News from ACUS (August 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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Webinars: Recent Supreme Court Decisions

A virtual panel discussion of Ohio v. EPA will take place August 13, 2024 (1:30 p.m. – 2:45 p.m. ET). Kate Shaw (Penn Law) will moderate the discussion, featuring Nicholas Bagley (Michigan Law), Allyson Ho (Gibson Dunn), and Stephanie Tatham (OIRA).

Register to attend here.

Recordings of the first three panels are available on the ACUS website:

  • Loper Bright Enterprises v. Raimondo. Cary Coglianese (Penn Law) moderated a discussion featuring Jack Beermann (BU Law), Abbe Gluck (Yale Law), Elbert Lin (Hunton Andrews Kurth), and Victoria Nourse (Georgetown Law).
  • SEC v. Jarkesy. Matthew Wiener (Penn Law) moderated a discussion featuring Jennifer Dickey (U.S. Chamber of Commerce), Jeffrey Lubbers (AU Law), and Christopher Walker (Michigan Law).
  • Corner Post v. Federal Reserve. Elizabeth Papez moderated a discussion featuring Aditya Bamzai (UVA Law), John Duffy (UVA Law), Jonathan Siegel (GW Law), and Allison Zieve (Public Citizen).

Nonlawyer Assistance and Representation

ACUS is requesting public input on strategies for expanding assistance and representation for members of the public who engage with administrative programs and participate in agency adjudicative processes. Comments should be submitted to info@acus.gov by August 31, 2024.

The request is part of an ongoing project, Nonlawyer Assistance and Representation, that explores how nonlawyers represent and assist parties in administrative proceedings and seeks to identify potential strategies for expanding access to representation. Amy Widman (Rutgers Law) is serving as the consultant for this project.

Between the Lines

In the newest episode of ACUS’s podcast, Chair Andrew Fois updates listeners on the Supreme Court’s recent decisions in Loper Bright, Jarkesy, and Corner Post; speaks with an expert guest about his interpretation of the significance of Loper Bright; and discusses agency best practices for managing congressional constituent service inquiries (the subject of a recently adopted recommendation).

Recent ACUS Recommendations

ACUS adopted four recommendations at the 81st Plenary Session in June:

  • Recommendation 2024-1: Choice of Forum for Judicial Review of Agency Rules. This recommendation provides 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. The recommendation also identifies common statutory ambiguities that Congress should avoid in drafting new or amending existing statutes that provide for judicial review of agency actions.
  • Recommendation 2024-2: Individualized Guidance. This recommendation offers 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 will address 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.
  • Recommendation 2024-3: Senate Confirmed Officials and Administrative Adjudication. This recommendation 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, the 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.
  • Recommendation 2024-4: Agency Management of Congressional Constituent Service Inquiries. This recommendation 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 staff.