ACUS Recommendation 2016-4 Identifies Three Kinds of Federal Agency Adjudication Rather Than Just Two, by Michael Asimow

by Guest Blogger — Monday, Jan. 2, 2017

Michael AsimowThis post is intended to update you on a new Administrative Conference recommendation and to ask for your assistance in expanding the research underlying that recommendation.

At the December plenary session, ACUS adopted Recommendation 2016-4, “Evidentiary Hearings Not Required By The Administrative Procedure Act.”

The underlying premise of Rec. 2016-4 is that there are three types of federal administrative adjudication (not just two that are conventionally identified as “formal” and “informal”): Type A (governed by the APA), Type B (legally required evidentiary hearings but not governed by the APA), and Type C (no legally required evidentiary hearing).  Type B involves a large number of adjudicatory schemes, including immigration, veterans’ benefits, merit system protection, environmental appeals, patent and trademark appeals, EEOC federal government discrimination, and numerous others.  Type B should not be referred to as “informal adjudication.”  That’s a major misnomer, because many Type B hearings are quite formal—more formal than many Type A hearings (particularly those under Social Security).  Only Type C should be called “informal adjudication.”

Rec. 2016-4 suggests about thirty  “best practices” for procedural regulations governing Type B adjudication. Because all Type B adjudication involves evidentiary hearings required by statute or regulation, it is practicable to state best practices for those hearings.  If you’re an agency staff member working on an update of your agency’s procedural regulations (or writing the regs for a newly established Type B scheme), you’ll find this checklist useful.  Same if you’re in the private sector and commenting on proposed agency procedural regs.  My consultant’s report includes analysis of the world of Type B adjudication as well as ten case studies.   You can find it here.

And now to my request for help:  I’ll be writing a book for ACUS based on this research that will describe Type C adjudication as well as Type B and hopefully propose best practices for at least some kinds of Type C adjudication. Type C, of course, covers a vast hodgepodge of adjudicatory schemes (meaning legally binding individualized determinations) by federal agencies that are resolved without evidentiary hearings.  They range from the trivial (e.g. the legendary forest ranger allocating national forest campsites) to the quite consequential, such as restoring a terminated pension plan, as in PBGC v. LTV Corp., 496 U.S. 633 (1990), or denying a bank charter application, as in Camp v. Pitts, 411 U.S. 138 (1973).  But how do I identify these schemes?

Nearly all of the readers of this blog are experts in the processes of one or more federal agencies in addition to being gurus of administrative law.  Can you put on your thinking caps and identify some Type C schemes in the agencies with which you’re familiar? These will often be low-visibility, seldom discussed types of cases, often with low case loads.  They may involve grant making, permitting, inspections, licensing, benefits, immigration status, various kinds of business regulation, contracting, or what have you.  But what they have in common is that they result in legally binding individualized decisions rendered without evidentiary hearings. Such decisions are not subject to review in a subsequent administrative evidentiary hearing (though they might be subject to judicial review).

Please let me know about some Type C schemes you’ve encountered; it would be helpful (but not necessary) if you can furnish a reference to the statutory authority for the scheme and a cite to the procedural regulations (if any) that explain how the decisions are made.  You can write to me off-line at Asimow@law.stanford.edu.

Thanks very much and the happiest of New Years to all!

 

Michael Asimow is Visiting Professor of Law at Stanford Law School and Professor of Law Emeritus at UCLA School of Law.

 


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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