It’s been an exciting and productive summer here at the Administrative Conference of the United States (ACUS). Read on to learn more about the Conference’s recent activities, including the launch of four new research projects, the adoption of four new recommendations, and our recently concluded public forum, which brought together academics and practitioners from across the ideological spectrum in four panel discussions to explore how the Court’s recent administrative law decisions—including Loper Bright, Jarkesy, and Corner Post—might impact the way agencies administer federal programs.

Four New Study Projects Announced & Opportunities to Work with ACUS

On Wednesday, August 14, ACUS announced it is seeking researchers to serve as consultants on four new projects:

• Collection, Use, and Availability of Agency Adjudication Data: Through this project, ACUS will identify best practices to help agencies collect data about their adjudication systems, ensure data quality, use adjudication data effectively, and make adjudication data publicly available when appropriate. Among other topics, the project will address how agencies identify data elements most essential for improving the fairness, timeliness, efficiency, and quality of their adjudicatory processes; how agencies build capacity to identify those data elements; future integration of artificial intelligence and machine learning in data collection and analysis processes; how and when agencies should make data they collect publicly available; and data retention and security issues. 

• Consultation with State, Local, and Tribal Governments in Regulatory Policymaking: With this project, ACUS will identify best practices and recommendations to facilitate more effective consultation between federal agencies and state, local, and tribal officials during regulatory policymaking. Among other topics, it will address agency procedures for consulting with state, local, and tribal governments; approaches to identifying and engaging with appropriate state, local, and tribal officials; methods for utilizing feedback from state, local, and tribal governments in agency decision making; and common issues and challenges that agencies face in developing and implementing accountable processes for consultation.

• Obtaining Government Records for Use in Agency Proceedings: This project will examine circumstances in which parties are responsible for obtaining federal records for use in agency proceedings, circumstances in which agencies bear primary responsibility for obtaining federal records, and the procedures by which private parties and agency decision makers obtain federal records for use in agency proceedings. Based on that study, it will identify agency best practices to improve the fairness, accuracy, consistency, timeliness, and efficiency of agency decision making.

• Organization, Management, and Operation of Agency Adjudication Offices: Through this project, ACUS will study how agency adjudication offices are organized and managed and recommend best practices that promote fair, accurate, consistent, efficient, and timely decision making. Among other topics, the project will address the placement of adjudication offices within agency hierarchies; the internal organization and management of adjudication offices; interactions between adjudication offices and other agency components; interactions between adjudication offices and entities outside the agency; the development of procedural rules and business practices governing adjudication offices; and adjudication offices’ access to human, financial, technological, and other resources.

The consultant(s) selected for each project will, among other things, conduct a study, prepare a research report, and work closely with ACUS members, staff, and committees to develop recommendations for action by federal agencies, the President, Congress, or the Judicial Conference of the United States. 

Proposals for all projects must be received by September 15, 2024, to be guaranteed consideration. To learn more about these projects, including instructions for submitting proposals, please click on the relevant link above or visit: www.acus.gov/page/consulting-rfps.

ACUS Adopts Four New Recommendations to Improve Administrative Procedure

On June 14, 2024, the ACUS Assembly convened in its 81^st Plenary Session to consider, amend, and ultimately adopt four new recommendations to improve the efficiency, adequacy, and fairness of federal administrative procedure.

Recommendation 2024-1, Choice of Forum for Judicial Review of Agency Rules

In Recommendation 2024-1, ACUS recommends that, when drafting a statute that provides for judicial review of agency rules, Congress ordinarily should provide that rules promulgated using notice-and-comment procedures are subject to direct review by a court of appeals. It also identifies common statutory ambiguities that Congress should avoid when drafting new or amending existing statutes that provide for judicial review of agency actions.

Readers are encouraged to contact Kazia Nowacki (knowacki@acus.gov) with any questions about Recommendation 2024-1.

Recommendation 2024-2, Individualized Guidance

In Recommendation 2024-2, ACUS provides best practices to promote fairness, accuracy, and efficiency in agency processes for providing written guidance in response to requests for advice from members of the public. Among other topics, it addresses processes for members of the public to request individualized guidance from agencies; agency practices for drafting responses to such requests, including the personnel involved and mechanisms to ensure accuracy and consistency; the public availability of individualized guidance documents; and policies regarding whether and when agencies should allow members of the public to rely on individualized guidance.

Readers that have questions about Recommendation 2024-2, its development, or how they might best operationalize its best practices are encouraged to contact Benjamin Birkhill (bbirkhill@acus.gov).

Recommendation 2024-3, Senate-Confirmed Officials and Administrative Adjudication

In this recommendation, ACUS examines, as a legal and practical matter, whether, when, how, and how often agency heads and other Senate-confirmed officials participate in the adjudication of cases across a range of federal administrative programs. For agencies that have decided to provide or are considering providing for participation by Senate-confirmed officials in the adjudication of individual cases, this recommendation identifies principles and practicalities that agencies should consider in structuring such participation and provides best practices for developing and communicating relevant policies regarding such participation.

For additional information on Recommendation 2024-3, readers are invited to contact Matthew Gluth (mgluth@acus.gov).

Recommendation 2024-4, Agency Management of Congressional Constituent Service Inquiries

In Recommendation 2024-4, ACUS identifies best practices for agencies to promote quality, efficiency, and timeliness in their procedures for managing and responding to congressional constituent service inquiries. Among other topics, it addresses the proper scope, content, internal dissemination, and public availability of such procedures; how agencies can use technology to streamline their management and resolution of constituent service inquiries; how agencies should adopt and evaluate constituent service-specific performance goals; and strategies for improving communication with Congressional offices and their constituent service staff.

I had the privilege of serving as ACUS’s staff counsel for this project and am now its Implementation Contact, so readers are invited to send their questions to me at cdryland@acus.gov.

ACUS Hosts Public Forum Series on Recent SCOTUS Administrative Law Decisions

On August 13, ACUS held the final event in our public forum series, Recent Administrative Law Developments in the Supreme Court: What’s Next for Agencies? Across four virtual panels—recordings of which are linked below—ACUS members and researchers from across the ideological spectrum discussed the significance of decisions from the Court’s 2023–2024 term for federal agencies.

During the first panel discussion, held on July 30, 2024, Jack Beermann (Boston U. School of Law), Abbe Gluck (Yale Law School and Yale Medical School), Elbert Lin (Hunton Andrew Kurth LLP), Victoria Nourse (Georgetown U. Law Center), and moderator Cary Coglianese (U. of Pennsylvania Carey Law School) discussed how Loper Bright Enterprises v. Raimondo, which “overruled” Chevron v. NRDC, might impact the way executive agencies administer federal regulatory programs and issue regulations.

At the second panel, also held on July 30, Jennifer Dickey (U.S. Chamber Litigation Center), Jeffrey Lubbers (American U. Washington College of Law), Christopher Walker (U. of Michigan Law School), and moderator Matthew Wiener (U. of Pennsylvania Carey Law School) explored how SEC v. Jarkesy, which held that “the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against him for securities fraud,” might affect the future of administrative adjudication.

During the third panel, held on August 1, Aditya Bamzai (U. of Virginia School of Law), John Duffy (U. of Virginia School of Law), Jonathan Siegel (The George Washington U. Law School), Allison Zieve (Public Citizen), and moderator Elizabeth Papez (Gibson Dunn & Crutcher LLP) discussed how Corner Post v. Board of Governors of the Federal Reserve System, which held that the APA’s statute of limitations for challenging an agency rule does not begin to run until the plaintiff is “injured” by it, might affect agencies and the regulatory programs they administer.

At the fourth and final panel in this series, held on August 13, Nicholas Bagley (U. of Michigan Law School), Allyson Ho (Gibson Dunn & Crutcher LLP), Stephanie Tatham (Office of Information and Regulatory Affairs), and moderator Kate Shaw (U. of Pennsylvania Carey Law School) examined how the Court’s decision in Ohio v. EPA—which granted plaintiffs’ application to stay an EPA rule pending appeal based on a finding that EPA “offered no reasoned response” to certain public comments made during the notice-and-comment period—might affect agencies’ rulemaking activities.

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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 prior posts in the series can be found here.

Conrad Dryland is an Attorney Advisor & Special Counsel to the Chair at the Administrative Conference of the United States. Any views expressed belong to the author and do not necessarily represent the views of the Administrative Conference or the federal government.