MEMORANDUM
From:
To:
Date:
Re:

Todd Phillips, Attorney Advisor
Ad hoc Committee of the Committee on Administration and Management and the
Committee on Adjudication
September 28, 2018
Public Availability of Adjudication Rules

Introduction
This project examines the extent to which agencies make rules governing adjudications available
online, how they present those rules on their websites, and the extent to which they lay out the
legal authorities under which rules are promulgated and distinguish between binding rules and
other documents that may not bind litigants. This project was inspired by ACUS staff findings
that adjudication rules are sometimes not on agency websites or are otherwise difficult to find.
ACUS is undertaking this project as part of a larger initiative that aims to promote proactive
disclosure of key agency documents.1
I served as the in-house researcher for this project. The Office of the Chairman decided that the
best way for me to present my findings and recommendations is through a visual demonstration
of agency websites at our first meeting rather than through a conventional report. This approach
will provide both for the optimal clarity of presentation and allow the Committee members—
many of them with expertise in our subject—to contribute their knowledge and perspectives.
This memorandum provides the necessary background—much of it drawn from prior ACUS
reports and recommendations cited and linked below, which I encourage Committee members to
review—for discussion and provides my tentative recommendations. Specifically, Section I
identifies the types of adjudications that are the focus of this project and thereby defines the
scope of the recommendations. Section II identifies the sources of procedural rules. Section III
identifies the relevant statutory provisions governing the disclosure of agency procedural rules
and related materials. Finally, Section IV offers my tentative recommendations for improving
public access to agency procedural rules.
As a technical matter, the term procedural rules can encompass many different types of agency
documents, including guidance documents. This memorandum refers to those binding
procedural rules issued by an agency to govern its adjudications, often codified in the Code of
Federal Regulations (CFR), as “rules of practice.” “These rules work in concert with the
agency’s enabling act and the general APA,” and provide “procedural rights that the agency was
not required to provide by statute or due process.”2 This distinction is explained more fully
below.

1

Related projects include a recommendation on promoting the availability of adjudication materials and an ongoing
study on the public availability of guidance documents. See Admin. Conf. of the U.S., Recommendation 20171, Adjudication Materials on Agency Websites, 82 Fed. Reg. 31,039 (July 5, 2017); Public Availability of Agency
Guidance, ADMIN. CONF. OF THE U.S., https://www.acus.gov/research-projects/public-availability-agency-guidance.
2
CHARLES KOCH, 2 ADMINISTRATIVE LAW AND PRACTICE 8—9 (3d ed.); ABA, GUIDE TO FEDERAL
ADMINISTRATIVE ADJUDICATION § 1.03 (2d ed.).

Section I – Type of Adjudications
For purposes of classifying agency adjudications, this report will use the three-part typology set
forth in Recommendation 2016-4 – Evidentiary Hearings Not Required by the Administrative
Procedure Act3 and the associated consultant report written by Professor Michael Asimow.4
Under this typology, there are three types of adjudications:
1)
Type A adjudications refer “to adjudicatory systems governed by the [main]
adjudications sections of the” Administrative Procedure Act (APA), 5 U.S.C. §§ 554, 556, 557.5
These sections generally apply when a statute requires the adjudication to be determined “on the
record after opportunity for agency hearing,” though there is conflicting caselaw about when the
provisions apply.6 The hearings in Type A (sometimes called APA adjudications) are usually
presided over by an administrative law judge (ALJ) appointed under 5 U.S.C. § 3105.
Adjudications governed by the adjudications sections of the APA are what are traditionally
known as “formal adjudications.”
2)
Type B adjudications are those “that consist[] of legally required evidentiary hearings,”
generally required by a statute, executive order, or regulation.7 Though they are often—though
not always—“formal” in the manner and presentation of evidence, Type B adjudications are not
regulated by the APA’s adjudication provisions in 5 U.S.C. §§ 554 and 556–557. They are
presided over by a non-ALJ (often called an administrative judge).
3)
Type C adjudications are all adjudications that do not qualify as Type A or B. Such
adjudications are “quite informal,”8 and do not “occur through legally required evidentiary
hearings.”9 Type C adjudications are “an enormous category, consisting of many millions of
adjudications each year”10 and lack “any unifying procedural element, which makes prescription
of best practices infeasible.”11
This project addresses only Type A and Type B adjudications, and the proposed
recommendations are drafted accordingly.
Section II – Sources of Adjudication Rules
There are a variety of sources for rules that govern agency adjudications. The principal ones I’ve
identified for the committee’s consideration are as follows:

3

Admin. Conf. of the U.S., Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative
Procedure Act, 81 Fed. Reg. 94,312 (Dec. 23, 2016).
4
Michael Asimow, Evidentiary Hearings Outside the Administrative Procedure Act 4, ADMIN. CONF. OF THE U.S.
(Nov. 10, 2016). Professor Asimow has completed a forthcoming adjudication sourcebook for ACUS that, among
other things, expands upon the discussion of the types of adjudication identified in his report. MICHAEL ASIMOW,
FEDERAL ADMINISTRATIVE ADJUDICATION OUTSIDE THE ADMINISTRATIVE PROCEDURE ACT 4 (2018).
5
Michael Asimow, Evidentiary Hearings Outside the Administrative Procedure Act 2, ADMIN. CONF. OF THE U.S.
(Nov. 10, 2016).
6
See, e.g., Id., at 8.
7
Admin. Conf. of the U.S., Recommendation 2016-4, supra note 3.
8
Id.
9
Asimow, supra note 5, at 5.
10
Admin. Conf. of the U.S., Recommendation 2016-4, supra note 3, at 2 n.4.
11
Asimow, supra note 5, at 3.

2

•
•
•
•
•
•

The due process clause of the Fifth Amendment to the U.S. Constitution;
Statutes, including the APA and agency organic statutes;
Agency rules of practice, as defined above;
Agency precedents as set forth in decisions rendered by the agency official(s)
(administrator, board, commission, etc.) authorized by law to engage in an action
designated as “final” under 5 U.S.C. § 704;12
Standing orders and practice procedures of adjudicators (that is, adjudicator-specific rules
applicable in all cases before the adjudicator); and
Agency-specific forms that litigants are required to use.

In addition, agencies may publish various guidance documents, which typically would take the
form of general statements of policy, that provide additional information for agency adjudicators
and lawyers as well as outside litigants that participate in adjudications. These documents may
take a variety of forms and could include, among other things:
•
•
•
•

Explanatory materials and summaries of procedures appearing on agency websites;
ALJ bench books;
Guides for litigants; and
Litigation manuals for agency trial attorneys.

It will, of course, be important for purposes of the recommendations to distinguish between
binding procedural rules (especially what are called “rules of practice” above)—which is to say,
rules that establish legally enforceable rights and duties in an adjudication (and later on judicial
review), such as the right to cross-examination, the right to representation, etc.—and non-binding
procedural rules.13 The category of documents encompassed by the latter set of bullet points
consists of (or mostly consists of) documents that are non-binding, whether they are
characterized as “rules of agency . . . procedure,”14 “general statements of policy,”15 or both,
under the APA. (I will refer to the latter documents generically as “guidance documents” to align
the terminology here with prevailing agency usage.) While the sorts of guidance documents in
question may be binding in the sense that, “as an internal agency management matter,” they
“direct some [agency] employees to act in conformity with” agency “policy,” 16 they will not
confer any legally enforceable rights on a party in an agency adjudication. An example would be
a case handling manual that directs an agency lawyer to adjudicate a case in a certain matter.
That leaves the question of how to distinguish binding from non-binding procedural rules. That
the rules were not the result of a notice-and-comment process will not render them non-binding:
§ 553(b)(3)(A) explicitly exempts “rules of . . . agency procedure” from its notice-and-comment

12

Another possible source of binding precedents is decisions of the United States Supreme Court. (Whether and
when lower-court decisions are binding on the agency is a complicated question that need not be addressed here.
See Samuel Estreicher and Richard Revesz, Nonacquiescence by Federal Administrative Agencies, 98 YALE L.J. 679
(1989). I do not think that they need to be addressed in this project, but it is a question the Committee may wish to
consider.)
13
At least since Accardi v. Shaughnessy, 347 U.S. 260 (1954), the federal courts have insisted that agencies follow
their own binding procedural rules. The issue will be addressed in a brief supplemental memorandum.
14
5 U.S.C. § 553(b)(3)(A).
15
Id.
16
Admin. Conf. of the U.S., Recommendation 2017-5, Agency Guidance Through Policy Statements, 82 Fed. Reg.
61,728 (Dec. 29, 2017); see also OMB Good Guidance Practices § II(2)(h), 72 Fed. Reg. 3432, 3440 (Jan. 25, 2007)

3

requirements. (Agencies of course sometimes voluntary agree to solicit public comment.17)
Whether a rule is binding or not will ultimately depend on whether it is reasonably interpreted to
create legally enforceable rights, and that will require careful attention to the language used. See,
e.g., Patterson v. Comm’r of SSA, 846 F.3d 656 (4th Cir.) (holding that an SSA procedural rule
providing that an adjudicator “must” weight the evidence in a certain matter “militates against”
the conclusion that the rule “offers only non-binding guidance for the benefit” of the adjudicator;
RICHARD J. PIERCE , JR., ADMINISTRATIVE LAW TREATISE § 6.5 (5th ed. 2010) (noting that
whether a procedural rule is binding or non-binding turns on analysis of whether the rule confers
valuable procedural rights on parties or is merely intended to aid the agency in establishing
orderly procedures for conducting its business). It is in the agency’s interest to clearly disclaim
any binding effect if that is its intention.
Section III – Statutes Governing Publication of Adjudication Rules
The following legal authorities (reproduced in Appendix 1) are relevant to the Committee’s
discussion: the APA, the Freedom of Information Act (FOIA), the Federal Register Act, and the
E-Government Act.
The APA defines the term “rules” as “the whole or a part of an agency statement of general or
particular applicability and future effect designed to implement, interpret, or prescribe law or
policy or describing the organization, procedure, or practice requirements of an agency.”18 As a
default matter, an agency wishing to promulgate a rule is required to publish a notice of proposed
rulemaking in the Federal Register and provide “interested persons an opportunity to participate
. . . through submission of written data, views, or arguments.”19 However, the APA exempts
from the mandatory notice and comment requirement “interpretive rules, general statements of
policy, or rules of agency organization, procedure, or practice.”20
Despite the APA’s notice and comment exemption for rules of practice, FOIA requires agencies
to publish “rules of procedure” and “substantive rules of general applicability adopted as
authorized by law” in the Federal Register.21 Adjudication rules are rules of procedure and are
often adopted as authorized by an agency organic statute or the APA. As such, adjudication
rules must be published in the Federal Register prior to taking effect.
The E-Government Act, in amending the Paperwork Reduction Act, provides that “each agency .
. . shall ensure that a publicly accessible Federal Government website includes all information
about that agency required to be published in the Federal Register” under FOIA.22 As FOIA
requires adjudicatory rules to be published in the Federal Register, the E-Government Act
requires their publication online.

See Sec. and Exchange Comm’n, Amendments to the Commission’s Rules of Practice, 80 Fed. Reg. 60091, 97
(Oct. 5, 2015).
18
5 U.S.C. § 551(4).
19
Id. § 553(c).
20
Id. § 553(b)(3)(A). These non-legislative rules are those which are “technical regulation[s] of the form of agency
action and proceedings,” and do not include rules “to determine whether claims . . . are meritorious.” Pickus v. U.S.
Board of Parole, 507 F.2d 1107, 1113 (D.C. Cir. 1974).
21
Id. § 552(a)(1)(C)—(D).
22
44 U.S.C. § 3501 note.
17

4

The Federal Register Act permits the Administrative Committee of the Federal Register to
require the “complete codification,” in the Code of Federal Regulations (CFR), “of the
documents of each agency of the Government having general applicability and legal effect,
issued or promulgated by the agency by publication in the Federal Register.”23 Since FOIA
requires adjudication rules to be published in the Federal Register, the Federal Register Act
allows the Administrative Committee of the Federal Register to require agencies to codify such
rules in the CFR. The Administrative Committee does not appear to have rules determining
which agency rules are codified, and as such agency practices may vary.
Section IV – Recommendations
Below are recommendations offered for the Committee’s consideration.24 There are associated
screenshots in Appendix 2 for several of the recommendations; those recommendations have
been identified with an asterisk.
Recommendation 1. Agencies should publish all relevant procedural rules and statutes
that apply to agency adjudications on their websites, including (a) the relevant provisions of the
APA (5 U.S.C. § 554—58); (b) statutory provisions providing procedural rules for adjudication;
(c) rules of practice; (d) relevant agency precedents, which often are catalogued in explanatory
materials; (e) guidance documents that provide relevant information on adjudicative procedures,
including guides designed for agency litigants and adjudicators, excepting those for which a
FOIA exemption that the agency intends to invoke exists (e.g., manuals, bench books, etc.); and
(f) ALJ practice procedures.
* Recommendation 2. In publishing the materials pursuant to Recommendation 1,
agencies should focus on presenting the materials in a clear, logical, and comprehensive
fashion. An example of such presentation is provided by the Office of Medicare Hearings and
Appeals’ Legal Authorities site. This site displays the statutes, rules of practice, and selected
guidance applicable to different types of adjudications in an easy-to-read table. Such a table
should delineate between binding and nonbinding materials.
* Recommendation 3. Rules of practice, usually codified in the CFR, should be
accessible on agency websites in one easily searchable file. This is used by the Securities and
Exchange Commission when it put its rules on its website, for example. This is preferable to
linking to the Federal Register document in which the rules are promulgated, which will contain
distracting background information, or providing a series of links to the e-CFR, which requires
the user to click through multiple documents. If rules of practice are codified in the CFR, the
numbering system in the searchable file should mirror the CFR’s numbering system.
Recommendations 4. Agencies should consider publishing explanatory guidance
documents aimed at providing an overview of relevant agency precedents.

23

Id. § 1510(a).
The terminology used below is consistent with the discussion in this memo, but the committee may wish to
modify it as appropriate.
24

5

* Recommendation 5. Guidance documents should note at the beginning or atop the
first page whether or to what extent they are binding. For example, the Federal Mine Safety and
Health Review Commission has a guide with a box at the top explicitly stating it “is not binding
legal authority.”
Recommendation 6. To facilitate ease of understanding, explanatory guidance
documents should adhere to ACUS’s Recommendation 2017-3 – Plain Language in Regulatory
Drafting.25 The agency should tailor these documents to meet the needs of the litigants who
typically appear before the agency. For example, an agency with many pro se litigants may wish
to provide detailed, step-by-step instructions covering each step of the litigation process.
* Recommendation 7. Explanatory guidance documents should cite, where applicable,
to the statutes, rules of practices, and adjudicative precedents. For example, the Department of
Veterans Affairs’ Adjudication Procedures Manual covers agency rules and precedents when
discussion the agency’s rules of practice.
* Recommendation 8. When an agency’s mission consists exclusively or almost
exclusively of conducting adjudications, the agency should link to its rules and guidance on the
agency’s homepage. One model is that of the Occupational Safety and Health Review
Commission. When conducting adjudications is merely one of an agency’s many responsibilities,
the agency should link to its rules and guidance from a location on the website that is both
dedicated to adjudicatory materials and logical in terms of a litigant’s likelihood of finding the
documents in the selected location. One model is that of the Federal Trade Commission.

APPENDIX 1
1.

5 U.S.C. § 551 provides:

Definitions
***
(4) “rule” means the whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or policy or
describing the organization, procedure, or practice requirements of an agency and includes the
approval or prescription for the future of rates, wages, corporate or financial structures or
reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of
valuations, costs, or accounting, or practices bearing on any of the foregoing;
(5) “rule making” means agency process for formulating, amending, or repealing a rule;
***
2.

5 U.S.C. § 552 provides:

25

Admin. Conf. of the U.S., Recommendation 2017-3, Plain Language in Regulatory Drafting, 82 Fed. Reg. 61,728
(Dec. 29, 2017).

6

Public information; agency rules, opinions, orders, records, and proceedings
(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the Federal Register for the
guidance of the public(A) descriptions of its central and field organization and the established places at
which, the employees (and in the case of a uniformed service, the members) from whom,
and the methods whereby, the public may obtain information, make submittals or
requests, or obtain decisions;
(B) statements of the general course and method by which its functions are channeled
and determined, including the nature and requirements of all formal and informal
procedures available;
(C) rules of procedure, descriptions of forms available or the places at which forms
may be obtained, and instructions as to the scope and contents of all papers, reports, or
examinations;
(D) substantive rules of general applicability adopted as authorized by law, and
statements of general policy or interpretations of general applicability formulated and
adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
(2) Each agency, in accordance with published rules, shall make available for public
inspection in an electronic format***
(C) administrative staff manuals and instructions to staff that affect a member of the
public;
***
3.

5 U.S.C. § 553 provides:

Rule making
***
(b) General notice of proposed rule making shall be published in the Federal Register, unless
persons subject thereto are named and either personally served or otherwise have actual notice
thereof in accordance with law. The notice shall include—
(1) a statement of the time, place, and nature of public rule making proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the subjects and
issues involved.
Except when notice or hearing is required by statute, this subsection does not apply—

7

(A) to interpretative rules, general statements of policy, or rules of agency organization,
procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief
statement of reasons therefor in the rules issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.
(c) After notice required by this section, the agency shall give interested persons an
opportunity to participate in the rule making through submission of written data, views, or
arguments with or without opportunity for oral presentation. After consideration of the relevant
matter presented, the agency shall incorporate in the rules adopted a concise general statement of
their basis and purpose. When rules are required by statute to be made on the record after
opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this
subsection.
(d) The required publication or service of a substantive rule shall be made not less than 30
days before its effective date, except—
(1) a substantive rule which grants or recognizes an exemption or relieves a restriction;
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and published with the
rule.
(e) Each agency shall give an interested person the right to petition for the issuance,
amendment, or repeal of a rule.
4.

44 U.S.C. § 1510 provides:

Code of Federal Regulations
(a) The Administrative Committee of the Federal Register, with the approval of the
President, may require, from time to time as it considers necessary, the preparation and
publication in special or supplemental editions of the Federal Register of complete codifications
of the documents of each agency of the Government having general applicability and legal
effect, issued or promulgated by the agency by publication in the Federal Register or by filing
with the Administrative Committee, and are relied upon by the agency as authority for, or are
invoked or used by it in the discharge of, its activities or functions, and are in effect as to facts
arising on or after dates specified by the Administrative Committee.
(b) A codification published under subsection (a) of this section shall be printed and bound in
permanent form and shall be designated as the “Code of Federal Regulations.” The
Administrative Committee shall regulate the binding of the printed codifications into separate
books with a view to practical usefulness and economical manufacture. Each book shall contain
an explanation of its coverage and other aids to users that the Administrative Committee may
require. A general index to the entire Code of Federal Regulations shall be separately printed and
bound.
***

8

5.

44 U.S.C. § 3501 note provides:

Regulatory Agencies
***
(b) Information Provided by Agencies Online—To the extent practicable as determined by
the agency in consultation with the Director, each agency (as defined under section 551 of title 5,
United States Code) shall ensure that a publicly accessible Federal Government website includes
all information about that agency required to be published in the Federal Register under
paragraphs (1) and (2) of section 552(a) of title 5, United States Code.
***
6.

44 U.S.C. § 3502 provides:

Definitions
As used in this subchapter—
***
(4) the term “Director” means the Director of the Office of Management and Budget;
***

9

APPENDIX 2
Screenshot for Recommendation 2

10

Screenshot for Recommendation 3

11

Screenshot for Recommendation 5

12

Screenshot for Recommendation 7

13

First Screenshot for Recommendation 8

14

Second Screenshot for Recommendation 8

15