’s website suggests another best practice that may be
appropriate for some agencies: listing especially significant decisions with
accompanying brief summaries prepared by agency staff. 224 One appellate
program, the BIA, goes further and includes with each precedential decision in
its bound volumes (now online) a one-sentence summary of the decision’s
principal holdings (somewhat akin to the syllabus that accompanies Supreme
Court decisions). 225
c. Most agencies that distinguish between precedential and nonprecedential
decisions follow the practice of listing them separately under clear headings. 226
An accompanying explanation of the difference, conspicuously displayed, is also
helpful. 227 Not all agencies follow that practice.
d. Some agencies put on their websites notices of recent decisions, often
accompanied by useful, short summaries. One agency’s website we reviewed
helpfully organizes recent decisions by subject matter. 228 It is probably good
practice to accompany summaries by a disclaimer that the agency is providing
them only for informational purposes and that they do not have any legal effect,
although it is hard to imagine a court concluding otherwise. 229
223 Envtl. Prot. Agency (Env’t Appeals Bd.), Published Decisions [by] Lists of Statutes,
https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/Statutes?OpenPage (last visited Nov. 26,
2020).

See Nat’l Labor Relations Bd., Cases and Decisions—Notable Board Decisions,
https://www.nlrb.gov/cases-decisions/decisions/notable-board-decisions (last visited Nov. 26,
2020).
224

See U.S. Dep’t of Justice (Exec. Office for Immigration Review), Agency Decisions,
https://www.justice.gov/eoir/ag-bia-decisions (last visited Nov. 26, 2020).
225

See, e.g., U.S. Dep’t of Justice (Exec. Office for Immigration Review), Board of
Immigration Appeals, https://www.justice.gov/eoir/board-of-immigration-appeals (last visited
Nov. 26, 2020); U.S. Patent & Trademark Office, Decisions, https://www.uspto.gov/patentsapplication-process/patent-trial-and-appeal-board/decisions (last visited Nov. 26, 2020); U.S.
Citizenship & Immigration Servs., AAO Decisions, https://www.uscis.gov/administrativeappeals/aao-decisions (last visited Nov. 26, 2020).
226

227 The websites cited in the preceding footnote include useful explanations of the difference.
See also, e.g., Nat’l Lab. Relations Bd., Cases and Decisions (Unpublished Board Decisions),
https://www.nlrb.gov/cases-decisions/decisions/unpublished-board-decisions (last visited Nov.
30, 2020).

228 See Envtl. Prot. Agency (Env’t Appeals Bd.), supra note 223; see also, e.g., Equal Emp’t
Opportunity Comn’n, Digest of Equal Employment Opportunity Law, https://www.eeoc.gov/
digest (last visited Nov. 30, 2020) (quarterly digest of recent cases); Equal Emp’t Opportunity
Comm’n, Selected Noteworthy Federal Sector Appellate Decisions, https://www.eeoc.gov/
federal-sector/selected-noteworthy-federal-sector-appellate-decisions (last visited Nov. 30, 2020)
(identifying and summarizing recent decisions of note).

See, e.g., U.S. Citizenship & Immigration Servs., AAO Practice Manual—About the
Administrative Appeals Office Practice Manual, https://www.uscis.gov/administrativeappeals/aao-practice-manual (last visited Nov. 26, 2020).
229

47

e. At least three agencies (MSPB, NLRB, and BIA) in our study invite the
public to subscribe to a listserv (through platforms like GovDelivery) to receive
notices of new decisions. 230 This strikes us an especially good practice that other
agencies might consider adopting.
f. Not all agencies include materials from which the public can ascertain the
appellate program’s legal authority. This is most commonly a problem when the
authority derives from a delegation/assignment from an agency head that
resides in some sort of unpublished rule (sometimes styled an “order”).
Identifying and linking to such a document is a good practice. Better still is the
practice, followed by some agencies, of providing for or referencing the
delegation of authority in its CFR-codified rules of practice. 231
2. Notice and Identification of Judicial Opinions. A pending ACUS
project addresses litigation materials, including decisions on agency websites.
One best practice, not specifically addressed there, we suggest for consideration
is that, when posting an appellate decision on their websites, agencies should
note any court decisions reviewing it. The NLRB accomplishes this indirectly,
in an exemplary way, by including in its online docket each case’s subsequent
judicial materials (e.g., petitions for review, motions, orders, and opinions). 232
3. Appellate Proceedings: Oral Argument. It is especially important that
appellate oral argument, which may address legal and policy issues of concern
beyond the litigants to particular cases, be presumptively open to the public. (Of
course, the Sunshine Act requires that boards and commissions open argument
to the public. 233) A few agencies’ rules require that proceedings be open. 234 When
argument is conducted by video, agencies should, whenever practicable, allow
public access by phone or, better still, audio or video access. 235 (Again, board and

U.S. Merit Sys. Prot. Bd., Of Note…—Subscribe to the MSPB Decision ListServ,
https://www.mspb.gov/decisions/casereports.htm (last visited Nov. 26, 2020) (left side of page);
U.S. Dep’t of Justice (Exec. Office for Immigration Review), Agency Decisions,
https://www.justice.gov/eoir/ag-bia-decisions (last visited Nov. 26, 2020); Nat’l Lab. Relations
Bd., Weekly Summary, https://www.nlrb.gov/cases-decisions/decisions/weekly-summariesdecisions (last visited Nov. 30, 2020).
230

231 See, e.g., Equal Empl. Opportunity Comm’n, 29 C.F.R. § 1614.404(a). On the use of rules

of practice, see Part III.A.2 supra.

See Nat’l Labor Relations Bd., Cases and Decisions, https://www.nlrb.gov/casesdecisions/cases (last visited Nov. 26, 2020).
232

233 See 5 U.S.C. § 552b(b). But see id. § 552b(c)(10) (exempting meetings concerning
“disposition by the agency of a particular case of formal agency adjudication pursuant to the
procedures in section 554 of this title or otherwise involving a determination on the record after
opportunity for a hearing”).
234 See, e.g., Sec. & Exch. Comm’n, 17 C.F.R. § 201.201.

235 See, e.g., Fed. Mine Safety & Health Rev. Comm’n, Sunshine Act Meeting, 85 Fed. Reg.

60,786 (Oct. 8, 2020) (providing a call-in number).

48

commissions must do so under the Sunshine Act.) Live-streaming on the
agency’s website would be ideal. Most agencies do not yet do so.
Some agencies provide advance notice of oral arguments prominently on
their websites, usually in furtherance of their obligations under the Sunshine
Act, sometimes voluntarily. 236 Two agency websites we reviewed not only post
such notices but also include especially accessible and well-written overviews
(beyond Sunshine Act requirements) of the cases in which argument is to be
held. 237 Other agencies that hold argument on matters of concern beyond the
litigants to a case might consider adopting this practice.
We did not encounter the practice of agencies posting on their websites
transcripts, recordings, or videos of appellate oral arguments. Federal appellate
courts increasingly post audio or video recordings of oral argument on their
websites. 238 It would be impracticable for most agency appellate programs that
hold many oral arguments to do so in every case; and, volume aside, it would be
of little value to the public for programs to do so in many routine cases. But some
agencies might consider doing so in select cases that raise legal and policy issues
of importance beyond the parties to the case. Posting at least some oral
arguments online also may help parties, their lawyers and representatives, and
the public more generally to understand how the oral argument process works
at the agency and, in some cases, to better prepare for their own arguments
before the agency.
4. Explanatory Materials for the Public. Most agency appellate
programs post on their website at least some public-facing materials explaining
what decisions they review and the procedures they use. Sometimes the
explanations appear in free-standing documents that the user opens as a PDF,
at other times as website text. Explanatory materials take any number of
forms—e.g., practice guides, “questions and answers,” and fact sheets—and bear
any number of titles. Some agencies post materials largely designed for internal
use—such as practice manuals for enforcement staff 239—that may also serve an
explanatory function. (Most or all of these materials constitute “rules” 240 under
.236 See, e.g., Envtl. Prot. Agency, Envtl. Appeals Bd., Upcoming Oral Arguments,
https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/Upcoming+Oral+Arguments?OpenView (last
visited Nov. 30, 2020).

See Sec. & Exch. Comm’n, Sunshine Act Meeting, https://www.sec.gov/news/
openmeetings/2016/ssamtg032116.html (last visited Nov. 26, 2020); Occupational Safety &
Health Review Comm’n, Rules—Guides, https://www.oshrc.gov/rules-guides (last visited Nov.
26, 2020).
237

238
See, e.g., U.S. Court of Appeals for the D.C. Circuit, Oral Arguments,
https://www.cadc.uscourts.gov/internet/home.nsf/content/Oral+Arguments (last visited Nov. 26,
2020).

239
See, e.g., NAT’L LAB. RELATIONS BD., NLRB CASEHANDLING MANUAL,
https://www.nlrb.gov/reports-guidance/manuals; see also Stack & Metzger, supra note 103, at
1241 & n.6 (describing the NLRB’s case-handling manual).
240 See 5 U.S.C. § 551(4).

49

the APA—though rules without the force of law in the sense that they are not
judicially enforceable—but the terminology here is unimportant.)
Our overall impression is that these materials are generally well drafted and
accessible to the intended audience. We are reluctant to pass any generalized
judgment here because the intended audience for explanatory materials differs
from agency to agency. For some agencies, the intended audience consists of
mostly unrepresented parties; for others it consists almost exclusively of lawyers
drawn from a specialized bar.
A few generalizations, though, are possible. First, the agency must take care
to ensure that explanatory materials do not take the place of CFR-codified rules
of practice and that the explanatory materials are not at variance with them.
This is a more serious concern with hearing-level materials, but we have
identified some suboptimal practices with appellate materials as well. They
include the use of manuals that set forth certain rules of practice—to which both
agency and litigant are seemingly bound—while disclaiming that they have any
legal effect Second, explanatory materials are often most effective when they
reference (and, better still, also link to) the underlying CFR-codified regulations,
statutes, and other authoritative materials. That encourages litigants to cite the
underlying source rather than the explanatory materials.
Third, some agencies have too many explanatory documents, with the result
that information is presented in a fragmented, and sometimes redundant or
even outdated, manner. Agencies should review these materials with an eye
toward possibly simplifying, shortening, and consolidating them. And fourth,
agencies should include as text on their website brief overviews of their
appellate programs, even if they choose, as many do, to post comprehensive and
lengthy explanatory documents. Here again the target audience is an important
consideration.
5. Internal Decision-Making Processes. By internal decision-making
processes, we contemplate such critical matters as how cases are assigned to
adjudicators; what staff the program uses; what role staff play in screening and
sorting cases, assigning them to different tracks (when agencies use tracking
schemes), making recommendations about the disposition of appeals, and
writing decisions; and the order in which cases are decided. Some agencies do
not make this and other information about their internal decision-making
processes available to the public.
One agency that does this especially well is the SSA Appeals Council. Its
HALLEX manual effectively illustrates how information about internal
decision-making processes can be presented. 241 Another approach is to provide
some explanation of internal processes in an agency’s rules of practice. Some
rules of practice, for instance, explain what role agency staff plays. How much

241 See HALLEX, supra note 108, § I-2-0 through § I-2-10.

50

information is appropriate for a rule of practice depends on the particular
program.
6. Information About Adjudicators. Locating information about
appellate adjudicators other than agency heads—their method of appointment,
terms and conditions of employment, permissible interactions with other agency
officials, and so forth—is often more difficult than it should be. Such information
about hearing-level adjudicators often resides only in unpublished agency policy
documents. ACUS is addressing the subject of disclosure of information about
adjudicators in a pending project. 242 We refer readers to its associated report
and committee-proposed recommendation. 243
7. Case-Management Statistics. As best we can tell, all agencies maintain
some case-management (or processing) statistics. Most, but not all, agencies
share at least some data with the public, often through annual reports. Some
agencies are clearly more forthcoming with data than others. What particular
data are and should be disclosed to the public, and in what form, of course
depend on the particular program and the program’s stated objective(s). We are
reluctant to make cross-agency generalizations or offer best practices. But
especially important data include case outcomes and case-disposition times as
well as the number of dispositions and cases awaiting decision.
G.

Common Challenges in Agency Appellate Programs

During our interviews with the leaders of these agency appellate programs,
a half dozen challenges emerged as recurring themes. Not all agency officials
expressed all of these concerns, and some of these issues have already been
mentioned in Part III. But these concerns were common enough to merit some
additional discussion here.
1. Volume and Backlogs. Just as it is a recurring theme in high-volume
agency adjudication at the hearing level, many agency officials expressed
concerns about the volume of cases they review and the backlogs of appeals that
have accumulated. Some agency appellate programs are facing backlogs in the
tens of thousands of appeals. Nearly all agency officials interviewed underscored
the importance of managing the volume of appeals and striving to review the
cases in an expeditious manner. For some agencies, however, the backlog just
keeps growing due to the lack of sufficient personnel and resources to handle
the heavy appellate docket. Some agency officials indicated that the backlogs
may also be due in part to a more time-consuming de novo standard of review
as well as, in some circumstances, an open-file policy that readily allows the
appellant to supplement the administrative record under review.

242 Public Availability of Information About Agency Adjudicators, supra note 19.

243 See Schriever, supra note 130. The project also draws on Barnett, Non-ALJ Adjudicators,

supra note 16, published as Barnett & Wheeler, supra note 16; see also Barnett, supra note 130,
at 563–82.

51

2. Resource Constraints. Many agency officials underscored that their
appellate program lacks sufficient resources to effectively carry out its
objectives. Not surprisingly, some agency appellate programs have more
resources than others, sometimes for reasons other than case volume, and there
seems to be a strong correlation between resources available at the hearing level
and those available at the appellate level. When discussing resource constraints,
many agency officials focused on human capital—in terms of both appellate
adjudicators and staff attorneys and administrative personnel. But some
officials also noted the lack of an electronic filing and case management system
as well as insufficient technology for docket management, videoconference
hearings, quality assurance, and developments in automation, machine
learning, and artificial intelligence.
3. Vacancies, Turnover, and Personnel Law. In conjunction with their
discussion of backlogs and resource constraints, many agency officials expressed
frustration about the turnover in appellate adjudicators and staff. Some of these
concerns are quite public, such as the lack of a decision-making quorum at the
MSPB. Other incidences of vacancies and turnover escape public attention.
Some agency officials suggested that personnel law plays a role in the delay in
filling vacancies.
4. Electronic Case Management. A number of agency officials interviewed
emphasized that their appellate programs still do not have an electronic case
management system (eCMS). Instead, they deal with paper submissions and
files, which leads to increased expense and decreased efficiency. Some of these
appellate programs are in the process of transitioning to an eCMS. The agency
officials with an eCMS emphasized the tremendous benefits in terms of not just
cost and efficiency but also the ability to implement better quality assurance
measures and experiment more fully with automation, machine learning, and
artificial intelligence innovations.
5. Reconciling Competing Objectives. At the outset of each interview, we
spent considerable time exploring the various reasons why the agency—by
statute or regulation—has an appellate review program. Many agency officials
interviewed, however, underscored that their appellate program faces
competing objectives. Sometimes there are tensions in the objectives set forth in
Part I.C between, for instance, error correction and a broader focus on interdecisional consistency, or between policymaking and error correction. But far
more often the competing objectives concern the tradeoffs between quality (i.e.,
engaging in thorough yet time-consuming review) and quantity (i.e., reducing
backlogs and only correcting obvious errors). These tradeoffs were often
mentioned in the interviews in the context of the parties’ ability to supplement
the record and the standard of review that applies at the appellate stage.
6. Responding to Circuit-Court Decisions. Although not the central
focus of our study and interviews, many agency officials noted in the interviews
that their appellate adjudicators—and the agency as a whole—spent
considerable time responding to judicial review. As further detailed in Part
52

III.C.11, the appellate adjudicators follow closely how their cases are being
reviewed in the federal courts, especially in the circuit courts. Judicial remands
to the agency force the agency to engage with the circuit-court’s reasoning and
decide whether to embrace that reasoning as the agency’s own nationwide or
only acquiesce in that particular circuit.
Aside from that circuit-court acquiescence question, the agency has the
choice of how broadly or narrowly to construe the judicial command—or in the
Chevron deference context with an ambiguous statute, whether to advance a
different agency statutory interpretation than that embraced by the circuit
court. There are also complicated questions about whether the agency head or
appellate body should issue a precedential decision (or other informal guidance)
in response to the judicial remand in order to help the hearing-level adjudicators
incorporate the circuit-court command, or whether to just remand the case back
to the hearing-level adjudicator to deal with all of those issues in the first
instance on remand. The agency appellate programs in our study take different
approaches to these judicial remand issues, and recognize that remands present
both opportunities and challenges for their agency adjudication program more
generally.

IV.

RECOMMENDATIONS

Our recommendations draw from our findings (Part III), though not all
findings resulted in a recommendation. We have been judicious in drawing
recommendations from our findings given the preliminary nature of some of our
findings and the heterogeneity of agency appellate programs. In considering
these recommendations, agencies should of course weigh the costs and benefits
of adoption in light of existing resources.
We organize the recommendations into six categories, which roughly
correspond to the organization in Part III. The recommendations under each
category are followed by a brief comment. Most of the comments track the
findings in Part III.
A.

Objectives of Appellate Review
1.

Agencies should identify what objective or objectives are served by
their appellate programs, and they should design their processes and
draft their procedural regulations accordingly.

2.

Agencies should publicly announce—preferably by codifying them in
procedural regulations—the objective or objectives of their appellate
program.

As emphasized in this Report, appellate review can serve a number of
different, and sometimes competing, objectives, ranging from error correction to
policy formulation. An important question every agency should answer with
respect to each appellate program is: What purpose or purposes does it serve?
The answer to that question will necessarily underlie many of the procedural
53

choices an agency must make. They include, most obviously, the criteria for
deciding which hearing-level decisions to review when review is discretionary.
Having identified the purpose of a particular appellate program, the agency
should identify it in its procedural regulations. We say “identify” rather than,
say, “decide” because the objective of an agency appellate program may be
dictated by statute.
B.

Procedures for Appellate Review
1.

Agencies should address all significant procedural matters governing
agency appellate review in procedural regulations—often styled as a
“rules of practice” or “rules of procedure”—published in the Code of
Federal Regulations rather than relegating them to non-legislative
rules or other documents. Significant procedural matters pertaining
to agency appellate review include:
(a)

the availability of interlocutory review;

(b)

the procedures for initiating review;

(c)

the standards for granting review, if review is discretionary;

(d)

the scope and standard of review;

(e)

the allowable and required submissions by litigants—including
petitions, motions, and briefs—and their required contents;

(f)

the procedures and criteria for designating decisions as
precedential and the legal effect of such designations;

(g)

the record on review and the opportunity, if any, to submit new
evidence;

(h)

the availability of and criteria for oral argument and amicus
participation;

(i)

the availability of, criteria for, and procedures for reconsideration;

(j)

in the case of multi-member appellate boards, councils, and the
like, the authority to assign decision-making authority to fewer
than all members (e.g., panels); and

(k)

any administrative exhaustion requirements that must be satisfied
before seeking judicial review.

2.

Agencies should consider including in the procedural regulations
governing their appellate programs: (a) a brief statement or
explanation of each program’s review authority, structure, and
decision-making components; and (b) for each provision based on a
statutory source, an accompanying citation to that source.

3.

When revising existing or adopting new appellate rules, agencies
should review the appellate rules (Rules 400-450) in the
Administrative Conference’s Model Rules of Agency Adjudication (rev.
54

2018) (Appendix B to this Report) in deciding what the rules should
provide.
4.

When adopting new or materially amending existing procedural
regulations, agencies should voluntarily use notice-and-comment
procedures or other mechanisms for soliciting public input,
notwithstanding the procedural rules exemption of 5 U.S.C.
§ 553(b)(A), unless the costs clearly outweigh the benefits of doing so.

ACUS has recommended that hearing-level adjudication programs include a
“complete statement of important procedures”—that is “all important
procedures and practices that affect persons outside the agency in procedural
regulations”—in “procedural regulations” published in the Federal Register and
Code of Federal Regulations. 244 This should undoubtedly apply to appellate
programs as well. (We refer to “procedural regulations” as “CFR-codified rules
of practice.”) Codifying important procedures serves several objectives, not least
the rule-of-law objective of laying down in explicit terms the procedures to which
both the agency and litigants must follow in both agency proceedings and the
federal courts.
No hard-and-fast rule dictates which procedural matters should be
addressed in CFR-codified procedural regulations and which may be addressed
instead in guidance documents like practice manuals. We include above a nonexhaustive list drawn in part from the appellate provisions of ACUS’s Model
Adjudication Rules (rev. 2018) (Appendix B), to which we commend all agencies
when reviewing their rules of practice.
Consistent with ACUS’s long-standing position, 245 we recommend that
agencies voluntarily solicit public comment on any proposed procedural rules
subject to exemption of 5 U.S.C. § 553(b)(A), unless the costs of doing so clearly
outweigh the benefits. Rarely will the costs exceed the benefits. Of course, some
changes to procedure rules will be so minor and technical as to not call for public
comment. We assume that point need not be made explicit in a recommendation.
C.

Case Selection for Appellate Review
1.

Based on the agency-specific objectives for appellate review, agencies
should consider whether review should be mandatory or discretionary
(assuming they have statutory authority to do so); if discretionary, the
standards for granting review should track the purposes of the
appellate program, and they should be published in the procedural
regulations.

2.

Agencies should consider implementing procedures for sua sponte
appellate review of non-appealed hearing-level adjudications as well

244 Recommendation 2016-4, supra note 30, § 28 at 94,316.
245 See, e.g., Recommendation 92-1, supra note 121, § 2.

55

as for hearing-level adjudicators to refer cases to the appellate body
for review.
As documented in Part III.C of this Report, some agency appellate programs
have mandatory review, and others use a discretionary review system. This
design decision should be informed by the agency’s specific objectives for
appellate review. As discussed in Part I.D, prior ACUS recommendations
encouraged agencies to consider embracing discretionary review, especially if
they face high volumes of appeals and are more concerned with inter-decisional
consistency or policymaking instead of mere error correction. For agencies that
currently have or decide to adopt a discretionary review process, they should
publish criteria for such discretionary review—criteria that should reflect
agency-specific objectives for appellate review.
Especially if agencies are concerned about inter-decisional consistency, they
should consider embracing mechanisms for sua sponte appellate review of nonappealed hearing-level adjudications. As detailed in Part III.C, the SSA and
SEC have both implemented such review as a form of quality assurance. Agency
appellate programs concerned with policymaking or even just inter-decisional
consistency may also want to consider implementing procedures for hearinglevel adjudicators to refer cases to the appellate program for review.
D.

Appellate Decision-Making Processes and Decisions
1.

Whenever possible, agencies should maintain a single or integrated
electronic case management system (eCMS) for both hearing-level and
appellate programs, or otherwise design their eCMS to ensure that
hearing records are easily accessible to appellate adjudicators.

2.

Agencies should explore ways to implement screening or sorting
methods for appeals and, where appropriate, the grouping of appeals
on the merits based on difficulty, common legal issue, subject matter,
record length, or other relevant factors in order to better leverage
adjudicator expertise and economies of scale.

3.

Agencies should consider how to better use staff attorneys and law
clerks at both the screening and merits stages.

4.

Agencies should consider using automation, artificial intelligence, and
machine learning to assist in screening and sorting appeals.

5.

Agencies should set their scope and standard of review to be consistent
with agency-specific objectives for their appellate program. For most
appellate programs, it is not advisable to have a de novo standard of
review. Nor is it prudent to have a de novo scope of review where
appellants can freely introduce any new evidence on appeal.

6.

Agencies should strive to improve the readability and overall quality
of their appellate decisions, including an emphasis on plain language

56

and experimentation with decision templates and other qualityimproving measures.
7.

Agencies should establish clear criteria and processes for selecting and
publishing precedential opinions, especially for appellate programs
with objectives of policymaking or inter-decisional consistency.

8.

Agencies should assess the value of oral argument and amicus
participation in their appellate program and should establish clearer
rules and criteria for both.

As detailed in Part III.D, some agency appellate programs face serious
challenges in overloaded dockets and delays in the appellate decision-making
process. The recommendations detailed above are all based on best practices
uncovered in the agency interviews and appellate program overviews. Among
other things, many agency officials observed that it is important that the
appellate body have the appropriate scope and standard of review, in order to
focus limited resources on the agency’s appellate review objectives. Many offered
that a trial de novo scope of review was inconsistent with the purpose of their
agency appellate structures, and the same with a de novo standard of review.
The final three recommendations above aim at improving the quality of the
appellate decision-making process and the quality of the appellate decisions
themselves. As discussed in Part III.C, many agency appellate programs do not
have effective rules, criteria, and processes with respect to oral argument,
amicus briefs, and precedential opinions. Other agencies, by contrast, have
much more developed rules and processes that could serve as a model.
Similarly, our review of appellate decisions uncovered a great diversity in
terms of opinion structure, format, style, readability, and overall quality. Many
agencies have dedicated considerable resources to improve the quality of
appellate decisions, including experimentation with decision templates and
standard language and the use of staff attorneys, paralegals, and law clerks.
Agencies should strive to make their appellate decisions more accessible to the
appellants in the program—many of whom have no legal representation.
E.

Administration, Management, and Bureaucratic Oversight
1.

Agency appellate programs should promptly transmit their
precedential decisions to all program adjudicators and, directly or
through hearing-level programs, to hearing-level adjudicators (as
appropriate). Appellate programs should include in their transmittals,
when feasible, summaries and explanatory materials.

2.

Agency appellate programs should notify their adjudicators of
significant federal-court decisions reviewing the agencies’ decisions
and, when providing notice, explain the significance of those decisions
to the program. As appropriate, agencies should notify adjudicators of
any policies governing whether and when they will acquiesce in the
decisions of the federal courts of appeals.
57

3.

Agency appellate programs where decision making relies extensively
on their own precedential decisions should consider preparing indexes
and digests—with annotations and comments, as appropriate—to help
adjudicators identify those decisions and their significance.

4.

Agency appellate programs should regularly communicate with
agency rulewriters and other agency policymakers—and, as
appropriate, institutionalize communication mechanisms—to address
whether interpretations and policies addressed in their decisions
should be addressed by rule rather than case-by-case adjudication.
Appellate programs should also communicate to agency policymakers,
congressional liaisons, and other appropriate officials any needed
statutory amendments that the program may identify.

5.

The Office of the Chairman of the Administrative Conference should
provide for, as authorized by statute, the “interchange among
administrative agencies of information potentially useful in
improving” (5 U.S.C. § 594(2)) agency appellate programs. The
subjects of interchange might include electronic case management
systems, procedural innovations, quality-assurance reviews, and
common management problems.

Our findings from Part III.E have led us to several best practices on this
subject that are applicable to most or if not all appellate programs. Many
administrative reforms, of course, must be undertaken on a program-byprogram basis to account for, among other things, differences in mission, size,
and resources. Hence our selectivity.
In identifying the best practices above, we have been guided by the objectives
of appellate review identified in Part I.C. Most or all of the recommendations
serve one or more of objectives that nearly all programs share to varying
degrees. We have not addressed matters addressed in other ACUS
recommendations, such as the use of video technology, that have no special
application to appellate programs.
F.

Public Disclosure and Transparency
1.

Agencies should disclose on their websites any rules (sometimes styled
as “orders”) by which an agency head has delegated review authority
to appellate adjudicators.

2.

Agencies should consider announcing, livestreaming, and maintaining
audio or video recordings on their websites of appellate proceedings
(including oral argument) that present significant legal and policy
issues likely to be of interest to regulated parties and other members
of the public. Brief explanations of the issues to be addressed by oral
argument might usefully be included in website notices of oral
argument.

58

3.

Agencies should include on their websites brief and accessibly written
explanations as to how their internal decision-making processes work
and, as appropriate, include links to explanatory documents
appropriate for public disclosure. Specific subjects agencies should
consider addressing include: the process of assigning cases to
adjudicators (when fewer than all adjudicators participate in a case),
the role of staff, and the order in which cases are decided.

4.

When posting decisions on their website, agencies should clearly
distinguish between precedential and nonprecedential decisions.
Agencies should also include a brief explanation of the difference.

5.

When posting decisions on their website, agencies should consider, as
practicable, including brief summaries of precedential decisions and,
for precedential decisions at least, citations to court decisions
reviewing them.

6.

Agencies should include on their website any digests and indexes of
decisions they maintain. It may be appropriate to remove any material
exempt from disclosure under the Freedom of Information Act or other
laws.

7.

Agencies should affirmatively solicit suggestions for rule changes on
its website.

Several ACUS recommendations already address public disclosure and
transparency in adjudication programs. They include (a) Recommendation
2016-4, Evidentiary Hearings Not Required by the Administrative Procedure
Act, 246 which provides that adjudication hearings be presumptively open to the
public (§ 18) and that agencies include on their website manuals, guides, and
other explanatory materials for the benefit of agency officials and parties (§ 29);
(b) Recommendation 2018-5, Agency Disclosure of Adjudication Rules, 247 and
Recommendation 2017-1, Adjudication Materials on Agency Websites, 248 which
together provide guidance to agencies on what rules, decisions, and other
adjudication materials should be posted on agency websites and in what
manner; and (c) a forthcoming recommendation, Public Availability of
Information About Agency Adjudicators, 249 that provides for the disclosure of
specific categories of information from which the public can assess the relative
impartiality and constitutional status of agency adjudicators. Another

246 Recommendation 2016-4, supra note 30.

247 Recommendation 2018-5, supra note 104.
248 Recommendation 2017-1, supra note 220.

Proposed Recommendation, Public Availability of Information About Agency
Adjudicators, supra note 130.
249

59

forthcoming ACUS recommendation, Agency Litigation Webpages, 250 addresses
the disclosure of court decisions arising from review of adjudication decisions.
These recommendations, for the most part, apply equally to hearing-level
and appellate programs. We leave it to ACUS to decide whether they should be
incorporated into the recommendation associated with this Report. All of these
recommendations are focused on agency appellate programs and are consistent
with the above-mentioned recommendations.

CONCLUSION
It has been nearly four decades since ACUS last examined agency appellate
systems. This Report has covered extensive ground. In so doing, it has uncovered
a number of common challenges. It has documented various best practices that
agencies have developed to improve their appellate programs. Ultimately,
however, this Report is exploratory in nature. It perhaps raises more questions
than provides answers.
This Reports surely will not be the last word on the subject. As flagged
throughout the Report, our study has uncovered a number of issues that merit
further exploration by ACUS, agencies, policymakers, and scholars. For
example, the subject of the readability and overall quality of appellate decisions
merits further inquiry. So does the function and process of creating precedential
appellate decisions. Indeed, much more attention should be paid to assessing
the effectiveness of appellate review as a quality-assurance mechanism,
compared to other potential approaches to quality assurance. The use of
automation, artificial intelligence, and machine learning in appellate review
will no doubt spark much more scholarly and policy attention.
Looking outside of the agency appellate review system itself, this Report
highlights numerous issues that merit further attention. For instance, the
interaction between hearing-level and appellate adjudicators has barely been
studied, yet that relationship is critical for an agency to realize its objectives for
administrative adjudication. The relationship between agency adjudicators and
federal courts is similarly understudied. And even less attention has been paid
to the interaction between appellate adjudicative bodies and agency rulewriters,
congressional liaisons, and the agency as a whole.
In sum, when it comes to agency appellate review, much more work needs to
be done—empirically, doctrinally, and theoretically. With how important agency
appellate review has become for administrative adjudication, we highly doubt
that it will be another four decades before ACUS returns to the subject.

250 Admin. Conf. of the U.S., Agency Litigation Webpages, https://www.acus.gov/research-

projects/agency-litigation-webpages (last visited Nov. 26, 2020).

60

APPENDIX A
TEMPLATE FOR AGENCY-SPECIFIC OVERVIEWS
Appendices C–N, more than two hundred pages in length, reproduce the
overviews of the twelve study agencies. These appendices appear on the ACUS
website at https://www.acus.gov/research-projects/agency-appellate-systems.
The template we used for the overviews follows on the next page.

Administrative Conference of the United States
Agency Appellate programs
Christopher W. Walker
Matthew Lee Wiener
[AGENCY NAME]
INTRODUCTION
[narrative overview of program]
CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
Governing Law
Procedural Law
Substantive Law
Miscellaneous
Hearing-Level Proceedings in Appellate program
Hearing-Level Decisions
Appealable
Nature of Hearing-Level
Proceedings
Nature of Hearing-Level
Decision
Transfer of Case to
Appellate Body After
Hearing-Level Decision

ii

Miscellaneous
Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)
Legal Status of Reviewing
Authority(ies)
Miscellaneous
Institutional Attributes of Appellate/Reviewing Authority(ies)
Number of Members
Qualification Requirements
Party Affiliation
Requirement in
Appointment
Method of Appointment
Term of Appointment
Statutory Removal
Protections
Location within Agency;
Basis of Legal Authority
Authority to Delegate to
Subunit(s); Designating
Official and Process
Quorum Requirement
Authority and Function of
Appellate Authority’s Head

iii

Internal Management
Structure of Appellate
Authority
Miscellaneous
Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance
How Appeal Initiated
Time For Appealing
If No Appeal Taken from
Hearing Officer’s Decision
If Appeal Taken
Review of Decisions on
Own Initiative (Without
Request of a Party)
Miscellaneous
Appellate Authority’s Procedures
Record on Review
Submissions by Parties in
Support of Appeal
Issue Preservation
Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

iv

Standard of Review
Consultation with Staff and
Other Agency Officials
Oral Argument
Amicus Participation;
Intervention; etc.
Public Access to Hearings
Staff’s Role in Writing
Decisions
Deadlines for Decision
Nature of Decision
Reconsideration,
Rehearing, etc.
Miscellaneous
Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard
Assignment of Cases
Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

N/A

Aggregation
Miscellaneous

v

Form of Decisions, Publication, and Precedential Status
Form of Decision
Signed or Per Curiam
Dissents
Publication
Where Published
Precedential Status
Miscellaneous
Extra-Adjudicative Activities of Appellate Authority to Direct or
Review Activities of Adjudicators Below
Guidance Documents
Governing Hearing-Level
Adjudicators
Feedback to Adjudicators
Quality-Assurance Reviews
and Related Mechanisms
Participation of Appellate
Body in Substantive
Rulemaking
Miscellaneous
Miscellaneous
Alternative Dispute
Resolution (ADR)

vi

Participation of Appellate
Body in Agency Decisions
on Judicial Review
Role and Participation of
Appellate Body in Writing
Rules
Miscellaneous

vii

APPENDIX B
APPELLATE PROVISIONS OF MODEL ADJUDICATION RULES
(RULES 400–450)
ADMINISTRATIVE REVIEW
Rule 400. Interlocutory Review
(A) Interlocutory review should be handled on an expedited basis.
(B) A party that seeks interlocutory review of an adjudicator’s decision, or
part thereof, must file a petition with the Adjudicator. The petition must:
(1) be filed with the Adjudicator within __ days after the Adjudicator’s
decision;
(2) designate the decision (or part thereof) from which review is sought;
and
(3) set forth the grounds on which review is sought, including all
applicable points of fact and law, and the reasons why interlocutory
review is warranted under Rule 400(D).
(C) Any party that opposes the petition may file a response within __ days
after service of the petition.
(D) The Adjudicator must certify the ruling for interlocutory review by [the
Agency] if the Adjudicator determines that:
(1) the decision involves a controlling question of law about which there
is substantial ground for difference of opinion; and
(2) an immediate review will materially advance the completion of the
adjudication, or subsequent review by [the Agency] will provide an
inadequate remedy.
(E) Within __ days after the Adjudicator’s ruling on a petition to certify a
decision under Rule 400(B), the petitioner may apply to [the Agency],
whether or not the Adjudicator has certified the decision under Rule
400(D), to allow the interlocutory review sought in the petition. The
application must reference the petition filed under Rule 400(B), all filings
made with the Adjudicator in support of or in opposition to the petition,
and the Adjudicator’s decision on the petition. The application must not
otherwise set forth the grounds on which interlocutory review is sought
or contain any argument, unless [the Agency] orders otherwise. No
response to any application made under this subsection may be permitted
unless [the Agency] orders otherwise.
(F) Any petition or application filed under this rule may be summarily
dismissed whenever the Adjudicator or [the Agency], respectively,
determines that review is not appropriate.

viii

(G) [The Agency] may, on its own motion, certify an order for interlocutory
review under this rule in its discretion.
(H) If [the Agency] decides to allow interlocutory review, [the Agency] must
decide the matter on the basis of the administrative record and briefs
submitted to the Adjudicator, without further briefs or oral argument,
unless [the Agency] orders otherwise.
(I) The filing of an application for interlocutory review and the certification
of a ruling for interlocutory review does not stay proceedings before the
Adjudicator unless (s)he or [the Agency] so orders.
Official Comment
1. An agency may wish to consider whether to provide interlocutory review
in particular situations (e.g., an adverse ruling on a motion for the
Adjudicator’s recusal, a ruling suspending an attorney from participation
in the adjudication, a ruling denying or terminating intervention or
limited participation, or a ruling requiring the production of information
claimed to be privileged) even if the Adjudicator has denied the petition.
In such instances, the agency may also wish to consider whether to provide
by rule that if it does not reverse the Adjudicator’s denial of the application
for interlocutory review within __ days, the Adjudicator’s ruling is
affirmed. See Admin. Conf. of the U.S., Recommendation 71-1,
Interlocutory Appeal Procedures, 38 Fed. Reg. 19,787 (July 23, 1973).
2. The approach taken in this rule is largely consistent with ACUS
Recommendation 71-1. The rule’s two-step process—Adjudicator certifies
decision, Agency then decides whether to take review—tracks the general
statute governing interlocutory appeals of orders of the federal district
courts. See 28 U.S.C. § 1292(b). Specific types of district-court orders may
be subject to other rules. See, e.g., Fed. R. Civ. P. 23(f) (allowing a court of
appeals to permit an appeal of a district-court order granting or denying a
class-action certification whether or not the district court has certified the
order for appeal). The rule departs from § 1292(b) in allowing an Agency
to hear interlocutory review even if the Adjudicator does not certify the
decision for review under Rule 400(D). It is anticipated that interlocutory
review in the absence of certification will be permitted only in the
narrowest circumstances.
Rule 410. Petitions for Review
(A) Any party may file with [the Agency] a petition for review within __ days
after issuance of the Adjudicator’s decision. Two or more parties may join
in the same petition.
(B) A petition for review, no more than __ words, must be filed only upon one
or more of the following grounds:
ix

(1) a finding of material fact is not supported by substantial evidence;
(2) a necessary legal conclusion is erroneous;
(3) the decision is contrary to law or to the duly promulgated rules or
decisions of [the Agency];
(4) a substantial question of law, policy, or discretion is involved; or
(5) a prejudicial error of procedure was committed.
(C) Each issue must be plainly and concisely stated and must be supported
by citations to the administrative record when assignments of error are
based on the administrative record, and by statutes, regulations, cases,
or other principal authorities relied upon. Except for good cause shown,
no assignment of error by any party may rely on any question of fact or
law not presented to the Adjudicator.
(D) A statement in opposition to the petition for review may be filed, within
__ days after the date on which petitions are due.
(E) Review by [the Agency] is not a matter of right, but within the sound
discretion of [the Agency]. A petition not granted within __ days after the
issuance of the Adjudicator’s decision is deemed denied.
(F) [The Agency], at any time within __ days after the issuance of the
Adjudicator’s decision, may review the decision on its own authority.
(G) A petition for review under this section is, under 5 U.S.C. § 704, a
prerequisite to the seeking of judicial review of the final agency action.
Unless [the Agency] provides otherwise, the effect of filing a petition for
review is to stay the decision of the Adjudicator.
Official Comment
1. (to subsection (A)): Depending on agency statute or regulations,
adjudicators ordinarily issue either initial decisions or recommended
decisions. Initial decisions become effective as the agency’s decision unless
a party seeks review or the agency, on its own initiative, elects to review
the decision. Recommended decisions do not go into effect without further
agency action and are issued in those cases where the agency will
automatically review the decision. See 5 U.S.C. § 557(b). Agencies
ordinarily have somewhat different procedures for review of initial and
recommended decisions. For the purpose of filing petitions for agency
review, this rule is limited to initial decisions. In the case of recommended
decisions, however, an agency must take affirmative action to provide for
review (such as by directing the filing of exceptions and briefs) and to
render a final decision (such as by issuing its own decision or affirming the
Adjudicator’s recommended decision).

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2. (to subsection (A)): ACUS has recommended that agencies establish an
administrative review regime that limits the scope of agency review of
decisions of Adjudicators in routine cases but authorizes agencies, on their
own authority or upon request of a party, to review significant questions
of policy, fact, procedure, or discretion fully as if the agency were making
an initial decision. See Admin. Conf. of the U.S., Recommendation 68-6,
Delegation of Final Decisional Authority Subject to Discretionary Review
by the Agency, 38 Fed. Reg. 19,783 (July 23, 1973). Some statutes accord
parties an automatic right of review by the agency. In such circumstances,
agencies must modify this rule to provide for automatic review. See, e.g.,
29 C.F.R. §§ 102.45, 102.46 (NLRB).
3. (to subsection (E)): In the interest of encouraging prompt appellate review
of an adjudicator’s decision, this rule provides that petitions for
discretionary review that are not granted within a period of time are
deemed denied. Alternatively, agencies may elect in their regulations to
stay an initial decision automatically any time a petition for discretionary
review is filed until such time as the agency has disposed of the petition.
“Effectiveness” of a decision is not necessarily the same as “finality.” See
Comment 1, Rule 440 (Final Decision).
4. (to subsection (G)): The APA allows agencies to require an adversely
affected party to ask a “superior agency authority” to review a subordinate
agency decision before going to court, provided that subordinate decision
is “inoperative,” i.e., not final, while the party is seeking review by the
superior agency authority. 5 U.S.C. §§ 557(b), 704. In Darby v. Cisneros,
509 U.S. 137 (1993), the Supreme Court held that, when agency
regulations simply authorize—but do not require—a party to seek
administrative review, a party does not fail to exhaust required
administrative remedies by foregoing the option of seeking administrative
review. Rule 410(G) explicitly provides that, unless the agency provides
otherwise, the filing of a petition for review is an administrative
prerequisite to filing a petition for judicial review. This approach keeps
ultimate decisional responsibility with the agency and avoids judicial
review of issues on which the agency has not had an opportunity to rule.
In some cases, an agency may wish to provide that exhaustion of
administrative remedies is not a prerequisite to judicial review. In
addition, there may be situations where an agency may choose to allow the
Adjudicator’s decision to become operative pending administrative review
by a superior administrative authority. In these latter cases, the
Adjudicator’s decision is immediately judicially reviewable.
Rule 411. Record Before the Agency
[The Agency] must decide each matter on the basis of the whole administrative
record.

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Rule 412. Additional Evidence
(A) Upon its own motion or the motion of any party, [the Agency] may allow
the submission of additional evidence.
(B) A party may file a motion for leave to adduce additional evidence before
the issuance of a decision by [the Agency]. The motion must show with
particularity that such additional evidence is material and that there
were reasonable grounds for failure to adduce such evidence previously.
(C) [The Agency] may, as appropriate, accept or hear additional evidence, or
remand or refer the proceedings to the Adjudicator for the taking of
additional evidence.
Official Comment
1. 5 U.S.C. § 557(b) provides, “On appeal from or review of the initial
decision, the agency has all of the powers which it would have in making
the initial decision except as it may limit the issues on notice or by rule.”
Rule 420. Appellate Briefs
(A) Unless [the Agency] orders otherwise, a party must file a brief in support
of its petition for review within __ days after [the Agency] grants the
petition. If a petitioner fails to file a timely brief, the order granting
review may be vacated. Other parties may file any briefs they wish
considered by [the Agency] within __ days after the petitioner’s brief is
served. If [the Agency] orders review on its own motion, all parties must
file any briefs they wish considered by [the Agency] within __ days of the
order, unless the Agency otherwise orders.
(B) Except by permission of [the Agency], a brief must not exceed __ words.
Official Comment
1. The APA accords an agency on review of an adjudicator’s decision “all the
powers which it would have in making the initial decision except as it may
limit the issues on notice or by rule.” 5 U.S.C. § 557(b). Nonetheless,
agencies typically do not review every issue decided by an adjudicator.
Because agencies (like courts) ordinarily impose limitations on the length
of appellate briefs, parties must be selective about the issues they raise for
appellate review.
2. Agencies may adapt these regulations to provide that briefs supporting
the petition for review must be filed on the same date and responsive briefs

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filed later. Agencies may also authorize the filing of reply briefs in
appropriate cases.
Rule 421. Amicus Briefs
(A) Any agency of the United States or limited participant in the proceedings
below may file an amicus-curiae brief with [the Agency]. Any other
amicus curiae may file a brief only with the consent of [the Agency] after
the filing of a motion under Rule 421(B) or with the consent of the parties
and a statement to that effect included with the brief.
(B) A motion for leave to file must accompany the brief and state
(1) the movant’s interest in the adjudication, and
(2) the reason why an amicus brief is desirable and why the matters
asserted are relevant to the disposition of the case.
(C) Any amicus brief filed by anyone (other than an agency of the United
States), including by limited participants in the proceedings below, must
state whether a party’s counsel authored the brief in whole or in part, a
party or a party’s counsel contributed money that was intended to fund
preparing or submitting the brief, and a person—other than the amicus
curiae, its members, or its counsel—contributed money that was intended
to fund preparing or submitting the brief and, if so, identify each such
person.
(D) Except by permission of [the Agency], an amicus-curiae brief may not
exceed __ words.
(E) An amicus curiae must file its brief, accompanied by a motion when
necessary under these rules, no later than 7 days after the party which
amicus curiae supports files its principal brief. An amicus curiae that does
not support either party must file its brief no later than 7 days after the
brief filed by the last filing party.
(F) Except by [the Agency’s] permission, an amicus curiae may not file a reply
brief.
Official Comment
1. This rule largely draws from FRAP 29.
Rule 430. Oral Argument
[The Agency] may permit oral argument in its discretion. The order scheduling
a case for oral argument must contain the allotment of time for each party and
order of presentation for oral argument before [the Agency].

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Official Comment
1. Oral argument is not a mandatory part of the appellate process. It is
designed to permit an agency to address issues that may have been left
unresolved in the briefs or about which agency members have questions.
Rule 440. Final Decision
(A) If no petition for review is filed, and [the Agency] has not taken review of
the Adjudicator’s decision on its own authority, the decision becomes the
final decision of [the Agency] __ days after issuance.
(B) When a case stands submitted for final decision on the merits, [the
Agency] will dispose of the issues presented by entering an appropriate
order, which will include findings and conclusions and the reasons or
bases therefor. In appropriate cases, [the Agency] may simply adopt the
Adjudicator’s decision.
Official Comment
1. Effectiveness and finality of a decision are not necessarily synonymous
concepts. Compare Comment 4 (to subsection (G)), with Rule 410
(Petitions for Review).
Rule 450. Reconsideration
(A) Any party may file a motion for reconsideration of a final order issued by
[the Agency].
(B) Unless the time is shortened or enlarged by [the Agency], motions for
reconsideration must be filed within __ days after service of the final
order issued by [the Agency].
(C) A motion for reconsideration must be no more than __ words and must
state, briefly and specifically, the matters of record alleged to have been
erroneously decided, the ground(s) relied upon, and the relief sought. No
responses to motions for reconsideration may be filed unless requested by
[the Agency].
Official Comment
1. Agencies that do not want to provide for reconsideration should not adopt
this rule.
2. Some statutes make the filing of a petition for rehearing or reconsideration
with an agency a jurisdictional prerequisite for judicial review. See, e.g.,
15 U.S.C. § 717r (Natural Gas Act). Many agencies allow petitions for
reconsideration as a matter of discretion. This rule provides for motions
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for reconsideration of final agency decisions. Because reconsideration is
intended to be an exceptional remedy, the rule provides that no responses
to motions for reconsideration may be filed unless requested by the agency.
This rule follows the approach taken in FRAP 35 and 40 with respect to
petitions for rehearing and suggestions of rehearing en banc.

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INDEX OF ONLINE APPENDICES C–N:
AGENCY-SPECIFIC OVERVIEWS
Appendix C

Department of Health and Human Services (HHS):
Departmental Appeals Board—Medicare Appeals
Council

Appendix D

Department of Homeland Security (DHS), U.S.
Citizen and Immigration Services: Administrative
Appeals Office (USCIS)

Appendix E

Department of Justice (DOJ): Board of Immigration
Appeals (BIA)

Appendix F

Department of Labor (DOL): Administrative Review
Board

Appendix G

Department of Veterans Affairs (VA): Board of
Veterans Appeals (BVA)

Appendix H

Environmental Protection Agency (EPA):
Environmental Appeals Board (EAB)

Appendix I

Equal Opportunity Employment Commission
(EEOC)

Appendix J

Merit Systems Protection Board (MSPB)

Appendix K

National Labor Relations Board (NLRB)

Appendix L

Patent and Trademark Office (PTO): Patent Trial
and Appeals Board (PTAB)

Appendix M

Securities and Exchange Commission (SEC)

Appendix N

Social Security Administration (SSA): Appeals
Council

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