ACUS
Agency Appellate Systems
Draft of Nov. 11, 2020

AGENCY APPELLATE SYSTEMS
Christopher J. Walker
Matthew Lee Wiener
The appendices that follow are preliminary drafts subject to revision. The
authors welcome corrections and other proposed revisions.

APPENDICES C–N
AGENCY-SPECIFIC OVERVIEWS

Appendix C

Department of Health and Human Services (HHS):
Benefits Review 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

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

2

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
APPENDIX C
Medicare Appeals Council:
Review of ALJ Decisions Regarding Medicare Coverage and Payment
INTRODUCTION
People and businesses often disagree with decisions about entitlement to,
claims for, or payments from Medicare. Anyone seeking to contest such decisions
has the right to appeal. The appeals process has five levels, each of which must
be exhausted before proceeding to the next. The five levels are:
1. Redetermination by the Medicare administrative contractor (MAC);
2. Reconsideration by a qualified independent contractor (QIC);
3. Decision by an administrative law judge (ALJ) or attorney adjudicator
from the Office of Medicare Hearings and Appeals (OMHA);
4. Review by the Council; and
5. Review by a federal district court.
The first level is simply a request for redetermination by the MAC — the same
entity that made the decision underlying the appeal. The second level involves
reconsideration of the claim by a QIC — an independent entity with which
Medicare contracts to handle reconsideration of a Medicare appeal. The third
level involves review of the record by an ALJ or attorney adjudicator, or, when
required, a formal APA hearing before an ALJ. At this stage, the ALJ or attorney
adjudicator issues a decision on the appeal that includes findings of fact,
conclusions of law, and a proposed remedy.
The next level in the appeals process is an appeal to the Council, which
ordinarily reviews the record de novo. After completing its review, the Council
issues a decision dismissing the appeal, remanding the matter for further
consideration, or affirming or reversing the decision being appealed. Dissatisfied
parties may appeal the Council’s decision to the appropriate federal district court.

CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
Governing Law
Procedural Law

The procedures that govern appeals to the
Council differ depending on which CMS
contractor made the determination that was
appealed to the ALJ. The procedures also
differ depending on whether the ALJ issued a
decision or a dismissal order.1
If an ALJ issued a decision or dismissal for a
claim for Part D drugs, other than a claim
solely for payment of Part D drugs already
furnished, the appeal is governed by the
Medicare regulations at 42 C.F.R. Part 423,
Subpart U.2
If an ALJ issued a decision after a Qualified
Independent Contractor, Independent Review
Entity, or Quality Improvement Organization
made a reconsideration determination, the
appeal is governed by the Medicare
regulations at 42 C.F.R. Part 405, Subpart I,
along with some Medicare agency rulings.3
If an ALJ issued a dismissal after a Qualified
Independent Contractor, Independent Review
Entity, or Quality Improvement Organization
made a reconsideration determination, the
appeal is governed by the Medicare
regulations at 42 C.F.R. Part 405, Subpart I,
along with some Medicare agency rulings.4

1 https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-council/index.html
2 https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-council/appeals-in-

alj-determinations-on-part-d-drugs/index.html
3 https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-council/appeals-inalj-reconsideration-determinations-involving-qic-or-ire-or-qio-entities/index.html
4 https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-council/appeals-inalj-dismissal-determinations-involving-qic-or-ire-or-qio-entities/index.html

2

Substantive Law

The Medicare Act5 and related regulations6
provide the substantive law. Program and
policy operations manuals interpret and
elaborate upon the Act and regulations.7

Miscellaneous

[none]

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
Appealable

The Council reviews decisions or dismissals
by ALJs adjudicating claims for entitlement
to Medicare or determinations on individuals
claims for Medicare coverage and payment.8

Nature of Hearing-Level
Proceedings

Hearing-level proceedings are typically
conducted before ALJs and are subject to
provisions of the Medicare Act and the APA’s
formal adjudication procedures.9 Where a
hearing before an ALJ is not required by law
(for example, if it is waived under 42 C.F.R.
§ 1038(b), or not required under 405.1038(c)),
non-hearing proceedings may be conducted
by attorney adjudicators instead of ALJs.10

Nature of Hearing-Level
Decision

The adjudicator issues a written decision
setting out his or her factual findings,
conclusions of law, and rationale for the
decision.11 Each decision ends with an order
instructing the effectuating entity to act in
accordance with the decision.12

5 42 U.S.C. §§ 1395 et seq.
6 42 C.F.R. §§ 400 et seq.
7 https://www.cms.gov/regulations-and-guidance/guidance/manuals/internet-only-manuals-ioms
8 https://www.hhs.gov/about/agencies/dab/different-appeals-at-dab/appeals-to-council/index.html
9 See 82 Fed. Reg. 4974, 4988 (Jan. 17, 2017) (explaining relationship between APA and Medicare

Act).
10 See 42 C.F.R. § 405.902 (defining “Attorney Adjudicator” as “a licensed attorney employed by
OMHA with knowledge of Medicare coverage and payment laws and guidance, and authorized to
take the actions provided for in this subpart on requests for ALJ hearing and requests for reviews
of QIC dismissals”).
11 https://www.hhs.gov/sites/default/files/ch16-decisions-10-09-2019.pdf; see also 42 C.F.R.
§§ 405.1046(a), 423.2046(a) (requiring written decision by adjudicator).
12 https://www.hhs.gov/sites/default/files/ch16-decisions-10-09-2019.pdf (at page 23).

3

There are four types of decisions: (1)
favorable, meaning the matter is decided in
appellant’s favor with respect to every issue
before the adjudicator; (2) unfavorable,
meaning the matter is not decided in
appellant’s favor with respect to any issue
before the adjudicator; (3) partially favorable,
meaning that some, but not all, of the issues
before the adjudicator are decided in the
appellant’s favor; and (4) affirmed, meaning
that the adjudicator upheld a dismissal of the
appellant’s reconsideration request.13
Transfer of Case to
Appellate Body After
Hearing-Level Decision

When the Council receives a request for
review form an appellant, in most instances
it will not have a copy of the ALJ’s decision or
dismissal, or the case file. The Council will
request all case files from the AdQIC, which
serves as a sort of administrative
clearinghouse for Medicare appeals.14

Miscellaneous

[none]

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

ALJ decisions are reviewed directly by the
Council. There is no intermediate appellate
body.

Legal Status of Reviewing
Authority(ies)

The Council is established by statute as the
Department’s final decisionmaking
authority.15
[none]

Miscellaneous

13 https://www.hhs.gov/sites/default/files/ch16-decisions-10-09-2019.pdf (pages 4 and 5).
14 https://www.cms.gov/Regulations-and-

Guidance/Guidance/Transmittals/2019Downloads/R4278CP.pdf (page 80 of PDF). The AdQIC is
the clearinghouse for all Original Medicare (Part A and Part B) claim case files and decisions
from the OMHA field offices as well as any decisions and case files from the Council.
https://www.cms.gov/Regulations-andGuidance/Guidance/Transmittals/2019Downloads/R4278CP.pdf (at page 79 of PDF).
15 See 42 U.S.C. §§ 1395ff(b)(1)(C), (b)(2), (f)(1)(A)(v) (describing the Council’s decision as the
“Secretary’s final decision” and “final agency action”); 42 C.F.R. § 405.1130 (stating that “[t]he
MAC’s decision is final and binding on all parties”).

4

Institutional Attributes of Appellate/Reviewing Authority(ies)
Number of Members

The Board consists of six administrative
appeals judges.16

Qualification Requirements

N/A

Party Affiliation
Requirement in
Appointment

N/A

Method of Appointment

N/A

Term of Appointment

N/A

Statutory Removal
Protections

N/A

Location within Agency;
Basis of Legal Authority

The Council’s administrative appeals judges
are located within the HHS Departmental
Appeals Board (DAB), and the Council is
independent of both CMS and OMHA. The
Council provides the final administrative
review for Medicare claim appeals.17

Authority to Delegate to
Subunit(s); Designating
Official and Process

N/A

Quorum Requirement

N/A

Authority and Function of
Appellate Authority’s Head

N/A

Internal Management
Structure of Appellate
Authority

N/A

Miscellaneous

[none]

Nature, Form, and Timing of Appeal
16 https://www.gao.gov/assets/680/677034.pdf (pdf page 13)
17 https://www.hhs.gov/sites/default/files/omha/files/medicare-appeals-backlog.pdf; Section 205(g)

of the Act.

5

Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance
How Appeal Initiated

The governing regulations provide for appeal
as of right from any ALJ decision.18
Most appeals are initiated when a party
requests review of a decision by an ALJ or
attorney adjudicator.19
If the ALJ or attorney adjudicator does not
issue a decision within 90 days of the date
the request for hearing is received by the
office specified in the QIC’s notice of
reconsideration, the applicant may escalate
the appeal to the Council by filing a written
request with OMHA to escalate the appeal to
the Council and sending a copy of the request
to escalate to the other parties who were sent
a copy of the QIC reconsideration.20
Escalation will thereby occur unless the ALJ
or attorney adjudicator is able to issue a
decision, dismissal order, or remand order
within the later of five calendar days of
receiving the request for escalation, or five
calendar days from the end of the applicable
adjudication period.21
In some cases, appellate review occurs
because CMS or one of its contractors refers a
decision to the Council and the Council
decides to review the case on its own
motion.22

Time For Appealing

If the ALJ or attorney adjudicator issues a
decision, appeals must be filed within 60 days
of the date of receipt of the ALJ’s or attorney
adjudicator’s decision.23 If the ALJ or

18 42 C.F.R. § 405.1100.
19 See 42 C.F.R. § 405.1108.
20 42 C.F.R. § 405.1016(f)(1).
21 42 C.F.R. § 405.1016(f)(2).
22 See 42 C.F.R. § 405.1110.
23 https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/clm104c29.pdf

(page 15)

6

attorney adjudicator does not issue a decision
within 90 days of the date the request for
hearing is received by the office specified in
the QIC’s notice of reconsideration, an
appellant may escalate the appeal to the
Council at any time thereafter — at least
until the ALJ or attorney adjudicator issues a
decision.24
If No Appeal Taken from
Hearing Officer’s Decision

The decision of the ALJ or attorney
adjudicator generally is binding on all parties
unless it is appealed (either to the Council or
to a federal court) or reopened and revised.25

If Appeal Taken

“When a party requests that the Appeals
Council review an ALJ’s or attorney
adjudicator’s dismissal, the Appeals Council
may deny review or remand the case to an
ALJ or attorney adjudicator for further
proceedings. The Appeals Council may also
dismiss a request for a hearing for any reason
the ALJ or attorney adjudicator could have
dismissed the request for hearing. In
addition, the Appeals Council will decide
cases that are escalated from the OMHA
level without an ALJ or attorney adjudicator
decision or dismissal.”26 The Council’s review
of an ALJ’s or attorney adjudicator’s decision
is de novo,27 but Medicare regulations require
that the Council confine its review to the
record before the ALJ unless good cause is
shown for submitting new evidence.28

Review of Decisions on
Own Initiative (Without
Request of a Party)

“The Council may decide on its own motion to
review a decision or dismissal issued by an
ALJ or attorney adjudicator. CMS or any of
its contractors may refer a case to the Council
for it to consider reviewing under this
authority anytime within 60 calendar days of

24 42 C.F.R. § 405.1016(f).
25 42 C.F.R. § 405.1048.
26 https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/clm104c29.pdf
27 42 C.F.R. § 405.1100
28 42 C.F.R. § 405.1122

7

receipt of an ALJ’s or attorney adjudicator’s
decision or dismissal.”29
The Council usually limits its Own Motion
Review” of the record to (i) error material to
the decision, (ii) abuse of discretion, (iii)
conclusions not supported by the
preponderance of the vidence, and (iv) issues
of broad public policy.30
Miscellaneous

[none]

Appellate Authority’s Procedures
Record on Review

When a party requests that the Council
review an ALJ’s or attorney adjudicator’s
decision, the Council will consider all of the
evidence in the administrative record
compiled by OMHA.31 “The record will
include marked as exhibits, the appealed
determinations, and documents and other
evidence used in making the appealed
determinations and the ALJ’s or attorney
adjudicator’s decision, including, but not
limited to, claims, medical records, written
statements, certificates, reports, affidavits,
and any other evidence the ALJ or attorney
adjudicator admits. The record will also
include any evidence excluded or not
considered by the ALJ or attorney
adjudicator, including, but not limited to,
new evidence submitted by a provider or
supplier, or beneficiary represented by a
provider or supplier, for which no good cause
was established, and duplicative evidence
submitted by a party.32
When an appellant requests escalation of a
case from the OMHA level to the Council (so

29 42 C.F.R. § 405.1110(a).
30 42 C.F.R. § 405.1110(c).
31 42 C.F.R. § 405.1108(a); see also 42 C.F.R. § 405.1122(a) (same point).
32 42 C.F.R. § 405.1042(a)(2).

8

that the administrative record is, at best,
incomplete), the Council may issue a decision
based on the record constructed at the QIC
and any additional evidence, including oral
testimony, entered in the record by the ALJ
or attorney adjudicator before the case was
escalated.33 Alternatively, the Council may
supplement the record on review by
conducting any additional proceedings,
including a hearing, that the Council
determines are necessary to issue a
decision.34 Or the Council may render the
record on appeal moot by remanding the case
to OMHA for further proceedings, or by
dismissing the request for review for some
valid reason.35
Submissions by Parties in
Support of Appeal

A party seeking appellate review must file a
written request for review, which may be
made on a standard form.36 A written request
that is not made on a standard form is
accepted if it contains the beneficiary’s name;
Medicare number; the specific services or
items for which the review is requested; the
specific dates of service; the date of the ALJ’s
or attorney adjudicator’s decision or dismissal
order, if any; and the name of the party or
the representative of the party; and any other
information CMS may decide.37 The request
for review must identify the parts of the
ALJ’s or attorney adjudicator’s action with
which the party requesting review disagrees
and explain why he or she disagrees with the
ALJ’s or attorney adjudicator’s decision,
dismissal, or other determination being
appealed.38

33 42 C.F.R. § 405.1108(d)(1).
34 42 C.F.R. § 405.1108(d)(2).
35 42 C.F.R. § 405.1108(d)(3)–(5).
36 42 C.F.R. § 405.1112(a).
37 42 C.F.R. § 405.1112(a).
38 42 C.F.R. § 405.1112(b).

9

Upon request, the Council will give parties a
reasonable opportunity to file briefs or other
written statements about the facts and law
relevant to the case.39 Any party who submits
a brief or statement must send a copy to all of
the other parties.40 The Council may also
request, but not require, CMS or its
contractor to file a brief or position paper if
the Council determines that it is necessary to
resolve the issues in the case.41
Issue Preservation

The Council limits its review of an ALJ’s or
attorney adjudicator’s actions to those
exceptions raised by the party in the request
for review, unless the appellant is an
unrepresented beneficiary.42

Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

If the Council is reviewing an ALJ’s or
attorney adjudicator’s decision, the Council
limits its review of the evidence to the
evidence contained in the record of the
proceedings before the ALJ or attorney
adjudicator.43 Similarly, if the Council is
reviewing a case that is escalated from the
OMHA level to the Council, the Council will
decide the case based on the record
constructed at the QIC and any additional
evidence, including oral testimony, entered in
the record by the ALJ or attorney adjudicator
before the case was escalated.44
There are, however, several exceptions to the
general rule against receiving new evidence.
For instance, if the ALJ’s or attorney
adjudicator’s decision decides a new issue
that the parties were not afforded an

39 42 C.F.R. § 405.1120.
40 42 C.F.R. § 405.1120.
41 42 C.F.R. § 405.1120
42 42 C.F.R. § 405.1112(c). For purposes of this limitation, a “representative” is “anyone who has

accepted an appointment as the beneficiary’s representative, except a member of the beneficiary’s
family, a legal guardian, or an individual who routinely acts on behalf of the beneficiary, such as
a family member or friend who has a power of attorney.” 42 C.F.R. § 405.1112(c).
43 42 C.F.R. § 405.1122(a)(1).
44 42 C.F.R. § 405.1122(b)(1).

10

opportunity to address at the OMHA level,
the Council considers any evidence related to
that issue that is submitted with the request
for review.45 Similarly, if new evidence
related to issues previously considered by the
QIC is submitted to the Council by a
provider, supplier, or a beneficiary
represented by a provider or supplier, the
Council may consider the evidence if it
determines that the provider, supplier, or
beneficiary represented by a provider or
supplier had good cause for submitting it for
the first time at the Council level.46
Regulations also permit the Council to
subpoena parties to make books, records,
correspondence, papers, or other documents
available when they are material to an issue
at a hearing.47
Standard of Review

The standard of review of ALJ decisions is de
novo, both as to conclusions of law and
findings of fact.48

Consultation with Staff and N/A
Other Agency Officials
Oral Argument
A party may request to appear before the
Council to present oral argument.49 The
Council may also grant oral argument sua
sponte.50
The Council grants a request for oral
argument it if decides that the case raises an
important question of law, policy, or fact that
cannot be readily decided based on written
submissions alone.51 If the Council decides to
hear oral argument, it tells the parties of the
time and place of the oral argument at least
45 42 C.F.R. § 405.1122(a)(1).
46 42 C.F.R. § 405.1122(c)(1)
47 42 C.F.R. § 405.1122(d).
48 42 U.S.C. § 1395ff(d)(2)(B).
49 42 C.F.R. § 1124.
50 42 C.F.R. § 1124(b).
51 42 C.F.R. § 1124(a).

11

10 calendar days before the scheduled date.52
The Council may also request, but not
require, CMS or its contractor to appear
before it if the Council determines that it
may be helpful in resolving the issues in the
case.53
Amicus Participation;
Intervention; etc.

N/A

Public Access to Hearings

No statute or rule address public access to
hearings.
N/A

Staff’s Role in Writing
Decisions
Deadlines for Decision

The Act contemplates that the Council will
render a decision or remand the case to an
ALJ within 90 days from the date the request
for review is timely filed.54 If the Council does
not render a decision within 90 days, the
appellant may request that the appeal be
escalated to federal district court.55

Nature of Decision

The Council may adopt, modify, or reverse
the ALJ’s or attorney adjudicator’s decision,
or remand the case to an ALJ or attorney
adjudicator for further proceedings.56 The
Council will dismiss a request for review
when a party does not have a right to Council
review.
When a party requests that the Council
review an ALJ’s or attorney adjudicator’s
dismissal, the Council may deny review or
remand the case to an ALJ or attorney
adjudicator for further proceedings.57

52 42 C.F.R. § 1124(b).
53 42 C.F.R. § 1124(d).
54 42 U.S.C. § 1395ff(d)(2).
55 42 U.S.C. § 1395ff(d)(3)(B).
56 42 C.F.R. § 405.1108; 42 C.F.R. § 405.1128(b).
57 https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/downloads/clm104c29.pdf

(page 95)

12

Reconsideration,
Rehearing, etc.

A party to a Council review may request that
the Council reopen its decision within 180
calendar days from the date of the review
decision for good cause.58
When a party has filed a valid request for an
appeal of Council review, the Council lacks
jurisdiction to reopen an issue on a claim that
is under appeal until all appeal rights for
that issue have been exhausted. Once the
appeal rights for the issue have been
exhausted, the Council may reopen the
issue.59
The Council’s decision whether to reopen is
binding and not subject to appeal.60

Miscellaneous

[none]

Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard

N/A

Assignment of Cases

No publicly available document addresses the
assignment of cases.

Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

N/A

Aggregation

N/A

58 42 C.F.R. § 405.980(e)(3). Good cause may be established when there is new and material

evidence that was not available or known at the time of the determination or decision, and that
may result in a different conclusion; or (2) the evidence considered in making the determination
or decision clearly shows on its face that an obvious error was made at the time of the
determination or decision. See 42 C.F.R. § 405.986(a). A change in substantive law or
interpretative policy is not a basis for reopening a determination or hearing decision. 42 C.F.R.
§ 405.986(b).
59 42 C.F.R. § 405.980(a)(4).
60 42 C.F.R. § 405.980(a)(5).

13

Miscellaneous

[none]

Form of Decisions, Publication, and Precedential Status
Form of Decision

[forthcoming]

Signed or Per Curiam

[forthcoming]

Dissents

[forthcoming]

Publication

Notice of all precedential decisions is to be
published in the Federal Register, with the
decisions themselves to be posted on an
accessible HHS website.61 There are no
requirements for publishing nonprecedential
decisions.

Where Published

Some Council decisions are carried by
Westlaw and Lexis. A number of pre-2017
decisions are available on the Departmental
Appeals Board’s website.62 Those decisions
are not (yet) precedential, but were published
on the theory that they involve the
adjudication of issues that may be of interest
to various stakeholders in the Medicare
appeals process.63

Precedential Status

Since 2017, the Chair of the Departmental
Appeals Board has had power to designate as
precedential a final decision issued by the
Council in accordance with Part 405, subpart
I; Part 422, subpart M; Part 423, subpart U;
or Part 478, subpart B of Chapter IV of Title
42 of the Code of Federal Regulations Title
42, Chapter IV.64 Precedential effect means
that the Council’s: (1) legal analysis and
interpretation of a Medicare authority or
provision is binding and must be followed in

61 42 C.F.R. § 401.109(b).
62 https://www.hhs.gov/about/agencies/dab/decisions/council-decisions/index.html
63 https://www.hhs.gov/about/agencies/dab/decisions/council-decisions/index.html
64 42 C.F.R. § 401.109(a).

14

future determinations and appeals in which
the same authority or provision applies and
is still in effect; and (2) factual findings are
binding and must be applied to future
determinations and appeals involving the
same parties if the relevant facts are the
same and evidence is presented that the
underlying factual circumstances have not
changed since the issuance of the
precedential final decision.65
Precedential decisions have precedential
effect from the date they are made available
to the public.66
Miscellaneous

[none]

Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below
Guidance Documents
Governing Hearing-Level
Adjudicators

The Council does not issue guidance
documents governing hearing-level
adjudications.

Feedback to Adjudicators

Parties, their representatives, and other
interested individuals and organizations are
invited to give feedback about the procedures
used when resolving cases.67 Feedback can be
provided by emailing
DABStakeholders@hhs.gov.

Quality-Assurance Reviews
and Related Mechanisms

[none]

Participation of Appellate
Body in Substantive
Rulemaking

The Council has no authority to promulgate
substantive rules.

Miscellaneous

[none]

65 42 C.F.R. § 401.109(d).
66 42 C.F.R. § 401.109(b).
67 https://www.hhs.gov/about/agencies/dab/stakeholders.html

15

Miscellaneous
Alternative Dispute Resolution
(ADR)

N/A

Participation of Appellate Body in
N/A
Agency Decisions on Judicial Review
Role and Participation of Appellate
Body in Writing Rules

N/A

Miscellaneous

[none]

16

PUBLICLY AVAILABLE CASE STATISTICS
[forthcoming]
TREATISES AND SCHOLARSHIP OF NOTE
[forthcoming]

17

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
APPENDIX D
United States Citizen and Immigration Services –
Administrative Appeals Office:
Review of USCIS Officers’ Decisions for Immigration Benefit Requests
INTRODUCTION
The Administrative Appeals Office (AAO), under the Immigration and
Nationality Act (INA)1 and Title 8 of the Code of Federal Regulations (CFR)2,
conducts administrative review of roughly 50 types of immigration cases filed with
U.S. Citizen and Immigration Services (USCIS).3
There are three types of adjudications that AAO deals with: appeals, motions,
and certifications. Appeals are when the AAO conducts appellate review of an
immigration benefit request decision. A motion to reopen “must state new facts and
be supported by documentary evidence”, this review unlike appeals is conducted by
the AAO over an AAO decision.4 A motion to reconsider “must establish that AAO
based its decision on an incorrect application of law or policy, and that the decision
was incorrect based on the evidence in the record of proceedings at the time of the
decision.”5 Lastly, certifications occur when a USCIS official asks the AAO to review
an initial decision that is very complex.6
In addition to the three types of adjudications, there are three types of decisions
that AAO produces. These are non-precedent, precedent, and adopted. The most
frequently utilized type of decision is non-precedent. Non-precedent decisions are
only binding on the case at hand, they “do not create or modify USCIS policy or
1 8 U.S.C. §§ 1101-1178.
2 8 C.F.R. § 103.
3 AAO, also, reviews some types of Immigration and Customs Enforcement (ICE) cases. However, not

every immigration benefit is appealable and some are under the Board of Immigration Appeal (BIA)
jurisdiction.
4 USCIS, AAO Practice Manual, Chapter 1.4(b), April 18, 2018, https://www.uscis.gov/aao-practicemanual.
5 Id. at 4.3.
6 See id. at 5.1.

practice.”7 The second type is adopted decisions. These decisions “[p]rovide policy
guidance to USCIS employees in making determinations on applications and
petitions for immigration benefits.”8 Adopted decisions are only binding on USCIS
internally. Lastly, are precedent decisions which, with the approval of the Attorney
General, “designate decisions to serve as precedents in all future proceedings.”9 The
decisions “announce a new legal interpretation or agency policy, or may reinforce an
existing law or policy by demonstrating how it applies to a unique set of facts.”10
There are several different ways a case can reach the AAO, whether it be from
an appellant’s appeal or the AAO itself reopening a case. Once a case reaches the
AAO there are multiple directions in which the case can go, be it a remand back to
USCIS or a dismissal by the AAO. Due to the various pathways cases can take, the
jurisdictional nuisances, and the binding weight of the decisions, the AAO’s
adjudication system is complex.
CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
Governing Law
Procedural Law

Appellate procedures are governed by the
INA11 and C.F.R.-codified procedural rules12,
as interpreted by the AAO in precedential
decision.
There are also guidance documents
(including USCIS Policy Memorandum)
governing the adjudicative activities of the
AAO.13
USCIS publishes an online explanatory
material for the public.14

Substantive Law

The INA provides the substantive law. The
AAO exercises appellate jurisdiction over

7 Id. at 1.5.
8 Id.
9 Id.
10 Id.
11 8 U.S.C. §§ 1101-1178.
12 8 C.F.R. § 103.
13 There are several guidance documents cited to in the Table of Changes in the AAO Practice

Manual such as the USCIS Policy Memorandum PM-602-0124, Initial Field Review of Appeals to the
Administrative Appeals Office (Nov. 4, 2015).
14 USCIS, AAO Practice Manual, April 18, 2018, https://www.uscis.gov/aao-practice-manual.

2

around 50 types of immigration benefit cases
filed with USCIS and ICE.15 They adjudicate
three primary types of cases: appeals,
motions, and certifications.16 Non-precedent
decisions are generally issued by the AAO
based on existing law and policy, but the
decisions do not change USCIS policy or
practice.17 However, USCIS may “adopt” the
non-precedent decisions to operate as policy
guidance to USCIS employees.18 Still, with
review and approval from the Attorney
General, the AAO may issue precedent
decisions.19
Miscellaneous

The USCIS exercises appellate jurisdiction
over approximately 50 different immigration
case types and certain U.S. Immigration and
Customs Enforcement (ICE)
determinations.20 But not all cases go to the
AAO. The Board of Immigration Appeals
(BIA) has jurisdiction over some of these
appeals.21

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
Appealable

The AAO reviews decisions of USCIS officers
adjudicating immigration benefits.22 The
office that denied the benefit “will review the
appeal and determine whether to take
favorable action and grant the benefit
request.”23 If that office does not take a
favorable action, it forwards the appeal to the

15 See USCIS, The Administrative Appeals Office, Jurisdiction and Types of Cases, August 2, 2019,

https://www.uscis.gov/about-us/directorates-and-program-offices/administrative-appeals-office-aao.
16 See AAO Practice Manual, Chapter 1.4, https://www.uscis.gov/tools/practice-manual/chapter-1administrative-appeals-office#1.1.
17 See id. at 1.5.
18 See id.
19 See id.
20 The Administrative Appeals Office, Jurisdiction and Types of Cases, https://www.uscis.gov/aboutus/directorates-and-program-offices/administrative-appeals-office-aao.
21 Id.
22 See id. at Appeal Process.
23 Id.

3

AAO for appellate review.24 The initial
review should be concluded within 45 days
and the appellate review should be concluded
within 180 days from the date the AAO
receives the entirety of the case record.25
Nature of Hearing-Level
Proceedings

The USCIS field office reviews the initial
benefit requests and adjudicates on them
depending on the evidence provided.
If the adjudication is appealed then there is
an initial field review of the USCIS field
office decision of the denied benefit request.26
The field office may take the appeal as a
motion to reopen or reconsider and approve
the benefit request or will forward the appeal
to the AAO.27

Nature of Hearing-Level
Decision

The adjudicator must thoroughly review each
case “to determine jurisdiction, presence of
required supporting documentation,
existence of relating files and basic statutory
eligibility.”28 The approval of the case is up to
the adjudicator’s discretion.29
When denying a case, the adjudicator must
prepare a written denial notice.30 Denials
may include a “boilerplate” legal basis for the
adverse decision or they may be entirely
original.31 In all cases, the specific facts of the
individual case must be explained in the
decision.32 The reason for denial must be

24 Id.
25 See id.

See AAO Practice Manual, Chapter 3.9, https://www.uscis.gov/tools/practice-manual/chapter-3appeals.
27 See id.
28 USCIS, Adjudicator’s Field Manual, Chapter 10.3(a), Sep. 27, 2019,
https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-1067/0-0-0-1166.html#0-0-0-276.
(The Adjudicator’s Field Manual and Policy Manual are in the process of being consolidated so
different issues are available at either manual for the time being.)
29 See USCIS, Policy Manual, Chapter 5(G), Sep. 27, 2019, https://www.uscis.gov/policymanual/volume-7-part-m-chapter-5.
30 Adjudicator’s Field Manual at 10.3(h).
31 Id.
32 Id.
26

4

explicit in the written notice for the applicant
to understand.33 And the applicant has to be
advised of the decision and their right of
appeal.34
Transfer of Case to
Appellate Body After
Hearing-Level Decision

Typically, the field office must prepare an
appellate case record before sending a case to
the AAO.35 A case may be subject to AAO
review “based on either an appeal (8 CFR
103.3) or the certification of a decision for
review (8 CFR 103.4).”36
“Additionally, a petitioner or applicant may
file a motion on an earlier AAO decision (8
CFR 103.5). While the AAO holds the
appellate record during the motion period, a
field office may be required to forward the
record to the AAO if the affected party files a
late motion.”37

Miscellaneous

The transfer of an appeal from the field office
to the AAO occurs after the appeal undergoes
the initial field review and it results in
another unfavorable decision for the
applicant.38

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

Immigration benefit adjudications are
reviewed first by “the USCIS field office that
made the unfavorable decision” and then by
the AAO.39

Legal Status of Reviewing
Authority(ies)

The AAO is established by statute as the
agency’s final decision-making authority.40 If
an applicant has their appeal denied by the

33 See Policy Manual, Chapter 5(G).
34 See id.
35 Adjudicator’s Field Manual at 10.8(a)(1).
36 Id.
37 Id.
38 See id. at 10.8(a)(3).
39 Id.
40 See 8 C.F.R. 103.3.

5

AAO they “may be able to file a motion to
reopen the case or a motion to reconsider the
decision.”41 A motion to reopen is based on
documented evidence of new facts and a
motion to reconsider is based on “a claim of
an incorrect application of law or policy.”42
Generally, an AAO decision cannot be
appealed to any outside body, but in limited
cases the “decision can be appealed to a
federal appellate court.”43
Miscellaneous

The BIA and AAO’s distinct immigration
appellate jurisdiction is highlighted by the
BIA’s location within the DOJ’s Executive
Office for Immigration Review (EOIR).44

Institutional Attributes of Appellate/Reviewing Authority(ies)
Number of Members

N/A

Qualification Requirements

N/A

Party Affiliation
Requirement in
Appointment

N/A

Method of Appointment

N/A

Term of Appointment

N/A

Statutory Removal
Protections

N/A

Location within Agency;
Basis of Legal Authority

The AAO is under the Director of USCIS as a
program office.45

41 Shouse California Law Group, Appealing an Immigration Decision to the Administrative Appeals

Office, https://www.shouselaw.com/immigration/AAO-appeals#10 (last visited Oct. 6, 2019).
42 Id.
43 Id.
44 AAO Practice Manual, Chapter 1.6, https://www.uscis.gov/tools/practice-manual/chapter-1administrative-appeals-office.
45 See the USCIS Organizational Chart at https://www.uscis.gov/about-us/uscis-organizational-chart.

6

Authority to Delegate to
Subunit(s); Designating
Official and Process

N/A

Quorum Requirement

N/A

Authority and Function of
Appellate Authority’s Head

N/A

Internal Management
Structure of Appellate
Authority

N/A

Miscellaneous

N/A

Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

If an immigration benefit request falls under
AAO’s jurisdiction then “the appellant may
appeal the decision to the AAO.”46 For
motions to reopen and motions to reconsider
the AAO or appellant may file the motion.47
For certifications the USCIS officers may ask
the AAO to review.48

How Appeal Initiated

Appeals, motions to reconsider, and motions
to reopen are initiated by an appellant filing
a Form I-290B, Notice of Appeal or Motion,
with the AAO.49 The AAO also has the power
to reopen or reconsider a proceeding on its
own.50 USCIS officials may ask the AAO to
review a decision for a case.51

46 AAO Practice Manual, Chapter 1.4, https://www.uscis.gov/tools/practice-manual/chapter-1-

administrative-appeals-office.
47 See id.
48 See id.
49 See AAO Practice Manual, Chapter 3.7 & 4.6.
50 See id. at 4.1.
51 See id. at 5.1.

7

Time For Appealing

For the majority of appeals and motions,
appellants need to file the I-290B “within 30
calendar days after personal service of the
decision, or 33 calendar days if the decision
was mailed.”52
Appellants must file an appeal to revoke the
approval of an immigrant petition “upon
notice under 8 C.F.R. § 205.2 within 15
calendar days after personal service of the
decision, or 18 calendar days if the decision
was mailed.”53 However, the AAO has the
discretion to excuse a failure to timely file a
motion to reopen if “the appellant
demonstrates that the delay was reasonable
and was beyond his or her control.”54

If No Appeal Taken from
Hearing Officer’s Decision

In the absence of timely exceptions, the
USCIS decision and order becomes the
effective and final decision.

If Appeal Taken

If an appeal, certification, or motion is taken
the AAO “conduct[s] administrative review of
those appeals to ensure consistency and
accuracy in the interpretation of immigration
law and policy.” Appellants may provide
supplemental briefs and evidence in their
appeal to be taken into consideration in
addition to the original record. Appellants
may also request an oral argument which
does not have to be granted.

52 Id. at 3.7 & 4.6.
53 Id.
54 Id. at 4.6.

8

The AAO “generally issue[s] non-precedent
decisions. These apply existing law and policy
to the facts of a given case. A non-precedent
decision is binding on the parties involved in
the case, but does not create or modify agency
guidance or practice.” That decision is
effective and final on the date that the AAO
issues it, unless the AAO reopens the
decision or a federal court modifies or
overrules it.55 And the AAO decisions may
order “any action consistent with its
authority under the Act, the regulations, and
applicable USCIS policy as is appropriate
and necessary for the disposition of the
appeal.”56
Review of Decisions on
Own Initiative (Without
Request of a Party)

The AAO may review cases on their own
initiative whether it be motions to reconsider
or motions to reopen. USCIS can also request
certification on a decision.

Miscellaneous

The AAO, even for cases under its
jurisdiction, does not consider appeals for:
rejected applications and petitions,
abandoned applications and petitions,
withdrawn applications and petitions, denied
motions to reopen or reconsider, and AAO
decisions.57

Appellate Authority’s Procedures
Record on Review

The record on review consists of the complete
record from the initial USCIS adjudication
and, if the appellant chooses to submit,
additional supplemental briefs and evidence.

Submissions by Parties in
Support of Appeal

The appellants are allowed to submit
supplemental briefs, additional evidence,
request oral argument, and submit amicus
briefs. This is in addition to the I-290B which
has an attached statement on any erroneous
conclusion of law or statement of fact which
is the basis of the appeal.58
9

Issue Preservation

Since there is de novo review, “the AAO looks
at the record anew and its decision may
address new issues that were not raised or
resolved in the prior decision.”59

Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

There is an open record on appeal. The
appellant may submit for consideration a
supplemental brief and new evidence.60

Standard of Review

The standard of review for appeals, motions,
and certifications is de novo review “of all
issues of fact, law, policy, and discretion.”61

Consultation with Staff and N/A
Other Agency Officials
Oral Argument
The AAO generally adjudicates based on the
record of the proceedings without oral
argument. But the AAO may grant a written
request for oral argument “when a case
involves an issue of particular significance
and the AAO determines that it would
benefit from supplemental argument.”62
The oral argument must be requested at the
time of the filing of the appeal or when
submitting a supporting brief.63 If the AAO
grants oral argument then it will notify the
appellant of the pertinent information
regarding the oral argument, including the
conditions which are governed by 8 C.F.R. §
103.3(b)(2).64
55 AAO Practice Manual, Chapter 3.2, https://www.uscis.gov/tools/practice-manual/chapter-3-appeals.
56 Id.
57 Id.
58 See AAO Practice Manual, Chapter 3.7, https://www.uscis.gov/tools/practice-manual/chapter-3-

appeals
59 Id. at 3.4.
60 See id. at 3.8.
61 3.4 & 5.6
62 AAO Practice Manual, Chapter 3.8(f), https://www.uscis.gov/tools/practice-manual/chapter-3appeals.
63 Id. at 6.5.
64 See id.

10

Amicus Participation;
Intervention; etc.

The AAO may solicit amicus briefs “to inform
its review of complex or unusual issues of law
or policy.”65 The appellant may also submit
amicus briefs, but an amicus brief may not be
submitted without solicitation or by a party
other than the appellant.66 The AAO limits
amicus curiae to the filing of briefs.67

Public Access to Hearings

No statute or rule address public access to
hearings. However, actual hearings are rare
because an appellant must request oral
argument.

Staff’s Role in Writing
Decisions

N/A

Deadlines for Decision

The office conducting the initial field review
has 45 days to make a determination on the
appeal.68 When the case gets to the AAO they
“strive[s] to complete its appellate review
within 180 days from the time it receives a
complete case record after the initial field
review.”69

Nature of Decision

AAO decisions may order ”any action
consistent with its authority under the Act,
the regulations, and applicable USCIS policy
as is appropriate and necessary for the
disposition of the appeal.”70 The common
dispositions are sustain, dismissal, summary
dismissal, reject, and remand.71 The decisions
can be issued as non-precedent, adopted, and
precedent decisions.

65 Id. at 3.8(e).
66 See id.
67 Id.
68 See id. at 3.9.
69 USCIS, AAO Processing Times, July 8, 2019, https://www.uscis.gov/about-us/directorates-and-

program-offices/administrative-appeals-office-aao/aao-processing-times.
70 Id. at 3.14.
71 See id.

11

Reconsideration,
Rehearing, etc.

The AAO does not permit appeals of their
decisions, but they do permit motions to
reopen and motions to reconsider.

Miscellaneous

Unlike appeals—which ask a different
authority to review—motions request a
review by the authority that issued the latest
decision in the proceeding. Therefore, USCIS
field offices have jurisdiction over motions
relating to its decisions, and the AAO has
jurisdiction over motions relating to its
decisions.72

Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard

N/A

Assignment of Cases

N/A

Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

N/A

Aggregation

Each appeal is adjudicated on a case by case
basis.

Miscellaneous

N/A

Form of Decisions, Publication, and Precedential Status
Form of Decision

72

The typical decisions from the AAO are
dismissed, remanded, or sustained. The
decisions released can be non-precedent,
precedent, or adopted.

Id. at 4.1.

12

Signed or Per Curiam

Decisions are issued under the name of the
AAO. The writers commonly refer to “us” in
the opinions.

Dissents

N/A

Publication

All decisions are made available on USCIS’s
website. The decisions are separated into the
three categories pertaining to their binding
status.

Where Published

The decisions can be found at the USCIS
website. The adopted decisions are presented
as policy memoranda. Precedent decisions are
published on the Department of Justice
website in volumes. These decisions tend to
be longer than the non-precedent decisions.
There are a lot more non-precedent decisions
so there is a search engine on the USCIS
website you can use to browse through them.
You can find non-precedent decisions dated
back to 2005, adopted decisions date to 2010,
and precedent decisions date back to the
1950s (when the AAO was not a thing and
such decisions were made by Assistant
Commissioners).

Precedential Status

As seen above, there are three types of
categories of cases: precedent (binding on
future cases), adopted (policy guidance), and
non-precedent (only binding on the case at
hand). Most of the cases are non-precedent
with adopted and precedent cases coming few
and far between.

Miscellaneous

N/A

Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below
Guidance Documents
Governing Hearing-Level
Adjudicators

The USCIS may also “adopt” an AAO nonprecedent decision to provide policy guidance
to its employees for making determinations
13

on applications and petitions for immigration
benefits.73
Feedback to Adjudicators

The issuance of certifications of USCIS
decisions can be seen as direct feedback to
adjudicators below.

Quality-Assurance Reviews
and Related Mechanisms

N/A

Participation of Appellate
Body in Substantive
Rulemaking

The Secretary of DHS may occasionally, with
the Attorney General’s approval, designate
AAO decisions to serve as precedents in all
future proceedings involving the same
issue(s).74 AAO precedent decisions may
announce a new legal interpretation or
agency policy, or may reinforce an existing
law or policy by demonstrating how it applies
to a unique set of facts.75 DHS employees
must follow these precedent decisions unless
modified or overruled.

Miscellaneous

N/A

Miscellaneous
Alternative Dispute
Resolution (ADR)

N/A

Participation of Appellate
Body in Agency Decisions
on Judicial Review

N/A

Role and Participation of
Appellate Body in Writing
Rules

The AAO issues non-precedent, adopted, and
precedent decisions which range from not
binding on other cases to policy guidance to
new legal interpretation. There is no evidence
found, however, that shows the AAO has a
direct role in the writing of rules.

73 AAO Practice Manual at 1.5.
74 Id.
75 Id.

14

Miscellaneous

N/A
PUBLICLY AVAILABLE CASE STATISTICS

The AAO releases three different categories of decision data: “Initial
immigration benefit adjudication”, “Initial field review of appeals”, and “AAO
appeal decisions.”76 In fiscal year 2018 the AAO adjudicated the highest amount of
cases on Nonimmigrant Specialty Occupation Worker forms.77 They dismissed 758
cases, sustained 142 cases, and remanded 72 cases.78 It is clear by the numbers that
the AAO dismisses appeals at a much higher rate than sustains or remands.79 The
AAO points out though that “a significant number of appeals are favorably resolved
during initial field review.”80
They also release statistics regarding their timeliness of completion by case
type.81 From April to June 2019 the AAO completed 1,445 cases with 94.81% of
those completions occurring within the designated 180 days.82 Their lowest
timeliness completion rate is for Alien with Extraordinary Ability cases which is at
49.28%.83 However, the largest chunk of their completions came from the
Nonimmigrant Specialty Occupation Worker cases with 468 cases completed at
96.79% completed within 180 days.84
TREATISES AND SCHOLARSHIP OF NOTE
(THERE IS LITTLE TO NOTHING OF USE OUTSIDE THE USCIS RESOURCES)
USCIS, AAO Practice Manual, April 18, 2018, https://www.uscis.gov/aao-practicemanual.
76 USCIS, AAO Decision Data, Oct. 29, 2018, https://www.uscis.gov/about-us/directorates-and-

program-offices/administrative-appeals-office-aao/aao-decision-data.
77 AAO Decision Data at AAO appeal decisions,
https://www.uscis.gov/sites/default/files/USCIS/About%20Us
/Directorates%20and%20Program%20Offices/AAO/USCIS_and_AAO_Data_for_Publishing_Thru_FY
18.pdf.
78 Id.
79 Id.
80 USCIS, AAO Decision Data, Oct. 29, 2018, https://www.uscis.gov/about-us/directorates-andprogram-offices/administrative-appeals-office-aao/aao-decision-data.
80 AAO Decision Data at Initial field review of appeals, https://www.uscis.gov/about-us/directoratesand-program-offices/administrative-appeals-office-aao/aao-decision-data.
81 USCIS, AAO Processing Times, July 8, 2019, https://www.uscis.gov/about-us/directorates-andprogram-offices/administrative-appeals-office-aao/aao-processing-times.
82 Id.
83 Id.
84 Id.

15

USCIS, Policy Memoranda, Sept. 30, 2019, https://www.uscis.gov/legalresources/policymemoranda?field_native_doc_policymem_topic_tid=All&field_native_doc_issue_date
_value%5Bvalue%5D%5Bmonth%5D=&field_native_doc_issue_date_value_1%5Bval
ue%5D%5Byear%5D=2019&topic_id=&items_per_page=10.

16

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher J. Walker
Matthew Lee Wiener
APPENDIX E
Board of Immigration Appeals:
Review of Immigration Adjudication
INTRODUCTION
Under the immigration laws of the United States, the Attorney General
(AG) has appellate authority over immigration judge (IJ) decisions as well as
immigration-related decisions of the Department of Homeland Security (DHS).1
An IJ and DHS decide whether or not an alien is subject to, generally speaking,
removal proceedings. The AG, acting as the appellate authority, can review such
lower body decisions to determine if the IJ or DHS applied immigration law
correctly. Under the Immigration and Nationality Act (INA) the AG has the
ability to delegate his or her appellate authority.2 In 1940, the AG established the
Board of Immigration Appeals (BIA), a 21-member body consisting of
immigration lawyers that the AG appoints.3 The BIA acts in place of the AG and
determines whether IJ or DHS decisions applied immigration law correctly.
The BIA has no statutory basis other than reviewing immigration law. The
BIA is purely a creature of regulation, and the AG has made significant
regulatory changes to the structure of the BIA. In 2002, AG reorganized the BIA
to allow members, by themselves, to affirm lower body decisions or dismiss
appeals.4 When affirming a decision, a single member issues an “affirmance
without opinion.” When dismissing an appeal, the BIA regulations specify the
grounds that permit the member to act. Single-member BIA decisions are the
most common form of BIA decision making.

1

8 U.S.C. §1103(g)(2).
Id.
3
5 Fed. Reg. 3,502 (Sept. 4, 1940).
4
Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed. Reg. 54,878 (Aug.
26, 2002).
2

The BIA does not act as a factfinder. Instead, the BIA reviews IJ and DHS
findings of fact or questions of law appellate court.5 The BIA can issue binding
“precedential” decisions which clarify existing requirements under immigration
law. The AG may, if he or she desires, can oversee a case by themselves, but this
authority is primarily reserved for when the AG does not believe the BIA made a
correct ruling of law. Once the BIA rules on a case, like an appellate court would,
it can remand the case to the lower body or make a ruling clarifying existing
requirements under immigration law.
CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
Governing Law
Procedural Law

Appellate procedures for the BIA are
primarily governed by the AG’s regulations
as interpreted by the BIA in precedential
decisions.6
The AG according to the CFR, allows the
BIA, subject to the director of the EOIR, to
“prescribe precures governing the
proceedings before it.7 Pursuant to this
authority, the BIA publishes an “Online
Practice Manual” for parties arguing before
the BIA.8
The AG’s regulations specify that certain BIA
decisions can be referred to the AG if:
1. The AG directs the Board to refer
cases to the AG.
2. The BIA Chairman or a majority of
the BIA believes it should be
referred to the AG for review.
3. The Secretary of DHS, or specific
officials of DHS designated by the
Secretary with the concurrence of

5

8 C.F.R. §1003.1(d)(3).
8 C.F.R. §1003.1-.8.
7
8 C.F.R. §1003.1(d)(4).
8
Executive Office for Immigration Review, BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL,
https://www.justice.gov/eoir/board-immigration-appeals-2 (last visited September 4, 2019).
6

2

Substantive Law

the AG, refer the decision to the AG
for review.9
The INA provides the substantive law for the
BIA. The BIA engages exclusively in case-bycase adjudicative procedurals per AG
regulations.10
The BIA does not have rulemaking authority,
and its precedential decisions can be found in
bound volumes on the Department of
Justice’s website.11

Miscellaneous

[none]

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
The BIA reviews decisions of IJ of
Appealable
immigration courts and certain decisions
made by DHS adjudicating violations of the
INA.12
Nature of Hearing-Level
Proceedings

Proceedings before IJs are subject to the AG’s
regulations on their rules of procedure.13
Such proceedings are also governed by the
INA’s procedural requirements for removal.14

Nature of Hearing-Level
Decision

The IJ issues an appealable decision,
however Congress delegated the rules
governing appeals to the Attorney General.15

9

8 C.F.R. §1003.1(h). See Alberto R. Gonzalez & Patrick Glen, Advancing Executive Branch Policy Through
the Attorney General’s Review Authority, 101 IOWA L. REV. 841 (2016) (detailing the AG’s referral and review
of BIA decisions); see, e.g., Christopher J. Walker, REFERRAL, REMAND, AND DIALOGUE, 101 IOWA L. REV.
ONLINE 84 (2016) (emphasizing the AG’s referral and review authority as a powerful tool to enhance dialogue
between Congress, the federal courts, and administrative agencies).
10
8 C.F.R. §1003.1(d).
11
See Executive Office for Immigration Review, AGENCY DECISIONS, https://www.justice.gov/eoir/ag-biadecisions (last visited September 4, 2019).
12
8 C.F.R. §1003.1(g).
13
8 C.F.R. §1003.12-47.
14
8 U.S.C. §1229(a).
15
See 8 U.S.C. §1103(g)(2) (“The Attorney General shall review [IJ decisions] in immigration proceedings [and]
delegate such authority”).

3

Transfer of Case to
Appellate Body After
Hearing-Level Decision

Parties can appeal an IJ’s decision to the
BIA; the BIA then usually conducts a “paper
review” of the case and makes a decision on
the merits.16

Miscellaneous

[none]

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

The BIA directly reviews IJ decisions. The
BIA’s decisions are final unless modified by
the BIA itself or the AG.17

Legal Status of Reviewing
Authority(ies)

The INA nor any other immigration-related
statute established the BIA.18

Miscellaneous

[none]

Institutional Attributes of Appellate/Reviewing Authority(ies)
Number of Members

The BIA consists of 21 members.19 The AG
designates one BIA members to serve as the
Chairman of the BIA.20 The AG may also
designate one or two BIA members to serve
as Vice Chairman(men).21

Qualification Requirements

BIA regulations do not specify any
qualification requirements other than the
BIA members “shall be attorneys” the AG
appoints.22

16

8 C.F.R. §1240.15; 8 C.F.R. §1003.1(b); see Executive Office for Immigration Review, BOARD OF
IMMIGRATION APPEALS, supra note 3, (“[The BIA] decides appeals by conducting a ‘paper review’ of cases”).
17
8 C.F.R. §1003.1(g).
18
See Katie R. Eyer, Administrative Adjudication and the Rule of Law, 60 ADMIN. L. REV. 647 (2008) (“The
Attorney General created the [BIA] by regulation, and it therefore has historically been without a statutory
basis”); REGULATIONS GOVERNING DEPARTMENTAL ORGANIZATION AND AUTHORITY, 5 Fed. Reg.
3502, 3503 (Sept. 4, 1940) (establishing the BIA); see also Maurice A. Roberts, The Board of Immigration
Appeals: A Critical Appraisal, 15 SAN DIEGO L. REV. 29, 30 (1977) (noting that Congress acknowledges the
BIA’s existence, but has yet to authorize it by statute).
19
8 C.F.R. §1003.1(a)(1).
20
Id. §1003(a)(2).
21
Id.
22
Id. §1003.1(a)(1).

4

Party Affiliation
Requirement in
Appointment

The INA nor the AG regulations specify any
party affiliation requirements in
appointment.23

Method of Appointment

The AG appoints members of the BIA.24

Term of Appointment

BIA members have no term of appointment.
The Director of the EOIR, however, may
designate certain adjudicators as “Temporary
[BIA] Members" for a six-month term.25
Unlike the 21 BIA members that the AG
selects, the temporary BIA members do have
qualification requirements. The Director of
the EOIR has the discretion to select IJs,
retired BIA members, retired IJs, and
current or retired EOIR administrative law
judges (ALJ) as temporary BIA members.26
The Director of the EOIR, subject to the
approval from the Deputy AG, may also
designate “one or more senior EOIR
attorneys with at least ten years of
experience in the field of immigration law” to
act as temporary BIA members.27 These
temporary BIA members also serve sixmonth terms.28

23

DOJ policies specify that hiring on the basis of political affiliation, among other discriminatory criteria, is
prohibited. See 28 C.F.R. §42.1(a) (“It is the policy of the Department of Justice to seek to eliminate
discrimination on the basis of…political affiliation… employment within the Department and to assure equal
employment opportunity for all employees and applicants for employment). In 2008, an Inspector General and
Office of Professional Responsibility investigation concluded that there was a practice of “[considering] political
or ideological affiliations” for BIA appointments. See Department of Justice, Office of Professional
Responsibility and Office of the Inspector General, An Investigation of Allegations of Politicized Hiring by
Monica Goodling and Other Staff in the Office of the Attorney General, (July 28, 2008) (online at
www.justice.gov/sites/default/files/opr/legacy/2008/07/28/goodling072408.pdf).
24
8 C.F.R. §1003.1(a)(1).
25
Id. §1003.1(a)(4).
26
Id.
27
Id.
28
Id.

5

Statutory Removal
Protections

Members of the BIA are subject to at-will
removal by the AG.29

Location within Agency;
Basis of Legal Authority

The BIA serves as an appellate authority
within the DOJ.30
The BIA is not established by statute.
Instead, the AG delegated adjudicative
authority over immigration appeals to the
BIA beginning in 1940.31

Authority to Delegate to
Subunit(s); Designating
Official and Process

The AG’s regulations governing the BIA do
not state whether the BIA can delegate its
authority.

Quorum Requirement

The Chairman of the BIA has the authority
to divide the 21 BIA members into 3-member
panels. A majority of the 3 panel is a
quorum.32
A majority of the 21 BIA members
constitutes a quorum for the purposes of
convening en banc.33
BIA regulations, however, specify that a
single BIA member can review a case
pending before the BIA and affirm it, without
an opinion unless the case meets certain
criteria.34

Authority and Function of
Appellate Authority’s Head

The AG’s regulations governing the BIA vest
adjudicative authority in the Chairman (or
any Vice Chairmen) like any other member of
the BIA.

29

See Stephen H. Legomsky, Forum Choices for the Review of Agency Adjudication: A Study of the Immigration
Process, 71 IOWA L. REV. 1297, 1380 n.488 (1986) (noting that the AG has the theoretical power to remove BIA
members at-will, but rarely does so).
30
8 C.F.R. §1003.1(a)(1).
31
See Katie R. Eyer, Administrative Adjudication and the Rule of Law, supra note 13.
32
8 C.F.R. §1003.1(a)(3).
33
Id. §1003.1(a)(5).
34
Id. §1003.1(e); §1003.1(e)(6) (setting forth the circumstances where a single BIA member should assign the
case to a BIA panel).

6

Internal Management
Structure of Appellate
Authority

The Chairman of the BIA is the BIA’s
managerial authority. The Chairman has the
authority to do the following (but not limited
to): provide for BIA member training,
manage the BIA’s docket, and establish a
case management system for the BIA.35

Miscellaneous

[none]

Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

The Attorney General’s BIA regulations
provide for an appeal as of right from any IJ
decision or a DHS immigration decision.36
A party seeking to appeal an IJ’s decision
must file a Notice of Appeal, known as “Form
EOIR-26.”
A party seeking to appeal a DHS
immigration decision must file a Notice of
Appeal, known as “Form EOIR-29.”

How Appeal Initiated

Appeals are initiated by filing a notice of
appeal from the decision of an IJ or an
immigration decision from DHS.37

Time For Appealing

Parties have 30 calendar days to appeal from
an IJ’s decision.38 Parties also have 30 days
from the DHS officer’s immigration decision
to file an appeal.39

If No Appeal Taken from
Hearing Officer’s Decision

In the absence of timely appeals, or if no
appeal is taken at all, the IJ’s decision
becomes final.40

35

8 C.F.R. §1003.1(a)(2); 8 C.F.R. §1003.1(e) (IJ decisions); 8 C.F.R. §1003.3(a)(2) (DHS immigration
decisions).
36
8 C.F.R. §1003.3(a) and 1003.38(b).
37
8 C.F.R. §1003.3.
38
8 C.F.R. §1003.38(b).
39
8 C.F.R. §1003.3(a)(2).
40
8 C.F.R. §1003.39.

7

If Appeal Taken

The BIA may only resolve questions before it
in a manner that is “timely, impartial, and
consistent with” the INA.41

Review of Decisions on
Own Initiative (Without
Request of a Party)

The BIA may, on its own motion at any time,
reopen or reconsider any case which it has
rendered a decision.42

Miscellaneous

[none]

Appellate Authority’s Procedures
Record on Review

The record consists of, among other things,
“charging documents, hearing notices, notices
of appearances, applications for relief and
any accompanying documents, court-filed
papers and exhibits, transcript of proceedings
and oral decision of the IJ if prepared,
written memorandum order or decision of the
IJ, notice of appeal, briefing schedules, briefs,
motions, correspondence, and any prior
decisions of the Board.”43

Submissions by Parties in
Support of Appeal

The appealing party’s Notice of Appeal must
“specifically identify the findings of fact,
conclusions of law, or both” that they
challenge.44
The appellant has the option to file a
separate brief or statement in support of the
appeal.45 The appellee then typically has the
“same period of time” as the appellant to file
a reply brief opposing the appeal.46

41

8 C.F.R. §1003.1(d)(1).
8 C.F.R. §1003.2(a).
43
See Executive Office for Immigration Review, BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL, supra
note 3.
44
8 C.F.R. §1003.3(c)(1).
45
Id.
46
8 C.F.R. §1003.3(c)(1).
42

8

Issue Preservation

If a party fails to identify the reasons for the
appeal in its Notice of Appeal, the BIA may
summarily dismiss the appeal.47

Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

The BIA is not allowed to engage in
factfinding when deciding an appeal.48 The
only exception is for “taking administrative
notice of commonly known facts such as
current events or the contents of official
documents.”49 But if further factfinding is
needed, the BIA may remand the
proceeding.50

Standard of Review

The BIA does not engage in de novo review of
findings of fact.51
The BIA only reviews decisions under the
clearly erroneous standard.52

Consultation with Staff and [none]
Other Agency Officials
Oral Argument

The appealing party may request an oral
argument in its Notice of Appeal.53 The BIA
then has the discretion to grant requests for
oral arguments, but rarely does so.54 Single
BIA members cannot preside over oral
argument.55
During oral argument, each party has 30
minutes.56

Id. §1003.3(b); see 8 C.F.R. §1003.1(d)(2)(i) (authorizing the BIA’s summary dismissal authority).
8 C.F.R. §1003.1(d)(3)(iv).
49
Id.
50
Id.
51
8 C.F.R. §1003.1(d)(3)(i).
52
Id. §1003.1(d)(3)(ii).
53
Id. §1003.1(e)(7).
54
Id.; see Executive Office for Immigration Review, BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL,
https://www.justice.gov/eoir/board-immigration-appeals-2 (last visited September 7, 2019).
55
Id.
56
Id. Executive Office for Immigration Review, BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL,
https://www.justice.gov/eoir/board-immigration-appeals-2 (last visited September 7, 2019).
47
48

9

Amicus Participation;
Intervention; etc.

The BIA has sole discretion to allow amicus
participation on a case-by-case basis,.57
The BIA generally limits amicus
participation to the filing of briefs.58

Public Access to Hearings

BIA policy allows the public and employees of
the DOJ to attend BIA hearings.59

Staff’s Role in Writing
Decisions

[none]

Deadlines for Decision

[none]

Nature of Decision

The BIA shall resolve questions before it in a
manner that is “timely, impartial, and
consistent” with the INA and regulations.60
When a single BIA member affirms an IJ
decision without an opinion, BIA regulations
specify that the affirmance without opinion
must state the following: “The Board affirms,
without opinion, the result of the decision
below. The decision below is, therefore, the
final agency determination. See 8 C.F.R.
§1003.1(e)(4).”61

Reconsideration,
Rehearing, etc.

The BIA may on its own motion, reconsider
any case that it has already rendered a
decision.62
If a party requests to reopen or reconsider a
case, they must make a written request to
the BIA.63 The BIA has the discretion to deny

57

8 C.F.R. §1292.1(d); See Executive Office for Immigration Review, BOARD OF IMMIGRATION APPEALS
PRACTICE MANUAL, https://www.justice.gov/eoir/board-immigration-appeals-2 (last visited September 7, 2019).
58
Id.
59
See generally, 8 C.F.R. §1003.27 (specifying public access to IJ hearings). The BIA has adopted IJ public
access requirements for its own proceedings.
60
8 C.F.R. §1003.1(d)(1).
61
8 C.F.R. §1003.1(e)(4)(ii).
62
8 C.F.R. §1003.2(a).
63
Id.

10

such a request even if the party makes out a
prima facie case for relief.64
Motions to reconsider must state the errors of
fact or law from the other BIA decision, and
the motion must be supported by “pertinent
authority.”65 Any motions to reconsider that
are “based solely on an argument that the
case should not have been affirmed by a
single [BIA] member, or by a three-member
panel, [are] barred.”66
A motion to reopen must state “the new facts
that will be proven at a hearing to be held if
the motion is granted and shall be supported
by affidavits or other evidentiary material.”67
A motion to reopen proceedings in order to
submit an application for relief “must be
accompanied by the appropriate application
for relief and supporting documentation.”68
Miscellaneous

Rulings on motions to reopen or reconsider
have to be in writing.69 If the BIA reopens a
case and further proceedings are necessary,
the BIA returns the record to the lower
deciding authority.70
There has also been significant controversy
surrounding the BIA prohibiting parties
subject to departure, deportation, or removal
proceedings from filing a motion to reopen or
reconsider their case.71 Some circuit courts
have held that this provision is inconsistent
with Congress’s intent behind the Illegal

64

Id.
Id. §1003.2(b)(1).
66
Id. §1003.2(b)(3).
67
Id. §1003.2(c)(1).
68
Id.
69
8 C.F.R.§1003.2(h)(i).
70
Id.
71
See id. §1003.2(d). This provision also states that the BIA treats departures from the United States, including
the departure that the party is subject to, as a withdrawal of the party’s motion to reopen or reconsider their
proceeding. Id.
65

11

Immigration Reform and Immigration
Responsibility Act (IIRIRA) and the INA.72
Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard

Ordinarily, the BIA does not entertain
interlocutory appeals and generally limits
them to certain instances involving either an
important jurisdictional question regarding
the administration of immigration laws or
recurring questions in the handling of
cases.73

Assignment of Cases

Pursuant to the BIA Chairman’s directive,
the BIA adjudicates cases in one of three
ways:
Single BIA Member Adjudication: A
single BIA member may review a case an
either affirm the lower decisionmaker’s
decision, dismiss the appeal, or refer the case
to the BIA for review.74 This procedure
became the predominant form of BIA
adjudication after AG Ashcroft’s
Reorganization Plan.75
Three-Member Panel Adjudication: The
Chairman of the BIA may assign cases to
three-member panels according to the
Chairman’s administrative plan(s).76 A single
member of the BIA, when reviewing a case,

72

See Garcia-Carias v. Holder, 697 F.3d 257, 264 (holding that, under Chevron, U.S.A. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), IIRIRA “plainly does not impose a general physical presence
requirement” in order to file a motion to reconsider or reopen); see also Pruidze v. Holder, 632 F.3d 234 (6th
Cir. 2011) (same); see Marin-Rodriguez v. Holder, 612 F.3d 591, 593-94 (7th Cir. 2010) (“The Immigration and
Nationality Act Authorizes the [BIA] to reconsider or reopen its own decision. It does not make that step depend
on the alien’s presence in the United States.”)
73
See Matter of K-, 20- I&N Dec. 418 (BIA 1991).
74
8 C.F.R. §1003.1(d)(2)(i) (Single BIA member dismissal authority); id. §1003.1(e)(4) (Single BIA member
affirmance authority)
75
See BOARD OF IMMIGRATION APPEALS: PROCEDURAL REFORMS TO IMPROVE CASE MANAGEMENT, 67 Fed.
Reg. 54,878, 54, 879 (Aug. 26, 2002)
76
8 C.F.R. §1003.1(a)(3).

12

may refer the case to a three-member panel if
one of six circumstances apply.77
En Banc: the BIA may convene en banc.78
Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

N/A

Aggregation

The BIA Chairman’s procedural guidelines
permit consolidated appeals, but they are
“generally limited to appeals involving
immediate family members, although the
BIA may consolidate other appeals where the
cases are sufficiently interrelated.”79
Motions for reconsideration or for reopening
may be consolidated with the appeal to the
BIA.80

Miscellaneous

[none]

Form of Decisions, Publication, and Precedential Status
Form of Decision

The BIA writes its own decisions. BIA
regulations allow the BIA to affirm, reject, or
modify IJ decisions in order to fulfill its
mission to “provide clear and uniform
guidance . . . on the proper interpretation and

8 C.F.R. §1003.1(e)(6)(i)-(vii). The six circumstances are, according to the BIA’s regulations: (1) the need to
settle inconsistencies among the rulings of different immigration judges, (2) the need to establish a precedent
construing the meaning of laws, regulations, or procedures, (3) the need to review a decision by an immigration
judge or DHS that is not in conformity with the law or with applicable precedents, (4) the need to resolve a case
or controversy of major national import, (5) the need to review a clearly erroneous factual determination by an
immigration judge, (6) the need to reverse the decision of an immigration judge or DHS, other than a reversal
under 8 C.F.R. §1003.1(e)(5), or (7) the need to resolve a complex, novel, unusual, or recurring issue of law or
fact.
78
8 C.F.R. §1003.1(a)(5). The BIA can hear a case en banc either by a majority vote of the BIA or at the
Chairman’s direction.
79
Executive Office for Immigration Review, BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL,
https://www.justice.gov/eoir/board-immigration-appeals-2 (last visited September 7, 2019).
80
8 C.F.R. §1003.2(b)(1) (reconsideration); Id. §1003.2(c)(4) (reopening).
77

13

administration” of the INA and its
regulations.81
Signed or Per Curiam

Decisions are issued under the names of all
members in the majority, but majority
opinions can be written by a single member.82
Older BIA decisions used to be signed as
“Board.”

Dissents

Members may, and do frequently, write
dissenting opinions, which immediately
follow the BIA’s decision.83

Publication

All decisions are available on the EOIR’s
website. Final decisions can be published if
they meet one or more of several criteria,
according to the BIA’s practice manual. Such
criteria include, but are not limited to:
• The resolution of an issue of first
impression;
• Alteration, modification, or
clarification of an existing rule of law;
• Reaffirmation of an existing rule of
law;
• Resolution of a conflict of authority; or
• Discussion of an issue of significant
public interest84
The EOIR’s website include up-to-date BIA
decisions.

Where Published

Published opinions are published in bound
volumes of Administrative Decisions Under
Immigration and Nationality Laws of the
United States, which are available on the
EOIR’s website.85

81

8 C.F.R. §1003.1(d)(1).
See Matter of C-B-, 25 I&N Dec. 888 (BIA 2012) (Member Guendelsberger writing the majority opinion); In
re Guang Li Fu, 23 I&N Dec. 985 (BIA 2006) (Member Holmes writing the majority opinion).
83
See Matter of Mendoza-Hernandez, Capula-Cortes, 27 I&N Dec. 520, 536 (BIA 2019) (Member
Guendelsberger dissenting).
84
Executive Office for Immigration Review, BOARD OF IMMIGRATION APPEALS PRACTICE MANUAL,
https://www.justice.gov/eoir/board-immigration-appeals-2 (last visited September 7, 2019).
85
Executive Office for Immigration Review, AGENCY DECISIONS, https://www.justice.gov/eoir/ag-bia-decisions.
(last visited September 7, 2019).
82

14

The BIA does not make unpublished
decisions available on the EOIR website. An
advocacy group known as the Immigrant &
Refugee Appellate Center (IRAC), however,
collects “noteworthy” unpublished BIA
decisions and files them in an Index.86
Precedential Status

All published BIA decisions are precedential
and hence binding on IJs and DHS.87
Unpublished decisions are not precedential.
Id.88 The BIA and/or the AG may modify or
overrule precedential decisions.89 The AG, in
addition to the BIA, may issue binding
precedential decisions if he or she decides the
merits of an immigration appeal.90

Miscellaneous

[none]

Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below
Guidance Documents
Governing Hearing-Level
Adjudicators

The BIA does not issue guidance documents
governing ALJ adjudications.

Feedback to Adjudicators

[none]

Quality-Assurance Reviews
and Related Mechanisms

[none]

Participation of Appellate
Body in Substantive
Rulemaking

The BIA is limited to serving as an appellate
body. The Chairman of the BIA, however,
may issue operational instructions and
policy, including procedural instructions

86

Immigrant & Refugee Appellate Center, INDEX OF UNPUBLISHED BIA DECISIONS,
https://www.irac.net/unpublished/, (last visited September 7, 2019).
87
8 CFR §1003.1(g).
88
Id.
89
Id.
90
Id.

15

regarding the implementation of new
statutory or regulatory authorities.”91
Miscellaneous

[none]

Miscellaneous
Alternative Dispute
Resolution (ADR)

[none]

Participation of Appellate
Body in Agency Decisions
on Judicial Review

The BIA does not participate in decisions
relating to judicial review of its decisions.

Role and Participation of
Appellate Body in Writing
Rules

The AG, not the BIA, is the Department of
Justice’s rulemaking authority.

Miscellaneous

[none]

91

8 C.F.R. §1003.1(a)(2)(i).

16

PUBLICLY AVAILABLE CASE STATISTICS
In Fiscal Year (FY) 2018, the BIA completed 14,464 out of 31,956 cases.92
Beginning in 2008, the number of appeals filed steadily decreased.93 From FY
2017-FY 2018, however, the BIA saw a jump from 17,135 case appeals filed to
31,956 case appeals filed.94 As of the Third Quarter of FY 2019, there are already
39,694 case appeals filed, which is 7,738 more than FY 2018.95
TREATISES AND SCHOLARSHIP OF NOTE
Susan Burkhardt, The Contours of Conformity: Behavioral Decision Theory
and the Pitfalls of the 2002 Reforms of Immigration Procedures, 19 GEO.
IMMIGR. L.J. 35 (2004).
Evelyn H. Cruz, Double the Injustice, Twice the Harm: The Impact of the
Board of Immigration Appeals’s Summary Affirmance Procedures, STANFORD
L. & POL. REV., VOL. 16. (2005).
Katie R. Eyer, Administrative Adjudication and the Rule of Law, 60
ADMIN. L. REV. 647 (2008).
Alberto R. Gonzales & Patrick Glen, Advancing Executive Branch
Immigration Policy Through the Attorney General’s Review Authority, 101 Iowa
L. Rev. 841 (2016).
Stephen H. Legomsky, Forum Choices for the Review of Agency
Adjudication: A Study of the Immigration Process, 71 IOWA L. REV. 1297 (1986).
Jaya Ramji-Nogales, Andrew I. Schoenholtz, & Phillip G. Schrag, Refugee
Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295 (2007).
Shruti Rana, “Streamlining” the Rule of Law: How the Department of
Justice is Undermining Judicial Review of Agency Action, UNIVERSITY OF
ILLINOIS L. REV. 829 (2009).
Scott Rempell, Judging the Judges: Appellate Review of Immigration Decisions,
53 S. TEX. L. REV. 477, 483 (2012).
Maurice A. Roberts, The Board of Immigration Appeals: A Critical
Appraisal, 15 SAN DIEGO L. REV. 29 (1977).

92

Executive Office for Immigration Review, Adjudication Statistics,
https://www.justice.gov/eoir/file/1198906/download, (last visited September 7, 2019).
93
Id.
94
Id.
95
Id.

17

Christopher J. Walker, Referral, Remand, and Dialogue in Administrative
Law, 101 Iowa L. Rev. Online 84 (2016).

18

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
APPENDIX F
Department of Labor Appeals:
The Administrative Review Board, Benefits Review Board, Employees’
Compensation Appeals Board, and Office of Administrative Law Judges
INTRODUCTION
The Department of Labor (DOL) has four main bodies of appellate review,
the Administrative Review Board, the Benefits Review Board, the Employees’
Compensation Appeals Board, and the Office of Administrative Law Judges.1
This research paper briefly outlines all four bodies, and then dissects the primary
one, the Administrative Review Board.
Administrative Review Board:
The Administrative Review Board (ARB) was created in 1996, to take the
place of the Board of Service Contact Appeals and the Wage Appeals Board.2
Under the authority of the Secretary of Labor, the ARB can “issue final agency
decisions after review or on appeal of matters arising under a wide range of
employee protection laws.”3 The Board has a wide jurisdiction,4 and its cases are
generally on appeal from decisions by the Department of Labor’s Administrative
Law Judges (ALJs) or determinations from the Administrator of the
Department’s Wage and Hour Division.5 Different areas of review have different

1 U.S. U.S. Dep’t of Labor, DOL Appeals, U.S. U.S. DEP’T OF LABOR (last visited Oct. 5, 2019),

https://www.dol.gov/appeals/.
2 See Establishment of the Administrative Review Board, 61 Fed. Reg. 19982 (May 3, 1996).
3 U.S. U.S. Dep’t of Labor, Administrative Review Board: Establishment and Mission of the Board,
U.S. U.S. DEP’T OF LABOR (last visited Oct. 5, 2019), https://www.dol.gov/arb/mission.htm.
4 Id. (Including, but not limited to: [E]nvironmental, transportation, and securities whistleblower
protection; temporary immigration programs; child labor; employment discrimination; job
training; and federal construction and service contracts.)
5 Id.

practices as enumerated in the Code of Federal Regulations.6 The appeals are
discretionary within the ARB’s jurisdiction,7 and depending on the statute at
issue, the Board’s own decisions can be appealed to federal district courts,
appellate courts, and eventually the United States Supreme Court.8
Benefits Review Board:
The Benefits Review Board (BRB) was created by Congress in 1972 to
review ALJ decisions arising under two specific acts, the Black Lung Act, and the
Longshore and Harbor Worker’s Compensation Act.9 The BRB was established in
33 U.S.C. § 921, as a part of the Longshore and Harbor Worker’s Compensation
Act.10 The Board has the power to hear appeals from questions of law of fact, and
may stay awards pending final decision if “irreparable injury” would happen to
the employer or carrier.11 ALJ’s can serve for one-year temporary terms on the
board, at the discretion of the Secretary of Labor, if the Board’s Chairman
suggests it to them.12 The BRB can delegate panels of three members with all the
power of the Board to make decisions.13 But if a party is unhappy with the panel
decision, it may petition the whole Board for a review of the panel’s decision.14
Board decisions can be reviewed in the court of appeals for the circuit where the
injury occurred, via a written petition filed in that court within sixty days after
the final court decision.15 If an injured party is successful, but the employer fails
to comply with the compensation, the award beneficiary or the deputy
commissioner who made the order may apply for enforcement in the Federal
district court where the injury at issue occurred.16
Employees’ Compensation Appeals Board:
The Employee’s Compensation Appeals Board (ECAB) was created in 1946
by President Harry S. Truman in Reorganization Plan No. 2 of 1946, which
6 U.S. U.S. Dep’t of Labor, Administrative Review Board: ARB – Rules of Practice and Procedure,

U.S. U.S. DEP’T OF LABOR (last visited Oct. 5, 2019), https://www.dol.gov/arb/rules.htm.
7 29 C.F.R. § 8.1(b).
8 U.S. U.S. Dep’t of Labor, supra note 3.
9 U.S. U.S. Dep’t of Labor, Benefits Review Board: Mission Statement, U.S. U.S. DEP’T OF LABOR
(last visited Oct. 5, 2019), https://www.dol.gov/brb/mission.htm. (Black Lung Benefits Act, Title IV
of the Coal Mine Health and Safety Act, 30 U.S.C. §901 et seq., and the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. §901 et seq., and its extensions, including the Outer
Continental Shelf Lands Act, 43 U.S.C. §1331 et seq., the Defense Base Act, 42 U.S.C. §1651 et
seq., and the Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §8171 et seq).
10 33 U.S.C.§ 921.
11 Id. at §921(b)(3).
12 Id. at §921(b)(5).
13 Id.
14 Id.
15 Id. at §921(c).
16 Id. at §921(d).

2

abolished the United States Employees Compensation Commission and
transformed it into an appeals board.17 The Board, consisting of three members,
has the exclusive jurisdiction from Congress on appeals governed by the Federal
Employees’ Compensation Act (FECA) from determinations of the Office of
Workers’ Compensation Programs.18 The Board must be mindful of precedent,
and its final decisions are binding on the Office of Workers’ Compensation
Programs.19 Decisions of the Board impact millions of federal employees, and sees
vigorously contested cases, given the scope of how far reaching its decisions can
be.20 Once the Board has released a decision, there is no further administrative
or judicial appeal of the decision available to the employee.21
Office of Administrative Law Judges:
The Office of Administrative Law Judges (OALJ) is the DOL’s
administrative trial court, and it is third largest office of ALJs in the Federal
government.22 ALJs are appointed under U.S. Const. art. II, § 2, cl. 2 and the
Administrative Procedure Act, 5 U.S.C. § 3105.23 The ALJs hear cases arising
from over 80 labor related statutes, regulations, and executive orders, in a wide
range of subject areas.24 An ALJ’s decision is final unless appealed to the ARB in
a timely manner.25
CHARACTERISTICS OF THE ADMINISTRATIVE REVIEW BOARD SYSTEM
(as ascertainable from public sources)
Governing Law

17 Harry S. Truman, Reorganization Plan No. 2 of 1946, THE WHITE HOUSE (May 16, 1946),

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5a-node84leaf92&num=0&edition=prelim.
18 U.S. U.S. Dep’t of Labor, Employees’ Compensation Appeals Board, U.S. U.S. DEP’T OF LABOR
(last visited Oct. 5, 2019), https://www.dol.gov/ecab/background.htm.
19 Id.
20 Id.
21 U.S. U.S. Dep’t of Labor, Employees Compensation Appeals Board, U.S. U.S. DEP’T OF LABOR
(last visited Oct. 5, 2019), https://www.dol.gov/ecab/welcome.html.
22 U.S. U.S. Dep’t of Labor, About the United States Department of Labor, Office of Administrative
Law Judges, U.S. U.S. DEP’T OF LABOR (last visited Oct. 5, 2019),
https://www.oalj.dol.gov/ALJMISSN.HTM.
23 Id.
24 Id. (“Cases where individuals seek benefits under the Black Lung Benefits Act, the Longshore
and Harbor Workers’ Compensation Act and the Defense Base Act constitute the largest part of
the office’s workload.”)
25 29 C.F.R. § 9.34.

3

Procedural Law

Appellate procedures are governed by a
variety of C.F.R.-codified procedural rules
(called rules of practice and procedure),26 as
well as statutes and executive orders.27 The
Board adheres to precedent under each area
of law it has jurisdiction over.28
There are guidance documents governing the
adjudicative activities of the Board, but no
public repository of such documents is readily
available.29
The ARB is governed by a variety of rules of
practice and procedure, which also provide
guidance to the public.30

Substantive Law

The Board follows a vast collection of
regulations, statutes, and Executive Orders.31
The Board adheres to rules of decision and
precedent applicable to the law at issue,
though it does have the power to reverse a
rule of decision or overturn precedent, if
necessary.32 However, the Board cannot “pass
on the validity of any portion of the Code of
Federal Regulations, nor can it deny or grant
exemptions, variations, and tolerances.33 The
Board was established on May 3, 1996, and
has a record of decisions going back to that
date.34 Because the Board is a combination of
several predecessor agencies, it also has
those decisions as a part of its body of

26 U.S. U.S. Dep’t of Labor, supra note 6.
27 See Secretary of Labor, Order 01-2019, Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board, 84 Fed. Reg. 13072 (Apr. 3, 2019).
28 Id. at 13073.
29 See two sources, both which mention guidance that may impact the ARB, but offer no specific
piece of guidance. Id.; U.S. U.S. Dep’t of Labor, Administrative Review Board: Boards’
Information Quality Guidelines, U.S. U.S. DEP’T OF LABOR (last visited Oct. 5, 2019),
https://www.dol.gov/arb/InfoQuality.htm.
30 Secretary of Labor, supra note 27 at 13074; U.S. U.S. Dep’t of Labor, supra note 6.
31 U.S. U.S. Dep’t of Labor, supra note 6.
32 Secretary of Labor, supra note 27 at 13073.
33 Id.
34 U.S. U.S. Dep’t of Labor, Office of Administrative Law Judges: Administrative Review Board
Decisions – By Date – May 1996 to Present, U.S. U.S. DEP’T OF LABOR (last visited Oct. 5, 2019),
https://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/CASELISTS/ARBINDEX.HTM

4

decisions.35 ARB decisions are not binding
legal precedent beyond the Board itself, but
they can be cited as persuasive authority.36
There are guidance documents that govern
the adjudicative activities of the Board.37
Miscellaneous

[none]

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
Appealable

Hearing-level decisions are appealable. The
Board cases usually arise on appeal from ALJ
decisions or determinations of the
Administrator of the Department’s Wage and
Hour Division, though these are not the only
avenues for appeal.38

Nature of Hearing-Level
Proceedings

Proceedings before the ARB’s ALJs are
subject to the formal hearing provisions of
the APA.39

Nature of Hearing-Level
Decision

The nature of the hearing-level decision
depends on what regulation or statute the
appeal is arising under, so the requirements
of decisions vary.

Transfer of Case to
Appellate Body After
Hearing-Level Decision

Statutes and regulations that confer hearing
jurisdiction typically provide the procedure
for reviewing a judge’s decision. If the statute
or regulation does not provide a procedure,
the judge’s decision “becomes the Secretary’s
final administrative decision.”40

35 The Univ. of Iowa Law Library, Labor & Employment Law: Cases, Arbitration & Agency

Decisions, UNIV. OF IOWA (last visited Oct. 5, 2019),
https://libguides.law.uiowa.edu/c.php?g=103036&p=668543.
36 EMPLOYER’S GUIDE TO THE FAIR LABOR STANDARDS ACT ¶ 946 (Susan Prince ed., Oct.
2019).
37 See supra note 29.
38 U.S. Dep’t of Labor, supra note 3.
39 See The Admin. Conference of the U.S., LABROALJ0001, ADMIN. CONFERENCE OF THE U.S.
(last visited Oct. 5, 2019), https://acus.law.stanford.edu/scheme/labroalj0001.
40 29 C.F.R. § 18.95

5

Miscellaneous

[none]

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

Decisions are reviewed directly the Board.
There is no intermediate appellate body.41

Legal Status of Reviewing
Authority(ies)

The Board is established by regulation to act
for the Secretary of Labor in review or on
appeal of matters within its jurisdiction, and
it has the power to issue final agency
decisions.42

Miscellaneous

[none]

Institutional Attributes of Appellate/Reviewing Authority(ies)
Number of Members

The Board consists of a maximum of five
members. One is designated by the
Secretary of Labor to serve as chair.43

Qualification Requirements

A vacancy posting for a member of the ARB
listed the following qualifications for hiring:
“The applicant should be well versed in law
and the appeals process, as well as have the
ability to interpret regulations and to come to
a consensus to determine an overall appeals
determination with Members of the Board.
Applicants must possess a J.D. and are
required to be active members of the Bar in
any US State or US Territory Court under
the U.S. Constitution.”44

Party Affiliation
Requirement in
Appointment

There are no party-affiliation requirements.45

41 See Secretary of Labor, supra note 27.
42 Id.
43 Id. at 13073.
44 Id. at 13074.
45 Id.

6

Method of Appointment

Members of the Board are appointed by the
Secretary of Labor.46

Term of Appointment

Members of the Board are appointed for fouryear terms.47 However, they may serve less
than that, and the Secretary of Labor also
has the discretion to extend the term of
service beyond the appointment length.48

Statutory Removal
Protections

The Secretary of Labor may remove any
member of the Board prior to the end of their
term.49

Location within Agency;
Basis of Legal Authority

The Board sits at the top of the agency as the
final decisionmaker for a range of employee
protection laws—however there are some
areas in which it is not the final
decisionmaker (for example, the ECAB issues
its own final decisions).50 Its authority is
established by regulation.51

Authority to Delegate to
Subunit(s); Designating
Official and Process

The Chair of the Board has the ability to
delegate the Board’s authority to three of its
members, which is the normal setup for
decision making.52 However, appeals may be
heard by the full Board, if the Chair decides
it, and appeals may be heard by a single
member of the Board if those bringing the
appeal consent to it.53

Quorum Requirement

[none]54

Authority and Function of
Appellate Authority’s Head

The Board’s chairman can assign panels and
control their size, as well as preside over

46 Id. at 13073. (The Secretary’s ability to appoint these members has been questioned and

upheld, at least once. See Willy v. Admin. Review Bd., 423 F.3d 483 (5th Cir. 2005).
47 Secretary of Labor, supra note 27 at 13074.
48 Id.
49 Id.
50 U.S. Dep’t of Labor, supra note 3; Dep’t of Labor, supra note 18.
51 See Establishment of the Administrative Review Board, supra note 2.
52 Secretary of Labor, supra note 27 at 13073.
53 Id.
54 Id. at 13074. (“Vacancies in the membership of the Board shall not impair the authority of the
remaining Member(s) to exercise all the powers and duties of the Board.”)

7

meetings, a Vice-Chair is designated by the
Secretary, and will run meetings in the
absence of the Chair.55 The Vice-Chair also
has operational management powers.56 In the
event of a vacancy, the Vice-Chair assumes
the authority of the Chair.57
Internal Management
Structure of Appellate
Authority

There is one Chair as assigned by the
Secretary, and one Vice-Chair. Up to three
other members are just general members of
the Board.58

Miscellaneous

[none]

Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

Appeals to the ARB are discretionary.59 The
standard for allowance of the appeal depends
on the regulation at issue, but some of the
general things the Board may consider are
“timeliness, the nature of the relief sought,
matters of undue hardship or injustice, or the
public interest.”60

How Appeal Initiated

Appeals are initiated by the filing of
“petitions for review” of ALJ decisions related
to the regulation at issue.61

Time For Appealing

Time to appeal depends on the regulation at
issue. Some regulations only require that the
appeal be “timely,”62 others have an exact
time period in which the petition for review
must be filed.63

55 Id. at 13073.
56 Id. at 13072. (These are relatively new powers).
57 Id. at 13073.
58 Id.
59 See, e.g., 29 C.F.R. § 8.1; 29 C.F.R. § 7.1.
60 29 C.F.R. §7.1.
61 See, e.g., 29 C.F.R. § 6.20; 29 C.F.R. § 6.34; 29 C.F.R. § 6.45, 29 C.F.R.§ 6.57.
62 29 C.F.R. §7.4.
63 See, e.g., supra note 59.

8

If No Appeal Taken from
Hearing Officer’s Decision

In some cases, an ALJ’s “decision and order is
inoperative unless and until the
Administrative Review Board either declines
to review the decision or issues an order
affirming the decision.”64

If Appeal Taken

ARB hearings limit the argument “to the
facts as developed in the record, and “[t]he
Board will not hear matters de novo except
upon a showing of extraordinary
circumstances.”65 The Board may also
“remand under appropriate instructions any
case for the taking of additional evidence and
the making of new or modified findings by
reason of the additional evidence.”66

Review of Decisions on
Own Initiative (Without
Request of a Party)

“The Board also shall not
have jurisdiction to review decisions to
deny or grant exemptions, variations,
and tolerances and does not have the
authority independently to take such
actions.”67

Miscellaneous

[none]

Appellate Authority’s Procedures 68
Record on Review

The record consists of information on the
proceedings in the hearing below, certified by
an ALJ.69 The record can include transcripts

64 FRANCIS C. AMENDOLA, ET AL., FEDERAL PROCEDURE, LAWYERS EDITION § 39:293 (Sept. 2019).
65 Id. at § 39:285
66 Id.
67 Secretary of Labor, supra note 27 at 13073.
68 U.S. Dep’t of Labor, Administrative Review Board: Frequently Asked Questions, U.S. DEP’T OF

LABOR (last visited Oct. 5, 2019), https://www.dol.gov/arb/faqs/pregs.htm. The ARB does not have
its own procedural regulations—each related statute prescribes different ones. This section
contains different procedural regulations from different statutes the ARB reviews. “The
implementing regulations for the statute under which the complaint is filed generally include
regulations that govern an appeal to the Administrative Review Board.” Id.
69 20 C.F.R. § 658.711(a).

9

of the hearing, evidence, and the disposition
of the matter below.70
Submissions by Parties in
Support of Appeal

There are several different procedural
pathways,71 but the general requirement for
the submission on appeal is as follows: “(a) A
petition [. . .] shall: (1) Be in writing and
signed by the petitioner or his counsel (or
other authorized representative); (2) be
described as a petition for review by the
Administrative Review Board; (3) identify
clearly the wage determination, location of
the project or projects in question, and the
agency concerned; (4) state that the
petitioner has requested reconsideration of
the wage determination in question and
describe briefly the action taken in response
to the request; (5) contain a short and plain
statement of the grounds for review; and (6)
be accompanied by supporting data, views, or
arguments.”72 The petition must also
“indicate whether or not the petitioner
consents to the disposition of the questions
involved by a single member of the Board.”73
The opposing officer who issued the final
decision below will file a statement of
position with the Board, and with the
petitioners.74
Parties other than the petitioner can “submit
to the Board written data, views, or
arguments relating to the petition,” which

70 U.S. Dep’t of Labor, ARB, BRB, ECAB, and OALJ: Information for Whistleblowers, U.S. DEP’T

OF LABOR (last visited Oct. 5, 2019), https://www.dol.gov/appeals/whistleblowers.htm.
71Secretary of Labor, supra note 27 at 13074. (“The rules (1) which are prescribed as of the date of

this Order in 29 CFR part 7 and part 8 with respect to Sections 5(a) and 5(b), respectively, of this
Order and (2) which apply as of the date of this Order to appeals and review described in Section
5(c) of this Order shall, until changed, govern the respective proceedings of the Board when it is
deciding appeals described in Section 5 of this Order.”)
72 29 C.F.R. § 7.5(a).
73 29 C.F.R. § 7.5(b).
74 29 C.F.R. § 7.9(d).

10

will be served on both the petitioner and
other interested parties.75
Issue Preservation

The Board is an appellate agency and “will
not hear matters de novo except upon a
showing of extraordinary circumstances.”76

Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

The Board “may remand under appropriate
instructions any case for the taking of
additional evidence and the making of new or
modified findings by reason of the additional
evidence.”77

Standard of Review

Because the Board is an appellate body, it
reviews cases and decides them based on the
substantial evidence before it.78

Consultation with Staff and The Board sits in 2-3 member panels, which
Other Agency Officials
perform all functions (hearing cases,
rendering decisions) entirely as their own
unit, unless the Chair decides more members
need to work on a certain case.79
“The Solicitor of Labor may [. . .] provide
legal advice and assistance
to the Chair and/or Vice-Chair of the
Board, as appropriate.”80
Oral Argument

Oral argument may be given by any
interested party, at the discretion of the
Board.81 The Board may request oral
argument on its own if it believes it will “to
simplify the issues presented” or use it “to
take up any other matters which may tend to
expedite or facilitate the disposition of the
proceeding.”82 However, a petitioner should

75 29 C.F.R. § 7.7.
76 29 C.F.R. § 7.1(e).
77 Id.
78 29 C.F.R. § 10.57(a)(2)(i).
79 Secretary of Labor, supra note 27 at 13073.
80 Id. at 13074.
81 29 C.F.R. § 7.14(a).
82 Id.

11

request oral argument if they desire to give
it.83
The Board prescribes the time, place, and
time allotted for oral argument.84
Amicus Participation;
Intervention; etc.

Intervenors can participate if they show good
cause.85
They must make clear their “relationship to
the matters involved in the proceedings,” and
“the nature of the presentation which [they]
would make.”86

Public Access to Hearings

No statute, regulation, or rule addresses
public access to hearings, but the public does
have access to all hearing documents that are
a part of the official record.87

Staff’s Role in Writing
Decisions

A vacancy posting for the board suggests that
the Board member completes the related
research and writing component of their
decisions.88 However, nothing does say or
does not say any staff cannot aid them.

Deadlines for Decision

None is provided for, but the Board states
that its mission is to provide “timely”
decisions.89 Some statutes have specific
timeframes.90

Nature of Decision

Decisions are made by majority vote, and
petitioners must be provided with those
decisions.91

83 29 C.F.R. § 7.14(b).
84 Id.
85 29 C.F.R. § 7.12.
86 Id.
87 29 C.F.R. § 8.18.
88 Secretary of Labor, supra note 27 at 13074.
89 U.S. Dep’t of Labor, supra note 3.
90 See, e.g., 29 C.F.R. § 24.110.
91 29 C.F.R. § 7.8(b)-(c).

12

These issuances contain factual findings, give
remedial instructions for issues on remand,
and put forth final decisions.92
Reconsideration,
Rehearing, etc.

The ARB puts forth the final agency
decision—if a party is unhappy with the
result, and the case they are bringing enables
them to appeal the ARB decision in federal
court, that would be the next step.93
Occasionally the Board may remand with
instructions for additional findings, and that
case may find its way back to the Board.94

Miscellaneous

[none]

Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard

“The Board’s authority includes the
discretionary authority to review
interlocutory rulings in exceptional
circumstances, provided such review is
not prohibited by statute.”95

Assignment of Cases

The Chair of the Board assigns the panel that
will hear the case.96

Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

N/A

Aggregation

The Board has a range of procedural rules it
follows given what statute or regulation is at
issue in the case. One such regulation states,
“Upon its own initative [sic] or upon motion
of any interested party, the Board may
consolidate any proceeding or concurrently

92 U.S. Dep’t of Labor, supra note 34.
93 U.S. Dep’t of Labor, supra note 3.
94 29 C.F.R. § 8.1(d).
95 Secretary of Labor, supra note 27 at 13073.
96 Id.

13

consider two or more appeals which involve
substantially the same parties, or issues
which are the same or closely related, if it
finds that such consolidation or concurrent
review will contribute to a proper dispatch of
its business and to the ends of justice, and it
will not unduly delay consideration of any
such appeals.”97
Miscellaneous

[none]

Form of Decisions, Publication, and Precedential Status
Form of Decision

The decision is made by majority vote.98 The
Board writes its own decision in each case.99

Signed or Per Curiam

Decisions are issued under the names of all
members in the majority. They are, in effect,
per curium.100

Dissents

Members may write dissenting opinions,
which immediately follow the Board’s
decision.101

Publication

All decisions are made available on DOL’s
Office of Administrative Law Judge’s
website.102 There does not appear to be a
category for unpublished cases.103
The Board also provides on its website a
monthly casenote summaries of its
decisions.104

97 29 C.F.R. § 8.14.
98 29 C.F.R. § 8.17(a)-(b). (Unless only one member of the Board is hearing the appeal).
99 U.S. Dep’t of Labor, supra note 34.
100 Id.
101 Id. (However, this appears to happen infrequently. A keyword search of “dissent” in all cases

brings up only 274 hits).
102 Id.
103 U.S. Dep’t of Labor, ARB, BRB, ECAB, and OALJ: Decisions, U.S. DEP’T OF LABOR (last visited
Oct. 5, 2019), https://www.dol.gov/appeals/decisions.htm.
104 U.S. Dep’t of Labor, Administrative Review Board Decisions: September 2019, U.S. DEP’T OF
LABOR (last visited Oct. 5, 2019),
https://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/CASELISTS/09_2019.HTM.

14

Where Published

Published decisions appear first in slipopinion form on the Office of Administrative
Law Judge’s website.105 The decisions are
also kept in physical paper “decision
binders.”106

Precedential Status

“In issuing its decisions, the
Board shall adhere to the rules of
decision and precedent applicable
under each of the laws enumerated [. . .] until
and unless the Board or
other authority explicitly reverses such
rules of decision or precedent.”107 The Board
decisions then become the precedent, either
way.

Miscellaneous

[none]

Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below
Guidance Documents
Governing Hearing-Level
Adjudicators

The Board does not issue guidance
documents governing ALJ adjudications.

Feedback to Adjudicators

[none]

Quality-Assurance Reviews
and Related Mechanisms

[none]

Participation of Appellate
Body in Substantive
Rulemaking

“The Board shall not have jurisdiction
to pass on the validity of any portion of
the Code of Federal Regulations that has
been duly promulgated by the

105 U.S. Dep’t of Labor, Administrative Review Board Decisions - By Date - May 1996 to Present,

U.S. DEP’T OF LABOR (last visited Oct. 5, 2019),
https://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/CASELISTS/ARBINDEX.HTM.
106 U.S. Dep’t of Labor, Request for Records Disposition Authority, U.S. DEPT. OF LABOR (Nov. 21,
2005), https://www.archives.gov/files/records-mgmt/rcs/schedules/departments/department-oflabor/rg-0174/n1-174-06-002_sf115.pdf. [cannot find if this is still the case or it is all paper now,
but it was once the practice].
107 Secretary of Labor, supra note 27 at 13073.

15

Department of Labor and shall observe
the provisions thereof, where pertinent,
in its decisions.”108
Miscellaneous

[none]

Miscellaneous
Alternative Dispute
Resolution (ADR)

ADR is available for some cases that
qualify.109

Participation of Appellate
Body in Agency Decisions
on Judicial Review

The Board does not participate. “The Solicitor
of Labor shall have the responsibility for
representing the Secretary, the Deputy
Secretary, and other officials of the
Department and the Board in any
administrative or judicial proceedings
involving agency decisions issued [. . .]
including representing officials of the
Department before the Board.”110

Role and Participation of
Appellate Body in Writing
Rules

The Board does not participate in
rulemaking. It is expressly forbidden from
passing judgment on regulations.111

Miscellaneous

[none]

108 Id.
109 U.S. Dep’t of Labor, Alternative Dispute Resolution, U.S. DEP’T OF LABOR (last visited Oct. 5,

2019), https://www.dol.gov/general/topic/labor-relations/adr.
110 Secretary of Labor, supra note 27 at 13074.
111 Id. at 13073.

16

PUBLICLY AVAILABLE CASE STATISTICS
There is no public repository of case statistics for the Administrative
Review Board, but all of their cases are publicly available and able to be
condensed into a repository by an outside actor. In Fiscal Year 2013, ACUS
completed a case statistics chart for the ARB. ARB filed/opened 106 cases,
decided/closed 110 cases, and 108 cases were left pending by the end of the
year.112
TREATISES AND SCHOLARSHIP OF NOTE113
Debra S. Katz, Emerging Issues in Whistleblower Law and Retaliation, 63
PRACTICAL LAW. 37 (2017) (discussing ARB whistleblower cases and the change
in whistleblower law prompted by the Board).
EMPLOYER’S GUIDE TO THE FAIR LABOR STANDARDS ACT ¶ 946 (Susan Prince
ed., Oct. 2019).114

112 The Admin. Conference of the United States, Caseload Statistics, Admin. Conference of the

United States (last visited Oct. 5, 2019), https://acus.law.stanford.edu/reports/caseload-statistics.
(ARB is number 55 when “appellate level procedures” is selected in the “adjudication level”
dropdown menu.)
113 There is a scant amount of literature on the Administrative Review Board. Most of the articles
that mention the ARB have to do with whistleblower laws. Included is a recent and
comprehensive law review article on the topic. Beyond that, there was one other good secondary
source, a treatise.
114 Contains a good but short discussion of the ARB in a certain area of employment law.

17

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
APPENDIX G
Board of Veterans’ Appeals:
Review of Board of Veterans’ Appeals Decisions in Veterans Benefits
Cases
INTRODUCTION
Congress created the Board of Veterans’ Appeals (BVA or Board) in its
1958 recodification of what is now the Department of Veterans Affairs (VA).1 The
BVA’s purpose is to adjudicate appeals from decisions made by one of the VA
Regional Offices (RO).2 Until 1988, the BVA was the last resort for veterans’
appeals; Congress has since allowed for judicial review in the United States
Court of Appeals for the Federal Circuit under the Veterans Judicial Review Act.3
And unlike most agencies, the Administrative Procedure Act still does not apply
to the VA.4
Adjudicative proceedings begin when a veteran submits a claim for
compensation at an RO or medical facility. If the veteran is denied or unsatisfied
with the RO decision, she can file a Notice of Disagreement (NOD) to appeal the
decision. The two most common reasons for appealing a RO decision are
1 PL 85-857, September 2, 1958, 72 Stat. 1105 (Act). The Board was originally established under

Executive Order 6230 in 1933. Id., at 39. As with much of what is now the Department of
Veterans Affairs, the history of the agency is a complicated combination of different programs
designed to provide benefits to veterans and their survivors. See James D. Ridgway, The Veterans'
Judicial Review Act Twenty Years Later: Confronting the New Complexities of the Veterans
Benefits System, 66 N.Y.U. ANN. SURV. AM. L. 251, 253 (2010) (“During this 200-year period,
various offices within the Departments of War, the Interior, and the Treasury made decisions on
veterans benefits before VA was created in 1921 . . . .”). It was not until 1988, through the
Department of Veterans Affairs Act, that the agency received its modern Cabinet status, going
from the “Veterans Administration” to the “Department of Veterans Affairs.” PL 100–527,
October 25, 1988, 102 Stat 2635.
2 Recovering an Institutional Memory: The Origins of the Modern Veterans’ Benefits System from
1914 to 1958, 5, https://www.bva.va.gov/docs/VLR_VOL5/Ridgway.pdf.
3 Veterans' Judicial Review Act, PL 100–687 (S 11), PL 100–687, November 18, 1988, 102 Stat
4105
4 5 U.S.C. §§ 551–59, 701–06 (West).

(1) denial of benefits for a disability believed to be related to service, or
(2) believing a disability is more severe than rated by the VA.5 Once the RO has
reviewed the NOD, it will craft a Statement of the Case (SOC) and mail its
decision to the veteran. If the veteran is still unsatisfied, she may file a
Substantive Appeal with the BVA. At the veteran’s option, a hearing may then be
held in front of a Veterans Law Judge (VLJ). The BVA will then mail the veteran
its decision either granting, remanding, or denying the issue. If the veteran is
still unsatisfied once the BVA has made its decision, she has two options. She
may at any time either ask the BVA to reconsider or file an appeal to the United
States Court of Appeals for Veterans Claims,6 an Article I court.7
Only the veteran may appeal decisions—the Secretary of Veterans Affairs
(Secretary) is prohibited from doing so by Congress.8 Final BVA decisions usually
consist of a “decision and order” that either grants, remands, or denies the issue.
A BVA order is then implemented by the RO, if necessary.
CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
Governing Law
Procedural Law

Appellate procedures are governed by the
C.F.R.—codified procedural rules.9
Veterans that submit claims for benefits
under Veterans’ Administration laws have
the burden of submitting evidence “sufficient
to justify a belief by a fair and impartial
individual that the claim is well grounded.”10

5 Overview of VA Appeals Process 3, https://www.bva.va.gov/docs/Pamphlets/How-Do-I-Appeal-

Booklet--508Compliance.pdf.
6 Id. at 12. While the appeal from the BVA to the Court of Appeals for Veterans Claims concludes
the appeals process within the VA, decisions made by the Court of Appeals for Veterans Claims
may then be appealed to the United States Court of Appeals for the Federal Circuit. 38 U.S.C.A. §
7292(b)(1) (West). And finally, decisions made by the United States Court of Appeals for the
Federal Circuit can be reviewed by the Supreme Court of the United States. 28 U.S.C.A. § 1254
(West).
7 38 U.S.C.A. § 7251 (West).
8 38 U.S.C.A. § 7252 (West).
9 38 C.F.R. § 20.
10 PL 100–687 (S 11), PL 100–687, November 18, 1988, 102 Stat 4105.

2

The VA must assist a claimant in developing
the pertinent facts and grant “every benefit
that can be supported in law” while
protecting the Government’s interests.11
Reasonable doubt on any point, “will be
resolved in favor of the claimant.”12
The Secretary must provide the claimant
with timely notice of the decision. The notice
must explain the decision and the procedure
for obtaining review of the decision. 13
Substantive Law

All questions of law and fact necessary to a
decision by the Secretary of Veterans Affairs
affecting the provision of benefits to veterans
or their dependents or survivors are subject
to review on appeal. Appeals are adjudicated
by the Board of Veterans' Appeals.14
The Board’s jurisdiction extends to all
questions of law and fact decided by the
Secretary that affect the provision of benefits
to veterans or the dependents or survivors of
veterans.15
The Board’s principal functions are to
consider appeals, conduct hearings, evaluate
the evidence, and make decisions on the
appeals.16
The Board is responsible for making final
decisions on the appeals for Veterans’
benefits and services that come through the
Veterans Benefits Administration, Veterans
Health Administration, National Cemetery

11 38 C.F.R. § 3.103.
12 38 C.F.R. § 3.102.
13 38 U.S.C.A. § 5104 (West).
14 38 C.F.R. § 20.104.
15 38 U.S.C.A. § 511, 7104 (West).
16 38 C.F.R. § 20.103.

3

Administration, and the Office of General
Counsel (OGC).17
Miscellaneous

BVA is required to proceed through the
docket in numeric order but can advance
cases involving interpretations of law of
general application that affect other claims,
where the appellant is seriously ill or is
under severe financial hardship, or when
other sufficient cause is shown.18
The Secretary must provide the claimant
with “any medical or lay evidence, not
previously provided to the Secretary that is
necessary to substantiate the claim.”19

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
Appealable

The Board reviews decisions of local VA
offices that veterans have chosen to appeal by
filing a Notice of Disagreement (NOD).20

Nature of Hearing-Level
Proceedings

VA regional office hearings can occur predetermination or post-determination. Postdetermination hearings can be conducted in
connection with either legacy appeal cases, or
proposed reductions or terminations when
the claimant or beneficiary requested a predecisional hearing in an untimely manner.21
VA proceedings are ex parte (nonadversarial).22

17 2019 VA Functional Organization Manual Version 5 269, https://www.va.gov/FOM-5-Final-

July-2019.pdf.
18 38 U.S.C.A. § 7107 (West).
19 38 U.S.C.A. § 5103 (West).
20 38 U.S.C.A. § 7105 (West).
21

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/
en-US/portal/554400000001018/content/554400000014080/M21-1,-Part-I,-Chapter-4----RegionalOffice-(RO)-Hearings#1
22 38 C.F.R. § 3.103(a).

4

Hearings occur at the VA field office with
original jurisdiction over the claim, or the
properly equipped VA office nearest to the
claimant. One or more VA employees with
“original determinative authority” will
conduct the hearing, as well as establish and
preserve the record.23
The VA employees conducting the hearing
are responsible for fully explaining the issues
to the claimant and suggesting that the
claimant submit evidence which would help
the claimant’s position but may have been
overlooked.24
The hearing is meant to give the claimant an
opportunity to submit any evidence
(including witnesses) she considers relevant,
and submit any arguments or points of
contention she considers pertinent. The
claimant must be present to submit evidence,
and witnesses must be present to testify. All
testimony is under oath or affirmation.25
Nature of Hearing-Level
Decision

VA rating agency decisions are binding on all
VA field offices “as to conclusions based on
the evidence on file at the time VA issues
written notification.”26
A finding favorable to the claimant is binding
on all subsequent adjudicators, unless
rebutted by evidence showing “clear and
mistakable error.”27

Transfer of Case to
Appellate Body After
Hearing-Level Decision

First, the claimant must file a Notice of
Disagreement (NOD) within one year of
original decision.28 Then, the agency of
original jurisdiction (AOJ) reexamines the

23 38 C.F.R. § 3.103.
24 38 C.F.R. § 3.103(d)(2).
25 38 C.F.R. § 3.103(d)(2).
26 38 C.F.R. § 3.104(a).
27 38 C.F.R. § 3.104(c).
28 38 U.S.C.A. § 7105(a)-(b)(1) (West).

5

claim and provides the claimant with an
explanatory Statement of the Case (SOC). 29
The SOC will include information on the
right to file a Substantial Appeal.30 If the
claimant then files a timely Substantive
Appeal, the AOJ “will certify the case to the
Board of Veterans’ Appeals.”31
Miscellaneous

At any time after a decision is finalized, the
claimant may request, or the VA may
initiate, a review of the decision for “clear
and unmistakable error,” and if such error is
established, the decision is reversed or
amended.32

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

RO decisions are reviewed by the VBA, which
can then be appealed to the Court of Appeals
for Veteran’s Claims—another Article I court
but which is outside the Department of
Veterans Affairs.33 Decisions appealed from
the Court of Veteran’s Claims can then be
appealed to the United States Court of
Appeals for the Federal Circuit.34 The
Secretary may not seek review of a decision.35

29 38 C.F.R. § 19.26(a), (d); Overview of VA Appeals Process 6,

https://www.bva.va.gov/docs/Pamphlets/How-Do-I-Appeal-Booklet--508Compliance.pdf..
30 38 C.F.R. § 19.30.
31 38 C.F.R. § 19.35.
32 38 C.F.R. § 3.105(a)(1). Clear and unmistakable error “is the kind of error, of fact or of law, that
when called to the attention of later reviewers compels the conclusion, to which reasonable minds
could not differ, that the result would have been manifestly different but for the error. . . .
Generally, either the correct facts, as they were known at the time, were not before VA, or the
statutory and regulatory provisions extant at the time were incorrectly applied.” 38 C.F.R. §
3.105(a)(1)(i).
33 38 U.S.C.A. § 7251 (West); Board of Veterans’ Appeals, Appeals Modernization 2019 slide 4,
https://www.bva.va.gov/docs/Decision_Review_Process_Slides.pdf..
34 “The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction to
review and decide any challenge to the validity of any statute or regulation or any interpretation
thereof brought under this section, and to interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” 38 U.S.C.A. § 7292 (West).
35 38 U.S.C.A. § 7252 (West).

6

Legal Status of Reviewing
Authority(ies)

The Board is the agency’s final decisionmaking authority.36

Miscellaneous

The Board consists of Veterans Law Judges
(VLJs), not Administrative Law Judges
(ALJs), which some argue has contributed to
the disfunction within the VA’s system.37

Institutional Attributes of Appellate/Reviewing Authority(ies)
Number of Members

The Board consists of a Chairman, a Vice
Chairman, and such other members as are
necessary for the Board to function
properly.38 At the end of Fiscal Year 2018,
there were ninety-two members of the Board,
twenty of which were acting members.39

Qualification Requirements

Each Board member must be a member in
good standing of the bar of a State.40

Party Affiliation
Requirement in
Appointment

None

Method of Appointment

The Chairman is appointed by the President
with the advice and consent of the Senate.41
The Vice Chairman and other Board
members are appointed by the Secretary of
Veterans Affairs, with the President’s
approval, based upon the Chairman’s
recommendations.42

36 See Board of Veterans’ Appeals, Appeals Modernization 2019 slide 4,

https://www.bva.va.gov/docs/Decision_Review_Process_Slides.pdf.
37 Robin J. Artz, What Veterans Would Gain From Administrative Procedure Act Adjudications,
THE FEDERAL LAWYER 14 (August 2015), http://www.fedbar.org/Resources_1/Federal-LawyerMagazine/2015/August/Columns/Focus-on-Veterans-and-Military-Law.aspx?FT=.pdf.
38 38 U.S.C.A. § 7101 (West).
39 2018 Report 26
40 38 U.S.C.A. § 7101A (West).
41 “The Chairman shall be appointed by the President, by and with the advice and consent of the
Senate, for a term of six years. The Chairman shall be subject to the same ethical and legal
limitations and restrictions concerning involvement in political activities as apply to judges of the
United States Court of Appeals for Veterans Claims.” 38 U.S.C.A. § 7101 (West).
42 38 U.S.C.A. § 7101A (West).

7

Term of Appointment

The Chairman serves a six year term, and
can be reappointed.43
Board members are appointed for three-year
terms, with a performance review after the
third year.44

Statutory Removal
Protections

The Chairman may only be removed by the
President on certain grounds, such as
misconduct. The removal must be preceded
by “notice and opportunity for hearing.”45

Location within Agency;
Basis of Legal Authority

The Board is under the administrative
control and supervision of the Chairman, who
is directly responsible to the Secretary.46

Authority to Delegate to
Subunit(s); Designating
Official and Process

The Chairman may assign a proceeding
before the Board to an individual member of
the Board (other than the Chairman), or to a
panel of three or more Board members.47

Quorum Requirement

[none found]

Authority and Function of
Appellate Authority’s Head

In addition to the assigning authority
discussed above, after the end of each fiscal
year the Chairman must prepare a report on
the activities of the Board, noting the
projected activities of the Board for the fiscal
year during which the report is prepared and
the next fiscal year.48

Internal Management
Structure of Appellate
Authority

The Chairman heads a three-member panel
that reviews the performance of Board
members.49

43 38 U.S.C.A. § 7101(b) (West).
44 38 U.S.C.A. § 7101A (West).
45 38 U.S.C.A. § 7101 (West).
46 38 U.S.C.A. § 7101 (West).
47 38 U.S.C.A. § 7102 (West).
48 38 U.S.C.A. § 7101 (West).
49 38 U.S.C.A. § 7101A(c)(1)(A) (West).

8

This process determines whether members
will have their status renewed. If the
member does not meet the standards, the
chairman can either conditionally recertify
the member for no longer than one year or
recommend to the Secretary that the member
be noncertified.50
Miscellaneous

Board members may only serve in an active
status for 270 days per year.51
During the 2018 Fiscal Year, the Board
issued on average 341.2 decisions per work
day.52

Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

Claimants may appeal a decision of the AOJ
to the Board as a matter of right. 53

How Appeal Initiated

First, the claimant must file a Notice of
Disagreement (NOD).55 Then, the agency of
original jurisdiction (AOJ) reexamines the
claim and provides the claimant with an
explanatory Statement of the Case (SOC). 56
The claimant may then file a Substantive
Appeal, and the AOJ will certify the case to
the Board.57 The claimant’s appeal must
identify the decision and issue(s) being
appealed, and must state whether the
claimant wants a Board hearing, and/or

Claimants may appeal a decision of the
Board to the Court of Appeals for Veterans
Claims as a matter of right.54

50 38 U.S.C.A. § 7101A(c)(3)(A),(B) (West).
51 38 U.S.C.A. § 7101 (West).
52 FY 2018 27
53 38 U.S.C.A. § 7104(a) (West); 38 C.F.R. § 20.200.
54 See 38 U.S.C.A. § 7261(a) (West).
55 38 U.S.C.A. § 7105(a)-(b)(1) (West).
56 38 C.F.R. § 19.26(a), (d); Overview of VA Appeals Process 6,

https://www.bva.va.gov/docs/Pamphlets/How-Do-I-Appeal-Booklet--508Compliance.pdf..
57 38 C.F.R. § 19.35.

9

whether the claimant wants to submit
additional evidence.58
Time For Appealing

The Notice of Disagreement must be filed
within one year of the original decision. 59
Questions of timeliness will be decided by the
Board60
A notice of appeal to the Court of Appeals for
Veterans Claims must be filed with the Court
within 120 days of the Board’s decision.61

If No Appeal Taken from
Hearing Officer’s Decision

Once the time for filing a Notice of
Disagreement expires, the decision becomes
final.62

If Appeal Taken

A claimant’s appeal to the Board is placed on
one of the Board’s two dockets based on
whether a Board hearing is requested.63
Cases proceed in regular order, but may be
advanced for cause.64

Review of Decisions on
Own Initiative (Without
Request of a Party)

The Board may review a case on its own
volition to determine whether there was a
clear and unmistakable error.65

Miscellaneous

[none]

Appellate Authority’s Procedures
Record on Review

If the appellant does not request to submit
additional evidence or request a hearing,
then the record on review shall consist only of
the evidence on the record at the time of the
original decision.66

58 38 C.F.R. § 20.202.
59 38 U.S.C.A. § 7105(b)(1) (West).
60 38 U.S.C.A. § 7105(b)(1)(c) (West).
61 38 U.S.C.A. § 7266 (West).
62 38 C.F.R. § 20.302(a).
63 38 U.S.C.A. § 7107(a)(3) (West).
64 38 U.S.C.A. § 7107(a)(4)-(b) (West).
65 38 U.S.C.A. § 7111(c) (West).
66 38 U.S.C.A. § 7113(a) (West).

10

If the appellant requests a Board hearing,
then in addition to the evidence on the record
at the time of the original decision, the record
on review will also include evidence
submitted by the appellant to the Board, and
any evidence the appellant submits to the
Board within 90 days following the Board
hearing.67
If the appellant does not request a Board
hearing but does request to submit additional
evidence, then in addition to the evidence on
the record at the time of the original decision,
the record on review will also include
evidence submitted with the NOD, and
evidence submitted within 90 days following
the Board’s receipt of the NOD.68
For the Board to consider additional
evidence, the claimant must request a Board
hearing or an opportunity to submit
additional evidence on the Notice of
Disagreement.69
To modify a NOD, the appellant must
complete a new NOD and submit it within
one year of the original decision, or within 60
days of the Board receiving the original
NOD.70
Submissions by Parties in
Support of Appeal

If the appellant requests a hearing, any
additional evidence must be submitted by the
appellant at the Board hearing, or within 90
days following the hearing. If the appellant
requests to submit additional evidence but
does not request a hearing, then the
appellant may submit the additional evidence

67 38 U.S.C.A. § 7113(b)(1-2) (West).
68 38 U.S.C.A. § 7113(c)(1-2) (West).
69 38 C.F.R. § 20.202.
70 38 C.F.R. § 20.202.

11

with the NOD, or within 90 days following
the NOD.71
The NOD must conform with the standard
form requirements prescribed by the
Secretary.72
In cases of simultaneously contested claims,
the substance of the NOD is sent to the other
party(ies) in interest, and they have thirty
days to file a brief or argument in response to
the NOD.73
Issue Preservation

The Board liberally construes the appellant’s
arguments for purposes of determining
whether they raise an issue on appeal, but
the appeal must allege a specific error of fact
or law in the determination being appealed. 74
In legacy cases, the failure to contest a
specific fact contained in the SOC will not be
viewed as agreement.75

Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

The claimant decides in the NOD whether
the record on appeal will be open or closed,
based on whether the claimant requests a
hearing and/or an opportunity to provide
additional evidence.76

Standard of Review

The Board reviews appealed decisions de
novo.77
On a motion to revise from a party or the
Board itself, the Board may review and revise
its determination based on clear and
unmistakable error.78

71 38 U.S.C.A. § 7113 (West).
72 38 C.F.R. § 20.202.
73 38 U.S.C.A. § 7105A (West).
74 38 C.F.R. § 20.202; 38 C.F.R. § 19.22.
75 38 C.F.R. § 19.22.
76 38 U.S.C.A. § 7113 (West).
77 38 C.F.R. § 20.300.
78 38 C.F.R. § 20.1400.

12

Commented [NC1]: I believe this is referring to a different
process, through which the agency of original jurisdiction
reviews supplemental claims under 38 U.S.C. § 5108, in
which case it could confuse the reader to include the
information here.

Consultation with Staff and The Board may consult with the General
Other Agency Officials
Counsel of the Department of Veterans
Affairs to obtain an opinion on legal
questions concerning an appeal.79
Oral Argument

The appellant may request a hearing in the
NOD.80 The hearing being ex parte, only the
appellant and appellant’s counsel may
appear and present argument.81

Amicus Participation;
Intervention; etc.

[none found]

Public Access to Hearings

It is not clear whether hearings are open to
the public, but all Board hearings are
recorded, and retained for 12 months.82

Staff’s Role in Writing
Decisions

Staff attorneys review the record, conduct
research, and prepare draft decisions for the
VLJs.83

Deadlines for Decision

[none found]

Nature of Decision

Board decisions state the issues on appeal,
and include the Board’s findings, conclusions,
and reasoning, on all material issues of law
and fact. If any evidence was not considered
due to untimeliness the decision will say so,
and inform the appellant of the options
available for having that evidence reviewed.
The decision is accompanied by an order
denying or granting the benefits sought, and
dismissing or remanding the case.84

Reconsideration,
Rehearing, etc.

The Chairman may unilaterally order
reconsideration or do so upon a claimant’s
motion. The decision is then reconsidered by

79 38 C.F.R. § 20.804(a).
80 38 U.S.C.A. § 7105(a), (b)(3)(A) (West).
81 38 C.F.R. § 20.701.
82 38 C.F.R. § 20.712.
83 2019 VA Functional Organization Manual Version 5 273, https://www.va.gov/FOM-5-Final-

July-2019.pdf.
84 38 U.S.C.A. § 7104(d) (West).

13

an enlarged panel of judges, excluding any
judge that took part in the decision at issue.
The Board may also correct obvious errors on
its own motion.85
The Board may reconsider a decision based
on (1) an obvious error of fact or law, (2) new
evidence, or (3) allegations that false or
fraudulent evidence by the appellant
materially influenced the Board’s decision to
grant benefits.86
A motion for reconsideration may be filed at
any time.87 If the motion for reconsideration
is allowed, and the original appeal included a
hearing, then the appellant may request a
rehearing. However, a rehearing requested
solely for the purposes of presenting
argument will not be granted without good
cause.88
Revision requires clear and unmistakable
error.89
Appeals may then be made to the United
States Court of Appeals for Veterans Claims,
and then the Federal Circuit. 90
Miscellaneous

The Board is bound by Department
regulations, the Secretary’s instructions, and
the precedent opinions of the Department’s
chief legal officer.91
Decisions issued starting January 1, 1992,
are available on the Board’s website with
personally identifiable information
redacted.92

85 38 U.S.C.A. § 7103 (West).
86 38 C.F.R. § 20.1001.
87 38 C.F.R. § 20.1002(b).
88 38 C.F.R. § 20.1003.
89 38 U.S.C.A. § 7111 (West).
90 38 U.S.C.A. § 7252 (West); 38 U.S.C.A. § 7292 (West).
91 38 U.S.C.A. § 7104 (West).
92 38 C.F.R. § 20.1301.

14

Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard

No interlocutory appeals appear to exist at
the agency level.

Assignment of Cases

Appeals may be assigned to an individual
VLJ or a three-member panel of the Board.93

Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

N/A

Aggregation

[none found]

Miscellaneous

The Board will stay reconsideration if the
Board decision in question has been appealed
to the Court of Appeals for Veterans
Claims.94
Hearings may be held via teleconference. 95

Form of Decisions, Publication, and Precedential Status
Form of Decision

The Board issues opinions consisting of an
Order, a Finding of Facts, Conclusions of
Law, and Reasons and Bases for Findings
and Conclusion. It also includes a general
statement of evidence not considered, when
applicable.96

Signed or Per Curiam

Signed.

Dissents

There does not appear to be any provision for
dissents.

93 38 U.S.C.A. § 7102 (West).
94 38 C.F.R. § 20.1410.
95 38 C.F.R. § 20.702.
96 38 U.S.C.A. § 7104(d) (West).

15

Publication

The Board mails a copy of its decision to the
claimant or the claimant’s representative. 97

Where Published

Decisions are available on the Board’s
website.98

Precedential Status

Board decisions are only binding on the
specific case decided but they may still be
considered when deciding other cases.99

Miscellaneous

[none]

Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below
Guidance Documents
Governing Hearing-Level
Adjudicators

[none found]

Feedback to Adjudicators

[none found]

Quality-Assurance Reviews
and Related Mechanisms

The Chief Counsel for the Board is in charge
of quality review.100

Participation of Appellate
Body in Substantive
Rulemaking

[none found]

Miscellaneous

[none]

Miscellaneous

97 38 U.S.C.A. § 7104 (West).
98 38 C.F.R. § 20.1301; https://www.index.va.gov/search/va/bva.jsp.
99 38 C.F.R. § 20.1303.
100 U.S. Department of Veterans Affairs, Appeals Modernization, at 5, (created 2019),

https://www.bva.va.gov/docs/Decision_Review_Process_Slides.pdf; 2019 VA Functional
Organization Manual Version 5 272, https://www.va.gov/FOM-5-Final-July-2019.pdf.

16

Alternative Dispute
Resolution (ADR)

There is no codified process for ADR, but
some suggest ADR could reduce the VA’s case
backlog.101

Participation of Appellate
Body in Agency Decisions
on Judicial Review

[none found]

Role and Participation of
Appellate Body in Writing
Rules
Miscellaneous

[none found]
[none]

101 Richard M. Rosenbleeth, Why Not ADR? Burdened by Backlogs, the System That Deals with

Veterans' Disability Claims Needs Help, 25 ALTERNATIVES TO HIGH COST LITIG. 131, 132 (2007).

17

PUBLICLY AVAILABLE CASE STATISTICS
In Fiscal Year 2018, the BVA offered 24,046 hearings, holding 16,424.102
71% of these hearings were held by video.103 62,832 cases were formally appealed
to the Board.104 There were 137,383 cases pending at the end of the 2018 Fiscal
Year, down from 153,513 cases pending at the beginning of the year. 105
Annual reports to Congress:
https://www.bva.va.gov/Chairman_Annual_Rpts.asp.
TREATISES AND SCHOLARSHIP OF NOTE
Norman G. Cooper & David W. Engel, November 18, 1988: A Jurisdictional
Bright Line in Veterans Law?, 5 FED. CIRCUIT B.J. 91 (1995) (discussing changes
resulting from the enactment of the VJRA).
James D. Ridgway, The Veterans' Judicial Review Act Twenty Years Later:
Confronting the New Complexities of the Veterans Benefits System, 66 N.Y.U.
Ann. Surv. Am. L. 251, 253 (2010) (discussing the changes caused by the
implementation of judicial review via the VJRA).
Jeremy Bailie, When Time Is of the Essence: Reverse, Don’t Remand, 8
VETERANS L. REV. 1 (2016) (following veterans through the appeals process to
highlight the system’s flaws and strengths and arguing that in order to save
time, reviewing courts should reverse, rather than remand, the Board).
Kenneth M. Carpenter, Why Paternalism in Review of the Denial of
Veterans Benefits Claims Is Detrimental to Claimants, 13 KAN. J.L. & PUB. POL'Y
285, 288 (2004) (comparing the constraints of veterans’ benefits with Social
Security disability claimants’ rights and arguing that the “continuation of
paternalism after the initial denial of benefits, as part of the administrative
appellate review process, is detrimental to the interest of veterans and other
eligible claimants).
Yelena Duterte, Decision, Appeal, Repeat How Va Can Limit Wait Times,
Error, and Red Tape Through Settlements, 68 SYRACUSE L. REV. 407 (2018)
(arguing that the backlog of cases can be fixed by creating a settlement
mechanism).

102 FY 2018 Report 9
103 FY 2018 Report 9
104 2018 Report 22
105 2018 Report 22

18

Stacey-Rae Simcox, Thirty Years of Veterans Law: Welcome to the Wild
West, 67 U. KAN. L. REV. 513 (2019) (discussing changes in the way the VA
processes veterans’ claims)
James D. Ridgway et al., “Not Reasonably Debatable”: The Problems with
Single-Judge Decisions by the Court of Appeals for Veterans Claims, 27 STAN. L.
& POL’Y REV. 1 (2016) (examining the Court of Appeals for Veterans’ Claims and
its single-judge decision-making authority).
James T. O’Reilly, Burying Caesar: Replacement of the Veterans Appeals
Process is Needed to Provide Fairness to Claimants, 53 ADMIN. L. REV. 223 (2001)
(arguing for a Social Security appeals-like system for veterans’ benefits).
Gary E. O’Connor, Rendering to Caesar: A Response to Professor O’Reilly,
53 ADMIN. L. REV. 343, 347 (2001) (arguing against a Social Security appeals-like
system for veterans’ benefits).
Rory E. Riley, Simplify, Simplify, Simplify—An Analysis of Two Decades of
Judicial Review in the Veterans’ Benefits Adjudication System, 113 W. VA. L. REV.
67, 70 (2010) (arguing that “the VA should eliminate one of its many levels of
review and utilize attorneys at the RO level by regionalizing the BVA”).
Lawrence B. Hagel & Michael P. Horan, Five Years under the Veterans’
Judicial Review Act: The VA is Brought Kicking and Screaming into the World of
Meaningful Due Process, 46 ME. L. REV. 43 (1994) (looking at the veteran’s
perspective on the veterans benefit process before and after the passage of the
VJRA).
Charles L. Cragin, The Impact of Judicial Review on the Department of
Veterans Affairs’ Claims Adjudication Process: The Changing Role of the Board of
Veterans’ Appeals, 46 ME. L. REV. 23 (1994).
William F. Fox, Jr., Deconstructing and Reconstructing the Veterans
Benefits System, 13 KAN. J.L. & PUB. POL’Y 339 (2003) (proposing a simpler,
streamlined review process for veterans appeals which would eliminate the BVA
and replace it with administrative law judges).
Jeffrey Parker, Two Perspectives on Legal Authority Within the
Department of Veterans Affairs Adjudication, 1 Veterans L. Rev. 208 (2009).
Karl Oakes, AMERICAN JURISPRUDENCE, SECOND EDITION, Veterans and
Veterans’ Laws (2019)
Anne E. Melley, 33 FED. PROC., L. ED. Ch. 79
18 Fed. Proc. Forms Ch. 68 Veterans and Veterans’ Laws
19

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
APPENDIX H
Environmental Protection Agency Environmental Appeals Board:
Enforcement and Permit Appeals Under Environmental Statutes
INTRODUCTION
President Richard Nixon established the Environmental Protection Agency
(EPA) by presidential directive in 1970. The directive transferred to the new
agency functions previously performed under various statutes by the Department
of Agriculture; Department of Health, Education, and Welfare; Department of the
Interior; Council on Environmental Quality; and Atomic Energy Commission.1
Today, the EPA administers all or part of more than two dozen laws,
including the Clean Air Act (CAA); Clean Water Act (CWA); Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA);
Emergency Planning and Community Right to Know Act (EPCRA); Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA); Marine Protection,
Research, and Sanctuaries Act (MPRSA); Resource Conservation and Recovery
Act (RCRA); Solid Waste Disposal Act (SDWA); Safe Drinking Water Act
(SDWA); and Toxic Substances Control Act (TSCA).2
Adjudications under those statutes include permit and enforcement
decisions. A Director (typically a Regional Administrator) issues the initial
decision in permit cases.3 A Presiding Officer (either an administrative law judge
(ALJ) or Regional Judicial Officer (RJO)) issues the initial decision in
enforcement proceedings.4
1 Reorganization Plan No. 3 of 1970, 35 Fed. Reg. 15,623 (Oct. 6, 1970).
2 Envtl. Protection Agency, Laws & Regulations, https://www.epa.gov/laws-regulations/laws-and-

executive-orders (last visited Mar. 7, 2020).
3 See Modernizing the Administrative Exhaustion Requirement for Decisions and Streamlining
Procedures for Permit Appeals, 84 Fed. Reg. 66,084, 66,087 (Dec. 3, 2019).
4 RJOs act under a delegation from Regional Administrators. An RJO must be “an attorney who is
a permanent or temporary employee of the Agency or another Federal agency and who may
perform other duties within the Agency.” RJOs are prohibited from serving as Presiding Officers

Before 1992, the EPA Administrator was legally responsible for deciding
appeals from initial permit and enforcement decisions. Through an internal
manual, the Administrator delegated most appellate responsibility to two
headquarters Judicial Officers. Although the Administrator retained the
authority to decide certain appeals, he or she ordinarily decided those cases
based on a Judicial Officer’s recommendations.5
During this period, Congress expanded the EPA’s authority to impose civil
penalties administratively. The agency also faced a growing caseload of permit
challenges. For these reasons, and because the delegation of appellate decisionmaking authority through an internal agency manual had caused “considerable
confusion in the regulated community over the role of the Judicial Officers,” EPA
issued a rule in 1992 that established the three-member Environmental Appeals
Board (EAB) as a “permanent body with continuing functions.”6
The rule eliminated the position of Judicial Officer at EPA headquarters.
For both pragmatic and separation-of-functions reasons, the rule largely divested
the Administrator of any explicit adjudicative function, delegating nearly all final
appellate authority to the EAB.7 However, the Administrator recently affirmed
his “existing authority (derived from his or her statutory authority to issue the
permits in the first instance) to review or change any EAB decision” and
introduced an explicit mechanism by which the Administrator, through the
General Counsel, can “issue a dispositive legal interpretation in any matter
pending before the EAB or an any issue addressed by the EAB.”8
For any matter not expressly delegated by rule to the EAB, the
Administrator may direct the EAB to “provide advice and consultation, make
findings of fact and conclusions of law, prepare a recommended decision, or serve
as the final decisionmaker.”9 The EAB currently considers CERCLA cleanup cost

in any case in which they “performed prosecutorial or investigative functions” and in any case
involving a party concerning whom they “performed any functions of prosecution or investigation
within the 2 years preceding the commencement of a case.” RJOs are also barred from
prosecuting enforcement cases and “shall not be supervised by any person [other than the
Regional Counsel] who supervises the prosecution of enforcement cases.” 20 C.F.R. § 22.4(b).
5 Changes to Regulations to Reflect the Role of the New Environmental Appeals Board in Agency
Adjudications, 57 Fed. Reg. 5320, 5320 (Feb. 13, 1992).
6 Id. at 5322; see also Anna L. Wolgast, Kathie A. Stein & Timothy R. Epp, The United States’
Environmental Adjudication Tribunal, 3 J. CT. INNOVATION 185, 186 (2010); Edward E. Reich,
EPA’s New Environmental Appeals Board, NAT. RESOURCES & ENVT. 39, 39 (Spring 1994).
7 Changes to Regulations to Reflect the Role of the New Environmental Appeals Board in Agency
Adjudications, 57 Fed. Reg. at 5322.
8 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,651 (Aug. 21, 2020).
9 40 C.F.R. § 1.25(e)(2)(i).

2

reimbursement petitions at the Administrator’s direction and has undertaken
various other functions under special delegations.10
The EAB originally consisted of three members, called Environmental
Appeals Judges, designated by the Administrator.11 Due to a “significant
increase” in the EAB’s caseload in the 1990s, that number later grew to “no more
than four.”12 Judges currently fill three of the EAB’s four seats. They serve as “coequals” without a Chief Judge.13 Beginning in September 2020, each of the EAB’s
four seats will have a fixed, 12-year term.14
Today, the bulk of the EAB’s workload remains appeals from enforcement,
especially civil penalty, decisions issued (mostly) by ALJs, and permits issued
(mostly) by Regional Administrators. The EAB also processes other case types
cases, including Equal Access to Justice Act fee petitions and program fraud civil
remedy cases, which are beyond the scope of this study.15
In an enforcement case, the EAB’s final decision is the “consummation of
the agency’s decision-making process” and becomes effective 30 days after its
issuance.16 For permit cases, “final agency action occurs after administrative
review procedures before the EAB have been exhausted and the Regional
Administrator subsequently issues a final permit decision.”17 Except where the
EAB issues an order to a federal agency,18 there is no provision for appeal to the
Administrator. (However, nothing in the regulations “limits the Administrator’s
authority to review or change any EAB decision” sua sponte.19)
Parties who wish to challenge an EAB decision (or final permit following
an EAB decision) must instead seek review in federal court—in a district court or

10 THE ENVIRONMENTAL APPEALS BOARD PRACTICE MANUAL 4–5 (Aug. 2013) [hereinafter EAB

PRACTICE MANUAL].
11 Changes to Regulations to Reflect the Role of the New Environmental Appeals Board in Agency
Adjudications, 57 Fed. Reg. at 5320; Wolgast, supra note 6, at 186.
12 Changes to Regulations Concerning Membership of EPA’s Environmental Appeals Board, 63
Fed. Reg. 67,779 (Dec. 9, 1998).
13 EAB PRACTICE MANUAL, supra note 10, at 5; see also 40 C.F.R. § 22.31.
14 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,653, 51,656 (Aug. 21,
2020) (to be codified at 40 C.F.R. § 1.25(e)(5)).
15 EAB PRACTICE MANUAL, supra note 10, at 38–39, 60; see also 40 C.F.R. § 124.19(l).
16 EAB PRACTICE MANUAL, supra note 10, at 6 (quoting City of San Diego v. EPA, 242 F.3d 1097,
1101 (9th Cir. 2001)).
17 EAB PRACTICE MANUAL, supra note 10, at 6, 40; see 40 C.F.R. § 124.19(l)(2)(i)–(iii).
18 40 C.F.R. § 22.31(e); EAB PRACTICE MANUAL, supra note 10, at 33–35; CITIZEN’S GUIDE TO
EPA’S ENVIRONMENTAL APPEALS BOARD 28 (July 2018) [hereinafter CITIZEN’S GUIDE].
19 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,653 (Aug. 21, 2020) (to be
codified at 40 C.F.R. § 1.25(e)(2)(iii)).

3

court of appeals, depending on the statutory regime.20 Parties seek judicial
review in less than 10% of all cases.21
In its initial years, the EAB faced a significant backlog of cases awaiting
decision. During its first full fiscal year (FY), it took final action on 156 matters
and received 126 new matters.22 In its first four years, the EAB “handled more
than 500 matters and . . . issued more than 140 formal opinions.”23 In 2016,
Michael Asimow reported the EAB had considered roughly 600 appeals during
the previous 10 years, about 2/3 of them involving permit appeals and the
remainder involving enforcement actions.24 A recent study found “EAB actions
are 1.5 times more likely to come from permit appeals than penalty appeals.”25
It was predicted at the time of its creation that the EAB’s caseload and
jurisdiction would ebb and flow “as new programs develop and older programs
become more heavily delegated to the states.”26 Indeed, EAB has reportedly
experienced a decrease in its permit caseload as the EPA has progressively
delegated its permit functions to state and tribal authorities.27 A recent study
found a “clear shift” from TSCA, FIFRA, and RCRA cases in the EAB’s early
years to CWA and CAA cases more recently.28
CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
Governing Law
Procedural Law

EPA rules define two main procedural regimes:
the Consolidated Rules of Practice (or Part 22
Rules) and the Part 124 Rules.
The Consolidated Rules of Practice (CROP)
govern most enforcement and some permit cases.

20 See Reich, supra note 6, at 41.
21 Kelly Tzoumis & Emma Shibilski, Environmental Decision-Making Through Adjudicatory

Appeals in the United States, 5 PEOPLE: Int’l J. Soc. Sci. 846, 862 (2019); accord MICHAEL
ASIMOW, EVIDENTIARY HEARINGS OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT 147–48 (2019).
22 Reich, supra note 6, at 65.
23 Nancy Firestone & Elizabeth Brown, Ensuring the Fairness of Agency Adjudications: The
Environmental Appeals Board’s First Four Years, 2 Envtl. Law. 291, 293 (1996).
24 ASIMOW, supra note 21, at 147–48 (2019) (citing correspondence between EAB Judge Kathie
Stein and Michael Asimow).
25 Tzoumis¸supra note 21, at 856 (2019).
26 Reich, supra note note 6, at 65.
27 Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and
Streamlining Procedures for Permit Appeals, 84 Fed. Reg. 66,084, 66,086 (Dec. 3, 2019); see also
Reich, supra note note 6, at 41.
28 Tzoumis¸supra note 21, at 856.

4

They provide for trial-like procedures in
proceedings subject to the formal-hearing
provisions of the Administrative Procedure Act
(APA).29 The EAB may also “look to” the Federal
Rules of Civil Procedure “for guidance in
interpreting the CROP.”30
The CROP also apply in certain civil penalty
proceedings that are not subject to the APA’s
formal-hearing provisions, the main difference
being that an RJO rather than an ALJ serves as
the Presiding Officer in such cases.31
The Part 124 Rules prescribe comparatively
informal procedures. They govern most decisions
to issue, modify, revoke, reissue, or terminate a
federally issued permit.32 EPA revised the rules
in 2013 “to simplif[y] the review process and
promote judicial economy.” The revised rules
codified procedures previously found in EAB
precedent, standing orders, and guidance.33
Certain appeals are governed by other regulatory
and sub-regulatory regimes. These include CAA
enforcement and permit appeals, permit appeals
under EPA’s Acid Rain Program, FIFRA nonenforcement proceeding appeals, MPRSA ocean
dumping permit appeals, Noise Control Act
appeals, residential wood heater certification
appeals, and CERCLA reimbursement appeals.34
Substantive Law

The EAB decides appeals under all major
environmental statutes that EPA administers,
including the CAA, CWA, CERCLA, FIFRA,

29 Wolgast, supra note 6, at 188–90. See 40 C.F.R. § 22.1 for proceedings where the CROP apply.
30 EAB PRACTICE MANUAL, supra note 10, at 21–22.
31 40 C.F.R. § 22.51.
32 Wolgast, supra note 6, at 190–91.
33 Revisions to Procedural Rules To Clarify Practices and Procedures Applicable in Permit

Appeals Pending Before the Environmental Appeals Board, 78 Fed. Reg. 5281, 5282 (Jan. 25,
2013); see also EAB PRACTICE MANUAL, supra note 10, at 40.
34 EAB PRACTICE MANUAL, supra note 10, at 58–66; Aaron P. Avila, Mary Kay Lynch, Kathie A.
Stein, Mary Beth Ward & Catherine Malinin Dunn, The EPA’s Environmental Appeals Board at
Twenty-Five: An Overview of the Board’s Procedures, Guiding Principles, and Record of
Adjudicating Cases 3 n.7, 14–15 (2017) [hereinafter EAB at Twenty-Five].

5

Miscellaneous

MPRSA, RCRA, SDWA, SWDA, and TSCA.
Substantive law consists of those statutes and the
rules that implement them. EPA regulations are
mostly codified in title 40, chapter I, of the Code
of Federal Regulations.
The EAB publishes several guidance documents,
including A Citizens’ Guide to EPA’s
Environmental Appeals Board, the EAB Practice
Manual, Revised CERCLA 106(b) Guidance,
Consent Agreement and Final Order Procedures,
and Procedures for Quick Resolution of
Administrative Enforcement Cases. Two standing
orders govern electronic filing; a third governs
petitions for review of new CAA source review
permits. All are available on the EAB’s website.35

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
Appealable

The EAB reviews the initial decisions of
Presiding Officers in EPA-initiated enforcement
actions under the CAA, CERCLA, CWA, FIFRA,
MPRSA, SDWA, TSCA, and other statutes.36
The EAB also reviews permit decisions made
predominantly by EPA Regional Administrators
under the CAA, CWA, RCRA, and SDWA.37

Nature of Hearing-Level
Proceedings

CROP/Part 22 Rules. A hearing-level
proceeding commences when an EPA regional or
headquarters office files a complaint with a
Regional Hearing Clerk. A respondent risks
default if he or she does not file an answer within
30 days after service. Respondents also opt to
resolve many cases informally or through ADR.38

35 Environmental Appeals Board, https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/ (last visited

Mar. 7, 2020).
36 40 C.F.R. §§ 22.1, 22.50.
37 Modernizing the Administrative Exhaustion Requirement for Decisions and Streamlining
Procedures for Permit Appeals, 84 Fed. Reg. 66,084, 66,087 (Dec. 3, 2019); Wolgast, supra note 6,
at 190.
38 40 C.F.R. §§ 22.14, 22.15, 22.17; EAB at Twenty-Five, supra note 34, at 8–9.

6

A hearing takes places if the respondent requests
a hearing or the proceeding “presents genuine
issues of material fact.” The Presiding Officer
may also hold a hearing if he or she finds that the
respondent raised “issues appropriate for
adjudication.”39
The rules provide for a compulsory prehearing
exchange of information; define motions practice,
including motions for additional discovery; and
permit prehearing conferences.40
Presiding Officers “admit all evidence which is
not irrelevant, immaterial, unduly repetitious,
unreliable, or of little probative value.” Parties
may examine and cross-examine witnesses;
submit written witness testimony in appropriate
circumstances; object; and submit proposed
findings, conclusions and orders. Reporters
transcribe all hearings.41
Part 124 Rules. Lower-level permit proceedings
are comparatively informal. When a Director
(generally a Regional Administrator) tentatively
denies a permit application, prepares a draft
permit, or schedules a public hearing on a permit
application, he or she must give public notice.42
A public comment period follows, which lasts at
least 30 days (or 45 days in RCRA cases).43 Any
person may submit comments and request a
public hearing.44 In most cases, the Director must
hold a public hearing “whenever he or she finds,
on the basis of requests, a significant degree of
public interest in a draft permit(s)” and may hold
a public hearing “at his or her discretion,” for
instance when a hearing “might clarify one or
more issues involved in the permit decision.”

39 40 C.F.R. §§ 22.15, 22.21.
40 Id. §§ 22.16, 22.19.
41 Id. § 22.25.
42 Id. § 124.10(a)(1).
43 Id. § 22.27(c).
44 40 C.F.R. § 124.11.

7

If the Director grants a public hearing, the public
comment period will extend through the close of
the hearing and may be extended or reopened.45
At the hearing, any person “may submit oral or
written comments and data concerning the draft
permit.” The agency records or transcribes the
hearing. The recording or transcription is made
publicly available and becomes part of the
administrative record for decision.46
Nature of Hearing-Level
Decision

CROP/Part 22 Rules. The Presiding Officer
decides matters in controversy “upon a
preponderance of the evidence.”47 The Presiding
Officer issues an initial decision that explains
“findings of fact, conclusions regarding all
material issues of law or discretion.”
If appropriate, the Presiding Officer must also
explain “a recommended civil penalty
assessment, compliance order, corrective action
order, or Permit Action.” The Presiding Officer
determines the amount of the civil penalty based
on the evidence of record and any statutory and
regulatory guidelines.48
The Presiding Officer’s decision becomes final 45
days after service unless a party moves to reopen
the hearing or set aside a default order, a party
appeals the decision to the EAB, or the EAB
reviews the decision sua sponte.49
Part 124 Rules. When the Director issues a final
permit decision, he or she must explain any
changes to the draft permit and respond to all
“significant” comments.50

45 Id. §§ 124.12, 124.13, 124.14.
46 Id. § 124.12.
47 Id. § 22.24; EAB PRACTICE MANUAL, supra note 10, at 30–31.
48 40 CFR 22.27(a)–(b).
49 Id. § 22.27(c).
50 Id. §§ 124.15, 124.17.

8

Transfer of Case to
Appellate Body After
Hearing-Level Decision

CROP. The Regional Hearing Clerk forwards the
initial decision to the EAB. The EAB may review
the case on its own initiative but typically awaits
a party’s appeal.51
Part 124 Rules. The Regional Administrator
must file a certified index and relevant portions
of the administrative record with the Clerk of the
Board within 21 or 30 days after receiving service
that a person has petitioned for EAB review.

Miscellaneous

[none]

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

Reviewing authorities are the EAB and the EPA
Administrator. By rule, the Administrator has
delegated all (or nearly all) appellate adjudicative
functions to the EAB.
For any matter not expressly delegated to the
EAB, the Administrator may direct the EAB to
“provide advice and consultation, make findings
of fact and conclusions of law, prepare a
recommended decision, or serve as the final
decisionmaker.”52 The Administrator has
occasionally done so, for example with respect to
CERCLA reimbursement petitions.
Although nothing in the regulations “limits the
Administrator’s authority to review or change
any EAB decision,”53 there is generally no process
for review by the Administrator. There are
exceptions for cases in which a federal agency
requests it, a two-person EAB panel requires the
Administrator to break a tie vote, or a party
appeals a denied motion to disqualify an EAB
Judge.54

51 Id. §§ 22.27(a), 22.30.
52 Id. § 1.25(e)(2)(i).
53 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,653, 51,656 (Aug. 21,

2020) (to be codified at 40 C.F.R. § 1.25(e)(2)(iii)).
54 40 C.F.R. §§ 1.25(e)(1), 22.4(d)(1), 22.31(e).

9

Although the EAB may refer any matter to the
Administrator when it “deems it appropriate to
do so,”55 it was directed to do so “only in
exceptional circumstances.”56 As of 2010, the EAB
had “not yet encountered a case where use of this
authority was appropriate.”57
Although not acting as a separate level of review,
the Administrator may limit the EAB’s authority
to interpret a statute or regulation in a pending
case by directing the General Counsel to file a
written notice to the EAB providing a legal
interpretation of the applicable regulation
statute.58
Legal Status of Reviewing
Authority(ies)

The Administrator has statutory authority to
review enforcement and permit decisions. Since
1992, the Administrator has delegated most final
review authority to the EAB but retains
authority to review or change any EAB decision.59
Because no statute explicitly authorizes the EPA
Administrator to designate EAB Judges, at least
one commentator has questioned the Board’s
constitutionality following the Supreme Court’s
decision in Lucia v. SEC.60

Miscellaneous

[none]

Institutional Attributes of Appellate/Reviewing Authority(ies)
Number of Members

There are “no more than four Board Members.”61
Three Judges currently sit on the EAB.

55 Id. §§ 22.4(a), 124.2.
56 Changes to Regulations to Reflect the Role of the New Environmental Appeals Board in Agency

Adjudications, 57 Fed. Reg. 5320, 5320 (Feb. 13, 1992).
57 Wolgast, supra note 6, at 193.
58 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,653, 51,656 (Aug. 21,
2020) (to be codified at 40 C.F.R. § 1.25(e)(2)(iii)).
59 Id.
60 William Funk, Is the Environmental Appeals Board Unconstitutional or Unlawful?, 49 ENVTL.
L. REV. 737 (2019); see also Lucia v. SEC, 585 U.S. __, 138 S. Ct. 2044 (2018).
61 40 C.F.R. § 1.25(e)(1).

10

Qualification Requirements

An EAB Judge must be “a graduate of an
accredited law school and a member in good
standing of a recognized bar association of any
State or the District of Columbia.” He or she may
“not be employed by the Office of Enforcement,
the Office of the General Counsel, a Regional
Office, or any other office directly associated with
matters that could come before the [EAB].”62

Party Affiliation
Requirement in
Appointment

[none]

Method of Appointment

The Administrator designates EAB Judges.63

Term of Appointment

There were no terms of appointment for most of
the EAB’s history.64 In August 2020, the
Administrator amended the regulations to define
12-year terms for each of the EAB’s four seats. At
the end of each term, the Administrator may
renew a sitting member’s term or reassign him or
her to another position within EPA.65

Statutory Removal
Protections

There are no statutory removal protections
specific to EAB Judges. EAB Judges are, “by
custom,” career employees and members of the
Senior Executive Service.66

Location within Agency;
Basis of Legal Authority

The EAB is located in the headquarters-level
Office of Mission Support (OMS).67 It previously
was located in the Office of Administration and
Resources Management, and before that the
immediate Office of the Administrator.68

62 Id. § 1.25(e)(3).
63 Id. § 1.25(e)(1).
64 EAB at Twenty-Five, supra note 34, at 6.
65 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,652–53, 51,656 (Aug. 21,

2020) (to be codified at 40 C.F.R. § 1.25(e)(5)).
66 Id.; see also EAB PRACTICE MANUAL, supra note 10, at 5; EAB at Twenty-Five, supra note 34, at
6; Reich, supra note 6, at 40–41.
67 Organization Chart for the Office of Mission Support, https://www.epa.gov/aboutepa/
organization-chart-office-mission-support-oms (last visited Mar. 8, 2020).
68 Reich, supra note 6, at 41; Nancy B. Firestone, The Environmental Protection Agency’s
Environmental Appeals Board, 1 ENVTL. LAW. 1, 1 (1994).

11

Authority to Delegate to
Subunit(s); Designating
Official and Process

[none]

Quorum Requirement

The EAB sits in three-member panels. Panels
decide cases by majority vote.69
Two members constitute a quorum when
“absence or recusal prevents a three-Member
panel.” The Administrator breaks a two-member
panel’s tie vote.70

Authority and Function of
Appellate Authority’s Head

There is no Chief Judge or other head of the EAB.
All Judges serve as “co-equals.” Judges serve in
annual rotation as “lead judge for administrative
matters.”71 One Judge is designated “lead” for
each two- or three-member panel.72

Internal Management
Structure of Appellate
Authority

Besides the co-equal EAB Judges, the EAB
employs several staff attorneys, a Clerk of the
Board, and administrative personnel.73

Miscellaneous

EAB Judges must recuse themselves from cases
in which they previously performed prosecutorial
or investigative functions, prepared or presented
evidence, or are “otherwise personally involved.”74
Judges may not participate in “any matter in
which they have a financial interest or have any
relationship with a party or with the subject
matter which would make it inappropriate for
them to act.” Members may “withdraw from any
proceeding in which [they deem themselves]
disqualified or unable to act for any reason.”75
Parties can file motions to disqualify EAB Judges
in particular cases. If the EAB denies a motion to

69 40 C.F.R. § 1.25(e)(1).
70 Id. § 1.25(e)(1).
71 EAB PRACTICE MANUAL, supra note 10, at 8; see also Reich, supra note 6, at 41.
72 Wolgast, supra note 6, at 191.
73 EAB PRACTICE MANUAL, supra note 10, at 8; Wolgast, supra note 6, at 191.
74 40 C.F.R. § 1.25(e)(3).
75 Id. § 22.4(d)(1); EAB at Twenty-Five, supra note 34, at 7.

12

disqualify, a party may appeal that ruling to the
Administrator.76

Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

CROP/Part 22 Rules. Parties may by right
appeal adverse enforcement decisions to the EAB.

How Appeal Initiated

CROP/Part 22 Rules. To appeal an initial
decision, a party must file a Notice of Appeal and
brief with the Clerk of the Board. There is no
standardized Notice of Appeal. The appellant
must serve a copy of the notice on the Presiding
Officer and copies of the notice and brief on the
appropriate Hearing Clerk, all other parties, and
any non-party participants.79

Part 124 Rules. There is no appeal as of right
from a permit decision. The EAB will grant
review only if the petitioner has “standing” and
makes certain substantive showings.77 The EAB
will only “sparingly” exercise its review power.78

Part 124 Rules. Any person who commented on
the draft permit or participated in a public
hearing can appeal a permit decision. Others can
seek review only with respect to permit
conditions that were not in the draft permit.80
A person initiates an appeal by filing a petition
for review with the Clerk of the Board.81 The
petition must “meet a minimum standard of
specificity” to ensure that the EAB does not
76 40 C.F.R. § 22.4(d)(1).
77 Revisions to Procedural Rules To Clarify Practices and Procedures Applicable in Permit

Appeals Pending Before the Environmental Appeals Board, 78 Fed. Reg. 5281, 5282 (Jan. 25,
2013).
78 EAB PRACTICE MANUAL, supra note 10, at 54–55; see also CITIZEN’S GUIDE, supra note 18, at 23.
79 40 C.F.R. § 22.30(a)(1); EAB PRACTICE MANUAL, supra note 10, at 26–27; CITIZEN’S GUIDE,
supra note 18, at 18–19.
80 40 C.F.R. § 124.19(a)(2); EAB PRACTICE MANUAL, supra note 10, at 43–45; CITIZEN’S GUIDE,
supra note 18, at 24–25.
81 40 C.F.R. § 124.19(a)(1); EAB PRACTICE MANUAL, supra note 10, at 49–51.

13

Time For Appealing

“entertain vague or unsubstantiated claims.” It
must identify the nature of the petitioner’s
challenge and “clearly set forth, with legal and
factual support,” why the EAB should review the
permit decision under its standard of review.82
CROP/Part 22 Rules. Parties must appeal
initial decisions within 30 days after service. The
EAB applies this deadline “strictly” and “will
dismiss a late appeal in most cases” absent
“special circumstances.”83
Part 124 Rules. Petitioners must file for EAB
review within 30 days after the Director serves
notice of the permit decision.84

If No Appeal Taken from
Hearing Officer’s Decision

CROP/Part 22 Rules. A Presiding Officer’s
initial decision generally becomes final 45 days
after service.85
Part 124 Rules. A permit decision generally
becomes effective 30 days after service.86 If the
EAB denies a petition for review, the Director
issues a final permit decision.87

If Appeal Taken

CROP/Part 22 Rules. On appeal, the EAB can
“adopt, modify, or set aside the findings of fact
and conclusions of law or discretion in the
decision or ordered being reviewed.” It can assess
a new civil penalty; “adopt, modify or set aside
any recommended compliance or corrective action
order or Permit Action;” and remand to the
Presiding Officer for further action.88 Parties may
also resolve their dispute through ADR.89
Part 124 Rules. After the EAB issues a decision
on the merits of the appeal or remands for

82 40 C.F.R. § 124.19(a)(4); EAB PRACTICE MANUAL, supra note 10, at 45.
83 40 C.F.R. § 22.30(a)(1); EAB PRACTICE MANUAL, supra note 10, at 25.
84 40 C.F.R. § 124.19(a)(3); EAB PRACTICE MANUAL, supra note 10, at 42; CITIZEN’S GUIDE, supra

note 18, at 24.
85 40 C.F.R. § 22.27(c).
86 Id. § 124.15(b).
87 Id. § 124.19(l)(2)(i).
88 Id. § 22.30(f).
89 See infra notes 143–144 and accompanying text.

14

Review of Decisions on
Own Initiative (Without
Request of a Party)

further proceedings, the Director issues a final
permit decision. Absent later review, this decision
becomes the final agency action.90 Parties may
also resolve their dispute through ADR.91
CROP/Part 22 Rules. The EAB may review an
initial decision sua sponte within 40 days after
service. It “uses this authority sparingly.”92
Part 124 Rules. The EAB may not review permit
decisions on its own initiative.93

Miscellaneous

Parties can electronically file appeals and briefs
through the EAB’s website.94

Appellate Authority’s Procedures
Record on Review

The record consists of “the evidence that informed
the decision being appealed,” including filings or
evidence submitted at the lower level and the
hearing recording or transcript.95
The Part 124 Rules define the contents of the
administrative record for permit decisions.96

Submissions by Parties in
Support of Appeal

CROP/Part 22 Rules. Appellants must submit a
brief with the Notice of Appeal. Other parties and
non-party participants may file a response brief
within 20 days of service.97
Part 124 Rules. Petitioners must submit a brief
with the petition for review. The Director must
respond to the petition within 21 or 30 days after
filing. Permit applicants and state and tribal

90 40 C.F.R. § 124.19(l).
91 See infra notes 143 and Error! Bookmark not defined. and accompanying text.
92 40 C.F.R. § 22.30(b); EAB PRACTICE MANUAL, supra note 10, 31.
93 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,652 (Aug. 21, 2020).
94 EAB PRACTICE MANUAL, supra note 10, 12–15; EAB at Twenty-Five, supra note 34, at 7–8.
95 CITIZEN’S GUIDE, supra note 18, at 20–21, 35.
96 40 C.F.R. § 124.18.
97 40 C.F.R. § 22.30(a)(2); CITIZEN’S GUIDE, supra note 18, at 19.

15

authorities who wish to participate must also file
a notice of appearance and a response.98

Issue Preservation

Although the rules permit petitioners to move for
leave to submit a reply brief, there is a general
presumption against additional briefing.99
CROP/Part 22 Rules. Appeal is “limited to
those issues raised during the course of the
proceeding and by the initial decision, and to
issues concerning subject matter jurisdiction.”100
Part 124 Rules. Petitioners must show that each
issue raised in the petition was raised during the
public comment period or explain why there was
no requirement to raise the issue earlier.101

Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

The administrative record is generally “limited to
the evidence that informed the decision being
appealed,” including filings, evidence of record,
and the recording or transcript of the hearing.102

Standard of Review

CROP/Part 22 Rules. The EAB reviews factual
findings and legal and discretionary conclusions
de novo.103 The EAB “has long held that it will
give deference to the presiding officer’s factual
findings based on witness testimony, since that
judge heard the witnesses’ testimony at trial, and
therefore is in the best position to make
determinations of witness credibility.”104 The
EAB also will not typically “substitute its
judgment as to an appropriate penalty amount
for the judgment of the ALJ unless the ALJ has
made a clear error in applying any applicable

98 40 C.F.R. § 124.19(b); EAB PRACTICE MANUAL, supra note 10, at 47; CITIZEN’S GUIDE, supra

note 18, 26.
99 40 C.F.R. § 124.19(c); EAB PRACTICE MANUAL, supra note 10, at 49.
100 40 C.F.R. § 22.30(c).
101 40 C.F.R. § 124.19(a)(4); CITIZEN’S GUIDE, supra note 18, 25.
102 CITIZEN’S GUIDE, supra note 18, 20–21, 35.
103 40 C.F.R. § 22.30(f) (The EAB “shall adopt, modify, or set aside the findings of fact and
conclusions of law or discretion contained in the decision or order being reviewed”); EAB
PRACTICE MANUAL, supra note 10, at 29.
104 Wolgast, supra note 6, at 189 (2010); EAB PRACTICE MANUAL, supra note 10, at 29–30; EAB at
Twenty-Five, supra note 34, at 9 (citing In re Chem-Solve, Inc., 16 E.A.D. 594 (2015)); Reich,
supra note 6, at 41.

16

penalty guidelines, has not given sound reasons
for deviating from them, or has not adequately
explained the penalty assessment.”105
Part 124 Rules. The EAB reviews permit
decisions under a “clearly erroneous” standard.
Petitioners must demonstrate that the decision
was based on a “clearly erroneous finding of fact
or conclusion of law.”106 The EAB only “sparingly”
exercises its review authority.107
Consultation with Staff and EAB Judges “may consult with any EPA
Other Agency Officials
employee concerning any matter . . . provided
such consultation does not violate applicable ex
parte rules.” In particular, Judges may not
communicate about the merits of a proceeding
with “any agency personnel serving in a
prosecutorial or investigatory role.”108
Staff attorneys, a Clerk, and other administrative
personnel assist EAB Judges. An attorney is
randomly assigned to each case. The attorney
helps the lead judge determine, as applicable,
whether the case is within the EAB’s jurisdiction,
whether it is timely filed, whether oral argument
would aid the EAB’s review, and whether
dismissal is appropriate.109
Oral Argument

Parties request oral argument by including, in
their briefs, “a statement explaining why oral
argument is necessary.” The EAB may order oral
argument on a party’s request or sua sponte.110

105 CITIZEN’S GUIDE, supra note 18, at 21–22.
106 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,651–2 (Aug. 21, 2020) (to

be codified at 40 C.F.R. § 124.19(a)(4)(i)).
107 EAB PRACTICE MANUAL, supra note 10, at 42–43, 54–55 (citing 45 Fed. Reg. 33,290, 33,412
(May 19, 1980)); see also 40 C.F.R. 124.19(a)(4); EAB at Twenty-Five, supra note 34, at 13;
Brendan C. Selby, Internal Agency Review, Authoritativeness, and Mead, 37 HARV. ENVTL. L. REV.
539, 550–51 (2013).
108 40 C.F.R. §§ 1.25(e)(2), 22.8; Wolgast, supra note 6, at 191; EAB at Twenty-Five, supra note 34,
at 6–7.
109 Wolgast, supra note 6, at 191.
110 40 C.F.R. § 22.30(d), 124.19(h).

17

Oral argument takes place before the panel in the
EAB’s courtroom in Washington, D.C. Video
teleconferencing is also available.111
In a typical oral argument, each party has “thirty
minutes to present their argument, starting with
counsel for the petitioning party, who generally
argues his or her case for twenty-five minutes;
followed by thirty minutes of argument from
counsel for the responding party; and a short,
five-minute rebuttal by the petitioning party. The
panel members ask questions of counsel
throughout the argument.”112
Part 124 Rules. The EAB decides most permit
appeals on the basis of the petition, responses,
and administrative record without additional
briefing or argument.113 There is a presumption
against oral argument in new source appeals.114
Amicus Participation;
Intervention; etc.

CROP/Part 22 Rules. Persons may move for
leave to intervene in a proceeding but generally
must do so before the pre-hearing exchange.115
Non-parties may move for leave to file amicus
briefs. Motion must identify the movant’s interest
and explain the brief’s relevance to the case.116
Part 124 Rules. Persons may file an amicus
brief in any EAB appeal within 21 days after the
filing of a petition for review. Amicus briefs are
capped at 15 pages.117

111 EAB PRACTICE MANUAL, supra note 10, at 10–11; Wolgast, supra note 6, at 192; CITIZEN’S

GUIDE, supra note 18, at 35; EAB at Twenty-Five, supra note 34, at 8.
112 Wolgast, supra note 6, at 192.
113 Revisions to Procedural Rules To Clarify Practices and Procedures Applicable in Permit
Appeals Pending Before the Environmental Appeals Board, 78 Fed. Reg. 5281, 5282–83 (Jan. 25,
2013).
114 40 C.F.R. § 124.19(h); EAB PRACTICE MANUAL, supra note 10, at 53–54; CITIZEN’S GUIDE, supra
note 18, at 23, 27, 36.
115 40 C.F.R. § 22.11(a).
116 Id. § 22.11(b).
117 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,652, 51,657 (Aug. 21,
2020) (to be codified at 40 C.F.R. § 124.19(e)).

18

Public Access to Hearings

Oral arguments are open to the public with at
least one week’s advance notice to the Clerk of
the Board.118 A schedule of upcoming oral
arguments is available on the EAB’s website.

Staff’s Role in Writing
Decisions

A staff attorney works with a panel’s lead judge
to prepare a draft opinion for the panel’s “review
and comment” and with all panel members to
prepare a final decision.119

Deadlines for Decision

CROP/Part 22 Rules. There are currently no
deadlines for decision.
Part 124 Rules. Under a recent rule change, the
EAB must issue its decision on a permit appeal
within 60 days after the submission of the final
brief or the completion of oral argument,
whichever is later. The EAB may grant itself an
additional 60 days to issue a decision if a case’s
nature and complexity require it.120

Nature of Decision

CROP/Part 22 Rules. The EAB may “adopt,
modify, or set aside” a Presiding Officer’s findings
of fact, conclusions of law or discretion, and
corrective action order. It will typically issue a
final opinion or an order remanding the case
to a Presiding Officer for further action.121
Part 124 Rules. When the EAB reviews a permit
case, it will issue a decision on the merits or may
remand the proceedings for further action.122

Reconsideration,
Rehearing, etc.

Parties must file motions to reconsider a final
order within 10 days after service along with a
statement of “the matters claimed to have been
erroneously decided and the nature of the alleged
orders.” The EAB maintains a “high bar for

118 EAB PRACTICE MANUAL, supra note 10, at 10; Wolgast, supra note 6, at 192; CITIZEN’S GUIDE,

supra note 18, at 35.
119 Wolgast, supra note 6, at 192.
120 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,652, 51,657 (Aug. 21,
2020) (to be codified at 40 C.F.R. § 124.19(l)).
121 40 C.F.R. § 22.30(f); EAB PRACTICE MANUAL, supra note 10, at 32.
122 See 40 C.F.R. § 124.19(l).

19

granting motions for reconsideration.” It will only
do so “to correct an obvious error, a mistake of
law or fact, or a change in the applicable law.”123
Miscellaneous

Parties can electronically file appeals and briefs
through the EAB’s website.124

Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard

CROP/Part 22 Rules. The EAB has discretion
to allow appeals from “orders or rulings other
than an initial decision.” A party must file a
motion for interlocutory review within 10 days
after service. The motion must request that the
Presiding Officer forward the order or ruling to
the EAB and explain the grounds for appeal.
The Presiding Officer may recommend the EAB
review the ruling or order if it “involves an
important question of law or policy concerning
which there is substantial grounds for difference
of opinion” and “immediate appeal from the order
will materially advance the ultimate termination
of the proceeding, or review after the final order
is issued will be inadequate or ineffective.”
If the Presiding Officer does not recommend
review, the EAB may review the order or ruling
on interlocutory appeal if it finds, “upon motion of
a party and in exceptional circumstances, that to
delay would be contrary to the public interest.”125
The Part 124 Rules do not provide for
interlocutory appeals.

Assignment of Cases

The EAB has “sole discretion” to determine which
of its members will sit on a panel in a proceeding.
Decisions regarding panel size and composition
are “not reviewable.”126

123 40 C.F.R. § 22.32, 124.19(m); EAB PRACTICE MANUAL, supra note 10, at 24, 53; see also

CITIZEN’S GUIDE, supra note 18, at 28.
124 EAB PRACTICE MANUAL, supra note 10, at 12–15; EAB at Twenty-Five, supra note 34, at 7–8.
125 40 C.F.R. § 22.29.
126 Id. § 1.25(e)(1).

20

In practice, the Clerk randomly assigns cases to
three-member panels and designates both the
lead judge and staff attorney for a panel in
rotation.127 When the EAB has four members, the
Judge not assigned to a panel may serve as a
Settlement Judge in the case if the parties opt to
participate in the EAB’s Alternative Dispute
Resolution program.128
Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

[none]

Aggregation

CROP/Part 22 Rules. The EAB may consolidate
“any or all matters at issue in two or more
proceedings” if “there exist common parties or
common questions of fact or law; consolidation
would expedite and simplify consideration of the
issues; and consolidation would not adversely
affect the rights of parties engaged in otherwise
separate proceedings.” All parties must agree to
consolidate.129
Part 124 Rules. At least at the initial decisionmaking level, the Director is explicitly authorized
to consolidate processing of multiple permits for a
single facility or activity.130

Miscellaneous

The EAB “may do all acts and take all measures
as are necessary for the efficient, fair and
impartial adjudication of issues arising in a
proceeding, including imposing procedural
sanctions against a party who without adequate
justification fails or refuses to comply with these
[CROP] or with an order of the [EAB]. Such
sanctions may include drawing adverse
inferences against a party, striking a party’s

127 Wolgast, supra note 6, at 191; Reich, supra note 6, at 41; see also EAB PRACTICE MANUAL,

supra note 10, at 8; CITIZEN’S GUIDE, supra note 18, at 20, 27.
128 EAB at Twenty-Five, supra note 34, at 5.
129 40 C.F.R. § 22.12.
130 See id. §§ 124.4, 124.11.

21

pleadings or other submissions from the record,
and denying any or all relief sought by the party
in the proceeding.”131

Form of Decisions, Publication, and Precedential Status
Form of Decision

The EAB issues opinions that typically include a
syllabus, statement of the case, legal and factual
history, analysis, conclusion, and order. “[T]he
level of detail and thoroughness of analysis in
[permit] opinions is not readily distinguishable
from EAB review as part of formal [enforcement]
adjudications required by statute.”132
Written decisions in permit appeals “should only
be as long as necessary to address the specific
issues presented to the Board in the appeal.”133

Signed or Per Curiam

EAB decisions indicate the Judge who authored
the opinion.

Dissents

EAB Judges “may choose to write a concurring or
dissenting opinion in lieu of joining the majority
opinion.”134

Publication

The EAB issues “published” decisions and
“unpublished” final orders. Both are widely
available.135
Although the EAB designates each final decision
as a published decision or unpublished final order
when it issues the decision, it may not publish a
decision in the Environmental Appeals Decisions

131 Id. § 22.4(a)(2), 124.19(n).
132 Selby, supra note 107, at 548.
133 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,652, 51,657 (Aug. 21,

2020) (to be codified at 40 C.F.R. § 124.19(l)(3)). The EPA abandoned a proposal to impose a wordor page-limit on EAB decisions. See id. at 51,652.
134 Wolgast, supra note 6, at 192; see also EAB PRACTICE MANUAL, supra note 10, at 5; CITIZEN’S
GUIDE, supra note 18, at 11.
135 EAB PRACTICE MANUAL, supra note 10, at 2–3, 7–10.

22

or on its website under the heading “Published
Decisions” during the 15 days after its issuance.
During this time, the Administrator may redesignate the decision as unpublished.136
Where Published

EAB decisions are published in the bound, multivolume Environmental Appeals Decisions.137 All
published decisions and unpublished final orders
since November 1996 are also available on the
EAB’s website, Lexis, and Westlaw.138

Precedential Status

EAB decisions were traditionally binding on
lower-level decision makers. The EAB has also
“generally adopted a philosophy of stare decisis
concerning the holdings” of its own decisions.139
Following a recent rule change, “only published
decisions of the EAB represent EPA’s official,
authoritative position with regard to the issues
addressed in such decisions.” This change was
intended to “provide the Administrator, as the
original source of authority for implementing and
interpreting EPA’s statutes and regulations, the
ability to ensure EAB opinions reflect the
Agency’s official position concerning major policy
or procedural issues, or other issues of
exceptional importance in the situations where it
is appropriate to create such positions through
adjudication before the Board.”140

Miscellaneous

[none]

Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below

136 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,653, 51,656 (Aug. 21,

2020) (to be codified at 40 C.F.R. § 1.25(e)(3)).
137 Wolgast, supra note 6, at 192; CITIZEN’S GUIDE, supra note 18, at 38–39.
138 EAB PRACTICE MANUAL, supra note 10, at 2–3, 7–10.
139 Joseph J. Lisa, EPA Administrative Enforcement Actions: An Introduction to the Consolidated
Rules of Practice, 24 TEMP. J. SCI. TECH & ENVTL. L. 1, 11 (2005); Wolgast, supra note 6, 193
(2010); see also CITIZEN’S GUIDE, supra note 18, at 12; Reich, supra note 6, at 41.
140 Streamlining Procedures for Permit Appeals, 85 Fed. Reg. 51,650, 51,653, 51,656 (Aug. 21,
2020) (to be codified at 40 C.F.R. § 1.25(3)).

23

Guidance Documents
Governing Hearing-Level
Adjudicators

[none]

Feedback to Adjudicators

[none]

Quality-Assurance Reviews
and Related Mechanisms

[none]

Participation of Appellate
Body in Substantive
Rulemaking

[none]

Miscellaneous

[none]

Miscellaneous
Alternative Dispute
Resolution (ADR)

The EAB “encourages parties to pursue all
avenues of dispute resolution.”141 Under its “optin” process, all parties must agree to participate
in ADR.142 An EAB Judge serves as a Settlement
Judge assisted by a staff attorney. The
Settlement Judge arranges for a status
conference, the submission of issue summaries,
and an initial ADR meeting.
Parties who resolve their disputes through ADR
sign a written document and file a joint motion
for the EAB to dismiss the matter.
The Settlement Judge or either party may
terminate the ADR process and return the case to
the EAB’s active docket. After the case is

141 EAB PRACTICE MANUAL, supra note 10, at 19, 56–57; CITIZEN’S GUIDE, supra note 18, at 28–29;

EAB at Twenty-Five, supra note 34, at 5.
142 EPA recently abandoned a proposal to establish a new “time-limited ADR process” for permit
appeals which would converts the ADR program “from an opt-in process to an opt-out process”
and would be “a precondition to judicial review.” Streamlining Procedures for Permit Appeals, 85
Fed. Reg. 51,650, 51,651 (Aug. 21, 2020); Modernizing the Administrative Exhaustion
Requirement for Decisions and Streamlining Procedures for Permit Appeals, 84 Fed. Reg. 66,084,
66,087 (Dec. 3, 2019).

24

returned, neither the Settlement Judge nor the
staff counsel may participate in its disposition.143
CROP/Part 22 Rules Parties frequently resolve
their disputes at the hearing level through ADR.
Parties who, in proceedings initiated at EPA
headquarters, agree to settle an action before a
hearing prepare a consent agreement and final
order (“CAFO”) for the EAB’s signature. 144
Participation of Appellate
Body in Agency Decisions
on Judicial Review

[none]

Role and Participation of
Appellate Body in Writing
Rules

There is no clear indication the EAB participates
in substantive rulemaking. The EAB appears to
have been involved in amending the rules that
govern its procedures and practice.145

Miscellaneous

[none]
PUBLICLY AVAILABLE CASE STATISTICS

Case statistics can be gleaned from the EAB’s website, which shows all
active dockets and all dockets closed since March 1992. As of March 8, 2020, the
website shows 13 active dockets and 11 dockets closed so far in FY 2020. The
chart below displays the number of closed dockets for each of the last ten FYs.

143 Modernizing the Administrative Exhaustion Requirement for Decisions and Streamlining

Procedures for Permit Appeals, 84 Fed. Reg. 66,084, 66,087 (Dec. 3, 2019).
144 40 C.F.R. § 22.18(d); EAB PRACTICE MANUAL, supra note 10, at 35.
145 See Revisions to Procedural Rules To Clarify Practices and Procedures Applicable in Permit
Appeals Pending Before the Environmental Appeals Board, 78 Fed. Reg. 5281 (Jan. 25, 2013).

25

EAB Closed Dockets by Fiscal Year
60
50
40
30
20
10
0
2010

2011

2012

2013

2014

2015

2016

2017

2018

2019

These numbers may not reflect the full extent of the EAB’s workload which, in
addition to final dispositions, includes interlocutory decisions and rulings and
orders on motions.
A recent study found that, at least since 2006, the EAB “has become more
efficient over time in processing cases.” For the period from January 2006 to
January 2019, the mean processing time was 5.5 months. From 2009 to the
present, the average processing time is 3.6 months.146
TREATISES AND SCHOLARSHIP OF NOTE
MICHAEL ASIMOW, FEDERAL ADMINISTRATIVE ADJUDICATION OUTSIDE THE
ADMINISTRATIVE PROCEDURE ACT 143–49 (2019).
Aaron P. Avila, Mary Kay Lynch, Kathie A. Stein, Mary Beth Ward & Catherine
Malinin Dunn, The EPA’s Environmental Appeals Board at Twenty-Five:
An Overview of the Board’s Procedures, Guiding Principles, and Record of
Adjudicating Cases (2017).
Nancy B. Firestone, The Environmental Protection Agency’s Environmental
Appeals Board, 1 ENVTL. LAW. 1 (1994).
Nancy B. Firestone & Elizabeth C. Brown, Ensuring the Fairness of Agency
Adjudications: The Environmental Appeals Board’s First Four Years, 2
ENVTL. LAW. 291 (1996).
William Funk, Is the Environmental Appeals Board Unconstitutional or
Unlawful?, 49 ENVTL. L. REV. 737 (2019).

146 Tzoumis¸ supra note 21, at 860.

26

Joseph J. Lisa, EPA Administrative Enforcement Actions: An Introduction to the
Consolidated Rules of Practice, 24 TEMP. J. SCI. TECH. & ENVTL. L. 1 (2005).
Edward E. Reich, EPA’s New Environmental Appeals Board, NAT. RESOURCES &
ENV’T. 39 (Spring 1994).
William A. Tilleman, Environmental Appeals Boards: A Comparative Look at the
United States, Canada, and England, 21 COLUM. J. ENVTL. L. 1 (1996).
Kelly Tzoumis & Emma Shibilski, Environmental Decision-Making Through
Adjudicatory Appeals in the United States, 5 PEOPLE INT’L J. SOC. SCI.
846 (2019).
Richard R. Wagner, The U.S. EPA Administrator’s Assessment of Civil Penalties:
A Review of the Sources of Authority and the Administrator’s Regulations,
22 WM. & MARY ENVTL. L. & POL’Y REV. 149 (1997).
Russell L. Weaver, Appellate Review in Executive Departments and Agencies, 48
ADMIN. L. REV. 251 (1996).
Anna L. Wolgast, Kathie A. Stein & Timothy R. Epp, The United States’
Environmental Adjudication Tribunal, 3 J. CT. INNOVATION 185 (2010).

27

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
APPENDIX I
Equal Employment Opportunity Commission:
Review of Employment Discrimination Cases
INTRODUCTION
Ending discrimination in the workplace remains a defining feature of the
United States Equal Employment Opportunity Commission (EEOC). Created
under the Civil Rights Act of 1964, the EEOC is the primary administrative
agency tasked with policing discriminatory behavior. The Commission itself is
made up of five Commissioners selected by the President with the advice and
consent of the Senate, but only a maximum of three of those Commissioners can
be of the same political party. The EEOC has investigating workplace
discrimination in the United States since its inception.
While the EEOC has authority to investigate and identify discriminatory
practices, it operates differently depending on the type of employer. Individuals
may file complaints with the EEOC, but the type of employer determines the
administrative procedures. For complaints against private sector employers, the
EEOC does not subject parties to a complex agency adjudicatory system.1
Instead, it investigates allegedly discriminatory conduct and makes
recommendations on whether an individual—or the EEOC—should file a civil
action against an employer in federal court.2 With respect to discrimination by
private employers, the EEOC has the authority to investigate allegations of
discrimination and potentially file civil lawsuits on behalf of aggrieved
individuals.3
See 29 C.F.R. §1601.2 (borrowing the definition of “employer” from 42 U.S.C. §2000e(b) which means “any
person engaged in an industry affecting commerce who has fifteen or more employees…” but does not include
federal government agency employees).
2
The EEOC has vast investigatory authority over private sector discrimination, see 29 C.F.R. §1601.15, but it
cannot subject private sector employers to penalties upon a finding of discrimination. Instead the EEOC may
commence a civil suit, or recommend that an individual file a civil suit, against the employer in question if there
is a reason to file an employment discrimination claim. See generally, 29 C.F.R. §1601.6-.29. The Attorney
General also may commence a civil suit against the employer if the EEOC recommends such action. Id.
3
See EEOC v. Waffle House, Inc., 534 U.S. 279, 286 (2002).
1

When an individual alleges that a federal agency engaged in workplace
discrimination, the EEOC procedures are different.4 Judge Randolph Moss of the
United States District Court for the District of Columbia accurately described
these procedures in Farrington v. Johnson, 206 F.Supp.3d 634 (D.D.C. 2016). An
employee of a federal agency who claims that his or her agency discriminated
against him or her must first file a complaint with the employing agency.5 The
employing agency must then conduct an investigation into the matter and—if the
employee requests a hearing as described in 29 C.F.R. §1614.106—refer it to an
EEOC Administrative Judge (AJ) who then presides over the hearing.6 Once
either the agency concludes its investigation or the EEOC AJ issues a decision
after the hearing, the employing agency must take final action with respect to the
employee’s complaint.7 If—in the case where an AJ issued a decision after a
hearing—the employing agency’s final action does not “fully implement the
decision” of the AJ, the employing agency must file an appeal with the EEOC’s
appellate body, the Office of Federal Operations (OFO). 8 The employing agency’s
final action must notify the employee of his or her right to appeal the final action
to the OFO as well as his or her right to file a civil action in a federal district
court.9 The OFO, “on behalf of the [EEOC],” acts as the EEOC’s appellate
authority.10 The OFO “reviews the record, supplements it if necessary, and then
issues a written decision.”11
The EEOC does not appear to have the same appellate review of agency
decisions with respect to claims of private discrimination against private
employers. When an individual files a claim against a federal agency employer,
however, the EEOC’s internal appellate review looks like its counterparts. The
OFO, acting as the EEOC’s “appellate arm,”12 is a creature of regulation.13 The
OFO’s decisions bind federal agencies to the EEOC’s anti-discrimination policies.
In both the private sector and the public sector—when the employer is a federal
agency—an individual retains the right to sue his or her employer for a violation
of anti-discrimination laws. The EEOC only has appellate authority when an
aggrieved individual files a complaint against a federal agency employer.

4

See Nancy M. Modesitt, The Hundred-Years War: The Ongoing Battle Between Courts and Agencies Over the
Right to Interpret Federal Law, 74 MISSOURI L. REV. 949, 974-76 (2009).
5
Id. at 641 (citing C.F.R. §1614.106).
6
Id.
7
Id.; see 29 C.F.R. §1614.110 (describing a “final action”).
8
Id. (quoting 20 C.F.R. §1614.110(a); see also 29 C.F.R. §1614.403 (describing how to appeal an AJ decision to
the OFO).
9
29 C.F.R. §1614.110(a).
10
29 C.F.R. §1614.404(a).
11
Farrington, 206 F.Supp.3d at 641 (quoting Scott v. Johanns, 409 F.3d 466, 468 (D.C. Cir. 2005).
12
Id.
13
29 C.F.R. §1614.404(a).

2

CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
Governing Law
Procedural Law

The EEOC was created by Title VII of the
Civil Rights Act of 1964.14 Subsequent
legislative amendments to Title VII and case
law interpretations of the provision have
expanded the EEOC’s investigative and
enforcement authority.15
The EEOC has investigative and enforcement
authority through statutory provisions under
the C.F.R.16 and U.S.C.17 Enforcement
provisions under 42 U.S.C. § 2000e-5 detail
the procedural steps the EEOC must take to
enforce anti-discrimination laws against an
alleged offender.
The EEOC provides guidance documents to
assist staff during investigations.18 Further,
the EEOC Office of General Counsel provides
a Regional Attorneys’ Manual that outlines
procedures for investigations and
enforcement.19
EEOC does not enforce certain discrimination
and workplace laws.20

14See generally THE EQUAL EMP. OPPORTUNITY COMM’N, THE LAW (n.d.),

https://www.eeoc.gov/eeoc/history/35th/thelaw/index.html (providing overview of laws governing
EEOC authority).
15 Id.
16 See 29 C.F.R. § 1601.15 (providing for investigative authority).
17 See 42 U.S.C.A. § 2000e-5 (providing for enforcement authority).
18 See, e.g., THE EQUAL EMP. OPPORTUNITY COMM’N, COMPLIANCE MANUAL (n.d.),
https://www.eeoc.gov/laws/guidance/compliance.cfm (detailing guidance for conducting
investigations and assessing threshold issues for discriminatory practices).
19 See generally OFF. GEN. COUNS., REGIONAL ATTORNEY’S MANUAL, THE EQUAL EMP.
OPPORTUNITY COMM’N (April 2005), https://www.eeoc.gov/eeoc/litigation/manual/index.cfm.
20 See generally THE EQUAL EMP. OPPORTUNITY COMM’N, WORKPLACE LAWS NOT ENFORCED BY THE
EEOC (n.d.), https://www.eeoc.gov/laws/other.cfm.

3

Substantive Law

The EEOC enforces federal laws that prohibit
employment discrimination against
statutorily protected classes.21 Under 42
U.S.C. § 2000e-14, the EEOC has the
authority to create policies and practices for
the institutions under its authority to
minimize instances of employment
discrimination.22 The EEOC promulgates
substantive and procedural regulations
incorporated annually into Title 29 of the
C.F.R.23 These regulations provide guidance
on identifying discrimination in
investigations.24 The EEOC also provides
Commission Decisions, which function as
case law by the EEOC based on the facts of
particular cases.25
The EEOC also provides a compliance
manual for staff to advise them on
substantive law issues during investigation
and enforcement.26

Miscellaneous

[none]

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
Appealable

Parties must allege they have been
discriminated against on the basis of race,
color, religion, sex, national origin, age,
disability, or genetic information.27

21 See generally THE EQUAL EMP. OPPORTUNITY COMM’N, STATUTES AND REGULATIONS (n.d.),

https://www.eeoc.gov/federal/adr/statutes.cfm (summarizing statutes enforced by EEOC).
22 42 U.S.C.A. § 2000e-14.
23 See THE EQUAL EMP. OPPORTUNITY COMM’N, EEOC REGULATIONS (n.d),
https://www.eeoc.gov/laws/regulations/index.cfm.
24 Id.
25 See THE EQUAL EMP. OPPORTUNITY COMM’N, COMMISSION DECISIONS (n.d.),
https://www.eeoc.gov/laws/decisions/index.cfm.
26 See THE EQUAL EMP. OPPORTUNITY COMM’N, EEOC COMPLIANCE MANUAL (n.d.),
https://www.eeoc.gov/policy/docs/threshold.html.
27 29 C.F.R. § 1614.105(a).

4

Nature of Hearing-Level
Proceedings

An administrative judge presides over
hearings for the EEOC.28 Hearings may
include discovery, witness testimony (limited
to those having direct knowledge of the
complaint, at the judge’s discretion).29

Nature of Hearing-Level
Decision

The administrative law judge issues a
written determination of the decision within
180 days of receipt of the complaint.30 This
decision is the final agency action.31

Transfer of Case to
Appellate Body After
Hearing-Level Decision

Decisions are transferred to the appellate
division when a claimant files an appeal with
the Office of Federal Operations (OFO).32

Miscellaneous

All reconsiderations by the Office of Federal
Operations are final.33

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

Appeals are reviewed by the OFO,34 unless
issue had not previously been decided upon,
in which case it is reviewed by the
Commission.35 In reviewing appeals, the OFO
acts on behalf of the Commission.36

Legal Status of Reviewing
Authority(ies)

The Commission was established by
statute.37

28 29 C.F.R. § 1614.109(a).
29 See 29 C.F.R. § 1614.109(d)-(f).
30 29 C.F.R. § 1614.109(i).
31 Id.
32 29 C.F.R. § 1614.403(a).
33 See THE EQUAL EMP. OPPORTUNITY COMM’N, REQUESTING RECONSIDERATION OF AN APPEAL

(n.d.), https://www.eeoc.gov/federal/fed_employees/reconsideration.cfm.
34 29 C.F.R. § 1614.404(a).
35 See THE EQUAL EMP. OPPORTUNITY COMM’N, APPEALS (n.d.), https://www.eeoc.gov/fede
ral/fed_employees/appeal.cfm.
36 29 C.F.R. § 1614.404(a).
37 See 42 U.S.C.A. § 2000e-4(a) (providing for EEOC powers).

5

Miscellaneous

Before an aggrieved party requests a hearing
with an EEOC Administrative Judge, the
employing agency must dismiss an appeal
based on certain regulatory standards.38

Institutional Attributes of Appellate/Reviewing Authority(ies)
Number of Members

The Commission consists of five members,
“not more than three of whom shall be
members of the same political party,”
appointed by the President and confirmed by
the Senate.39
According to a Freedom of Information Act
(FOIA) request, the OFO Appellate Review
Section, which adjudicates appeals, consists
of:
• 2 Attorney Advisors;
• 10 Supervisory General Attorneys;
and
• 36 General Attorneys.40
The Director of the OFO oversees the
Appellate Review Section as well as the other
sections. The other sections, according to this
FOIA request, consist of:
• The Federal Sector Programs Section
which is tasked with overseeing
federal sector EEOC complaint
process;41
• The Compliance and Control Division
which monitors agency compliance
with OFO orders;42 and
• The Special Services Staff which
assists agencies with the OFO’s

38

29 C.F.R. § 1614.107(a)(1)-(8),

39 42 U.S.C.A. § 2000e-4(a).
40

See Equal Employment Opportunity Commission Office of Federal Operations, OFO Organization
Assessment-October 2014 (2014), https://www.governmentattic.org/34docs/EEOC-OFOorgAssess_2014.pdf.
The information from this document describes the OFO as of 2014. Each attorney listed in the Appellate Review
Section is listed according to their General Schedule (GS) pay rank and title. Some attorneys in the Appellate
Review Section have similar job titles but are separated only by their GS rank.
41
Id.
42
Id.

6

alternative dispute resolution
programs.
Qualification Requirements

The Commission cannot have more than
three members of the same political party. 43
There is no public information on
qualifications for OFO members.

Party Affiliation
Requirement in
Appointment

Individual membership does not have a party
requirement, but no more than three of the
members may be from the same party.44
There is no public information on this point
for the OFO.

Method of Appointment

Members are appointed by the President
with the advice and consent of the Senate,
and the President designates the
Commission’s Chairman and Vice
Chairman.45
There is no public information on the
appointment methods of the OFO.46

Term of Appointment

Members of the Commission serve for five
years.47
There is no public information on the length
of service for the OFO.

Statutory Removal
Protections

The Commission has removal authority for
administrative law judges.48 There do not
appear to be statutory removal provisions for
Commission members.

43 42 U.S.C.A. § 2000e-4(a).
44 Id.
45 Id.

One scholar does note, however, that OFO attorneys “are not given life tenure” and are thus subject to the
same hiring and firing criteria as most federal sector attorneys. See Modesitt, supra note 3, at 994.
47 42 U.S.C.A. § 2000e-4(a).
48 Id.
46

7

Location within Agency;
Basis of Legal Authority

The Commission has the final decisionmaking authority within the statute.49

Authority to Delegate to
Subunit(s); Designating
Official and Process

Under the Reorganization Plans of 1978, the
Commission may delegate preliminary
determinations of discrimination to the Civil
Service Commission, but the Commission
retains the final determination of such
issues.50

Quorum Requirement

Three members present for the Commission
constitutes a quorum.
There is no public information on quorum
requirements within the OFO.

Authority and Function of
Appellate Authority’s Head

The Commission’s Chairman does not have
specific adjudicative authority. The
Chairman’s purpose is administrative,
including appointing officers, agents,
attorneys, administrative law judges, and
employees necessary to assist in facilitating
the performance of their functions. 51

Internal Management
Structure of Appellate
Authority

N/A

Miscellaneous

[none]

Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

Aggrieved parties have the right to appeal a
final agency action to the OFO.52 A final

49 See id.
50 REORGANIZATION PLAN NO. 1 OF 1978, 43 F.R. 19807, 92 Stat. 3781 (“The Equal

Employment Opportunity Commission may delegate to the Civil Service Commission or its
successor the function of making a preliminary determination on the issue of discrimination . . .”)
51 42 U.S.C.A. § 2000e-4(a).
52 See THE EQUAL EMP. OPPORTUNITY COMM’N, APPEALS (n.d.),
https://www.eeoc.gov/federal/fed_employees/appeal.cfm.

8

judgment is an order issued pursuant to 28
U.S.C. § 1292(a)(1) or 1292(b).53
How Appeal Initiated

Appeals are filed through the EEOC Public
Portal or by submitting it to the OFO.54

Time For Appealing

Appeals must be filed within 30 days of the
agency’s final action.55

If No Appeal Taken from
Hearing Officer’s Decision

The Commission may dismiss appeals based
on statutorily enumerated standards. 56
EEOC lawyers review all requests for appeal
and the decision issued by the OFO is the
official position of the EEOC. If no appeal is
taken, the party can ask for a reconsideration
based on a “clearly erroneous” interpretation.
The decision on reconsideration is final.57 A
party can file a lawsuit in federal court
within 90 days of the EEOC’s decision on
appeal.58

If Appeal Taken

EEOC attorneys review the entire file and
findings of the administrative law judge and
issue a decision regarding relief that is
binding on the relevant agency.59 EEOC will
issue a decision on the appeal within 90 days
of receipt of the appeal.60 A party can file a

53 See THE EQUAL EMP. OPPORTUNITY COMM’N, OFFICE OF GENERAL COUNSEL APPEAL

PROCEDURES: CERTIFICATION OF AN INTERLOCUTORY ORDER UNDER 28 U.S.C. § 1292(b) (n.d.),
https://www.eeoc.gov/eeoc/litigation/manual/3-5-a_ogc_appeal_procedures.cfm#section1.
54 See 29 C.F.R. § 1614.403(a); see also THE EQUAL EMP. OPPORTUNITY COMM’N, APPEALS (n.d.),
https://www.eeoc.gov/federal/fed_employees/appeal.cfm.
55 See 29 C.F.R. § 1614.402(a); see also THE EQUAL EMP. OPPORTUNITY COMM’N, APPEALS (n.d.),
https://www.eeoc.gov/federal/fed_employees/appeal.cfm.
56 See, e.g., 29 C.F.R. § 1614.403(c); 29 C.F.R. § 1614.409.
57 THE EQUAL EMP. OPPORTUNITY COMM’N, REQUESTING RECONSIDERATION OF AN APPEAL (n.d.),
https://www.eeoc.gov/federal/fed_employees/reconsideration.cfm.
58 See THE EQUAL EMP. OPPORTUNITY COMM’N, FILING A LAWSUIT IN FEDERAL COURT (n.d.),
https://www.eeoc.gov/federal/fed_employees/lawsuit.cfm.
59 THE EQUAL EMP. OPPORTUNITY COMM’N, APPEALS (n.d.),
https://www.eeoc.gov/federal/fed_employees/appeal.cfm.
60 29 C.F.R. § 1614.405(b).

9

lawsuit in federal court within 90 days of the
EEOC’s decision on appeal.61
Review of Decisions on
Own Initiative (Without
Request of a Party)
Miscellaneous

The Commission can reopen any decision
through its own action.62
[none]

Appellate Authority’s Procedures
Record on Review

EEOC attorneys review the agency
investigation, decision of the Administrative
Judge, hearing transcript, and statements by
parties to the appeal.63 EEOC does not
consider new evidence unless that evidence
was not reasonably available at the time of
the original agency decision.64

Submissions by Parties in
Support of Appeal

Claimants may file briefs within 30 days of
filing the notice to appeal.65 Likewise, the
agency may file a brief in support of its
decision within 20 days of filing the appeal.66

Issue Preservation

Claimants may appeal agency final decisions,
procedural decisions, and mixed case
complaints.67 Issues not raised may still be

61 THE EQUAL EMP. OPPORTUNITY COMM’N, FILING A LAWSUIT IN FEDERAL COURT (n.d.),

https://www.eeoc.gov/federal/fed_employees/lawsuit.cfm.
62 See THE EQUAL EMP. OPPORTUNITY COMM’N, MANAGEMENT DIRECTIVE 110 (n.d.),
https://www.eeoc.gov/federal/directives/md-110_chapter_9.cfm (citing Parnell v. Dep’t of Veterans’
Affairs, EEOC Request No. 0520100031 (Dec. 7, 2009)).
63 See THE EQUAL EMP. OPPORTUNITY COMM’N, APPEALS (n.d.),
https://www.eeoc.gov/federal/fed_employees/appeal.cfm; see also THE EQUAL EMP. OPPORTUNITY
COMM’N, MANAGEMENT DIRECTIVE 110 (n.d.), https://www.eeoc.gov/federal/directives/md110_chapter_9.cfm.
64 See THE EQUAL EMP. OPPORTUNITY COMM’N, APPEALS (n.d.),
https://www.eeoc.gov/federal/fed_employees/appeal.cfm.
65 See THE EQUAL EMP. OPPORTUNITY COMM’N, MANAGEMENT DIRECTIVE 110 (n.d.),
https://www.eeoc.gov/federal/directives/md-110_chapter_9.cfm.
66 Id.
67 Id.

10

considered adjudicated under the doctrine of
res judicata.68
Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

Generally, the record from the hearing level
is considered complete, absent some showing
that it much be supplemented to “avoid a
miscarriage of justice.”69

Standard of Review

These appeals are reviewed de novo, unless
they are findings of fact by an Administrative
Judge.70 Those findings of fact are based on a
substantial evidence standard of review. 71

Consultation with Staff and The Commission delegates appeal reviews to
Other Agency Officials
the OFO.72 OFO staff are present at
numerous levels of the appeals process. 73
Oral Argument

There is scarce evidence of oral arguments for
EEOC appeals. There is some evidence at the
hearing level that the administrative judge
may request the claimants present oral
statements, but it is not required. 74

Amicus Participation;
Intervention; etc.

There is no public evidence that amicus briefs
or intervention are permitted during the
appeals process.

68 See https://www.eeoc.gov/federal/digest/xiv-4.cfm#res (discussing effect of res judicata on

issues); see Bezelik v. National Security Agency, EEOC Request No. 05A11104 (May 8, 2003).
69 See THE EQUAL EMP. OPPORTUNITY COMM’N, MANAGEMENT DIRECTIVE 110 (n.d.),
https://www.eeoc.gov/federal/directives/md-110_chapter_9.cfm.
70 29 C.F.R. § 1614.405(a)
71 29 C.F.R. § 1614.405(a); see also THE EQUAL EMP. OPPORTUNITY COMM’N, MANAGEMENT
DIRECTIVE 110 (n.d.), https://www.eeoc.gov/federal/directives/md-110_chapter_9.cfm.
72 29 C.F.R. § 1614.404(a).
73 See THE EQUAL EMP. OPPORTUNITY COMM’N, FEDERAL SECTOR QUALITY PRACTICES FOR
EFFECTIVE HEARINGS, APPEALS, AND OVERSIGHT (n.d.), https://www.eeoc.gov/federal/qualitypractices.cfm (detailing staff’s communication with claimants, review of records, review of
management directives, and other tasks as required).
74 The Equal Emp. Opportunity Comm’n, An Overview of the EEO Process in the Federal Sector,
20 THE DIGEST OF EQUAL EMP. OPPORTUNITY L. 2 (2009), https://www.eeoc.gov/federal/digest/xx2.cfm (“At the close of testimony the AJ may ask or direct the parties to present oral or written
closing statements.”)

11

Public Access to Hearings

Federal sector hearings are closed to the
public.75

Staff’s Role in Writing
Decisions

There is no indication there are limits on the
OFO’s role in assisting the Commission in
drafting opinions.

Deadlines for Decision

The EEOC has 180 days to complete
investigations.76 The Commission has 90
days to accept or dismiss a class complaint.77
There is no indication there is a set timeline
for appeals decisions.

Nature of Decision

Appeals decisions provide an appropriate
remedy pursuant to 29 C.F.R. § 1614, subpart
E.78 This remedy is mandatory and binding
on the relevant agency.79

Reconsideration,
Rehearing, etc.

A claimant may request a reconsideration
within 30 days of receiving the appellate
decision, after which their brief must be filed
within 20 days.80 Reconsiderations are
permitted for “clearly erroneous
interpretation[s] of material fact or law” or
decisions that “will have a substantial impact
on the policies, practices, or operations of the
agency.”81

Miscellaneous

[none]

Other Case-Management Features

75 Id.
76 See THE EQUAL EMP. OPPORTUNITY COMM’N, FEDERAL SECTOR QUALITY PRACTICES FOR

EFFECTIVE HEARINGS, APPEALS, AND OVERSIGHT (n.d.), https://www.eeoc.gov/federal/qualitypractices.cfm.
77 29 C.F.R. § 1614.405(b).
78 29 C.F.R. § 1614.501-.505; see also THE EQUAL EMP. OPPORTUNITY COMM’N, MANAGEMENT
DIRECTIVE 110 (n.d.), https://www.eeoc.gov/federal/directives/md-110_chapter_9.cfm.
79 Id.
80 Id.
81 29 C.F.R. § 1614.405(c).

12

Interlocutory Appeals:
Availability, Procedures,
Standard

Available cases appear to indicate that
interlocutory appeals by the EEOC are
allowed.82

Assignment of Cases

No publicly available document addresses the
assignment of cases, including the delegation
of decision-making authority to OFO and
Commission members.

Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

N/A

Aggregation

The Commission and the Office of Federal
Operations’ procedures do not provide for
aggregation. However, appeals will be
consolidated and considered simultaneously
when the agency and claimant file appeals
based on the same complaint.83

Miscellaneous

[none]

Form of Decisions, Publication, and Precedential Status
Form of Decision

OFO, on behalf of the Commission, issues a
written decision.84

Signed or Per Curiam

Decisions are issued on behalf of the
Commission and, in effect, per curiam. 85
OFO decisions always contain the name of
the Director.86

82 See, e.g., EEOC v. Caterpillar, 409 F.3d 831, 833 (7th Cir. 2005); EEOC v. Stanley Automotive

Enterprises, Inc., No. 5-07CV0206-C (5th Cir).
83 See THE EQUAL EMP. OPPORTUNITY COMM’N, MANAGEMENT DIRECTIVE 110 (n.d.),
https://www.eeoc.gov/federal/directives/md-110_chapter_9.cfm.
84 29 C.F.R. § 1614.405(a).
85 See id.
86
Sylvia Farrington v. Janet Napolitano, EEOC Appeal No. 0720090011 (January 19, 2011) (decision signed by
OFO Director Carlton M. Hadden); Kathleen A. Carle v. Sean C. O’Keefe, EEOC Appeal No. 01922369
(January 5, 1993) (decision signed by OFO Director Ronnie Blumenthal).

13

Dissents

There are no public official dissenting
opinions.87

Publication

EEOC appeals are available online through
the EEOC’s portal.88 The EEOC also
publishes a list of “notable” decisions that it
periodically updates.89

Where Published

EEOC appeals are available online through
the EEOC’s portal.90

Precedential Status

Decisions are binding on the applicable
parties.91 Decisions are issued based on
EEOC precedent from prior decisions. 92

Miscellaneous

[none]

Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below
Guidance Documents
Governing Hearing-Level
Adjudicators

The EEOC provides guidance documents for
charges filed with the Commission to
determine cognizable claims, cover parties,
and other threshold requirements. 93

Feedback to Adjudicators

There is no public information about
providing feedback to the adjudicators.

87 See THE EQUAL EMP. OPPORTUNITY COMM’N, APPEALS (n.d.),

https://www.eeoc.gov/federal/fed_employees/appeal.cfm.
88 See THE EQUAL EMP. OPPORTUNITY COMM’N, FEDERAL SECTOR APPELLATE DECISIONS (n.d.),
https://www.eeoc.gov/federal/decisions.cfm.
89 See THE EQUAL EMP. OPPORTUNITY COMM’N, SELECTED NOTEWORTHY FEDERAL SECTOR
APPELLATE DECISIONS (n.d.), https://www.eeoc.gov/federal/selected_decisions.cfm.
90 See THE EQUAL EMP. OPPORTUNITY COMM’N, FEDERAL SECTOR APPELLATE DECISIONS (n.d.),
https://www.eeoc.gov/federal/decisions.cfm.
91 THE EQUAL EMP. OPPORTUNITY COMM’N, MANAGEMENT DIRECTIVE 110 (n.d.),
https://www.eeoc.gov/federal/directives/md-110_chapter_9.cfm.
92 See THE EQUAL EMP. OPPORTUNITY COMM’N, FEDERAL SECTOR QUALITY PRACTICES FOR
EFFECTIVE HEARINGS, APPEALS, AND OVERSIGHT (n.d.), https://www.eeoc.gov/federal/qualitypractices.cfm.
93 See generally THE EQUAL EMP. OPPORTUNITY COMM’N, EEOC COMPLIANCE MANUAL (n.d.),
https://www.eeoc.gov/policy/docs/threshold.html#2-II-A-1-a.

14

Quality-Assurance Reviews
and Related Mechanisms

There is no public information about qualityassurance measures taken within the EEOC
adjudications. Moreover, the Quality
Guidelines published by the Commission
expressly state that adjudicative proceedings
are generally not covered by the quality
assurance guidelines.94

Participation of Appellate
Body in Substantive
Rulemaking

The Commission promulgates substantive
rules detailing different discriminatory
actions covered under its purview.95

Miscellaneous

[none]

Miscellaneous
Alternative Dispute
Resolution (ADR)

EEOC requires all agencies develop ADR
programs that promote fairness by being
voluntary, confidential, enforceable, and led
by a neutral party.96

Participation of Appellate
Body in Agency Decisions
on Judicial Review

Nothing in the EEOC’s action is intended to
affect a person’s right to judicial review. 97

94 THE EQUAL EMP. OPPORTUNITY COMM’N, GUIDELINES FOR ENSURING AND MAXIMIZING THE

QUALITY, OBJECTIVITY, UTILITY, AND INTEGRITY OF INFORMATION DISSEMINATED BY THE U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (n.d.),
https://www.eeoc.gov/eeoc/plan/informationquality/qualityguidelines.cfm (“Examples of
information generally NOT covered by these guidelines include . . . [i]nformation collected in or
relating to the EEOC's administrative and adjudicative processing . . . .”)
95 See, e.g., 29 C.F.R. § 1604.1-.11 (guidelines on discrimination based on sex); 29 C.F.R. § 1605.1.3 (guidelines on discrimination based on religion); 29 C.F.R. § 1606.1-.8 (guidelines on
discrimination based on national origin).
96 See THE EQUAL EMP. OPPORTUNITY COMM’N, ALTERNATIVE DISPUTE RESOLUTION PROGRAMS IN
THE FEDERAL SECTOR (n.d.), https://www.eeoc.gov/federal/digest/xii-1-3.cfm.
97 See 29 C.F.R. § 1614.407 (describing right to file a claim for relief in district court under Title
VII).

15

Role and Participation of
Appellate Body in Writing
Rules

The EEOC has the authority to issue rules,
regulations, orders, and instructions for
compliance to federal agencies.98

Miscellaneous

[none]

PUBLICLY AVAILABLE CASE STATISTICS
In Fiscal Year (FY) 2018, the EEOC received 76,418 charges of workplace
discrimination.99 The majority of charges were for retaliation (51.6%), sex
(32.3%), and disability discrimination (32.2%). 100 From these charges, EEOC filed
199 lawsuits on behalf of complainants, bringing the total number of cases on its
docket to 302 cases at the end of the fiscal year. 101 EEOC had successful
outcomes in 95.7% of its cases.102 In FY 2019, the EEOC caseload decreased
slightly to 72,675 charges of workplace discrimination.103 A majority of these
charges were for retaliation (53.8%), racial discrimination (33%), and sex
discrimination (32.4%).104
TREATISES AND SCHOLARSHIP OF NOTE
Nancy M. Modesitt, The Hundred-Years War: The Ongoing Battle Between Courts
and Agencies Over the Right to Interpret Federal Law, 74 MISSOURI L. REV. 949 (2009).

98 See generally 42 U.S.C.A. § 2000e-4 (providing for authority and powers of the Equal

Employment Opportunity Commission).
99 THE EQUAL EMP. OPPORTUNITY COMM’N, EEOC RELEASES FISCAL YEAR 2018 ENFORCEMENT AND
LITIGATION DATA (April 10, 2019), https://www1.eeoc.gov/eeoc/newsroom/release/4-10-19.cfm.
100 Id.
101 Id.
102 Id.
103 The Equal Emp. Opportunity Comm’n, Charge Statistics (Charges filed with the EEOC) FY
1997 Through FY 2019, https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm.
104
Id.

16

Commented [S1]: Will likely want to add some more
sources here.

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
APPENDIX J
MERIT SYSTEMS PROTECTION BOARD
INTRODUCTION
The Merit Systems Protection Board (“MSPB”)1 is principally an
adjudicatory agency2 vested by statute with both original jurisdiction and
appellate jurisdiction over a number of different types of claims arising from
federal agencies’ personnel actions. The overwhelming number of cases
adjudicated by the MSPB arise under its appellate jurisdiction.3
Original-jurisdiction cases—few in number—are those in which the MSPB
adjudicates a federal employee’s (or applicant’s) claim in the first instance. The
MSPB’s original jurisdiction extends to only four types of actions: (1) those
brought against an agency by the Office of the Special Counsel to remediate,
among other things, the agency’s retaliation against a whistleblower; (2) those
brought by the Special Counsel, among things, to discipline an employee for
1 “MSPB” is used here to refer to the agency as a whole. “Board” is used to refer to the three-

member board that sits atop the agency and serves as its final adjudicative decision-maker. As
explained below, the Board hears appeals from decisions of the MSPB’s hearing-level
adjudicators.
2 See 5 C.F.R. § 1200.1 (“The [MSPB] is an independent Government agency that operates like a
court.”); see also 5 U.S.C. § 1204(a) (describing MSPB’s powers and functions as adjudicatory).
Federal law also assigns MSPB limited non-adjudicatory functions. See 5 U.S.C. § 1204(a). They
include reviewing the validity of certain rules of the Office of Personnel Management (OPM). See
5 U.S.C. § 1204(f). For an overview of the MSPB, see JON O. SHIMABUKURO & JENNIFER A.
STAMAN, CONG. RES. SERV., MERIT SYSTEMS PROTECTION BOARD (MSPB): A LEGAL OVERVIEW
(2019) [hereinafter CRS].
3 See CRS, supra note 2, at 1. In FY 2016, 98% of the cases decided by the Board (1,154 of 1,178)
arose under the MSPB’s appellate jurisdiction. See MSPB, ANNUAL REPORT FOR FY 2016 (2017),
https://www.mspb.gov/publicaffairs/annual.htm. That was the last complete fiscal year in which
the Board had a quorum. It has not had a quorum since January 1, 2017, and hence has not
decided any cases since then. See id. at 1. The MSPB’s hearing-level adjudicators continue to
decide cases. See id. at 1, 13. See generally CRS, supra note 2, at 15–16.

engaging in certain prohibited personnel actions; (3) those brought against an
agency by a member of the Senior Executive Service challenging his/her removal
from the Service; and (4) those brought by an agency to discipline or remove an
administration law judge (ALJ).4 Hearings in original jurisdiction cases held
before an MSPB administrative judge or (as is sometimes required) an ALJ.5
They result in initial decisions that,6 with one relatively minor exception, are
appealable to the Board under the procedures governing appellate cases
discussed below.7
Appellate-jurisdiction cases are those in which a federal employee petitions
the MSPB to review an adverse decision by his/her employing agency following a
very informal adjudication—that is, an adjudication in which a hearing is not
required by statute.8 The MSPB’s appellate jurisdiction covers a number of
different types of cases arising under the federal civil service laws.9
They include, most notably, cases in which an agency takes an adverse
action of particular seriousness—termination being the most serious of them—
against a civil service employee.10 Its appellate jurisdiction also covers (although
the MSPB’s rules do not specifically denominate them as either “original” or
“appellate”11) agency decisions otherwise appealable to the MSPB as an adverse
action in which an employee alleges that his/her employing agency has
discriminated on the basis race, sex, disability status, or some other federally
protected characteristic.12 These cases are commonly called “mixed cases.”13

4 See 5 C.F.R. § 1201.2. For an overview, see CRS, supra note 2, at 6–9.
5 Cases in which an ALJ, rather than an administrative judge, presides over a hearing include

those in which the Special Counsel challenges an agency’s disciplinary action against an
employee. See 5 C.F.R. § 1201.125.
6 See 5 C.F.R. pt. 1201, subpt. D.
7 See id. § 1201.125(b) (special counsel disciplinary cases against agency employee); id. §
1201.131(b) (special counsel corrective action cases against agency); id. § 1201.137 (action against
ALJ).
8 See 5 U.S.C. § 7513(b)–(c).
9 See id. § 7701; 5 C.F.R. § 1201.3. Section 1201.3 lists the main types of cases.
10 See 5 U.S.C § 7512; 5 C.F.R. 1201.3(a); see also Kloeckner v. Solis, 568 U.S. 41, 44 (“The Civil
Service Reform Act of 1978 (CSRA), 5 U. S. C. §1101 et seq., establishes a framework for
evaluating personnel actions taken against federal employees. If (but only if ) the action is
particularly serious—involving, for example, a removal from employment or a reduction in grade
or pay—the affected employee has a right to appeal the agency’s decision to the MSPB, an
independent adjudicator of federal employment disputes. See §§1204, 7512, 7701.”) “Most” of the
cases appealed to the MSPB involve adverse actions against employees. Jurisdiction, MSPB,
https://www.mspb.gov/About/jurisdiction.htm (last visited Mar. 10, 2020).
11 See 5 C.F.R. pt. 1201, subpt. E; see also 5 U.S.C. § 7702.
12 See 5 U.S.C § 7702.
13 See, e.g., Kloeckner, 568 U.S. at 44.

2

An appellate case14 begins with an employee’s filing of an “appeal” of
his/her agency’s informal adjudicative decision (known as a “decision notice”).15
After a trial-like evidentiary hearing (though not one governed by the formal
hearing provisions of the Administrative Procedure Act16) before a non-ALJ
adjudicator called an “administrative judge,” the judge issues an “initial
decision.”17 (A very small number of cases are heard before administrative law
judges.18)
The initial decision becomes the Board’s final decision within 35 days of
issuance unless a petition for review is filed.19 The Board may deny the petition,
in which case the administrative judge’s initial decision becomes the Board’s final
decision (although it is not precedential), or grant the petition (or a cross-petition
from the other party), in which case it will issue a final decision itself.20 (A rule of
practice, described below, sets forth the criteria for granting a petition.)
MSPB decisions are subject to judicial review under a somewhat unique
system. Mixed cases aside, most final MSBP decisions are subject to review only
in the U.S. Court of Appeals for the Federal Circuit.21 The exception are cases
involving alleged retaliation against whistleblowers and similar unlawful actions.
They may be filed, at the petitioner’s election, in either the Federal Court or “any
court of appeals of competent jurisdiction.”22 (The judicial-review statutes confers
the right to seek review not only an employee (or applicant for employment)
adversely affected by a final Board order, but also OPM when it determines that
the Board “erred in interpreting a civil service law or regulation “affecting
personnel management” and the interpretation “will have a substantial impact
on such a law or regulation (including a “policy directive”).23)
One important feature of the judicial review system is that an employee
can, in effect, bypass the Board altogether and appeal an MSPB administrative
judge’s decision directly to the Federal Circuit (or, in a whistleblower case,
14 The hearing procedures for appellate cases are set forth in 5 C.F.R. pt. 1201, subpt B. There are

special provisions for hearings in certain kinds of appellate cases. See, e.g., id. § 1209
(whistleblowing cases). Appeals to the Board in those cases are governed by the rules, see id. pt.
1201, subpt. C, described below. See, e.g., id. § 1209.3 (providing that whistleblower cases are
subject to the subpart C review rules).
15 See 5 C.F.R. § 1201.21–22.
16 See 5 U.S.C. §§ 554, 556–557.
17 5 C.F.R. § 1201.111.
18 For a list, see id. § 1200(g)(2).
19 See id. § 1201.33.
20 See id.
21 See 5 U.S.C. § 7703(b)(1)(A).
22 Id. § 7703(b)(1)(B).
23 Id. § 7703(d). At least so long as OPM intervened in the case before the Board or, if it did not,
petitioned the Board unsuccessfully for reconsideration. See id. On the procedures and time limits
governing review, see id. § 7703(a)(1), (b)(1), (d)(1).

3

another circuit). That is because the administrative’ judge’s decision “become[s]
the Board’s final decision” within 35 days of its issuance unless the employee
seeks Board review,24 and the administrative exhaustion provision of the MSPB’s
rules do not require a petition for Board review.25 This is an especially important
feature at time when, as noted above, the Board does not have a quorum and
hence cannot review initial decisions.
In mixed cases, the claimant may seek review of an MSPB decision before
the Equal Employment Opportunity Commission.26 If the claimant does not seek
EEOC review or the EEOC declines to review the MSPB’s decision, the decision
is subject to judicial review (de novo)27 in a United States district court.28
CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
NOTE: The following table covers the appeal of “appellate cases” from hearinglevel adjudicators (usually administrative judges) to the three-member Board. As
noted above, other cases are appealed under the same or similar procedures.
Governing Law
Procedural Law

Board appellate procedures are governed by
statute, C.F.R.-codified procedural rules, and
precedential Board decisional law.29
There are no guidance documents governing
the adjudicative activities of the Board.30
There are some explanatory materials on the
Board’s website for litigants.31

24 5 C.F.R. § 1201.113.
25 See id. § 1201.113(e).
26 See 5 U.S.C. § 7702)(b)(1); see also 5 C.F.R. § 1201.161.
27 See 5 U.S.C. § 7703(a)(3); see also 5 C.F.R. §§ 1201.161–162.
28 See 5 U.S.C. 7703(b)(2).
29 See id. § 1204; 5 C.F.R. pt. 1201, subpt. C. (main appellate procedures); see also supra note 14

(noting the application of the subpart C appellate rules to other types of cases).
30 The MSPB does maintain a handbook for administrative judges governing hearing-level
procedures. See MSPB, JUDGES’ HANDBOOK (2019), https://www.mspb.gov/appeals/appeals.htm.
The “Handbook is designed to provide supplemental guidance to the Board’s rules. The
procedures in this Handbook are not mandatory, and adjudicatory error is not established solely
by failure to comply with a provision of this Handbook.” Id. at 1.
31 See, e.g., How to File an Appeal, MSPB, https://www.mspb.gov/appeals/appeals.htm (last visited
March 10, 2020).

4

Substantive Law

The substantive law is provided by various
statutes (Civil Service Act, federal antidiscrimination laws), and rules promulgated
by other agencies, including OPM.
The Board’s rules are all fairly characterized
as procedural.32

Miscellaneous

The Board may not issue advisory opinions.33

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
Appealable

The Board reviews decisions of (non-ALJ)
adjudicators called “administrative judges”
and a very small number of decisions of
administrative law judges (ALJs).

Nature of Hearing-Level
Proceedings

Hearing-level proceedings held before
administrative judges in appellate cases are
trial-like adjudications required by statute
but not governed by the formal hearing
provisions of the APA (i.e., Type B cases).34

Nature of Hearing-Level
Decision

The administrative judge issues at an initial
decision after the record closes.35 The initial
decision must contain, among other things,
“findings of act and conclusions of law upon
all the material issues of fact and law
presented on the record”; the reasons for the
findings and conclusions; and an order
“making final disposition of the case,
including appropriate relief.”36

Transfer of Case to
Appellate Body After
Hearing-Level Decision

The administrative judge’s decision either
becomes the Board’s final decision, or, if
review is granted by the Board (see below), it
is placed on the Board’s docket. In either

32 See 5 C.F.R. ch. II. On the Board’s rulemaking authority, see 5 U.S.C. § 1204(h).
33 See 5 U.S.C. § 1204(h).
34 See 5 C.F.R. p. 1201.
35 See id. § 1201.11(a).
36 Id. § 1201.11(b).

5

case, the administrative judge retains
jurisdiction for only very limited purposes.37
Miscellaneous

“Initial decisions are not precedential.”38

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

Administrative judge’s decisions are reviewed
directly by the Board. (There is no
intermediate appellate adjudicator.)39

Legal Status of Reviewing
Authority(ies)

The Board is established by statute as the
agency’s final decision-making authority.40

Miscellaneous

[none]

Institutional Attributes of Appellate/Reviewing Authority(ies)
Number of Members

The Board is composed of three members.
One serves as the chairman and another as
the vice chairman.41 (See also rows below.)

Qualification Requirements

Board members must be “individuals who, by
demonstrated ability, training, or experience
are especially qualified to carry out the
functions of the Board.”42

Party Affiliation
Requirement in
Appointment

Not more than two Board members may be
“adherents of the same political party.”43

Method of Appointment

Members of the Board are appointed by the
President with the advice and consent of the
Senate. One member is appointed by the
President, with the advice and consent of the

37 See id. § 1201.112.
38 Id. 1201.113.
39 See id. §§ 1201.33; pt. 1201, subpt. C.
40 See 5 U.S.C. § 7701–7702.
41 See id. § 1201; 5 C.F.R. § 1200.2.
42 5 U.S.C. § 1201.
43 Id.

6

Senate, as the chairman;44 another member
is designated by the President as the vice
chairman.45
Term of Appointment

Members are appointed for seven year
terms.46 They may serve on holdover status
upon the expiration of their terms for a
specific duration specified by statute.47

Statutory Removal
Protections

The President may remove a Board member
“only for inefficacy, neglect of duty, or
malfeasance.”48

Location within Agency;
Basis of Legal Authority

The Board sits at the top the MSPB as the
final decisionmaker. 49 It is established by
statute.50

Authority to Delegate to
Subunit(s); Designating
Official and Process

There is no such authority (with respect to
the Board’s appellate adjudicative
functions).51 Decisions are by majority vote.52
See also “Miscellaneous” below.

Quorum Requirement

A quorum consists of two members.53 See also
“Miscellaneous” below.

Authority and Function of
Appellate Authority’s Head

By statute, the Chairman is the chief
executive and administrative officer of the
Board.54 Neither statute nor regulation,
however, provides for any special
adjudicative authority for the chairman.

Internal Management
Structure of Appellate
Authority

N/A. The Board does not sit in panels.

44 See id. § 1203(a).
45 See id. § 1203(b); 5 C.F.R. § 1200.2.
46 See 5 U.S.C. § 1202(a); 5 C.F.R. § 1200.2.
47 See 5 U.S.C. § 1202(c). On the filling of vacancies, see id. § 1202(c).
48 Id. § 1202(d).
49 See id. § 1204.
50 See id. § 1201.
51 See 5 C.F.R. § 1200.3(b).
52 Id. § 1200.3(a).
53 See id. § 1200.3(3).
54 See 5 U.S.C. § 1203(a).

7

Miscellaneous

If, for any reason (e.g., recusal), the Board
“members are unable to decide any case by
majority vote”—assuming a quorum of two
members (see above)—the administrative
judge’s decision becomes the final decision of
the Board.55 The decision is not
precedential.56

Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

The review of an initial decision is
discretionary with the Board. MSPB rules
provide a non-exhaustive list of “situations in
which the Board may grant review”: “the
initial decision contains erroneous findings of
material fact” (that is, an outcomedeterminative error); the initial decision is
based on an outcome-determinative
“erroneous interpretation of statute or
regulation or . . . application of the law to the
facts of the case”; the administrative “judge’s
rulings during either the course of the appeal
[i.e., the hearing] or the initial decisions were
not consistent with required procedures or an
involved an abuse of discretion and the
resulting error affected the outcome of the
case”; or “[n]ew and material evidence or
legal argument is available that, despite the
petitioner’s due diligence, was not available
when the record [before the judge] closed.”57
“Notwithstanding” the above list, “the Board
reserves the authority to consider any issue
in an appeal before it.”58

55 Id. 5 C.F.R. § 200.3(b). If, as a result of vacancy, recusal, or otherwise, the Board members

cannot decide a “matter in case that does not involve a decision, recommendation or order, the
Chairman may” refer the “matter to an administrative judge or other official for final disposition.”
Id. § 12003(c).
56 Id. § 1200.3(d).
57 Id. § 1201.115(a).
58 Id. § 1201.115(e).

8

When the petitioner seeks review of an
evidentiary determination, “there must be at
least enough specified in the petition to
enable the Board to ascertain whether there
may be a serious evidentiary question
justifying a complete review of the
record. . . . . Before the Board will undertake
the burden of a complete review of the record,
the petitioning party must, as the regulation
plainly states, explain in the petition why the
challenged factual determination is incorrect,
and identify the specific evidence in the
record which demonstrates the error.”59
How Appeal Initiated

An appeal is initiated by a petition for review
or a cross-petition for review.60 A petition for
review is a “pleading in which a party
contends that an initial decision was
incorrectly decided in whole or in part.”61

Time For Appealing

Subject to a technical exception, an appeal in
the form of a petition for review must be filed
within 35 days after the issuance of the
initial decision.62 A cross petition must be
filed within 25 days of service of the petition
for review.”63

If No Appeal Taken from
Hearing Officer’s Decision

If no petition for review is filed within the 35day time period, the administrative judge’s

59 How to File an Appeal (The Petition for Review Process), MSPB,

https://www.mspb.gov/appeals/appeals.htm (lasted visited Aug. 16, 2020) (modifications in
original) (quoting Weaver v. Dept. of the Navy, 2 M.S.P.R. 129, 133 (1980), review denied, 669
F.2d 613 (9th Cir. 1982).
60 See 5 C.F.R. § 1201.114(a). “No specific format is required for filing a petition for review.” How
to File an Appeal (The Petition for Review Process), MSPB,
https://www.mspb.gov/appeals/appeals.htm (lasted visited Aug. 16, 2020).
61 Id. § 1201.114(a)(1). “A cross petition for review . . . is used to describe a pleading that is filed
by a party when another party has already filed a timely petition for review.” Id. § 1201.114(a)(2).
62 See id. § 1201.114(e).
63 Id. The Board may extend the time to file a pleading upon the filing of a motion showing “good
cause.” Id. § 1201.114(f). Any untimely pleading must be accompanied by a motion “that shows
good cause for the untimely filing.” Id. § 1201.114(g). Even in the “absence of a motion,” however,
the Board “may, in its discretion, determine on the basis of the existing record whether there was
good cause for the untimely filing, or it may provide the late filer an opportunity to show why the
filing “should not be dismissed or excluded as untimely.” Id.

9

initial decision “becomes the Board’s final
decision 35 days after issuance.”64
If Appeal Taken

The initial decision does not become final if
any part files a petition for review,65 subject
to the following: If the petition is denied: The
initial decision “will not become the Board’s
final decision” unless and until the Board
“issues its last decision denying” the
petition.66 If the petition is granted: “If the
Board grants a petition for review or a cross
petition for review, or reopens or dismisses a
case, the decision of the Board is final if it
disposes of the entire action.”67

Review of Decisions on
Own Initiative (Without
Request of a Party)

The Board may hear an appeal on its own
initiative—that is, in the absence of a
petition for review.68

Miscellaneous

Administrative remedies: They are
“exhausted when a decision becomes
final[].”69
Who may seek review? A party to the
proceedings before the administrative judge
as well OPM, but in the latter case only if
OPM believes the decision is “erroneous and
will have a substantial impact on any civil
service law, rule, or regulation under OPM’s
jurisdiction.”70 The Special Counsel may also
sometimes seek review under a specific
statutory provision.71

64 Id. § 1201.113.
65 See id. § 1201.113(a). Nor will the decision become final if, in the absence of a petition for

review, any party “files a request that the initial be vacated” so that an of-record settlement
agreement can be accepted. Id.
66 Id. § 1201.113(b).
67 Id. § 1201.113(c).
68 See 5 U.S.C. § 7701(e)(1).
69 5 C.F.R. § 1201.113(e).
70 Id. § 1201.114(c).
71 Id. (citing 5 U.S.C. 1212(c)).

10

Authority of singe board member: A single
board member may grant a petition for
review or direct that a case be reviewed.72
Appellate Authority’s Procedures
Record on Review

The rules do not specify the contents of the
record.

Submissions by Parties in
Support of Appeal

The Board allows only the following
submissions (unless it orders otherwise upon
the filing of a motion73)—all called
“pleadings”: a petition for review, a crosspetition for review, a response to a cross
petition for review, and a reply to a petition
for review.74
A petition for cross petition for review “states
a party’s objection to the initial decision,
including all of the party’s legal and factual
arguments.”75
The Board may order the filing of briefs.76

Issue Preservation

MSPB rules do not address the issue.

Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

As noted above, one situation that may
warrant board review is the availability of
“[n]ew and material [documentary] evidence .
. . that, despite the petitioner’s due diligence,
was not available when the record [at the
hearing level] closed. To constitute new
evidence the information contained in the
documents, not just the documents
themselves, must have been unavailable

72 See 5 U.S.C. § 7701(e)(1).
73 See 5 C.F.R. § 1201.114 (a)(5).
74 See id. § 1201.114(a). A cross petition for review may be contained in the same document as a

response to a petition for review. Id. § 1201.114(a)(3). A reply to a response to a petition “is
limited to the factual and legal issues raised by another party” in response to the petition. Id. §
1201.114(a)(4). On the form of the submissions, see id. § 1201.114(h). That section notes that “a
well-written petition . . . is between 5 and 10 pages.” Id.
75 Id. § 1201.114(b).
76 See id. § 1201.117(a)(3).

11

despite due diligence when the record
closed.”77
Any such new documentary evidence should
appear in a petition (or cross-petition) before
the Board.78 The petition “must explain “why
the evidence or argument was not presented
before the record below closed.”
The record in Board-level proceeding closes at
the at the conclusion of the petition-forreview stage. “No additional evidence . . . will
be accepted unless it is new and material”—
under the above definition—and the
submitting party “shows” that it was not
available when the record before the Board
closed.”79
Standard of Review

Neither statue nor rules provide for a
standard of review. Under Board case law,
review is basically de novo, except with
respect to demeanor-based credibility
determinations, which receive deference.80
See also above (“Nature of Appeal:
Discretionary Versus as of Right; If
Discretionary, Standards for Allowance”).

Consultation with Staff and The MSPB has an Office of Appeals Counsel
Other Agency Officials
that “prepared proposed decision that
recommend appropriate action by the Board”
77 Id. § 1201.115(d).
78 Id. § 1201.114(b).
79 Id. 1201.114(k).
80 See Weaver v. Department of the Navy, 2 M.S.P.R. 297, 298–99 (1980) (““[I]n reviewing an

initial decision, this Board is free to substitute its own determinations of fact for those of the
presiding official, giving the presiding official's findings only so much weight as may be warranted
by the record and by the strength of the presiding official's reasoning. . . . The presiding officials
have no independent statutory jurisdiction. Under this statutory scheme, it would not be
appropriate for the Board to apply customary standards of appellate review, such as “clearly
erroneous” or “arbitrary or capricious,” to the findings of fact set forth in the initial decisions of its
own employees.” [But when] when questions of credibility are presented, due deference must
necessarily be given to the assessment of the presiding official who was present to hear and
observe the demeanor of the witnesses.”). When the Board rejects demeanor-based credibility
determinations, it must supply “sound” reasons for doing so. Haebe v. Dept. of Justice, 288 F.3d
1288 (Fed. Cir. 2002).

12

in, among other cases, “petition for review
cases.”81
Oral Argument

The Board may order oral argument.82

Amicus Participation;
Intervention; etc.

By statute, OPM and Special Counsel may
intervene as of right, through a notice of
intervention, as follows:
By statute, OPM’s may intervene whenever it
“is of the opinion that an erroneous decision
would have a substantial impact on any civil
service law, rule, or regulation” under OPM’s
jurisdiction.83 (The MSPB must promptly
notify . . . [OPM] whenever the interpretation
of any civil service law, rule, or regulation
under the jurisdiction of the Office is at
issue.”84)
By statute, OPM must, if it wishes to
participate, do so “as early in the proceeding
as practicable.”85 MSPB rules provide that
OPM must do so within 45 days of the date a
petition for review is filed, unless, upon
OPM’s motion, the Board provides additional
time.86
The Special Counsel “may as a matter of
right intervene or otherwise participate in
any proceeding before the . . . [MSBP].”87 In
certain cases, though, the Special Counsel
may only do so with the consent of the federal
employee who filed the case.”88

81 5 C.F.R. § 1200.10(b)(2).
82 See id. § 1201.117(a)(2).
83 5 U.S.C. § 7701(d)(1); see also 5 C.F.R. § 1201.114(i)(1).
84 5 U.S.C. § 7701(d)(2).
85 Id. § 7701(d)(1)(B).
86 5 C.F.R. § 1201.114(I).
87 5 U.S.C. § 1221(c); 5 C.F.R. § 1201.114(i)(2).
88 See 5 U.S.C. § 1221(c)(2); 5 C.F.R. § 1201.114(i)(2).

13

If OPM or the Special Counsel files a notice of
intervention, a party to the case may file a
response within 15 days.89
MSPB rules also provides for permissive
intervention: Any “person, organization, or
agency . . . may ask for permission to
intervene.” So, too, may a person alleged to
have committed a “prohibited personnel
practice under 5 U.S.C. § 2302(b).”90
The Board’s appellate rules do not provide for
amicus participation, but its hearing-level
rules do, and those rules are seemingly
applicable to appeals before the Board. They
provide than an amicus (defined as a “person
or organization who, although not a party to
an appeal, gives advice or suggestions”) “may
seek permission to file a brief,” even if the
amicus does not “qualify as [an] intervenor[];
that the “Board may solicit amicus briefs on
its own motion”; and that the Board may
allow an amicus to participate in oral
argument.”91
Public Access to Hearings

No statute or rule address public access to
hearings.

Staff’s Role in Writing
Decisions

Neither statute nor rule addresses this
subject.

Deadlines for Decision

None is provided for by statute or rule.

Nature of Decision

The Board may, among other things, “[i]ssue
a decision that decides the case”; “[r]emand
the appeal so that the judge may take further
testimony or evidence or making further
findings of fact”; or “[t]ake any other action
necessary for final disposition of the case.”92

89 5 C.F.R. § 1201.114(i).
90 Id. § 1201.114(i)(3).
91 Id. § 1201.34.
92 Id. § 1201.117.

14

When issuing a decision, the Board may
“affirm, reverse, modify, or vacate the initial
decision of the judge, in whole or in part. The
Board may issue a final decision and, when
appropriate, order a date for compliance.”93
Reconsideration,
Rehearing, etc.

The Board “may at any time reopen any
appeal in which it has issued a final order or
in which an initial decision has become the
Board’s final decision by operation of law.”94
The Board will exercise this “discretion . . .
only in unusual or extraordinary
circumstances and generally within a short
time after the decision becomes final.”95
OPM may, within 35 days after the Board’s
final decision, petition the Board to
reconsider the decision if OPM “determines”
that the Board “erred in interpreting a civil
service law, rule or regulation affecting
personnel management,” or the Board’s
“decision will have a substantial impact on a
civil service law, rule, regulation, or policy
directive.”96 OPM’s petition may be
accompanied by a request to say the Board’s
decision pending the Board’s
reconsideration.97

Miscellaneous

Closing of the appellate record: The record on
appeal to the Board closes upon the filing of
the “response to the petition for review or on
expiration of the period for filing a response
to the cross petition for review, whichever is
later, or the brief on intervention, if any, or
any other date the Board sets for this
purpose.”98 Upon the closing of the record,
the Board will not accept any “additional

93 Id. § 1201.117(b).
94 Id. § 1201.118.
95 Id.
96 Id. § 1201.119(c). The criteria is set forth in 5 U.S.C. § 7703(d). On the procedures governing an

OPM petition for reconsideration, see 5 C.F.R. § 1201.119(c).
97 See 5 C.F.R. § 1201.119(d).
98 See id. § 1201.114(k).

15

evidence or argument . . . unless it is new and
material” and the submitting party “shows”
that it was not “readily available before the
record closed.”99
Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard

An administrative judge may certify a ruling
for interlocutory appeal, either on the motion
of a party or his/her own motion,100 but “only
if the record shows that” the “ruling involves
an important question of law or policy about
which there is substantial ground for
difference of opinion” and “an immediate
ruling will materially advance the completion
of the proceeding, or the denial of an
immediate ruling will cause undue harm to a
party or the public.101
The Board “will” decide any certified issue.102

Assignment of Cases

No publicly available document addresses the
assignment of cases.

Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

N/A

Aggregation

The rules governing hearing-level decisions
provide for “class appeals”;103 the rules
governing appeals to the Board do not.

Miscellaneous

By statute, “any member of the Board may
request” from OPM “an advisory opinion
concerning the interpretation of any rule,

99 Id.
100 Id. § 1201.91.
101 Id. § 1201.92. On the procedures governing a request for certification before a judge, see id. §

1201.93. There are no special rules governing the disposition of an interlocutory appeal before the
Board.
102 Id. § 1201.91.
103 See id. § 1201.27.

16

regulation, or other policy directive
promulgated by [OPM].”104
Form of Decisions, Publication, and Precedential Status
Form of Decision

The Board writes its own, judicial-like
opinion independent of the administrative
judge’s decision. Compare, e.g., Appendix –
NLRB.

Signed or Per Curiam

Decisions are issued under the names of all
members in the majority. They are, in effect,
per curium.

Dissents

Like a circuit-court judge, a Board member
may write a dissenting or concurring opinion.

Publication

Board decisions are published.

Where Published

Decisions are published in the Merit Systems
Protection Board Reporter.105 All decisions
are available on the MSPB’s website.

Precedential Status

The Board’s decision may designate its
decisions as precedential, which takes the
form of an “Opinion or Order”; or nonprecedential, which takes the form of an
“Order.”106
A precedential decision “may be
appropriately cited and referred to by any
party” in a case.107
MSPB rules explain the reason for
designating certain decisions as nonprecedential and their effect as follows:

104 5 U.S.C. § 12014(e)(1)(A).
105 MSPB Decisions, MSPB, https://www.mspb.gov/decisions/decisions.htm (last visited Aug. 16,

2020).
106 5 C.F.R. § 1201.117(c); see also id. § 1201.117(c)(1).
107 Id. § 1201.117(c)(1).

17

“A nonprecedential Order is one that the
Board has determined does not add
significantly to the body of MSPB case law.
The Board may, in its discretion, include in
nonprecedential Orders a discussion of the
issue(s) to assist the parties in understanding
the reason(s) for the Board's disposition in a
particular appeal. Nonprecedential Orders
are not binding on the Board or its
administrative judges in any future appeals
except when it is determined they have a
preclusive effect on parties under the
doctrines of res judicata (claim preclusion),
collateral estoppel (issue preclusion), judicial
estoppel, or law of the case. Parties may cite
nonprecedential Orders, but such orders have
no precedential value; the Board and its
administrative judges are not required to
follow or distinguish them in any future
decisions. In contrast, a precedential decision
issued as an Opinion and Order has been
identified by the Board as significantly
contributing to the Board’s case law.”108
Miscellaneous

In select case, MSPB staff prepares and
publishes on the MSPB website “case
reports.” They summarize Board decisions,
and federal-court decisions reviewing them,
of particular importance. Among other
things, each report concisely summarizes a
decision’s holding. The case reports on the
MSPB’s website go back to 2007.109

Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below
Guidance Documents
Governing Hearing-Level
Adjudicators

The Board does not issue guidance
documents governing hearing-level
adjudications.

108 Id. § 1201.120(c)(2).
109 See Case Reports, MSPB, https://www.mspb.gov/decisions/casereports.htm (last visited Aug.

16, 2020).

18

Feedback to Adjudicators

N/A

Quality-Assurance Reviews
and Related Mechanisms

N/A

Participation of Appellate
Body in Substantive
Rulemaking

N/A

Miscellaneous

[none]

Miscellaneous
Alternative Dispute Resolution
(ADR)

N/A

Participation of Appellate Body in
N/A
Agency Decisions on Judicial Review
Role and Participation of Appellate
Body in Writing Rules

N/A: As noted above, the Board is
the agency’s rulemaking authority.

Miscellaneous

[none]

19

PUBLICLY AVAILABLE CASE STATISTICS
As noted above, the Board has not had a quorum since January 2017. The
last fiscal year in which the Board had a quorum for the entirety of the year was
FY 2016. In that year, the Board received petitions for review of initial decisions
in 652 cases (excluding so-called furlough cases arising from a government
shutdown). The Board granted review in 15 percent of cases and denied review in
75 percent. (The other cases were settled or disposed of in some other way.)110 Of
the cases in which the Board granted review, it remanded the case to the
hearing-level adjudicator in 89 percent of cases, reversed the initial decision in 4
percent of cases, and affirmed the initial decision in 4% of cases.111
By comparison, in FY 2015, the Board received petitions for review of
initial decisions in 826 cases (again, excluding furlough cases). It denied review
in 75 percent cases and granted review in 15% of cases.112 Of the cases in which
the Board granted review, it remanded in 75% cases, reversed in 13% of cases,
and affirmed in 9% of cases.113
TREATISES AND SCHOLARSHIP OF NOTE114
Michael Baddanow & Thomas Lanphear, History of the Merit Systems
Protection Board, 4 FED. CIR. HIST. SOC’Y 109 (2010)
PETER BROIDA, A GUIDE TO THE MERIT SYSTEMS PROTECTION BOARD LAW
AND PRACTICE (35th ed. 2018).

JON O. SHIMABUKURO & JENNIFER A. STAMAN, CONG. RES. SERV., MERIT
SYSTEMS PROTECTION BOARD (MSPB): A LEGAL OVERVIEW (2019)
ROBERT G. VAUGHN, MERIT SYSTEMS PROTECTION BOARD: RIGHTS AND
REMEDIES (2015)

110 See MERIT SYSTEMS PROTECTION BOARD, ANNUAL REPORT FOR FY 2016 29 (2017),

https://www.mspb.gov/publicaffairs/annual.htm.
111 See id. 30.
112 See MERIT SYSTEMS PROTECTION BOARD, ANNUAL REPORT FOR FY 2015 29 (2016),
https://www.mspb.gov/publicaffairs/annual.htm.
113 See id. 30.
114 There is little scholarship on the Board’s procedural law or system.

20

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
APPENDIX K
National Labor Relations Board:
Review of ALJ Decisions in Unfair Labor Practice Cases
INTRODUCTION
Under the National Labor Relations Act (NLRA or Act), the National
Labor Relations Board (NLRB or Board1) adjudicates allegations made by its
General Counsel that an employer or labor organization violated the Act by
committing an unfair labor practice—say, by failing to bargain collectively in
good faith or discriminating against employees because of their union
membership.2 Adjudicative proceedings begin when the NLRB’s General
Counsel—a presidentially appointed, Senate confirmed official independent of the
Board—files a complaint against an employer or labor organization as the
respondent. (Complaints must be supported by an unfair labor practice charge.)
The respondent employer or union is entitled to a formal (APA) hearing
before an administrative law judge (ALJ). The ALJ issues a decision on the
complaint that includes findings of fact, conclusions of law, and (if the ALJ finds
a violation) a proposed remedy (most commonly an order that the respondent
cease and desist from the conduct that gave rise to the violation).
Both the General Counsel and the respondent may appeal the ALJ’s
decision by filing “exceptions” with the Board. (There is no intermediate appellate
body.) Final Board disposition usually consists of the issuance of a “decision and
1 “NLRB” is used here when referring to the agency as a whole, including its independent General

Counsel (and his/her large staff) and the Division of Judges (that is, of ALJs). “Board” is used
here to refer to the five-member board within the agency that has final adjudicative authority.
2 The docket number for these cases (sometimes referred to as “ULP Cases”) include the letters
“CA.” The NLRB also adjudicates, among other things, disputes involving union representation
(sometimes referred to as “R Cases”). The docketed number for R Cases include the letters “RC.”
Sometimes the Board addresses, in a consolidated-case appeal, both a ULP case and an R-case,
because they are factually and procedurally intertwined. This overview is limited to CA cases.

order” that either (1) dismisses the complaint or (2) finds the respondent in
violation of the Act and provides for an appropriate remedy. A Board order
adverse to the respondent is not self-enforcing. The Board must seek enforcement
in the U.S. Court of Appeals. The D.C. Circuit hears the majority of appeals.
CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
Governing Law
Procedural Law

Appellate procedures are governed by the
NLRA3 and C.F.R.-codified procedural rules
(called rules of practice),4 as interpreted by
the Board in precedential decisions.
There are no guidance documents (including
interpretive rules) governing the adjudicative
activities of the Board.5
The NLRB’s Office of the Executive Secretary
publishes online explanatory materials for
the public,6 and the Board’s General Counsel
publishes a case-handling manual governing
the litigating activities of his/her staff.7

Substantive Law

The NLRA provides the substantive law.
Largely alone among federal agencies, the
Board makes policy almost exclusively
through a common-law-like, case-by-case
adjudicative process; with a few discrete
exceptions, the NLRB does not issue

3 National Labor Relations Act (NLRA), as amended, 29 U.S.C. §§ 151–169. Original section

numbers from the NLRA, accompanied by U.S. Code section numbers, are used below. It is
customary to refer statutory provisions by using their original NLRA section numbers.
4 29 C.F.R. §§ 102.46–51.
5 For an argument that the Board should issue guidance documents, see Note, Policy Formulation
at the NLRB: A Viable Alternative to Notice & Comment Rulemaking, 27 CARDOZO L. REV. 1117
(2005).
6 See NLRB OFFICE OF EXECUTIVE SECRETARY, GUIDE TO BOARD PROCEDURES (2017).
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node1727/Guide%20to%20Board%20Procedures%202017_0.pdf (last visited May 20, 2019).
7 NLRB GENERAL COUNSEL, NLRB CASEHANDLING MANUAL, PT. 1, UNFAIR LABOR PRACTICE
PROCEEDINGS (2019), https://www.nlrb.gov/sites/default/files/attachments/basic-page/node1727/ulp-chm-may-2019.pdf (last visited May 20, 2019).

2

legislative rules,8 although it does have the
statutory authority to do so.9 As a result,
Board decisions rely heavily on large body of
precedential decisions that reside in
sequentially numbered bound reporters that
date back to the agency’s establishment in
1936. (See below for elaboration.)
There are no guidance documents (including
interpretive rules) governing the adjudicative
activities of the Board.
Miscellaneous

[none]

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
Appealable

The Board reviews decisions of ALJs
adjudicating unfair-labor-practice complaints
issued by the General Counsel.10

Nature of Hearing-Level
Proceedings

Proceedings before ALJs are subject to the
formal hearing provisions of the APA (Type A
under the Asimow typology).

Nature of Hearing-Level
Decision

The ALJ issues a “decision” with “findings of
fact, conclusions of law, and the reasons or
grounds” for them, as well as
“recommendations for the proper disposition
of the case.” If the ALJ finds a violation, the

8 See, e.g., NLRB, DECISIONS, https://www.nlrb.gov/news-outreach/graphs-data/decisions (last

visited July 24, 2019) (“The Board sets policy for the Agency primarily through adjudication.”);
James J. Brudney, Isolated and Politicized: The NLRB’s Uncertain Future, 26 COMP. LAB. L. &
POL’Y J. 221, 234 (2005); Mark H. Grunewald, The NLRB’s First Rulemaking: An Exercise in
Pragmatism, 41 DUKE L.J. 274 (1991). Some commentators have argued that the Board should
issue rules, if only to codify existing doctrines that reside in its decisions. See, e.g., Amy Semet,
Political Decision-Making at the National Labor Relations Board: An Empirical Examination of
the Board’s Unfair Labor Practice Decisions thorough the Clinton and Bush II Years, 37 BERK. J.
OF EMP. & LAB. L. 223, 288 (2016); Charlotte Garden, Toward Politically Stable NLRB
Lawmaking: Rulemaking v. Adjudication, 64 EMORY L.J. 1469 (2015); Alexander Acosta,
Rebuilding the Board: An Argument for Structural Change, Over Policy Prescription, at the
NLRB, 5 FLA. INT’L L. REV. 347, 359 (2010).
9 NLRA § 6, 29 U.S.C. § 156.
10 See NLRA § 10(c), 29 U.S.C. § 160(c); 29 C.F.R. § 102.46–48.

3

decision must include a recommended
remedy (“affirmative action”).11
Transfer of Case to
Appellate Body After
Hearing-Level Decision

The ALJ files the decision with the Board.
The Board then enters an order transferring
the case to itself.12

Miscellaneous

The Board may, after the issuance of a
complaint by the General Counsel, transfer
the case to itself or one of its members for a
hearing and other proceedings rather than
having it proceed before an ALJ.13 That is
rarely, if ever, done.

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

ALJ decisions are reviewed directly the
Board. There is no intermediate appellate
body.

Legal Status of Reviewing
Authority(ies)

The Board is established by statute as the
agency’s final decisionmaking authority.14

Miscellaneous

[none]

Institutional Attributes of Appellate/Reviewing Authority(ies)
Number of Members

The Board consists of five members. One is
designated by the President to serve as
chair.15

Qualification Requirements

The NLRA does not provide for any
qualification requirements.

11 29 C.F.R. § 102.45(a); see also NLRA, § 10(c), 29 U.S.C. § 160(c) (providing the if “the evidence

is presented . . . before an administrative law judge . . . , such judge . . . shall issue and cause to
be served on the parties to the proceeding a proposed report, together with a recommended order,
which shall be filed with the Board”).
12 Id. § 102.45(a). On the content of the record, see id. § 102.45(b).
13 See § 29 C.F.R. § 102.50. This is consistent with the APA. See 5 U.S.C. § 556(b) (providing that
evidence may be “taken” by the agency, “one or more of its members,” or an ALJ).
14 See NLRA § 10, 29 U.S.C § 160.
15 NLRA § 3(a), 29 U.S.C. § 153.

4

Party Affiliation
Requirement in
Appointment

The NLRA does not provide for any partyaffiliation requirements.16

Method of Appointment

Members of the Board are appointed by the
President with the advice and consent of the
Senate.17

Term of Appointment

Members of the Board are appointed for fiveyear terms.18

Statutory Removal
Protections

The NLRA provides that the President may
remove a Board member for “for neglect of
duty or malfeasance in office, but for no other
cause.”19

Location within Agency;
Basis of Legal Authority

The Board sits at the top of the agency as the
final decisionmaker. It is established by
statute.

Authority to Delegate to
Subunit(s); Designating
Official and Process

The NLRA allows the Board to delegate its
authority to three of its members.20 [Identify
designating official.]

Quorum Requirement

Three members of the Board constitute a
quorum, unless the Board delegates its
authority to three-member “group” (panel), in
which case two members constitute a quorum
(by statute).21 The Board often does.
An important qualification: If the Board
delegates its authority to a three-member
group, all three members of the group must

16 In practice, however, the appointment process has become highly partisan and ideologically

oriented. Candidates are often nominated in “packages” agreed upon in advance between the
President and Senate leaders/committee chairs. See, e.g., Semet, supra note ____, at 232.
17 Id.
18 Id.
19 NLRA § 3, 29 U.S.C. § 153.
20 See NLRA § 3(b), 29 U.S.C. § 153(c) (“The Board is authorized to delegate to any group of three
or more members any or all of the powers which it may itself exercise.”).
21 See id. (“A vacancy in the Board shall not impair the right of the remaining members to
exercise all of the powers of the Board, and three members of the Board shall, at all times,
constitute a quorum of the Board, except that two members shall constitute a quorum of any
group designated pursuant to the first sentence hereof.”).

5

remain on the Board for the delegation to
remain valid. Hence, for example, if the
Board delegates its authority to a threemember group and one departs the Board,
the two remaining members may not act on
behalf of the Board, notwithstanding the twomember quorum requirement.22
Authority and Function of
Appellate Authority’s Head

Neither the NLRA nor Board regulations vest
any particular adjudicative authority in the
Board’s chairman. [Confirm.]

Internal Management
Structure of Appellate
Authority

N/A

Miscellaneous

[none]

Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

The NLRA provides for an appeal as of right
from any ALJ decision. Either the General
Counsel or the respondent may appeal.23

How Appeal Initiated

Appeals are initiated by the filing of
“exceptions” to the ALJ’s decision. See below.

Time For Appealing

Exceptions must be filed within 28 days
(unless the Board allows additional time) of
the order transferring the case to the Board
(see above).24 Cross-exceptions must be filed
within 14 days “from the last date on which
exceptions . . . may be filed.”25

22 See New Process Steel, L.P. v. N.L.R.B., 560 U.S. 674 (2010).
23 See 29 C.F.R. § 102.46.
24 29 C.F.R. § 102.46(a).
25 Id. § 102.46(c); see also NLRA § 10(c), 29 U.S.C. § 160(c) (providing that exceptions must be

filed within 20 days after service or “within such further period as the Board may authorize”).

6

If No Appeal Taken from
Hearing Officer’s Decision

In the absence of timely exceptions, the ALJ’s
decision and order becomes the Board’s
decision and order.26

If Appeal Taken

The “Board may decide the matter upon the
record, or after oral argument, or may reopen
the record and receive further evidence before
a Board member or other Board agent or
agency, or otherwise dispose of the case.”27

Review of Decisions on
Own Initiative (Without
Request of a Party)

Neither the NLRA nor the Board’s procedural
rules provide for review of an ALJ’s decision
in the absence of an appeal by a party.

Miscellaneous

[none]

Appellate Authority’s Procedures
Record on Review

The record consists of, among other things,
the complaint, transcript of the hearing,
documentary evidence, the ALJ’s decision,
and any exceptions to it.28

Submissions by Parties in
Support of Appeal

The appealing party files detailed
“exceptions” to the ALJ’s “decision” (whether
to its findings fact, conclusions of law, or
procedural rulings); or, if other party has
filed “exceptions,” the appealing party files
“cross-exceptions.” Exceptions may be
accompanied by a supporting brief. The party
opposing the exceptions may file an
answering brief, to which any party may file
a reply brief.29 (If a brief is filed, the

26 The statute and the regulations are written a bit differently, but the import is the same. The

statue provides that, in the absence of exceptions, the ALJ’s “recommended order” (which must be
accompanied by a “report”) becomes the “order of the Board.” NLRA § 10(c), 29 U.S.C. § 160(c).
The Board’s regulation provides that, in the absence of exceptions, “the findings, conclusions and
recommendations” in the ALJ’s “decision . . . automatically become the decision and order of the
Board and become its findings, conclusions, and order.” 29 C.F.R. § 102.48(a). When timely
exceptions are not filed, “all objections and exceptions must be deemed waived.” Id.
27 Id. § 102.48(b)(2).
28 Id. 102.45(b).
29 NLRA § 10(c), 29 U.S.C. § 160(c); 29 C.F.R. § 102.46.

7

exceptions may not contain any “argument”
or “citations” to supporting authorities. They
must appear only in the brief.30)
A party may call a post-briefing
supplemental authority to the Board’s
attention,31 generally by letter.32
Issue Preservation

If a party fails to “except” to any “matter,” it
may not raise it with the Board.33

Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

The Board may “take further testimony.”34 It
does not generally do so, but rather relies on
the record in the ALJ proceedings.35

Standard of Review

The standard of review of ALJ decisions is de
novo, both as to conclusions of law and
findings of fact.36 The exception: credibility
determinations: Under long-standing
precedent, the Board defers to credibility
determinations unless “the clear
preponderance of all the relevant evidence
convinces . . . [it] that they are incorrect.”37

30 29 C.F.R. § 102.46(b)(2).
31 29 C.F.R. § 102.6.
32 See NLRB OFFICE OF EXECUTIVE SECRETARY, GUIDE TO BOARD PROCEDURES 38–39 (2017).

https://www.nlrb.gov/sites/default/files/attachments/basic-page/node1727/Guide%20to%20Board%20Procedures%202017_0.pdf (last visited May 20, 2019).
33 29 C.F.R. § 102.46(f).
34 NLRA § 10(c), 29 U.S.C. § 160(c). According to the Board’s procedural regulations, “the Board
may decide the matter upon the record, or after oral argument, or may reopen the record and
receive further evidence before a Board member, or other Board agent or agency, or otherwise
dispose of the case.” 29 C.F.R. § 102.48(b)(1). But see NLRB OFFICE OF EXECUTIVE SECRETARY,
GUIDE TO BOARD PROCEDURES 38 (2017) [add parenthetical].
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node1727/Guide%20to%20Board%20Procedures%202017_0.pdf (last visited May 20, 2019) (providing
that, under 29 C.F.R. § 102.48(b), the Board decides cases “based on the record”).
35 NLRB OFFICE OF EXECUTIVE SECRETARY, GUIDE TO BOARD PROCEDURES 36, 38 (2017).
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node1727/Guide%20to%20Board%20Procedures%202017_0.pdf (last visited May 20, 2019).
36 [citation]
37 Standard Dry Wall Products, 91 NLRB 544 (1950), enf’d 188 F.2d 362 (3d Cir. 1951). The Board
invariably cites Standard Dry Wall as the basis of the rule. See, e.g., Jamaica Car Wash, 365
N.L.R.B. No. 106, slip op. at 1 n.1 (2017). See generally Semet, supra note _____, at 237 (noting
that, under Board case law, “the Board has virtually no discretion to upset the credibility or
factual judgments of the NLRB”). Professor Semet’s statement of the law is correct with respect to

8

Consultation with Staff and A member may consult only with his/her
Other Agency Officials
legal “assistant” and other Board members
about the ALJ decision under review.38 (The
NLRA also includes an explicit prohibition on
consultation with an ALJ whose decisions is
under review.39)
Oral Argument

Either party may request oral argument.
Oral argument is discretionary with Board. If
oral argument is allowed, each participating
party gets 30 minutes.40 The Board “rarely”
allows oral argument.41

Amicus Participation;
Intervention; etc.

Amicus briefs may be filed only with the
permission of the Board upon motion.42
The Board may—and, in cases raising
important questions, occasional does—solicit
amicus briefs.43
Neither the NLRA nor the Board’s rules of
practice provide for intervention on appeal.
But “[o]n occasion when special
circumstances arise, the Board has granted
intervention requests to permit the filing of

credibility determinations, but not factual determinations generally. It is true, though, that
empirical analyses reveal a high level of deference in practice to ALJ factual determinations. See,
e.g., Cole D. Taratoot, Review of Administrative Law Judge Decisions by the Political Appointees
of the NLRB, 1991–2006, 23 J. OF PUB. ADMIN. RES. & THEORY, 551, 556–67 (2013).
38 NLRA § 154, 29 U.S.C. § 154.
39 See id.
40 29 C.F.R. § 102.46(g).
41 NLRB OFFICE OF EXECUTIVE SECRETARY, GUIDE TO BOARD PROCEDURES 12 (2017).
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node1727/Guide%20to%20Board%20Procedures%202017_0.pdf (last visited May 20, 2019).
42 Id. § 102.46(i).
43 See id. § 102.46(i)(5); see also NLRB, INVITATION TO FILE AMICUS BRIEFS,
https://www.nlrb.gov/cases-decisions/filing/invitations-file-briefs (last visited May 18, 2019) (“[The
Board] occasionally invites the public to file amicus briefs in cases of significance or high
interest.”). The invitations generally identify the specific questions the Board wants addressed.
See NLRB, ARCHIVED NOTICES FOR BRIEFS AND INVITATIONS, https://www.nlrb.gov/casesdecisions/filing/invitations-file-briefs/archived-notices-briefs-and-invitations (last visited May 18,
2019).

9

exceptions by an interested party. The Board
has discretion to grant intervention in special
cases to such an extent and upon such terms
as it deems proper.”44
Public Access to Hearings

No statute or rule address public access to
hearings. [Confirm in Exec. Sec.’s overview.]

Staff’s Role in Writing
Decisions

The NLRA prohibits the Board from
employing attorneys to review transcripts or
prepare opinions, but it does permit an
attorney “assign[ed as a legal assistant to
any Board member” to do so.45

Deadlines for Decision

None is provided for in the NLRA or the
Board’s rules of practice.

Nature of Decision

If the Board finds that a respondent has
violated the NLRA, it must “state its findings
of fact” and issue an appropriate remedial
order; if it finds that the respondent has note
violated the Act, the Board must issue an
order dismissing the complaint.46

Reconsideration,
Rehearing, etc.

After the Board issues a “decision or order,” a
party may, “because of extraordinary
circumstances move for reconsideration,
rehearing, or reopening of the record, within
28 days of the Board’s order or decision
(unless the Board allows additional time).47
A motion to reopen the record must be based
on one of two principal grounds: “newly
discovery evidence” or “evidence which has
become available only since the close of the
evidence.” The movant must establish that

44 NLRB OFFICE OF EXECUTIVE SECRETARY, GUIDE TO BOARD PROCEDURES 38 (2017).

https://www.nlrb.gov/sites/default/files/attachments/basic-page/node1727/Guide%20to%20Board%20Procedures%202017_0.pdf (last visited May 20, 2019).
45 NLRA § 4, 29 U.S.C. § 154.
46 NLRA § 10(c), 29 U.S.C. § 160(c).
47 29 C.F.R. § 102.48(c).

10

the additional evidence, if true, would
“require a different result.”48
If the case is decided by a panel of the Board,
a party may seek review by the full Board,
but “they are rarely granted.”49
Miscellaneous

At any time before the filing of the record
with a reviewing court, the Board “may at
any time, upon reasonable notice, . . . modify
or set aside” any “finding” or “order.”50

Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard

A party may file a request with the Board for
permission to file a special appeal of any nonfinal decisions by the ALJ. The party must do
so” promptly and within such time as not to
delay the proceedings.” The appeal itself
must accompany the request. Any statement
in opposition must be filed within seven days
thereafter. If the Board grants the request, it
“may proceed immediately to rule on the
appeal.”51 The Board generally so proceeds.52

Assignment of Cases

No publicly available document addresses the
assignment of cases, including the delegation
of decision-making authority to threemember panels. [Confirm.]

Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

N/A

48 Id. § 102.48(c)(1).
49 NLRB OFFICE OF EXECUTIVE SECRETARY, GUIDE TO BOARD PROCEDURES 39 (2017).

https://www.nlrb.gov/sites/default/files/attachments/basic-page/node1727/Guide%20to%20Board%20Procedures%202017_0.pdf (last visited May 20, 2019). The reason
is that before any published/precedential decision is issued by a panel, non-panel members review
the decision and may join the panel. See id.
50 NLRA § 10(d), 29 U.S.C. 160(d); accord 29 C.F.R. § 102.49.
51
29 C.F.R. § 102.26.
52
See, e.g., Beaumont Hosp., 370 N.LR.B. No. 9, at 1, 2020 WL 4754961 (Aug. 13, 2020).

11

Aggregation

Neither the NLRA nor the Board’s procedural
rules provide for aggregation on appeal. But
cases are regularly consolidated at the
hearing-level stage, and when they are, they
come to the Board in that posture.53

Miscellaneous

[none]

Form of Decisions, Publication, and Precedential Status
Form of Decision

Sometimes the Board writes its own decision.
Sometimes it summarily adopts all—or part
of—the ALJ’s decision.54 The ALJ’s decision
(which is often long by agency standards) is
always appended to the Board’s decision and
appears in the Board’s bound volumes.

Signed or Per Curiam

Decisions are issued under the names of all
members in the majority. They are, in effect,
per curium.

Dissents

Members may, and do frequently, write
dissenting opinions, which immediately
follow the Board’s decision.

Publication

All decisions are made available on NLRB’s
website. Decisions involving the final
disposition of complaints charging unfair
labor practices are deemed “published”;55
other decisions—usually involving
interlocutory decisions (often on procedural
matters)—are listed on page of NLRB’s
website under the heading “Unpublished
Board Decisions” (i.e., “not intended or
appropriate for publication”).56

53 See, e.g., 29 C.F.R. § 102.33 (consolidation of proceedings).
54 One prominent federal judge has referred to the Board’s practice as “writing opinions in the

form of commentaries (usually in footnotes . . .) on the administrative law judge’s always much
longer and more comprehensive opinion”). UAW v. NLRB, 802 F.2d 969, 972 (7th Cir. 1986)
(Posner, J.). The practice has drawn criticism from some federal judges. See, e.g., id.
55 NLRB, BOARD DECISIONS, https://www.nlrb.gov/cases-decisions/decisions/board-decisions (last
visited May 19, 2019).
56 NLRB, UNPUBLISHED BOARD DECISIONS, https://www.nlrb.gov/casesdecisions/decisions/unpublished-board-decisions (last visited May 19, 2019).

12

The NLRB also provides on its website a
weekly summary of its decisions, and it
identifies “notable decisions” there.57
Where Published

Published decisions are published, first in
slip-opinion form, on the NLRB’s website;
several years after their issuance, they are
published in bound volumes (similar to the
United States Reports), which are available
on the NLRB’s website.58 [Volumes still
printed?]
Unpublished decisions after February 4,
2011, appear on the NLRB’s website on a
separate page titled “Unpublished Board
Decisions.”59 Unpublished decisions before
that date are not available on the website.

Precedential Status

All published decisions of the Board (see
above) are precedential and hence binding on
the Board (as well as ALJs of course) in
subsequent cases.60 (When the Board issues a
decision adopting the ALJ’s decision, the
ALJs decision in effect becomes precedential
as a decision of the Board, even if the Board
does not write its own decision.61) Decisions
designated as “unpublished” are nonprecedential (“except with respect to the
parties in the specific case”).62

Miscellaneous

[none]

Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below
57 NLRB, NOTABLE BOARD DECISIONS, https://www.nlrb.gov/cases-decisions/decisions/notable-

board-decisions (last visited May 19, 2019).
58 NLRB, BOARD DECISIONS, https://www.nlrb.gov/cases-decisions/decisions/board-decisions (last
visited May 19, 2019).
59 NLRB, UNPUBLISHED BOARD DECISIONS, https://www.nlrb.gov/casesdecisions/decisions/unpublished-board-decisions (last visited May 19, 2019).
60 See generally Allentown Mack v. NLRB, 522 NLRB 359 (1998). [Review citation.]
61 [citation?]
62 NLRB, UNPUBLISHED BOARD DECISIONS, https://www.nlrb.gov/casesdecisions/decisions/unpublished-board-decisions (last visited May 19, 2019).

13

Guidance Documents
Governing Hearing-Level
Adjudicators

The Board does not issue guidance
documents governing ALJ adjudications.

Feedback to Adjudicators

[none]

Quality-Assurance Reviews
and Related Mechanisms

[none]

Participation of Appellate
Body in Substantive
Rulemaking

Substantive rules are promulgated by the
Board. (As noted above, most Board rules are
procedural rather than substantive.)63

Miscellaneous

[none]

Miscellaneous
Alternative Dispute Resolution
(ADR)

Parties may participate in voluntary
settlement discussions of cases
pending before the Board with the
assistance of an NLRB-appointed
mediator. The mediator is usually
employed by the Federal Mediation
and Conciliation Service, with which
the NLRB has contracted for
mediation services.64
In 2018, the NLRB launched a pilot
program under which its Executive
Secretary “proactively engage
parties” with pending cases to
determinate whether there cases are
“appropriate” for ADR.65

63 [citation]
64 NLRB, ALTERNATIVE DISPUTE RESOLUTION, https://www.nlrb.gov/about-nlrb/what-we-do/decide-

cases (last visited July 24, 2019).
65 Press Release, NLRB, NLRB Launches Pilot of Proactive Alternative Dispute Resolution
Program (July 10, 2018), https://www.nlrb.gov/news-outreach/news-story/nlrb-launches-pilotproactive-alternative-dispute-resolution-program.

14

Participation of Appellate Body in
The Board does not participate in
Agency Decisions on Judicial Review decisions relating to judicial review
of its decisions. Such decisions are
made by the General Counsel.
[Confirm. What about settlements?]
Role and Participation of Appellate
N/A: As noted above, the Board is
Body in Writing Rules
the agency’s rulemaking authority.
Miscellaneous

[none]

15

PUBLICLY AVAILABLE CASE STATISTICS
In Fiscal Year 2018, the NLRB disposed of 18,226 unfair-labor-practice
charges. The General Counsel issued 1,088 complaints, which was down from
1,263 in the preceding fiscal year.66 The Board issued 341 decisions.67 (Nearly all
of the decisions involved complaints issued in preceding years.)
[Review 2018 PAR to see if there’s any additional information.]
TREATISES AND SCHOLARSHIP OF NOTE68
Alexander Acosta, Rebuilding the Board: An Argument for Structural
Change, Over Policy Prescription, at the NLRB, 5 FLA. INT’L L. REV. 347, 359
(2010)
Samuel Estreicher, Depoliticizing the National Labor Relations Board:
Administrative Steps, 64 EMORY L.J. 1611 (2015)
Catherine L. Fisk & Deborah C. Malamud, The NLRB in Administrative
Law Exile: Problems with Its Structure and Functions and Suggestion for Reform,
58 DUKE L.J. 2013 (2009)
Charles Garden, Toward Politically Stable NLRB Lawmaking:
Rulemaking v. Adjudication, 64 EMORY L.J. 1469 (2015)
Julius B. Getman, The NLRB: What Wrong and Should We Try to Fix It?
64 EMORY L.J. 1495 (2015)

66 See NLRB, CHARGES AND COMPLAINTS, https://www.nlrb.gov/news-outreach/graphs-

data/charges-and-complaints/charges-and-complaints (last visited May 20, 2019).
67 See NLRB, DISPOSITION OF UNFAIR LABOR PRACTICE CHARGES IN FY 2018,
https://www.nlrb.gov/news-outreach/graphs-data/charges-and-complaints/disposition-unfairlabor-practice-charges (last visited May 20, 2019).
68 The literature on the NLRB is voluminous. Much of its focuses on the NLRB’s substantive
interpretations of the NLRA and its ideological predilections during particular administrations.
Below is a selective list of recent scholarship on the NLRB that focuses mainly on institutional
and procedural consideration, chief among them the choice between rulemaking and adjudication
in policymaking and statutory interpretation. The rulemaking-adjudication questions has for
decades figured prominently in scholarship about the NLRB. See, e.g., Merton C. Bernstein, The
NLRB’s Adjudication-Rulemaking Dilemma under the Administrative Procedure Act, 79 YALE L.J.
571 (1970); see also Antonin Scalia, Back to Basics: Making Law without Making Rules, 5
REGULATION 25 (1981) (“[The NLRB] . . . has been a notable holdout in the trend to rulemaking,
and has achieved that distinction by the simple expedient of nonaction-declining to issue rules, so
that it is left free and, indeed, compelled to establish the content of the statutory prohibition of
“unfair labor practices” in the individual grievance proceedings brought before it.)

16

William B. Gould, IV, Politics and the Effects of the National Labor
Relations Board’s Adjudicative and Rulemaking Processes, 64 EMORY L.J. 1501
(2015)
WILLIAM B. GOULD IV, LABORED RELATIONS: LAW, POLITICS, AND THE
NLRA—A MEMOIR (2000)
SECTION OF LABOR AND EMPLOYMENT LAW, AMERICAN BAR ASSOCIATION,
HOW TO TAKE A CASE BEFORE THE NLRB (Brent Garren et al. ed., 9th ed. 2016)
SECTION OF LABOR AND EMPLOYMENT LAW, AMERICAN BAR ASSOCIATION,
DEVELOPING LABOR LAW: THE BOARD, THE COURTS, AND THE NATIONAL LABOR
RELATIONS ACt (John E. Higgins Jr. ed., 7th ed. 2017)69
Paul M. Secunda, Politics Not As Usual: Inherently Destructive Conduct,
Institutional Collegiality, and the National Labor Relations Board, 32 FLA. ST. U.
L. Rev. 51 (2004)
Amy Semet, Political Decision-Making at the National Labor Relations
Board: An Empirical Examination of the Board’s Unfair Labor Practice Decisions
through the Clinton and Bush II Years, 37 BERKELEY J. EMP. & LAB. L.223 (2016)
Sidney A. Shapiro & Richard Murphy, Politicized Judicial Review in
Administrative Law, 19 GEO. MASON L. REV. 319 (2012)
Cole D. Taratoot, Review of Administrative Law Judge Decisions by the
Political Appointees of the NLRB, 1991-2006, 23 J. PUB. ADMIN. RES. & THEORY
551 (2013)

69 This is the only current treatise on labor law.

17

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
APPENDIX L
Patent & Trademark Office – Patent Trial & Appeal Board:
Review of Patentability Decisions
INTRODUCTION
Under the Leahy–Smith America Invents Act (AIA or Act), the Board of
Patent Appeals and Interferences was redubbed the Patent Trial and Appeal
Board (PTAB).1 Situated within the Patent and Trademark Office (PTO)2, the
PTAB “decides appeals from the decisions of patent examiners, and adjudicates
the patentability of issued patents challenged by third parties in post-grant
proceedings.”3 In addition to retaining jurisdiction over reexaminations and
patent interferences, the AIA gave the PTAB authority over four new types of
proceedings to review patent grants: Post-Grant Review (PGR), Inter Partes
Review (IPR), Covered Business Method Review (CBMR), and derivation.4 These
new adjudicatory channels were “designed to create a cheaper, faster alternative
to district court patent litigation.”5 While these proceedings are presided over by
panels of three administrative patent judges (APJs),6 the PTAB also consists of
certain statutory members, namely the Director of the PTO, the Deputy Director
of the PTO, the Commissioner for Patents, and the Commissioner for

1 35 U.S.C. § 6(a) (2012).
2 “PTO” is used here when referring to the agency as a whole; “PTAB” is used here when referring

to the more discrete adjudicatory body consisting of the Director of the PTO, the Deputy Director
of the PTO, the Commissioner for Patents, the Commissioner for Trademarks, and the stable of
APJs.
3 Janet Gongola, The Patent Trial and Appeal Board: Who are they and what do they do? U.S.
PAT. & TRADEMARK OFF., https://www.uspto.gov/learning-and-resources/newsletter/inventorseye/patent-trial-and-appeal-board-who-are-they-and-what (last updated July 8, 2019).
4 35 U.S.C. § 6(b) (2012).
5 Christopher J. Walker & Melissa F. Wasserman, The New World of Agency Adjudication, 107
CALIF. L. REV. 141, 158 (2019).
6 35 U.S.C. § 6(c) (2012).

Trademarks.7 However, unlike certain other agency adjudicatory processes, the
Director of the PTO lacks direct review authority over PTAB determination.8
While these proceedings have differing eligibility and time-bar
requirements,9 each must occur in an adversarial, court-like hearing in which
parties are entitled to oral argument and discovery.10 The APJs—“persons of
competent legal knowledge and scientific ability who are appointed by the
Secretary [of Commerce], in consultation with the [Patent Office] Director,”11
must (at least seemingly) render decisions based on the evidentiary record. 12
Parties wishing to appeal decisions rendered by the PTAB may request a
rehearing13 or may appeal directly to the Court of Appeals for the Federal
Circuit.14
While the PTAB has always had the ability to designate one of its opinions
“precedential,” the PTAB recently revised its standard operating procedures
regarding such a designation.15 These revisions modify the existing precedential
designation process to afford the Director significantly more authority over the
decision and establish a new Precedential Opinion Panel (POP) comprising the
Director, the Commissioner for Patents, and the Chief Administrative Patent
Judge, which rehears issues in PTAB trials.16 The POP is intended to “establish
binding agency authority concerning major policy or procedural issues . . . in the
limited situations where it is appropriate to create such binding agency authority
through adjudication before the Board.”17

7 35 U.S.C. § 6(a) (2012).
8 Walker & Wasserman, supra note 5 (noting that, although the Director “lacks final decision-

making authority over PTAB decisions, [ ] she can influence PTAB outcomes by designating APJs
to the PTAB panel that she hopes share her views”).
9 See, e.g., 37 C.F.R. §§ 42.102, 42.202 (2018) (setting forth timing requirements for institution of
IPR, PRG, respectively).
10 37 C.F.R. § 42.62 (2018).
11 35 U.S.C. § 6(a) (2012).
12 See Walker & Wasserman, supra note 5, at 164 (PTAB decision is “[p]robably” limited to bases
included in hearing record, given the requirement that “[a]ll evidence must be filed in the form of
an exhibit”) (quoting 37 C.F.R. § 42.63(a) (2018)).
13 35 U.S.C. § 6(c) (2012).
14 35 U.S.C. § 141 (2012).
15 See generally PAT. TRIAL & APPEAL BOARD, STANDARD OPERATING PROCEDURE 2 (REVISION 10)
(2018), available at
https://www.uspto.gov/sites/default/files/documents/SOP2%20R10%20FINAL.pdf [hereinafter
PAT. TRIAL & APPEAL BOARD, SOP 2].
16 Id. at 4 (giving the Director wide latitude to select the members of the POP and to impanel
more members than the default). This may allow the Director to ensure the POP renders a
decision in line with the Director’s view.
17 Id. at 3.

2

CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
Governing Law
Procedural Law

Procedures for ex-parte appeals, inter-partes
appeals, interferences,18 and PGR, IPR,
CBMR, and derivation proceedings19 are
governed by C.F.R.-codified rules
promulgated by the PTO pursuant to its AIA
authority.20
The PTO released a “Trial Practice Guide” in
2012, which contains additional guidance
regarding practice in front of the PTAB and
has been amended twice.21
The PTO also maintains a Manual of Patent
Examining Procedure (MPEP) intended to
“provide [PTO] patent examiners, applicants,
attorneys, agents, and representatives of
applicants with a reference work on the
practices and procedures relative
to the prosecution of patent applications and
other proceedings before the [PTO].”22

Substantive Law

The substantive requirements of the patent
law are codified in 35 U.S.C. Part II,
Chapters 10–18. The PTO does not appear to

18 These appear generally at 37 C.F.R. Part 41, entitled “Practice Before the Patent Trial and

Appeal Board.”
19 These appear generally at 37 C.F.R. Part 42, entitled “Trial Practice Before the Patent Trial
and Appeal Board.”
20 The AIA gives the PTO the power to “prescribe regulations . . . establishing and governing”
PTAB proceedings as well as “the relationship of such review to other proceedings under [the
Patent Act].” 35 U.S.C. §§ 316(a)(4), 326(a)(4) (2012).
21 Trial Practice Guide July 2019 Update, U.S. PAT. & TRADEMARK OFF.,
https://www.uspto.gov/patents-application-process/patent-trial-and-appeal-board/trial-practiceguide-july-2019-update (last updated Sep. 13, 2019); U.S. PAT. & TRADEMARK OFF., TRIAL
PRACTICE GUIDE UPDATE (2019), available at
https://www.uspto.gov/sites/default/files/documents/trial-practice-guide-update3.pdf.
22 U.S. PAT. & TRADEMARK OFF., FOREWORD (2018), available at
https://www.uspto.gov/web/offices/pac/mpep/mpep-0015-foreword.pdf.

3

have general rulemaking authority regarding
the substance of the U.S. Patent Act.23
The PTAB has recently adopted new
procedures to designate opinions as
precedential.24 The “Precedential Opinion
Panel” intends to “establish binding agency
authority concerning major policy or
procedural issues . . . in the limited situations
where it is appropriate to create such binding
agency authority through adjudication before
the Board.”25 It remains to be seen how the
Federal Circuit will handle opinions
designated by the POP as precedential.26
Miscellaneous

[none]

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
Appealable

The PTAB reviews appeals from adverse
decisions on patent applications, rejection of
claims in patent reexaminations, and
conducts derivation proceedings, IPRs, PGRs,
and CBMRs.27

23 See, e.g., John M. Golden, Working Without Chevron: The PTO as Prime Mover, 65 DUKE L.J.

1657, 1659 (2016) (citing Merck & Co. v. Kessler, 80 F.3d 1543, 1550 (Fed. Cir. 1996)). However,
the USPTO does have a few “narrow and specific ‘islands’ of substantive rulemaking authority.”
David Boundy, The PTAB Is Not an Article III Court, Part 3: Precedential and Informative
Opinions, 47-1 AIPLA Q.J., 1, 6 (2019) (listing recognition of attorneys, fee setting, standards for
substitute statements, and conduct of inter partes and post-grant review proceedings, among
other “islands”).
24 See generally PAT. TRIAL & APPEAL BOARD, SOP 2.
25 Id. at 3.
26 See Brief for U.S. as Amicus Curiae, Facebook, Inc. v. Windy City Innovations, LLC, No. 181400 (Fed. Cir. Sep. 17, 2019) (contending that opinions of the PTAB designated as precedential
by the POP qualify for Chevron deference); See also John M. Golden, A Walk in the Deference
Labyrinth: Further Comment on Facebook v. Windy City, PATENTLY-O (Sep. 27, 2019),
https://patentlyo.com/patent/2019/09/deference-labyrinth-facebook.html (suggesting that the
Federal Circuit could hold that “the POP’s precedential statutory interpretations [merit Chevron
deference] only for interpretations resolving questions that fall within the ambit of express
statutory grants of PTO rulemaking authority”—that is, for interpretations governing procedure
rather than substance). The line dividing procedure and substance, however, may be murky. Id.
27 35 U.S.C. § 6(b) (2012).

4

Nature of Hearing-Level
Proceedings

Decisions of Patent Examiners during the
prosecution process are the basis of appeals
to the PTAB, whether “appealed” by the
prosecuting party or a third party.

Nature of Hearing-Level
Decision

If final rejection, the hearing-level decision
will “repeat or state all grounds of rejection
then considered applicable to the claims in
the application, clearly stating the reasons in
support thereof.”28 Otherwise, the petition for
review is actually in response to a patent
grant.

Transfer of Case to
Appellate Body After
Hearing-Level Decision

Parties unsatisfied with the decision of the
patent examiner must request appellate
review by filing petition or requesting
appeal.29

Miscellaneous

[None]

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

Appealed final examiner decisions are
reviewed directly by the PTAB. There is no
intermediate appellate body.30

Legal Status of Reviewing
Authority(ies)

The PTAB is established by statute31 It is the
Agency’s final decision-making authority,
although cases may be reheard at the
discretion of the Director and decisions may
be appealed to the Federal Circuit.32

Miscellaneous

[none]

Institutional Attributes of Appellate/Reviewing Authority(ies)

28 37 C.F.R. § 1.113(b) (2018).
29 See, e.g., 35 U.S.C. § 134 (2012) (appealing to PTAB from final rejection by patent examiner).
30 See Id.
31 35 U.S.C. § 6(c) (2012).
32 35 U.S.C. § 141 (2012) (allowing for appeal of PTAB decision to the Federal Circuit).

5

Number of Members

As of calendar year 2018, the “Board Size”
was 261.33

Qualification Requirements

APJs “shall be persons of competent legal
knowledge and scientific ability.”34 The
Director must be a U.S. citizen and go
through the appointment process.35 The
Director must also have experience in patent
or trademark law.36
The Deputy Director of the USPTO is
nominated by the Director, appointed by the
Secretary of Commerce, and must be a U.S.
citizen with a professional background in
patent or trademark law.37
The Commissioners for Trademarks and
Patents must be U.S. citizens with
management ability and professional
background in their trademarks and patents,
respectively.38

Party Affiliation
Requirement in
Appointment

The AIA does not set forth any Party
Affiliation Requirement.

Method of Appointment

APJs are appointed “by the Secretary [of
Commerce], in consultation with the Director
[of the PTO].”39

33 U.S. PAT. & TRADEMARK OFF., PATENT PUBLIC ADVISORY COMMITTEE QUARTERLY MEETING:

PATENT TRIAL AND APPEAL BOARD UPDATE (Nov. 8, 2018),
https://www.uspto.gov/sites/default/files/documents/20181108_PPAC_PTAB_Update.pdf
[hereinafter PTAB UPDATE (Nov. 2018)]. It is not clear whether this includes the four “statutory
members” of the PTAB, or only APJs.
34 35 U.S.C. § 6(a) (2012). There is some criticism among the patent bar regarding the scientific
competency of APJs. See Charles W. Shifley, “Your PTAB Judges Will Be Experts” – Right? …
Not So Fast, BANNER & WITCOFF: PTAB HIGHLIGHTS (July 26, 2016), available at
https://s3.amazonaws.com/documents.lexology.com/f68e5d6f-59bb-4ddd-8d531224ffc08cfa.pdf?AWSAccessKeyId=AKIAVYILUYJ754JTDY6T&Expires=1574267270&Signatur
e=OkMS3Jux0ooxk%2F%2Ba0NQ4w3YM70k%3D.
35 35 U.S.C. § 3(a)(1) (2012).
36 Id.
37 Id.
38 Id.
39 35 U.S.C. § 6(a) (2012).

6

The Director (also Under Secretary of
Commerce for Intellectual Property) is
appointed by the President with advice and
consent of the senate.40
The Deputy Director of the USPTO is
nominated by the Director and appointed by
the Secretary of Commerce.41
The Commissioners for Trademarks and
Patents are appointed by the Secretary of
Commerce.42
Term of Appointment

APJs do not have a definitive term of
appointment.
Commissioners are appointed for a term of 5
years.43

Statutory Removal
Protections

The Court of Appeals for the Federal Circuit
recently held that APJs are
unconstitutionally appointed; the Federal
Circuit ruled that APJs are “principal
officers” because neither the Director of the
PTO nor the Secretary of Commerce exercise
sufficient supervision and control over APJs
to render them inferior officers.44 To remedy
this, the court held that the Director must be
given authority to remove APJs without
cause.45
The Director is removable by the President.46
[How is Deputy Director removed?]
“The Commissioners may be removed from
office by the Secretary for misconduct or

40 35 U.S.C. § 3(a)(1) (2012).
41 35 U.S.C. § 3(b)(1) (2012).
42 35 U.S.C. § 3(b)(2)(A) (2012).
43 35 U.S.C. § 3(b)(2)(A) (2012).
44 Arthrex, Inc. v. Smith & Nephew, Inc., No. 18-2140, 2019 WL 5616010 at *8 (Fed. Cir. Oct. 31,

2019).
45 Id. at *10.
46 35 U.S.C. § 3(a)(4) (2012).

7

nonsatisfactory performance under the
performance agreement.”47
Location within Agency;
Basis of Legal Authority

The PTAB is established by statute.48 The
decision of the APJ panel is not necessarily
“final”, as the Precedential Opinion Panel
may rehear.49

Authority to Delegate to
Subunit(s); Designating
Official and Process

Each PTAB proceeding is presided over by a
“subunit” of the entire body: a panel of “at
least 3” members of the PTAB.50 The Director
designates the APJs on each panel (although
has designated non-exclusive paneling
authority to the Chief Judge).51

Quorum Requirement

[I assume that, in the case of a normal 3judge panel, all three must be present to act
on behalf of the PTAB, but I can’t find
affirmative proof.]

Authority and Function of
Appellate Authority’s Head

Unlike certain other agency heads, the
Director of the PTO does not have exclusive
final decision-making authority over
decisions of the PTAB. As noted elsewhere,
the Director has wide latitude to institute
rehearings and to designate the members of
the PTAB who will hear them, but cannot
make unilateral decisions.52 Additionally, the
Director now may remove APJs at will,
ostensibly increasing top-down authority.53
N/A

Internal Management
Structure of Appellate
Authority

47 35 U.S.C. § 3(b)(2)(C) (2012).
48 Id.
49 See PAT. TRIAL & APPEAL BOARD, SOP 2.
50 35 U.S.C. § 6(c) (2012). These are ostensibly 3 APJs, although it appears that the other

statutory members could sit on a panel if designated by the Director.
51 PAT. TRIAL & APPEAL BOARD,
STANDARD OPERATING PROCEDURE 1 (REVISION 15), at 1 (2018),
https://www.uspto.gov/sites/default/files/documents/SOP%201%20R15%20FINAL.pdf [hereinafter
PAT. TRIAL & APPEAL BOARD, SOP 1].
52 Walker & Wasserman, supra note 8.
53 Supra, note 43.

8

Miscellaneous

[none]

Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

Institution of a trial is discretionary.
IPR: Director determines there is a
reasonable likelihood that the petitioner
would prevail with respect to at least one of
the claims challenged in the petition.54
PGR: Director determines that it is more
likely than not that at least one of the
claims challenged in the petition is
unpatentable.55 Or that the petition raises a
novel or unsettled legal question that is
important to other patents or patents
applications.56
CBMR: Standard is same as PGR. Person
may not file derivation petition unless the
person or person’s real party-in-interest or
privy has been sued for infringement of the
patent or has been charged with
infringement under that patent.57
Derivation: If Director determines that
petition states with particularity the basis
for finding that a named inventor in the
earlier application derived the claimed
invention from an inventor named in the
petitioner’s application and, without
authorization, filed the earlier application.58

How Appeal/Proceeding
Initiated

Appeals (from denial) are initiated by filing a
notice of appeal and payment of the appeal
fee by the patent owner or applicant.59 IPR,

54 35 U.S.C. § 314(a) (2012).
55 35 U.S.C. § 324(a) (2012).
56 35 U.S.C. § 324(b) (2012).
57 37 C.F.R. §§ 42.300-302 (2018).
58 35 U.S.C. § 135(a) (2012).
59 37 C.F.R. § 41.31 (2018).

9

PRG, CBMR proceedings may be instituted
by a third party filing a petition for review
and paying related fee.60 Derivation
proceedings may be instituted by the
applicant by filing a petition and paying
related fee.61
Time For Appealing

IPR: Petition for IPR may be filed after the
later of: (1) nine months after the patent's
issue date, or (2) the termination date of any
post-grant review that has been instituted
against the patent.62
PGR: Petition for PGR must be filed within
nine months of patent’s issue or reissue date,
subject to certain limitations.63
CBMR: petition for CBMR may be filed any
time except that for patents having an
effective filing date on or after March 16,
2013, a CBMP review may not be instituted
during the period in which a petition for postgrant review could be filed for that same
patent. This means that a CBMP review may
not be filed during the nine-month period
immediately after the issuance, or
reissuance, of a patent.64
Derivation: Must be filed within the one year
of the date of the first publication of a claim
to an invention that is “the same or
substantially the same as the earlier
application's claim to the allegedly derived
invention.”65

If No Appeal Taken from
Hearing Officer’s Decision

Where no trial [for IPR, PGR, CBMR] is
instituted, a decision to that effect will be
provided. A decision will usually contain a

60 37 C.F.R. §§ 42.101, 42.201, 42.302 (2018).
61 37 C.F.R. § 42.403 (2018).
62 35 U.S.C. § 311(c) (2012).
63 35 U.S.C. § 321(c) (2012).
64 37 C.F.R. § 42.303 (2018).
65 37 C.F.R. § 42.403 (2018).

10

short statement as to why the standard was
not met. A party dissatisfied with a decision
whether or not to institute may file a request
for rehearing before the Board, but the
Board’s determination on whether to
institute a trial is final and nonappealable.66
If Appeal Taken

The Board will narrow the issues for final
decision by authorizing the trial to proceed
“only on the challenged claims for which the
threshold standards for the proceeding
have been met.”67 The Board will then
identify, on a claim-by-claim basis, the
grounds on which the trial will proceed.68
And any claim or issue not included in the
authorization for review will not be part
of the trial.69

Review of Decisions on
Own Initiative (Without
Request of a Party)
Miscellaneous

PTAB has no discretion to institute review
without petition.70
[none]

Appellate Authority’s Procedures
Record on Review

The record consists of any prosecution history
as well as the petition for review and record
developed at the PTAB (see below).

Submissions by Parties in
Support of Appeal

In general, a petition to institute IPR, PGR,
or CBMR proceeding must include: The
grounds for standing; identification of all
claims challenged and all grounds for such
challenges; a claim construction for each
challenged claim; a specific explanation of the
grounds for unpatentability; a specific

66 Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765 (Aug. 14, 2012).
67 Id. at 48,757.
68 Id.
69 Id.
70 See, e.g. 35 U.S.C. § 314(a) (2012) (stating that the Director may not institute IPR unless

Director “determines that the information presented in the petition. . . shows that there is a
reasonable likelihood that the petitioner would prevail”) (emphasis added).

11

explanation of the relevance of evidence
relied upon; an identification of all real
parties in interest, and; copies of evidence
relied upon.71
Issue Preservation

N/A

Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

The record is open. A party may submit
evidence in the form of “affidavits, transcripts
of depositions, documents, and things.”72
Parties are entitled to routine discovery,73
may agree to discovery,74 or may move for
additional discovery if it is “in the interests of
justice.”75

Standard of Review

The evidentiary standard for IPR, PGR,
CBMR is preponderance of the evidence.76 [I
can’t find it affirmatively stated, but assume
that decisions of patent examiners are
reviewed de novo.]

Consultation with Staff and Communication with Board members on a
Other Agency Officials
specific proceeding “is not permitted unless
both parties have an opportunity to be
involved in the communication.”77 This
prohibition does not extend to “ministerial
communications with support staff”,
“conference calls or hearings in which
opposing counsel declines to participate,”
“informing the Board in one proceeding of the
existence or status of a related Board
proceeding,” or “reference to a pending case
in support of a general proposition.”78

71 See, e.g., 37 C.F.R. § 41.104 (2018) (setting forth requirements for inter partes review petition).
72 37 C.F.R. § 42.63 (2018).
73 37 C.F.R. § 42.51(b)(1)(i)-(iii) (2018).
74 37 C.F.R. §§ 42.51(a)(1), 42.51(b)(2)(i) (2018).
75 37 C.F.R. § 42.51(b)(2)(i) (2018).
76 PETER S. MENELL ET AL., PATENT CASE MANAGEMENT JUDICIAL GUIDE, Table 14.2

(3d ed. 2016).
77 37 C.F.R. § 42.5(d) (2018).
78 U.S. PAT. & TRADEMARK OFF., TRIAL PRACTICE GUIDE UPDATE, at 5 (2019), available at
https://www.uspto.gov/sites/default/files/documents/trial-practice-guide-update3.pdf.

12

Oral Argument

Either party has right to an oral hearing.79

Amicus Participation;
Intervention; etc.

PTAB may evidently authorize briefing from
amici curiae upon motion or request, but this
appears to be highly infrequent.80

Public Access to Hearings

The PTAB hears both public and non-public
hearings.81 For public hearings, any member
of the public is allowed, subject to security
screening, room availability, and advance
coordination with PTAB.82 Remote viewing
may also be available.83
Written transcripts are “generally” available,
usually within four weeks after the hearing.84
“The record of a proceeding, including
documents and things, shall be made
available to the public, except as otherwise
ordered.”85

Staff’s Role in Writing
Decisions

‘[I]t is expected that, so long as APJ1 is in the
majority, APJ1 will do a significant portion of
the writing, including any significant writing
assignments.”86 APJs do employ law clerks,
who assist in the preparation of decisions on
appeal, decisions to institute AIA
proceedings, decisions on motions, final
written decisions, and judgments.87

Deadlines for Decision

For IPR, PGR, and CBM, the Board enters a
final written decision “not more than one
year from the date a trial is instituted, except

79 See 35 U.S.C. § 316(a)(10) (2012) (for IPR); id. § 326(a)(10) (for PGR).
80 See Dennis Crouch, PTAB Request Amicus Support for its Decision on Immunity, PATENTLY-O

(Nov. 6, 2017), https://patentlyo.com/patent/2017/11/request-decision-immunity.html.
81 U.S. PAT. & TRADEMARK OFF., GUIDE TO THE ADMINISTRATION OF ORAL HEARINGS BEFORE THE
PATENT TRIAL AND APPEAL BOARD, at 7 (Aug. 30, 2019),
https://www.uspto.gov/sites/default/files/documents/PTAB%20Hearings%20Guide.pdf.
82 Id. at 6.
83 Id.
84 Id. at 17.
85 37 C.F.R. § 42.14 (2018).
86 PAT. TRIAL & APPEAL BOARD, SOP 1, at 3.
87 Job Posting for Patent Attorney (Law Clerk), USAJOBS,
https://www.usajobs.gov/GetJob/ViewDetails/543995400 (last visited Nov. 20, 2019).

13

that the time may be extended up to six
months for good cause.”88 The same goes for
derivation.89
Nature of Decision

If proceedings are instituted and not
dismissed, the PTAB makes a final written
decision with respect to the patentability of
any patent claim challenged by the petitioner
and any new claim added.”90 However, there
is apparently no requirement to include
reasons for all material findings and
conclusions. There is no explicit requirement
that the decisions be made exclusively on the
record, but such a requirement can be read
into the fact that “[a]ll evidence must be filed
in the form of an exhibit.”91

Reconsideration,
Rehearing, etc.

“A party dissatisfied with a decision may file
a single request for rehearing without prior
authorization from the Board.”92 If granted,
the rehearing is not heard by a higher-level
body, but by the PTAB itself.
Any party to a proceeding may recommend
POP rehearing of a PTAB decision, setting
forth particular reasons for such
recommendation. The Screening Committee
considers requests and makes a
recommendation to the Director, who
determines whether POP rehearing will
occur. Alternatively, the Director may
convene a POP rehearing of any matter
before the PTAB, in his sole discretion.93

Miscellaneous

[none]

88 Federal Register

https://www.uspto.gov/sites/default/files/ip/boards/bpai/trial_practice_guide_74_fr_48756_081412.
pdf
89 Id.
90 See 35 U.S.C. §§ 318(a), 328(a) (2012).
91 See 37 C.F.R. § 42.63(a) (2018); See also Walker & Wasserman, supra note 12.
92 C.F.R. § 42.71(d) (2018). Such request must be filed “[w]ithin 30 days of the entry of a final
decision or a decision not to institute a trial.” C.F.R. § 42.71(d)(2) (2018).
93 PAT. TRIAL & APPEAL BOARD, SOP 2, at 1.

14

Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard

There is no interlocutory review by the
Federal Circuit under the AIA for an
institution decision or even after a final
decision.94 Notably, a decision on a motion
without a judgment is not considered final.95
If a decision is not a panel decision, the party
may request a rehearing.96 When rehearing a
non-panel decision, a panel will review the
decision for abuse of discretion.97 That panel
decision will govern the trial.98

Assignment of Cases

Panel assignments are made by the Director
(or Chief Judge, to whom he has delegated
non-exclusive authority).99 APJs are assigned
in a manner which attempts to balance
workload, experience, technical expertise,
and conflict avoidance.100 Panels may be
changed as a result of recusal, unavailability,
or deadlines, although panel changes after
the appearance of the panel are
“disfavored.”101
Expanded panels (more than three members)
may be impaneled, although it is “disfavored”
and must be recommended by the Chief
Judge and approved by the Director.102

94 Kevin Bovard, Ruling on an Appeal from an Inter Partes Review, ABA PRACTICE POINTS (Feb.

17, 2015), https://www.americanbar.org/groups/litigation/committees/intellectualproperty/practice/2015/ruling-appeal-from-inter-partes-review/ (citing In re Cuozzo Speed Techs.,
LLC, 793 F.3d 1268 (Fed. Cir. 2015).
95 37 C.F.R. § 42.71(b) (2018) (“Interlocutory Decisions”). “Interlocutory panels” may hear “e.g.,
decisions on requests for reconsideration of non-final decisions in interferences, decisions on
requests for authorization to file motions in interferences and AIA Reviews, decisions on
miscellaneous motions authorized and filed in interferences, and decisions on motions authorized
and filed in AIA Reviews.” PAT. TRIAL & APPEAL BOARD, SOP 1, note 2.
96 37 C.F.R. § 42.71(b) (2018).
97 Id.
98 Id.
99 PAT. TRIAL & APPEAL BOARD, SOP 1.
100 See generally Id.
101 Id. at 13.
102 Id. at 15. Examples

15

Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

N/A

Aggregation

If multiple PGR petitions are filed, the PTAB
may consolidate them.103 “[D]uring the
pendency of an inter partes review, if another
proceeding or matter involving the patent is
before the Office, the Director may determine
the manner in which the . . . matter may
proceed, including providing for stay,
transfer, consolidation, or termination of
any such matter or proceeding.”104

Miscellaneous

[none]

Form of Decisions, Publication, and Precedential Status
Form of Decision

If a proceeding is not instituted, the PTAB
will generally write a decision detailing the
reason.105 If a proceeding is instituted, the
PTAB “shall issue a final written decision
with respect to the patentability of any
patent claim challenged by the petitioner and
any new claim added.”106

Signed or Per Curiam

Decisions are signed. Decisions are primarily
written by “APJ 1,” but all three are expected
to provide input on the decision.107

Dissents

PTAB judges have the latitude to write
concurring and dissenting opinions, but it is
rare for them to do so.108

103 35 U.S.C. § 325(c) (2012).
104 35 U.S.C. § 315(d) (2012).
105 Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765 (Aug. 14, 2012).
106 See 35 U.S.C. §§ 318(a), 328(a) (2012).
107 PAT. TRIAL & APPEAL BOARD, SOP 1, at 3
108 Scott McKeown, Judicial Independence & the PTAB, ROPES & GRAY: PATENTS POST-GRANT

(Dec. 12, 2017), https://www.patentspostgrant.com/judicial-independence-ptab/. Between 2012
and 2017, PTAB panels issued unanimous opinions nearly 98% of the time. Id. An ex-PTAB judge

16

Publication

The file for any PTAB interference or trial is
open to public inspection and copies of the file
may be obtained upon payment of a fee.109
PTAB also publishes representative AIA trial
orders, decisions, and notices.110

Where Published

Final decisions are published on the “PTAB
Bulk Data site.”111 Dockets and filings for
AIA proceedings are available on PTAB End
to End (E2E) system.112

Precedential Status

As noted above, the PTO recently took steps
to reinforce the precedential status of PTAB
decisions by affording the Director increased
authority over the precedential designation
and by establishing a new Precedential
Opinion Panel (POP). 113
Any person may nominate a PTAB decision
for precedential or informative status; such
nomination must be considered by a
Screening Committee and then by the
Executive Judges Committee, which will
make a recommendation to the Director, who
has ultimate authority over the designation.
The precedential decision is then binding in

claims that this is not because of PTAB policy or administrative pressure, but because “[t]he goal
of the judges is to reach a consensus with respect to the outcome.” Ryan Davis, Ex-PTAB Judges
Say Board Policies Don't Squelch Dissents, LAW360 (June 11, 2018),
https://www.law360.com/articles/1050995/ex-ptab-judges-say-board-policies-don-t-squelchdissents. Contra Gene Quinn, Structural Bias at the PTAB: No Dissent Desired, IPWATCHDOG
(June 6, 2018), https://www.ipwatchdog.com/2018/06/06/structural-bias-ptab-no-dissentdesired/id=94507/ (attributing low rate of dissent to a policy which does not count concurrences or
dissents toward an APJs productivity goals unless requested and approved by Chief Judge).
109 37 C.F.R. § 1.11(b) (2018). This is subject to certain exceptions, such as if the record contains
patent application information which is not otherwise publicly available.
110 Decisions, U.S. PAT. & TRADEMARK OFF., https://www.uspto.gov/patents-applicationprocess/patent-trial-and-appeal-board/decisions (last updated Nov. 7, 2019).
111 Patent Trial and Appeal Board (PTAB) Bulk Data, PAT. TRIAL AND APPEAL BOARD,
https://developer.uspto.gov/ptab-web/#/search/decisions (last visited Nov. 21, 2019). Decisions
rendered before July 15, 2019, as well as all interferences, are available on the USPTO PTAB eFOIA Reading Room at https://e-foia.uspto.gov/Foia/PTABReadingRoom.jsp.
112 E2E Login, PAT. TRIAL AND APPEAL BOARD, https://ptab.uspto.gov/#/login (last visited Nov. 21,
2019).
113 See PAT. TRIAL & APPEAL BOARD, SOP 2.

17

subsequent matters involving similar facts or
issues.114 Informative decisions create norms
that “should be followed in most cases, absent
justification, although an informative
decision is not binding authority on the
Board.115
POP decisions (see above) are precedential by
default unless otherwise noted.116
Miscellaneous

[none]

Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below
Guidance Documents
Governing Hearing-Level
Adjudicators

The PTO maintains a Manual of Patent
Examining Procedure (MPEP) intended to
“provide [PTO] patent examiners, applicants,
attorneys, agents, and representatives of
applicants with a reference work on the
practices and procedures relative
to the prosecution of patent applications and
other proceedings before the [PTO].”117

Feedback to Adjudicators

Although not from the PTAB per se, “Quality
assurance reviewers perform searches in a
random sample of applications and provide
the examiner a feedback report, which
includes the reviewer’s search strategy along
with feedback related to the examiner’s
search to identify best practices and potential
areas of improvement.”118 “[In ex parte
appeals,] PTAB reviews examiners’ work
product and can provide feedback to the
examiners. The PTAB and examiners have
held multiple sessions in which the

114 Id. at 11.
115 Id.
116 Id. at 8.
117 U.S. PAT. & TRADEMARK OFF., supra note 21.
118 Promoting the Useful Arts: How can Congress prevent the issuance of poor quality patents?:

Hearing Before the S. Comm. On the Judiciary, Subcomm. On Intellectual Prop., 116th Cong. at 5
(2019) (Statement of Andrew Hirschfeld, Comm’r for Pat., U.S. Pat. and Trademark Off.),
available at https://www.judiciary.senate.gov/imo/media/doc/Hirshfeld%20Testimony.pdf.

18

administrative patent judges from the PTAB
provide examiners with feedback on claim
interpretation and providing a proper
rationale . . . .”119
Quality-Assurance Reviews
and Related Mechanisms

See “Feedback to Adjudicators” above.

Participation of Appellate
Body in Substantive
Rulemaking

As noted above, most USPTO rules are
procedural rather than substantive.120

Miscellaneous

[none]

Miscellaneous
Alternative Dispute
Resolution (ADR)

The PTAB may terminate IPRs, PGRs, or
CBMRs by agreement of the parties,
although the PTAB is not party to the
settlement and may “independently
determine any question of jurisdiction,
patentability, or Office practice.”121 Similarly,
parties may resort to binding arbitration to
determine any issue after institution of
derivation proceedings.122
At least as of 2015, the PTAB was
“encouraging settlement by assigning a date
on the Scheduling Order for an explicit ADR
statement from the parties.”123

Participation of Appellate
Body in Agency Decisions
on Judicial Review

The Director has the right to intervene in
appeals from a derivation proceeding under
section 135 or an inter partes or post-grant
review under chapter 31 or 32.124

119 Id. at 7.
120 See Golden, supra note 23.
121 37 C.F.R. § 42.74(a) (2018).
122 37 C.F.R. § 42.410(a) (2018).
123 Scott McKeown, PTAB Scheduling Orders Begin Suggesting ADR Statements, ROPES & GRAY:

PATENTS POST-GRANT (April 23, 2015), https://www.patentspostgrant.com/ptab-alternativedispute-resolution/.
124 35 U.S.C. § 143 (2012).

19

Role and Participation of
Appellate Body in Writing
Rules

[I am not sure what influence the PTAB has
on PTO rulemaking, although precedential
decision could be considered a form of
rulemaking by adjudication if they are given
deference by the Federal Circuit.]

Miscellaneous

[none]

20

PUBLICLY AVAILABLE CASE STATISTICS
In Fiscal Year 2018 the PTAB received 9,218 appeals. As of September
2018, the average pendency (time from receipt date to final decision) was 14.5
months. Of those appeals decided in FY 2018, 59.8% were affirmed, 10.1% were
affirmed-in-part, and 28.3% were reversed, with panel remands and dismissal
accounting for just under 2%. 1,613 petitions (for IPR, PGR, and CBMR) were
filed in FY 2018—an almost 18% decrease from FY 2017—and institution was
granted in 859 cases. 577 were denied, and the balance (decisions on institution
responsive to requests for rehearing) were omitted from the statistic.125
TREATISES AND SCHOLARSHIP OF NOTE
Christopher J. Walker & Melissa F. Wasserman, The New World of Agency
Adjudication, 107 CALIF. L. REV. 141 (2019).
John M. Golden, Working Without Chevron: The PTO as Prime Mover, 65
DUKE L.J. 1657 (2016).
Melissa F. Wasserman, The Changing Guard of Patent Law: Chevron
Deference for the PTO, 54 WM. & MARY L. REV. 1959 (2013).
David Boundy, The PTAB Is Not an Article III Court, Part 3: Precedential
and Informative Opinions, 47-1 AIPLA Q.J., 1 (2019). [I assume Parts 1 & 2 are
also useful, although I did not access them].
STERNE, KESSLER, GOLDSTEIN & FOX, P.L.L.C., PATENT OFFICE LITIGATION
(2d ed. 2017).
PETER S. MENELL ET AL., PATENT CASE MANAGEMENT JUDICIAL GUIDE (3d
ed. 2016).
UNITED STATES PATENT & TRADEMARK OFFICE: PATENT TRIAL AND APPEAL
BOARD, https://www.uspto.gov/patents-applicationprocess/patenttrialandappealboard

125 PTAB UPDATE (Nov. 2018)

21

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020

Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
SCHEDULE M
Securities and Exchange Commission
INTRODUCTION
The Securities and Exchange Commission (SEC) administers federal
securities laws in order to further its three-part mission of protecting investors,
maintaining fair, orderly, and efficient markets, and facilitating capital formation.
The SEC’s oversight includes securities exchanges, securities brokers and dealers,
investment advisors, and mutual funds, and it brings both administrative and civil
enforcement actions for violations of securities laws including insider trading,
accounting fraud, and the provision of false or misleading information about
securities.
Established by the Securities Exchange Act of 1934 (Act), the SEC assumes a
primary role in regulating securities markets, which are governed by the Act as well
as a series of laws, from the Securities Act of 1933 and Investment Company Act of
1940 to, more recently, the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010.1 The SEC’s rulemaking, investigations, and adjudicatory
authorities also derive from these laws.
As the agency head, the Commission is composed of five commissioners
appointed for five-year staggered terms by the President with the advice and
consent of the Senate.2 No more than three commissioners may be of the same
political party, and executive and administrative functions of the Commission are
carried out by the Chairman, who is so designated by the President.3
1 Additional laws governing the securities industry include: the Trust Indenture Act of 1939; the

Investment Advisers Act of 1940; the Securities Investor Protection Act of 1970; the Foreign Corrupt
Practices Act of 1977; the Public Company Accounting Reform and Corporate Responsibility Act of
2002 (Sarbanes-Oxley Act of 2002); and the Jumpstart Our Business Startups (JOBS) Act (enacted
in 2012).
2 15 U.S.C. § 78d(a).
3 15 U.S.C. §§ 78d(a) and 78d-2.

The Commission may delegate many of its functions to an individual
commissioner, administrative law judges, or employees, and it retains the authority
to review any action pursuant to such a delegation, either on its own initiative or
upon petition of a party.4 With respect to hearings and an initial decision in
administrative actions, the Commission has issued a standing delegation to
administrative law judges, although the Commission must first order that a hearing
be held.5 The Chief Administrative Law Judge of the Commission designates the
administrative law judge to preside in a particular case.6
Even prior to the commencement of proceedings, the Commission holds
significant decision-making authority regarding the agency’s investigations to
determine whether a violation has occurred. This includes decisions to commence a
formal investigation with the use of process it deems necessary, issue an order
instituting administrative proceedings before the agency, initiate civil proceedings
in the courts, and refer criminal matters to the Department of Justice for
prosecution where there has been a willful violation.7
The Commission has adopted Rules of Practice to govern proceedings before
it under the statutes it administers (including hearings and initial decisions
delegated to administrative law judges), although the Commission may apply
alternate procedures where it determines that doing so would serve the interests of
justice and not result in prejudice to the parties.8 Further, hearing procedures will
vary according to the stated scope of several rules within the Rules of Practice and
according to the particular statute that authorizes the proceeding, including
whether or not it is to be a formal or “on the record” adjudication subject to the
corresponding requirements of the Administrative Procedure Act.9 The Rules of
Practice are comprehensive, as they also lay out procedure for appeal to the
Commission after an administrative law judge’s initial decision as well as
addressing other topics such as business hours, filing procedures, subpoenas, and
hearing procedure.10
Initial decisions by administrative law judges, if not appealed to the
Commission (or selected by the Commission for review) are deemed the final action

4 15 U.S.C. § 78d-1(a) and (b).
5 17 C.F.R. § 200.30-9, 201.300.
6 17 C.F.R. § 201.110; but see note 84 infra regarding commission instructions post-Lucia.
7 15 U.S.C. §§ 77s and 78u; 17 C.F.R. § 202.5; see also “How Investigations Work,” SEC Division of

Enforcement, https://www.sec.gov/enforce/how-investigations-work.html; Enforcement Manual of the
SEC Division of Enforcement, https://www.sec.gov/divisions/enforce/enforcementmanual.pdf; and the
SEC’s Office of Administrative Law Judges website, https://www.sec.gov/page/aljsectionlanding.
8 17 C.F.R. § 201.100 et seq.
9 5 U.S.C. § 551 et. seq.; see also 17 C.F.R. § 201.191.
10 17 C.F.R. §§ 201.400 – 201.490.

2

of the Commission.11 While statutes and regulations have specified that parties
have a right of review by the Commission for certain enumerated actions (with
discretionary review for all others), as a matter of practice, the Commission grants
all appeals of initial decisions.12 While no definitive or binding statement provides
explanation for this practice, a comment included with a prior version of the Rules
of Practice states that the custom of granting all appeals was “the product of a
consensus over many years” that “represents a Commission determination that
there is benefit to joint deliberation by the Commission when exception is taken to
an initial decision.”13
The Commission also sits as an appellate body for several entities outside the
SEC. For example, the Commission hears appeals from determinations made by
self-regulatory organizations, and—like initial decisions by the SEC’s
administrative law judges—the Commission may select unappealed determinations
by the self-regulatory organizations for review as well.14 Self-regulatory
organizations include of the national securities exchanges (such as the New York
Stock Exchange) as well as the Financial Industry Regulatory Authority (FINRA).15
In addition, the Commission may review (on appeal or on its own initiative)
determinations by the Public Company Accounting Oversight Board.16
Additionally, while perhaps not always considered to be the review of a prior
adjudication, the Commission may review (on appeal and on its own initiative) the
actions taken by the directors of the SEC’s divisions pursuant to the Commission’s
delegated authority.17
Generally, final orders by the Commission may be reviewed by the United
States Court of Appeals for the District of Columbia or the court of appeals where
the aggrieved person resides or has their principal place of business.18

11 15 U.S.C. § 78d–1(b) and (c); 17 C.F.R. § 201.360(d)(2).
12 15 U.S.C. § 78d–1(b); 17 C.F.R. § 201.411(b)(1) and (2).
13 Comment (a)-(b) and Comment (d) to Rule 410, Rules of Practice (July 2003),

https://www.sec.gov/about/rulesprac072003.htm. Subsequent versions of the Rules of Practice,
including the current version, do not include comments on the rules.
14 17 C.F.R. §§ 201.420 and 201.421
15 A list of self-regulatory organizations is available at https://www.sec.gov/rules/sro.shtml.
16 17 C.F.R. §§ 201.440 and 201.441.
17 17 C.F.R. §§ 201.430 and 201.431; authorities delegated to the various division directors are at 17
C.F.R. §§ 200.30–11 through 200.30–18.
18 Judicial review provisions for the respective securities laws administered by the SEC include: 15
U.S.C. § 77i; 15 U.S.C. § 78y; 15 U.S.C. § 77vvv; 15 U.S.C. § 80a–42; and 15 U.S.C. § 80b–13.

3

CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)

Governing Law

Procedural Law
Substantive Law

Appeals to the Commission, as with initial
proceedings before the SEC, are governed by
the SEC’s Rules of Practice.19
The Securities Exchange Act of 1934
established the SEC to enforce newly-passed
securities laws, and it along with several
other acts provides the substantive law
(including the Securities Act of 1933, Trust
Indenture Act of 1939, Investment Company
Act of 1940, Investment Advisers Act of 1940,
Sarbanes-Oxley Act of 2002, Dodd-Frank
Wall Street Reform and Consumer Protection
Act of 2010, and Jumpstart Our Business
Startups Act of 2012).20 The Commission
also issues regulations, interpretive releases,
and policy statements.21

Miscellaneous

Hearing-Level Proceedings in Appellate System

Hearing-Level Decisions
Appealable

By default, all proceedings are presided over
by the Commission unless the Commission
designates a hearing officer, which it has

19 17 C.F.R. §§ 201.100 – 201.900.
20 15 U.S.C. § 78a et seq.; 17 C.F.R. § 200.1.
21 17 C.F.R. Chapter II (Parts 200 – 301); interpretive releases are available at

https://www.sec.gov/rules
/interp.shtml and policy statements are available at https://www.sec.gov/rules/policy.shtml.

4

Nature of Hearing-Level
Proceedings

done so by regulation designating
administrative law judges (until it orders
otherwise).22 The Commission may then
review initial decisions by hearing officers.23
Hearings for the purpose of taking evidence
are held upon order of the Commission and
are to be conducted in an expeditious and
orderly manner.24 They are adversarial in
nature. Unless involving particular
confidential or sensitive matters, hearings
are public and are recorded, with a written
transcript prepared.25
Witnesses testify under oath.26 Hearsay
evidence is admissible if it is found to be
relevant, material, and reliable.27 Parties
have the opportunity to file proposed findings
and conclusions with or as part of their
briefs.28

Nature of Hearing-Level
Decision

Transfer of Case to
Appellate Body After
Hearing-Level Decision

The hearing officer prepares an initial
decision, to be filed within a specified number
of days after proceedings are complete.29 The
initial decision must include findings and
conclusions as to material issues of fact or
law, and the appropriate order or sanction,
with reasons or basis.30
The hearing officer files the initial decision
with the Secretary of the SEC, who then
serves the parties and publishes a notice on
the SEC website (for public proceedings
only).31

Miscellaneous

22 15 U.S.C. §§ 78d–1(a) and 78v; 17 C.F.R. §§ 200.30-9 and 201.110.
23 17 C.F.R. § 201.410(a).
24 17 C.F.R. § 201.300.
25 17 C.F.R. §§ 201.301 and 302.
26 17 C.F.R. § 201.325.
27 17 C.F.R. § 201.320.
28 17 C.F.R. § 201.340.
29 17 C.F.R. § 201.360(a)(2).
30 17 C.F.R. § 201.360(b).
31 Id.

5

Identity of Reviewing/Appellate Authority and Its Legal Status

Reviewing Authority(ies)
Legal Status of Reviewing
Authority(ies)

The Commission reviews initial decisions by
hearing officers.32
The Commission was established as an
independent agency by the Securities and
Exchange Act of 1934.

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

533
May not engage in any other employment,
may not participate in transactions subject to
regulation by the Commission.34
Not more than three commissioners may be
of the same political party, and appointments
should alternate political parties as nearly as
practicable.35
Appointed by the President, with the advice
and consent of the Senate.36
5 years; terms are staggered.37
Office may continue to be held by a member
beyond a five-year term and until a successor
is appointed and qualified; such a member
may not serve beyond the next full session of
Congress.38
The five commissioners serve as the agency
head; established by the Securities Exchange
Act of 1934 (15 U.S.C. § 78a et seq.).

32 17 C.F.R. § 201.411.
33 15 U.S.C. § 78d(a); 17 C.F.R. § 200.10
34 15 U.S.C. § 78d(a).
35 15 U.S.C. § 78d(a); 17 C.F.R. § 200.10.
36 Id.
37 Id.
38 15 U.S.C. § 78d(a).

6

Authority to Delegate to
Subunit(s); Designating
Official and Process

Quorum Requirement

Authority and Function of
Appellate Authority’s Head

Internal Management
Structure of Appellate
Authority

The Commission may delegate its functions
including hearing, determining, and ordering
with respect to any matter, to a division of
the Commission, an individual commissioner,
an administrative law judge, or an employee
or employee board (does not supersede
requirements for those presiding over
evidentiary hearings required by 553 or 554
of the Administrative Procedure Act).39 The
Commission retains a discretionary right to
review such delegated actions either on its
own initiative (by vote of one commissioner)
or upon petition of a party or intervenor,
although parties adversely affected by
specified actions (including adjudications not
required to be on the record) are entitled to
review.40
Three commissioners, or the total number of
commissioners in office if fewer than three
commissioners are in office, or two
commissioners where the number of
commissioners in office minus those who are
disqualified as to a matter of business is
two.41
The Chairman carries out the executive and
administrative functions of the Commission,
including appointment and supervision of
Commission employees, distribution of
business among personnel and
administrative units, and use and
expenditure of funds.42
As to substantive work, the Chairman also
exercises functions for the Commission
relating to assignment of personnel
(including individual commissioners) to
perform functions delegated by the
Commission.43

Miscellaneous

39 15 U.S.C. § 78d–1(a); 5 U.S.C. § 556(b).
40 15 U.S.C. § 78d–1(b).
4117 C.F.R. § 200.41.
42 Reorganization Plan No. 10 of 1950, 64 Stat. 1266; 15 U.S.C. § 78d-2.
43 15 U.S.C. § 78d–2.

7

Nature, Form, and Timing of Appeal

Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

Of Right: Upon petition, the Commission
must review initial decisions for any
adjudication not required to be on the record
as defined by the APA (5 U.S.C. 554(a)), as
well as specifically enumerated
determinations found in 17 C.F.R.
201.411(b)(1), including effective dates of
registration statements and trading
suspensions.44
Discretionary Review: Includes any other
decision not enumerated above, where the
petition makes a reasonable showing that
prejudicial error was committed in the
conduct of the proceeding, or the decision
contains a finding or conclusion of material
fact that is clearly erroneous, a conclusion of
law that is erroneous, or an exercise of
discretion or decision of law or policy that is
important and that the Commission should
review.45 However, available sources suggest
that the Commission grants nearly all
petitions for review.46 The Commission may
also elect to limit the issues on appeal.47

44 15 U.S.C. § 78d–1(b); 17 C.F.R. § 201.411(b)(1).
45 15 U.S.C. § 78d–1(b); 17 C.F.R. § 201.411(b)(2).
46 In its adoption of the 2016 amendments to the Rules of Practice, the SEC responded to a comment

(expressing concern about appeals not of right) by quoting a Commission decision which stated:
“…we are unaware of any case in which the Commission has declined to grant a procedurally proper
petition for review.” 81 Fed. Reg. 50,212, 50,228 (July 29, 2016),
https://www.govinfo.gov/content/pkg/FR-2016-07-29/pdf/2016-16987.pdf. In a prior version of the
Rules of Practice, comments were included alongside the rules themselves, stating: “Under these
standards, the Commission grants a petition for review in virtually all cases. The product of a
consensus over many years, this result represents a Commission determination that there is benefit
to joint deliberation by the Commission when exception is taken to an initial decision.” Another
comment states: “The Commission has rarely found grounds for denial of a petition for review under
its long-standing standards for determining whether to grant review, now set forth in Rule 411(b).
Therefore, routine opposition to a petition for review serves little purpose.” Comment (a)-(b) to Rule
410, Rules of Practice (July 2003), https://www.sec.gov/about/rulesprac072003.htm. Subsequent
versions of the Rules of Practice, including the current version, do not include comments on the
rules.
47 5 U.S.C. § 557(b).

8

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)

Filing with the Commission a petition for
review of the initial decision by the hearing
officer. The petition must not exceed three
pages. 48
21 days after service of the initial decision (or
order resolving a party motion to correct an
initial decision), except for good cause
shown.49
If a party does not timely file a petition for
review of the initial decision, and if the
Commission does not order review on its own,
the Commission will issue an order that the
decision has become final, and that decision
will be deemed the action of the
Commission.50 A petition for review of an
initial decision to the Commission is a
prerequisite to judicial review of a final order
entered pursuant the decision.51
If a party timely files a petition for review of
an initial decision (or if the Commission itself
orders review), the initial decision shall not
become final as to that party.52
The Commission may order review of any
initial decision within 21 days after the
period of filing a petition for review. The vote
of one member is sufficient for Commission
review.53

Miscellaneous

Appellate Authority’s Procedures

Record on Review

The record on review consists of all items
that were part of the record before the
hearing officer, along with petitions for
review, cross-petitions, and all briefs,

48 17 C.F.R. § 201.410(b) and (c).
49 17 C.F.R. § 201.360(b); 201.410(b).
50 15 U.S.C. § 78d–1(c); 17 C.F.R. § 201.360(d)(2).
51 17 C.F.R. § 201.410(e).
52 17 C.F.R. § 201.360(d)(1).
53 17 C.F.R. § 201.411(c).

9

Submissions by Parties in
Support of Appeal

Issue Preservation

Open or Closed Record on
Appeal? Submission and

motions, submissions, and other papers filed
on appeal or review.54 The record below
includes, among other items, the order
instituting proceedings, motions,
stipulations, transcripts of testimony, items
admitted into evidence, written
communications, proposed findings and
conclusions, and written orders issued by the
hearing officer.55
Parties file opening briefs specifying
particular issues to be filed within 30 days of
the date of the briefing schedule order issued
by the Commission. Opposition briefs are to
be filed within 30 days of opening briefs, and
reply briefs are to be filed within 14 days of
opposition briefs.56 Briefs are to be confined
to the particular matters at issue, and
exceptions to the findings or conclusions shall
be supported by citation to relevant portions
of the record and by concise argument.57
Opening and opposition briefs shall not
exceed 14,000 words, and reply briefs shall
not exceed 7,000 words.58
Exceptions to a hearing officer’s ruling on the
admission or exclusion of evidence will be
deemed waived on appeal to the Commission
unless raised pursuant to interlocutory
review, raised in a proposed finding or
conclusion, or raised in a petition for
Commission review of an initial decision.59
Beyond the Commission, federal courts will
not consider an objection to the order of the
Commission unless it was urged before the
Commission.60
The Commission may allow the submission of
additional evidence on its own motion or
motion of a party, where the additional

54 17 C.F.R. § 201.460(a).
55 17 C.F.R. § 201.350(a).
56 17 C.F.R. § 201.450(a).
57 17 C.F.R. § 201.450(b).
58 17 C.F.R. § 201.450(c).
59 17 C.F.R. § 201.321(a).
60 15 U.S.C. §§ 77i(a) and 78y(c)(1).

10

Consideration of New
Evidence on Appeal

evidence is material and there were
reasonable grounds for failure to offer it
previously. The Commission may accept or
hear the additional evidence or remand the
proceeding to consider the new evidence.61
Standard of Review
Initial decisions are subject to de novo review
by the Commission.
Consultation with Staff and SEC officers and employees engaged in
Other Agency Officials
investigative or prosecutorial functions for
the Commission in a proceeding may not, in
that proceeding, participate or advise in the
decision, except as a witness or counsel.62
Additionally, for proceedings required to be
determined by the Commission on the record,
members must affirmatively make the
determination solely upon the record and the
arguments of parties and counsel during
proceedings.63
Oral Argument
Upon motion by a party, other aggrieved
person, or the Commission, oral argument
may be ordered. Oral argument with respect
to initial decisions by a hearing officer are
granted unless “exceptional circumstances”
make it impractical.64 Unless ordered
otherwise by the Commission, not more than
a half hour is allotted per side.65
Amicus Participation;
Generally in enforcement proceedings,
Intervention; etc.
disciplinary proceedings, and proceedings to
review self-regulatory organization and
Public Company Accounting Oversight Board
determinations, no person may intervene as a
party.
In any other proceeding, persons may either
move to participate as a non-party on a
limited basis or to intervene as a party, with
party intervention allowed only where nonparty participation is determined to be
inadequate for the protection of the person’s
61 17 C.F.R. § 201.452.
62 17 C.F.R. § 201.121.
63 17 C.F.R. § 200.62.
64 17 C.F.R. § 201.451(a).
65 17 C.F.R. § 201.451(c).

11

Public Access to Hearings
Staff’s Role in Writing
Decisions
Deadlines for Decision

Nature of Decision

Reconsideration,
Rehearing, etc.

interests. However, persons who are the
subject of a security exchange that the
Commission is authorized to approve are
entitled to participate as a non-party, and
motions to participate as a non-party by DOJ
and state prosecutorial authorities
requesting a stay of proceedings during the
pendency of a criminal prosecution arising
out of the same or similar facts are favored.66
Unless one of the enumerated exceptions is
met, oral arguments before the Commission
are open to the public.67
The SEC General Counsel is responsible for
assisting members of the Commission in the
preparation of Commission opinions.68
The Commission does not have mandated
decisional deadlines. The Commission,
through the Rules of Practice, has issued
non-binding guidelines which encourage the
Commission to complete a decision with
respect to an appeal from an initial decision
within eight months, although the
Commission may extend this period as it
deems appropriate.69
Commission decisions must include the
reasons for the action taken and contain a
clear showing that no serious argument of
counsel has been disregarded or overlooked.70
Motions for reconsideration of a final order
issued by the Commission may be filed by a
party or person aggrieved by the
determination within 10 days after service of
the order complained of, or within a longer
period prescribed by the Commission if a
motion to extend the time for filing is made
within the initial 10-day period.71

Miscellaneous
66 17 C.F.R. § 201.210.
67 17 C.F.R. §§ 200.21(c), 200.400, and 200.402; Section 2 of the Government in the Sunshine Act, P.L.

94-409, as codified at 5 U.S.C. § 552b.
68 17 C.F.R. §§ 200.21(b) and 201.900(b).
69 17 C.F.R. § 201.900(a).
70 17 C.F.R. § 200.63.
71 17 C.F.R. § 201.470.

12

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
Aggregation

The Commission may direct any matter be
submitted to it for review at any time,
although petitions by parties for interlocutory
review are disfavored and to be granted by
the Commission only in “extraordinary
circumstances.”72 A ruling generally may not
be certified by a hearing officer upon
application of a party unless the hearing
officer finds that the ruling involves a
controlling question of law as to which there
is substantial ground for difference of opinion
and that an immediate review may
materially advance the completion of the
proceeding.73
As delegated by the Commission (until it
orders otherwise), the Chief Administrative
Law Judge selects the administrative law
judge that will preside.74
There do not appear to be special case
selection techniques. Available sources
suggest that the Commission grants all
petitions for review.75
The Commission (as well as hearing officers
below) may consolidate proceedings involving
a common question of law or fact, and may
make appropriate orders to avoid
unnecessary cost or delay. The Commission
alone may sever proceedings where a
settlement offer is pending or there is
otherwise good cause.76

Miscellaneous

72 17 C.F.R. § 201.400(a).
73 17 C.F.R. § 201.400(c).
74 17 C.F.R. §§ 200.30-10(a)(2) and 201.110; but see note 84 infra regarding the Commission’s order

affecting adjudicator assignments following Lucia v. SEC.
75 See note 46 supra.
76 17 C.F.R. § 201.201(a).

13

Form of Decisions, Publication, and Precedential Status

Form of Decision

Where Published

There do not appear to be requirements for
the Commission’s opinions other than that
the decisions must include the reasons for the
action taken and a clear showing that no
serious argument of counsel has been
disregarded or overlooked.77
Decisions are signed by the Secretary of the
Commission or other person authorized by
the Commission. Where a dissenting opinion
is issued, the majority opinion identifies
which commissioners joined it and which
commissioners issued dissenting opinions.78
Dissenting opinions are permitted and are
issued separately.79
Commission opinions and orders are
published.
https://www.sec.gov/litigation/opinions.shtml

Precedential Status

Commission opinions are precedential.

Signed or Per Curiam

Dissents
Publication

Miscellaneous
Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below

Guidance Documents
Governing Hearing-Level
Adjudicators

The Commission occasionally issues orders
applicable to all hearing-level proceedings or
agency-wide, as well as interpretive releases
and policy statements. 80

77 17 C.F.R. § 200.63.
78 17 C.F.R. § 201.140(a); for an example of a dissenting opinion, see note 79, infra.
79 A recent dissent occurred in 2015, with In the Matter of Raymond J. Lucia Companies, Inc. and

Raymond J. Lucia, Sr., available at https://www.sec.gov/news/statement/dissenting-opiniongallagher-piwowar.html. The decision in that case is available at
https://www.sec.gov/litigation/opinions/2015/34-75837.pdf.
80 15 U.S.C. § 78w(a) and (c); for examples of caseload-wide prospective orders, see In re: Pending
Administrative Proceedings (Aug. 22, 2018), at note 84 infra (relating to compliance with Lucia v.
SEC), and In re: Pending Administrative Proceedings (Mar. 18, 2020), Securities Act of 1933 Release
No. 10767 (relating to electronic filing), https://www.sec.gov/litigation/opinions/2020/33-10767.pdf.

14

Feedback to Adjudicators

Quality-Assurance Reviews
and Related Mechanisms
Participation of Appellate
Body in Substantive
Rulemaking

There does not appear to be individualized
feedback for adjudicators other than through
orders by the Commission in a particular
case.
There does not appear to be a qualityassurance function in practice.
The Commission, as the head of the SEC,
considers and adopts rules to implement the
laws governing the securities industry. The
Commission is vested with the power to make
rules and regulations as necessary.81

Miscellaneous
Miscellaneous

Alternative Dispute Resolution
(ADR)

The Commission will engage in
Alternative Dispute Resolution only
after determining that it is
appropriate in a particular instance.
The Commission has designated the
General Counsel as the agency
Dispute Resolution Specialist, with
authority to develop dispute
resolution policy and procedures.82
Participation of Appellate Body in
The Commission receives judicial
Agency Decisions on Judicial Review remands. The Rules of Practice
specify that the Commission issue a
briefing schedule order within 21
days of receipt of a judicial remand
and recommends issuance of a
Commission decision on remand
within 8 months.83 The Commission
may still refer a remanded case to
an administrative law judge for the
Interpretive releases are available at https://www.sec.gov/rules/interp.shtml and policy statements
are available at https://www.sec.gov/rules/policy.shtml.
81 15 U.S.C. § 78w(a) and (c).
82 Alternative Dispute Resolution Policy Statement, Release No. 34-40306, 63 Fed. Reg. 42891 (Aug.
11, 1998), https://www.sec.gov/rules/policy/34-40306.htm.
83 17 C.F.R. § 201.450(a)(2)(iv); 17 C.F.R. § 201.900(a)(1)(iii).

15

Role and Participation of Appellate
Body in Writing Rules

consideration of additional evidence
or other proceedings as it directs.84
The Commission, as the head of the
SEC, considers and adopts rules to
implement the laws governing the
securities industry.

Miscellaneous
PUBLICLY AVAILABLE CASE STATISTICS
Per Rule 900(c) of the Rules of Practice, the Secretary publishes biannual
reports containing the statistical information about adjudicatory proceedings over
the prior six months.85 Among other items, this report includes increases and
decreases in cases pending before administrative law judges and the Commission,
median case age at the time of decision for each category of decision, and median
elapsed time from briefing before the Commission to issuance of the Commission’s
decision.
TREATISES AND SCHOLARSHIP OF NOTE
HAROLD S. BLOOMENTHAL & SAMUEL WOLFF, SECURITIES LAW HANDBOOK (2020).
HAROLD S. BLOOMENTHAL & SAMUEL WOLFF, SECURITIES & FEDERAL CORPORATE
LAW (2020).
LARRY D. SODERQUIST & GARY M. BROWN, SODERQUIST ON THE SECURITIES LAWS (5th
ed. 2006).
THOMAS LEE HAZEN, TREATISE ON THE LAW OF SECURITIES REGULATION (7th ed.
2016).
THOMAS LEE HAZEN, THE LAW OF SECURITIES REGULATION (7th ed. 2017).

84 17 C.F.R. §§ 201.110 and 201.452. For an example where the Commission was actively involved in

directing compliance with a court remand in multiple cases, see the Commission’s orders following
Lucia v. SEC, 138 S. Ct. 2044 (2018). In In re: Pending Administrative Proceedings (Aug. 22, 2018),
the Commission cited Lucia and ordered that all pending proceedings be reassigned to an ALJ who
had not previously participated in the decision, among other orders. Securities Act of 1933 Release
No. 10536, https://www.sec.gov/litigation/opinions/2018/33-10536.pdf. For an example of a
Commission remand to an administrative law judge following court remand in an individual case,
see In the Matter of Mark Feathers, Securities Exchange Act of 1934 Release No. 87226 (Oct. 4,
2019), https://www.sec.gov/litigation/opinions/2019/34-87226.pdf.
85 17 C.F.R. § 201.900(c). These reports are available at https://www.sec.gov/reports?aId=edittid&year=All&field_article_sub_type_secart_value=All&tid=55.

16

DONALD C. LANGEVOORT, INSIDER TRADING: REGULATION, ENFORCEMENT, AND
PREVENTION (2020).
LOUIS LOSS ET AL., SECURITIES REGULATION (2020).
LOUIS LOSS ET AL., FUNDAMENTALS OF SECURITIES REGULATION (7th ed. 2019).
A. A. SOMMER, JR., FEDERAL SECURITIES ACT OF 1933 (Matthew Bender, rev. ed.
2020).
A. A. SOMMER, JR., FEDERAL SECURITIES EXCHANGE ACT OF 1934 (Matthew Bender,
rev. ed. 2020).
MARC I. STEINBERG, UNDERSTANDING SECURITIES LAW (7th ed. 2018).
David Zarin, Enforcement Discretion at the SEC, in ADMINISTRATIVE LAW FROM THE
INSIDE OUT 271 (Nichola R. Parillo ed., 2017)

17

ACUS
Agency Appellate Systems
Preliminary Draft – Nov. 10, 2020
Administrative Conference of the United States
Agency Appellate Systems
Christopher W. Walker
Matthew Lee Wiener
APPENDIX N
Social Security Administration Appeals Council:
Review of ALJ Decisions in Claims Filed Under Titles II and XVI of the
Social Security Act
INTRODUCTION
The Social Security Administration (SSA) administers a variety of benefits
under the Social Security Act (Act), including old-age, survivors, and disability
insurance benefits under title II of the Act and supplemental security income
under title XVI of the Act.1
The Act directs the Commissioner of Social Security to “make findings of
fact, and decisions as to the rights of any individual applying for a payment”
under title II or XVI of the Act.2 The Act also directs the Commissioner to
periodically redetermine whether beneficiaries who were previously found
entitled to or eligible for benefits on the basis of a disability continue to be
disabled.3 Individuals who disagree with a decision of the Commissioner may
request a hearing before the Commissioner.4 If a hearing is held, the
Commissioner “shall, on the basis of evidence adduced at the hearing, affirm,
modify, or reverse the Commissioner’s findings of fact and such decision.”5
The Act authorizes the Commissioner to delegate to “any member, officer,
or employee of the Social Security Administration designated by him” the
responsibility to hold hearings.6 The Act also authorizes the Commissioner to
“make rules and regulations” and “establish procedures” and to “adopt reasonable
1 SSA also administers Special Benefits for Certain World War II Veterans under title VIII of the

Act. For more information, see 20 C.F.R. pt. 408.
2 42 U.S.C. §§ 405(b)(1), 1383(c)(1)(A) (2019).
3 Id. §§ 421(i), 1383b(c), 1483b(e).
4 Id. §§ 405(b)(1), 1383(c)(1)(A).
5 Id. §§ 405(b)(1), 421(i), 1383(c); see also Mathews v. Eldridge, 424 U.S. 319 (1976); Goldberg v.
Kelly, 397 U.S. 254 (1970).
6 See 42 U.S.C. §§ 405(l), 902(a)(7).

and proper rules and regulations to regulate and provide for the nature and
extent of the proofs and evidence and the method of taking and furnishing the
same in order to establish the right to benefits.”7
The regulations establish an administrative review process by which SSA
determines individuals’ rights under titles II and XVI of the Act.8 First, a federal
or state agency makes an initial determination.9 If an individual is dissatisfied
with an initial determination, she may ask the federal or state agency to
reconsider it.10 If an individual is dissatisfied with a reconsideration
determination, she may request an evidentiary hearing before an administrative
law judge (ALJ) appointed under the Administrative Procedure Act (APA).11 If an
individual is dissatisfied with an ALJ’s decision, she may request that the
Appeals Council (AC) review the decision.12 The AC’s decision, or the ALJ’s
decision if the AC denies an individual’s request for review, becomes the final
decision of the Commissioner.13 If an individual is dissatisfied with the agency’s
final decision, she may request judicial review by filing an action in federal
district court.14
SSA conducts proceedings at all levels of the administrative review process
“in an informal, non-adversarial manner.”15 The Act specifically provides that
“[e]vidence may be received at any hearing before the Commissioner of Social
Security even though inadmissible under rules of evidence applicable to court
procedure.”16 No government representative currently participates as a party in
proceedings before an ALJ or the AC.
In most cases, an ALJ issues a written decision following an oral hearing
which gives “the findings of fact and the reasons for the decision” based on “the
preponderance of the evidence offered at the hearing or otherwise included in the
record.”17 If a preponderance of the evidence supports a finding that is fully
7 Id. §§ 405(a), 902(a)(5); see also id. § 1383b(a).
8 20 C.F.R. §§ 404.900(a), 416.1400(a).
9 Id. §§ 404.900(a)(1), 416.1400(a)(1).
10 Id. §§ 404.900(a)(2), 416.1400(a)(2).
11 See id. §§ 404.900(a)(3), 416.1400(a)(3).
12 Id. §§ 404.900(a)(4), 416.1400(a)(4).
13 Id. §§ 404.981, 416.1481.
14 42 U.S.C. § 405(g); 20 C.F.R. §§ 404.900(a)(5), 416.1400(a)(5); Smith v. Berryhill, 587 U.S. __

(2019).
15 20 C.F.R. §§ 404.900, 416.1400; see also Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019);
Richardson v. Perales, 402 U.S. 389, 400–01 (1971).
16 42 U.S.C. § 405(b)(1).
17 20 C.F.R. §§ 404.953(a), 416.453(a). SSA regulations permit the AC to “assume responsibility
for holding a hearing by requesting that the [ALJ] send the hearing request to it.” Id. §§ 404.956,
416.1456. While it is unclear that the AC has ever exercised this authority, SSA proposed rules in
2019 that would clarify the use of this authority. Hearings Held by Administrative Appeals
Judges of the Appeals Council, 84 Fed. Reg. 70,080 (Dec. 20, 2019).

2

favorable to all parties on every issue, an ALJ may be able to issue a decision
without conducting an oral hearing18 or enter an oral decision at the hearing.19
The regulations also permit non-ALJ attorney advisors to issue decisions when a
preponderance of the evidence supports a finding that is fully favorable on the
issue of disability.20 However, a party may still request a hearing before an ALJ
if an attorney advisor issues a decision.21 In limited situations, an ALJ may
dismiss a request for hearing without holding a hearing or issuing a decision on
the merits of a claim.22
If an individual is dissatisfied with an ALJ’s decision or dismissal, she may
request that the AC review the decision.23 The AC “may deny or dismiss a
request for review, or it may grant the request and either issue a decision or
remand the case to an [ALJ].”24 The AC may also review an ALJ decision or
dismissal on its own motion, either to remand the case to an ALJ or issue its own
decision.25 If the AC issues its own decision, it bases its decision on the
preponderance of the evidence.26
If an individual is dissatisfied with an ALJ’s decision or dismissal
following court remand, she may submit written exceptions to the AC.27 The AC
will either decline jurisdiction or assume jurisdiction, in order to remand the case
to an ALJ or issue a decision.28 The AC may also assume jurisdiction on its own
motion.29 If the AC issues its own decision, it bases its decision on the
preponderance of the evidence, and that decision becomes the final decision of the
Commissioner.30 If the AC does not assume jurisdiction, the ALJ’s decision
becomes the final decision of the Commissioner subject to judicial review.31
Administrative appeals judges (AAJ) comprise the AC’s membership.32 The
regulations authorize individual AAJs to dismiss requests for review, deny
18 Id. §§ 404.948, 416.1448.
19 Id. §§ 404.953(b), 416.1453(b).
20 Id. §§ 404.942(a), 416.1442(a). SSA regulations permit an “adjudication officer” to issue a

decision under limited circumstances. Id. §§ 404.943, 416.1443. SSA does not currently exercise
this authority.
21 Id. §§ 404.942(d), 416.1442(d).
22 Id. §§ 404.958, 416.1458.
23 Id. §§ 404.900(a), 416.1400(a).
24 Id. §§ 404.967, 416.1467.
25 Id. §§ 404.969, 416.1469; Social Security Ruling (SSR) 82-13.
26 20 C.F.R. §§ 404.979, 416.1479.
27 Id. §§ 404.984(b), 416.1484(b).
28 Id. §§ 404.984(b), 416.1484(b).
29 Id. §§ 404.984(c), 416.1484(c).
30 Id. §§ 404.984(c), 416.1484(c).
31 See id. §§ 404.984(d), 416.1484(d).
32 See 20 C.F.R. § 422.205; see also Final Rule, Organization and Procedures; Procedures of the
Office of Hearings and Appeals; Authority of Appeals Officers To Deny a Request for Appeals
Council Review, 60 Fed. Reg. 7117, 7118 (Feb. 7, 1995).

3

requests for review, decline to assume jurisdiction in court remand cases, and
deny reopening requests.33 The regulations authorize panels of two or three AAJs
to grant requests for review, review ALJ actions on the AC’s own motion, and
assume jurisdiction in court remand cases.34 The regulations also authorize
appeals officers (AO), who traditionally assisted and served as legal clerks to
AAJs, to deny certain requests for review.35 AOs are “[o]rganizationally . . . a part
of the [AC].”36 While SSA regulations permit the AC to decide cases en banc,37 it
rarely does so.
Separate, adversarial procedures apply in cases in which SSA’s Office of
General Counsel initiates a proceeding against an attorney or non-attorney
representative to suspend or disqualify that an individual from acting in a
representational capacity before SSA.38 This case study does not examine the
procedures that ALJs and the AC follow in representative sanction cases.
CHARACTERISTICS OF SYSTEM
(as ascertainable from public sources)
Governing Law
Procedural Law

The Social Security Act and regulations
issued by the Commissioner under the Act
provide the procedural law.39
Social Security Rulings (SSR) and
Acquiescence Rulings (AR) issued by the
Commissioner and published in the Federal
Register provide additional guidance on
procedure.40
The Office of Appellate Operations (OAO),
which includes the AC and its staff,
maintains the Hearings, Appeals, and

33 See 20 C.F.R. § 422.205(b)-(c).
34 20 C.F.R. § 422.205(b).
35 20 C.F.R. § 422.205(c).
36 60 Fed. Reg. at 7118; see also HEARINGS, APPEALS, AND LITIGATION LAW MANUAL § I-3-0-1 B

[hereinafter HALLEX].
37 20 C.F.R. § 422.205(e).
38 Id. at §§ 404.1700 et seq., 416.1500 et seq.
39 42 U.S.C. § 405(a).
40 20 C.F.R. §§ 402.35; HALLEX § I-3-3-50.

4

Litigation Law manual (HALLEX).41
HALLEX “conveys guiding principles and
procedures to hearing level and Appeals
Council adjudicators . . . and to their support
staff.”42
Substantive Law

The Social Security Act and regulations
issued by the Commissioner under the Social
Security Act provide the substantive law.
SSRs and ARs issued by the Commissioner
and published in the Federal Register provide
additional guidance on the substantive law.43
While HALLEX primarily provides
procedural guidance, it provides some
guidance on the application of substantive
law. AC adjudicators and staff may also
consult the agency’s Program Operations
Manual System (POMS) for guidance.44

Miscellaneous

[none]

Hearing-Level Proceedings in Appellate System
Hearing-Level Decisions
Appealable

The AC reviews ALJ decisions that
determine individuals’ rights under titles II
and XVI of the Act.45 The AC also reviews
ALJ dismissals.

Nature of Hearing-Level
Proceedings

Agency proceedings under titles II and XVI of
the Act are conducted in “an informal, nonadversarial manner.”46 While the Act
requires the Commissioner to provide
hearings to individuals dissatisfied with a

41 HALLEX § I-1-0-5 A. HALLEX is available on SSA’s website at Hearings, Appeals, and

Litigation Law Manual, SOC. SEC. ADMIN., https://www.ssa.gov/OP_Home/hallex/hallex.html (last
visited Aug. 7, 2019).
42 Id. § I-1-0-3.
43 20 C.F.R. § 402.35.
44 See POMS Home, Soc. Sec. Admin, https://secure.ssa.gov/apps10/poms.nsf/Home (last visited
Aug. 7, 2019).
45 Id. §§ 404.966-96, 416.1466-96, 422.205.
46 Id. §§ 404.900(b), 416.1400(b).

5

determination, the Supreme Court has not
definitively decided “whether the APA has
general application to social security
disability claims.”47 The rules of evidence
that apply in federal court proceedings are
not applicable in SSA hearings.48
Nature of Hearing-Level
Decision

In most cases, an ALJ issues a written
decision that “gives the findings of fact and
the reasons for the decision” based on “the
preponderance of the evidence offered at the
hearing or otherwise included in the
record.”49 In appropriate situations, an ALJ
may enter a fully favorable oral decision into
the record at hearing,50 issue a recommended
decision,51 or dismiss a request for hearing.52
In some circumstances, a non-ALJ attorney
advisor may issue a fully favorable decision
that “state[s] the basis for the decision and
advise[s] all parties that they may request
that an [ALJ] reinstate the request for
hearing if they disagree with the decision for
any reason.”53

Transfer of Case to
Appellate Body After
Hearing-Level Decision

A party who is dissatisfied with an ALJ
decision or dismissal may request review by
the AC.54 A party who is dissatisfied with an
ALJ decision following court remand may file
written exceptions with the AC.55
The AC may also review an ALJ decision or
dismissal, or the final decision of an ALJ

47 See Perales, 402 U.S. at 409. But see Robin J. Arzt, Adjudications by Administrative Law

Judges Pursuant to the Social Security Act are Adjudications Pursuant to the Administrative
Procedure Act, 22 J. NAT’L ASS’N ADMIN. L. JUDGES 279 (2002).
48 42 U.S.C. § 405(b)(1).
49 20 C.F.R. §§ 404.953(a), 416.1453(a); HALLEX § I-2-8-25.
50 20 C.F.R. §§ 404.953(b), 416.1453(b); HALLEX § I-2-8-19.
51 20 C.F.R. §§ 404.953(d), 416.1453(d); HALLEX § I-2-8-15.
52 20 C.F.R. §§ 404.957, 416.1457; HALLEX ch. I-2-4.
53 20 C.F.R. §§ 404.942, 416.1442; HALLEX § I-5-3-21; see also Final Rule; Making Permanent the
Attorney Advisor Program, 83 Fed. Reg. 40,451 (Aug. 15, 2018).
54 20 C.F.R. §§ 404.967, 416.1467; HALLEX §§ I-3-1-1, I-3-1-2.
55 20 C.F.R. §§ 404.984(a)-(b), 416.1484(a)-(b); HALLEX § I-4-8-25.

6

following court remand, on its own motion.56
Own motion cases in non-court remand cases
are ordinarily identified through random or
selective sampling or based on a referral from
another component responsible for examining
or effectuating decisions.57
In limited situations, an ALJ may send a case
to the AC with a recommended decision.58
Miscellaneous

An ALJ may dismiss a hearing request for
under certain enumerated circumstances.59

Identity of Reviewing/Appellate Authority and Its Legal Status
Reviewing Authority(ies)

ALJ decisions and dismissals are reviewable
by the AC.60 There is no process for review by
the Commissioner of Social Security.

Legal Status of Reviewing
Authority(ies)

The Act permits the Commissioner to
delegate the authority to hold hearings and
issue decisions.61 The Commissioner has
delegated the authority to hold hearings and
render decisions to APA-qualified ALJs and
the authority to review ALJ actions to the
AC.62

Miscellaneous

[none]

Institutional Attributes of Appellate/Reviewing Authority(ies)

56 20 C.F.R. §§ 404.969, 404.984(c), 416.1469, 404.984(c); HALLEX ch. I-3-6.
57 Id. §§ 404.969, 416.1469; SSR 82-13; HALLEX § I-3-6-1.
58 Id. at §§ 404.953(c), 416.1453(c).
59 20 C.F.R. § 404.957, 416.1457.
60 Id. §§ 404.900(a), 404.1780, 416.1400(a), 416.1580.
61 See 42 U.S.C. 405(l); see also id. § 902(a)(7).
62 Id. §§ 404.900(a), 404.981, 416.1400(a), 416.1481; HALLEX §§ I-2-0-2 A, I-3-01 B; see also SSA

ORGANIZATION MANUAL chs. TL, TQE (2019), available at https://www.ssa.gov/org/orgOARO.htm
[hereinafter SSA ORGANIZATIONAL MANUAL].

7

Number of Members

The AC consists of more than 100 AAJs, who
are members of the AC, and AOs, who are
organizationally part of the AC.63

Qualification Requirements

Neither the Act nor SSA regulations specify
qualification requirements for AAJs or AOs.
SSA hires AAJs and AOs through internal
postings on USAJOBS. Recent postings
indicate that AAJs must have seven years of
relevant experience, including “one year at a
level of difficulty comparable to the GS-14
grade level or equivalent in the Federal
service,” and must be a member of a bar.64
AOs must have 52 weeks of specialized
experience at the GS-13 level, and be an
active member of a bar.65

Party Affiliation
Requirement in
Appointment

There are no party affiliation requirements
for the appointment of AAJs or AOs.

Method of Appointment

AAJs and AOs are employees of the agency.
On July 16, 2018, the Acting Commissioner
ratified the appointment of AAJs and
approved their appointments as her own.66

Term of Appointment

AAJs and AOs are employees of the agency
without terms of appointment.

Statutory Removal
Protections

AAJs and AOs are members of the excepted
service. There are no specific statutory
removal protections for AAJs or AOs.

Location within Agency;
Basis of Legal Authority

The AC and its staff constitute OAO.67 OAO
is a subcomponent of the Office of Analytics,
Review, and Oversight (OARO), which is
headed by a Deputy Commissioner who is a

63 Brief History and Current Information about the Appeals Council, SOC. SEC. ADMIN.,

https://www.ssa.gov/appeals/about_ac.html (last visited Aug. 5, 2019).
64 Attorney-Examiner (General) (Administrative Appeals Judge), USAJOBS,
https://www.usajobs.gov/GetJob/ViewDetails/479582900 (last visited Aug. 5, 2019).
65 Attorney-Adviser (General) (Appeals Officer), USAJOBS,
https://www.usajobs.gov/GetJob/ViewDetails/495300500/ (last visited Aug. 6, 2019).
66 SSR 19-1p, 84 Fed. Reg. 9582 (Mar. 15, 2019).
67 SSA ORGANIZATIONAL MANUAL ch. TQE; HALLEX § I-3-0-1.

8

Authority to Delegate to
Subunit(s); Designating
Official and Process

member of the Senior Executive Service.68
The Deputy Commissioner reports to the
Commissioner of Social Security.69 The
presidentially-nominated and Senateconfirmed Commissioner serves a set six-year
term and may be removed from office “only
pursuant to a finding by the President of
neglect of duty or malfeasance in office.”70
Although the regulations permit the AC to
meet en banc to consider a case, individual
AAJs and AOs and panels of two or three
AAJs issue nearly all AC notices, orders, and
decisions.71
Adjudicators are “designated in the manner
prescribed by the Chairman or Deputy
Chairman of the Council.”72 In practice,
adjudicators are semi-randomly assigned to
cases based on claimants’ Social Security
numbers.

Quorum Requirement

Authority and Function of
Appellate Authority’s Head

A single AAJ or AO may deny a party’s
request for review of an ALJ decision; a
single AAJ may deny a request for review of
an ALJ dismissal, dismiss a request for
review, or deny a reopening request; and two
AAJs must agree to review an ALJ action.73
Three AAJs are required in cases in which
two AAJs disagree or a party appears before
the AC for oral argument.74
A Chairperson serves as the AC’s head.75
Under the regulations, cases are assigned to
adjudicators “in the manner prescribed by
the Chairman or Deputy Chairman of the
Council.”76 If two AAJs disagree as to
whether to review an ALJ action, “the

68 SSA ORGANIZATIONAL MANUAL ch. TQ.
69 SSA ORGANIZATIONAL CHART, https://www.ssa.gov/org/ssachart.pdf (July 30, 2019).
70 42 U.S.C. § 902(a)(1).
71 See 20 C.F.R. § 422.205.
72 20 C.F.R. § 422.205.
73 20 C.F.R. § 422.205; HALLEX §§ I-3-2-5 C, I-4-8-25 (procedures for court remand cases).
74 20 C.F.R. § 422.205(b); HALLEX § I-3-2-5 C.3.
75 See 20 C.F.R. § 422.205.
76 Id. § 422.205(b).

9

Chairman or Deputy Chairman, or his
delegate, who must be a member of the
Council,” participates as a third panel
member.77
The Chairperson may call a meeting of the
AC en banc or a representative body of AC
members to consider a case.78 The Chair may
also designate ALJs to serve as members of
the AC for temporary assignments.79
The Executive Director of OAO serves as the
Chairperson.80 The Executive Director is
“responsible for the day-to-day operations of
OAO.”81 She is “directly responsible to the
Deputy Commissioner for Analytics, Review,
and Oversight to carry out OARO and OAO’s
mission and provide general supervision to
the major components of OAO.”82
Internal Management
Structure of Appellate
Authority

OAO consists of the Executive Director, the
Deputy Executive Director, the Immediate
Office of the Executive Director, and up to 11
divisions that report to a Director of
Operations.83 The Divisions of Program
Adjudication “oversee[] and coordinate[]
activities of the Disability Program Branches
and the Retirement and Survivors Insurance
Supplemental Security Income Branches.”84
The Division of Civil Actions “is responsible
for certain actions on cases in which a
claimant has filed a civil action.”85 The
Division of Quality Review exercises the AC’s
quality review responsibilities.86

77 Id.
78 20 C.F.R. § 422.205(e).
79 20 C.F.R. § 422.205(e)-(f); HALLEX § I-3-0-1 B.
80 SSA ORGANIZATIONAL MANUAL ch. TQE; HALLEX § I-3-0-30.
81 HALLEX § I-3-0-30.
82 SSA ORGANIZATIONAL MANUAL ch. TQE.
83 Id.
84 Id.
85 HALLEX § I-3-0-25; see also HALLEX § I-4-0-2; SSA ORGANIZATIONAL MANUAL ch. TQE.
86 SSA ORGANIZATIONAL MANUAL ch. TQE; HALLEX § I-3-0-20.

10

Miscellaneous

Adjudicators in each division are led by a
Division Chief AAJ.87 DCAAJs are also
“involved in training and in broad
management decisions.”88 Although the AC’s
staff are also organized into the same
Divisions under a separate hierarchy, the
DCAAJs “help[] establish the culture and
direction of each division,” and
communication between the DCAAJs and the
Executive Director’s Office “create[s] an
additional channel for ideas to flow from the
staff to the front office, helping executives
more quickly identify and resolve operational
problems.”89
Federal law sets the rate of basic pay for
AAJs at “not less than the minimum rate of
basic pay for level AL-3” and “not greater
than the maximum rate of basic pay for level
AL-3” under 5 U.S.C. § 5372.90

Nature, Form, and Timing of Appeal
Nature of Appeal:
Discretionary Versus as of
Right; If Discretionary,
Standards for Allowance

The AC will review a case if (1) “[t]here
appears to be an abuse of discretion by the
[ALJ];” (2) “[t]here is an error of law;” (3)
“[t]he action, findings, or conclusions of the
[ALJ} are not supported by substantial
evidence;” (4) “[t]here is a broad policy or
procedural issue that may affect the general
public interest;” or (5) the AC “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.”91 The AC may review an ALJ

87 Ray & Sklar, supra note 104, at 11; see also SSA OFFICE OF THE INSPECTOR GEN., A-12-13-

13039, REQUEST FOR REVIEW WORKLOADS AT THE APPEALS COUNCIL, Appendix B 2-4 (2014).
88 Id.
89 Id.
90 5 U.S.C. § 5372b(c); see also Fact Sheet: Administrative Appeals Judge Pay System, OFFICE OF
PERSONNEL MGMT., https://www.opm.gov/policy-data-oversight/pay-leave/pay-administration/factsheets/administrative-appeals-judge-pay-system/ (last visited Aug. 5, 2019).
91 20 C.F.R. §§ 404.970(a), 416.1470(a); HALLEX ch. I-3-3.

11

decision or dismissal on its own initiative
according to the same standard.92
In court remand cases, the AC “may assume
jurisdiction based on written exceptions” or
on its own initiative.93
How Appeal Initiated

Time For Appealing

Parties request AC review by filing a Form
HA-520 “or by any other writing specifically
requesting review” in any SSA office.94
Parties may also request AC review online
through SSA’s website.95
A party who wishes to request that the AC
review an ALJ decision or dismissal must
submit a request for review within 60 days
after the date she receives notice of the
hearing decision or dismissal unless the AC
grants her request for an extension of time or
she shows she had good cause for missing the
deadline.96
A party who wishes to request that the AC
review the final decision of an ALJ following
court remand must submit written exceptions
within 30 days of the date she receives the
ALJ’s decision unless the AC grants an
extension of time.97

If No Appeal Taken from
Hearing Officer’s Decision

With limited exceptions, an ALJ decision or
dismissal becomes the final decision of the
Commissioner unless a party requests AC
review or the AC reviews an ALJ decision or
dismissal on its own motion.98 The decision of
an ALJ after a court remand ordinarily
becomes the final decision of the

92 See 20 C.F.R. §§ 404.969, 416.1469; SSR 82-13; HALLEX I-3-6-1 C.
93 20 C.F.R. §§ 404.984, 416.1484.
94 20 C.F.R. §§ 404.968, 416.1468, 422.205(a).
95 Appeal a Decision, SOC. SEC. ADMIN., https://www.ssa.gov/benefits/disability/appeal.html (last

visited Aug. 6, 2019).
96 20 C.F.R. §§ 404.968, 416.1468; HALLEX § I-3-1-1
97 20 C.F.R. §§ 404.984, 416.1484.
98 20 C.F.R. §§ 404.955, 404.959, 416.1455, 416.1459.

12

Commissioner unless a party submits written
exceptions.99
If Appeal Taken

If the AC denies a request for review, the
ALJ’s decision or dismissal becomes the final
decision of the Commissioner.100 If the AC
grants a request for review or reviews a case
on its own motion, it will remand the case to
an ALJ or issue a decision. If the AC issues a
decision, the AC’s decision becomes the final
decision of the Commissioner.101

Review of Decisions on
Own Initiative (Without
Request of a Party)

SSA regulations authorize the AC to review
decisions and dismissals on its own initiative
anytime within 60 days after their
issuance.102 A 1980 statute required the thenagency head to “implement a program of
reviewing, on his own motion, decisions
rendered by [ALJs] as a result of hearings”
under the disability determination provisions
of title II of the Act.103 OAO re-established its
quality review process in 2010.104
Today, the AC’s Division of Quality Review
uses random and selective sampling to
identify cases for potential quality assurance
review.105 The AC “randomly selects closed
hearing level cases, based on a sample size
that will yield statistically valid results at a
regional level.”106 The AC uses selective
sampling “to identify cases that exhibit
problematic issues or fact patterns that

99 20 C.F.R. §§ 404.984(d), 416.1484(c).
100 20 C.F.R. §§ 404.955(b), 404.981, 416.1455(b), 416.1481.
101 20 C.F.R. §§ 404.981, 416.1481.
102 20 C.F.R. §§ 404.969(a), 416.1469(a).
103 Social Security Disability Amendments of 1980, Pub. L. No. 96-265, § 304(g), 94 Stat. 441, 456

(1980); see also SSR 82-13.
104 HALLEX § I-3-0-20 A. For more information, see GERALD K. RAY & GLENN SKLAR, AN
OPERATIONAL APPROACH TO ELIMINATING BACKLOGS IN THE SOCIAL SECURITY DISABILITY PROGRAM
24 (2019); SSA OFFICE OF THE INSPECTOR GEN., A-12-16-50106, OVERSIGHT OF ADMINISTRATIVE
LAW JUDGE DECISIONAL QUALITY (2017); SSA OFFICE OF THE INSPECTOR GEN., A-12-15-50015,
PRE-EFFECTUATION REVIEWS OF FAVORABLE HEARING DECISIONS (2017).
105 20 C.F.R. §§ 404.969(b)(1), 416.1469(b)(1).
106 HALLEX § I-3-6-1 B.

13

increase the likelihood of error.”107 Neither
sampling procedure “identif[ies] cases based
on the identity of the decisionmaker or the
identity of the office issuing the decision.”108
The AC also reviews cases on its own motion
based on referrals from components that
conduct case examinations or effectuate
favorable decisions.109
The AC may also assume jurisdiction of the
final decision of an ALJ issued after a court
remand any time within 60 days after the
date of the ALJ’s decision.110
As part of its quality assurance role, the AC
also conducts “focused reviews of specific
subjects, including but not limited to hearing
offices, individuals, subject matters, policies,
or procedures.”111 Unlike own motion review
cases, focused reviews occur after decisions
are effectuated and do not affect the outcome
of an ALJ’s decision or the payment of
benefits.112
Miscellaneous

[none]

Appellate Authority’s Procedures
Record on Review

The official record consists of the ALJ’s
decision or dismissal; “all evidence upon
which the [ALJ] relies for the decision . . .,
either directly or by appropriate evidence,”
“the applications, written statements,
certificates, reports, affidavits, medical
records, and other documents used in making
the decision;” all “exhibits introduced as
evidence;” “a verbatim recording of all

107 20 C.F.R. §§ 404.969(b)(1), 416.1469(b)(1); HALLEX § I-3-6-1 B.
108 20 C.F.R. §§ 404.969(b)(1), 416.1469(b)(1).
109 20 C.F.R. §§ 404.969(b)(2)-(c), 416.1469(b)(2)-(c); HALLEX § I-3-6-10.
110 20 C.F.R. §§ 404.984(c), 416.1484(c).
111 HALLEX § I-3-0-20 C.
112 See Ray & Sklar, supra note 104, at 25.

14

testimony offered at the hearing;” and “any
prior initial determinations or decisions on
[the] claim.”113
Submissions by Parties in
Support of Appeal

The AC provides parties “a reasonable
opportunity to file briefs or other written
statements about the facts and law relevant
to the case.”114 Parties are also advised to
submit “any evidence you wish to have
considered by the [AC] with your request for
review.”115 However, the AC will only
consider additional evidence under limited
circumstance (see below).
In court remand cases, parties may submit “a
written statement to the [AC] setting forth
your reasons for disagreeing with the
decision of the [ALJ].”116

Issue Preservation

There is generally no issue preclusion in nonadversarial Social Security proceedings.117

Open or Closed Record on
Appeal? Submission and
Consideration of New
Evidence on Appeal

In general, a party must inform SSA about or
submit all evidence no later than five
business days before the date of the hearing
before an ALJ unless a party has a good
reason for missing the five-day deadline.118
The AC will only consider additional evidence
if a party shows good cause for missing the
five-day deadline and the additional evidence
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.119

113 20 C.F.R. §§ 404.951(b), 416.1451(b).
114 20 C.F.R. §§ 404.975, 416.1475.
115 20 C.F.R. §§ 404.968, 416.1468.
116 20 C.F.R. §§ 404.984(b), 416.1484(b).
117 Sims v. Apfel, 530 U.S. 103 (2000).
118 20 C.F.R. § 404.935, 416.1435; HALLEX §§ I-2-6-58, I-2-6-59.
119 20 C.F.R. §§ 404.970, 416.1470; HALLEX § I-3-3-6.

15

Standard of Review

The AC will review a case if (1) “[t]here
appears to be an abuse of discretion by the
[ALJ];” (2) “[t]here is an error of law;” (3)
“[t]he action, findings, or conclusions of the
[ALJ} are not supported by substantial
evidence;” (4) “[t]here is a broad policy or
procedural issue that may affect the general
public interest;” or (5) the AC “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.”120
The AC may review an ALJ decision or
dismissal on its own initiative according to
the same standard.121 In court remand cases,
the AC “may assume jurisdiction based on
written exceptions” or on its own initiative.122
If the AC issues a decision, it bases its
decision on the preponderance of the
evidence.123

Consultation with Staff and An attorney or non-attorney analyst conducts
Other Agency Officials
a procedural and substantive review of every
case in which a request for review is filed and
prepares a recommendation for review by an
AO or AAJ, as appropriate.124
The AC may refer a case to its Medical
Support Staff when it needs medical advice
or a medical assessment of a claimant’s
ability to perform work-related activities.125
Oral Argument

Parties may request to appear before the AC
to present oral argument. The AC will grant

120 20 C.F.R. §§ 404.970(a), 416.1470(a); HALLEX ch. I-3-3.
121 See 20 C.F.R. §§ 404.969, 416.1469; SSR 82-13; HALLEX I-3-6-1 C.
122 20 C.F.R. §§ 404.984, 416.1484.
123 20 C.F.R. §§ 404.979, 409.984(b)(3)-(c), 416.1479, 416.1484(b)(3)-(c).
124 HALLEX §§ I-3-2-1, I-3-2-3, I-3-2-5, I-4-8-25.
125 HALLEX § I-3-2-11.

16

a request if it decides that a case “raises an
important question of law or policy or that
oral argument would help to reach a proper
decision.”126 Parties rarely appear before the
AC to present oral argument.127
Amicus Participation;
Intervention; etc.

There is no provision for amicus participation
or intervention.

Public Access to Hearings

Under the regulations, an ALJ hearing is
“open to the parties and to other persons the
[ALJ] considers necessary and proper.”128 No
regulation provides explicit guidance
regarding oral arguments before the AC.129

Staff’s Role in Writing
Decisions

Analysts play an integral role reviewing case
files; preparing recommendations that the
AC take particular actions; and drafting
notices, orders, and decisions.130

Deadlines for Decision

None is provided for in the Social Security
Act or SSA regulations.

Nature of Decision

If the AC issues a decision, it affirms,
modifies, or reverses the ALJ decision based
on the preponderance of the evidence.131

Reconsideration,
Rehearing, etc.

SSA regulations permit the AC to reopen and
revise an otherwise final and binding
determination or decision, upon a party’s
request or on its own initiative, under limited
circumstances.132 The AC may reopen a
determination or decision for any reason
within 12 months of the date of the notice of
the initial determination; within four years of
the date of the notice of the initial

126 20 C.F.R. §§ 404.976, 416.1476; HALLEX § I-3-8-12.
127 Oral arguments are more common in representative conduct cases, which are not addressed in

this report. See 20 C.F.R. §§ 404.1780, 416.1580.
128 20 C.F.R. §§ 404.944, 416.1444.
129 Oral arguments are more common in representative conduct cases, which are not addressed in
this report. See 20 C.F.R. §§ 404.1780, 416.1580.
130 HALLEX § I-3-2-5.
131 20 C.F.R. §§ 404.979, 404.984(b)(3)-(c), 416.1479, 416.1484(b)(3)-(c).
132 20 C.F.R. §§ 404.987, 416.1487.

17

determination on a title II claim and within
two years of the date of the notice of the
initial determination on a title XVI claim for
good cause; and at any time under
enumerated circumstances, such as where a
determination or decision “was obtained by
fraud or similar fault.”133 Good cause exists if
(1) “[n]ew and material evidence is
furnished;” (2) “[a] clerical error was made;”
(3) “[t]he evidence that was considered in
making the determination or decision clearly
shows on its face that an error was made.”134
Miscellaneous

The AC may dismiss a request for hearing if
(1) a party “did not file [the] request within
the stated period of time and the time for
filing has not been extended,” (2) all parties
to a proceeding file a written request for
dismissal, or (3) all parties have died and
“the record clearly shows that dismissal will
not adversely affect any other person who
wishes to continue the action.”135

Other Case-Management Features
Interlocutory Appeals:
Availability, Procedures,
Standard

There is no provision for interlocutory
appeals.

Assignment of Cases

No publicly available document addresses the
assignment of cases to adjudicators.

Special Case-Selection
Techniques (e.g., Artificial
Intelligence) When Appeal
Is Not as of Right

The AC uses random and selective sampling
techniques to identify cases for quality
assurance reviews and potential own motion
review.136

133 20 C.F.R. §§ 404.988, 416.1488.
134 20 C.F.R. §§ 404.989, 416.1489.
135 20 C.F.R. §§ 404.971, 416.1471.
136 20 C.F.R. §§ 404.969, 416.1469; HALLEX ch. I-3-6. For more information, see SSA OFFICE OF

THE INSPECTOR GEN., A-12-15-50015, PRE-EFFECTUATION REVIEWS OF FAVORABLE HEARING
DECISIONS (2017).

18

Aggregation

There is no provision for aggregation.

Miscellaneous

OAO relies on its electronic case
management system, the Appeals Review
Processing System (ARPS), to collect data on
hearing- and appeals-level decision making.
SSA uses this data to inform decisions about
substantive and procedural policies as well as
for training and feedback purposes.137
The AC has developed data analytical,
natural language processing, and other
artificial intelligence techniques to assist in
the assignment of cases to analysts and to
support the AC’s substantive review of ALJ
decisions.138

Form of Decisions, Publication, and Precedential Status
Form of Decision

The “primary purpose of an AC decision is to
dispose of all issues in a case,” including
those not previously considered by an ALJ.139
The decision must be “legally sufficient” and
“defensible” and its “rationale must support
and fully explain the conclusion.”140 An AC
decision “generally has four basic sections:
procedural history, rationale, findings, and
decisional paragraph.”141

Signed or Per Curiam

Decisions are issued under the name of the
AAJ or AO for one-member actions and the

137 See generally Felix F. Bajandas & Gerald K. Ray, Implementation and Use of Electronic Case

Management Systems in Federal Agency Adjudication 42-52 (May 23, 2018) (report to the Admin.
Conf. of the U.S.); Gerald K. Ray & 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).
138 Ray & Sklar, supra note 104, at 16-23, 31-34.
139 HALLEX § I-3-8-1 B.
140 HALLEX § I-3-8-20 A.
141 Id.

19

name of the AAJs for two- and three-member
actions.142
Dissents

There is no provision for dissenting opinions.

Publication

The AC does not make its decisions publicly
available unless they are deemed
precedential and published as Social Security
Rulings in the Federal Register and on SSA’s
website.143 The most recently published AC
decision still in effect dates from 1990.144

Where Published

See above.

Precedential Status

See above.

Miscellaneous

HALLEX empowers the AC to issue Appeals
Council Interpretations (ACI) to (1) “[s]urface
and resolve issues arising from gaps in policy
or unclear statements of policy to facilitate
the adjudication of individual cases coming
before the Council for consideration;” (2)
“[p]romote greater consistency and
uniformity in policy and its application both
at the hearings and appeals levels and
throughout the adjudicatory process;” (3)
“[e]stablish precedents at the hearings and
appeals levels of adjudication upon which
claimants and their representatives may
rely;” and (4) “[e]nhance service to the public
by identifying and resolving conflicts and
inconsistencies in adjudicatory policy, and by
identifying and surfacing to SSA
policymakers conflicts or inconsistencies in
program policy.”145
In theory, this mechanism arises from the
AC’s authority to review a case if “[t]here is a
broad policy or procedural issue that may

142 HALLEX § I-3-2-5 C.
143 See 20 C.F.R. § 402.35(b)(1); see also Daniel J. Sheffner, Access to Adjudication Materials on

Federal Agency Websites, 51 AKRON L. REV. 447, 494-98 (2017).
144 See SSR 90-4a.
145 HALLEX § II-5-0-1.

20

affect the general public interest.”146 In
practice, ACIs do not present as the AC’s
decision in particular cases. Most, if not all,
ACIs take the form of general guidance
rather than adjudicatory orders. Although
ACUS has encouraged the AC to make
greater use of ACIs,147 the AC only
infrequently issues them. As of 2020, there
are only 13 published ACIs. Nine relate to
“administrative” (i.e., procedural) matters,
one relates to “retirement and survivors
insurance and supplemental security income
matters,” and three relate to “disability
matters.”
When the AC issues an ACI, it does so en
banc after consultation with “the appropriate
program policy office.”148
Extra-Adjudicative Activities of Appellate Authority to Direct or Review
Activities of Adjudicators Below
Guidance Documents
Governing Hearing-Level
Adjudicators

HALLEX “communicates guiding principles
and procedures to hearing level and [AC]
adjudicators, i.e., [ALJs], attorney advisors,
[AAJs], and [AOs], and to their support
staff.”149
OAO maintains HALLEX.150 OAO also serves
as the “national coordination point for
HALLEX issuances” and “[d]evelops policies,
standards, and procedures for maintaining
HALLEX;” “[m]ay initiate and coordinate
updates and revisions in any Division of
HALLEX;” “[r]eviews all proposed issuances
for conformity and consistency with
established standards, policies, and

146 Id.; see also 20 C.F.R. §§ 404.970, 416.1470.
147 Admin. Conf. of the U.S., Recommendation 2013-1, Improving Consistency in Social Security

Disability Adjudications, ¶ 3(a), 78 Fed. Reg. 41,352, 41,354 (July 10, 2013); see also Admin. Conf.
of the U.S., Recommendation 87-7, A New Role for the Social Security Appeals Council, ¶ 1(a)(2),
52 Fed. Reg. 49,143 (Dec. 30, 1987).
148 HALLEX § II-5-0-1.
149 HALLEX § I-1-0-3 A.
150 HALLEX § I-1-0-5 A.

21

procedures;” and “[m]aintains records of
published HALLEX issuances.”151
The Office of the Chief ALJ “may notify OAO
of the need to develop and update HALLEX”
and is responsible for writing and revising
relevant HALLEX sections.152
Feedback to Adjudicators

OAO decision-making data is used to provide
ALJs with “timely and direct feedback on
remanded cases,” including relevant “policy
guidance and in-depth training material
related to the reasons their cases were
remanded.” The How MI Doing? (HMID) tool
also “allows ALJs to monitor their personal
workloads and compare their performance to
other ALJs in their hearing office, their
region, and nationally.”153

Quality-Assurance Reviews
and Related Mechanisms

Quality assurance has become a core
responsibility of the AC.154 Although SSA
regulations have permitted the AC ownmotion review since the 1940s, OAO reestablished its quality review process in
2010,155 and in 2017, SSA combined OAO
with several other quality assurance
components to form the Office of Analytics,
Review, and Oversight (OARO). OARO
“supports the agency’s mission, goals, and
service principles by reviewing program
quality and effectiveness; making
recommendations for program improvement
using feedback from the adjudication of cases,

151 HALLEX § I-1-0-5 A.
152 HALLEX § I-1-0-5 B-C.
153 SSA OFFICE OF THE INSPECTOR GEN., A-12-16-50106, OVERSIGHT OF ADMINISTRATIVE LAW

JUDGE DECISIONAL QUALITY 9 (2017); see also Ray & Sklar, supra note 104, at 26.
154 See generally Ray & Sklar, supra note 104, at 24-27; SSA OFFICE OF THE INSPECTOR GEN., A-1216-50106, OVERSIGHT OF ADMINISTRATIVE LAW JUDGE DECISIONAL QUALITY (2017); SSA OFFICE OF
THE INSPECTOR GEN., A-12-15-50015, PRE-EFFECTUATION REVIEWS OF FAVORABLE HEARING
DECISIONS (2017); U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-18-37, SOCIAL SECURITY DISABILITY:
ADDITIONAL MEASURES AND EVALUATION NEEDED TO ENHANCE ACCURACY AND CONSISTENCY OF
HEARINGS DECISIONS (2017); SSA OFFICE OF THE INSPECTOR GEN., A-12-13-13039, REQUEST FOR
REVIEW WORKLOADS AT THE APPEALS COUNCIL 13 (2014).
155 HALLEX § I-3-0-20 A.

22

predictive modeling, and advanced data
analytics; coordinating the agency’s detection
and prevention of fraud; and responding to
recommendations of external monitoring
authorities.”156

Participation of Appellate
Body in Substantive
Rulemaking
Miscellaneous

Core quality assurance-related activities
include pre- and post-effectuation quality
assurance reviews and the use of ARPS data
for policy, feedback, and training purposes, as
discussed above.
Substantive rules are promulgated by the
Commissioner.157 OAO may participate in the
development of rules related to the
responsibilities of the AC.158
[none]

Miscellaneous
Alternative Dispute Resolution
(ADR)

There is no provision for ADR.

Participation of Appellate Body in
OAO’s Division of Civil Actions
Agency Decisions on Judicial Review (DCA) is “responsible for certain
actions on cases in which a claimant
has filed a civil action.”159 These
responsibilities include: “[a]pproving
extensions of time to file a civil
action;” “[p]reparing the certified
administrative record;” “[p]reparing
affidavits and declarations used to
support motions to dismiss;”
“[c]onducting supplemental reviews
of pending court cases, including
recommendations to defend on the
record, seek voluntary remand, or
seek appeal when a court issues a
decision that is adverse to the
156 SSA ORGANIZATION MANUAL ch. TQ (2019).
157 42 U.S.C. §§ 405(a), 902(a)(5).
158 See, e.g., Final Rule, Ensuring Program Uniformity at the Hearing and Appeals Council Levels

of the Administrative Review Process, 81 Fed. Reg. 90,987 (Dec. 16, 2016).
159 HALLEX § I-4-0-1.

23

Role and Participation of Appellate
Body in Writing Rules
Miscellaneous

Commissioner;” “[a]cting on remand
orders from the court;” and
“[h]andling appeals of [ALJ]
decisions issued following a court
remand.” OAO also works with
SSA’s Office of General Counsel “to
evaluate and formulate litigation
management strategy.” DCA
“track[s] and analyze[s] court case
trends in order to . . . [g]uide
adjudicators with respect to case
law; [i]mplement an effective
appeals strategy; and [i]dentify and
make recommendations to develop
or clarify policies, to develop or
clarify regulations, or to seek
clarifying legislation.”160
See above.
[none]

PUBLICLY AVAILABLE CASE STATISTICS
SSA provides public access to hearings and appeals data on its website.161
In fiscal year (FY) 2018, the AC received 152,888 requests for review, issued
155,959 request for review dispositions, and granted 21,909 requests for review
(of which 18,444 were remands). 18,252 new court cases were filed following AC
action in FY 2018.
TREATISES AND SCHOLARSHIP OF NOTE162
160 HALLEX § I-4-0-2.
161 Public Data Files, SOC. SEC. ADMIN., , https://www.ssa.gov/appeals/publicusefiles.html (last

visited Aug. 8, 2019).
162 The literature on the SSA hearings and appeals system is voluminous. It includes the treatises
and scholarship of note listed in this section as well as practice guides—such as the Social
Security Practice Guide published by the National Organization of Social Security Claimants’
Representatives and available through Lexis—and textbooks—such as FRANK S. BLOCH & JON C.
DUBIN, SOCIAL SECURITY LAW AND PRACTICE (1st ed. 2016). The Administrative Conference of the
United States has also made specific recommendations and statements related to the AC on
several occasions, including Recommendation 2013-1, Improving Consistency in Social Security
Disability Adjudications, 78 Fed. Reg. 41,352 (July 10, 2013); Statement #17, Comments on the
Social Security Administration’s Proposal on Reengineering the SSA Disability Process, 59 Fed.
Reg. 44,704 (Aug. 30, 1994); Recommendation 90-4, Social Security Disability Program Appeals
Process: Supplementary Recommendation, 55 Fed. Reg. 34,213 (Aug. 22, 1990); Recommendation

24

ADMINISTRATIVE PROCEDURE IN GOVERNMENT AGENCIES: MONOGRAPH OF
THE ATTORNEY GENERAL’S COMMITTEE ON ADMINISTRATIVE PROCEDURE: PART 3:
SOCIAL SECURITY BOARD, S. Doc. No. 10, 77th Cong. (1941).
Robin J. Arzt, Recommendations for a New Independent Adjudication
Agency to Make the Final Administrative Adjudications of Social Security Act
Benefits Claims, 23 J. NAT’L ASS’N ADMIN. L. JUDGES 267 (2003).
Jo Anne B. Barnhart, The Social Security Administration’s Disability
Service Improvement Process, 66 SOC. SEC. BULL. 41 (2005/2006).
Frank S. Bloch, Jeffrey S. Lubbers & Paul R. Verkuil, Developing a Full
and Fair Evidentiary Record in a Nonadversary Setting: Two Proposals for
Improving Social Security Disability Adjudications, 25 CARDOZO L. REV. 1 (2003).
Frank S. Bloch, Jeffrey S. Lubbers & Paul R. Verkuil, The Social Security
Administration’s New Disability Adjudication Rules: A Significant and Promising
Reform, 92 CORNELL L. REV. 235 (2007).
Ernest R. Burton, The Appeals System in Old-Age and Survivors
Insurance, 9 SOC. SEC. BULL. 4 (1946).
Ernest R. Burton & Irving Ladimer, Experience in Appeals Under Old-Age
and Survivors Insurance, 4 SOC. SEC. BULL. 18 (1941).
John C. Capowski, Accuracy and Consistency in Categorical DecisionMaking: A Study of Social Security’s Medical-Vocational Guidelines—Two Birds
with One Stone or Pigeon-Holding Claimants, 42 MD. L. REV. 329 (1983).
Deborah A. Chassman & Howard Rolston, Social Security Disability
Hearings: A Case Study in Quality Assurance and Due Process, 65 CORNELL L.
REV. 801 (1980).
Fred Davis & James Reynolds, Profile of a Social Security Disability Case,
42 MO. L. REV. 541 (1977).
ROBERT G. DIXON JR., SOCIAL SECURITY DISABILITY AND MASS JUSTICE
(1973).

87-7, A New Role for the Social Security Appeals Council, 52 Fed. Reg. 49,143 (Dec. 30, 1987); and
Recommendation 78-2, Procedures for Determining Social Security Disability Claims, 43 Fed.
Reg. 27,508 (June 26, 1978). These recommendations and the associated consultant reports
provide additional information about SSA’s hearings and appeals process.

25

Jonah Gelbach & David Marcus, A Study of Social Security Litigation in
the Federal Courts (July 28, 2016) (report to Admin. Conf. of the U.S.),
https://www.acus.gov/report/report-study-social-security-litigation-federal-courts.
Daniel J. Gifford, Adjudication in Independent Tribunals: The Role of an
Alternative Agency Structure, 66 NOTRE DAME L. REV. 965 (1991).
Timothy H. Gray, Note, Manual Override? Accardi, Skidmore, and the
Legal Effect of the Social Security Administration’s HALLEX Manual, 114
COLUM. L. REV. 949 (2014).
Carl H. Harper & Bernard M. Niezer, Appeals Procedure Under Old-Age
and Survivors Insurance, 16 IND. L.J. 440 (1941).
William F. Hessmer IV, Comment, Own Motion Review of Disability
Benefit Awards by the Social Security Administration: The Improper Use of an
Important Procedure, 2 ADMIN. L. J. 141 (1988).
CHARLES A. HORSKY & AMY RUTH MAHIN, THE OPERATION OF THE SOCIAL
SECURITY ADMINISTRATION HEARING AND DECISIONAL MACHINERY (1960).
Charles H. Koch, Jr., & David A. Koplow, The Fourth Bite at the Apple: A
Study of the Operation and Utility of the Social Security Administration’s Appeals
Council, 17 FLA. ST. U. L. REV. 199 (1990).
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