71st Plenary Agenda: Comments Due June 6 (ACUS Update)

by Emily Bremer — Wednesday, May 29, 2019@emilysbremer

The Administrative Conference will host its 71st Plenary Session on Thursday, June 13th at the George Washington University Law School, in the Jacob Burns Moot Court Room at 2000 H Street NW, Washington, DC 20052. The Assembly will consider amendments to ACUS’s bylaws and four recommendations. From the Federal Register notice announcing the meeting, the recommendations address the following subjects:

Agency Guidance Through Interpretive Rules. This proposed recommendation lists steps that agencies can take to offer members of the public the opportunity to propose alternative approaches to those presented in an interpretive rule and to encourage, when appropriate, public participation in the adoption or modification of interpretive rules. It largely extends to interpretive rules the best practices for statements of policy adopted in Recommendation 2017-5, Agency Guidance Through Policy Statements, with appropriate modifications to account for instances in which there are differences between interpretive rules and statements of policy.

Selection of Administrative Law Judges. This proposed recommendation addresses the processes and procedures that agency heads should consider establishing when exercising their authority under Executive Order 13843 to hire administrative law judges (ALJs). It encourages agencies to advertise ALJ positions in order to reach a wide pool of applicants, to publish minimum qualifications and selection criteria for ALJ hiring, and to develop policies for the review of ALJ applications.

Public Availability of Agency Guidance. This proposed recommendation offers agencies best practices for promoting widespread availability of guidance documents. It urges agencies to: Develop and disseminate internal policies for publishing, tracking, and obtaining input on guidance documents; post guidance documents online in a manner that facilitates public access; and undertake affirmative outreach to notify members of the public of new or updated guidance documents.

Revised Model Rules for Implementation of the Equal Access to Justice Act. This proposed recommendation proposes a substantial revision of the Conference’s 1986 model rules governing agency procedures for the submission and consideration of applications under the Equal Access to Justice Act, which requires the government to pay the expenses of certain prevailing parties in agency adjudications. The revised model rules reflect, among other things, changes in law and agency practice since 1986.

The proposed recommendations, supporting research reports, and other key documents related to each project can be found at the links above. Public participation and comments are welcome. Again, from the Federal Register notice:

Persons who wish to comment on any of the proposed recommendations may do so by submitting a written statement either online by clicking “Submit a comment” on the 71st Plenary Session web page . . . or by mail addressed to: June 2019 Plenary Session Comments, Administrative Conference of the United States, Suite 706 South, 1120 20th Street NW, Washington, DC 20036. Written submissions must be received no later than 10:00 a.m. (EDT), Thursday, June 6, to ensure consideration by the Assembly.

My previous coverage of these projects is available here.

This post is part of the Administrative Conference Update series, which highlights new and continuing projects, upcoming committee meetings, proposed and recently adopted recommendations, and other news about the Administrative Conference of the United States. The series is further explained here, and all posts in the series can be found here.


Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Emily Bremer

Emily S. Bremer is an Associate Professor of Law at the University of Notre Dame. Before joining the faculty, Professor Bremer taught at the University of Wyoming College of Law, served as the Research Chief of the Administrative Conference of the United States, worked as an associate in the telecommunications and appellate practice of Wiley Rein LLP, and clerked for Hon. Andrew J. Kleinfeld of the United States Court of Appeals for the Ninth Circuit. Her research focuses on administrative procedure and issues at the intersection of public and private governance, with a particular focus on the use of privately developed technical standards in government regulation.

One thought on “71st Plenary Agenda: Comments Due June 6 (ACUS Update)

  1. Daniel Solomon

    Executive Order 13843 is based on the false assumption that SCOTUS has ruled that Article II, Section 2 requires re-imposition of the spoils system. Lucia did not reach that position. It merely found that an agency head failed to appoint the Judge who heard Lucia’s case.

    There is no rational basis to conclude that agency heads cannot be required to consider a best qualified list.

    Until the Executive Order, ALJs were the only merit based judges in the United States system. If left to stand, there will be none. Appointment was based on scores achieved in a comprehensive testing procedure, including a four-hour written examination and an oral examination before a panel that includes an Office of Personnel Management representative, an American Bar Association representative, and a sitting federal ALJ. OPM did NOT select judges. They were ultimately selected by the employing agencies. In Lucia, the Commission failed to follow that procedure. Most other agencies were provided a best qualified list of three candidates.

    Meanwhile, logic supports that courts following Lucia must find that APA ALJ protections were wrongly assumed to have been eclipsed by the Civil Service Reform Act. Cases like Donovan v. Mahoney, wherein the DC Circuit found that ALJs are “mere” employees need to be revisited. ALJs are Constitutionally appointed.

    Using similar logic, loyal and trustworthy judges hearing SSA disability cases were compared to chicken processors. Does ACUS accept this line of reasoning?

    If the Executive Order applies to the academic world, imagine law professors being required to wear dunce caps and sambrinitos when appearing at ACUS.

    Dan Solomon


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