A Rare Separate Statement (ACUS Update)

by Emily Bremer — Thursday, Jan. 11, 2018@emilysbremer

Last week, I highlighted ACUS’s five recently adopted recommendations, including Recommendation 2017-5, Agency Guidance Through Policy Statements.  It is noteworthy that this recommendation was accompanied by a rare separate statement, this one from ACUS Senior Fellow Professor Ronald M. Levin.

Section 302.6(c)(1) of ACUS’s bylaws, which allows members to publish separate statements, provides that:

A member who disagrees in whole or in part with a recommendation adopted by the Assembly is entitled to enter a separate statement in the record of the Conference proceedings and to have it set forth with the official publication of the recommendation. A member’s failure to file or join in such a separate statement does not necessarily indicate his or her agreement with the recommendation.

Professor Levin’s statement addresses a point that was subject to significant discussion at the plenary session: whether the recommendation should address only policy statements or both policy statements and interpretive rules.  Professor Nicholas R. Parrillo‘s research report, which provided the foundation for the recommendation, focused primarily on policy statements.  This is the first and predominant reason why the Assembly decided not to expand the recommendation’s scope to include interpretive rules. Instead, the Assembly adopted a ancillary resolution expressing the “sense of the Conference” that a follow-up study of interpretive rules should be conducted.

Professor Levin wrote separately to express his disagreement with the Assembly’s decision to retain the narrower scope of the recommendation.  He explained:

The Assembly’s caution is understandable, but I will use this separate statement to emphasize that its ancillary resolution has pointed in the right direction.

The basic problem that Recommendation 2017-5 seeks to redress is that regulated persons sometimes feel that they have no choice other than to comply with a policy statement’s position, even if they disagree with it.  The Recommendation seeks to mitigate that problem by suggesting ways in which an agency can give those persons a fair opportunity to ask the agency to reconsider and perhaps change its position.  At the same time, the Recommendation’s solutions are made “subject to considerations of practicability and resource limitations,” so as to avoid deterring agencies from giving advice that the public desires.

Essentially the same analysis can also be applied to interpretive rules:  The relative proportion of law and policy in the document has little or nothing to do with either the agency’s interest in giving advice or the private party’s interest in being able to induce the agency to reconsider it.  Moreover, in practice, law and policy blend together in many guidance documents; thus, procedures that speak to one and not the other are bound to prove somewhat artificial.

As Professor Levin acknowledged, however, a second reason for the Assembly’s caution is that there emerged during the discussion some disagreement among the members as to whether there are differences between policy statements and interpretive rules that would warrant different recommendations.  Again, from Professor Levin’s statement:

The Assembly was mindful that opinions have differed on the question of whether, for procedural purposes, interpretive rules can be binding in a sense that policy statements cannot be.  As just suggested, I myself believe the answer is no, but some agency lawyers think otherwise.  Ultimately, however, that divergence in opinion should not prevent the Conference from moving forward with a recommendation in the next phase of its inquiry.  As with most Conference pronouncements, the principal goal should be to articulate recommended practices, not to opine about the law.

The Assembly’s caution in this instance is typical: the members are generally wary of resolving significant disagreements on the floor at the plenary.  The time for debate at the plenary is short.  And the members generally prefer for all matters to be thoroughly researched and subject to committee discussion before the Assembly acts.  In my view, this is as it should be.  Indeed, that’s why I voted to retain the narrower scope of the recommendation and suggested the “sense of the Conference” resolution for future study of interpretive rules.  Professor Levin’s views are sure to influence that work, and I look forward to it.  In the meantime, I urge you to read his entire statement (it appears after the recommendation, here).

As noted above, separate statements are rare.  Professor Levin’s is only the second such statement since the agency’s 2010 rebirth.  The first was published by Government Member Elana Tyrangiel, then-Acting Assistant Attorney General, U.S. Department of Justice, expressing DOJ’s objection to the adoption of Recommendation 2012-6, Reform of 28 U.S.C. Section 1500.  (I co-authored the report underlying this recommendation, with Professor Jonathan R. Siegel.)  Tyrangiel’s separate statement was exceptional for another reason as well: it expressed an agency’s disagreement with an ACUS recommendation.  Traditionally, and as reflected in Section 302.2(a)(1) of the ACUS bylaws, members participate in the Conference’s work in their personal capacity:

Each member is expected to participate in all respects according to his or her own views and not necessarily as a representative of any agency or other group or organization, public or private.

Finally, this all brings to mind a terrific article, Administrative Dissents, by Professor Sharon B. Jacobs, which was recently published in the William & Mary Law Review.  Here’s the abstract:

Commissioners, like judges, dissent. They do so at length, with vigor, and with persistence. And yet, while separate judicial decisions are the subject of a rich literature, their administrative counterparts have long languished in obscurity. A closer look is warranted, however, because studying administrative dissent can enhance our understanding of internal agency operations as well as the relationship between agencies and other actors. This article presents the results of an original review of separate statements at the Federal Energy Regulatory Commission and the Nuclear Regulatory Commission dating back four decades. It uses these findings to dispel two stubborn myths about administrative commissions: the myth of consensus among commissioners and the myth of homogeneity across commissions. The article also tells a larger institutional story about the utility of separate statements in constraining bureaucratic discretion. Commissioner dissents and concurrences ameliorate the principal-agent problem inherent in delegations of legislative authority by providing both Congress and the President with better information about the preferences and behavior of individual commissioners. Dissents and concurrences can also improve decision making quality within the agency, thereby minimizing the risk of arbitrariness. An emerging judicial doctrine of “deliberation-forcing” as a component of arbitrary and capricious review can enhance this effect and the article proposes that similar “deliberation-forcing” inform judicial review of agency interpretations of law under Chevron. The article concludes by proposing a framework in which to assess the costs and benefits of separate statements and suggesting avenues for further research.

Professor Jacobs presented an early draft of this article at the First Annual Administrative Law New Scholarship Roundtable in June 2015.  This conference, which is a joint project of four schools (Michigan State University, University of Michigan, Ohio State University, and University of Wisconsin), has drawn excellent scholars and papers in just its first two years.  My co-blogger, Chris Walker, is one of the organizers.  If you’re an administrative law scholar, be on the look-out for this year’s call for papers–the deadline for abstract submissions is typically in March.


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.

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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.

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