At its plenary session in December, the Administrative Conference of the United States (ACUS) voted to adopt a recommendation to improve precedential decision making in agency adjudication. This recommendation is based on my report with Melissa Wasserman and Matt Wiener entitled Precedential Decision Making in Agency Adjudication.

Last week, those recommendations were published in the Federal Register here. Here is the preamble to the ACUS recommendation (footnotes omitted):

It is a tenet of our system of justice that like cases be treated alike. Agencies use many different mechanisms to ensure such consistency, predictability, and uniformity when adjudicating cases, including designating some or all of their appellate decisions as precedential. Agencies can also use precedential decision making to communicate how they interpret legal requirements or intend to exercise discretionary authority, as well as to increase efficiency in their adjudicative systems.

An agency’s decision is precedential when an agency’s adjudicators must follow the decision’s holding unless the precedent is distinguishable or until it is overruled. Many agencies use some form of precedential decision making. Some agencies treat all agency appellate decisions as precedential, while others treat only some appellate decisions as precedential. Additionally, some agencies highlight nonprecedential decisions that may be useful to adjudicators by labeling them “informative,” “notable,” or a similar term. In any of these cases, precedential decisions can come from an agency head or heads, adjudicators exercising the agency’s authority to review hearing-level decisions, adjudicators who review hearing-level decisions but whose decisions are subject to (usually discretionary) agency-head review, or adjudicators other than the agency head who have statutory authority to issue final decisions. Rarely do hearing-level adjudicators issue precedential decisions.

This Recommendation provides best practices for agencies in considering whether and how to use precedential decisions in their adjudicative systems. It begins by recommending that agencies determine whether they issue appellate decisions that may lend themselves to use as precedent and, if they do, whether to treat all or some appellate decisions as precedential. For agencies that treat only some decisions as precedential, the Recommendation sets forth criteria for deciding which ones to treat as such, and it identifies procedures for agencies to consider using when designating decisions as precedential, such as the solicitation of public input.

For agencies that use some form of precedential decision making, this Recommendation provides best practices for identifying decisions which are precedential and making information about such decisions available internally and to the public. Some of these practices build on the Freedom of Information Act’s requirement that agencies post on their websites all final orders and opinions and its general prohibition against agencies relying on, using, or citing an order or opinion as precedent against a private party if it has not been indexed and posted online.

The Recommendation concludes by urging agencies to address their use of, and procedures for, precedential decision making in procedural rules published in the Federal Register and Code of Federal Regulations.

Our report that served as the basis for the recommendation is available here.