Administrative Conference of the United States
A REAPPRAISAL – THE NATURE AND VALUE OF
OMBUDSMEN IN FEDERAL AGENCIES
PART 4: THE RECOMMENDATION

Final Report: November 14, 2016
Carole S. Houk, J.D., LLM
Mary P. Rowe, Ph.D.
Deborah A. Katz, J.D.
Neil H. Katz, Ph.D.
Lauren Marx, M.S.
Timothy Hedeen, Ph.D.
Carole Houk International, LLC
dba chiResolutions, LLC
Contract No. ACUS150240
This report was prepared for the consideration of the Administrative Conference of the United States. The opinions, views and
recommendation expressed are those of the author(s) and do not necessarily reflect those of the members of the Conference or its
committees, except where formal recommendations of the Conference are cited.

Final Report to ACUS for Conference Consideration (11/2016)

A Reappraisal – The Nature and Value of Ombudsmen in
Federal Agencies
Proposed ACUS Recommendation
The following draft constitutes the proposed recommendation of the Administrative
Conference’s Committee on Rulemaking, for consideration by the full Conference
membership. It is based on the authors’ suggested recommendations submitted to the
Conference on September 19, 2016. The original draft was modified by the committee, with
the assistance of the authors and the Conference staff, through a series of public committee
meetings held on September 24, October 19 and November 3, 2016, as well as by consideration
and review of comments received via the ACUS website. The authors have worked
collaboratively with all concerned to understand the concerns raised and are in general
agreement with this proposed recommendation as put forth by the Committee on Rulemaking.

The Use of Ombudsmen in Federal Agencies
Committee on Rulemaking
Proposed Recommendation for Council | November 17, 2016
This recommendation updates and expands on the Administrative Conference’s earlier
Recommendation 90-2, The Ombudsman in Federal Agencies, adopted on June 7, 1990. That
document concentrated on “external ombudsmen,” those who primarily receive and address
inquiries and complaints from the public, and was formulated before “use of ombuds” was added
to the definition of “means of alternative dispute resolution” in the Administrative Dispute
Resolution Act (ADRA)1 in 1996. In 90-2, the Conference urged “the President and Congress to
support federal agency initiatives to create and fund an effective ombudsman in those agencies

1

5 U.S.C. §§ 571-84; see § 571(3).

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Final Report to ACUS for Conference Consideration (11/2016)

with significant interaction with the public,” believing that those agencies would benefit from
establishing either agency-wide or program-specific ombudsman offices.
The present recommendation is based on a study of the far broader array of federal
ombuds2 that have been established since the Conference’s earlier recommendation on this
subject. Federal ombuds now include multiple variations of both primarily externally-focused
and primarily internally-focused ombuds (i.e., those who receive inquiries and complaints from
persons within the agency). These individuals and offices can and do make a distinct and
beneficial contribution to government effectiveness. While all forms of alternative dispute
resolution expressly embraced by the ADRA have the capacity to reduce litigation costs and
foster better relationships, the ombuds alone affords the constituent and the agency the
opportunity to learn about and address issues before, in effect, they have been joined.
Constituents and the agency are served by the ombuds’ skilled, impartial assistance in resolution,
and the agency is served by the opportunity for critical early warning of specific and systemic
issues.
The research conducted to support this recommendation, including quantitative and
qualitative surveys, interviews, case studies and profiles, revealed that federal ombuds can add
value to their agencies in a variety of ways.3 Ombuds (1) identify significant new issues and
patterns of concerns that are not well known or being ignored; (2) support significant procedural
changes; (3) contribute to significant cost savings by dealing with identified issues, often at the

2

The term ombudsman is Scandinavian and means representative or proxy. Variations on the term exist in the field
(ombudsmen, ombudsperson, ombuds, etc.) In this recommendation, the term “ombuds” will be used as the
predominant term to be as inclusive as possible. For historical background on the use of ombudsmen in other
countries and their potential value in the United States, see Walter Gellhorn, OMBUDSMEN AND OTHERS: CITIZEN
PROTECTORS IN NINE COUNTRIES (1966), and Walter Gellhorn, WHEN AMERICANS COMPLAIN: GOVERNMENTAL
GRIEVANCE PROCEDURES (1966).
3
Houk et al., A Reappraisal — The Nature and Value of Ombudsmen in Federal Agencies, available at
www.acus.gov/research-projects/ombudsman-federal-agencies-0

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Final Report to ACUS for Conference Consideration (11/2016)

earliest or pre-complaint stages, thereby reducing litigation and settling serious disputes; (4)
prevent problems through training and briefings; (5) serve as an important liaison between
colleagues, units, or agencies; and (6) provide a fair process for constituents.
Externally-facing ombuds were more likely to report supporting the agency with specific
mission-related initiatives; helping the agency to improve specific policies, procedures, or
structures; making administrative decisions to resolve specific issues; helping within the agency
to keep its organizational processes coordinated; and advocating on behalf of individuals.
Internally-facing ombuds were more likely to report helping constituents by providing a safe way
to discuss perceptions of unsafe or illegal behavior; promoting the use of fair and helpful
options; helping to prevent problems by coaching one-on-one; and providing group training and
briefings to constituents. Whistleblower ombuds and procurement ombuds—consonant with
their particular focus on more narrowly defined responsibilities—described their
accomplishments as providing specific information and education, and guidance about very
specific matters of concern to their constituents.
Since the Conference last considered ombuds in the federal government, the milieu in
which government operates has, by all accounts, become more polarized, with government itself
often the target of suspicion and hostility. In a challenging environment in which many federal
agencies struggle to maintain the trust of the public they serve and even of their own employees,
the ombuds is uniquely situated to provide both pertinent information and assistance in resolving
issues to constituents and the agency alike. The ability of the ombuds to provide a place
perceived as safe — which can offer a ready, responsive, and respectful hearing and credible
options — in itself builds trust. And trust is a commodity without which government in a
democratic society cannot function effectively.

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Final Report to ACUS for Conference Consideration (11/2016)

Accordingly, the Conference continues to urge Congress and the President to create,
fund, and otherwise support ombuds offices across the government consistent with the
recommendation articulated below. Further, the Conference urges those agencies that already
have ombuds, and those that are contemplating creating ombuds offices, to align their office
standards and practices with those included in this recommendation. In general, the Conference
recommends these practices to the extent applicable in particular situations, regardless of
whether an ombuds office or program is created by Congress or by an agency.
Although functionally the federal ombuds landscape is quite diverse, most federal
ombuds share three core standards of practice — independence, confidentiality, and impartiality
— and share common characteristics. The core standards are set forth in the standards adopted
by the American Bar Association (ABA),4 the International Ombudsman Association (IOA),5
and the United States Ombudsman Association (USOA),6 though with some variations,
particularly with respect to confidentiality. These organizations’ standards are generally
followed, as applicable, and considered essential by the ombuds profession, both within and
outside government. The further an ombuds office and the agency in which it resides deviate
from the three core standards in practice, the more difficult it will be to defend whatever
confidentiality the office does offer should it be subjected to legal challenge.
Most federal ombuds also share the following common characteristics: (1) Ombuds do
not make decisions binding on the agency or provide formal rights-based processes for redress;
(2) they have a commitment to fairness; and (3) they provide credible processes for receiving,

4

ABA STANDARDS FOR THE ESTABLISHMENT AND OPERATION OF OMBUDS OFFICES (2004), available at:
https://www.americanbar.org/content/dam/aba/migrated/leadership/2004/dj/115.authcheckdam.pdf.
5
IOA STANDARDS OF PRACTICE (2009), available at: https://www.ombudsassociation.org/
IOA_Main/media/SiteFiles/IOA_Standards_of_Practice_Oct09.pdf.
6
USOA GOVERNMENTAL OMBUDSMAN STANDARDS (2003), available at: https://www.usombudsman.org/
site-usoa/wp-content/uploads/USOA-STANDARDS1.pdf.

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Final Report to ACUS for Conference Consideration (11/2016)

reviewing, and assisting in the resolution of issues. The three core standards and these common
characteristics, taken together, are central to the ombuds profession.
Agencies have the authority to establish ombuds offices or programs. Although
legislation establishing a generally applicable template and standards for federal ombudsmen has
not been enacted, the 1996 addition of the words “use of ombuds” to the definition of “means of
alternative dispute resolution” in ADRA clarifies that, when the ombuds office is assisting in the
resolution of issues that are raised to it under its mandate, it is covered by the Act’s provisions.7
The Act’s coverage attaches to communications that take place when the constituent first
approaches the ombuds office with an issue and continues to cover communications that occur
until the case is, in effect, closed.8 While ADRA’s definition of “alternative means of dispute
resolution” includes use of ombuds, federal agency ombuds programs would benefit from certain
targeted amendments to ADRA to clarify certain definitions (e.g., “issue in controversy,”
“neutral,” “party”) and other provisions as they apply to the work of ombuds, to expressly align
them with current practice.
The research for this recommendation also identified three areas of potential conflict
between (a) the requirements of ADRA § 574 and the scope of confidentiality that ombuds offer
to constituents and (b) other legal requirements that may be applicable in certain situations.

Further, ombuds are ‘neutrals’ within the meaning of the Act including those ombuds who, after impartial review,
advocate for specific processes or outcomes. See ABA STANDARDS, supra note 4, at 14.
8
The Act’s coverage is generally understood to begin at intake in alternative dispute resolution offices and continue
until closure even when the constituent’s interaction with the office ends without a session process involving both
parties. For example, guidance concerning ADRA confidentiality issued by the Federal Alternative Dispute
Resolution Council in 2000 concluded that ADRA confidentiality applies to the intake and convening stages of
ADR. See Confidentiality in Federal Alternative Dispute Resolution Programs, 65 Fed. Reg. 83,085, 83,090 (Dep’t
of Justice Dec. 29, 2000). Further, the Interagency ADR Working Group Steering Committee in its Guide states that
ADR program administrators are “neutrals when they are helping the parties resolve their controversy by, for
example, discussing ADR options with the parties, coaching, and preparing them to negotiate . . . .” See Interagency
ADR Working Group Steering Comm., Protecting the Confidentiality of Dispute Resolution Proceedings 8 (2006).
While ADRA covers dispute resolution communications occurring through the duration of the case, the neutral’s
obligation to maintain this confidentiality does not end with the closure of the case.
7

PART 4: The Recommendation

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Final Report to ACUS for Conference Consideration (11/2016)

Federal ombuds should be aware of these matters and how they may affect particular ombuds
programs:
(1) The relationships among their statutory duties to report information, the requirements of
ADRA § 574(a)(3) on confidentiality, their agency’s mission, and the professional standards
to which they adhere. Any latitude they may have under ADRA § 574(d)(1) should be
considered in reaching an understanding within the agency and with constituents of the
breadth and limits of confidentiality consistent with statutory requirements.
(2) The requirements and interrelationship of the Federal Records Act,9 the Freedom of
Information Act,10 and the Privacy Act,11 with regard to agency records and other
documentation.
(3) The effect on confidentiality of the Federal Service Labor-Management Relations Statute,12
pursuant to which the union may be entitled to notice and an opportunity to be present at
meetings with bargaining unit employees (for those ombuds that have employees with a
collective bargaining representative among their constituents, or who may have cause, in the
course of resolving issues that have been brought to them, to engage with represented
employees as well as management on issues affecting the terms and conditions of bargaining
unit employees).
In addition, this recommendation addresses standards applicable to federal agency
ombuds offices and related issues involved in creating such offices. The practices included in
this recommendation are intended to highlight some overarching beneficial practices observed

9

44 U.S.C. Chaps. 21, 22, 29, 31, and 33.
5 U.S.C. § 552.
11
5 U.S.C. § 552a.
12
5 U.S.C. §§ 7101-35; see § 7114.
10

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Final Report to ACUS for Conference Consideration (11/2016)

among federal ombuds and to supplement the recommended practices and guidance available
from various ombuds professional organizations.
To foster continual improvement and accountability of individual ombuds offices, the
recommendation advises that each ombuds office arrange for periodic evaluation of its
management and program effectiveness. Evaluation of ombuds by colleagues within the office
can be useful if the office is of sufficient size to make this feasible. Otherwise, any external
evaluation should be conducted by individuals knowledgeable about the roles, functions, and
standards of practice of federal ombuds. For example, peer evaluation using the expertise of
similar types of ombuds in other offices or agencies, or by outside ombuds professionals, may be
suitable.
Finally, the recommendation urges the creation of an entity within the Executive Branch
to serve as a government-wide resource to address certain issues of common concern among
agency ombuds that transcend organizational boundaries. Such an office, perhaps modeled on
the Council of the Inspectors General on Integrity and Efficiency (CIGIE), could develop, over
time, a credible professional system for credentialing federal ombuds programs.

RECOMMENDATION
1.

Establishment and Standards.

(a)

Agencies should consider creating additional ombuds offices to provide places

perceived as safe for designated constituents to raise issues confidentially and receive assistance
in resolving them without fear of retribution. They should ensure that the office is able to, and
does, adhere to the three core standards of independence, confidentiality, and impartiality, as
these standards are described in generally recognized sets of professional standards, which
include those adopted by the American Bar Association, the International Ombudsman

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Final Report to ACUS for Conference Consideration (11/2016)

Association, and the United States Ombudsman Association, and they should follow, to the
extent applicable, the procedural recommendations below. Existing offices with the ombuds title
that do not adhere to these standards should consider modifying their title, where permitted, to
avoid any confusion.
(b)

Ombuds offices created by executive action should be established or governed by

a charter or other agency-wide directive specifying the office’s mandate, standards, and
operational requirements, so that others in the agency and the public are aware of the office’s
responsibilities.
2.

Legislative Considerations.

(a)

Congress should consider creating additional ombuds offices. When Congress

creates a new ombuds program, it should observe the procedural principles contained in this
recommendation, to the extent applicable.
(b)

Any action by Congress creating or affecting the operations of agency ombuds

offices, whether through amendment of the Administrative Dispute Resolution Act (ADRA), 5
U.S.C. §§ 571-84, or other legislative action, should reinforce the core standards of
independence, confidentiality, and impartiality. Any such actions should maintain clarity and
uniformity of definitions and purpose for federal agency ombuds, while allowing for differences
in constituencies (whether primarily internal or external), type of office (advocate, analytic,
organizational, etc.), and agency missions.
3.

Leadership Support.

(a)

Agency leadership should provide visible support, renewed as leadership changes,

for the role of ombuds offices in the agency and their standards, including independence,
confidentiality, and impartiality.

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Final Report to ACUS for Conference Consideration (11/2016)

(b)

Agency leadership should consider carefully any specific recommendations for

improved agency performance that are provided by agency ombuds.
4.

Independence.

(a)

To promote the effectiveness and independence of ombuds offices, agencies

should consider structuring ombuds offices so that they are perceived to have the necessary
independence and are separate from other units of the agency. To ensure adequate support from
agency leadership, ombuds offices should report to an agency official at the highest level of
senior leadership. Ombuds offices should not have duties within the agency that might create a
conflict with their responsibilities as a neutral, and their budgets should be publicly disclosed.
(b)

The agency should ensure that the ombuds has direct access to the agency head

and to other senior agency officials, as appropriate. Whether by statute, regulation, or charter,
ombuds should expressly be given access to agency information and records pertinent to the
ombuds’ responsibilities as permitted by law.
(c)

Ombuds and the agencies in which they are located should clearly articulate in all

communications about the ombuds that the ombuds office is independent and specifically not a
conduit for notice to the agency.
(d)

Federal ombuds should not be subject to retaliation, up to and including removal

from the ombuds office, based on their looking into and assisting with the resolution of any
issues within the ombuds’ area of jurisdiction.
5.

Confidentiality.

(a)

Consistent with the generally accepted interpretation of ADRA § 574, as applied

to alternative dispute resolution offices, agencies should understand and support that the Act’s
requirements for confidentiality attach to communications that occur at intake and continue until
the issue has been resolved or is otherwise no longer being handled by the ombuds, whether or
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Final Report to ACUS for Conference Consideration (11/2016)

not the constituent ever engages in mediation facilitated by the ombuds office. Restrictions on
disclosure of such communications, however, should not cease with issue resolution or other
indicia of closure within the ombuds office.
(b)

Agencies (or other authorizers) should articulate the scope and limits of the

confidentiality offered by ombuds offices in their enabling documents (whether statute,
regulation, charter or other memoranda) as well as on the agency website, in brochures and any
other descriptions or public communications about the office utilized by the office or the agency.
(c)

Agency leadership and management should not ask for information falling within

the scope of confidentiality offered by the ombuds office.
(d)

If information is requested from an ombuds during discovery in litigation, or in

the context of an internal administrative proceeding in connection with a grievance or complaint,
then the ombuds should seek to protect confidentiality to the fullest extent possible under the
provisions of ADRA § 574, unless otherwise provided by law. Agencies should vigorously
defend the confidentiality offered by ombuds offices.
6.

Impartiality. Ombuds should conduct inquiries and investigations in an impartial

manner, free from conflicts of interest. After impartial review, ombuds may appropriately
advocate with regard to process. An ombuds established with advocacy responsibilities may also
advocate for specific outcomes.
7.

Legal Issues. Federal ombuds should consider potential conflicts in the following

(a)

The relationships among their statutory duties to report information, the

areas:

requirements of ADRA § 574(a)(3) on confidentiality, their agency’s mission, and the
professional standards to which they adhere.

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Final Report to ACUS for Conference Consideration (11/2016)

(b)

The requirements and interrelationship of the Federal Records Act, the Freedom

of Information Act, and the Privacy Act, with regard to agency records and other documentation.
(c)

The effect on confidentiality of the provision in the Federal Service Labor-

Management Relations Statute, 5 U.S.C. § 7114, where applicable, pursuant to which the union
may be entitled to notice and an opportunity to be present at meetings with bargaining unit
employees.
8.

Staffing.

(a)

Agencies should reinforce the credibility of federal ombuds by appointment of

ombuds with sufficient professional stature, who also possess the requisite knowledge, skills, and
abilities. This should include, at a minimum, knowledge of informal dispute resolution practices
as well as, depending on the office mandate, familiarity with process design, training, data
analysis, and facilitation and group work with diverse populations. Agency ombuds offices
should also seek to achieve the necessary diversity of ombuds skills and backgrounds on their
staffs to credibly handle all matters presented to the office.
(b)

While the spectrum of federal ombudsmen is too diverse to recommend a single

federal position classification, job grade, and set of qualifications, agencies and the Office of
Personnel Management should consider working collaboratively, in consultation with the
relevant ombuds professional associations, to craft and propose appropriate job descriptions,
classifications, and qualifications, as set forth in the preceding subsection, covering the major
categories of federal ombuds.
9.

Training and Skills.

(a)

To promote accountability and professionalism, agencies should provide training

to ombuds with regard to standards and practice, whether offered by one of the ombuds
professional organizations or working groups, or from within the government.
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Final Report to ACUS for Conference Consideration (11/2016)

(b)

Ombuds should identify steps to build general competency and confidence within

the office and to provide specific support to ombuds when cases become highly emotional or
complex. More generally, as a regular practice to support and improve their skills, federal
ombuds should participate in relevant professional working groups or ombuds association
training programs.
(c)

Ombuds offices should consider the use of developmental assignments via details

to other agencies or offices, as appropriate, supplemented by mentoring, which can be helpful as
part of their training program.
10.

Access to Counsel. To protect the independence and confidentiality of federal

ombuds, agencies should ensure, consistent with available resources, that ombuds have access to
legal counsel for matters within the purview of the ombuds, whether provided within the agency
with appropriate safeguards for confidentiality, by direct hiring of attorneys by the ombuds
office, or under an arrangement enabling the sharing across agencies of counsel for this purpose.
Such counsel should be free of conflicts of interest.
11.

Physical Facilities. To reinforce confidentiality and the perception of

independence, to the fullest extent possible and consistent with agency resources, the agency
should ensure that the physical ombuds office and telephonic and online communications
systems and documentation enable discreet meetings and conversations.
12.

Evaluation. Each ombuds office should, as a regular professional practice, ensure

the periodic evaluation of both office management and program effectiveness for the purposes of
continual improvement and accountability.
13.

Providing Information.

(a)

Ombuds offices should provide information about relevant options to visitors to

the ombuds office, including formal processes for resolving issues, and their requirements, so
PART 4: The Recommendation

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Final Report to ACUS for Conference Consideration (11/2016)

that visitors do not unintentionally waive these options by virtue of seeking assistance in the
ombuds office. Correspondingly, ombuds offices should not engage in behavior that could
mislead employees or other visitors about the respective roles of the ombuds and those entities
that provide formal complaint processes.
(b)

Agencies should disclose publicly on their websites the identity, contact

information, statutory or other basis, and scope of responsibility for their ombuds offices, to the
extent permitted by law.
(c)

Agency ombuds offices should explore ways to document for agency senior

leadership, without breaching confidentiality, the value of the use of ombuds, including
identification of systemic problems within the agency and, where available, relevant data on cost
savings and avoidance of litigation.
14.

Records Management. Federal ombuds offices should work with agency records

officials to ensure appropriate confidentiality protections for the records created in the course of
the office’s work and to ensure that ombuds records are included in appropriate records
schedules.
15.

Agency-wide Considerations.

(a)

Ombuds offices should undertake outreach and education to build effective

relationships with those affected by their work. Outreach efforts should foster awareness of the
services that ombuds offer, to promote understanding of ombuds (and agency) processes and to
ensure that constituents understand the role of the ombuds and applicable standards.
(b)

To ensure that there is a mutual understanding of respective roles and

responsibilities within the agency, ombuds offices should work proactively with other offices
and stakeholders within their agencies to establish protocols for referrals and overlap, to build
cooperative relationships and partnerships that will enable resolutions, and to develop internal
PART 4: The Recommendation

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Final Report to ACUS for Conference Consideration (11/2016)

champions. Such initiatives also help the ombuds to identify issues new to the agency, as well as
patterns and systemic issues, and to understand how the ombuds can use the resources available
to add the most value. Outreach should be ongoing to keep up with the turnover of agency
officials and constituents and should utilize as many communications media as appropriate and
feasible.
16.

Presidential Action. The President should create an entity within the Executive

Branch to serve as a central resource for agency ombuds to address matters of common concern
and to support federal ombuds integrity, effectiveness, and professionalism by developing
policies, technical standards, and standards for evaluation.

PART 4: The Recommendation

15


Administrative & Regulatory Law News

Section of Administrative Law & Regulatory Practice

Vol. 38, No. 3

American Bar Association

Spring 2013

Mapping the
Executive Branch
Also In This Issue
New and Improved Notice and Comment Blog
Promoting Ombuds in Healthcare Exchanges

8TH ANNUAL
HOMELAND
SECURITY
INSTITUTE
JUNE
20–21,
2013 n WASHINGTON,
2009 FALL
CONFERENCE
n LAW
OCTOBER
22 –n 23,
2009
n WASHINGTON,
DC DC

Mapping the Contours of
the Federal Government
By John M. Kamensky*

P

resident Obama has called several
times for a “21st century government” and the need to reorganize:
“We can’t win the future with a government of the past.”1 But before policymakers
reorganize, they need to understand how
the government is currently organized
and whether the original rationale behind
that organizational construct still holds.
Typically, the focus of policy makers is on
the hierarchical structure of a department
or agency. But many of the important
elements of how an agency operates,
and why, are below the surface.These
elements include the interactions among
agencies, their cultures, and an understanding of their existing forms. However,
there is no comprehensive “map” of the
federal government that covers all of these
elements. But, courtesy of the Administrative Conference of the U.S., there is now
an update of an earlier “map” originally
created in 1980 by the Congressional
Research Service.2 This new Sourcebook
of United States Executive Agencies3 was
prepared by David E. Lewis and Jennifer L.
* Senior fellow with the IBM Center for
the Business of Government; fellow of the
National Academy of Public Administration;
and public member of the Administrative
Conference of the U.S. This article was
adapted from an earlier article by the author,
How Big is Government? New “Map”
Shows Us Nobody Knows, that appeared in
Government Executive on January 16, 2013.
Available at http://www.govexec.com/.
1
President Barack Obama, State of the Union
Address, January 25, 2011.Available at: http://www.
whitehouse.gov/the-press-office/2011/01/25/
remarks-president-state-union-address
2
Senate Committee on Governmental
Affairs, 96th Congress, “The Federal Executive Establishment: Evolution and Trends”
(Committee Print 1980).This report was
authored by Ronald C. Moe of the Congressional Research Service.
3
Administrative Conference of the U.S.
(2012) Sourcebook of United States Executive Agencies is available for free on the web at: http://
www.acus.gov/research-projects/federal-executive-establishment. Alternatively, the Sourcebook
can be purchased for $16 in book form from
the Government Printing Office.

Spring 2013

Selin, ofVanderbilt University and released
in December 2012 by the Administrative
Conference.
The Sourcebook, according to its
authors, “describes the evolution of
the current executive establishment,
looks backward to understand what
now exists, and analyzes trends to see
what may be coming.”4 So it is not
just a simple set of organization charts
of various agencies, with statements
of key missions and positions.Those
exist in the annually prepared United
States Government Manual 5 and in the
quadrennially prepared “Plum Book,”6
which lists all political and policy positions in the executive branch.

How Many Government Agencies
Are There?

You would think there would be a
simple answer. However, the authors
note that “there is no authoritative list of
government agencies”7 and that “many
federal entities do not neatly reside in
the executive branch.”They observe
that the official Government Manual
lists 96 independent executive units
and 220 components of the executive
departments, while the website USA.gov
lists 137 independent executive agencies
with 268 components. Other sources list
different numbers. So the first section of
the report addresses the question “What
is a Federal Agency?” and comes to
no real conclusion because “Congress
defines what an ‘agency’ is in relation to
Id. at 1.
National Archives and Records Administration, United State Government Manual (U.S.
Superintendent of Documents:Washington,
DC) 2012. Available at: www.usgovernmentmanual.gov.
6
House Committee on Oversight and
Government Reform, 112th Congress,
2nd Session, Committee Print, United
States Government Policy and Supporting
Positions—2012 (U.S. Superintendent of
Documents:Washington, DC) 2012.
7
Sourcebook, at 14.
4
5

3

particular laws rather than provide one
overarching definition.”8 For example,
is the Federal Agricultural Mortgage
Corporation a government agency? It is
governed by a board in which two-thirds
of the members are selected by private
shareholders, not the President.What about
venture capital funds, such as In-Q-Tel?
Not even the courts have offered
a definitive answer; so, the authors
developed their own definition so
that they could provide a count.They
define an agency as “a federal executive
instrumentality headed by one or more
political appointees nominated by the
President and confirmed by the Senate
(the instrumentality itself rather than
its bureaus, offices or divisions).” 9
The next section of the report
describes those agencies, starting with
the Executive Office of the President,
the various executive departments, and
the various independent agencies. It
also provides an overview of the federal
personnel system, since an understanding
of how it evolved historically is important to interpreting the characteristics
of the various alternative personnel
structures that follow in the next section.
This section includes the historical trend
towards increased numbers of political
appointees, the creation of personnel
authorities for individual agencies that
vary from the core civil service overseen
by the Office of Personnel Management,
and the rise in the use of contractors to
deliver government services.

Characteristics of Federal Agencies
The heart of the Sourcebook is not a
mere count of agencies or how many
work for the government (a more
problematic number, if you cannot
count the number of agencies in the
first place, but the authors say it stands
at around 2.13 million or 2.85 million

continued on next page
8
9

Id. at 13.
Id. at 16.

Administrative and Regulatory Law News

civilians, depending on how you define
federal employees).10 The value of this
section of the report is in its exploration of the underlying characteristics of
agencies, which are detailed in a series
of tables that list all agencies (based
on the authors’ definition) and their
associated acronyms and that provide
answers to questions such as:
• How many agencies are inside the
Executive Office of the President?
• How many appointees are in each of
the Executive Departments?
• How many independent agencies
are there?
• Which bureaus have chiefs
appointed with fixed terms?
• What are the different agencyspecific personnel systems?
• Which agencies are excluded from
OMB review of their budgets, rulemaking, and legislative proposals?
• Which agencies have statutes that
provide monies other than through
appropriations?
• Which agencies have adjudicatory
authority? and
• Which Senate committees have
jurisdiction over the confirmation of
different agency nominees?
Each of the accompanying tables
provides rich color to understanding
the subtleties of various federal entities
and how any reorganization might
affect the balance of power between
them and their political masters—
either in Congress or the White House.
The Sourcebook ends with some insights
about the creation and design of federal
agencies, which could be useful context
in discussions to create new agencies,
or more importantly, in reorganization
efforts, which could be on the agenda in
coming years.While the default design
approach is to create an agency and locate
it within an existing department, there are
times, the authors note, when “Congress
and the President have chosen to deviate
from this design and insulate agencies
from the President and/or Congress.”11 In
some cases, this means insulating agencies
from the President by limiting his or her
appointment authority, creating multimember bodies, requiring fixed term
10
11

Id. at 12 n.27.
Id. at 98.

Administrative and Regulatory Law News

appointments, and limiting the President’s
authority to remove agency officials.
In other cases, it means limiting OMB
review of agency budget submissions
and/or proposed regulations, limiting
agency communications with Congress;
and/or permitting an agency to litigate
independently of the Department of
Justice.The Sourcebook’s tables describe
which agencies have these exceptions.

The authors also describe how some
agencies are insulated from congressional
influence by allowing them to collect
and spend revenues outside the appropriations process.
Understanding these subtleties, and
why they exist in the first place, are
important in any effort to reorganize
government.The authors provide a
roadmap of where to find them.

National Administrative Law
Judiciary Foundation
The National Administrative Law Judiciary Foundation (NALJF)
is the public interest arm of the National Association of Administrative
Law Judiciary (NAALJ). One of the Foundation’s major purposes
is to promote the study and research of administrative law and distribute this
knowledge to the administrative judiciary and the public.To further this purpose, a Fellowship
was endowed to encourage research and scholarship for improving administrative justice.

2013 FELLOWSHIP COMPETITION
NALJF is currently requesting applications for the 2013 Fellowship.The topic
for 2013 is: “The history of the Federal Administrative Procedure Act.”
To be considered, each submission should propose, for approval by the Fellowship Committee, a scholarly review of the law on the above topic.
ONLY ONE fellowship proposal will be chosen for the Fellowship.
All applications for the 2013 Fellowship must be in electronic format (Word
Format preferred) and must include the following documents: (1) an abstract or
an introduction to the proposed article; (2) a detailed outline for the proposed
article; (3) a writing sample; (4) curriculum vitae; and (5) a list of publications.
All submissions must be sent by e-mail to naalj@naalj.org, with a cc to julian.
mann@oah.nc.gov.
The deadline for all submissions is April 30, 2013.
The Fellowship Committee will review the submissions and select the Fellowship winner by May 31, 2013.
IMPORTANT NOTICE: Prior Fellowship winners, current members of the Fellowship Committee, current members of the NAALJ Journal Board of Advisors, and current
members and officers of the NAALJ Board MAY NOT APPLY for the Fellowship.
The Fellow will prepare an original article for publication in the Journal of
the National Association of Administrative Law Judiciary, and will deliver an
oral presentation at the 2013 NAALJ Annual Conference in Chicago, Illinois,
September 15-18, 2013.The final draft of the paper will be due January 1, 2014.
The Fellow will receive a $1,500 cash stipend, as well as transportation, accommodations, and meals, at the 2013 NAALJ Annual Meeting and Educational Conference.
Applications and inquiries regarding the Fellowship should be submitted by
e-mail to naalj@naalj.org, with a cc to the Hon. Julian Mann, Fellowship
Committee Chair julian.mann@oah.nc.gov.

4

Volume 38, Number 3