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

I.

Meeting Opening—Nadine Mancini, Committee Chair

II.

Committee Discussion of Draft Recommendation

III.

Vote on Draft Recommendation

IV.

Closing Remarks—Nadine Mancini, Committee Chair


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

1

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

2

evidentiary hearings in administrative adjudications. Paragraph 26 recommended that agencies

3

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

4

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

5

Administrative Conference intends this Recommendation to cover appellate review of decisions

6

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

7

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

8

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

9

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

10

their level of formality.

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

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

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

11
12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26
27

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

28

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

29

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

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

2
DRAFT November 20, 2020

30

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

31

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

32

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

33
34

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

35

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

36

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

37

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

38

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

39

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

40

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

41

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

42

performance can be evaluated.

43

This Recommendation proceeds from the recognition that agency appellate systems vary

44

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

45

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

46

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

47

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

48

Recommendation is drafted accordingly.

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

3
DRAFT November 20, 2020

RECOMMENDATION
Objectives of Appellate Review
49

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

50

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

51

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

52

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

53

2. Agencies should promulgate and publish procedural regulations governing agency

54

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

55

Regulations. These regulations should cover all significant procedural matters pertaining

56

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

57

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

58

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

59

review;

60

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

61

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

62

(e) the standard of review;

63

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

64
65
66

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

67

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

68

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

69

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

70

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

71

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

72
73

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

74

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

75

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

76

panels).

77

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

78

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

79

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

80

statutory source, an accompanying citation to that source.

81

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

82

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

83

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

84

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

85

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

86

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

87

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

88

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

89

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

90

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

91

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

92

procedural regulations.

93

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

94

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

95

cases or issues to the appellate entity for review.

5
DRAFT November 20, 2020

Appellate Decision-making Processes and Decisions
96

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

97

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

98

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

99

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

100

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

101

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

102

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

103

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

104

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

105
106

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

107

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

108

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

109

new evidence on appeal.

110

12. Taking agency resources into account, agencies should strive for readable, quality

111

appellate decisions with an emphasis on plain language and ease of judicial review.

112

Agencies should explore the use of decision templates and other quality-improving

113

measures.

114

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

115

precedential opinions, especially for appellate systems with objectives of policymaking

116

or inter-decisional consistency.

117
118

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

6
DRAFT November 20, 2020

Administration, Management, and Bureaucratic Oversight
119

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

120

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

121

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

122

when feasible, summaries and explanatory materials.

123

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

124

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

125

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

126

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

127

decisions of the federal courts of appeals.

128

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

129

precedential decisions should consider preparing indexes and digests—with annotations

130

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

131

significance.

132

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

133

other agency policymakers—and, as appropriate, institutionalize communication

134

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

135

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

136

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

137

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

138

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

139

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

140

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

141

subjects of interchange might include electronic case management systems, procedural

142

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

7
DRAFT November 20, 2020

Public Disclosure and Transparency
143
144

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

145

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

146

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

147

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

148

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

149

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

150

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

151

argument.

152

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

153

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

154

explanatory documents appropriate for public disclosure. Specific subjects agencies

155

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

156

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

157

which cases are decided.

158

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

159

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

160

explanation of the difference.

161

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

162

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

163

least, citations to court decisions reviewing them.

164

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

165

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

166

Freedom of Information Act or other laws.

8
DRAFT November 20, 2020


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

1

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

2

evidentiary hearings in administrative adjudications. Paragraph 26 recommended that agencies

3

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

4

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

5

Administrative Conference intends this Recommendation to cover appellate review of decisions

6

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

7

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

8

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

9

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

10

their level of formality.

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

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

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

11
12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26
27

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

28

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

29

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

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

2
DRAFT November 20, 2020

30

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

31

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

32

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

33
34

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

35

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

36

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

37

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

38

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

39

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

40

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

41

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

42

performance can be evaluated.

43

This Recommendation proceeds from the recognition that agency appellate systems vary

44

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

45

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

46

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

47

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

48

Recommendation is drafted accordingly.

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

3
DRAFT November 20, 2020

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

RECOMMENDATION
Objectives of Appellate Review
49

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

50

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

51

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

52

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

53

2. Agencies should promulgate and publish procedural regulations governing agency

54

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

55

Regulations. These regulations should cover all significant procedural matters pertaining

56

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

57

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

58

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

59

review;

60

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

61

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

62

(e) the standard of review;

63

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

64
65
66

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

67

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

68

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

69

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

70

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

71

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

72
73

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

74

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

75

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

76

panels).

77

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

78

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

79

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

80

statutory source, an accompanying citation to that source.

81

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

82

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

83

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

84

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

85

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

86

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

87

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

88

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

89

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

90

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

91

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

92

procedural regulations.

93

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

94

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

95

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

5
DRAFT November 20, 2020

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

Appellate Decision-making Processes and Decisions
96

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

97

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

98

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

99

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

100

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

101

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

102

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

103

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

104

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

105

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

106

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

107

leverage adjudicator expertise and economies of scale.

108
109
110
111

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

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

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

112

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

113

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

114

new evidence on appeal.

115

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

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

116

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

117

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

118

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

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

6
DRAFT November 20, 2020

119

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

120

precedential opinions, especially for appellate systems with objectives of policymaking

121

or inter-decisional consistency.

122
123

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

124

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

125

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

126

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

127

when feasible, summaries and explanatory materials.

128

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

129

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

130

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

131

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

132

decisions of the federal courts of appeals.

133

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

134

own precedential decisions should consider preparing indexes and digests—with

135

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

136

and their significance.

137

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

138

other agency policymakers—and, as appropriate, institutionalize communication

139

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

140

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

141

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

142

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

7
DRAFT November 20, 2020

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

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

143

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

144

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

145

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

146

subjects of interchange might include electronic case management systems, procedural

147

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

148
149

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

150

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

151

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

152

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

153

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

154

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

155

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

156

argument.

157

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

158

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

159

explanatory documents appropriate for public disclosure. Specific subjects agencies

160

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

161

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

162

which cases are decided.

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

164

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

165

explanation of the difference.

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

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

166

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

167

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

168

least, citations to court decisions reviewing them.

169

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

170

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

171

Freedom of Information Act or other laws.

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

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