MODEL ADJUDICATION RULES
(rev. 2018)

Prepared by
The Model Adjudication Rules Working Group
Office of the Chairman
Administrative Conference of the United States
September 2018

ACUS Model Adjudication Rules (rev. 2018)

FOREWORD
In 2016, the Office of the Chairman of the Administrative Conference of the United
States convened a working group of distinguished agency officials (both lawyers and
adjudicators), private practitioners, and academics to revise the Conference’s 1993 Model
Adjudication Rules. Their much-awaited revision follows.
The reporter’s Preface to the revised rules explains the history and purpose of the
rules, how the working group revised them, the types of adjudication to which they apply,
and in what main respects the Rules were changed. It falls to me, in this Forward, only to
add a few acknowledgments and issue a necessary disclaimer.
The Conference extends its profound thanks to the members of the working group
(listed on the next page) for giving so much of their time—always in the face of competing
obligations—to this important initiative. Special thanks are owed to the group’s chair,
Thomas P. McCarthy, an administrative law judge at the Federal Mine Safety and Health
Review Commission and a former president of the Federal Administrative Law Judges
Conference; and the group’s reporter, Kent H. Barnett, the J. Alton Hosch Associate Professor
of Law at the University of Georgia School of Law. Judge McCarthy kept the project on a
strict deadline, and Professor Barnett ensured that the drafting met his exacting standards—
in both cases with their usual good cheer, professionalism, and respect for their colleagues’
views.
The Conference also thanks its members (many on its Adjudication Committee) for
commenting on drafts of the Rules and the following agencies for lending some of their best
lawyers to the working group: the Bureau of Consumer Financial Protection, Department of
Health and Human Services (Office of Medicare Hearings and Appeals), Department of
Justice (Executive Office for Immigration Review), Federal Judicial Center, Federal Mine
Safety & Health Review Commission, Federal Trade Commission, and Occupational Health
& Safety Review Commission.
The views reflected in these Rules and the comments accompanying them, however
well-considered, reflect the views only of the working group and its reporter, not those of the
Conference. That said, nearly all of the Conference’s many recommendations on adjudication
over the last fifty years informed the drafting of these Rules. They are cited in the reporter’s
comments.

Matthew Lee Wiener
Acting Chairman
Vice Chairman
Executive Director

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ACUS Model Adjudication Rules (rev. 2018)

MODEL ADJUDICATION RULES WORKING GROUP*
Kent H. Barnett
J. Alton Hosch Associate Professor of Law
University of Georgia School of Law
Reporter
MEMBERS
Thomas P. McCarthy (Chair)
Administrative Law Judge
Federal Mine Safety and Health Review
Commission
Reeve T. Bull
Research Director
Administrative Conference of the United
States
John R. Coleman
Deputy General Counsel for Litigation
and Oversight, Legal Division
Bureau of Consumer Financial Protection
(Jack Barrett, Alternate)
David Freeman Engstrom
Professor of Law
Stanford Law School

John S. Irving
Of Counsel
Kirkland & Ellis
Emery G. Lee III
Senior Research Associate
Federal Judicial Center
Thomasina V. Rogers
Chairman (Retired)
Occupational Safety & Health Review
Commission
Jean C. King
General Counsel
Executive Office for Immigration Review
(Patricia M. Allen, Alternate)
David C. Shonka
Principal Deputy General Counsel
(Retired)
Federal Trade Commission
(Kenny A. Wright, Alternate)

Jeffrey R. Freund
Senior Counsel
Bredhoff & Kaiser, PLLC
Nancy J. Griswold
Chief Administrative Law Judge
Office of Medicare Hearings and Appeals
(Brian J. Haring, Alternate)

Matthew L. Wiener
Vice Chair and Executive Director
Administrative Conference of the United
States

STAFF COUNSEL
Daniel Sheffner
Attorney Advisor
Administrative Conference of the United
States

Amber G. Williams
Attorney Advisor
Administrative Conference of the United
States

* The

Model Adjudication Rules and their related comments do not necessarily represent the views
of the members’ organizations.

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ACUS Model Adjudication Rules (rev. 2018)

PREFACE
Kent H. Barnett*
The Administrative Conference of the United States (ACUS) promulgated 58 Model
Adjudication Rules (MARs) and accompanying comments in 1993 for certain federal agency
proceedings. Specifically, the MARs applied to “formal adjudication,” defined as trial-type
proceedings—whether conducted pursuant to the federal Administrative Procedure Act
(APA), other statutes, or agency regulations or practice—that offer an opportunity for an oral,
fact-finding proceeding before an agency adjudicator, whether or not an administrative law
judge (ALJ). The purposes of the MARs were to simplify and to render more consistent agency
procedural rules. To that end, ACUS encouraged agencies to adopt the MARs in toto. But
recognizing agencies’ different enabling statutes, different kinds of adjudications, and
varying resources, ACUS encouraged agencies, in the alternative, to adopt individual rules
and to use the MARs as a guide in crafting or revising their adjudication rules.
In July 2016, ACUS assembled the current MARs Working Group to consider revising
the MARs. At its initial meeting, ACUS asked the Working Group to consider whether to
revise the MARs in light of ACUS’s newly developed resources on agency adjudication,
revisions to the Federal Rules of Civil Procedure (FRCP) since 1993, the increased use of
electronic docketing systems and discovery, changes to agency-adjudication practices, and
new and revised agency procedural rules. The Working Group met together or in smaller
subgroups to discuss and propose revisions for the MARs numerous times over the next two
years.
To obtain additional input from agencies, the Working Group administered a detailed
survey to thirty-one federal agencies in the fall of 2016. The survey posed as many as 104
questions (depending on how the responding official answered posed questions) concerning a
variety of procedural topics, asked agencies to identify matters for the Working Group’s
consideration, and requested that agencies identify revisions or current areas of concern to
their procedural adjudication rules within the past 15 years. Seventeen agencies responded
and provided comments concerning approximately thirty topics.
Although some of the agencies’ concerns were either agency-specific or already
addressed in the MARs, agencies identified the following key areas for the Working Group’s
consideration: adjudicator bias, attorney conduct, electronic filings and discovery,
confidential and privileged information, expert witnesses, “virtual” hearings, and expedited
administrative review. The Working Group used these survey responses as a guide in
drafting revised model rules and comments.
The Working Group completed its initial draft revisions of the MARs in January 2018.
The Working Group solicited public comment after noticing its draft in the Federal Register
in January 2018. The Working Group then shared its draft and met with the ACUS
Committee on Adjudication in February 2018. After receiving the Committee’s and the
* Reporter, ACUS Model Adjudication Rules Working Group. I appreciate the diligent efforts of my

research assistant, Megan Cambre.

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public’s comments, the Working Group revised its draft and presented the MARs at the June
2018 ACUS Plenary Session. The Working Group completed its final revision by considering
suggestions provided at the Plenary Session.
The Working Group revised wording and phraseology throughout the MARs to
improve clarity and consistency with other federal statutes or rules. Moreover, the Working
Group significantly revised the comments to provide insights into agencies’ experience with
the MARs or similar agency rules and to identify other useful materials for agencies to
consider when drafting or revising their procedural rules. The most significant revisions to
the MARs include the following:
•

The revised MARs do not rely upon the term “formal adjudication.” The term
commonly refers to “on the record” adjudications governed by the APA (5 U.S.C.
§§ 554, 556–557) over which an ALJ presides. But the term is misleading because
numerous adjudications that fall outside this definition have procedures whose
formality rivals or exceeds adjudications with ALJs.2 As with the original MARs, the
revised MARs are not designed for inquisitorial proceedings, although they may be
instructive.

•

The Working Group has sought, where appropriate, to render the revised MARs more
consistent with the FRCP as to the filing and service of records. These revisions
include protecting private information, revising time-computation formulas, and
revising the filing party’s certification requirements.

•

The revised MARs include new rules on, among other things, foreign-language
interpretations and translations, and sequestration of witnesses.

•

The revised MARs’ discovery protective-order provisions account for various revisions
to the FRCP.

•

The revisions also recognize advances in technology and provide adjudicators with
discretion to use technology in a wide array of matters, including hearings and
discovery.

•

The revised MARs provide significant revisions to the closing and reopening of the
record.

•

The revised MARs incorporate certain revisions to the Federal Rules of Appellate

See MICHAEL ASIMOW, ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, REPORT &
RECOMMENDATIONS, ADJUDICATION OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT 2–3 (2016)
(referring to Type A, Type B, and Type C adjudications to indicate “on the record” ALJ adjudications
governed by the specific adjudication provisions under the APA, non-ALJ adversarial hearings that
are not governed by specific adjudication provisions under the APA, and adjudications without a triallike hearing, respectively). This nomenclature is reflected in ACUS Recommendation 2016-4,
Evidentiary Hearings Not Required by the Administrative Procedure Act, 81 Fed. Reg., 94314 (Dec. 23,
2016).
2

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ACUS Model Adjudication Rules (rev. 2018)
Procedure. For instance, the revised MARs add new rules concerning the appellate
record (Rule 411), additional evidence (Rule 412), and amicus briefs (Rule 421).
The Working Group intends these revised MARs to be applicable to a broad array of
agency adjudications. The Working Group eschewed recommended rules, such as one
concerning aggregate litigation,3 that would likely affect only a small number of agencies or
types of adjudication, or require significant agency-specific revisions. The revised MARs
largely track the numbering conventions in the 1993 MARs, although some rules have been
moved and some have been added.
As with the 1993 MARs, the Working Group encourages agencies to adopt the revised
MARs in toto, after accounting for agency-specific matters that the MARs identify and
revising comments as appropriate for use in agency-specific proceedings. For agencies that
do not wish or are unable to adopt all revised MARs, the Working Group encourages them to
adopt individual rules and use individual rules and comments as guides when drafting or
revising their procedural rules. As agencies use the revised MARs and as they consider other
agencies’ experiences, they improve the uniformity, rationality, and consistency of federal
administrative adjudication.

3 See Admin. Conf. of the U.S., Recommendation 2016-2, Aggregate Agency Adjudication, 81 Fed. Reg.

40,260 (June 21, 2016); Michael Sant’ Ambrogio & Adam S. Zimmerman, Inside the Agency Class
Action, 126 YALE L.J. 1634 (2017).

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TABLE OF CONTENTS
GENERAL PROVISIONS

Rule 100. Definitions .................................................................................................................1
Rule 101. Scope of Rules............................................................................................................3
Rule 102. Construction, Modification, or Waiver of Rules .......................................................4
Rule 110. Adjudicator Assignment ...........................................................................................5
Rule 111. Adjudicator Authority ...............................................................................................6
Rule 112. Adjudicator Impartiality, Recusal or Disqualification, or Unavailability ...............8
Rule 113. Individuals with Disabilities ..................................................................................10
Rule 114. Oral Testimony Interpretation and Interpreters ...................................................11
Rule 115. Foreign-Language Documents and Translations ...................................................13
Rule 120. Ex Parte Communications ......................................................................................14
Rule 121. Separation of Functions ..........................................................................................16
Rule 130. Rights of [Docketed Parties], Intervenors, and Limited Participants ...................17
Rule 140. Representation ........................................................................................................18
Rule 150. Form and Content of Filed Documents; Privacy Protections for Filings ...............20
Rule 151. Service and Filing of Documents ............................................................................23
Rule 152. Amendment or Supplementation of Filed Documents ...........................................27
Rule 160. Time Computation ..................................................................................................28
Rule 170. Motions ....................................................................................................................29
Rule 171. Subpoenas ...............................................................................................................30
Rule 180. Withdrawal or Dismissal ........................................................................................31
THE PREHEARING STAGE

Rule 200. Initiation of Adjudication ........................................................................................32
Rule 201. Consolidation or Severance of Adjudication ...........................................................33
Rule 210. Intervention ............................................................................................................34
Rule 211. Limited Participation ..............................................................................................35
Rule 220. Prehearing, Settlement, and Other Conferences ...................................................36
Rule 230. General Discovery Provisions .................................................................................38
Rule 231. Scope of Discovery ...................................................................................................40
Rule 232. Supplementation of Discovery Response ................................................................41
Rule 233. Interrogatories ........................................................................................................42
Rule 234. Depositions ..............................................................................................................43
Rule 235. Requests for Production of Records or Things for Inspection or Other Purposes .45
Rule 236. Requests for Admissions .........................................................................................46
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Rule 237. Protective Order Concerning Discovery .................................................................48
Rule 238. Motion to Compel Discovery ...................................................................................50
Rule 239. Sanctions for Failure to Comply with Discovery Obligations ................................51
Rule 240. Settlement and Alternative Dispute Resolution ....................................................52
Rule 245. Prehearing Statement.............................................................................................54
Rule 250. Summary Decision ..................................................................................................55
THE HEARING

Rule 300. Scheduling, Location, and Notice of Hearing .........................................................56
Rule 301. Type or Manner of Hearings ...................................................................................57
Rule 302. Sequestration of Witnesses .....................................................................................58
Rule 310. Failure of Party to Appear ......................................................................................59
Rule 320. Admissibility of Evidence........................................................................................60
Rule 321. Objections to Evidence and Offers of Proof ............................................................61
Rule 322. Confidential, Sensitive, and Privileged Information..............................................62
Rule 323. Official Notice..........................................................................................................63
Rule 324. Evidentiary Stipulations.........................................................................................64
Rule 325. Written Testimony ..................................................................................................65
Rule 326. Oaths and Oral Examination .................................................................................66
Rule 327. Exhibits and Records ..............................................................................................67
Rule 328. Witness Fees; Refusal to Testify .............................................................................68
Rule 329. Burden of Going Forward with Evidence ...............................................................69
Rule 330. Closing of the Administrative Record .....................................................................70
Rule 340. Proposed Findings; Closing Arguments; Briefs......................................................71
Rule 350. Record of Hearing ...................................................................................................72
Rule 360. Decision of Adjudicator ...........................................................................................73
Rule 370. Reopening of Case ...................................................................................................74
ADMINISTRATIVE REVIEW

Rule 400. Interlocutory Review ...............................................................................................75
Rule 410. Petitions for Review ................................................................................................77
Rule 411. Record Before the Agency .......................................................................................79
Rule 412. Additional Evidence ................................................................................................80
Rule 420. Appellate Briefs.......................................................................................................81
Rule 421. Amicus Briefs ..........................................................................................................82
Rule 430. Oral Argument ........................................................................................................83
Rule 440. Final Decision .........................................................................................................84
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Rule 450. Reconsideration .......................................................................................................85

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GENERAL PROVISIONS
Rule 100. Definitions
“Adjudication” means a trial-type proceeding—whether conducted pursuant to the
federal APA (5 U.S.C. § 551 et seq.), other statutes, or agency regulations or practice—
that offers an opportunity for fact-finding before an adjudicator, whether or not an
administrative law judge (ALJ).
“Adjudicator” is one or more individuals who preside(s) at the reception of evidence at
a hearing. An adjudicator may be an ALJ or any other presiding official who is
authorized to so act.
“Administrative record” includes the transcript or recording of the hearing and any
transcribed or recorded conferences or oral arguments before the Adjudicator, all
exhibits and stipulations filed in the adjudication, all exhibits excluded from the
adjudication but preserved for purposes of administrative review, all party and limited
participant filings, all written orders or decisions of the Adjudicator, any disclosure of
ex parte contacts required under Rule 120 (Ex Parte Communications), any written
statements of settlement, and any other matters required or permitted under these
rules to be included, whether with or without leave from the Adjudicator.
“Agency” is an agency as defined in 5 U.S.C. § 551.
“Alternative dispute resolution” means any procedure that is used in lieu of or in
addition to an adjudication to resolve issues in controversy, including settlement,
negotiations, conciliation, facilitation, mediation, fact finding, mini-trials, and
arbitration, or any combination thereof.
“[Docketed Party]” is a named person required by law to participate in an adjudication.
“Intervenor” is a person either entitled by law or permitted by [the Agency] to
participate with full or limited rights as a party, despite not being a [Docketed Party]
to an adjudication.
“Limited participant” is a person, who is not a party, permitted by agency discretion to
participate in an adjudication.
“Motion” means a request made to the Adjudicator or to [the Agency], as may be
appropriate.
“Party” is a [Docketed Party], agency, or intervenor in an adjudication.
“Person” includes an individual, partnership, corporation, association, public or private
organization, or governmental agency.
“Record” (noun) is a document or other information that is inscribed on a tangible
medium or stored in an electronic or other medium and retrievable in perceivable form.
“Record” (verb) means to preserve or convert proceedings, discussions, or other actions
in permanent form via audio, video, stenographic, or other reasonable means.
“Settlement Adjudicator” is an adjudicator other than the Adjudicator presiding over a
case, whom the [Chief Adjudicator] appoints to facilitate settlement or other dispute
resolution under Rule 240 (Settlement and Alternative Dispute Resolution).

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Official Comment
1. In these rules, “[the Agency]” is used to mean “the adopting agency,” and whenever
“[the Agency]” appears in a rule, the adopting agency would substitute its name
for “[the Agency]” in the particular rule.
2. (to subsection (B)): Under the APA (5 U.S.C. § 556(b)), the agency head or one or
more members of the agency may preside over agency adjudications. Few agencies,
however, make use of these alternatives.
3. (to subsection (B)): In these rules, “[Chief Adjudicator]” is used to mean some
authority other than the Adjudicator (e.g., Chief ALJ or Director, Office of
Hearings), who provides administrative oversight of or assistance to agency
adjudicators. Whenever “[Chief Adjudicator]” appears in one of these rules, an
agency would substitute the appropriate authority for “[Chief Adjudicator]” in the
particular rule. Likewise, agencies may choose to substitute the title(s) of their
adjudicators for “adjudicator” throughout these rules.
4. (to subsection (E)): The definition of alternative dispute resolution is based on 5
U.S.C. § 571(3).
5. (to subsection (F)): Whenever “[Docketed Party]” or “[Docketed Parties]” appear in
one of these rules, an agency would substitute for “[Docketed Party]” in the
particular rule the appropriate term(s), e.g., petitioners, respondents, applicants,
defendants, and agency staff.
6. (to subsection (H)): Similar in concept to an amicus curiae in judicial proceedings,
a “limited participant” is a nonparty who, in the tribunal’s discretion, is permitted
to offer written or oral submissions, or both. See Rule 211 (Limited Participation).
7. (to subsection (J)): The definition of “party”—by including [Docketed Parties],
agencies, and intervenors with limited or full participatory rights—is consistent
with the definition of “party” in the APA (5 U.S.C. § 551(3)) (“[A] ‘party’ includes a
person or agency named or admitted as a party, or properly seeking and entitled
as of right to be admitted as a party, in an agency proceeding, and a person or
agency admitted by an agency as a party for limited purposes.”).
8. (to subsections (F), (G), and (H)): The status of [Docketed Parties], intervenors,
and limited participants is addressed in Rule 130 (Rights of [Docketed Parties],
Intervenors, and Limited Participants).
9. (to subsection (L)): The definition of “record” is based on section 1–201(b)(31) of the
Uniform Commercial Code.

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Rule 101. Scope of Rules
These rules of practice and procedure are applicable to the following types of
adjudications before [the Agency]:
(1)

[name/statutory citation]

(2)

[name/statutory citation]

(3)

[name/statutory citation]

These rules are not applicable to the following types of adjudications before [the
Agency]:
(1)

[name/statutory citation]

(2)

[name/statutory citation]

(3)

[name/statutory citation]

On any procedural question not addressed by specific statute, the APA, or these rules,
the Adjudicator is guided so far as practicable by the Federal Rules of Civil Procedure
(FRCP) and Federal Rules of Appellate Procedure (FRAP).
Official Comment
1. If an agency adopts this rule, it should identify included and excluded
adjudications by name and authorizing statute. Alternatively, an agency may wish
to adopt a scope-of-rules provision that indicates that these rules apply to all of its
adjudications.
2. (to subsection (C)): The FRCP are not designed for use in administrative
adjudications. Nonetheless, they can serve as a general guide where there are no
specific provisions to cover a particular subject. In fact, several agencies use them
for that purpose, particularly insofar as discovery matters are concerned. See, e.g.,
29 C.F.R. § 2700.1(b) (Federal Mine Safety and Health Review Commission)
(general guidance); 28 C.F.R. § 76.21(a) (Department of Justice) (discovery).
3. To ensure that parties are aware of agency procedural rules and their scope,
agencies should make their adjudication materials readily accessible on their
websites. See, e.g., Admin. Conf. of the U.S., Recommendation 2017-1,
Adjudication Materials on Agency Websites, 82 Fed. Reg. 31,039 (July 5, 2017).

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Rule 102. Construction, Modification, or Waiver of Rules
These rules must be liberally construed to secure the fair, expeditious, and inexpensive
determination of all adjudications.
These rules must be interpreted, to the extent permissible, to be consistent with the
U.S. Constitution, the APA, and other applicable statutory law. To the extent that any
rule is not consistent, applicable constitutional or statutory law controls.
Except to the extent that waiver or modification would otherwise be contrary to law,
the Adjudicator may, after adequate notice to all interested persons, modify or waive
any of these rules upon a determination that no party will be prejudiced and that the
ends of justice will be served.
Official Comment
1. Under the APA, agencies may establish policies and procedures that govern the
exercise of the powers of its presiding officers. See ATTORNEY GENERAL’S MANUAL
ON THE ADMINISTRATIVE PROCEDURE ACT 75 (1947). However, sometimes
circumstances arise that these rules may not address. To allow the Adjudicator to
adapt to such circumstances, these rules include a specific waiver provision.

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Rule 110. Adjudicator Assignment
Adjudications must be presided over by an adjudicator designated by the [Chief Adjudicator].
Official Comment
1. The timing and assignment of the Adjudicator may vary from agency to agency.
Under 5 U.S.C. § 3105, ALJs are to be “assigned to cases in rotation so far as
practicable.”

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Rule 111. Adjudicator Authority
The Adjudicator has all authority necessary to conduct fair, expeditious, and impartial
adjudications. Such authority includes the authority to:
administer oaths and affirmations;
issue subpoenas authorized by law;
receive relevant evidence and rule upon the admission of evidence and offers of proof;
preside over depositions or cause depositions to be taken when the ends of justice would
be served;
regulate the course of the hearing and the conduct of persons at the hearing;
hold conferences for the settlement or simplification of the issues by consent of the
parties or through means of alternative dispute resolution;
inform the parties as to the availability of one or more means of alternative dispute
resolution and encourage use of such means;
require the attendance at any conference held pursuant to Rule 111(F) of at least one
representative of each party who has authority to negotiate concerning resolution of the
issues in controversy;
dispose of procedural motions;
make or recommend decisions;
call and question witnesses;
order curative measures to remedy the filing or other disclosure of sensitive
information, as identified in Rule 150(C), that should have been redacted under these
rules;
impose appropriate sanctions against any party or person failing to obey her/his order,
refusing to adhere to reasonable standards of orderly and ethical conduct, or refusing
to act in good faith; and
take any other action authorized by [the Agency].
Official Comment
1. The authority of adjudicators enumerated by this rule generally is described by
the APA (5 U.S.C. § 556(c)). An adjudicator can be delegated authority enumerated
in these rules only if the agency itself has the authority. For example, not all
agencies may have the authority to issue subpoenas or to administer oaths.
Consequently, such an agency may not delegate to its Adjudicator this authority.
Each agency, therefore, must consult its organic statutory authority to determine
the extent of enumerated authority it possesses before delegating particular
authority to its adjudicators.
2. (to subsection (C)): Under this provision, the Adjudicator may on her/his own
authority receive evidence into the administrative record.
3. (to subsection (E)): This provision authorizes the Adjudicator to control the
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conduct not only of the parties, but also of witnesses, members of the public in
attendance at the adjudication, and others present at the adjudication.
4. (to subsection (K)): Each agency should decide whether the Adjudicator should be
able not only to question witnesses, but also to call them.
5. (to subsection (M)): Appropriate sanctions may include refusing to allow the
support or opposition to a claim or defense, prohibiting the introduction of
designated evidence, excluding testimony, or expelling a party or person from the
hearing. For additional guidance on sanctions, see Admin. Conf. of the U.S.,
Recommendation 2016-4, Evidentiary Hearings Not Required by the
Administrative Procedure Act, ¶ 17, 81 Fed. Reg. 94,312 (Dec. 23, 2016).
6. (to subsection (N)): Agency authority can be found in, e.g., rules and precedential
orders.

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Rule 112. Adjudicator Impartiality, Recusal or Disqualification, or Unavailability
Impartiality. The Adjudicator must conduct her/his functions in an impartial manner.
Recusal of Adjudicator.
(1)

Recusal by Adjudicator. The Adjudicator may at any time recuse her/himself.

(2)

Disqualification Sought by Party.

(a)

Before the filing of the Adjudicator’s decision, any party may move that the
Adjudicator recuse her/himself on the ground of personal bias or basis for
other disqualification by filing with the Adjudicator promptly upon
discovery of the alleged facts an affidavit setting forth in detail the matters
alleged to constitute grounds for disqualification.

(b)

The Adjudicator must rule upon the motion, stating the grounds therefor.
If the Adjudicator concludes that the motion is timely and has merit, the
Adjudicator must promptly recuse her/himself and withdraw from the
adjudication. If (s)he does not recuse her/himself and withdraw from the
adjudication, (s)he must proceed with the adjudication.

(c)

A party may seek review of the Adjudicator’s denial of a motion for
disqualification only at the conclusion of the adjudication, unless the
requirements of Rule 400 (Interlocutory Review) are satisfied.

Unavailability of Adjudicator. If the [Chief Adjudicator] finds that the Adjudicator is
unable to perform her/his duties or otherwise becomes unavailable, the [Chief
Adjudicator] must designate another adjudicator to serve.
Official Comment
1. The APA (5 U.S.C. § 556(b)) provides as follows: “The functions of presiding
employees and of employees participating in decisions in accordance with section
557 of this title shall be conducted in an impartial manner. A presiding or
participating employee may at any time disqualify [her/himself]. On the filing in
good faith of a timely and sufficient affidavit of personal bias or other
disqualification of a presiding or participating employee, the agency shall
determine the matter as part of the record and decision in the case.”
2. (to subsection (B)): Agencies’ procedural regulations may provide that adjudicators
can be disqualified due to bias, and that procedural regulations and manuals
explain when and how parties should raise claims of bias and how agencies can
resolve them. See Admin. Conf. of the U.S., Recommendation 2016-4, Evidentiary
Hearings Not Required by the Administrative Procedure Act, ¶ 5, 81 Fed. Reg.
94,312 (Dec. 23, 2016). This rule does not specify a recusal or disqualification
standard. Others have noted the difficulty of “finding the appropriate, specific set
of governing [ethical] rules” for agency adjudicators. See, e.g., James E. Moliterno,
The Administrative Judiciary’s Independence Myth, 41 WAKE FOREST L. REV.
1191, 1194 (2006) (citing various state and federal standards governing recusals
and other ethical considerations for administrative adjudicators); see generally
Patricia E. Salkin, Judging Ethics for Administrative Law Judges, 11 WIDENER J.
PUB. L. 7 (2002) (discussing the treatment of ethics primarily for state
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administrative adjudicators). Each agency should determine the appropriate
standard for recusal or disqualification in its adjudications. For guidance, see
Recommendation 2016-4, ¶ 5 (identifying types of bias warranting
disqualification); see also 28 U.S.C. § 455 (disqualification standards for federal
judges). Agencies may also find useful guidance in the ABA’s Model Code of
Judicial Conduct, which applies to both judicial officers and administrative
adjudicators. ABA Model Code of Judicial Conduct (2011); see also ABA Model
Code of Judicial Conduct for State Administrative Law Judges (2016). Agencies
should consider the ethical standards applicable to all federal employees
promulgated by the Office of Government Ethics (OGE), 5 C.F.R. pt. 2635, when
determining the appropriate standards for recusal or disqualification, especially
as they relate to the disqualification of federal employees from participating in
particular matters due to the appearance of loss of impartiality, id. §§ 2635.501–
2635.503. Agencies may supplement OGE’s ethical standards pursuant to
executive order and OGE regulation. Exec. Order 12,764, § 3, 54 Fed. Reg. 15,159,
15,160 (April 14, 1989), amended by Exec. Order 12,731, 55 Fed. Reg. 42,547 (Oct.
17, 1990); 5 C.F.R. § 2635.105.
3. (to subsection (B)(2)): A party must seek the Adjudicator’s disqualification
promptly after learning the disqualifying information that serves as the basis for
the motion. A party may not await the outcome of the Adjudicator’s decision to
determine if the alleged bias affected the decision if the party, before the
Adjudicator issued her/his decision, knew (or should have known) of the
information that serves as the basis for the motion. This rule does not limit a
party’s ability to assert that an adjudicator’s (or an agency’s) decision evidences
the Adjudicator’s improper bias against a party. For examples of cases examining
allegations of improper bias on the part of adjudicators, see Texaco, Inc. v. FTC,
336 F.2d 754 (D.C. Cir. 1964), vacated on other grounds, 381 U.S. 739 (1965);
Cinderella Career & Finishing Sch., Inc. v. FTC, 425 F.2d 583 (D.C. Cir. 1970);
Antoniu v. SEC, 877 F.2d 721 (8th Cir. 1989).

4. (to subsection (B)(2)): An agency may consider assigning another adjudicator who
is not involved with the adjudication (or a related proceeding) to decide the
disqualification motion.

5. (to subsection (C)): For example, an adjudicator may become otherwise

unavailable because (s)he becomes ill or incapacitated, retires, withdraws, is
disqualified, obtains other employment, or the demands of another case so require.

6. (to subsection (C)): Assignment of a substitute adjudicator does not necessarily
require the reopening or rehearing of the adjudication either in part or in whole.
However, the substitute adjudicator should do so to the extent necessary to resolve
witness credibility or otherwise provide a fair adjudication.

7. (to subsection (C)): Nothing in this rule is intended to restrict the authority of the
[Chief Adjudicator] to manage the agency’s docket by transferring cases from one
adjudicator to another before the hearing for administrative convenience or
efficiency.
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ACUS Model Adjudication Rules (rev. 2018)
Rule 113. Individuals with Disabilities
For any portion of the adjudication (including in connection with any conference or hearing),
the Adjudicator must take due account of any disclosed physical or mental disability of a
party, limited participant, representative, or witness.
Official Comment
1. An individual may not be excluded from participating in an adjudication because
of a disability. The Rehabilitation Act expressly provides that “[n]o otherwise
qualified individual with a disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination . . . under any program or activity conducted by any
Executive agency . . . .” 29 U.S.C. § 794(a). The Americans with Disabilities Act
similarly provides that “no qualified individual with a disability shall, by reason
of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132.
2. Each agency is obligated to comply with the Americans with Disabilities Act, the
Rehabilitation Act, and applicable federal regulations concerning appropriate
actions to facilitate the participation of disabled individuals. See, e.g., Alexander
v. Choate, 469 U.S. 287, 301 (1985). (“[T]o assure meaningful access, reasonable
accommodations in the grantee’s program or benefit may have to be made.”).
Agencies should consider and adopt more detailed procedures to address the needs
of hearing and visually impaired parties, limited participants, representatives and
witnesses, including rules regarding the payment of fees or costs incurred to
address the impairment.
3. The Adjudicator may be specifically empowered to take appropriate action to
ensure the appropriate participation of disabled individuals. See, e.g., U.S. EEOC
Handbook for Administrative Judges, July 1, 2002, Chapter 7, II, C.

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ACUS Model Adjudication Rules (rev. 2018)
Rule 114. Oral Testimony Interpretation and Interpreters
(A) Any party or limited participant who anticipates a need for an interpreter during any
part or all of an adjudication must promptly notify the Adjudicator and identify any
specific language and dialect for which an interpreter is needed and the participant or
participants who will require the interpretation services.
(B) An interpreter must establish her/his qualifications to the satisfaction of the Adjudicator
and state, under oath, that the interpreter is (1) competent to interpret the identified
language and dialect, and (2) will do so accurately to the best of the interpreter’s ability,
before performing interpretation services for the adjudication.
(C) A qualified interpreter who testifies under oath as to her/his qualifications, and who
promises to translate accurately to the best of her/his ability, is permitted to assist with
the adjudication, subject to general rules of procedure or evidence applicable to any party,
limited participant, or witness.
Official Comment
1. The federal government is committed to language access. See, e.g., Exec. Order No.
13,166, Improving Access to Services for Persons with Limited English Proficiency,
65 Fed. Reg. 50,121 (Aug. 11, 2000).
2. Rule 326 (Oaths and Oral Examination) specifically provides for the
administration of oaths to interpreters at the hearing stage of a adjudication.
3. Each agency will need to determine who bears the cost of interpretation. Some
agencies may choose to require the party or limited participant calling a witness
to bear the expense and burden of providing interpretation. Other agencies may
wish to adopt a rule requiring that an interpreter be provided at agency expense
for particular specified proceedings or in certain identified circumstances. See, e.g.,
Social Security Administration Hearings, Appeals, and Litigation Law Manual at
I-2-6-10, available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-10.html.
4. Some foreign language interpreters are “certified” by an accrediting entity. See,
e.g., American Translators Association (https://www.atanet.org/certification). An
agency may

(1) require a “certified” interpreter, see 28 U.S.C. § 1827 (requiring the Director
of the Administrative Office of the U.S. Courts to develop a program for
certified and otherwise qualified interpreters for the courts of the United
States),

(2) adopt a self-certification procedure, see, e.g., Immigration Court Practice
Manual
3.3(a)
and
Appendix
H,
available
at
https://www.justice.gov/sites/default/files/pages/attachments/2017/11/02/prac
ticemanual.pdf, or

(3) require membership in a recognized professional translators’ association, see,
e.g., International Federation of Translators (http://www.fit-ift.org).

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ACUS Model Adjudication Rules (rev. 2018)
5. This rule derives, in part, from the Immigration Court Practice Manual 4.11,
available
at
https://www.justice.gov/sites/default/files/pages/attachments/2017/11/02/practice
manual.pdf.

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ACUS Model Adjudication Rules (rev. 2018)
Rule 115. Foreign-Language Documents and Translations
All documents filed with [the Agency] or offered for the administrative record of an
adjudication must be in the English language or accompanied by an authenticated
English translation.
An affidavit in English by a person who does not understand English must include a
separate translator’s affidavit under oath stating that the underlying affidavit has been
read to the person in a language that the person understands and that, to the best of
the translator’s knowledge, the affiant understood it before signing. The translator’s
affidavit must also state facts demonstrating that the translator is competent to
translate the language of the witness as well as a representation that the interpretation
was true and accurate to the best of the translator’s abilities.
A translator’s affidavit authenticating the translation of a foreign-language document
must be typed, signed by the translator, and identify and accompany the foreignlanguage document. If a translator’s affidavit is filed in connection with the translation
of multiple documents, the certification must specify the documents covered by the
translator’s affidavit. A translator’s affidavit must include facts providing a basis to
conclude that the translator is competent to translate the language of the document
and a representation that the translation is true and accurate to the best of the
translator’s abilities.
A translated document accompanied by a proper translator’s affidavit is admissible in
the adjudication to the same extent as it would be if it were not translated.
Official Comment
1. This provision derives from the Immigration Court Practice Manual 3.3(a),
available
at
https://www.justice.gov/sites/default/files/pages/attachments/2017/11/02/practice
manual.pdf. See also 8 C.F.R. § 1003.33.
2. Sworn declarations made under penalty of perjury can be substituted for an
affidavit under appropriate circumstances. See Comment 8 to Rule 150 (Form and
Content of Filed Documents; Privacy Protections for Filings).

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ACUS Model Adjudication Rules (rev. 2018)
Rule 120. Ex Parte Communications
Except as required for the disposition of ex parte matters authorized by law, the
Adjudicator may not consult a person or party on any matter relevant to the merits of
the adjudication, unless on notice and opportunity for all parties to participate. This
provision does not, however, preclude the Adjudicator from consulting with
adjudicatory employees such as law clerks.
Except as required for the disposition of ex parte matters authorized by law,
(1)

no interested person outside [the Agency] may make or knowingly cause to be
made to the [the Agency] or any of its personnel who is or may reasonably be
expected to be involved in the decisional process an ex parte communication
relevant to the merits of the adjudication;

(2)

no member of the body comprising [the Agency] or its personnel who is or may
reasonably be expected to be involved in the decisional process of the adjudication
may make or knowingly cause to be made to any interested person outside [the
Agency] an ex parte communication relevant to the merits of the adjudication.

[The Agency], the Adjudicator, or agency personnel who is or may reasonably be
expected to be involved in the decisional process who receives, makes, or knowingly
causes to be made a communication prohibited by this rule must place in the public
administrative record:
(1)

all such written communications;

(2)

memoranda stating the substance of all such oral communications; and

(3)

all written responses, and memoranda stating the substance of all oral responses,
to the materials described in (1) and (2) above.

Upon receipt of a communication knowingly made or knowingly caused to be made by
a party in violation of this rule, [the Agency] or the Adjudicator may, to the extent
consistent with the interests of justice, the policy of underlying statutes, and [the
Agency’s] rules and precedents, require the party to show cause why its claim or
interest in the adjudication should not be dismissed, denied, disregarded, or otherwise
adversely affected by reason of such violation.
The prohibitions of this rule apply beginning [time designated by [the Agency]], but in
no case do they begin to apply later than when an adjudication is noticed for hearing
unless the person responsible for the communication has knowledge that it will be
noticed, in which case the prohibitions apply upon her/his acquisition of such
knowledge.
Official Comment
1. Subsection (A) is similar to, but broader than, the APA’s prohibition on ex parte
communications (5 U.S.C. § 554(d)(1)). Although the prohibition in 5 U.S.C.
§ 554(d)(1) extends only to “fact[s] in issue,” this rule extends to all matters
relevant to the merits of the adjudication. Subsections (B) through (E) are taken
from 5 U.S.C. § 557(d)(1).
2. Not all communication is prohibited. Inquiries about such matters as the status of
the case, when it will be heard, and the like do not fall within this rule’s
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ACUS Model Adjudication Rules (rev. 2018)
proscriptions.

15

ACUS Model Adjudication Rules (rev. 2018)
Rule 121. Separation of Functions
The Adjudicator may not be responsible to, or subject to the supervision or direction of,
personnel engaged in the performance of investigative or prosecutorial functions for
[the Agency].
No officer, employee, or agent of [the Agency] engaged in investigative or prosecutorial
functions in connection with any adjudication may, in that adjudication or one that is
factually related, participate or advise in the decision of the Adjudicator, except as a
witness or counsel in the adjudication or its appellate review.
Official Comment
1. See the APA (5 U.S.C. § 554(d)) for separation-of-functions proscriptions for ALJs.
Notably, the APA’s proscriptions do not apply to other agency adjudicators. To
protect non-ALJ adjudicators’ independence, agencies should consider requiring
separated functions for all agency adjudicators.
2. The APA (5 U.S.C. § 554(d)(2)) provides that separation-of-functions proscriptions
do “not apply
(A) in determining applications for initial licenses;
(B) to proceedings involving the validity or application of rates, facilities, or practices
of public utilities or carriers; or
(C) to the agency or a member or members of the body comprising the agency.”

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ACUS Model Adjudication Rules (rev. 2018)
Rule 130. Rights of [Docketed Parties], Intervenors, and Limited Participants
The rights of a [Docketed Party] are determined by statute, these rules, and other
applicable law.
The Adjudicator may, pursuant to statute, these rules, or other applicable law, restrict
an intervenor’s participation.
A limited participant may make oral submissions, written submissions, or both, as the
Adjudicator permits.
Official Comment
1. The definitions of these three statuses ([Docketed Party], intervenor, and limited
participant) are in Rule 100 (Definitions). Rules 210 (Intervention) and 211
(Limited Participation) provide further guidance on intervention or limited
participation.
2. Aside from these rules, agencies should consult statutes, agency regulations, or
authoritative judicial or agency decisions, which may delineate the participatory
rights of various parties and persons.
3. (to subsection (B)): For example, an intervenor may or may not be permitted to
participate in offers of settlement.

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ACUS Model Adjudication Rules (rev. 2018)
Rule 140. Representation
Any person may appear in an adjudication on her/his own behalf, by an attorney, or, if
permitted by the Adjudicator or agency, by an authorized representative who qualifies
under this rule. Each person, attorney, or authorized representative must file a notice
of appearance. The notice must state the name of the case (and docket number if
assigned), the person on whose behalf the appearance is made, and the person’s or
representative’s mailing address, email address, and telephone number. Similar notice
must also be given for any withdrawal of appearance.
An attorney must be a member in good standing of the bar of the highest court of a
State, the District of Columbia, or any territory or commonwealth of the United States.
(S)he must file with [the Agency] a written affidavit that (s)he is currently qualified as
provided by this subsection and is authorized to represent the person on whose behalf
(s)he acts.
Any person who is not an attorney qualified to appear under Rule 140(B) may appear
in a representative capacity by filing, with her/his notice of appearance, a statement
setting forth the basis of her/his authority to act as a representative under Rule 140(D).
A person is authorized to serve as a representative under Rule 140(C) if _____________.
Official Comment
1. (to subsection (A)): An agency may wish to consider requiring identification of an
emergency point of contact in case the attorney or representative is not available.
An agency may also consider whether to require a representative to provide
additional contact information, such as a fax number.
2. (to subsections (B) and (C)): The Agency Practice Act limits agency authority to
restrict attorneys from practicing before agencies. See 5 U.S.C. § 500(b). For most
other representatives, an agency may set such qualifications as it sees fit in
subsection (D). See 5 U.S.C. § 500(c)–(f); see also Admin. Conf. of the U.S.,
Recommendation 2016-4, Evidentiary Hearings Not Required by the
Administrative Procedure Act, ¶¶ 14–16, 81 Fed. Reg. 94,312 (Dec. 23, 2016)
(providing recommendations concerning nonlawyer representation). Similarly, an
agency may wish to add a provision, if applicable, limiting representation by
former members or employees in specified circumstances. See 16 C.F.R. § 4.1(b)
(FTC) (appearances). An agency may also wish to consider adding a provision that
would allow a law student to appear, subject to the supervision of an attorney
authorized to appear under Rule 140(B).
3. (to subsections (B)): Sworn declarations made under penalty of perjury can be
substituted for an affidavit under appropriate circumstances. See Comment 8 to
Rule 150 (Form and Content of Filed Documents; Privacy Protections for Filings).
4. (to subsection (D)): Because of the variety of possible qualifications necessary for
different agency adjudications, these rules do not provide a uniform standard for
representative authorization. Instead, subsection (D) leaves it to agencies to
provide suitable qualifications for nonattorney representatives. For examples, see
those qualifications for representatives before the Social Security Administration
(https://www.ssa.gov/representation/conduct_standards.htm) and the Department
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ACUS Model Adjudication Rules (rev. 2018)
of Veterans Affairs (https://www.benefits.va.gov/vso/index.asp).

19

ACUS Model Adjudication Rules (rev. 2018)
Rule 150. Form and Content of Filed Documents; Privacy Protections for Filings
Necessary Information. A filed document must state clearly:
(1)

the name of [the Agency];

(2)

the name of the adjudication;

(3)

the name and designation (such as “applicant,” “petitioner,” or “respondent”) of
the filing party;

(4)

the type of filing (e.g., petition, notice, motion to dismiss, etc.);

(5)

any assigned docket number of the case; and

(6)

the filing party’s or other filing person’s address, telephone number, fax number
(if any), and email address (if any).

Specifications.
(1)

All filed documents created by a party must:

(a)

be 8 by 11 inches in size except, when necessary, tables, charts, and other
attachments may be larger if folded to the size of the filed documents to
which they are physically attached;

(b)

be only on one side of the page and be typewritten, printed, or otherwise
reproduced in permanent and plainly legible form;

(c)

be double-spaced except for footnotes and long quotations, which may be
single-spaced;

(d)

have a left margin of at least 1½ inches and other margins of at least 1 inch;
and

(e)

be bound on the left side, if bound.

(2)

Illegible documents will not be accepted.

(3)

All documents must be in the English language or, if in a foreign language,
accompanied by an authenticated English translation.

Confidentiality and Privacy Protections.
(1)

Unless [the Agency] orders otherwise, in an electronic or paper filing with [the
Agency] that contains an individual's social-security number, driver’s license
number, passport number, taxpayer-identification number, birthdate, an
individual’s mother’s maiden name, the name of an individual known to be a
minor, an individual’s physical or email address, an individual’s telephone
number, or a financial-account or credit-card number, a party or nonparty
making the filing may include only

(a)

the last four digits of any social-security number and any taxpayeridentification number;

(b)

the year of an individual’s birth;

(c)

the first letter of an individual’s mother’s maiden name;

(d)

the city, state, and country of an individual’s physical address;
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ACUS Model Adjudication Rules (rev. 2018)

(e)

a minor’s initials; and

(f)

the last four digits of the financial-account or credit-card number.

(2)

The redaction requirement under this subsection does not apply to the record of
a court or other tribunal, if that record was not subject to a redaction requirement
when originally filed.

(3)

The Adjudicator may order that a filing be made under seal with or without
redaction. The Adjudicator may later unseal the filing or may order the person
who made the filing to file a redacted version for the public administrative record.
[The Agency] must retain the unredacted copy as part of the administrative
record.

(4)

For good cause, the Adjudicator may order redaction of additional information,
including national security, business-proprietary, medical, or other sensitive
personal information.

(5)

A person waives the protection of this subsection as to the person’s own
information by filing it without redaction and not under seal.

Signature. The original of every filed document must be signed by the submitting party
or its attorney or other authorized representative of record. Except as otherwise
provided, filed documents need not be verified or accompanied by an affidavit. The
signature constitutes a certification by the signing person that (s)he has read the filed
document, that to the best of her/his knowledge, information, and belief the statements
made therein are true, that it is not interposed for delay, and that it complies with this
rule.
Official Comment
1. Attention is directed to related rules: Rule 115 (Foreign-Language Documents and
Translations), Rule 140 (Representation), Rule 151 (Service and Filing of
Documents), and Rule 152 (Amendment or Supplementation of Filed Documents).
2. (to subsection (A)): Because the diverse responsibilities of individual agencies
influence which types of filed documents are necessary to conduct their business,
no attempt has been made to identify particular, subject-specific filed documents
(e.g., complaint/answer, petition/response, etc.). Each agency should determine the
types and specific requirements for the filed documents necessary to conduct its
adjudications including, e.g., the name of the tribunal, board, or appropriate
forum. Agencies should consider including sample document formats (and other
appropriate guidance) in an appendix to this rule, especially in adjudications
where nonattorneys participate.
3. (to subsection (B)): An agency may wish to consider requiring a table of contents
if filed documents such as briefs or memoranda exceed a specified number of pages
or words.
4. (to subsection (B)(1)): The specificity of Rule 150(B)(1) reflects requirements
generally found in current agency rules. As to filing by electronic means, agencies
may want to consider additional specifications consistent with its electronic-filing
technology or as such technology evolves. See Rule 151 (Service and Filing of
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ACUS Model Adjudication Rules (rev. 2018)
Documents).
5. (to subsection (B)(1)(b)): Each agency should determine whether double-sided
reproduction is permitted or encouraged.
6. (to subsection (B)(1)(d)): Each agency should consider whether it wishes to
designate the type font (e.g., Times New Roman) and the pitch size (e.g., 10 point
versus 12 point).
7. (to subsection (C)): The privacy protections in this rule are based on FRCP 5.2.
Agencies should consider whether they should require the redaction of other
sensitive information. See Office of Mgmt. & Budget M–07–16, Safeguarding
Against and Responding to the Breach of Personally Identifiable Information, May
22, 2007. Other common sensitive information may concern federal tax
information or protected health information.
8. (to subsection (D)): Where an affidavit is required or permitted under these rules,
a sworn declaration made under penalty of perjury may be substituted if it
complies with the requirements of 28 U.S.C. § 1746 (unsworn declarations under
penalty of perjury).
9. (to subsection (D)): See Rule 151(B)(3) (Service and Filing of Documents) for
matters related to electronic signatures.

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ACUS Model Adjudication Rules (rev. 2018)
Rule 151. Service and Filing of Documents
Service. All documents in the adjudication must be served as set forth below.
(1)

Service by [the Agency]. [The Agency] or the Adjudicator must serve one copy of
all orders, notices, decisions, rulings on motions, and similar documents issued
by [the Agency] or the Adjudicator upon each party and limited participant in
accordance with Rule 151(A)(3) below. Every document served by [the Agency] or
the Adjudicator must be accompanied by a certificate of service that provides the
information in the form described in Rule 151(C)(2) below.

(2)

Service by Party or Limited Participant.

(a)

In General. Unless these rules provide otherwise or the Adjudicator orders
otherwise, each of the following papers must be served on every party and
limited participant:
(i) a document filed after the document initiating the adjudication under
Rule 200 (Initiation of Adjudication);
(ii) a discovery paper required to be served on a party or limited participant;
(iii) a written motion, except one that may be heard ex parte;
(iv) a written notice or appearance or any similar document; and
(v) any other document permitted to be filed by [the Agency] rules or by the
Adjudicator.

(b)

(3)

If a Party Fails to Appear. No service is required on a party who is in default
for failing to appear. But a document that asserts a new claim against such
a party must be served on that party.

Service: How Made.

(a)

Service on Whom.
(i) If a party or limited participant is represented by an attorney or
authorized representative, service under this rule must be made on the
attorney or authorized representative unless the Adjudicator orders
service on the party or limited participant.
(ii) If a party or a limited participant is not represented, service under this
rule must be made on the party and limited participant her/himself.

(b)

Service in General. A document is served under this rule by:
(i) handing it to the person;
(ii) leaving it at the person’s office with a clerk or other person in charge or,
if no one is in charge, in a conspicuous place in the office; or if the person
has no office or the office is closed, at the person’s dwelling or usual place
of abode with someone of suitable age and discretion who resides there;
(iii)mailing it to the person’s last known address, in which event service is
complete upon mailing;
(iv) leaving it with [the Agency’s] clerk if the person has no known address;
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ACUS Model Adjudication Rules (rev. 2018)
(v) sending it by electronic means if the person has consented in writing, in
which event service is complete upon transmission, but is not effective if
the serving party learns that it did not reach the person to be served; or
(vi) delivering it by any other means that the person consented to in writing,
in which event service is complete when the person making service
delivers it to the agent designated to make delivery.

(c)

Using [the Agency] Facilities. Parties or limited participants who lack
access to technology capable of making electronic service may request that
the Agency permit the use of [the Agency’s] electronic-transmission
facilities to make service.

Filing.
(1)

Required Filings; Certificate of Service. Any document after the document
initiating the adjudication that is required to be served—together with a
certificate of service—must be filed within a reasonable time after service. But
unless the Adjudicator orders otherwise, discovery requests and responses must
not be filed until they are used in the adjudication.

(2)

How Filing Is Made—In General. A document is filed by delivering it to:

(a)

the appropriate office designated by [the Agency]; or

(b)

an adjudicator who agrees to accept it for filing, and who must then note
the filing date on the document and promptly send it to [the Agency].

(3)

Electronic Filing, Signing, or Verification. Documents may be filed, signed, or
verified by electronic means, so long as the electronic means comply with any
applicable [Agency] rule.

(4)

Acceptance by [the Agency]. The appropriate office designated by [the Agency]
must not refuse to file a document solely because it is not in the form prescribed
by these rules or by an [Agency] practice.

Certificate of Service.
(1)

Every document filed with [the Agency] or the Adjudicator and required to be
served upon all parties and limited participants must be accompanied by a
certificate of service signed by (or on behalf of) the party making the service that
provides the information in the form described in Rule 151(C)(2) below.

(2)

Certificates of service should be in substantially the following form:

“I hereby certify that I have this day served the foregoing document(s) upon
the following parties and limited participants in this adjudication at the
address indicated by [specify the method]:

(a)

[name/address]

(b)

[name/address]
Date: [Month, Day, Year]

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ACUS Model Adjudication Rules (rev. 2018)
Signature
For
Capacity

____________________________
____________________________
___________________________”

Official Comment
1. This rule is a substantial revision of the previous version. It incorporates the
provisions of FRCP 5, modified where appropriate. Because the FRCP govern the
service of documents in the federal courts, and because many state courts have
modeled their rules on the FRCP, agency practitioners are likely familiar with
FRCP 5, and they and agencies can look to decisions under the FRCP for guidance.
FRCP 5 includes provisions relating to the filing of documents and service. The
original MARs contained filing provisions in former Rule 150, but they are revised
to mirror the language in FRCP 5 and are thus included in Rule 151(B).
2. Agency rules and practice vary considerably regarding how parties serve
documents initiating an adjudication. Accordingly, this rule does not prescribe
rules for service of such documents. Each agency must consider how parties should
do so, taking into consideration the nature of its adjudicative process. See Rule 200
(Initiation of Adjudication).
3. For time computation, see Rule 160 (Time Computation), which was substantially
revised to be consistent with revised FRCP 6.
4. The FRCP contemplate proceedings initiated by seizing property. To the extent an
agency has such a proceeding, a suggested rule regarding service is the following:
Seizing Property. If an action is begun by seizing property and no person is or
need be named as a defendant, any service required before the filing of an
appearance, answer, or claim must be made on the person who had custody or
possession of the property when it was seized.
5. (to subsection (A)(3)(a)): Some agencies regularly have adjudications with
numerous parties, limited participants, or both. If that is the case, the agency may
want to adopt a rule regarding modifications to service requirements, including,
for example, rules limiting the class of parties or limited participants on whom
pleadings or other documents need be served, and rules providing for the
presumed and automatic denial of any cross-claim, counterclaim, or affirmative
defense.
6. (to subsections (A)(3)(b)(v) and (A)(3)(c)): These rules acknowledge and encourage
the use of technology in effectuating service and filing. In addition, to the extent
agencies maintain or participate in electronic filing and communication services
(e.g., PACER), filing and service by those means is permitted so long as there are
exceptions for parties who lack access to the necessary technology. If service or
filing is by electronic means, agencies should address special problems that may
arise such as original signatures, authentication, and retention of hard copies.
Each agency must ensure that any filing by electronic means results in the agency
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having a complete, legible, and permanent copy of the document transmitted.
Methods of service of filing may be addressed at the prehearing conference, if any,
to determine whether a uniform method of service or filing is desirable or feasible.
7. (to subsections (A) and (B)): A rule may require electronic filing only if reasonable
exceptions are allowed.
8. (to subsection (B)(2)): An agency may wish to consider whether the office of the
Adjudicator should be designated as a filing location under this rule.
9. (to subsection (B)(3)): If an agency does not provide for electronic filing, or if it does
but permits paper filing from parties who do not have access to technology
necessary for electronic filing, an agency must decide how many paper copies are
required and who is authorized to change the number of required copies. Agencies
should consider the cost of requiring additional copies.
10. (to subsection (B)(4)): If an agency adopts this rule requiring that it must accept a
nonconforming document for filing, it should include a rule providing for a
mechanism to allow parties to move to strike a noncomplying document or seek
other appropriate relief. Nothing in this rule limits the Adjudicator’s discretion to
reject a document that fails to conform to formatting requirements.

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Rule 152. Amendment or Supplementation of Filed Documents
Until the adjudication concludes, or the Adjudicator or Agency has made a dispositive
ruling, a party must amend or supplement a previously filed document upon learning
that the filing is incomplete or incorrect in some material respect.
The Adjudicator may approve other amendments or supplements to filed documents,
when justice so requires.

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Rule 160. Time Computation
In computing any time period prescribed in these rules, the day from which the
designated period begins to run is not included. The last day of the period so computed
is included, unless it is a Saturday, Sunday, or federal holiday. Intermediate Saturdays,
Sundays, and federal holidays are included in the computation.
When a party may or must act within a specified time after being served and service is
made under Rule 151(A)(3)(b)(iii) (mail), (iv) (leaving it with [the Agency]), or (vi) (other
means consented to), three days are added after the period would otherwise expire
under Rule 160(A).
Official Comment
1. Rule 102 (Construction, Modification, or Waiver of Rules) covers extension of
periods.
2. (to subsection (A)): This approach to time computation tracks FRCP 6(a). The
earlier version of these rules excluded Saturdays, Sundays, and federal holidays
in the computation when the period of time prescribed was seven (7) days or fewer.
An agency adopting the new approach should ensure that its time periods are
adjusted as necessary to account for this change.
3. (to subsection (A)): For guidance as to what constitutes a federal holiday, see FRCP
6(a)(6). In addition, FRCP 6(a)(3) covers sporadic federal holidays or other events.
For instance, on occasion, federal offices are closed for reasons such as the
Presidential Inauguration or weather. An agency may wish to allow for such
contingencies in computing time periods.
4. (to subsection (B)): See FRCP 6(d) (Additional Time After Certain Kinds of
Service).

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Rule 170. Motions
How Made.
(1)

All motions must state the basis for the specific relief requested and be in writing,
except as provided in Rule 170(A)(2).

(2)

Unless the Adjudicator orders otherwise, a motion may be made orally during a
conference or hearing. After providing an opportunity for response, the
Adjudicator may rule on the motion immediately or may order that the motion
and response be submitted in writing pursuant to Rule 170(A)(1).

Unless the Adjudicator orders otherwise, any party may file a response in support of or
in opposition to any written motion within 10 days after service of the motion. If no
response is filed within the response period, the party failing to respond will be deemed
to have waived any objection to the granting of the motion. The movant will have no
right to reply to the response, although the Adjudicator may in her/his discretion permit
a reply to be filed.
Except for procedural matters, the Adjudicator may not, without assent of the parties,
grant a written motion prior to the expiration of the time for filing responses. Any party
adversely affected by the ex parte grant of a motion for a procedural order may request
reconsideration, vacation, or modification of the order within __ days of service of the
order. The Adjudicator may deny a written motion without awaiting a response or may
allow oral argument (including that made by telephone).
The Adjudicator may summarily deny dilatory, repetitive, or frivolous motions. Unless
the Adjudicator orders otherwise, the filing of a motion does not stay an adjudication.
All motions and responses thereto must comply with Rule 151 (Service and Filing of
Documents).
Official Comment
1. The agency may wish to consider describing with specificity whether motions for
reconsideration are permitted, the scope of matters on which such motions may be
filed, the standards necessary for reconsideration, and the procedures for briefing
and resolving such motions. For example, although the FRCP do not contain
provisions for motions to reconsider generally, they do include several rules
relating to “reconsideration” of certain matters under specified circumstances. See
FRCP 54(b), 59(e), 60.
2. (to subjection (B)): The Adjudicator is not obligated to grant a motion simply
because no response is filed.
3. (to subsection (C)): Agencies must consider the number of days within which
parties must seek relief from an ex parte order.

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Rule 171. Subpoenas
Upon a party’s request, a subpoena for testimony, records, or things shall be issued by
[the Agency].
Upon motion of a person served with a subpoena (or by a party), the Adjudicator may
quash or modify the subpoena for good cause shown.
Official Comment
1. Agencies may consider delegating the authority to issue subpoenas to the
Adjudicator. Agencies should explain their subpoena practice in detail to provide
parties’ sufficient guidance. See Admin. Conf. of the U.S., Recommendation 20164, Evidentiary Hearings Not Required by the Administrative Procedure Act, ¶ 11,
81 Fed. Reg. 94,312 (Dec. 23, 2016) (providing recommendation concerning
subpoena power).
2. This rule is only appropriate if an adopting agency is authorized to issue
subpoenas. This rule does not prevent an agency from issuing subpoenas in blank
to a requesting party. A subpoena may be used to require attendance at, for
instance, a deposition or a hearing.
3. (to subsection (A)): If required by agency procedural rules, a subpoena “shall be
issued” on request of a party and on a statement or showing of general relevance
and reasonable scope of the evidence sought. See 5 U.S.C. § 555(d).

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Rule 180. Withdrawal or Dismissal
Withdrawal.
(1)

An adjudication may be withdrawn without an order of the Adjudicator

(a)

by filing a stipulation of all parties who have appeared in the adjudication,
or

(b)

by filing a notice of withdrawal by the [party initiating the adjudication] at
any time before another party has served a document responding to the
[initiating document] or, if there is none, before the introduction of evidence
at the hearing.

(2)

A notice of withdrawal may not be filed by a party who has previously withdrawn
or been dismissed from an adjudication based on (or including) the same claim.
Unless otherwise stated in the notice of withdrawal or stipulation, a withdrawal
is without prejudice.

(3)

Except as provided above, an adjudication may not be withdrawn except by order
of the Adjudicator and upon such terms and conditions as the Adjudicator deems
proper.

Dismissal.
(1)

(2)

Any party may move to dismiss the adjudication or any request for relief sought
therein for:

(a)

failure of another party to comply with these rules or with any order of the
Adjudicator, or

(b)

failure to prosecute the adjudication.

Unless the Adjudicator specifies otherwise, a dismissal under this subsection,
other than a dismissal for lack of jurisdiction, operates as an adjudication upon
the merits.
Official Comment

1. See FRCP 41 (Dismissal of Actions).
2. Motions that challenge the legal sufficiency of the allegations should be made
pursuant to Rule 250 (Summary Decision).
3. Agencies that utilize administrative class-action procedures might opt to create a
rule authorizing or requiring the Adjudicator to approve settlements reached by
the parties in aggregated adjudications (i.e., “agency class actions”). See 29 C.F.R.
§ 1614.204 (EEOC class-complaint procedures); id. § 1614.204(g)(4) (settlementapproval provision); accord FRCP 23(e). For guidance on using aggregation
procedures, see Admin. Conf. of the U.S., Recommendation 2016-2, Aggregation of
Similar Claims in Agency Adjudication, 81 Fed. Reg. 40,260 (June 21, 2016).
4. (to subsection (A)(l)(b)): Each agency should determine for itself the most
appropriate term to describe the person who may file a notice of withdrawal, e.g.,
the plaintiff or the party seeking relief.
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ACUS Model Adjudication Rules (rev. 2018)
THE PREHEARING STAGE
Rule 200. Initiation of Adjudication
An adjudication is initiated when __________________________.
The document initiating the adjudication must briefly state the following:
(1)

the nature of the proceeding,

(2)

the identity of known parties,

(3)

the jurisdiction under which the adjudication is initiated,

(4)

general allegations of fact and the issues to be adjudicated,

(5)

the legal authority that constitutes a basis for the adjudication, and

(6)

the nature of the relief sought.
Official Comment

1. For purposes of these rules, preparation for an adjudication, investigation, etc., is
not considered part of the adjudication. Many agency rules relating to initiation or
commencement of an adjudication are process-specific. For instance, a complaint,
a review, a charging letter, an order to show cause, or a petition/request for relief
is identified as the particular means of initiating the adjudication. As a
consequence, each agency must decide and designate, as guided by statute or
agency regulations, when the adjudication is “initiated.”
2. Agency rules should specify the means by which an incomplete or inadequate
initiating document may be corrected.
3. Where an adjudication is initiated by the filing of a complaint or similar document,
an agency may wish to consider requiring or permitting the filing of an answer or
other responsive document. Moreover, the agency should consider how service of
the initiating document should occur and on whom the document should be served.
Provisions on the service of the initiating document may be included in this rule
or Rule 151 (Service and Filing of Documents) with a cross-reference to this rule
and Rule 151.
4. Agency rules should be clear as to appropriateness of joinder of parties and claims.
See FRCP 18, 19, 20.
5. Rule 300 (Scheduling, Location, and Notice of Hearing) addresses expedited
proceedings.

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Rule 201. Consolidation or Severance of Adjudication
Consolidation. The Adjudicator may, upon a party’s motion or on her/his own authority,
with reasonable notice and opportunity to object provided to all parties affected,
consolidate any or all matters at issue in two or more adjudications docketed under
these rules where common fact questions or applicable law exist and where such
consolidation would expedite or simplify consideration of the issues and the interests of
justice would be served. Consolidation must not prejudice any rights under these rules
and must not affect the right of any party to raise issues that could have been raised if
consolidation had not occurred. For purposes of this rule, no distinction is made
between joinder and consolidation of adjudications.
Severance. Unless [the Agency or Chief Adjudicator] orders otherwise, the Adjudicator
may by motion or on her/his own authority, for good cause shown, order any
adjudication severed with respect to some or all parties, claims, and issues.
Official Comment
1. This rule deals with consolidation of cases or dockets, not joinder of claims or
parties. See Comment 4, Rule 200 (Initiation of Adjudication). For guidance on
developing procedures for assigning similar cases to the same adjudicator or panel
of adjudicators, see Admin. Conf. of the U.S., Recommendation 2016-2,
Aggregation of Similar Claims in Agency Adjudication, ¶ 4, 81 Fed. 40,260 (June
21, 2016).
2. (to subsection (A)): Each agency should determine the appropriate authority to
order consolidation. In some agencies, a motion for consolidation or severance may
more appropriately be made to the [Chief Adjudicator] or [the Agency].
3. (to subsection (A)): In the case of consolidation, the Adjudicator may require the
parties to file consolidated pleadings and other filings, which may result in
adjudicatory efficiencies.
4. (to subsection (B)): Matters once consolidated may be severed, if appropriate.
When deciding whether to sever a matter, the Adjudicator must consider whether
severance will lead to inefficient, piecemeal adjudication.

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Rule 210. Intervention
Any person who desires to participate in an adjudication as an intervenor must file a
motion to intervene. Unless ordered otherwise by the Adjudicator, a motion to intervene
must be filed not later than __ days after [initiation or notice] of the adjudication.
A motion to intervene must:
(1)

specify the legal basis that supports the motion to intervene;

(2)

set forth the movant’s property, financial, or other interest in the adjudication;

(3)

specify the aspect or aspects of the adjudication as to which the movant wishes
to intervene; and

(4)

state any other facts or reasons why the movant should be permitted to
intervene.

Any party may file a response within __ days after a motion to intervene is filed.
In ruling on a motion to intervene, the Adjudicator must consider the factors in Rule
210(B). The Adjudicator must also specify whether the movant, if granted intervenor
status, has full or limited participatory rights. If the Adjudicator grants limited
participatory rights, the Adjudicator must specify the nature of the limitations.
If the Adjudicator determines that a movant does not meet the requirements under this
rule to intervene, the Adjudicator may view the motion to intervene as if it had been
timely filed as a motion to participate as a limited participant under Rule 211 (Limited
Participation).
Official Comment
1. (to subsection (A)): For filing requirements, see Rule 151 (Service and Filing of
Documents). These rules do not specifically provide for or encourage untimely
motions to intervene. However, the Adjudicator may grant an untimely motion if
the Adjudicator makes an appropriate finding, e.g., the delay was for good cause,
no party will be prejudiced, the public will not be disserved, justice will be served,
and the intervention will contribute to the administrative record. In some
circumstances, a party’s interest in intervention may arise long after the deadline
for intervention. For that reason, the Adjudicator should retain discretion to
permit intervention after the deadline has passed. See Rule 102 (Construction,
Modification, and Waiver of Rules).
2. (to subsection (D)): Threshold substantive requirements for intervention vary by
agency and may be provided by statute, regulation, or other authority. Agency
rules should, as necessary, clarify the substantive requirements for intervention.

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Rule 211. Limited Participation
A person wishing to participate in an adjudication other than as a party must file a
motion to participate as a limited participant. The motion must state concisely the
reasons why the movant wishes to participate in the adjudication and the extent of
participation desired.
Any party may file a response within __ days after a motion to participate as a limited
participant is filed.
The Adjudicator may grant the motion, in whole or part, upon finding that the movant
will contribute materially to the Adjudicator’s ability to make an informed decision in
the adjudication. The Adjudicator must give the movant notice of her/his decision on
the motion.
Official Comment
1. See Rule 100(H) (definition of “limited participant”), Comment 6 to Rule 100
(stating that participation by a “limited participant” is similar in concept to
participation by an amicus curiae), Rule 130 (Rights of [Docketed Party],
Intervenors, and Limited Participants), and Rule 151 (Service and Filing of
Documents).

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Rule 220. Prehearing, Settlement, and Other Conferences
With due regard for the convenience of all parties, the Adjudicator may order the
parties to participate in one or more conferences, before or during the course of the
hearing. Reasonable notice of the time, place, and purpose of the conference(s) must be
given to all parties and, if the Adjudicator has permitted their participation in
prehearing conferences under Rule 211(C), limited participants. The notice must
include a statement that failure to attend any properly noticed conference may lead to
the waiver of any objections or agreements reached at the conference between the other
participants. The conference may be held in the manner the Adjudicator determines is
most efficient and convenient for the parties.
Parties must fully prepare for a useful discussion of all procedural and substantive
issues involved in the conference. Representatives of parties participating in the
conference must have authority to negotiate for their [client/principal] and arrive at
agreed terms at the conference.
Unless a party is excused by the Adjudicator for good cause shown or otherwise reserves
its position as to issues discussed, a party’s failure to participate in a conference, after
being served with reasonable notice of its time and place, may constitute a waiver of all
objections to any agreements reached in the conference and to any order or ruling with
respect to any such agreements.
The Adjudicator may require that any or all of the following be addressed or furnished
before, at, or after, a conference:
(1)

any motions to intervene or to appear as a limited participant;

(2)

any motions for joinder, consolidation, or severance;

(3)

any method(s) of service and filing;

(4)

the identification, simplification, and clarification of the issues;

(5)

any requests for amendment of filed documents;

(6)

any stipulations and admissions of fact and of the content and authenticity of
records;

(7)

the desirability of limiting and grouping witnesses to avoid duplication of
testimony;

(8)

the disclosure of the names of expert and other witnesses and of records or other
physical exhibits that are intended to be introduced into evidence or used as
testimonial aids;

(9)

a recommended schedule for the exchange of final witness lists, summaries of
testimony, prehearing and expert-witness reports, and other records, with due
regard for the convenience of the parties;

(10) any requests for official notice or that particular matters be resolved by reliance
upon [the Agency]’s substantive standards, regulations, and rules;
(11) the utility of alternative dispute resolution under Rule 240 (Settlement and
Alternative Dispute Resolution) and the status of offers of settlement, if any, and
any remaining issues impeding settlement;
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ACUS Model Adjudication Rules (rev. 2018)
(12) the proposed date, time, and place of the hearing, with due regard for the
convenience of all parties;
(13) any motions in limine; and
(14) any such other matters as may aid in the disposition of the adjudication.
A conference may be recorded, if the Adjudicator orders, and made part of the
administrative record.
The Adjudicator may dispose of any procedural matters on which (s)he is authorized to
rule during the course of the conference.
A summary of actions taken at the conference must be made, whether in a written,
audio, or video form. The Adjudicator may elect to make a written statement or order
the parties to jointly prepare one for her/his review.
Official Comment
1. Under the APA (5 U.S.C. § 556(c)(6)–(8)), the Adjudicator is encouraged to hold
conferences for the settlement or simplification of the issues by consent of the
parties or through alternative dispute resolution. In-person conferences may be
important in certain circumstances, but telephonic or video conferences may often
be more efficient.
2. (to subsection (B)): It is best if a party’s representative at an adjudication has
settlement authority. In some cases, however, the availability of the
[client/principal] to respond in real-time to proposed agreements reached at the
conference may suffice.
3. (to subsection (D)): A prehearing conference under this rule may serve similar
purposes to the meet and confer requirements in FRCP 26(f). Agencies may
consider developing forms to guide the parties’ discussion in conferences to plan
for the disclosure and discovery of information during the prehearing stage.
4. (to subsection (D)(11)): This provision is not intended to mirror FRCP 68 (Offer of
Judgment) but instead to inform the Adjudicator of the status of settlement
negotiations.
5. (to subsection (E)): Many agencies do not record conferences. But for agencies that
do, recording includes audio and video recording, stenographic recordation, and
other reasonable means. See Rule 100(M) (definition of “record” (verb)).
6. (to subsection (G)): If a party objects to the administrative record or summary of
actions taken at the conference, that party may file a motion with the Adjudicator.

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Rule 230. General Discovery Provisions
Following the initiation of the adjudication, discovery must begin at, and be completed
by, such time as the Adjudicator orders.
Unless the Adjudicator orders otherwise, parties may obtain discovery by one or more
of the following methods:
(1)

written interrogatories (Rule 233),

(2)

depositions upon oral examination or written questions (Rule 234),

(3)

requests for production of records or things for inspection or other purposes (Rule
235),

(4)

requests for admission (Rule 236), or

(5)

other methods permitted by the Adjudicator.

Unless the Adjudicator orders otherwise, the methods of discovery may be used in any
sequence.
Every discovery request, response, or objection under Rules 230(B)(1), (B)(3), and (B)(4),
must be signed by at least one attorney of record, representative, or the party
personally. Other parties have no duty to act on an unsigned request, response, or
objection. By signing, the attorney or party certifies that, to the best of the signer’s
knowledge, information, and belief, formed after a reasonable inquiry, that the
discovery request, response, or objection is:
(1)

consistent with agency rules and warranted by existing law or by a nonfrivolous
argument for extending, modifying, or reversing existing law, or for establishing
new law;

(2)

not made for an improper purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation; and

(3)

not unreasonable, unduly burdensome, or expensive, considering the needs of the
case, the amount in controversy, and the importance of the issues at stake in the
adjudication.
Official Comment

1. Neither the APA nor the Constitution necessarily requires discovery in an
adjudication. Whether, and the extent to which, discovery is allowed is a matter
for each agency to determine based on its statutes and policies. As a consequence,
if an agency limits or does not permit discovery, it might wish to modify or omit
portions of Rules 230 through 239.
2. Parties should strive to conduct discovery expeditiously and cost effectively.
3. FRCP 26(a) (Required Disclosures), 26(d) (Timing and Sequence), and 26(g)
(Certification) provide the basic pattern for agency rules dealing with the matters
in this rule. See also FRCP 29 (Stipulations About Discovery Procedure).
4. The Adjudicator can control abuse of discovery methods via Rules 237 (Protective
Order Concerning Discovery) and 239 (Sanctions for Failure to Comply with
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ACUS Model Adjudication Rules (rev. 2018)
Discovery Obligations).
5. (to subsection (A)): An agency may wish to establish by rule when discovery begins
and ends rather than leaving this determination to the Adjudicator.
6. (to subsection (B)): An agency may wish to consider whether authority exists for
other specific discovery methods and whether they should be specifically
identified, e.g., entry upon land or other property or physical and mental
examinations.
7. (to subsection (B)(3)): Records include electronically stored information. See Rule
100(L) (definition of “record” (noun)).
8. (to subsection (D)): An agency may wish to add language indicating that
nonspecific objections to discovery are unresponsive.

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Rule 231. Scope of Discovery
Parties may obtain discovery
(1)

regarding any matter, not privileged, that is relevant to the claims or defenses of
the party seeking discovery or the claims or defenses of another party, including
the existence, description, nature, custody, condition, and location of any records,
or other tangible things, and the identity and location of persons having
knowledge of discoverable matter; and

(2)

that is proportional to the needs of the case, considering the monetary and
nonmonetary stakes in the adjudication, the parties’ relative access to
information, the parties’ resources, the importance of the discovery in resolving
the adjudication, and whether the burden or expense of the proposed discovery
outweighs the likely benefit.

Information within the scope of discovery need not be admissible in evidence to be
discoverable.
Official Comment
1. This rule provides a broad scope of discovery, patterned on FRCP 26(b) (Scope of
Discovery). Because agencies’ discovery practices vary, agencies should consider
whether to alter this rule for their adjudications.
2. As revised in 2015, FRCP 26(b)(1) incorporates proportionality into the scope of
discovery. Because attorneys are likely to be familiar with the FRCP and because
attorneys and agencies can turn to federal decisions concerning proportionality for
guidance, this rule incorporates proportionality into the scope of discovery in
administrative adjudication.
3. Prehearing procedures that include requirements for exchange of information may
assist in narrowing the issues for discovery. See Rule 220 (Prehearing, Settlement,
and Other Conferences) and 245 (Prehearing Statement).
4. For the interplay between discovery and the Freedom of Information Act, see
Admin. Conf. of the U.S., Recommendation 83-4, The Use of the Freedom of
Information Act for Discovery Purposes, 48 Fed. Reg. 57,463 (Dec. 30, 1983).

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Rule 232. Supplementation of Discovery Response
A party who has responded to a request for discovery is under a duty to supplement the
response to include information thereafter acquired until the adjudication concludes, as
follows:
A party has a duty to supplement a response in a timely fashion with respect to any
question directly addressed to:
(1)

the identity and location of persons having knowledge of discoverable matters,
and

(2)

the identity of each person expected to be called as an expert witness, the subject
matter on which the person is expected to testify, and the substance of the
testimony.

A party has a duty to amend a response in a timely fashion if the party later obtains
information indicating that:
(1)

the response was incorrect or incomplete when made, or

(2)

the response, though correct when made, is no longer true or the circumstances
are such that a failure to amend is in substance a knowing concealment of
material information.

An additional duty to supplement responses may be imposed by the Adjudicator’s order,
by the parties’ agreement, or through new requests before the hearing for
supplementation of prior responses.
Official Comment
1. See FRCP 26(e), which imposes an obligation to supplement or amend discovery
responses under particular circumstances.

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Rule 233. Interrogatories
Any party may serve upon any other party written interrogatories.
Each interrogatory must be answered separately and fully in writing under oath or
affirmation, unless it is objected to, in which event the reasons for the objection must
be stated in place of an answer. The answers must be signed by the person making
them, and the objections signed by the attorney or other representative making them.
Answers and objections must be made within __ days after the service of the
interrogatories. The interrogating party may move for an order under Rule 239
(Sanctions for Failure to Comply with Discovery Obligations) with respect to any
objection or other failure to answer an interrogatory.
An otherwise proper interrogatory is not necessarily objectionable merely because an
answer to the interrogatory involves an opinion or contention that relates to fact or the
application of law to fact. The Adjudicator may, however, order that such an
interrogatory need not be answered until after designated discovery has been completed
or until a prehearing conference or other later time.
If the answer to an interrogatory may be determined by examining, auditing, compiling,
abstracting, or summarizing a party’s records, and if the burden of deriving or
ascertaining the answer will be substantially the same for either party, the responding
party may answer by:
(1)

specifying the records that must be reviewed, in sufficient detail to enable the
interrogating party to locate and identify them as readily as the responding party
could; and

(2)

giving the interrogating party a reasonable opportunity to examine and audit the
records and to make copies, compilations, abstracts, or summaries.
Official Comment

1. See FRCP 33 (Interrogatories to Parties).
2. (to subsection (A)): If the agency chooses to authorize parties to serve written
interrogatories, the agency should consider whether it wishes to limit the number
of interrogatories that may be propounded.

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Rule 234. Depositions
Notice. Upon written notice to the witness and to all other parties, a party may take
the testimony of a witness by deposition and may request the production of specified
records or materials by the witness at the deposition.
(1)

The notice must state the purpose and general scope of the deposition, the time
and place it is to be taken, the name and address of the person before whom the
deposition is to be taken, the name and address of each witness from whom a
deposition is to be taken, and a specification of the records and materials that
the witness is requested to produce.

(2)

The notice must be not less than __ days before the deposition.

Deposition of an Organization. If the deposition of a public or private corporation,
partnership, association, or governmental agency is noticed, the organization so named
must designate one or more officers, directors, or agents to testify on its behalf, and
may set forth, for each person designated, the matters on which (s)he will testify. The
persons so designated must testify as to matters reasonably known to them.
Procedure at Deposition. Depositions may be taken before any disinterested person
having authority to administer oaths in the place where the deposition is to be taken.
Each witness deposed must be placed under oath or affirmation, and the other parties
must have the right to cross-examine. The witness being deposed may have counsel or
another representative present during the deposition. The questions propounded and
all answers and objections must be reduced to writing, read by or to and subscribed by
the witness, and certified by the person before whom the deposition is taken. The
parties may stipulate, or the Adjudicator may upon motion order, that the testimony at
a deposition be recorded by other than stenographic means. The party noticing the
deposition must make appropriate arrangements for necessary facilities and personnel
and bear the recording expenses.
Motion to Terminate or Limit Examination. During the taking of a deposition, a party
or the witness may request suspension of the deposition on the grounds of bad faith in
the conduct of the examination, oppression of the witness or party, or improper
questioning or conduct. Upon request for suspension, the deposition is adjourned. The
objecting party or witness must immediately move the Adjudicator for a ruling on the
objection(s). The Adjudicator may then limit the scope or manner of taking the
deposition under Rule 237 (Protective Order Concerning Discovery) and provide for
resumption of the deposition.
Foreign-Country Deposition. Where a deposition is taken in a foreign country, it may
be taken before a person having authority to administer oaths in that location, or before
a secretary of an embassy or legation, consul general, consul, vice consul or consular
agent of the United States, or before such other person or officer as may be agreed upon
by the parties by written stipulation filed with the Adjudicator.
Waiver of Deposing Officer’s Disqualification. Objection to taking a deposition because
of the disqualification of the officer before whom it is to be taken is waived unless made
before the taking of the deposition begins or as soon thereafter as the disqualification
becomes known or could have been discovered with reasonable diligence.

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Official Comment
1. As with interrogatories, agencies should determine how many depositions may be
noticed without an order from the Adjudicator. Agencies may also consider
imposing durational limits on noticed depositions. See FRCP 30(d)(1).
2. An agency may wish to consider whether it should promulgate rules on how
depositions may be used in hearings. See FRCP 32 (Using Depositions in Court
Proceedings).
3. (to subsection (A)): When a deposition involves parties or witnesses outside the
continental United States, an agency may consider extending the notice period.
4. (to subsection (A)): For matters related to witness fees for a deponent, see Rule
328 (Witness Fees; Refusal to Testify).
5. (to subsection (A)): If a non-party witness refuses to appear pursuant to a notice,
the [Agency] may issue a subpoena under Rule 171 (Subpoenas).
6.

(to subsection (C)): Unless the parties otherwise agree, the party noticing the
deposition bears the expense of the recording.

7. (to subsection (E)): In foreign countries, depositions may have to be taken pursuant
to applicable treaties and protocols.

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Rule 235. Requests for Production of Records or Things for Inspection or Other
Purposes
Any party may serve on any other party a request to produce or to permit the party, or
someone acting on its behalf, to inspect and copy any specified records, or to inspect and
copy, test, or sample any tangible things, within the scope of discovery and that are in
the possession, custody, or control of the party upon whom the request is served.
If the records to be produced are stored in electronic format, the records must be
produced in the format required by agency rule or regulations. In the absence of general
rules or regulations, the Adjudicator should require the parties to reach an agreement
about the format of the production, e.g., native format, pdf files, or paper versions of
the electronically stored records. If the parties cannot agree on the format of production,
the Adjudicator may order production in a reasonable format.
Any party may serve on any other party a request to permit entry upon designated
property in the possession or control of the party upon whom the request is served for
the purpose of inspection, measuring, surveying, photographing, testing, or sampling
the property or any designated object or area.
Each request must set forth with reasonable particularity the property to be inspected
and must specify a reasonable time, place, and manner for making the inspection and
performing the related acts.
The party upon whom the request is served must respond within __ days after the
service of the request. The response must state, with respect to each item, that
inspection and related activities will be permitted as requested, unless there are
objections, in which case the reasons for each objection must be stated.
Official Comment
1. (to subsections (A) and (B)): See Rule 100(L) (definition of “record” (noun)).
2. (to subsection (B)): In adjudications involving large volumes of electronically
stored information, privilege review is likely to be the greatest cost. See Federal
Rule of Evidence (FRE) 502 for a model that attempts to reduce those costs.

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Rule 236. Requests for Admissions
Any party may serve on any other party a written request to admit the truth of any
matters within the scope of Rule 231(A) that relate to the genuineness of any records
described in the request, facts, the application of law to fact, or opinions about either
facts or the application of law to fact. Copies of records must be served with the request
unless they have been or are otherwise furnished or are known to be, and in the request
are stated as being, in the possession of the other party. Each matter for which an
admission is requested must be separately set forth.
The matter is admitted unless, within __ days after service of the request, or within
such time as the Adjudicator allows, the party to whom the request is directed serves
upon the requesting party a sworn written answer.
If a matter is not admitted, the sworn written answer must specifically:
(1)

deny the relevant matter(s) of which an admission is requested; or

(2)

if not denied, set forth in detail the reasons why the party truthfully can neither
admit nor deny the matter(s) for which an admission is requested; or

(3)

state the objections by which some or all or the matters involved are privileged,
irrelevant, or otherwise improper in whole or part.

A denial under Rule 236(C) must fairly meet the substance of the requested admission,
and when good faith requires that a party qualify her/his answer or deny only part of
the matter of which an admission is requested, (s)he must specify so much of it as is
true and qualify or deny the remainder. An answering party may not give lack of
information or knowledge as a reason for failure to admit or deny under Rule 236(C)
unless (s)he states that (s)he has made reasonable inquiry and that the information
known to, or readily obtainable by, her/him is insufficient.
The party who has requested the admission(s) may move to determine the sufficiency
of the answer(s) or objection(s). Unless the objecting party sustains her/his burden of
showing that the objection is justified, the Adjudicator must order that an answer be
served.
Any matter admitted under this rule is conclusively established unless the Adjudicator
on motion permits withdrawal or amendment of the admission or determines that it is
contrary to law. Any admission made by a party under this rule is for the purpose of
the adjudication. The admission is not an admission by her/him for any other purpose,
and the admission not be used against her/him in any other proceeding.
Official Comment
1. If a party fails to admit the genuineness of a record or the truth of any matter
requested, and if the party requesting the admission thereafter proves the
genuineness of the record or the truth of the matter, agencies may wish to consider
whether it should adopt a rule permitting a party to apply to the Adjudicator for
an order requiring the other party to pay reasonable expenses incurred in making
the proof, including attorney’s fees. Such an order might be appropriate unless the
(1)

the admission sought was objectionable,

(2)

the admission sought was of no substantial importance,
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(3)

the party failing to admit had reasonable ground to believe that (s)he might
prevail on the matter, or

(4)

other good reason existed for the failure to admit.

2. FRCP 36 (Requests for Admission) provides the pattern for this rule.

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Rule 237. Protective Order Concerning Discovery
To protect against the improper use of discovery or the disclosure of confidential
information, the Adjudicator may issue a protective order limiting certain discovery
and providing for the protection of privileged, competitively sensitive, or sensitive
personal information submitted as part of an adjudication.
Upon motion by a party or the person from whom discovery is sought, and for good
cause shown, the Adjudicator may make any order that justice requires to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following limitations:
(1)

the discovery may not be had;

(2)

the discovery may be had only on specified terms and conditions, including a
designation of the time and place;

(3)

the discovery may be had only by a method of discovery other than that selected
by the seeking party;

(4)

particular matters may not be inquired into, or that the scope of the discovery
may be limited to particular matters;

(5)

the discovery may be conducted with no one present except persons designated
by the Adjudicator;

(6)

a trade secret or other confidential research, development, or commercial
information may not be disclosed or may be disclosed only in a designated way
or only to designated persons; and

(7)

the party or the other person from whom discovery is sought may file specified
records or information under seal to be opened as the Adjudicator orders.

The Adjudicator may permit a movant seeking a protective order to make all or part of
the showing of good cause in camera. Upon the movant’s request, the Adjudicator must
make a record of the in camera proceedings under this subsection. If the Adjudicator
enters a protective order, any record of the in camera proceedings of such showing must
be sealed and preserved and made available to [the Agency] or to a court in the event
of appeal.
The Adjudicator may upon motion by a party or by a person from whom discovery is
sought, and for good cause shown,
(1)

restrict or defer disclosure by a party of the name of a witness or, in the case of
an [Agency] witness, any prior statement of the witness, and

(2)

prescribe other appropriate measures to protect a witness.

Any party affected by any such action under Rule 237(D) must have an adequate
opportunity, once learning of the name of the witness and obtaining a narrative
summary of expected testimony, or in the case of a[n] [Agency] witness, any prior
statement or statements, to prepare for cross-examination and for the presentation of
the party’s case.
The Adjudicator may order that evidence be preserved upon a showing that there is
substantial reason to believe that such evidence would not otherwise be available at
the hearing.
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Official Comment
1. FRCP 26(c) (Protective Orders) provides the basic pattern for this rule. See also
Admin. Conf. of the U.S., Recommendation 70-4, Discovery in Agency
Adjudication, 38 Fed. Reg. 19,786 (July 23, 1973).
2. (to subsection (D)): Unless an agency determines as a matter of policy that a need
exists for witness protection, it may determine that this portion of the rule is
unnecessary. See Admin. Conf. of the U.S., Recommendation 70-4, Discovery in
Agency Adjudication, ¶ 8, 38 Fed. Reg. 19,786 (July 23, 1973).

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Rule 238. Motion to Compel Discovery
If a party or other person upon whom a request for discovery has been served fails to
answer a question propounded or to respond adequately, objects to a request, or fails to
produce records or other things for inspection or other purposes, the discovering party
may move the Adjudicator for an order compelling discovery in accordance with the
request. The motion must:
(1)

state the nature of the request,

(2)

set forth the response or objection of the party or other person upon whom the
request was served,

(3)

present arguments supporting the motion, and

(4)

attach copies of all relevant discovery requests and responses.

The Adjudicator may enter an order that does one or more of the following: compel
discovery in accordance with the request, enter a protective order under Rule 237
(Protective Order Concerning Discovery), or issue sanctions under Rule 239 (Sanctions
for Failure to Comply with Discovery Obligations).
Official Comment
1. (to subsection (A)): Responses to a motion to compel are governed by Rule 170
(Motions).

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Rule 239. Sanctions for Failure to Comply with Discovery Obligations
If a party fails to provide or permit discovery, the Adjudicator may take such action as is just,
including the following, at any point in the adjudication:
infer that the admission, testimony, record, or other evidence would have been adverse
to the party;
order that, for the purposes of the adjudication, the matters regarding which the order
was made or any other designated facts will be taken to be established in accordance
with the claim of the party obtaining the order;
order that the party withholding discovery not introduce into evidence or otherwise rely
upon records or other evidence withheld in support of any claim or defense;
order that the party withholding discovery not introduce into evidence, or otherwise
use in the hearing, information obtained in discovery;
order that the party withholding discovery not be heard to object to introduction and
use of secondary evidence to show what the withheld admission, testimony, records, or
other evidence would have shown;
order that a filed record, or part of a filed record, or a motion or other submission by
the party be stricken, or that decision on the filed records be rendered against that
party, or both;
exclude the party or representative from the adjudication;
impose or require other curative measures; and
enter decision(s) against the offending party.
Official Comment
1. See FRCP 37 (Failure to Make Disclosures or to Cooperate in Discovery;
Sanctions).
2. This rule does not limit or expand the Adjudicator’s authority provided under Rule
111 (Adjudicator Authority) or other relevant statutory authority.
3. An agency’s rules and regulations must make clear whether there are procedural
prerequisites to the filing of a motion for sanctions. Some agencies, for example,
may require the filing of a motion to compel prior to the filing of a motion for
sanctions.
4. (to subsection (H)): Curative measures include such actions as extending the
discovery period for the party denied discovery, ordering one or more additional
depositions to remedy the failure to produce, awarding attorney’s fees and costs to
the movant, and ordering the producing party to conduct another search of its
electronically stored information, including backup systems.

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Rule 240. Settlement and Alternative Dispute Resolution
Availability. The parties must have the opportunity to submit a settlement to the
Adjudicator or submit a request for alternative dispute resolution under Rule 240(D).
Form. A settlement must be in the form of a proposed settlement agreement, a consent
order, and a motion for its entry, which must include the reasons it should be accepted
and must be signed by the consenting parties or their authorized representatives.
Content of Settlement Agreement. The proposed settlement agreement must contain the
following:
(1)

an admission of all jurisdictional facts;

(2)

an express waiver of further procedural steps before the Adjudicator or [the
Agency], of any right to challenge or contest the validity of the order entered into
in accordance with the agreement, and of all rights to seek judicial review or
otherwise to contest the validity of the consent order;

(3)

a statement that the order will have the same force and effect as an order made
after full hearing; and

(4)

a statement that matters in the parties’ filings required to be adjudicated, if any,
have been resolved by the proposed settlement agreement and consent order.

Settlement Adjudicator; Alternative Dispute Resolution.
(1)

The Adjudicator, upon motion of a party or upon her/his own authority, may
request that the [Chief Adjudicator] appoint a Settlement Adjudicator to conduct
settlement negotiations or remit the adjudication to alternative dispute
resolution as [the Agency] may provide or to which the parties may agree. The
order appointing the Settlement Adjudicator may confine the scope of settlement
negotiations to specified issues. The order must direct the Settlement
Adjudicator to report to the [Chief Adjudicator] at specified times.

(2)

If a Settlement Adjudicator is appointed, (s)he must:

(a)

convene and preside over conferences and settlement negotiations between
the parties and assess the practicalities of a potential settlement,

(b)

report to the [Chief Adjudicator] and Adjudicator describing the status of
the settlement negotiations and recommending the termination or
continuation of the settlement negotiations, and

(c)

not discuss the merits of the case with the [Adjudicator or any other person
who does not have a need to know under agency rules], and not appear as
a witness in the case.

(3)

Settlement negotiations conducted by the Settlement Adjudicator must
terminate upon the order of the [Chief Adjudicator] issued after consultation
with the Settlement Adjudicator.

(4)

Notwithstanding the provisions of Rule 400 (Interlocutory Review), no decision
concerning the appointment of a Settlement Adjudicator or the termination of
the settlement negotiation is subject to review or rehearing by the Adjudicator
or [the Agency].
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The Adjudicator (or Settlement Adjudicator) may require that the attorney or other
representative of each party be present and that the parties, or agents having full
settlement authority, also be present or available by telephone.
None of the following is admissible in evidence—on behalf of any party—either to prove
or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction:
(1)

furnishing, promising, or offering (or accepting, promising to accept, or offering
to accept) a valuable consideration in compromising or attempting to compromise
the claim; or

(2)

conduct or a statement made during compromise negotiations about the claim.

The Adjudicator (or Settlement Adjudicator) may impose on the parties and persons
having an interest in the outcome of the Adjudication such other and additional
requirements as are necessary for the efficient resolution of the case, consistent with
Agency precedent.
The conduct of settlement negotiations must not unduly delay the adjudication.
Official Comment
1. See generally Administrative Dispute Resolution Act of 1990, 5 U.S.C. § 571 et
seq.; Admin. Conf. of the U.S., Recommendation 88-5, Agency Use of Settlement
Judges, 53 Fed. Reg. 26,030 (July 11, 1988).
2. Agencies may wish to include in this rule a requirement that the Adjudicator or
Settlement Adjudicator promptly notify [the Agency] of all approved settlements
so that [the Agency] may have an opportunity to review the settlement or allow it
to become final in the absence of such review.
3. (to subsection (D)): See Rule 100(N) (definition of “Settlement Adjudicator”).
4. (to subsection (D)(2)(c)): This confidentiality provision should not prevent
adjudicators within the same office from engaging in discussions of settlement and
mediation techniques that may aid settlement adjudicators in resolving particular
cases and assist in an adjudicator’s professional development. See Admin. Conf. of
the U.S., Recommendation 88-5, Agency Use of Settlement Judges, ¶ D(4)(b), 53
Fed. Reg. 26,030 (July 11, 1988). Consistent with Rule 240(d)(2)(C), however,
agency officials, parties, and others involved in the adjudication should not expose
the Adjudicator to alternative-dispute-resolution discussions in matters before
her/him.
5. (to subsection (F)): See FRE 408(a) (prohibited uses).
6. These rules do not address how agencies implement the Equal Access to Justice
Act. Some agencies have specific regulations on point. For guidance on
implementation of the Equal Access to Justice Act, see Admin. Conf. of the U.S.
(Office of the Chairman), Model Rules for Implementation of the Equal Access to
Justice Act, 51 Fed. Reg. 16659 (May 6, 1986).

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Rule 245. Prehearing Statement
The Adjudicator may require all parties to prepare prehearing statement(s) at a time
and in the manner to be established by the Adjudicator.
Prehearing statement(s) must, unless the Adjudicator orders otherwise, set forth
briefly the following matters:
(1)

issues involved in the adjudication;

(2)

stipulated facts together with a statement that the party (or parties) have
communicated or conferred in a good-faith effort to reach stipulations to the
fullest extent possible;

(3)

facts in dispute;

(4)

a list of witnesses, including expert witnesses, and exhibits to be presented
during the hearing, including any stipulations relating to authenticity of records
and expert witnesses;

(5)

a brief statement of applicable law;

(6)

the proposed legal conclusions to be drawn and remedies sought; and

(7)

estimated time required for presentation of the party’s (or parties’) case.

Failure to file a prehearing statement, unless a waiver has been granted by the
Adjudicator, may result in dismissal of a party from the adjudication, dismissal of a
document initiating the adjudication (if any), entry of decision against the party, or
imposition of such other sanctions or curative measures as may be appropriate in the
circumstances.
Official Comment
1. This rule was originally promulgated as Rule 220. As part of the 2018 revisions, it
was promulgated as Rule 245 to reflect that the prehearing statement will usually
follow any permissible discovery.
2. Prehearing statements may vary by agency and may include, e.g., names of
witnesses, brief descriptions of intended testimony, and copies of exhibits, if
available. Prehearing statements may be inappropriate in some types of
adjudications.
3. (to subsection (C)): This authority does not limit the Adjudicator’s authority under
Rule 111 (Adjudicator Authority).
4. (to subsection (C)): In aggregate adjudications, in which some affected parties may
not be represented by counsel, sanctions may be inappropriate.

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Rule 250. Summary Decision
Any party may, after commencement of the adjudication and at least __ days before the
date fixed for the hearing, move with or without supporting affidavits for full or partial
summary decision in her/his favor. Any other party may, within __ days after service of
the motion, serve opposing affidavits or counter-move for full or partial summary
decision. The Adjudicator has discretion to set the matter for argument and call for the
submission of briefs.
Affidavits, if any, must set forth such facts as would be admissible in evidence and must
show affirmatively that the affiant is competent to testify to the matters stated therein.
When a motion for summary decision is made and supported as provided in this rule, a
party opposing the motion must set forth specific facts, by affidavits or as otherwise
provided in this rule, showing that there is a genuine issue of material fact for the
hearing. If a party opposing the motion declares via affidavit the reasons why that party
cannot present, by affidavit or other evidence, facts essential to justify her/his
opposition, the Adjudicator may deny the motion for summary decision or may order a
continuance to permit affidavits or other evidence to be obtained or may make such
other order as is just.
The Adjudicator may grant summary decision if the filed documents, affidavits,
material obtained by discovery or otherwise, or matters officially noted show that there
is no genuine issue as to any material fact and that a party is entitled to a summary
decision.
A ruling on all or any part of a motion for summary decision is not subject to
interlocutory review, except to the extent such a ruling qualifies for interlocutory
review as provided in Rule 400 (Interlocutory Review).
Official Comment
1. These rules do not attempt to catalogue the various types of motions used in
federal administrative adjudication. Accordingly, nothing in this rule prohibits
summary decision whenever a party is entitled to prevail as a matter of law,
whether based on the legal insufficiency of the allegations in the document
initiating the adjudication, the absence of genuine issues of material fact, or
otherwise.
2. This rule operates in conjunction with Rule 170 (Motions).
3. See Admin. Conf. of the U.S., Recommendation 70-3, Summary Decision in Agency
Adjudication, 38 Fed. Reg. 19,785 (July 23, 1973).
4. Sworn declarations made under penalty of perjury can be substituted for an
affidavit under appropriate circumstances. See Comment 8 to Rule 150 (Form and
Content of Filed Documents; Privacy Protections for Filings).

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ACUS Model Adjudication Rules (rev. 2018)
THE HEARING
Rule 300. Scheduling, Location, and Notice of Hearing
Unless [the Agency] provides otherwise, the Adjudicator is responsible for scheduling
the hearing with due regard for the convenience and expense to the parties, their
representatives, and witnesses, and the availability of suitable hearing facilities and
other relevant factors. The Adjudicator must provide written notice to all parties of the
time, place, and date for the hearing, the legal authority under which the hearing is to
be held, and the matters at issue, at least __ days before the date set for hearing. The
hearing must be open to the public, unless the Adjudicator orders otherwise.
A request for a change in the time, place, or date of the hearing may be entertained by
the Adjudicator. A hearing may be postponed by the Adjudicator for good cause, upon
motion of a party or upon her/his own authority. A motion to postpone a hearing must
be received at least __ days prior to the date set for hearing. A motion for postponement
received less than __ days prior to the scheduled hearing will generally be denied unless
good cause is shown for late filing.
At any time after commencement of an adjudication, any party may move to expedite
the scheduling of a proceeding consistent with an agency’s expedited hearing
procedures. A party moving to expedite a proceeding must:
(1)

describe the circumstances justifying expedition, and

(2)

include affidavits to support any factual representations with the motion.

Following timely receipt of the motion and any responses, the Adjudicator may
expedite pleading or filing schedules, prehearing conferences, and the hearing, as
appropriate.
Official Comment
1. (to subsection (A)): Some agencies permit automated scheduling or allow the time,
place, and date of the hearing to be set forth in a complaint or other charging
document. Whenever practicable, a notice of hearing should indicate that the
hearing will be conducted in one continuous session or a series of consecutive
sessions. The Adjudicator, however, may at any time continue the hearing to a
future date and may arrange to conduct the hearing in more than one location.
2. (to subsection (B)): In exercising discretion to change the date, place, or time of the
hearing, the Adjudicator should give due consideration to the same factors
considered in initially scheduling the hearing. A change in the time, place, or date
of a hearing might be appropriate to prevent substantial delay, expense, or
detriment to the public interest, or to avoid undue prejudice to a party.

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Rule 301. Type or Manner of Hearings
The Adjudicator has discretion, as consistent with agency policy and practice, to determine
what type or manner of hearing is appropriate, including in-person hearings or remote
hearings conducted by video conference or teleconference.
Official Comment
1. Given technological innovations, agencies should consider new forms of hearings
after due consideration of such factors as costs, availability of parties and
witnesses to travel to the hearing site, and the advantages or disadvantages of
using certain technology. Moreover, agencies should consider providing guidance
to adjudicators on the type and manner of hearings to promote uniformity among
adjudicators and transparency for parties.
2. ACUS has issued two recommendations on the topic of video
hearings: Recommendation 2011-4, Agency Use of Video Hearings: Best Practices
and Possibilities For Expansion, 76 Fed. Reg. 48,795 (Aug. 9, 2011), and
Recommendation 2014-7, Best Practices for Using Video Teleconferencing
Hearings, 79 Fed. Reg. 75,119 (Dec. 17, 2014).

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Rule 302. Sequestration of Witnesses
The Adjudicator, upon motion of a party or upon her/his own authority, may sequester
witnesses to ensure that their testimony will not be influenced by the testimony of other
witnesses.
As part of her/his sequestration order, the Adjudicator must notify the affected
witnesses and parties of the terms of the sequestration.
Official Comment
1. The National Labor Relations Board (NLRB) set forth a model sequestration rule
in Greyhound Lines, 319 N.L.R.B. 554 (1995); see also FRCP 615 (Excluding
Witnesses). Agencies should decide the extent to which witnesses should be
sequestered or excluded in their adjudications. See Rule 320, Comment 2.

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Rule 310. Failure of Party to Appear
The Adjudicator may enter summary decision against a party for failure to appear at a
scheduled hearing unless that party shows good cause for the failure to appear.
Official Comment
1. A summary decision for failure to appear at a scheduled hearing is a matter within
the discretion of the Adjudicator.
2. It is best practice to explain potential sanctions for failure to appear at the
scheduled hearing in the notice of hearing.

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Rule 320. Admissibility of Evidence
A party is entitled to present her/his case or defense by any evidence, to submit rebuttal
evidence, and to conduct such cross-examination as may be required for a full and true
disclosure of the facts. Any evidence may be received, but the Adjudicator must provide for
the exclusion of irrelevant, immaterial, privileged, or unduly repetitious evidence.
Official Comment
1. Congress has granted agencies broad discretion to promulgate procedural rules
governing adjudications. See 5 U.S.C. § 559 (“Except as otherwise required by law,
requirements or privileges relating to evidence or procedure apply equally to
agencies and persons. Each agency is granted the authority necessary to comply
with the requirements of this subchapter through the issuance of rules or
otherwise.”).
2. In 1986, ACUS adopted Recommendation 86-2, Use of Federal Rules of Evidence
in Federal Agency Adjudications, 51 Fed. Reg. 25,642 (July 16, 1986): “Congress
should not require agencies to apply the Federal Rules of Evidence, with or without
the qualification ‘so far as practicable,’ to limit the discretion of presiding officers
to admit evidence in formal adjudications.” Id. ¶ 1. The approach of this rule is
also consistent with the position of both the American Bar Association (1992) and
the Federal Bar Association (1991). See AM. BAR ASS’N, 117 ANNUAL REP’T at
1051–53 (Feb. 3 & 4, 1992); Fed. Bar Ass’n Resolution 91.5: Administrative Agency
Adoption of Uniform Rules of Evidence Patterned After Federal Rules of Evidence
(Apr. 13, 1991). They recommended that agencies be encouraged to examine
whether and to what extent rules patterned after the FRE might be appropriate
for agency adjudication. Some agencies have found it useful, or have been required
by statute (e.g., 29 U.S.C. § 160(b)), to apply the FRE or a modified version of the
FRE (see, e.g., 24 C.F.R. § 26.24 et seq. (HUD) and 29 C.F.R. § 18.101 et seq.
(DOL)). Via procedural rules or similar transparent guidance, agencies should
provide a comprehensive account of the evidentiary rules that apply in
adjudication and inform the public to the extent, if any, that the FRE apply to its
adjudications. See Admin. Conf. of the U.S., Recommendation 2016-4, Evidentiary
Hearings Not Required by the Administrative Procedure Act, ¶ 23, 81 Fed. Reg.
94,312 (Dec. 23, 2016) (providing recommendation concerning evidentiary rules).
3. This rule mostly restates the APA standard on admissibility (5 U.S.C. § 556(d)),
but it, like the original 1993 rule, also permits the exclusion of privileged
information.
4. The APA permits agencies, when “determining claims for money or benefits or
applications for initial licenses,” to “adopt procedures for the submission of all or
part of the evidence in written form” as long as the parties are not prejudiced
thereby. 5 U.S.C. § 556(d).
5. Recent revisions to FRE 502 address disclosure of a communication or
information covered by the attorney-client privilege or work-product protection,
as defined in the rule, in a federal proceeding or to a federal office or agency, and
the scope of the waiver in federal or state proceedings.
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Rule 321. Objections to Evidence and Offers of Proof
A party must state briefly the grounds for objection to the admission or exclusion of
evidence. Rulings on all objections must appear in the administrative record. Only
objections made before the Adjudicator may be raised on review.
Whenever evidence is excluded from the hearing, the party offering such evidence may
make an offer of proof, which must be included in the administrative record for purposes
of administrative or judicial review. The Adjudicator retains the discretion to determine
the method or manner of the offer of proof.
Official Comment
1. Rejected exhibits must be adequately marked for identification and placed in a
separate file for a reviewing authority’s consideration. See Rule 327(B) (Exhibits
and Records).

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Rule 322. Confidential, Sensitive, and Privileged Information
Unless the Adjudicator orders otherwise, the parties must redact all evidence proffered
for admission in the same manner as required under Rule 150 (Form and Content of
Filed Documents; Privacy Protections for Filings). The provisions of Rule 150
concerning filing under seal, waiver, and the application of redaction requirements to
additional information apply to proffered evidence for admission.
Nothing in this rule limits the discretion of the Adjudicator to give effect to applicable
privileges or permit full disclosure of the evidence without redaction as necessary for
fair consideration of the evidence.
Official Comment
1. For agencies that deal with classified information, additional limitations may be
required, such as in camera proceedings, obtaining security clearances, or giving
counsel for a party access to classified information and records subject to
assurances against further disclosure.
2. This rule applies in tandem with Rules 150(C) (Form and Content of Filed
Documents; Privacy Protections for Filings) and 237 (Protective Orders
Concerning Discovery). Agencies should consider whether good reason exists in
their particular hearings for treating filings differently from proffered evidence.
Likewise, the Adjudicator should consider how any prior orders governing
discovery under Rule 237 apply, if at all, to matters at the hearing.

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Rule 323. Official Notice
The Adjudicator may officially notice such matters as might be judicially noticed by courts or
such facts within the specialized knowledge of [the Agency] as an expert body. When a
decision or part thereof rests on the official notice of a material fact not appearing in the
evidence in the administrative record, any party, upon timely request, must have an
opportunity to show the contrary. The fact of official notice, if taken with or without a party’s
challenge, must be stated in the decision.
Official Comment
1. The APA (5 U.S.C. § 556(e)) provides, “When an agency decision rests on official
notice of a material fact not appearing in the evidence in the record, the party is
entitled, on timely request, to an opportunity to show the contrary.” See also, e.g.,
16 C.F.R. 3.43(f) (FTC) (“If official notice is requested or is taken of a material fact
not appearing in the evidence in the record, the parties, upon timely request, shall
be afforded an opportunity to disprove such noticed fact.”).
2. Under case law, an agency under some circumstances may be permitted to look
beyond the facts developed for the administrative record, e.g., to facts developed
in other cases. See United States v. Pierce Auto Freight Lines, 327 U.S. 515, 529–
30 (1946) (citing additional cases).

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Rule 324. Evidentiary Stipulations
The parties may stipulate in writing at any stage of the adjudication, or agree orally at
the hearing, to any or all pertinent facts in the adjudication, unless the stipulation is
determined by the Adjudicator to be contrary to law. Stipulations may be received in
evidence before or at the hearing, and when received in evidence, will be binding on the
parties to the stipulation. The Adjudicator may, for good cause shown, permit a party
to introduce facts or argue points of law outside the scope of the facts and law outlined
or stipulated to in prehearing statements.
Parties waive their right to a hearing on any stipulated fact(s) and their right to any
hearing whatsoever if they stipulate all pertinent facts.

Official Comment
1. It is desirable that facts be stipulated whenever practicable.

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Rule 325. Written Testimony
The Adjudicator may accept and enter into the administrative record direct testimony of
witnesses made by verified written statement rather than by oral presentation at the
hearing. Witnesses whose testimony is presented by verified written statement must be
available for cross-examination as may be required.
Official Comment
1. Agencies may permit or require written testimony only as the APA, other statutes,
and agency rules allow. The APA (5 U.S.C. § 556(d)), provides that “[i]n rule
making [not covered by these rules] or determining claims for money or benefits
or applications for initial licenses an agency may, when a party will not be
prejudiced thereby, adopt procedures for the submission of all or part of the
evidence in written form.” It is important to note, however, that not all agencies
allow written testimony in adjudication. Cf., e.g., Shamokin Filler Co., 34
FMSHRC 1897, 1909 (2012) (explaining why 5 U.S.C. § 556(d) and 29 C.F.R.
§ 2700.63(b) give parties the right to present oral direct testimony at a hearing
and concluding that the ALJ erred in requiring advanced written direct
testimony); see also 29 C.F.R. § 2200.69 (providing that witnesses in Occupational
Safety and Health Review Commission adjudications must be examined orally
under oath or affirmation).
2. This rule does not preclude a witness from correcting or amending her/his written
statement.

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Rule 326. Oaths and Oral Examination
Witnesses must testify under oath or affirmation. Interpreters must also ascribe by
oath or affirmation to the accuracy of the translation.
To the extent that cross-examination is permissible or required under Rule 320
(Admissibility of Evidence) or other law, cross-examination is limited to the scope of the
direct examination and, subject to the Adjudicator’s discretion, may be limited to
witnesses whose testimony is adverse to the party desiring to cross-examine. The
Adjudicator has discretion to permit inquiry into additional matters as if on direct
examination, particularly when it would obviate the need to recall the witness.
Official Comment
1. Agencies should consider application of FRE 611 (Mode and Order of Examining
Witnesses and Presenting Evidence).
2. This rule is consistent with the scope of cross-examination under the APA. See 5
U.S.C. § 556(d) (“A party is entitled . . . to conduct such cross-examination as may
be required for a full and true disclosure of the facts.”). Accord Rule 320
(Admissibility of Evidence).

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Rule 327. Exhibits and Records
All exhibits offered in evidence by a party must be marked for identification before or
during the hearing and must be numbered and marked with a designation identifying
the sponsor. The original of each exhibit offered in evidence or marked for identification
must be filed and retained in the administrative record of the adjudication, unless the
Adjudicator permits the substitution of copies for the original record. The sponsoring
party must supply copies of each exhibit to the Adjudicator and to each other party. A
party may withdraw an exhibit from the administrative record during the hearing or
at the conclusion of the hearing only with the Adjudicator’s permission.
All exhibits offered but denied admission into evidence, except exhibits denied
admission because of excessive size, weight, or other characteristic that prohibits
convenient transportation or storage, must be placed in a separate file designated for
rejected exhibits. A party may offer into evidence photographs, models, or other
representations of any exhibit denied admission because of excessive size, weight, or
other characteristic that prohibits convenient transportation or storage
Unless the Adjudicator orders otherwise, proposed exhibits to be offered upon direct
examination must be exchanged __ days prior to the hearing. Proposed exhibits not so
exchanged in accordance with the Adjudicator’s order may be denied admission as
evidence. A party concedes the authenticity of all exhibits submitted or exchanged prior
to the hearing, under the Adjudicator’s direction, unless that party files and serves on
all parties written objection, or unless good cause is shown for failure to file and serve
such written objection.

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Rule 328. Witness Fees; Refusal to Testify
Fees. Witnesses, other than employees of the Agency or employees otherwise
compensated by another agency or employer, summoned in an adjudication are entitled
to the same fees and mileage as witnesses in the courts of the United States, and
witnesses whose depositions are taken and the persons taking the same will severally
be entitled to the same fees as are paid for like services in the courts of the United
States. Witness fees and mileage must be paid by the party at whose instance the
witness appears, whether at a deposition or hearing.
Failure or Refusal to Testify. If a witness fails or refuses to testify, the failure or refusal
to answer any question that the Adjudicator deems proper may be grounds for striking
all or part of the testimony that the witness may have given, or for any other action
that the Adjudicator deems appropriate.
Official Comment
1. For matters related to depositions, see Rule 234 (Depositions).
2. (to subsection (A)): See Rule 100(D) (definition of “agency”).
3. (to subsection (A)): Witness fees and allowances in administrative adjudications
are governed by 5 U.S.C. § 503. For allowances in judicial proceedings, see 28
U.S.C. § 1821.
4. (to subsection (B)): In determining whether a question is proper under this rule,
the Adjudicator should consider that a witness may assert the Fifth Amendment
privilege against self-incrimination “in any proceeding, civil or criminal,
administrative or judicial, investigatory or adjudicatory.” Maness v. Meyers, 419
U.S. 449, 464 (1975) (quoting Kastigar v. United States, 406 U.S. 441, 444 (1972)).

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Rule 329. Burden of Going Forward with Evidence
The proponent of a factual proposition has the burden of introducing evidence to support that
proposition.
Official Comment
1. The burden-of-proof provision of the APA is 5 U.S.C. § 556(d), which states:
“Except as otherwise provided by statute, the proponent of a rule or order has the
burden of proof.” The ultimate burden of persuasion in any case depends on the
substantive statute involved, and the burden of persuasion may be allocated
among parties or shift from one party to another, depending on the issue. As a
consequence, this rule only addresses the initial burden of going forward with the
evidence.

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Rule 330. Closing of the Administrative Record
At the conclusion of the hearing, the Adjudicator, unless ordering otherwise, must close the
administrative record. Once the administrative record is closed, no additional evidence will
be accepted except upon a showing that the evidence is material and that there was good
cause for failure to produce it prior to closing the administrative record.
Official Comment
1. In particular categories of adjudications, such as those in which both parties may
not be represented by counsel, an agency may wish to accord broader discretion to
the Adjudicator to delay closing the administrative record or to admit additional
evidence after its closure. See Admin. Conf. of the U.S., Recommendation 90-4,
Social Security Disability Program Appeals Process: Supplementary
Recommendation, ¶ 4, 55 Fed. Reg. 34,213 (Aug. 22, 1990).
2. See Rule 100(C) (definition of “administrative record”). The closing of the
administrative record after the hearing does not preclude the Adjudicator or
agency from supplementing the administrative record with filings, decisions,
orders, and materials from any administrative appellate proceedings that occur
after the closing of the administrative record under this rule. The purpose of this
rule is to limit those materials upon which the Adjudicator can rely in deciding the
matter.

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Rule 340. Proposed Findings; Closing Arguments; Briefs
Before the Adjudicator’s decision and upon such terms that the Adjudicator may find
reasonable, any party is entitled to file a brief, and propose findings of fact, conclusions
of law, and orders. The Adjudicator has discretion to hear oral argument. Any brief,
proposed findings of fact, conclusions of law, orders, and any oral argument must be
included as part of the administrative record.
When providing oral decisions from the bench, the Adjudicator may permit or preclude
the filing of briefs.
Official Comment
1. The APA (5 U.S.C. § 557(c)) provides, “Before a recommended, initial, or tentative
decision, or a decision on agency review of the decision of subordinate employees,
the parties are entitled to a reasonable opportunity to submit for the consideration
of the employees participating in the decisions—
(1)

proposed findings and conclusions, or

(2)

exceptions to the decisions or recommended decisions of subordinate employees
or to tentative agency decisions, and

(3)

supporting reasons for the exceptions or proposed findings or conclusions.

The record shall show the ruling on each finding, conclusion, or exception presented.
All decisions, including initial, recommended, and tentative decisions, are part of the
record and shall include a statement of—
(1)

findings and conclusions, and the reasons or basis therefor, on all the material
issues of fact, law, or discretion presented on the record; and

(2)

the appropriate rule, order, sanction, relief, or denial thereof.”

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Rule 350. Record of Hearing
All hearings must be recorded and made part of the administrative record. Exhibits
admitted into evidence, or exhibits proffered and rejected by the Adjudicator and placed
in a rejected exhibit file, and evidentiary stipulations at the hearing, become part of the
administrative record.
The Adjudicator must reflect in the administrative record any approved correction to
the transcript.
Official Comment
1. If a transcript is prepared, generally it must be made available to any person at a
cost not to exceed the actual cost of duplication. See 5 U.S.C. App. 2, Federal
Advisory Committee Act, § 11 (Availability of transcripts; “agency proceeding”):
(1)

Except where prohibited by contractual agreements entered into prior to the
effective date of this Act, agencies and advisory committees shall make available
to any person, at actual cost of duplication, copies of transcripts of agency
proceedings or advisory committee meetings.

(2)

As used in this section “agency proceeding” means any proceeding as defined in
[5 U.S.C. § 551(12)].

2. See also 5 U.S.C. § 555(c): “A person compelled to submit data or evidence is
entitled to retain or, on payment of lawfully prescribed costs, procure a copy or
transcript thereof, except that in a nonpublic investigatory proceeding the witness
may for good cause be limited to inspection of the official transcript of his
testimony.”
3. See Rule 100(C) (definition of “administrative record”).

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Rule 360. Decision of Adjudicator
The Adjudicator must prepare a decision containing:
findings of fact, conclusions of law, and discretionary determinations based on
consideration of the whole administrative record;
an order as to the final disposition of the case, including relief, if appropriate;
the date upon which the decision will become effective (e.g., __ days after issuance); and
a statement of further right to review.
Official Comment
1. See 5 U.S.C. §§ 556(d) & (e), 557(c)(3)(A).

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Rule 370. Reopening of Case
A decision that has otherwise become final may be reopened:
(1)

upon the Adjudicator’s order, within __ days of the notice of the decision to correct
a clerical error or for good cause shown;

(2)

upon a party’s motion to reopen for good cause filed within __ days of the notice
of the decision; or

(3)

upon the Adjudicator’s order at any time if there is evidence that the hearing
decision may have been procured by fraud or similar fault.

“Good cause” for reopening requires both
(1)

(2)

new and material evidence that was not

(a)

available to the proponent and

(b)

actually or constructively known by the proponent, and

an obvious error was made at the time of the decision.

For purposes of reopening a case, evidence is “new and material” when:
(1)

the evidence is not part of the existing administrative record;

(2)

the evidence is relevant to issues adjudicated in the prior decision; and

(3)

the evidence shows that the decision may be contrary to the weight of the
evidence, whether or not a different conclusion is ultimately reached after
reopening.

If the Adjudicator determines that good cause exists to reopen the decision, Rule 320
(Admissibility of Evidence) governs the admissibility of new evidence.
Official Comment
1. Agencies should consult their enabling legislation to determine whether and under
what circumstances reopening may be possible.
2. If a party is dissatisfied with the Adjudicator’s decision but does not seek review
of that decision within the required time under Rule 440 (Final Decision), the
decision becomes final and no longer subject to review. However, under certain
circumstances, the Adjudicator may reopen and revise a decision that is otherwise
final.
3. A change in legal interpretation or subsequent administrative ruling which might
have resulted in a different result if it had been in effect at the time of the decision
does not constitute good cause unless the interpretation or ruling clearly
contemplated retroactive effect.
4. Motions for reconsideration may be appropriate when the case has not been closed.
See Rules 170 (Motions) & 450 (Reconsideration). But once the case is closed, this
rule governs whether the case should be reopened.

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ADMINISTRATIVE REVIEW
Rule 400. Interlocutory Review
(A) Interlocutory review should be handled on an expedited basis.
(B) A party that seeks interlocutory review of an adjudicator’s decision, or part
thereof, must file a petition with the Adjudicator. The petition must:
(1)

be filed with the Adjudicator within __ days after the Adjudicator’s decision;

(2)

designate the decision (or part thereof) from which review is sought; and

(3)

set forth the grounds on which review is sought, including all applicable points
of fact and law, and the reasons why interlocutory review is warranted under
Rule 400(D).

(C) Any party that opposes the petition may file a response within __ days after
service of the petition.
(D) The Adjudicator must certify the ruling for interlocutory review by [the Agency]
if the Adjudicator determines that:
(1)

the decision involves a controlling question of law about which there is
substantial ground for difference of opinion; and

(2)

an immediate review will materially advance the completion of the adjudication,
or subsequent review by [the Agency] will provide an inadequate remedy.

(E) Within __ days after the Adjudicator’s ruling on a petition to certify a decision under
Rule 400(B), the petitioner may apply to [the Agency], whether or not the Adjudicator
has certified the decision under Rule 400(D), to allow the interlocutory review sought
in the petition. The application must reference the petition filed under Rule 400(B),
all filings made with the Adjudicator in support of or in opposition to the petition,
and the Adjudicator’s decision on the petition. The application must not otherwise set
forth the grounds on which interlocutory review is sought or contain any argument,
unless [the Agency] orders otherwise. No response to any application made under this
subsection may be permitted unless [the Agency] orders otherwise.
(F) Any petition or application filed under this rule may be summarily dismissed
whenever the Adjudicator or [the Agency], respectively, determines that review is not
appropriate.
(G) [The Agency] may, on its own motion, certify an order for interlocutory review under
this rule in its discretion.
(H) If [the Agency] decides to allow interlocutory review, [the Agency] must decide the
matter on the basis of the administrative record and briefs submitted to the
Adjudicator, without further briefs or oral argument, unless [the Agency] orders
otherwise.

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(I) The filing of an application for interlocutory review and the certification of a ruling
for interlocutory review does not stay proceedings before the Adjudicator unless (s)he
or [the Agency] so orders.
Official Comment
1. An agency may wish to consider whether to provide interlocutory review in
particular situations (e.g., an adverse ruling on a motion for the Adjudicator’s
recusal, a ruling suspending an attorney from participation in the adjudication, a
ruling denying or terminating intervention or limited participation, or a ruling
requiring the production of information claimed to be privileged) even if the
Adjudicator has denied the petition. In such instances, the agency may also wish
to consider whether to provide by rule that if it does not reverse the Adjudicator’s
denial of the application for interlocutory review within __ days, the Adjudicator’s
ruling is affirmed. See Admin. Conf. of the U.S., Recommendation 71-1,
Interlocutory Appeal Procedures, 38 Fed. Reg. 19,787 (July 23, 1973).
2. The approach taken in this rule is largely consistent with ACUS Recommendation
71-1. The rule’s two-step process—Adjudicator certifies decision, Agency then
decides whether to take review—tracks the general statute governing
interlocutory appeals of orders of the federal district courts. See 28 U.S.C.
§ 1292(b). Specific types of district-court orders may be subject to other rules. See,
e.g., Fed. R. Civ. P. 23(f) (allowing a court of appeals to permit an appeal of a
district-court order granting or denying a class-action certification whether or not
the district court has certified the order for appeal). The rule departs from
§ 1292(b) in allowing an Agency to hear interlocutory review even if the
Adjudicator does not certify the decision for review under Rule 400(D). It is
anticipated that interlocutory review in the absence of certification will be
permitted only in the narrowest circumstances.

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Rule 410. Petitions for Review
Any party may file with [the Agency] a petition for review within __ days after issuance
of the Adjudicator’s decision. Two or more parties may join in the same petition.
A petition for review, no more than __ words, must be filed only upon one or more of the
following grounds:
(1)

a finding of material fact is not supported by substantial evidence;

(2)

a necessary legal conclusion is erroneous;

(3)

the decision is contrary to law or to the duly promulgated rules or decisions of
[the Agency];

(4)

a substantial question of law, policy, or discretion is involved; or

(5)

a prejudicial error of procedure was committed.

Each issue must be plainly and concisely stated and must be supported by citations to
the administrative record when assignments of error are based on the administrative
record, and by statutes, regulations, cases, or other principal authorities relied upon.
Except for good cause shown, no assignment of error by any party may rely on any
question of fact or law not presented to the Adjudicator.
A statement in opposition to the petition for review may be filed, within __ days after
the date on which petitions are due.
Review by [the Agency] is not a matter of right, but within the sound discretion of [the
Agency]. A petition not granted within __ days after the issuance of the Adjudicator’s
decision is deemed denied.
[The Agency], at any time within __ days after the issuance of the Adjudicator’s
decision, may review the decision on its own authority.
A petition for review under this section is, under 5 U.S.C. § 704, a prerequisite to the
seeking of judicial review of the final agency action. Unless [the Agency] provides
otherwise, the effect of filing a petition for review is to stay the decision of the
Adjudicator.
Official Comment
1. (to subsection (A)): Depending on agency statute or regulations, adjudicators
ordinarily issue either initial decisions or recommended decisions. Initial decisions
become effective as the agency’s decision unless a party seeks review or the agency,
on its own initiative, elects to review the decision. Recommended decisions do not
go into effect without further agency action and are issued in those cases where
the agency will automatically review the decision. See 5 U.S.C. § 557(b). Agencies
ordinarily have somewhat different procedures for review of initial and
recommended decisions. For the purpose of filing petitions for agency review, this
rule is limited to initial decisions. In the case of recommended decisions, however,
an agency must take affirmative action to provide for review (such as by directing
the filing of exceptions and briefs) and to render a final decision (such as by issuing
its own decision or affirming the Adjudicator’s recommended decision).
2. (to subsection (A)): ACUS has recommended that agencies establish an
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administrative review regime that limits the scope of agency review of decisions of
Adjudicators in routine cases but authorizes agencies, on their own authority or
upon request of a party, to review significant questions of policy, fact, procedure,
or discretion fully as if the agency were making an initial decision. See Admin.
Conf. of the U.S., Recommendation 68-6, Delegation of Final Decisional Authority
Subject to Discretionary Review by the Agency, 38 Fed. Reg. 19,783 (July 23, 1973).
Some statutes accord parties an automatic right of review by the agency. In such
circumstances, agencies must modify this rule to provide for automatic review.
See, e.g., 29 C.F.R. §§ 102.45, 102.46 (NLRB).
3. (to subsection (E)): In the interest of encouraging prompt appellate review of an
adjudicator’s decision, this rule provides that petitions for discretionary review
that are not granted within a period of time are deemed denied. Alternatively,
agencies may elect in their regulations to stay an initial decision automatically
any time a petition for discretionary review is filed until such time as the agency
has disposed of the petition. “Effectiveness” of a decision is not necessarily the
same as “finality.” See Comment 1, Rule 440 (Final Decision).
4. (to subsection (G)): The APA allows agencies to require an adversely affected party
to ask a “superior agency authority” to review a subordinate agency decision before
going to court, provided that subordinate decision is “inoperative,” i.e., not final,
while the party is seeking review by the superior agency authority. 5 U.S.C.
§§ 557(b), 704. In Darby v. Cisneros, 509 U.S. 137 (1993), the Supreme Court held
that, when agency regulations simply authorize—but do not require—a party to
seek administrative review, a party does not fail to exhaust required
administrative remedies by foregoing the option of seeking administrative review.
Rule 410(G) explicitly provides that, unless the agency provides otherwise, the
filing of a petition for review is an administrative prerequisite to filing a petition
for judicial review. This approach keeps ultimate decisional responsibility with the
agency and avoids judicial review of issues on which the agency has not had an
opportunity to rule. In some cases, an agency may wish to provide that exhaustion
of administrative remedies is not a prerequisite to judicial review. In addition,
there may be situations where an agency may choose to allow the Adjudicator’s
decision to become operative pending administrative review by a superior
administrative authority. In these latter cases, the Adjudicator’s decision is
immediately judicially reviewable.

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Rule 411. Record Before the Agency
[The Agency] must decide each matter on the basis of the whole administrative record.

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Rule 412. Additional Evidence
Upon its own motion or the motion of any party, [the Agency] may allow the submission
of additional evidence.
A party may file a motion for leave to adduce additional evidence before the issuance of
a decision by [the Agency]. The motion must show with particularity that such
additional evidence is material and that there were reasonable grounds for failure to
adduce such evidence previously.
[The Agency] may, as appropriate, accept or hear additional evidence, or remand or
refer the proceedings to the Adjudicator for the taking of additional evidence.
Official Comment
1. 5 U.S.C. § 557(b) provides, “On appeal from or review of the initial decision, the
agency has all of the powers which it would have in making the initial decision
except as it may limit the issues on notice or by rule.”

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Rule 420. Appellate Briefs
Unless [the Agency] orders otherwise, a party must file a brief in support of its petition
for review within __ days after [the Agency] grants the petition. If a petitioner fails to
file a timely brief, the order granting review may be vacated. Other parties may file any
briefs they wish considered by [the Agency] within __ days after the petitioner’s brief is
served. If [the Agency] orders review on its own motion, all parties must file any briefs
they wish considered by [the Agency] within __ days of the order, unless the Agency
otherwise orders.
Except by permission of [the Agency], a brief must not exceed __ words.
Official Comment
1. The APA accords an agency on review of an adjudicator’s decision “all the powers
which it would have in making the initial decision except as it may limit the issues
on notice or by rule.” 5 U.S.C. § 557(b). Nonetheless, agencies typically do not
review every issue decided by an adjudicator. Because agencies (like courts)
ordinarily impose limitations on the length of appellate briefs, parties must be
selective about the issues they raise for appellate review.
2. Agencies may adapt these regulations to provide that briefs supporting the
petition for review must be filed on the same date and responsive briefs filed later.
Agencies may also authorize the filing of reply briefs in appropriate cases.

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Rule 421. Amicus Briefs
Any agency of the United States or limited participant in the proceedings below may
file an amicus-curiae brief with [the Agency]. Any other amicus curiae may file a brief
only with the consent of [the Agency] after the filing of a motion under Rule 421(B) or
with the consent of the parties and a statement to that effect included with the brief.
A motion for leave to file must accompany the brief and state
(1)

the movant’s interest in the adjudication, and

(2)

the reason why an amicus brief is desirable and why the matters asserted are
relevant to the disposition of the case.

Any amicus brief filed by anyone (other than an agency of the United States), including
by limited participants in the proceedings below, must state whether a party’s counsel
authored the brief in whole or in part, a party or a party’s counsel contributed money
that was intended to fund preparing or submitting the brief, and a person—other than
the amicus curiae, its members, or its counsel—contributed money that was intended
to fund preparing or submitting the brief and, if so, identify each such person.
Except by permission of [the Agency], an amicus-curiae brief may not exceed __ words.
An amicus curiae must file its brief, accompanied by a motion when necessary under
these rules, no later than 7 days after the party which amicus curiae supports files its
principal brief. An amicus curiae that does not support either party must file its brief
no later than 7 days after the brief filed by the last filing party.
Except by [the Agency’s] permission, an amicus curiae may not file a reply brief.
Official Comment
1. This rule largely draws from FRAP 29.

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Rule 430. Oral Argument
[The Agency] may permit oral argument in its discretion. The order scheduling a case for oral
argument must contain the allotment of time for each party and order of presentation for oral
argument before [the Agency].
Official Comment
1. Oral argument is not a mandatory part of the appellate process. It is designed to
permit an agency to address issues that may have been left unresolved in the briefs
or about which agency members have questions.

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Rule 440. Final Decision
If no petition for review is filed, and [the Agency] has not taken review of the
Adjudicator’s decision on its own authority, the decision becomes the final decision of
[the Agency] __ days after issuance.
When a case stands submitted for final decision on the merits, [the Agency] will dispose
of the issues presented by entering an appropriate order, which will include findings
and conclusions and the reasons or bases therefor. In appropriate cases, [the Agency]
may simply adopt the Adjudicator’s decision.
Official Comment
1. Effectiveness and finality of a decision are not necessarily synonymous concepts.
Compare Comment 4 (to subsection (G)), with Rule 410 (Petitions for Review).

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Rule 450. Reconsideration
Any party may file a motion for reconsideration of a final order issued by [the Agency].
Unless the time is shortened or enlarged by [the Agency], motions for reconsideration
must be filed within __ days after service of the final order issued by [the Agency].
A motion for reconsideration must be no more than __ words and must state, briefly
and specifically, the matters of record alleged to have been erroneously decided, the
ground(s) relied upon, and the relief sought. No responses to motions for
reconsideration may be filed unless requested by [the Agency].
Official Comment
1. Agencies that do not want to provide for reconsideration should not adopt this rule.
2. Some statutes make the filing of a petition for rehearing or reconsideration with
an agency a jurisdictional prerequisite for judicial review. See, e.g., 15 U.S.C.
§ 717r (Natural Gas Act). Many agencies allow petitions for reconsideration as a
matter of discretion. This rule provides for motions for reconsideration of final
agency decisions. Because reconsideration is intended to be an exceptional remedy,
the rule provides that no responses to motions for reconsideration may be filed
unless requested by the agency. This rule follows the approach taken in FRAP 35
and 40 with respect to petitions for rehearing and suggestions of rehearing en
banc.

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