Administrative Conference Recommendation 2020-3
Agency Appellate Systems
Adopted December 16, 2020

In Recommendation 2016-4,1 the Administrative Conference offered best practices for
evidentiary hearings in administrative adjudications. Paragraph 26 recommended that agencies
provide for “higher-level review” (or “agency appellate review”) of the decisions of hearinglevel adjudicators.2 This Recommendation offers best practices for such review. The
Administrative Conference intends this Recommendation to cover appellate review of decisions
resulting from (1) hearings governed by the formal hearing provisions of the Administrative
Procedure Act (APA) and (2) evidentiary hearings that are not governed by those provisions but
are required by statute, regulation, or executive order. Agencies may also decide to apply this
Recommendation to appellate review of decisions arising from other hearings, depending on
their level of formality.
Appellate review of hearing-level decisions can be structured in numerous ways. Two
structures are most common. In the first, litigants appeal directly to the agency head, which may
be a multi-member board or commission. In the second, litigants appeal to an appellate
adjudicator or group of adjudicators—often styled as a board or council—sitting below the

Admin. Conf. of the U.S., Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative
Procedure Act, 81 Fed. Reg. 94,314 (Dec. 23, 2016).
1

Recommendation 2016-4 addressed agency adjudications in which an evidentiary hearing, though not governed by
the formal hearing provisions of the Administrative Procedure Act (APA) (5 U.S.C. §§ 554, 556–57), is required by
statute, regulation, or executive order. Those adjudications, which are often as formal as APA adjudications in
practice, far outnumber so-called APA adjudications. Although Recommendation 2016-4 addresses only non-APA
adjudications, most of its best practices are as applicable to APA adjudications as non-APA adjudications. Some such
practices, in fact, are modeled on the APA’s formal hearing provisions.
2

agency head. The appellate decision may be the agency’s final action or may be subject to
further appeal within the agency (usually to the agency head).
The Administrative Conference has twice before addressed agency appellate review. In
Recommendations 68-6 and 83-3, it provided guidance to agencies when establishing new, and
reviewing existing, organizational structures of appellate review.3 Both recommendations
focused on the selection of “delegates”—individual adjudicators, review boards composed of
multiple adjudicators, or panels composed of members of a multi-member agency—to exercise
appellate review authority vested in agency heads (including boards and commissions).
Recommendation 83-3 also addressed when agencies should consider providing appellate review
as a matter of right and when as a matter of discretion, and, in the case of the latter, under what
criteria.
With the exception of the appropriate standard for granting review, this
Recommendation’s focus lies elsewhere. It addresses, and offers best practices with respect to,
the following subjects: first, an agency’s identification of the purpose or objective served by its
appellate review; second, its selection of cases for appellate review, when review is not required
by statute; third, its procedures for review; fourth, its appellate decision-making processes; fifth,
its management, administration, and bureaucratic oversight of its appellate system; and sixth, its
public disclosure of information about its appellate system.4
Most importantly, this Recommendation begins by suggesting that agencies identify, and
publicly disclose, the purpose(s) or objective(s) of their appellate systems. Appellate systems
may have different purposes, and any given appellate system may have multiple purposes.
Purposes or objectives can include the correction of errors, inter-decisional consistency of
Admin. Conf. of the U.S., Recommendation 83-3, Agency Structures for Review of Decisions of Presiding Officers
Under the Administrative Procedure Act, 48 Fed. Reg. 57,461 (Dec. 30, 1983); Admin. Conf. of the U.S.,
Recommendation 68-6, Delegation of Final Decisional Authority Subject to Discretionary Review by the Agency, 38
Fed. Reg. 19,783 (July 23, 1973). Both recommendations concerned only the review of decisions in proceedings
governed by the formal hearing provisions of the APA. Their principles, though, are not so confined.
3

Christopher J. Walker & Matthew Lee Wiener, Agency Appellate Systems (Dec. 14, 2020) (report to the Admin.
Conf. of the U.S.), https://www.acus.gov/report/final-report-agency-appellate-systems.
4

2

decisions, policymaking, political accountability, management of the hearing-level adjudicative
system, organizational effectiveness and systemic awareness, and the reduction of litigation in
federal courts. The identification of purpose is important both because it dictates (or should
dictate) how an agency administers its appellate system—including what cases it hears and under
what standards of review it decides them—and provides a standard against which an agency’s
performance can be evaluated.
This Recommendation proceeds from the recognition that agency appellate systems vary
enormously—as to their purposes or objectives, governing substantive law, size, and resources—
and that what may be a best practice for one system may not always be the best practice for
another. In offering the best practices that follow, moreover, the Administrative Conference
recognizes that (1) an agency’s procedural choices may sometimes be constrained by statute and
(2) available resources and personnel policies may dictate an agency’s decision as to whether and
how to implement the best practices that follow. The Administrative Conference makes this
Recommendation subject to these important qualifications.
RECOMMENDATION
Objectives of Appellate Review
1. Agencies should identify the objective(s) of appellate review; disclose those objectives in
procedural regulations; and design rules and processes, especially for scope and standard
of review, to serve them.
Procedures for Appellate Review
2. Agencies should promulgate and publish procedural regulations governing agency
appellate review in the Federal Register and codify them in the Code of Federal
Regulations. These regulations should cover all significant procedural matters pertaining
to agency appellate review, including but not limited to the following:
a. The objectives of the agency’s appellate review system;

3

b. The timing and procedures for initiating review, including any available
interlocutory review;
c. The standards for granting review, if review is discretionary;
d. The standards for permitting participation by interested persons and amici;
e. The standard of review;
f. The allowable and required submissions by litigants and their required form and
contents;
g. The procedures and criteria for designating decisions as precedential and the legal
effect of such designations;
h. The record on review and the opportunity, if any, to submit new evidence;
i. The availability of oral argument or other form of oral presentation;
j. The standards of and procedures for reconsideration and reopening, if available;
k. Any administrative or issue exhaustion requirements that must be satisfied before
seeking agency appellate or judicial review, including whether agency appellate
review is a mandatory prerequisite to judicial review;
l. Openness of proceedings to the public and availability of video or audio
streaming or recording;
m. In the case of multi-member appellate boards, councils, and similar entities, the
authority to assign decision-making authority to fewer than all members (e.g.,
panels); and
n. Whether seeking agency appellate review automatically stays the effectiveness of
the appealed agency action until the appeal is resolved (which may be necessary
for appellate review to be mandatory, see 5 U.S.C. § 704), and, if not, how a party
seeking agency appellate review may request such a stay and the standards for
deciding whether to grant it.
3. Agencies should include in the procedural regulations governing their appellate
programs: (a) a brief statement or explanation of each program’s review authority,
structure, and decision-making components; and (b) for each provision based on a
statutory source, an accompanying citation to that source.

4

4. When revising existing or adopting new appellate rules, agencies should consider the
appellate rules (Rules 400–450) in the Administrative Conference’s Model Rules of
Agency Adjudication (rev. 2018).
5. When materially revising existing or adopting new appellate rules, agencies should use
notice-and-comment procedures or other mechanisms for soliciting public input,
notwithstanding the procedural rules exemption of 5 U.S.C. § 553(b)(A), unless the costs
clearly outweigh the benefits of doing so.
Case Selection for Appellate Review
6. Based on the agency-specific objectives of appellate review, agencies should decide
whether the granting of review should be mandatory or discretionary (assuming they have
statutory authority to decide); if discretionary, the criteria for granting review should
track the objectives of the appellate system, and they should be published in the
procedural regulations.
7. Agencies should consider implementing procedures for sua sponte appellate review of
non-appealed hearing-level decisions, as well as for the referral of cases or issues by
hearing-level adjudicators to the appellate entity for interlocutory review.
Appellate Decision-making Processes and Decisions
8. Whenever possible, agencies should consider maintaining electronic case management
systems that ensure that hearing records are easily accessible to appellate adjudicators.
Such systems may include the capability for electronic filing.
9. Although the randomized assignment of cases to appellate adjudicators is typically an
appropriate docketing method for an agency appellate system, agencies should consider
the potential benefits of sorting and grouping appeals on the appellate docket, such as
reduced case processing times and more efficient use of adjudicators’, staff attorneys’,
and law clerks’ skills and time. Criteria for sorting and grouping cases may include the
size of a case’s record, complexity of a case’s issues, subject matter of a case, and
similarity of a case’s legal issues to those of other pending cases.
5

10. Consistent with the objectives of the agency’s appellate system and in light of the costs of
time and resources, agencies should consider adopting an appellate model of judicial
review in which the standard of review is not de novo with respect to findings of fact and
application of law to facts. For similar reasons, many agencies should consider limiting
the introduction of new evidence on appeal that is not already in the administrative record
from the hearing-level adjudication.
11. Taking agency resources into account, agencies should emphasize concision, readability,
and plain language in their appellate decisions and explore the use of decision templates,
summary dispositions, and other quality-improving measures.
12. Agencies should establish clear criteria and processes for identifying and selecting
appellate decisions as precedential, especially for appellate systems with objectives of
policymaking or inter-decisional consistency.
13. Agencies should assess the value of oral argument and amicus participation in their
appellate system based on the agencies’ identified objectives for appellate review and
should establish rules governing both. Criteria that may favor oral argument and amicus
participation include issues of high public interest; issues of concern beyond the parties to
the case; specialized or technical matters; and a novel or substantial question of law,
policy, or discretion.
Administration, Management, and Bureaucratic Oversight
14. Agency appellate systems should promptly transmit their precedential decisions to all
appellate program adjudicators and, directly or through hearing-level programs, to
hearing-level adjudicators (as appropriate). Appellate programs should include in their
transmittals, when feasible, brief summaries of the decision.
15. Agencies should notify their adjudicators of significant federal court decisions reviewing
the agencies’ decisions and, when providing notice, explain the significance of those
decisions to the program. As appropriate, agencies should notify adjudicators if the
agency will not acquiesce in a particular decision of the federal courts of appeals.

6

16. Agencies in which decision making relies extensively on their own precedential decisions
should consider preparing or having prepared indexes and digests—with annotations and
comments, as appropriate—to identify those decisions and their significance.
17. As appropriate, agency appellate systems should communicate with agency rule-writers
and other agency policymakers—and institutionalize communication mechanisms—to
address whether recurring issues in their decisions should be addressed by rule rather
than precedential case-by-case adjudication.
18. The Office of the Chairman of the Administrative Conference should provide for, as
authorized by 5 U.S.C. § 594(2), the “interchange among administrative agencies of
information potentially useful in improving” agency appellate systems. The subjects of
interchange might include electronic case management systems, procedural innovations,
quality-assurance reviews, and common management problems.
Public Disclosure and Transparency
19. Agencies should disclose on their websites any rules (sometimes styled as “orders”), and
statutes authorizing such rules, by which an agency head has delegated review authority
to appellate adjudicators.
20. Regardless of whether the Government in the Sunshine Act (5 U.S.C. § 552b) governs
their appellate review system, agencies should consider announcing, livestreaming, and
maintaining video recordings on their websites of appellate proceedings (including oral
argument) that present significant legal and policy issues likely to be of interest to
regulated parties and other members of the public. Brief explanations of the issues to be
addressed by oral argument may usefully be included in website notices of oral argument.
21. Agencies should include on their websites brief and accessibly written explanations as to
how their internal decision-making processes work and, as appropriate, include links to
explanatory documents appropriate for public disclosure. Specific subjects that agencies
should consider addressing include: the process of assigning cases to adjudicators (when
fewer than all of the programs’ adjudicators participate in a case), the role of staff, and
the order in which cases are decided.

7

22. When posting decisions on their websites, agencies should distinguish between
precedential and non-precedential decisions. Agencies should also include a brief
explanation of the difference.
23. When posting decisions on their websites, agencies should consider including, as much as
practicable, brief summaries of precedential decisions and, for precedential decisions at
least, citations to court decisions reviewing them.
24. Agencies should include on their websites any digests and indexes of decisions they
maintain. It may be appropriate to remove material exempt from disclosure under the
Freedom of Information Act or other laws.
25. Agencies should affirmatively solicit feedback concerning the functioning of their
appellate systems and provide a means for doing so on their websites.

8


Committee on Adjudication
Public Meeting Agenda
November 23, 2020, 12:00-3:00 PM ET
Remote Participation:
Contact Gavin Young (gyoung@acus.gov) for remote participation information

I.

Meeting Opening—Nadine Mancini, Committee Chair

II.

Committee Discussion of Draft Recommendation

III.

Vote on Draft Recommendation

IV.

Closing Remarks—Nadine Mancini, Committee Chair


Comment from Public Member Emily S. Bremer on Agency Appellate Systems
December 14, 2020
Recommendation 1 reads a little strangely to me, so I suggest a few stylistic changes as follows:
Line 49, replace “what” with “the.”
Line 51, replace “set their” with “establish a.”
Line 52, replace “to be” with “that is.”
In recommendation 4, the opening phrase (particularly when considered in context with the
reference to the model rules) seems redundant with the closing phrase. Although either phrase
could be eliminated to address the issue, I would suggest deleting the closing phrase on Line 83,
“in deciding what their rules should provide.”
In recommendation 9 on Line 103, add “the” before “size.”


Comment from Senior Fellow Alan Morrison on Agency Appellate Systems
December 4 and December 14, 2020
“appropriate: ten times – recs 14-18, especially unnecessary – after should & consider –“as
appropriate" used twice in rec 17 –
ACUS staff note: comments below refer to an earlier draft Recommendation dated
November 11, 2020 and available on the Agency Appellate Systems project webpage. Line
numbers, page numbers, and in some circumstances the quoted text will no longer
correspond to the subsequent draft which will be considered at the Plenary Session.
p. 5 – lines 90-91 – do we need “address” three times – to address whether interpretations and
policies addressed in their decision should be addressed by rule rather than case-by-case
adjudication. – change first to “inform them” – omit second & third is OK.
p. 5, lines 101-102 “Whether the Government in the Sunshine Act (5 U.S.C. § 552b) governs
their appellate 102 review system,” – not necessary – Fine for preamble –


Comment from Special Counsel Jeffrey S. Lubbers
December 11, 2020
Agency Appellate Systems
Footnote 2—for consistency with the other recommendations, I would omit “(2018)” when citing
the APA.
Line 30--Here (and throughout this recommendation) “decision-making” is hyphenated (except
in line 132) but throughout the AI statement it is not. I note that “policymaking” is one word on
line 117 and “policymakers” on 136. You need an ACUS style rule on this. (FWIW, I prefer one
word for all.)
Footnote 3—I would substitute “Their principles, though, apply more broadly.”
In the paragraph at lines 26-32, rather than using first, second, third, etc., why not use (1), (2),
(3), etc.
Line 128—omit the hyphen in “federal-court”


Agency Appellate Systems
Committee on Adjudication
Proposed Recommendation | December 16, 2020

1

In Recommendation 2016-4,1 the Administrative Conference offered best practices for

2

evidentiary hearings in administrative adjudications. Paragraph 26 recommended that agencies

3

provide for “higher-level review” (or “agency appellate review”) of the decisions of hearing-

4

level adjudicators.2 This Recommendation offers best practices for such review. The

5

Administrative Conference intends this Recommendation to cover appellate review of decisions

6

resulting from (1) hearings governed by the formal hearing provisions of the Administrative

7

Procedure Act (APA) and (2) evidentiary hearings that are not governed by those provisions but

8

are required by statute, regulation, or executive order. Agencies may also decide to apply this

9

Recommendation to appellate review of decisions arising from other hearings, depending on

10

their level of formality.
Appellate review of hearing-level decisions can be structured in numerous ways. Two

11
12

structures are most common. In the first, litigants appeal directly to the agency head, which may

13

be a multi-member board or commission. In the second, litigants appeal to an appellate

14

adjudicator or group of adjudicators—often styled as a board or council—sitting below the

Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative Procedure Act, 81 Fed. Reg.
94,314 (Dec. 23, 2016).
1

Recommendation 2016-4 addressed agency adjudications in which an evidentiary hearing, though not governed by
the formal hearing provisions of the Administrative Procedure Act (APA) (5 U.S.C. §§ 554, 556–57 (2018)), is
required by statute, regulation, or executive order. Those adjudications, which are often as formal as APA
adjudications in practice, far outnumber so-called APA adjudications. Although Recommendation 2016-4 addresses
only non-APA adjudications, most of its best practice are as applicable to APA adjudications as non-APA
adjudications. Some such practices, in fact, are modeled on the APA’s formal hearing provisions.
2

15

agency head. The appellate decision may be the agency’s final action or may be subject to

16

further appeal within the agency (usually to the agency head).

17

The Administrative Conference has twice before addressed agency appellate review. In

18

Recommendations 68-6 and 83-3, it provided guidance to agencies when establishing new, and

19

reviewing existing, organizational structures of appellate review.3 Both recommendations

20

focused on the selection of “delegates”—individual adjudicators, review boards composed of

21

multiple adjudicators, or panels composed of members of a multi-member agency—to exercise

22

appellate review authority vested in agency heads (including boards and commissions).

23

Recommendation 83-3 also addressed when agencies should consider providing appellate review

24

as a matter of right and when as a matter of discretion, and, in the case of the latter, under what

25

criteria.
With the exception of the appropriate standard for granting review, this

26
27

Recommendation’s focus lies elsewhere. It addresses, and offers best practices with respect to,

28

the following subjects: first, an agency’s identification of the purpose or objective served by its

29

appellate review; second, its selection of cases for appellate review, when review is not required

30

by statute; third, its procedures for review; fourth, its appellate decision-making processes; fifth,

31

its management, administration, and bureaucratic oversight of its appellate system; and sixth, its

32

public disclosure of information about its appellate system.4
Most importantly, this Recommendation begins by suggesting that agencies identify, and

33
34

publicly disclose, the purpose(s) or objective(s) of their appellate systems. Appellate systems

35

may have different purposes, and any given appellate system may have multiple purposes.

36

Purposes or objectives can include the correction of errors, inter-decisional consistency of

37

decisions, policymaking, political accountability, management of the hearing-level adjudicative

Both recommendations concerned only the review of decisions in proceedings governed by the formal hearing
provisions of the APA. Their principles, though, are not so confined.
3

Christopher J. Walker & Matthew Lee Wiener, Agency Appellate Systems (Nov. 10, 2020) (draft report to the
Admin. Conf. of the U.S.), https://www.acus.gov/report/draft-report-agency-appellate-systems.
4

2
DRAFT December 3, 2020

38

system, organizational effectiveness and systemic awareness, and the reduction of litigation in

39

federal courts. The identification of purpose is important both because it dictates (or should

40

dictate) how an agency administers its appellate system—including what cases it hears and under

41

what standards of review it decides them—and provides a standard against which an agency’s

42

performance can be evaluated.

43

This Recommendation proceeds from the recognition that agency appellate systems vary

44

enormously—as to their purposes or objectives, governing substantive law, size, and resources—

45

and that what may be a best practice for one system may not always be the best practice for

46

another. In offering the best practices that follow, moreover, the Administrative Conference

47

recognizes that an agency’s procedural choices may sometimes be constrained by statute. The

48

Recommendation is drafted accordingly.
RECOMMENDATION
Objectives of Appellate Review

49

1. Agencies should identify and publish in procedural regulations what objective or

50

objectives their appellate systems serve, and they should design their processes and draft

51

their procedural regulations accordingly. In particular, agencies should set their scope and

52

standard of review to be consistent with the objectives of their appellate system.
Procedures for Appellate Review

53

2. Agencies should promulgate and publish procedural regulations governing agency

54

appellate review in the Federal Register and codify them in the Code of Federal

55

Regulations. These regulations should cover all significant procedural matters pertaining

56

to agency appellate review, including but not limited to the following:

57

a. the objectives of the agency’s appellate review system;

58

b. the timing and procedures for initiating review, including any available

59

interlocutory review;

3
DRAFT December 3, 2020

60

c. the standards for granting review, if review is discretionary;

61

d. the standards for permitting participation by interested persons and amici;

62

e. the standard of review;

63

f. the allowable and required submissions by litigants and their required form and

64
65
66

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

67

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

68

i. the availability of oral argument or other form of oral presentation;

69

j. the standards of and procedures for reconsideration and reopening, if available;

70

k. any administrative or issue exhaustion requirements that must be satisfied before

71
72
73

seeking agency appellate or judicial review;
l. openness of proceedings to the public and availability of video or audio streaming
or recording; and

74

m. in the case of multi-member appellate boards, councils, and similar entities, the

75

authority to assign decision-making authority to fewer than all members (e.g.,

76

panels).

77

3. Agencies should include in the procedural regulations governing their appellate

78

programs: (a) a brief statement or explanation of each program’s review authority,

79

structure, and decision-making components; and (b) for each provision based on a

80

statutory source, an accompanying citation to that source.

81

4. When revising existing or adopting new appellate rules, agencies should consider the

82

appellate rules (Rules 400–450) in the Administrative Conference’s Model Rules of

83

Agency Adjudication (rev. 2018) in deciding what their rules should provide.

84

5. When materially revising existing or adopting new appellate rules, agencies should use

85

notice-and-comment procedures or other mechanisms for soliciting public input,

86

notwithstanding the procedural rules exemption of 5 U.S.C. § 553(b)(A), unless the costs

87

clearly outweigh the benefits of doing so.

4
DRAFT December 3, 2020

Case Selection for Appellate Review
88

6. Based on the agency-specific objectives of appellate review, agencies should decide

89

whether the granting of review should be mandatory or discretionary (assuming they have

90

statutory authority to decide); if discretionary, the criteria for granting review should

91

track the objectives of the appellate system, and they should be published in the

92

procedural regulations.

93

7. Agencies should consider implementing procedures for sua sponte appellate review of

94

non-appealed hearing-level decisions, as well as for the referral of cases or issues by

95

hearing-level adjudicators to the appellate entity for interlocutory review.
Appellate Decision-making Processes and Decisions

96

8. Whenever possible, agencies should consider maintaining electronic case management

97

systems (eCMS) that ensure that hearing records are easily accessible to appellate

98

adjudicators. Such an eCMS may include the capability for electronic filing.

99

9. Although the randomized assignment of cases to appellate adjudicators is typically an

100

appropriate docketing method for an agency appellate system, agencies should consider

101

the potential benefits of sorting and grouping appeals on the appellate docket, such as

102

reduced case processing times and more efficient use of adjudicators’, staff attorneys’,

103

and law clerks’ skills and time. Criteria for sorting and grouping cases may include size

104

of a case’s record, complexity of a case’s issues, subject matter of a case, and similarity

105

of a case’s legal issues to those of other pending cases.

106

10. Consistent with the objectives of the agency’s appellate system and in light of the costs of

107

time and resources, agencies should consider adopting an appellate model of judicial

108

review in which the standard of review is not de novo with respect to findings of fact and

109

application of law to facts. For similar reasons, many agencies should consider limiting

110

the introduction of new evidence on appeal that is not already in the administrative record

111

from the hearing-level adjudication.

5
DRAFT December 3, 2020

112

11. Taking agency resources into account, agencies should emphasize concision, readability,

113

and plain language in their appellate decisions and explore the use of decision templates,

114

summary dispositions, and other quality-improving measures.

115

12. Agencies should establish clear criteria and processes for identifying and selecting

116

appellate decisions as precedential, especially for appellate systems with objectives of

117

policymaking or inter-decisional consistency.

118

13. Agencies should assess the value of oral argument and amicus participation in their

119

appellate system based on the agencies’ identified objectives for appellate review and

120

should establish clear rules governing both. Criteria which may favor oral argument and

121

amicus participation include issues of high public interest, issues of concern beyond the

122

parties to the case, specialized or technical matters, and a novel or substantial question of

123

law, policy, or discretion.
Administration, Management, and Bureaucratic Oversight

124

14. Agency appellate systems should promptly transmit their precedential decisions to all

125

appellate program adjudicators and, directly or through hearing-level programs, to

126

hearing-level adjudicators (as appropriate). Appellate programs should include in their

127

transmittals, when feasible, brief summaries of the decision.

128

15. Agencies should notify their adjudicators of significant federal-court decisions reviewing

129

the agencies’ decisions and, when providing notice, explain the significance of those

130

decisions to the program. As appropriate, agencies should notify adjudicators if the

131

agency will not acquiesce in a particular decision of the federal courts of appeals.

132

16. Agencies in which decision making relies extensively on their own precedential decisions

133

should consider preparing or having prepared indexes and digests—with annotations and

134

comments, as appropriate—to identify those decisions and their significance.

135

17. As appropriate, agency appellate systems should communicate with agency rule-writers

136

and other agency policymakers—and, as appropriate, institutionalize communication

137

mechanisms—to address whether recurring issues in their decisions should be addressed

138

by rule rather than precedential case-by-case adjudication.
6
DRAFT December 3, 2020

139

18. The Office of the Chairman of the Administrative Conference should provide for, as

140

authorized by statute, the “interchange among administrative agencies of information

141

potentially useful in improving” (5 U.S.C. § 594(2)) agency appellate systems. The

142

subjects of interchange might include electronic case management systems, procedural

143

innovations, quality-assurance reviews, and common management problems.
Public Disclosure and Transparency

144

19. Agencies should disclose on their websites any rules (sometimes styled as “orders”), and

145

statutes authorizing such rules, by which an agency head has delegated review authority

146

to appellate adjudicators.

147

20. Regardless of whether the Government in the Sunshine Act (5 U.S.C. § 552b) governs

148

their appellate review system, agencies should consider announcing, livestreaming, and

149

maintaining video recordings on their websites of appellate proceedings (including oral

150

argument) that present significant legal and policy issues likely to be of interest to

151

regulated parties and other members of the public. Brief explanations of the issues to be

152

addressed by oral argument may usefully be included in website notices of oral argument.

153

21. Agencies should include on their websites brief and accessibly written explanations as to

154

how their internal decision-making processes work and, as appropriate, include links to

155

explanatory documents appropriate for public disclosure. Specific subjects agencies

156

should consider addressing include: the process of assigning cases to adjudicators (when

157

fewer than all of the programs’ adjudicators participate in a case), the role of staff, and

158

the order in which cases are decided.

159

22. When posting decisions on their websites, agencies should distinguish between

160

precedential and non-precedential decisions. Agencies should also include a brief

161

explanation of the difference.

162

23. When posting decisions on their websites, agencies should consider including, as much as

163

practicable, brief summaries of precedential decisions and, for precedential decisions at

164

least, citations to court decisions reviewing them.

7
DRAFT December 3, 2020

165

24. Agencies should include on their websites any digests and indexes of decisions they

166

maintain. It may be appropriate to remove material exempt from disclosure under the

167

Freedom of Information Act or other laws.

168
169

25. Agencies should affirmatively solicit feedback concerning the functioning of their
appellate systems and provide a means for doing so on their websites.

8
DRAFT December 3, 2020


Agency Appellate Systems
Committee on Adjudication
Proposed Recommendation from Committee on Adjudication | November 23,
2020

1

In Recommendation 2016-4,1 the Administrative Conference offered best practices for

2

evidentiary hearings in administrative adjudications. Paragraph 26 recommended that agencies

3

provide for “higher-level review” (or “agency appellate review”) of the decisions of hearing-

4

level adjudicators.2 This Recommendation offers best practices for such review. The

5

Administrative Conference intends this Recommendation to cover appellate review of decisions

6

resulting from (1) hearings governed by the formal hearing provisions of the Administrative

7

Procedure Act (APA) and (2) evidentiary hearings that are not governed by those provisions but

8

are required by statute, regulation, or executive order. Agencies may also decide to apply this

9

Recommendation to appellate review of decisions arising from other hearings, depending on

10

their level of formality.
Appellate review of hearing-level decisions can be structured in numerous ways. Two

11
12

structures are most common. In the first, litigants appeal directly to the agency head, which may

13

be a multi-member board or commission. In the second, litigants appeal to an appellate

14

adjudicator or group of adjudicators—often styled as a board or council—sitting below the
Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative Procedure Act, 81 Fed. Reg.
94,314 (Dec. 23, 2016).
1

Recommendation 2016-4 addressed agency adjudications in which an evidentiary hearing, though not governed by
the formal hearing provisions of the Administrative Procedure Act (APA) (5 U.S.C. §§ 554, 556–57 (2018)), is
required by statute, regulation, or executive order. Those adjudications, which are often as formal as APA
adjudications in practice, far outnumber so-called APA adjudications. Although Recommendation 2016-4 addresses
only non-APA adjudications, most of its best practice are as applicable to APA adjudications as non-APA
adjudications. Some such practices, in fact, are modeled on the APA’s formal hearing provisions.
2

15

agency head. The appellate decision may be the agency’s final action or may be subject to

16

further appeal within the agency (usually to the agency head).

17

The Administrative Conference has twice before addressed agency appellate review. In

18

Recommendations 68-6 and 83-3, it provided guidance to agencies when establishing new, and

19

reviewing existing, organizational structures of appellate review.3 Both recommendations

20

focused on the selection of “delegates”—individual adjudicators, review boards composed of

21

multiple adjudicators, or panels composed of members of a multi-member agency—to exercise

22

appellate review authority vested in agency heads (including boards and commissions).

23

Recommendation 83-3 also addressed when agencies should consider providing appellate review

24

as a matter of right and when as a matter of discretion, and, in the case of the latter, under what

25

criteria.
With the exception of the appropriate standard for granting review, this

26
27

Recommendation’s focus lies elsewhere. It addresses, and offers best practices with respect to,

28

the following subjects: first, an agency’s identification of the purpose or objective served by its

29

appellate review; second, its selection of cases for appellate review, when review is not required

30

by statute; third, its procedures for review; fourth, its appellate decision-making processes; fifth,

31

its management, administration, and bureaucratic oversight of its appellate system; and sixth, its

32

public disclosure of information about its appellate system.4
Most importantly, this Recommendation begins by suggesting that agencies identify, and

33
34

publicly disclose, the purpose(s) or objective(s) of their appellate systems. Appellate systems

35

may have different purposes, and any given appellate system may have multiple purposes.

36

Purposes or objectives can include the correction of errors, inter-decisional consistency of

37

decisions, policymaking, political accountability, management of the hearing-level adjudicative

Both recommendations concerned only the review of decisions in proceedings governed by the formal hearing
provisions of the APA. Their principles, though, are not so confined.
3

Christopher J. Walker & Matthew Lee Wiener, Agency Appellate Systems (Nov. 10, 2020) (draft report to the
Admin. Conf. of the U.S.), https://www.acus.gov/report/draft-report-agency-appellate-systems.
4

2
DRAFT November 25, 2020

38

system, organizational effectiveness and systemic awareness, and the reduction of litigation in

39

federal courts. The identification of purpose is important both because it dictates (or should

40

dictate) how an agency administers its appellate system—including what cases it hears and under

41

what standards of review it decides them—and provides a standard against which an agency’s

42

performance can be evaluated.

43

This Recommendation proceeds from the recognition that agency appellate systems vary

44

enormously—as to their purposes or objectives, governing substantive law, size, and resources—

45

and that what may be a best practice for one system may not always be the best practice for

46

another. In offering the best practices that follow, moreover, the Administrative Conference

47

recognizes that an agency’s procedural choices may sometimes be constrained by statute. The

48

Recommendation is drafted accordingly.
RECOMMENDATION
Objectives of Appellate Review

49

1. Agencies should identify and publish in procedural regulations what objective or

50

objectives their appellate systems serve, and they should design their processes and draft

51

their procedural regulations accordingly. In particular, agencies should set their scope and

52

standard of review to be consistent with the objectives of their appellate system.
Procedures for Appellate Review

53

2. Agencies should promulgate and publish procedural regulations governing agency

54

appellate review in the Federal Register and codify them in the Code of Federal

55

Regulations. These regulations should cover all significant procedural matters pertaining

56

to agency appellate review, including but not limited to the following:

57

a. the objectives of the agency’s appellate review system;

58

b. the timing and procedures for initiating review, including any available

59

interlocutory review;

3
DRAFT November 25, 2020

60

c. the standards for granting review, if review is discretionary;

61

d. the standards for permitting participation by interested persons and amici;

62

e. the standard of review;

63

f. the allowable and required submissions by litigants and their required form and

64
65
66

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

67

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

68

i. the availability of oral argument or other form of oral presentation;

69

j. the standards of and procedures for reconsideration and reopening, if available;

70

k. any administrative or issue exhaustion requirements that must be satisfied before

71
72
73

seeking agency appellate or judicial review;
l. openness of proceedings to the public and availability of video or audio streaming
or recording; and

74

m. in the case of multi-member appellate boards, councils, and similar entities, the

75

authority to assign decision-making authority to fewer than all members (e.g.,

76

panels).

77

3. Agencies should include in the procedural regulations governing their appellate

78

programs: (a) a brief statement or explanation of each program’s review authority,

79

structure, and decision-making components; and (b) for each provision based on a

80

statutory source, an accompanying citation to that source.

81

4. When revising existing or adopting new appellate rules, agencies should consider the

82

appellate rules (Rules 400–450) in the Administrative Conference’s Model Rules of

83

Agency Adjudication (rev. 2018) in deciding what their rules should provide.

84

5. When materially revising existing or adopting new appellate rules, agencies should use

85

notice-and-comment procedures or other mechanisms for soliciting public input,

86

notwithstanding the procedural rules exemption of 5 U.S.C. § 553(b)(A), unless the costs

87

clearly outweigh the benefits of doing so.

4
DRAFT November 25, 2020

Case Selection for Appellate Review
88

6. Based on the agency-specific objectives of appellate review, agencies should decide

89

whether the granting of review should be mandatory or discretionary (assuming they have

90

statutory authority to decide); if discretionary, the criteria for granting review should

91

track the objectives of the appellate system, and they should be published in the

92

procedural regulations.

93

7. Agencies should consider implementing procedures for sua sponte appellate review of

94

non-appealed hearing-level decisions, as well as for the referral of cases or issues by

95

hearing-level adjudicators to the appellate entity for interlocutory review.
Appellate Decision-making Processes and Decisions

96

8. Whenever possible, agencies should consider maintaining electronic case management

97

systems (eCMS) that ensure that hearing records are easily accessible to appellate

98

adjudicators. Such an eCMS may include the capability for electronic filing.

99

9. Although the randomized assignment of cases to appellate adjudicators is typically an

100

appropriate docketing method for an agency appellate system, agencies should consider

101

the potential benefits of sorting and grouping appeals on the appellate docket, such as

102

reduced case processing times and more efficient use of adjudicators’, staff attorneys’,

103

and law clerks’ skills and time. Criteria for sorting and grouping cases may include size

104

of a case’s record, complexity of a case’s issues, subject matter of a case, and similarity

105

of a case’s legal issues to those of other pending cases.

106

10. Consistent with the objectives of the agency’s appellate system and in light of the costs of

107

time and resources, agencies should consider adopting an appellate model of judicial

108

review in which the standard of review is not de novo with respect to findings of fact and

109

application of law to facts. For similar reasons, many agencies should consider limiting

110

the introduction of new evidence on appeal that is not already in the administrative record

111

from the hearing-level adjudication.

5
DRAFT November 25, 2020

112

11. Taking agency resources into account, agencies should emphasize concision, readability,

113

and plain language in their appellate decisions and explore the use of decision templates,

114

summary dispositions, and other quality-improving measures.

115

12. Agencies should establish clear criteria and processes for identifying and selecting

116

appellate decisions as precedential, especially for appellate systems with objectives of

117

policymaking or inter-decisional consistency.

118

13. Agencies should assess the value of oral argument and amicus participation in their

119

appellate system based on the agencies’ identified objectives for appellate review and

120

should establish clear rules governing both. Criteria which may favor oral argument and

121

amicus participation include issues of high public interest, issues of concern beyond the

122

parties to the case, specialized or technical matters, and a novel or substantial question of

123

law, policy, or discretion.
Administration, Management, and Bureaucratic Oversight

124

14. Agency appellate systems should promptly transmit their precedential decisions to all

125

appellate program adjudicators and, directly or through hearing-level programs, to

126

hearing-level adjudicators (as appropriate). Appellate programs should include in their

127

transmittals, when feasible, brief summaries of the decision.

128

15. Agencies should notify their adjudicators of significant federal-court decisions reviewing

129

the agencies’ decisions and, when providing notice, explain the significance of those

130

decisions to the program. As appropriate, agencies should notify adjudicators if the

131

agency will not acquiesce in a particular decision of the federal courts of appeals.

132

16. Agencies in which decision making relies extensively on their own precedential decisions

133

should consider preparing or having prepared indexes and digests—with annotations and

134

comments, as appropriate—to identify those decisions and their significance.

135

17. As appropriate, agency appellate systems should communicate with agency rule-writers

136

and other agency policymakers—and, as appropriate, institutionalize communication

137

mechanisms—to address whether recurring issues in their decisions should be addressed

138

by rule rather than precedential case-by-case adjudication.
6
DRAFT November 25, 2020

139

18. The Office of the Chairman of the Administrative Conference should provide for, as

140

authorized by statute, the “interchange among administrative agencies of information

141

potentially useful in improving” (5 U.S.C. § 594(2)) agency appellate systems. The

142

subjects of interchange might include electronic case management systems, procedural

143

innovations, quality-assurance reviews, and common management problems.
Public Disclosure and Transparency

144

19. Agencies should disclose on their websites any rules (sometimes styled as “orders”), and

145

statutes authorizing such rules, by which an agency head has delegated review authority

146

to appellate adjudicators.

147

20. Regardless of whether the Government in the Sunshine Act (5 U.S.C. § 552b) governs

148

their appellate review system, agencies should consider announcing, livestreaming, and

149

maintaining video recordings on their websites of appellate proceedings (including oral

150

argument) that present significant legal and policy issues likely to be of interest to

151

regulated parties and other members of the public. Brief explanations of the issues to be

152

addressed by oral argument may usefully be included in website notices of oral argument.

153

21. Agencies should include on their websites brief and accessibly written explanations as to

154

how their internal decision-making processes work and, as appropriate, include links to

155

explanatory documents appropriate for public disclosure. Specific subjects agencies

156

should consider addressing include: the process of assigning cases to adjudicators (when

157

fewer than all of the programs’ adjudicators participate in a case), the role of staff, and

158

the order in which cases are decided.

159

22. When posting decisions on their websites, agencies should distinguish between

160

precedential and non-precedential decisions. Agencies should also include a brief

161

explanation of the difference.

162

23. When posting decisions on their websites, agencies should consider including, as much as

163

practicable, brief summaries of precedential decisions and, for precedential decisions at

164

least, citations to court decisions reviewing them.

7
DRAFT November 25, 2020

165

24. Agencies should include on their websites any digests and indexes of decisions they

166

maintain. It may be appropriate to remove material exempt from disclosure under the

167

Freedom of Information Act or other laws.

168
169

25. Agencies should affirmatively solicit feedback concerning the functioning of their
appellate systems and provide a means for doing so on their websites.

8
DRAFT November 25, 2020


Agency Appellate Systems
Committee on Adjudication
Proposed Recommendation for Committee | November 23, 2020

1

In Recommendation 2016-4,1 the Administrative Conference offered best practices for

2

evidentiary hearings in administrative adjudications. Paragraph 26 recommended that agencies

3

provide for “higher-level review” (or “agency appellate review”) of the decisions of hearing-

4

level adjudicators.2 This Recommendation offers best practices for such review. The

5

Administrative Conference intends this Recommendation to cover appellate review of decisions

6

resulting from (1) hearings governed by the formal hearing provisions of the Administrative

7

Procedure Act (APA) and (2) evidentiary hearings that are not governed by those provisions but

8

are required by statute, regulation, or executive order. Agencies may also decide to apply this

9

Recommendation to appellate review of decisions arising from other hearings, depending on

10

their level of formality.

Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative Procedure Act, 81 Fed. Reg.
94,314 (Dec. 23, 2016).
1

Recommendation 2016-4 addressed agency adjudications in which an evidentiary hearing, though not governed by
the formal hearing provisions of the Administrative Procedure Act (APA) (5 U.S.C. §§ 554, 556-57 (2018)), is
required by statute, regulation, or executive order. Those adjudications, which are often as formal as APA
adjudications in practice, far outnumber so-called APA adjudications. Although 2016-4 addresses only non-APA
adjudications, most of its best practice are as applicable to APA adjudications as non-APA adjudications. Some such
practices, in fact, are modeled on the APA’s formal hearing provisions.
2

Appellate review of hearing-level decisions can be structured in numerous ways. Two

11
12

structures are most common. In the first, litigants appeal directly to the agency head, which may

13

be a multi-member board or commission. In the second, litigants appeal to an appellate

14

adjudicator or group of adjudicators—often a styled as a board or council—sitting below the

15

agency head. The appellate decision may be the agency’s final action or may be subject to

16

further appeal within the agency (usually to the agency head).

17

The Administrative Conference has twice before addressed agency appellate review. In

18

Recommendations 68-6 and 83-3, it provided guidance to agencies when establishing new, and

19

reviewing existing, organizational structures of appellate review.3 Both recommendations

20

focused on the selection of “delegates”—individual adjudicators, review boards composed of

21

multiple adjudicators, or panels composed of members of a multi-member agency—to exercise

22

appellate review authority vested in agency heads (including boards and commissions).

23

Recommendation 83-3 also addressed when agencies should consider providing appellate review

24

as a matter of right and when as a matter of discretion, and, in the case of the latter, under what

25

criteria.
With the exception of the appropriate standard for granting review, this

26
27

Recommendation’s focus lies elsewhere. It addresses, and offers best practices with respect to,

28

the following subjects: first, an agency’s identification of the purpose or objective served by its

29

appellate review; second, its selection of cases for appellate review, when review is not required

Both recommendations concerned only the review of decisions in proceedings governed by the formal hearing
provisions of the APA. Their principles, though, are not so confined.
3

2
DRAFT November 20, 2020

30

by statute; third, its procedures for review; fourth, its appellate decision-making processes; fifth,

31

its management, administration, and bureaucratic oversight of its appellate system; and sixth, its

32

public disclosure of information about its appellate system.4
Most importantly, this Recommendation begins by suggesting that agencies identify, and

33
34

publicly disclose, the purpose(s) or objective(s) of their appellate systems. Appellate systems

35

may have different purposes, and any given appellate system may have multiple purposes.

36

Purposes or objectives can include the correction of errors, inter-decisional consistency of

37

decisions, policymaking, political accountability, management of the hearing-level adjudicative

38

system, organizational effectiveness and systemic awareness, and the reduction of litigation in

39

federal courts. The identification of purpose is important both because it dictates (or should

40

dictate) how an agency administers its appellate system—including what cases it hears and under

41

what standards of review it decides them—and provides a standard against which an agency’s

42

performance can be evaluated.

43

This Recommendation proceeds from the recognition that agency appellate systems vary

44

enormously—as to their purposes or objectives, governing substantive law, size, and resources—

45

and that what may be a best practice for one system may not always be the best practice for

46

another. In offering the best practices that follow, moreover, the Administrative Conference

47

recognizes that an agency’s procedural choices may sometimes be constrained by statute. The

48

Recommendation is drafted accordingly.

Christopher J. Walker & Matthew Lee Wiener, Agency Appellate Systems (Nov. 10, 2020) (draft report to the
Admin. Conf. of the U.S.), https://www.acus.gov/report/draft-report-agency-appellate-systems.
4

3
DRAFT November 20, 2020

Commented [GY1]: For consistency with ACUS
formatting conventions, numbering of the Paragraphs below
no longer restarts with each subheading, and lettering of
subheadings has also been removed.

RECOMMENDATION
Objectives of Appellate Review
49

1. Agencies should identify and publish in procedural regulations what objective or

50

objectives their appellate systems serve, and they should design their processes and draft

51

their procedural regulations accordingly. In particular, agencies should set their scope and

52

standard of review to be consistent with the objectives for of their appellate system.
Procedures for Appellate Review

53

2. Agencies should promulgate and publish procedural regulations governing agency

54

appellate review in the Federal Register and codify them in the Code of Federal

55

Regulations. These regulations should cover all significant procedural matters pertaining

56

to agency appellate review, including but not limited to the following:

57

(a) the objectives of the agency’s appellate review system; [objectives of review]

58

(b) the timing and procedures for initiating review, including any available interlocutory

59

review;

60

(c) the standards for granting review, if review is discretionary;

61

(d) the standards for permitting participation by interested persons and amici;

62

(e) the standard of review;

63

(f) the allowable and required submissions by litigants and their required form and

64
65
66

contents;
(g) the procedures for designating decisions as precedential and the legal effect of such
designations;

67

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

68

(i) the availability of oral argument or other form of oral presentation;

69

(j) the standards of and procedures for reconsideration and reopening, if available;

70

(k) any administrative or issue exhaustion requirements that must be satisfied before

71

seeking agency appellate or judicial review;
4
DRAFT November 20, 2020

72
73

(l) openness of proceedings to the public and availability of video or audio streaming or
recording; and

74

(m) in the case of multi-member appellate boards, councils, and similar entities, the

75

authority to assign decision-making authority to fewer than all members (e.g.,

76

panels).

77

3. Agencies should include in the procedural regulations governing their appellate

78

programs: (a) a brief statement or explanation of each program’s review authority,

79

structure, and decision making components; and (b) for each provision based on a

80

statutory source, an accompanying citation to that source.

81

4. When revising existing or adopting new appellate rules, agencies should consider the

82

appellate rules (Rules 400-450) in the Administrative Conference’s Model Rules of

83

Agency Adjudication (rev. 2018) in deciding what the rules should provide.

84

5. When materially revising existing or adopting new appellate rules, agencies should

85

voluntarily use notice-and-comment procedures or other mechanisms for soliciting public

86

input, notwithstanding the procedural rules exemption of 5 U.S.C. § 553(b)(A), unless the

87

costs clearly outweigh the benefits of doing so.
Case Selection for Appellate Review

88

6. Based on the agency-specific objectives for of appellate review, agencies should decide

89

whether the granting of review should be mandatory or discretionary (assuming they have

90

statutory authority to do sodecide); if discretionary, the criteria for granting review

91

should track the objectives of the appellate system, and they should be published in the

92

procedural regulations.

93

7. Agencies should consider implementing procedures for sua sponte appellate review of

94

non-appealed hearing-level adjudications decisions as well as for hearing-level

95

adjudicators to refer cases or issues to the appellate entity for review.

5
DRAFT November 20, 2020

Commented [GY2]: Consider language to clarify whether
“review” here is intended as interlocutory review, postdecisional review, or both.

Appellate Decision-making Processes and Decisions
96

8. Whenever possible, agencies should consider maintaining electronic case management

97

systems (eCMS) that ensure that hearing records are easily accessible to appellate

98

adjudicators. Such an eCMS may include the capability for electronic filing.

99

9. Although the randomized assignment of cases to appellate adjudicators is an appropriate

100

default docketing method for an agency appellate system, agencies should consider the

101

potential benefits of sorting and grouping appeals on the appellate docket, including

102

reduced case processing times. Criteria for sorting and grouping cases may include: size

103

of a case’s record; complexity of a case’s issues; subject matter of a case; and similarity

104

of a case’s legal issues to those of other pending cases.according to such criteria as intake

105

methods for assigning appeals by the grouping of appeals on the merits based on

106

difficulty, common legal issue, subject matter, or other relevant factors in order to better

107

leverage adjudicator expertise and economies of scale.

108
109
110
111

10. Agencies should consider how to best use staff attorneys and law clerks at both the

Commented [WC4]: Comment to Committee: I would
move #10 to the end of #9, and say something like: “If an
agency utilities methods to sort and group appeals, it should
consider utilizing artificial and machine learning to assist in
those efforts.”
Commented [GY5]: See reference made to “staff
attorneys” in the redrafted Paragraph 9 above.

screening and merits stages.
10. Agencies should consider utilizing artificial intelligence and machine learning to assist in
screening and sorting appeals.

112

11. For most appellate systems, it is not advisable to have a de novo standard of review. Nor

113

is it prudent to have a de novo scope of review where appellants can freely introduce any

114

new evidence on appeal.

115

Commented [GY3]: The Committee delegated re-drafting
of this Paragraph to staff. In addition to reorganizing the
clauses, this version removes the word “screening” and
instead describes the activities that “screening” is meant to
describe.

12. Taking agency resources into account, Aagencies should strive to improve thefor

116

readableility, quality and overall quality of their appellate decisions , includingwith an

117

emphasis on plain language and ease of judicial review. Agencies should explore the use

118

of and experimentation with decision templates and other quality-improving measures.

Commented [GY6]: In light of the focus of this
Recommendation and two pending ACUS projects on the
use of AI, staff recommends that the Committee consider
removing this Paragraph.
Commented [GY7]: Prior committee deliberation on this
Paragraph was unresolved. Paragraph 1 does urge that scope
and standard of review be consistent with objectives of an
agency’s appellate review system.
Commented [WC8]: Comment to Committee: I would
suggest something along the following lines: “In setting their
scope and standard of review to be consistent with the
objectives for their appellate system, in many circumstances
agencies should consider adopting an appellate model of
judicial review where the standard of review is not de novo
with respect to findings of fact and application of law to
facts. Similarly, many agencies should consider limiting the
introduction of new evidence on appeal that is not already in
the administrative record from the hearing-level
adjudication.”
Commented [WC9]: Note to Committee: I would add “use
of decision templates, artificial intelligence and machine
learning, and other quality-improving measures.”

6
DRAFT November 20, 2020

119

13. Agencies should establish clear criteria and processes for selecting and publishing

120

precedential opinions, especially for appellate systems with objectives of policymaking

121

or inter-decisional consistency.

122
123

14. Agencies should assess the value of oral argument and amicus participation in their
appellate system and should establish clearer rules for both.
Administration, Management, and Bureaucratic Oversight

124

15. Agency appellate systems should promptly transmit their precedential decisions to all

125

program adjudicators and, directly or through hearing-level programs, to hearing-level

126

adjudicators (as appropriate). Appellate programs should include in their transmittals,

127

when feasible, summaries and explanatory materials.

128

16. Agency appellate systems should notify their adjudicators of significant federal-court

129

decisions reviewing the agencies’ decisions and, when providing notice, explain the

130

significance of those decisions to the program. As appropriate, agencies should notify

131

adjudicators of any policies governing whether and when they will acquiesce in the

132

decisions of the federal courts of appeals.

133

17. Agency appellate systems whose in which decision making relies extensively on their

134

own precedential decisions should consider preparing indexes and digests—with

135

annotations and comments, as appropriate—to help adjudicators identify those decisions

136

and their significance.

137

18. Agency appellate systems should regularly communicate with agency rule-writers and

138

other agency policymakers—and, as appropriate, institutionalize communication

139

mechanisms—to address whether interpretations and policies addressed in their decisions

140

should be addressed by rule rather than case-by-case adjudication. Appellate programs

141

should also address with agency policymakers, congressional liaisons, and other

142

appropriate officials any needed statutory amendments that the program may identify.

7
DRAFT November 20, 2020

Commented [GY10]: In earlier deliberations, it was
suggested that this paragraph include what factors an agency
should consider when assessing the value of oral argument
and amicus participation. The report does not specify what
factors may or should be part of such an assessment.
Commented [WC11]: Note to Committee: Consider
adding “in their appellate system based on the agencies’
identified objectives for appellate review and should…”

Commented [GY12]: Member comment: it might be
useful to add the word “precedential” before “case-by-case
adjudication” so as to avoid covering “non-precedential”
decisions (especially since the issue of “precedential” versus
“non-precedential” decisions is addressed in a previous
paragraph). Would it not make sense to limit the paragraph
to decisions that have precedential/ generally-binding
impact?

143

19. The Office of the Chairman of the Administrative Conference should provide for, as

144

authorized by statute, the “interchange among administrative agencies of information

145

potentially useful in improving” (5 U.S.C. § 594(2)) agency appellate systems. The

146

subjects of interchange might include electronic case management systems, procedural

147

innovations, quality-assurance reviews, and common management problems.
Public Disclosure and Transparency

148
149

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

150

21. Regardless of whether the Government in the Sunshine Act (5 U.S.C. § 552b) governs

151

their appellate review system, agencies should consider announcing, livestreaming, and

152

maintaining video recordings on their websites of appellate proceedings (including oral

153

argument) that present significant legal and policy issues likely to be of interest to

154

regulated parties and other members of the public. Brief explanations of the issues to be

155

addressed by oral argument might usefully be included in website notices of oral

156

argument.

157

22. Agencies should include on their websites brief and accessibly written explanations as to

158

how their internal decision-making processes work and, as appropriate, include links to

159

explanatory documents appropriate for public disclosure. Specific subjects agencies

160

should consider addressing include: the assignment of cases to adjudicators (when fewer

161

than all the programs adjudicators participate in a case), the role of staff, and the order in

162

which cases are decided.

163

23. When posting decisions on their website, agencies should clearly distinguish between

164

precedential and non-precedential decisions. Agencies should also include a brief

165

explanation of the difference.

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DRAFT November 20, 2020

Commented [GY13]: Member comment: suggest deleting
“Government in the Sunshine Act” as it would not apply in
most situations. Instead, suggest beginning as: “Appellate
review system, agencies should consider announcing,
livestreaming, and maintaining audio or video recordings…”

Commented [GY14]: Member comment: suggest adding
“process of” here.

166

24. When posting decisions on their website, agencies should consider, as practicable,

167

including brief summaries of precedential decisions and, for precedential decisions at

168

least, citations to court decisions reviewing them.

169

25. Agencies should include on their website any digests and indexes of decisions they

170

maintain. It may be appropriate to remove any material exempt from disclosure under the

171

Freedom of Information Act or other laws.

Commented [GY15]: Member comment: suggest adding a
new paragraph at the end that would say:
“Agencies should affirmatively solicit suggestions for rule
changes on its website.” (Drawing this from the report at
page 27, footnote 119.)

172

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DRAFT November 20, 2020


Agency Appellate Systems
Committee on Adjudication
Proposed Recommendation for Committee | November 13, 2020

[Preamble forthcoming]

1
2

[NOTE: the recommendations below are identical to the recommendations found in the

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November 10, 2020 draft ACUS report Agency Appellate Systems by Christopher J. Walker &

4

Matthew Lee Wiener, available at https://www.acus.gov/report/draft-report-agency-appellate-

5

systems]
RECOMMENDATION
A.

Objectives of Appellate Review
1. Agencies should identify what objective or objectives are served by their appellate

6
7

systems, and they should design their processes and draft their procedural regulations

8

accordingly.
2. Agencies should publicly announce—preferably by codifying them in procedural

9

regulations—the objective or objectives of their appellate systems.

10

B.

Procedural Law of Appellate Review

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1. Agencies should address all significant procedural matters governing agency appellate

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review in procedural regulations—often styled as a “rules of practice” or “rules of

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procedure”—published in the Code of Federal Regulations rather than relegating them to

14

non-legislative rules or other documents. Significant procedural matters unique to agency

15

appellate review include:

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(a) the availability of interlocutory review;

17

(b) the procedures for initiating review;

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(c) the standards for granting review, if review is discretionary;

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(d) the scope and standard of review;

20

(e) the allowable and required submissions by litigants—including petitions, motions,

21
22
23

and briefs—and their required contents;
(f) the procedures for designating decisions as precedential and the legal effect of such
designations;

24

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

25

(h) the availability of oral argument and amicus participation;

26

(i) the availability of and procedures for reconsideration;

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(j) in the case of multi-member appellate boards, councils, and the like, the authority to

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assign decision-making authority to fewer than all members (e.g., panels); and

29

(k) any administrative exhaustion requirements that must be satisfied before seeking

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judicial review.

31

2. Agencies should consider including in the procedural regulations governing their

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appellate programs: (a) a brief statement or explanation of the program’s review

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authority, structure, and decision making components; and (b) for each provision based

34

on a statutory source, an accompanying citation to that source.

35

3. When revising existing or adopting new appellate rules, agencies should review the

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appellate rules (Rules 400-450) in the Administrative Conference’s Model Rules of

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DRAFT November 11, 2020

37

Agency Adjudication (rev. 2018) (Appendix B to this Report) in deciding what the rules

38

should provide.

39

4. When adopting new or materially amending existing procedural regulations, agencies

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should voluntarily use notice-and-comment procedures or other mechanisms for

41

soliciting public input, notwithstanding the procedure-rules exemption of 5 U.S.C. §

42

553(b)(A), unless the costs clearly outweigh the benefits of doing so.
C.

Case Selection for Appellate Review

43

1. Based on the agency-specific objectives for appellate review, agencies should consider

44

whether review should be mandatory or discretionary (assuming they have statutory

45

authority to do so); if discretionary, the standards for granting review should track the

46

purposes of the appellate system, and they should be published in the procedural

47

regulations.
2. Agencies should consider implementing procedures for sua sponte appellate review of

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49

non-appealed hearing-level adjudications as well as for hearing-level adjudicators to refer

50

cases to them for interlocutory review.
D.

51

Appellate Decision-making Processes and Decisions
1. Whenever possible, agencies should maintain a single or integrated electronic case

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management systems (ECMs) for both hearing-level and appellate program, or otherwise

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design their ECMs to ensure that hearing records are easily accessible to appellate

54

adjudicators.

55

2. Agencies should explore ways to implement screening methods for appeals and, where

56

appropriate, the grouping of appeals on the merits based on difficulty, common legal

57

issue, subject matter, or other relevant factors in order to better leverage adjudicator

58

expertise and economies of scale.

3
DRAFT November 11, 2020

Commented [GY1]: The Committee may wish to discuss
with the consultants their intended definition of “screening”
in this recommendation and in the two that follow.

3. Agencies should consider how to better utilize staff attorneys and law clerks at both the

59

screening and merits stages.

60

4. Agencies should consider utilizing artificial intelligence and machine learning to assist in

61

screening and sorting appeals.

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63

5. Agencies should set their scope and standard of review to be consistent with agency-

64

specific objectives for their appellate system. For most appellate systems, it is not

65

advisable to have a de novo standard of review. Nor is it prudent to have a de novo scope

66

of review where appellants can freely introduce any new evidence on appeal.

67

6. Agencies should strive to improve the readability and overall quality of their appellate

68

decisions, including an emphasis on plain language and experimentation with decision

69

templates and other quality-improving measures.
7. Agencies should establish clear criteria and processes for publishing precedential

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71

opinions, especially for appellate systems with objectives of policymaking or inter-

72

decisional consistency.
8. Agencies should assess the value of oral argument and amicus participation in their

73

appellate system and should establish clearer rules for both.

74

E.

Administration, Management, and Bureaucratic Oversight

75

1. Agency appellate systems should promptly transmit their precedential decisions to all

76

program adjudicators and, directly or through hearing-level programs, to hearing-level

77

adjudicators (as appropriate). Appellate programs should include in their transmittals,

78

when feasible, summaries and explanatory materials.

79

2. Agency appellate systems should notify their adjudicators of significant federal-court

80

decisions reviewing the agencies’ decisions and, when providing notice, explain the

81

significance of those decisions to the program. As appropriate, agencies should notify
4
DRAFT November 11, 2020

82

adjudicators of any policies governing whether and when they will acquiesce in the

83

decisions of the federal courts of appeals.
3. Agency appellate systems whose decision making relies extensively on their own

84
85

precedential decisions should consider preparing indexes and digests—with annotations

86

and comments, as appropriate—to help adjudicators identify those decisions and their

87

significance.

88

4. Agency appellate systems should regularly communicate with agency rule-writers and

89

other agency policymakers—and, as appropriate, institutionalize communication

90

mechanisms—to address whether interpretations and policies addressed in their decisions

91

should be addressed by rule rather than case-by-case adjudication. Appellate programs

92

should also address with agency policymakers, congressional liaisons, and other

93

appropriate officials any needed statutory amendments that the program may identify.

94

5. The Office of the Chairman of the Administrative Conference should provide for, as

95

authorized by statute, the “interchange among administrative agencies of information

96

potentially useful in improving” (5 U.S.C. § 594(2)) agency appellate systems. The

97

subjects of interchange might include electronic case management systems, procedural

98

innovations, quality-assurance reviews, and common management problems.
F.

99
100

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

101

2. Whether the Government in the Sunshine Act (5 U.S.C. § 552b) governs their appellate

102

review system, agencies should consider announcing, livestreaming, and maintaining

103

video recordings on their websites of appellate proceedings (including oral argument)

104

that present significant legal and policy issues likely to be of interest to regulated parties

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DRAFT November 11, 2020

105

and other members of the public. Brief explanations of the issues to be addressed by oral

106

argument might usefully be included in website notices of oral argument.

107

3. Agencies should include on their websites brief and accessibly written explanations as to

108

how their internal decision-making processes work and, as appropriate, include links to

109

explanatory documents appropriate for public disclosure. Specific subjects agencies

110

should consider addressing include: the assignment of cases to adjudicators (when fewer

111

than all the programs adjudicators participate in a case), the role of staff, and the order in

112

which cases are decided.

113

4. When posting decisions on their website, agencies should clearly distinguish between

114

precedential and non-precedential decisions. Agencies should also include a brief

115

explanation of the difference.

116

5. When posting decisions on their website, agencies should consider, as practicable,

117

including brief summaries of precedential decisions and, for precedential decisions at

118

least, citations to court decisions reviewing them.

119

6. Agencies should include on their website any digests and indexes of decisions they

120

maintain. It may be appropriate to remove any material exempt from disclosure under the

121

Freedom of Information Act or other laws.

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DRAFT November 11, 2020