News from ACUS (May 2024)

This monthly newsletter provides a roundup of recent, ongoing, and upcoming initiatives from the Administrative Conference of the United States. Sign up here to get the newsletter delivered to your inbox each month.

In this issue:

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81st Plenary Session

ACUS has released the full program for the 81st Plenary Session on Thursday, June 13, 2024 (9:00 a.m.–4:45 p.m. ET).

Following remarks by ACUS Senior Fellow and former Secretary of Labor Eugene Scalia, the full ACUS membership will consider four proposed recommendations developed by committees over the past few months:

  • Choice of Forum for Judicial Review of Agency Rules
  • Individualized Guidance
  • Participation of Senate-Confirmed Officials in Administrative Adjudication
  • Congressional Constituent Service Inquiries

Click here to visit the plenary session webpage.

Forum: International Regulatory Cooperation

ACUS is hosting a public forum on Monday, June 3 (9:30 a.m. to 3:00 p.m. ET) focused on the past, present, and future of international regulatory cooperation.

Across three panels, federal and international regulators, academic scholars, practitioners, and other experts will discuss federal agencies' experiences since 2012, when President Obama issued Executive Order 13609 (“Promoting International Regulatory Cooperation”), and remaining barriers and potential best practices.

ACUS is pleased to partner with Professors Kathleen Claussen (Georgetown Law), David Zaring (Wharton), and Elena Chachko (Berkeley Law) in organizing this event.

The event will take place in Washington, D.C., with virtual attendance available. A full agenda and registration information are available at the link below.

Click here to learn more.

Individualized Guidance

In last month’s newsletter we highlighted two of the four projects the full ACUS membership will consider at the upcoming 81st Plenary Session. This month we highlight two more projects: Individualized Guidance and Participation of Senate-Confirmed Officials in Administrative Adjudication.

Federal agencies routinely communicate with the public through guidance. Agencies use guidance to explain how they propose to exercise discretionary powers and how they interpret statutes and rules. Guidance comes in many forms: written and unwritten, authoritative and non-authoritative, significant and routine, and directed internally to agency personnel and externally to people outside the government.

ACUS has adopted many recommendations and produced other resources to help federal agencies effectively use guidance, develop guidance documents, and make guidance documents publicly available.

Agencies issue lots of guidance documents directed to the public generally. But agencies also provide guidance when responding to individual requests for advice. This spring, ACUS has been working to identify best practices for agency processes for receiving and responding to requests for advice from members of the public.

The Committee on Rulemaking, chaired by ACUS Public Member Bertrall Ross, has developed a proposed recommendation that addresses topics such as:

  • Processes for members of the public to request guidance from agencies;
  • Agency practices for drafting responses to guidance requests, including the personnel involved and mechanisms to ensure accuracy and consistency;
  • The public availability of individualized guidance documents; and
  • The extent to which members of the public can rely on legal interpretations and policy statements made in individualized guidance documents.

The Committee is assisted by consultant Shalini Ray (Alabama Law), who prepared a draft report to ACUS to inform the development of recommendations. A final report will be available soon.

The full ACUS membership will consider the proposed recommendation at the 81st Plenary Session on June 13.

Click here to learn more about this project.

Participation of Senate-Confirmed Officials in Administrative Adjudication

Tens of thousands of federal agency officials participate in administrative adjudication. Most are career civil servants hired and supervised under the civil service laws. Several thousand, like administrative law judges, are appointed by an agency head. And some, like the heads of many agencies, are appointed by the President with the advice and consent of the Senate. (These officials are commonly referred to as “PAS” officials.)  

PAS officials play an important role in directing and supervising programs of agency adjudication. But many PAS officials also participate directly in the adjudication of individual cases. Questions regarding whether, when, and how PAS officials adjudicate cases are not new, but they gained new salience following the Supreme Court’s 2021 decision in United States v. Arthrex.

This spring, ACUS has been working to answer those questions and identify best practices for the participation of Senate-confirmed officials in administrative adjudication. The Committee on Adjudication, chaired by ACUS Government Member Nadine Mancini, has developed a proposed recommendation that:

  • Examines principles and practicalities that agencies should consider in structuring participation by PAS officials in the adjudication of cases; and
  • Identifies best practices for developing and communicating relevant policies regarding such participation.

The Committee was informed by a draft report prepared by ACUS staff attorneys. A final report will be available soon.

The full ACUS membership will consider the proposed recommendation at the 81st Plenary Session on June 13.

Click here to learn more about this project.

Between the Lines

In the newest episode of ACUS’s podcast, Chair Andrew Fois explores online processes in agency adjudication with Government Member and  Committee on Adjudication Chair Nadine Mancini and Deputy Research Director Matt Gluth and informal adjudication with Professor Michael Asimow.

Click here to listen now.