The ACUS Office of the Chair issues monthly Updates in Federal Agency Adjudication to share adjudication-related developments with agencies, Congress, and the public. This resource is for informational purposes only. Except as noted, these updates do not represent the position of ACUS or the federal government. Please contact Lea Robbins (lrobbins@acus.gov) with new developments, feedback, and corrections. For additional resources, visit www.acus.gov/adjudication.
ADMINISTRATIVE REVIEW
Bureau of Safety and Environmental Enforcement Appeal Criteria (DOI, Nov. 14). The Department of the Interior issued a final rule clarifying that the Bureau of Safety and Environmental Enforcement’s surety bond requirements are a jurisdictional precondition for filing an appeal of outer continental shelf civil penalties with the Interior Board of Land Appeals. The final rule takes effect January 13, 2025.
Adjudication of Transportation Invoice Audits (GSA, Nov. 26). The General Services Administration issued a final rule amending the Federal Management Regulation, which, among other things, clarifies GSA’s role in adjudicating disputes arising from audits of transportation invoices. Specifically, the final rule updates the regulatory text to expressly state that GSA’s authority and responsibility to audit and settle all transportation invoices is limited to “transportation claims which cannot be resolved by the agency procuring the transportation services, or the carrier or freight-forwarder presenting the bill.” The final rule takes effect December 26.
Discharge Appeal Review Board (DoD, Nov. 29). The Department of Defense issued an interim final rule implementing Section 523 of the National Defense Authorization Act for Fiscal Year 2020, which requires the DoD to provide Service members and their authorized representatives with one final review of requests for an upgrade in the characterization of a discharge or dismissal from the Armed Forces. The interim final rule establishes the Discharge Appeal Review Board (DARB) as the DoD authority responsible for considering such requests after all administrative remedies have been exhausted at the respective Military Departments’ Discharge Review Boards and Boards for Correction of Military/Naval Records. The interim final rule sets forth the procedures for a petitioner and their authorized representatives to request final review, the standards the DARB will apply when considering a petitioner’s request, and the procedures the Military Departments will follow after the DARB adjudicates the request. The interim final rule is effective November 29. Comments are due by January 28, 2025.
ENFORCEMENT
Reports on Enforcement. The Federal Energy Regulatory Commission and Securities and Exchange Commission released annual reports on enforcement summarizing the status and resolution of enforcement and adjudicatory matters, as well as highlighting agency enforcement priorities.
MANAGEMENT AND OPERATIONS
H.R.10107 (Nov. 8). Sponsored by Rep. Jimmy Panetta (D-CA-19), this bill was introduced in the House and referred to the Committee on Veterans’ Affairs to direct the Secretary of Veterans Affairs to expedite the processing of claims for disability compensation by veterans affected by major disasters.
New Priority Case Type for Reconsideration Appeals (SSA, Nov. 19). The Social Security Administration launched a limited proof-of-concept in Arkansas, Idaho, and Missouri, to introduce a new priority case type, Disability Determination Ready Claim (DDRC), for reconsideration of claims that are complete and not missing any documentation or forms. Qualifying claimants and their appointed representatives can opt in to the DDRC process to avoid delays related to case development. DDRC cases are flagged as “determination ready” and expedited.
Organization, Management, and Operation of Agency Adjudication Offices (ACUS). ACUS launched a project to 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. Jennifer Koh (Pepperdine Caruso School of Law) is serving as consultant.
Collection, Use, and Availability of Agency Adjudication Data (ACUS). ACUS launched a project to 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. Matthew Gluth, ACUS Deputy Research Director, is serving as in-house researcher.
PROCEDURAL RULES
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) and Glen Staszewski (MSU Law) are serving as consultants.
Agency Procedural Rules (ACUS). ACUS launched a project that will consist of a large-scale study of agency rules of practice and procedure. Among other topics, it will identify sources and definitions of procedural rules and subjects commonly addressed in them, and address agency discretionary authority in promulgating such rules, including the APA’s exemption from notice-and-comment rulemaking. This project will also explore agencies’ practices for seeking public engagement on proposed rules, general conventions for drafting rules, and review case law on the legal “bindingness” of procedural rules. Matthew Wiener (University of Pennsylvania Carey Law School) is serving as consultant.
PROGRAM INTEGRITY
Updated Waiver Procedures (SSA, Nov. 25). The Social Security Administration revised its overpayment waiver process to begin from a neutral position when determining fault for causing an overpayment; increase the resource limits to $6,000 for one person and $10,000 for a couple (plus $1,200 per additional dependent); and expand the vehicle exclusion to allow households to exclude two vehicles—or three in certain situations—from their resources. Changes were also made to presume the following people are unable to repay an overpayment: people receiving benefits from specific means-tested programs without requiring documentation of income, resources, or expenses; people with household income at or below 150 percent of the Federal Poverty Level and resources within the established limits; and people whose resources are within established limits and income does not exceed their ordinary and necessary household expenses by more than $250 per month.
REPRESENTATION
S.5325 (Nov. 14). Sponsored by Sen. Richard Blumenthal (D-CT), this bill was introduced in the Senate and referred to the Committee on Veterans’ Affairs to amend title 38 of the United States Code to promote assistance from persons recognized by the Secretary of Veterans Affairs for individuals who file certain claims under laws administered by the Secretary, and for other purposes.
Nonlawyer Assistance and Representation (ACUS). ACUS’ Committee on Adjudication drafted a proposed Recommendation that will be considered by the ACUS Assembly at the 82nd Plenary Session on December 12 that provides best practices for agencies to adopt to increase the availability of nonlawyer representation and assistance for participants in their adjudicative systems. It provides guidance on the establishment of rules authorizing qualification or, as appropriate, accreditation of nonlawyer representatives, how to make such processes accessible and transparent, and on strategies for coordinating with other government agencies and nongovernmental organizations to increase the availability of representation and assistance. The Committee was informed by a draft report by consultant Amy Widman (Rutgers Law School).
TECHNOLOGY
New Online Complaint Portal (USDA, Nov. 22). The U.S. Department of Agriculture launched a new online portal for managing civil rights discrimination complaints, the Program Discrimination Complaint electronic submission portal, which allows USDA customers who believe they have experienced discrimination in relation to USDA services, programs, or USDA-funded programs to electronically submit and track complaints throughout their lifecycle, as well as check the status of previously submitted USDA program discrimination complaints.
ADMINISTRATIVE REVIEW
H.R.10005 (Oct.18). Sponsored by Rep. Harriet M. Hageman (R-WY-AL), this bill was introduced in the House and referred to the Committee on Natural Resources to establish a process to expedite the review of appeals of certain decisions by the Department of the Interior. Specifically, the Expedited Appeals Review Act would provide entities before the Department of the Interior’s Board of Land Appeals (IBLA) with the opportunity to file for an expedited review if the IBLA fails to make a decision within 18 months of the appeal being filed. The IBLA would then have six months to resolve the case. Failure to do so would allow for that non-agency party to proceed to district court where they will be granted the opportunity to conduct discovery and develop the administrative record.
Appeal Rights for Certain Medicare Patients (CMS, Oct. 15). The Centers for Medicare & Medicaid Services issued a final rule implementing an order from the federal district court for the District of Connecticut in Alexander v. Azar, 613 F. Supp. 3d 559 (D. Conn. 2020), aff’d sub nom., Barrows v. Becerra, 24 F.4th 116 (2d Cir. 2022), which requires HHS to establish appeals processes for certain Medicare beneficiaries who are initially admitted as hospital inpatients but are subsequently reclassified as outpatients receiving observation services during their hospital stay and meet other eligibility criteria. The new appeals processes consist of expedited (prospective) appeals, standard appeals, and retrospective appeals. The final rule took effect October 11.
Removal Proceedings (DHS & DOJ, Oct. 7). The Department of Homeland Security and the Department of Justice issued a final rule revising an interim final rule (IFR) that established a limitation on asylum eligibility that applies to certain individuals who enter irregularly across the southern border during emergency border circumstances and revised certain procedures applicable to the expedited removal process during such periods to reduce the time required to apply consequences to those individuals and remove noncitizens who do not have a legal basis to remain in the United States. Based on public comments and the Departments’ experiences implementing the IFR’s provisions since early June, the final rule modifies the IFR’s thresholds, makes clarifying changes to the regulatory text, and implements two technical changes. The final rule took effect October 1. The final rule also solicited additional comments, which are due November 6.
ALTERNATIVE DISPUTE RESOLUTION
New Permanent ADR Program (MSPB, Oct. 8). The Merit Systems Protection Board launched a new permanent alternative dispute resolution (ADR) program, the Mediation Appeals Program (MAP), that provides mediation services for MSPB cases with a pending petition for review (PFR) before the Board. All parties must agree to use of PFR MAP by submitting a completed Agreement to Mediate Form, and all must agree on a resolution before any settlement is concluded. Unlike the traditional PFR process, the parties control the result of the case under the skilled guidance of a mediator, who will play no role in deciding the PFR if the parties do not reach a settlement.
CUSTOMER EXPERIENCE
Customer Service Upgrades (TMF, Oct. 22). The Technology Modernization Fund announced investments totaling $50.2 million aimed at modernizing critical services across two federal agencies. These initiatives span a wide range of improvements, including a major enhancement to identity and access management at the Department of Housing and Urban Development and three modernization efforts at the Social Security Administration focused on digitizing forms for an improved customer experience, streamlining beneficiary communications, and leveraging artificial intelligence to support disability claim processing.
MANAGEMENT AND OPERATIONS
MSPB Inherited Inventory Update (MSPB, Oct. 1). The Merit Systems Protection Board announced that, as of September 30, it has decided 94 percent of the inherited inventory cases that accrued while the Board lacked a quorum of members for over five years, during which time the Board could not decide any petitions for review or other headquarters cases requiring Board action.
Organization, Management, and Operation of Agency Adjudication Offices (ACUS). ACUS launched a project to 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. Jennifer Koh (Pepperdine Caruso School of Law) is serving as consultant.
Collection, Use, and Availability of Agency Adjudication Data (ACUS). ACUS launched a project to 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. Matthew Gluth, ACUS Deputy Research Director, is serving as in-house researcher.
PROCEDURAL RULES
Nuclear Regulatory Commission, et al. v. Texas, et al. (U.S. Supreme Court, Oct. 4). The Supreme Court granted the petition for a writ of certiorari to decide, among other things, whether the Hobbs Act, which authorizes a “party aggrieved” by an agency’s “final order” to petition for review in a court of appeals, allows nonparties to obtain review of claims asserting that an agency order exceeds the agency’s statutory authority.
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) and Glen Staszewski (MSU Law) are serving as consultants.
Agency Procedural Rules (ACUS). ACUS launched a project that will consist of a large-scale study of agency rules of practice and procedure. Among other topics, it will identify sources and definitions of procedural rules and subjects commonly addressed in them, and address agency discretionary authority in promulgating such rules, including the APA’s exemption from notice-and-comment rulemaking. This project will also explore agencies’ practices for seeking public engagement on proposed rules, general conventions for drafting rules, and review case law on the legal “bindingness” of procedural rules. Matthew Wiener (University of Pennsylvania Carey Law School) is serving as consultant.
PROGRAM MANAGEMENT
Certification of Final Determinations (Copyright Office, Oct. 4). The U.S. Copyright Office issued a final rule amending the process and fee to obtain a certified final determination from the Copyright Claims Board (CCB), which must be obtained and included in an application to confirm the relief awarded by the CCB in federal court for enforcement of the CCB’s award. The final rule makes the CCB responsible for handling such requests and lowers the fee for retrieval, copying, and certification of final determinations to $15 per record. The final rule is effective October 4.
Continuing Education Requirement for Licensed Customs Brokers (CBP, Nov. 1). Following issuance of a final rule in June 2023 requiring continuing education for individual brokers and setting forth the framework for administering the requirement, U.S. Customs and Border Protection issued a notice announcing that individual customs broker license holders may begin completing qualified continuing broker education courses on January 1, 2025. The notice also sets forth the criteria CPB used to select qualified accreditors, the list of CBP-selected qualified accreditors, and the period of award for these accreditors.
REPRESENTATION
Legal Assistance for Access to VA Programs Grant Pilot (VA, Oct. 2). The Department of Veterans Affairs issued a notice of proposed rulemaking to implement § 548(b) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, which requires the VA to establish a pilot program to assess the feasibility of awarding grants to eligible entities to establish new legal assistance clinics or enhance existing legal assistance clinics and pro bono efforts to provide certain legal assistance to veterans. The VA proposes to implement this pilot program by creating the Legal Services for Veterans—Legal Assistance for Access to VA Programs Grant Program in new part 81 of title 38 of the Code of Federal Regulations. The proposed rule provides proposed grant program eligibility criteria, application requirements, scoring criteria, constraints on the allocation and use of grant funds, and other requirements necessary to implement the grant program. Comments are due December 2.
Expanding Opportunities to Appear Before PTAB (USPTO, Oct. 10). The United States Patent and Trademark Office issued a final rule revising the rules for admission to practice before the Patent Trial and Appeal Board (PTAB) in proceedings under the Leahy-Smith America Invents Act. Specifically, the final rule excuses parties from the requirement to designate back-up counsel upon a showing of good cause; establishes a streamlined alternative procedure for recognizing counsel pro hac vice that is available when counsel has previously been recognized pro hac vice in a different PTAB proceeding; and clarifies that those recognized pro hac vice have a duty to inform PTAB of subsequent events that render inaccurate or incomplete representations they made to obtain pro hac vice recognition. USPTO did not move forward with the proposed revision to give parties the option to designate non-registered practitioners who are recognized pro hac vice as lead counsel and instead plans to explore a pilot project under which this would be permitted in some circumstances. The final rule is effective November 12.
Accreditation Process and Legal Education Requirements (VA, Oct. 11). The Department of Veterans Affairs issued a notice of proposed rulemaking to amend its regulations concerning accreditation of agents and attorneys authorized to assist claimants with the preparation presentation and prosecution of claims for VA benefits. The proposed rule would require applicants seeking accreditation as an agent or attorney to complete three hours of qualifying continuing legal education (CLE) before they become accredited and require accredited agents and attorneys to annually complete three hours of qualifying CLE. The proposed rule would also require agents and attorneys to notify the Office of the General Counsel within 30 days of any changes in contact information; modify the information that the VA collects during the application process; reverse the current order of events by administering the claims agent examination prior to conducting the character and fitness review so that an applicant for accreditation as a claims agent first pass the written examination before VA conducts its character and fitness review; and provide that no applicant shall be allowed to sit for the examination more than twice in any one-year period. Comments are due by December 10.
Fee Allocation and Direct Payment (VA, Oct. 25). The Department of Veterans Affairs issued a final rule addressing its process for reviewing, determining, and allocating reasonable fees for claim representation, and specifying the effect of a claims agent’s or attorney’s loss of VA accreditation on direct payment. Specifically, the final rule establishes reasonable default allocation rules for fee matters that either allocate the entire fee to an eligible agent or attorney who provided continuous representation in the case or provide for an equal split of the fee based on the number of eligible agents or attorneys plus the claimant. The final rule also limits direct fee payment to agents and attorneys who are accredited with the VA. The final rule is effective April 1, 2025.
Nonlawyer Assistance and Representation (ACUS). ACUS’ Committee on Adjudication held its second meeting on October 30 and drafted a proposed Recommendation on representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project maps and defines the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identifies areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It also provides best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. The Committee was informed by a draft report by consultant Amy Widman (Rutgers Law School).
TECHNOLOGY
AI Prohibited in Adjudication of Immigration Classifications (White House, Oct. 24). The Biden Administration released a memorandum titled “Memorandum on Advancing the United States’ Leadership in Artificial Intelligence; Harnessing Artificial Intelligence to Fulfill National Security Objectives; and Fostering the Safety, Security, and Trustworthiness of Artificial Intelligence,” which, among other things, prohibits covered agencies from using AI with the intent or purpose to adjudicate or otherwise render a final determination of an individual’s immigration classification, including related to refuge or asylum, or other entry or admission into the United States.
ADMINISTRATIVE REVIEW
Corrective Action Cases (MSPB, Sept. 30). The Merit Systems Protection Board announced that, effective October 1, most petitions for corrective action filed by the Office of Special Counsel under 5 U.S.C. § 1214 and 5 C.F.R. § 1201.128 will be handled by the MSPB chief administrative judges. Previously, these types of cases were among those assigned to administrative law judges from other agencies pursuant to interagency agreements with MSPB.
Director Review of PTAB Decisions (USPTO, Oct. 1). The United States Patent and Trademark Office issued a final rule governing the process for the review of Patent Trial and Appeal Board decisions in Leahy-Smith America Invents Act (AIA) proceedings by the USPTO Director. Specifically, consistent with the current interim process, the final rule allows a party to an AIA proceeding to request Director Review of (1) a decision on whether to institute an AIA trial, (2) a final decision in an AIA proceeding, (3) a panel decision granting a request for rehearing of a decision on whether to institute a trial or a final decision in an AIA proceeding, or (4) any other decision concluding an AIA proceeding. The final rule also allows the Director to initiate review of any such decision sua sponte within 21 days after the expiration of the period for requesting a rehearing; sets forth the timing and format of a party’s request for Director Review; addresses the impact of Director Review on the underlying proceeding at PTAB; clarifies the time by which an appeal to the U.S. Court of Appeals for the Federal Circuit must be filed; and provides that the Director, at their discretion, may delegate review of a decision in an AIA proceeding. The final rule takes effect October 31.
ENFORCEMENT
Compliance Outreach Seminar (SEC, Sept. 20). The Securities and Exchange Commission’s Compliance Outreach Program will host a virtual national seminar for investment companies and investment advisers on November 7. This seminar is jointly sponsored by the SEC’s Divisions of Examinations and Investment Management and the Asset Management Unit of the Division of Enforcement and is intended to help Chief Compliance Officers and other senior personnel at investment companies and investment advisory firms enhance their compliance programs for the protection of investors.
MANAGEMENT AND OPERATIONS
Organization, Management, and Operation of Agency Adjudication Offices (ACUS). ACUS launched a project to 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. Jennifer Koh (Pepperdine Caruso School of Law) is serving as consultant.
Collection, Use, and Availability of Agency Adjudication Data (ACUS). ACUS launched a project to 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. Matthew Gluth, ACUS Deputy Research Director, is serving as in-house researcher.
PROCEDURAL RULES
MSPB Appeals Procedures (MSPB, Sept. 9). The Merit Systems Protection Board issued an interim final rule updating its adjudicatory and operational regulations governing the processing of MSPB appeals. Among other things, the interim final rule modifies the authority of Board members or Board staff to take certain actions when the Board is unable to act due to vacancies, recusals, or other reasons; addresses the Board's decision-making authority when members of the Board are unable to reach a majority decision due to vacancies, recusals, or other reasons; modifies the Board's discovery procedures with respect to how parties serve discovery requests and responses and resolve discovery disputes; provides notice of the requirements to obtain a subpoena and modifies the Board's procedures regarding the filing and service of motions to quash a subpoena and the service and enforcement of subpoenas; requires that the parties certify that their pleading lengths comply with the limits imposed in the regulation; modifies the Board's procedures for petitions for enforcement; and clarifies that the Board's decision in a regulation review case will be considered a final decision of the Board subject to judicial review if the Board grants a request to review a regulation and considers the merits of the request. The interim final rule takes effect October 7, and any comments must be received by November 8.
Administrative and Enforcement Provisions (BIS, Sept. 16). The Bureau of Industry and Security issued a final rule revising the procedures for submitting voluntary self-disclosures (VSD) for exporters who believe they may have violated the Export Administration Regulations, or any order, license or authorization issued thereunder, to implement the VSD process that BIS announced in a series of policy memoranda since 2022. The final rule also provides clarified guidance on charging and penalty determinations in settlement of administrative enforcement cases. The final rule takes effect September 16.
Motion to Amend Practice and Procedures (USPTO, Sept. 18). After issuing a notice on September 17 extending the Motion to Amend (MTA) pilot program, the United States Patent and Trademark Office issued a final rule modifying the rules for amending patents in trial proceedings under the Leahy-Smith America Invents Act before the Patent Trial and Appeal Board (PTAB) to make permanent certain provisions of the MTA pilot program. Specifically, the final rule provides patent owners with the option to (1) request non-binding preliminary guidance from PTAB in an original MTA and (2) file a revised MTA after receiving PTAB’s preliminary guidance without the need for prior authorization. The final rule also revises the rules that allocate burdens of persuasion in connection with MTAs; clarifies that a preponderance of evidence standard applies to any new ground of unpatentability raised by PTAB; and confirms PTAB’s discretion to seek examination assistance at any time after any MTA has been filed if no petitioner opposes or all petitioners cease to oppose the MTA and consider information identified in response to a Board-initiated request for examination assistance. The final rule takes effect October 18.
Submission of Evidence (RRB, Sept. 25). The Railroad Retirement Board issued a final rule amending its regulations governing the submission of evidence in disability claims. The final rule requires claimants to inform about or submit all evidence known to them that “relates to” their disability claim, with exceptions for privileged communications and duplicates, and includes the duty to submit all evidence obtained from any source in its entirety, subject to one of the exceptions. The final rule takes effect November 25.
Disability or Death Benefit Claims Based on Toxic Exposure (VA, Oct. 1). The Department of Veterans Affairs issued a notice of proposed rulemaking to amend its adjudication regulations to implement provisions of the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), which amended procedures applicable to claims based on toxic exposure and modified or established presumptions of service connection related to toxic exposure. Pursuant to the PACT Act, the proposed rules would remove the manifestation period requirement and the minimum compensable evaluation requirement from Persian Gulf War claims based on undiagnosed illness and medically unexplained chronic multi-symptom illnesses. The proposed rules would also expand the definition of a Persian Gulf veteran; update the list of locations eligible for a presumption of exposure to toxic substances, chemicals, or airborne hazards based on service during the Persian Gulf War; and add presumptions of service connection for 23 diseases associated with exposure to toxins. To implement additional provisions of the PACT Act, the proposed rules would codify the procedure for determining when medical examinations and nexus opinions are required for claims that cannot be considered on a presumptive basis and the evidence establishes participation in a toxic exposure risk activity (TERA). Comments are due December 2.
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) and Glen Staszewski (MSU Law) are serving as consultants.
Agency Procedural Rules (ACUS). ACUS launched a project that will consist of a large-scale study of agency rules of practice and procedure. Among other topics, it will identify sources and definitions of procedural rules and subjects commonly addressed in them, and address agency discretionary authority in promulgating such rules, including the APA’s exemption from notice-and-comment rulemaking. This project will also explore agencies’ practices for seeking public engagement on proposed rules, general conventions for drafting rules, and review case law on the legal “bindingness” of procedural rules. Matthew Wiener (University of Pennsylvania Carey Law School) is serving as consultant.
PROGRAM INTEGRITY
VA Oversight of Disability Exam Contractors (GAO, Sept. 18). The Government Accountability Office provided testimony before the House Subcommittee on Disability Assistance and Memorial Affairs regarding the Department of Veterans Affairs’ oversight of contractors performing disability compensation examinations, specifically the VA’s procedures for overseeing contractors’ quality action plans, which are required to improve exams most prone to mistakes. GAO testified that improvements are needed to strengthen the VA’s oversight of contractors’ corrective actions, finding that the VA’s procedures do not include steps to routinely verify that contractors complete the actions in their plans or determine the extent to which these actions help improve exam quality.
REPRESENTATION
Model Rules of Representative Conduct (ACUS, Sept. 30). The Office of the Chair, through its Working Group on Model Rules of Representative Conduct, has completed and published its Model Rules of Representative Conduct. The rules are intended to help federal agencies amend or develop their rules governing representatives in adjudicative proceedings. The final revised Model Rules of Representative Conduct are available at https://www.acus.gov/research-projects/working-group-model-rules-representative-conduct.
Nonlawyer Assistance and Representation (ACUS). ACUS’ Committee on Adjudication will consider a project studying representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It will also provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. Amy Widman (Rutgers Law School) is serving as consultant. The Committee is scheduled to meet October 16 and October 30.
TECHNOLOGY
Removal of Wet Signature Requirements (SSA, Sept. 5). The Social Security Administration announced the elimination of wet (physical) signature requirements for over 30 forms, which can now be signed electronically. SSA has also removed the signature requirement entirely for 13 forms, including the Request for Reconsideration - Disability Cessation Right to Appear (Form SSA-789), which is used to request reconsideration on an initial disability cessation determination.
Improvements to EDGAR System (SEC, Sept. 27). The Securities and Exchange Commission adopted rule and form amendments to enhance the security of its Electronic Data Gathering, Analysis, and Retrieval (EDGAR) system and improve filers’ access and account management capabilities. The SEC will also offer filers optional Application Programming Interfaces (APIs), a machine-to-machine method of making submissions, retrieving information, and performing account management tasks that will allow filers to manage their EDGAR accounts with minimal manual interaction with EDGAR. Compliance with amended Form ID, the application for access to EDGAR, is required on March 24, 2025. All rule and form amendments will be effective on that date, and filers will be required to comply with all rule and form amendments by Sept. 15, 2025.
ACCESSIBILITY
Web Resources in Other Languages (NLRB, Aug. 5). The National Labor Relations Board published a series of new resources on employee rights and employer and union responsibilities under the National Labor Relations Act, including “Know Your Rights” documents, information on immigrant worker rights, and instructions on how to electronically file charges and petitions, in 17 different languages.
Division-Specific Language Access Plans (HHS, Aug. 8). The Department of Health and Human Services published updated Language Access Plans for each HHS component, including the Office of Medicare Hearings and Appeals and the Departmental Appeals Board to help improve access to timely adjudication of appeals and ensure meaningful participation in administrative proceedings.
ADMINISTRATIVE REVIEW
End of Practice Accepting Consent Orders (NLRB, Aug. 22). The National Labor Relations Board issued a decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio Piedras ending the practice of approving consent orders, where an administrative law judge resolves a case based on terms offered by the respondent but objected to by both the charging party and the General Counsel. Unlike settlement agreements, which are agreed to by opposing parties, the practice of accepting consent orders does not facilitate a truly mutual resolution of labor disputes and “has no clear basis in the Board’s Rules and Regulations, poses administrative difficulties and inefficiencies, tends to interfere with the prosecutorial authority of the General Counsel, and fails to effectuate the policies of the [National Labor Relations] Act.” The Board’s decision overrules UPMC and its subsidiary, UPMC Presbyterian Shadyside, 365 NLRB 1418 (2017).
PROCEDURAL RULES
Revised Rules of Practice (NRC, Aug. 22). The Nuclear Regulatory Commission published a notice of proposed rulemaking concurrently with a direct final rule to revise its rules of practice and procedure. Among other things, the direct final rule clarifies and makes the description of the NRC’s e-filing system technology neutral to accommodate methods of electronic identification and credentialing other than the use of digital ID certificates; deletes an obsolete and duplicative regulation applicable to settlement and compromise in enforcement proceedings; enhances internal consistency for page limit requirements for petitions for review by increasing the limit from 25 to 30 pages; enhances consistency with the Federal Rules of Evidence on the admissibility of duplicates; and makes revisions to better reflect current Atomic Safety and Licensing Board Panel practice regarding the admission of written testimony into evidence. The final rule is effective November 5, unless significant adverse comments are received by September 23.
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.
Agency Procedural Rules (ACUS). ACUS launched a project that will consist of a large-scale study of agency rules of practice and procedure. Among other topics, it will identify sources and definitions of procedural rules and subjects commonly addressed in them, and address agency discretionary authority in promulgating such rules, including the APA’s exemption from notice-and-comment rulemaking. This project will also explore agencies’ practices for seeking public engagement on proposed rules, general conventions for drafting rules, and review case law on the legal “bindingness” of procedural rules. Matthew Wiener (University of Pennsylvania Carey Law School) is serving as consultant.
REPRESENTATION
Changes to Rules on Representation and Direct Fee Payment (SSA, August 21). The Social Security Administration issued a final rule that allows the agency to issue fee payments to entities, as required by the First Circuit’s decision in Marasco & Nesselbush, LLP v. Collins, by permitting individual representatives to assign their right to receive direct payment of an authorized fee to an entity on each claim. The final rule will be implemented in two phases: On September 30, the final rule changes related to registration of representatives and entities will be implemented; on December 9, the final rule changes related to the appointment of a representative, assignment of direct payment of a representative’s fee, and direct payment of representative fees to entities will be implemented. The final rule also requires use of SSA’s prescribed form for appointing a representative and requires all representatives to sign the form.
Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It will also provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. Amy Widman (Rutgers Law School) is serving as consultant.
TECHNOLOGY
Setting the Manner of Appearance at Hearings (SSA, Aug. 26). The Social Security Administration issued a final rule revising its regulations to permit claimants to appear at hearings in one of four standard manners of appearance: by agency video, by online video, by audio, or in person. The changes clarify that claimants may appear for hearings remotely using private electronic devices and allow claimants to appear by audio if they do not object (previously only allowed in limited circumstances). The final rule takes effect November 23. The Office of the Chair submitted a comment on the proposed rule based on relevant ACUS Recommendations. As explained in the preamble to the final rule, SSA adopted several of ACUS’ suggestions.
Online SSI Application (SSA, Aug. 27). The Social Security Administration issued a notice outlining its plan to implement the first phase of an online Supplemental Security Income application, “iSSI,” in late 2024, using the existing iClaim system, which is an online portal used by the public to apply for different types of Social Security benefits.
New TTAB Filing Functionality (USPTO, Aug. 29). The United States Patent and Trademark Office launched the Trademark Trial and Appeal Board (TTAB) Center open beta for filing notices of opposition in TTAB proceedings in which a party challenges the registration of a trademark. The open beta period is expected to last six months, and USPTO anticipates an official launch of the notice of opposition form in spring 2025. Over the next few years, USPTO is transitioning to TTAB Center as the central platform for parties doing business with TTAB, replacing its current system, the Electronic System for Trademark Trials and Appeals (ESTTA).
ACCESS TO JUSTICE
Access to the Immigration Court System (EOIR, July 17). The Executive Office for Immigration Review announced the creation of a new leadership position within EOIR’s Office of the Director focused on improving access to the immigration system and finding innovative ways to increase representation rates for noncitizens in immigration court. EOIR also continues to expand on its ongoing access initiatives, including the Respondent Access Portal, which is a secure online platform that allows unrepresented noncitizens to electronically view and download case information and file documents directly with the immigration court; the Attorney of the Day Program, in which licensed attorneys provide unrepresented noncitizens in immigration court with general information about court proceedings and relief options and attend preliminary hearings; the Law School Working Group, which facilities law school clinic representation in immigration court; and the Model Hearing Program, which provides immigration law practitioners with substantive and practical information about practices and procedures in immigration court.
ADMINISTRATIVE REVIEW
Loss Mitigation Appeals Process (CFPB, July 24). The Consumer Financial Protection Bureau proposed changes to its regulations regarding the responsibilities of mortgage servicers. Among other things, the proposed amendments would require servicers to provide loss mitigation determination notices and appeal rights to borrowers regarding all types of loss mitigation options, instead of just loan modifications, and for loss mitigation offers as well as denials. Comments are due September 9.
ENFORCEMENT
New Council to Coordinate Enforcement Efforts (SEC, July 19). With representatives from more than 100 departments and agencies, the Securities and Exchange Commission’s Division of Enforcement launched the Interagency Securities Council (ISC), which invites federal, state, and local regulatory and law enforcement professionals to meet quarterly to discuss the latest in scams, trends, frauds, and mitigation strategies. The ISC’s objective is to strengthen the cohesion between federal, state, and local agencies, enhance opportunities to collaborate on cases to protect investors, provide insight and guidance across the ecosystem to those who may not frequently operate in this space, and create a forum for unified efforts in combatting financial fraud.
JUDICIAL REVIEW
Virtual Forum on Recent Supreme Court Cases (ACUS). ACUS convened a three-day public forum, Recent Administrative Law Developments in the Supreme Court: What’s Next for Agencies?, to discuss the significance of recent Supreme Court decisions dealing with administrative law and agency procedures. Two panels, on Loper Bright v. Raimondo and SEC v. Jarkesy, were held on July 30. A third panel, on Corner Post v. Federal Reserve, was held on August 1. The fourth and final panel, on Ohio v. EPA, will be held on August 13 from 1:30 PM to 2:45 PM ET. The first three panels can be viewed here, and attendees can register for the fourth panel here.
MANAGEMENT AND OPERATIONS
H.R.9046 (July 15). Sponsored by Rep. Morgan McGarvey (D-KY-3), this bill was introduced in the House and referred to the Committee on Veterans’ Affairs to amend title 38 of the United States Code to reform and enhance the pay of Board of Veterans’ Appeals attorneys for recruitment and retention and to increase the decision quality and claims processing speed of the Board, and for other purposes.
Training for VBA Claims Processors (GAO, July 23). The Government Accountability Office provided testimony before the House Subcommittee on Disability Assistance and Memorial Affairs discussing the status of recommendations from its June 2021 report that compared the Veterans Benefits Administration’s (VBA’s) training program for claims processors with leading practices for training in the federal government. As of June 2024, the VBA had addressed six of GAO’s 10 recommendations related to the planning, design, implementation, and evaluation of its training program, but had not fully addressed four recommendations related to planning and evaluation, specifically in regard to establishing performance goals; documenting a training strategy or plan; collecting and incorporating feedback; and conducting evaluations.
PROCEDURAL RULES
Reconsideration of Prior Interment and Memorialization Decisions (VA, July 17). The Department of Veterans Affairs issued a final rule implementing review criteria procedures for reconsideration of a prior decision to inter or honor the memory of a person in a VA national cemetery. The final rule also emphasizes that the notice of disagreement must be filed within 60 days from the date of the notice of decision and that the only available method of appeal from a notice of decision issued by the Under Secretary for Memorial Affairs is through review by the Board of Veterans’ Appeals.
Access Authorization Procedures (DOE, July 23). The Department of Energy issued a final rule updating and clarifying its policies and procedures for determining eligibility for authorizing access to classified matters or special nuclear material. Among other things, the final rule expands the applicability of the current rule to individuals applying for or in positions requiring eligibility to hold a sensitive position; incorporates requirements of Security Executive Agent Directive (SEAD) 9, Appellate Review of Retaliation Regarding Security Clearances and Access Determinations, by clarifying that agency review and appeal rights are available to both federal and contractor employees; and updates hearing procedures to more accurately reflect current practices. The final rule takes effect August 22.
Judicial Officer Rules of Practice (USPS, July 30). The United States Postal Service amended its rules of practice to reflect the Judicial Officer’s new internet address for its electronic filing system. Updates to the headings and rule titles were also made.
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.
Agency Procedural Rules (ACUS). ACUS launched a project that will consist of a large-scale study of agency rules of practice and procedure. Among other topics, it will identify sources and definitions of procedural rules and subjects commonly addressed in them, and address agency discretionary authority in promulgating such rules, including the APA’s exemption from notice-and-comment rulemaking. This project will also explore agencies’ practices for seeking public engagement on proposed rules, general conventions for drafting rules, and review case law on the legal “bindingness” of procedural rules. Matthew Wiener (University of Pennsylvania Carey Law School) is serving as consultant.
REPRESENTATION
S.4683 (July 11). Sponsored by Sen. Christopher Murphy (D-CT), this bill was referred to the Committee on the Judiciary to amend the Immigration and Nationality Act to provide for claims of ineffective assistance of counsel in immigration matters, and for other purposes.
Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It will also provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. Amy Widman (Rutgers Law School) is serving as consultant. As part of this project, ACUS is requesting public input on all aspects of strategies that agencies are using or might use to expand assistance and/or representation for members of the public when they engage with administrative programs or participate in administrative adjudicative processes. Comments are due August 31.
TECHNOLOGY
Sign-In Process for Online Accounts (SSA and VA). The Social Security Administration and the Department of Veterans Affairs announced upcoming changes to the login process for their online account systems. Both agencies are transitioning to require a Login.gov or ID.me account to access their online services, which allows users to access information and manage benefits.
ADMINISTRATIVE REVIEW
Senate-Confirmed Officials and Administrative Adjudication (ACUS). The ACUS Assembly adopted Recommendation 2024-3, which 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. The Assembly was informed by a report by in-house researchers Matthew Gluth, Jeremy Graboyes, and Jennifer Selin.
CONGRESSIONAL AFFAIRS
Agency Management of Congressional Constituent Service Inquiries (ACUS). The ACUS Assembly adopted Recommendation 2024-4, which examines how federal agencies receive, process, and respond to congressional inquiries made on behalf of constituents who need assistance accessing federal programs or navigating adjudicative and other similar administrative processes, and identifies best practices for agencies to promote quality, efficiency, and timeliness in their procedures for responding to such inquiries. The Assembly was informed by a report by consultant Sean Kealey (Boston University).
CONSTITUTIONALITY
SEC v. Jarkesy (U.S. Supreme Court). In a 6-3 decision, the Supreme Court held that when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial. The Court did not reach the remaining issues in this case but affirmed the Fifth Circuit’s decision on the Seventh Amendment ground alone and remanded for further proceedings.
ENFORCEMENT
Registry of Nonbank Covered Persons Subject to Certain Agency and Court Orders (CFPB, June 3). The Consumer Financial Protection Bureau issued a final rule requiring certain types of nonbank covered persons subject to a public written order imposing obligations based on violations of certain consumer protection laws to report the existence of the orders and related information to a CFPB registry. The final rule also requires certain supervised nonbanks to file annual reports regarding compliance with registered orders. The final rule takes effect September 16.
Enforcement of Copyrights and the DMCA (CBP, June 24). The U.S. Customs and Border Protection issued final rule changes to its regulations pertaining to importations of merchandise that violate or are suspected of violating the copyright laws, including the Digital Millennium Copyright Act (DMCA), in accordance with title III of the Trade Facilitation and Trade Enforcement Act of 2015. The amendments clarify the definition of “piratical articles,” simplify the detention process involving goods suspected of violating the copyright laws, and prescribe new regulations enforcing the DMCA, including formalizing existing enforcement practices that specifically provide for detention and seizure of articles that constitute violations of the DMCA. The final rule takes effect August 23.
JUDICIAL REVIEW
Loper Bright Enterprises v. Raimondo (U.S. Supreme Court). Decided together with Relentless, Inc., et al. v. Department of Commerce, et al., the Supreme Court, in a 6-3 decision, overruled Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). The Court held that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.
Corner Post, Inc. v. Board of Governors of the Federal Reserve System (U.S. Supreme Court). In a 6-3 decision, the Supreme Court held that a claim under the Administrative Procedure Act does not accrue for purposes of 28 U.S.C. § 2401(a), the default six-year statute of limitations applicable to suits against the United States, until the plaintiff is injured by final agency action.
MANAGEMENT AND OPERATIONS
S. 4559 (June 17) and H.R. 8789 (June 18). Sponsored by Sen. Ted Cruz (R-TX) in the Senate and Rep. Randy K. Weber (R-TX-14) in the House, these companion bills were introduced and referred to the respective Committees on the Judiciary. Referred to as the Officer John Barnes Act, these bills would require the Department of Justice to issue a determination on claims for benefits from the Public Safety Officers’ Benefits Program within 270 days of receipt.
PROCEDURAL RULES
Pre-Issuance Internal Circulation and Review of Decisions (USPTO, June 12). The United States Patent and Trademark Office issued a final rule codifying processes and standards that govern the internal pre-issuance circulation and review of decisions within the Patent Trial and Appeal Board (PTAB). Specifically, prior to issuance of a panel decision, the final rule prohibits the USPTO Director, Deputy Director, Commissioners for Patents and Trademarks, management judges, and USPTO officers or employees external to the Board from communicating, directly or indirectly, with any member of a panel regarding a decision, unless they are a member of the panel, except that a panel member may request input on a decision prior to issuance from any management judge or USPTO officer or employee. The final rule also provides that, if the USPTO establishes additional procedures governing the internal circulation and review of decisions prior to issuance, no management judge shall participate directly or indirectly in any such review.
Revised EEO Procedural Rules (GAO, June 18). The Government Accountability Office Personnel Appeals Board (PAB) finalized changes to its procedural rules that, among other things, gives the PAB General Counsel authority to process certain retaliation claims that have not first undergone GAO’s Equal Employment Opportunity process and to hold certain nondiscrimination claims in abeyance if they are related to a claim pending in GAO’s EEO process. The final rules take effect July 18.
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.
Agency Procedural Rules (ACUS). ACUS has launched a project that will consist of a large-scale study of agency rules of practice and procedure. Among other topics, it will identify sources and definitions of procedural rules and subjects commonly addressed in them, and address agency discretionary authority in promulgating such rules, including the APA’s exemption from notice-and-comment rulemaking. This project will also explore agencies’ practices for seeking public engagement on proposed rules, general conventions for drafting rules, and review case law on the legal “bindingness” of procedural rules. Matthew Wiener (University of Pennsylvania Carey Law School) is serving as consultant.
PROGRAM INTEGRITY
H.R. 8627 (June 5). Sponsored by Rep. Donald G. Davis (D-NC-1), this bill was introduced in the House and referred to the House Committee on Veterans’ Affairs to amend title 38 of the United States Code to modify certain requirements relating to the Department of Veterans Affairs’ recovery of overpayments made to eligible persons or veterans relating to educational assistance under the laws administered by the Secretary of Veterans Affairs, and for other purposes.
REPRESENTATION
Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It will also provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. Amy Widman (Rutgers Law School) is serving as consultant.
TECHNOLOGY
Enhanced e-Filing Portal (EOIR, June 21). The Executive Office of Immigration Review issued a notice about enhancements to its web-based electronic filing portal, which will allow parties to cases before the Office of the Chief Administrative Hearing Officer (OCAHO) to file complaints electronically, request electronic access to a case to which they are a party, file motions and requests electronically, and receive service of orders and decisions from OCAHO by email. Comments are encouraged and accepted until July 22.
Temporary Electronic Accommodation Ends (Copyright Office, June 27). The U.S. Copyright Office is retiring its Deposit Ticket Declaration Form, which was a temporary accommodation adopted during the COVID-19 pandemic for applicants who were required to submit physical copies of the “best edition” of their works. Beginning July 27, the Office will no longer accept electronic deposit copies submitted with this form. If the Office receives a declaration form and an electronic copy of a work after July 27, the examiner will request a physical copy of the best edition of the work (in cases where it is required) and will notify the applicant that the claim will not be examined until the Office receives the physical copy.
ADMINISTRATIVE REVIEW
Participation of Senate-Confirmed Officials in Administrative Adjudication (ACUS). The ACUS Committee on Adjudication approved a proposed Recommendation regarding 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. The ACUS Assembly will consider the proposed Recommendation at the 81st Plenary Session on June 13.
Updated CRS Report on PTAB (CRS, May 28). The Congressional Research Service updated a report on The Patent Trial and Appeal Board and Inter Partes Review to reflect a notice of proposed rulemaking published by the United States Patent and Trademark Office (USPTO) on April 16 that proposes to codify a process for the review of Patent Trial and Appeal Board decisions by the USPTO Director.
CONGRESSIONAL AFFAIRS
Congressional Constituent Service Inquiries (ACUS). ACUS’s Committee on Administration and Management held its third meeting May 3 to finish drafting a proposed Recommendation identifying best practices for agencies to promote quality, efficiency, and timeliness in agency procedures for responding to congressional inquiries made on behalf of constituents who need assistance accessing federal programs or navigating adjudicative and other similar administrative processes. The proposed Recommendation will be considered by the ACUS Assembly at the 81st Plenary Session on June 13. The Committee was informed by a draft report by consultant Sean Kealey (Boston University).
JUDICIAL REVIEW
Pham, et al., v. Ur Jaddou, Director, USCIS (S.D. Cal., Apr. 30). The District Court for the Southern District of California held that Plaintiffs, who are petitioners for U visas that filed their petitions before June 30, 2017, had standing to challenge USCIS’ failure to adjudicate their petitions. The District Court found that Petitioners sufficiently alleged that USCIS’ delay in adjudicating their petitions violates either the APA’s mandate that non-discretionary decisions be made within a reasonable time or USCIS’ own regulation governing the order in which petitions are adjudicated, and their allegations create some possibility that the requested relief of expedited adjudication would be reconsidered by Defendant. The District Court also held that Plaintiffs plead sufficient facts to state a claim for relief under the APA and denied Defendant’s motion to dismiss.
Harrow v. Department of Defense (U.S. Supreme Court, May 16). The Supreme Court held that the 60-day filing deadline in 5 U.S.C. § 7703(b)(1) for appealing a Merit Systems Protection Board decision to the Federal Circuit is not “jurisdictional.” The Court explained that nothing in § 7703(b)(1) speaks to a court’s authority to hear a case, as there is no mention of the Federal Circuit’s jurisdiction, whether generally or over untimely claims. The Court also rejected the argument that 28 U.S.C. § 1295(a)(9), which spells out the Federal Circuit’s subject-matter jurisdiction, was a jurisdictional prerequisite and remanded to the Federal Circuit to address the availability of equitable tolling, including any waiver issues involved.
MANAGEMENT AND OPERATIONS
New Recent Arrivals Docket Process (DOJ & DHS, May 16). The Departments of Justice and Homeland Security announced a new Recent Arrivals (RA) Docket process for immigration cases of certain noncitizen single adults who attempt to cross irregularly between ports of entry at the Southwest border. Under the RA Docket process, the Department of Homeland Security will place certain noncitizen single adults on the RA Docket, and the Executive Office for Immigration Review adjudicators will prioritize the adjudication of these cases and aim to render final decisions within 180 days.
H.R. 8546 (May 23). Sponsored by Rep. Joe Neguse (D-CO-2), this bill was introduced in the House and referred to the House Committee on Ways and Means to require the Commissioner of the Social Security Administration to take certain actions to improve the processing of claims and appeals for disability insurance benefits and supplemental security income, and for other purposes.
PROCEDURAL RULES
Revised Appellate Procedures for Efficient Case and Docket Management (EOIR, May 29). The Executive Office for Immigration Review issued final rule changes on appellate process, decisional finality, administrative closure, and discretionary termination in immigration proceedings. The final rule takes effect July 29.
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.
PROGRAM INTEGRITY
H.R.8265 (May 7). Sponsored by Rep. Yadira Caraveo (D-CO-8), this bill was introduced in the House and referred to the House Committee on Ways and Means to amend the Social Security Act to require a 120-day period between notice of an overpayment of benefits under Titles II and XVI and beginning recovery of such overpayment, and to require the Commissioner of Social Security to submit a report to Congress on a strategy related to recovery of such overpayments.
REPRESENTATION
Representative Fee Cap Increase (SSA, May 10). On November 30, the fee cap for Social Security claimants’ representatives will increase from $7,200 to $9,200 under the fee agreement process. Starting in January 2026, SSA will annually address the fee cap along with its announcements of other cost-of-living adjustments.
Legal Representation in Foster Care Proceedings (ACF, May 10). The Administration for Children and Families issued a final rule that allows certain agencies to claim federal financial participation for the administrative cost of an attorney providing certain legal representation in foster care and other civil legal proceedings. The final rule takes effect July 9.
Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It will also provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. Amy Widman (Rutgers Law School) is serving as consultant.
Model Rules of Representative Conduct (ACUS). Chair Fois convened a working group of public- and private-sector representatives to develop model rules of representative conduct to help federal agencies amend or develop their own rules consistent with the best practices identified in Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings. The working group has completed its work, and the model rules will be presented to the ACUS Assembly at the 81st Plenary Session on June 13.
TECHNOLOGY
Online Process for eSigning Forms and Submitting Evidence (SSA, May 2). The Social Security Administration published operational guidance announcing that, as of March 22, the new online application called “eSignature/Upload Documents” is nationally available. eSignature/Upload Documents is an online tool that allows individuals to electronically sign, upload, and submit certain forms and evidence to SSA from their personal desktop and mobile devices.
ADJUDICATORS
Expansion of the BIA (EOIR, Apr. 2). The Executive Office of Immigration Review revised its regulations to expand the size of the Board of Immigration Appeals to 28 members; explicitly state that temporary BIA members serve renewable terms of up to six months; and clarify that temporary BIA members are appointed by the Attorney General on the recommendation of the EOIR Director.
ADMINISTRATIVE REVIEW
CRS Report on PTAB (CRS, Apr. 8). The Congressional Research Service issued a report on The Patent Trial and Appeal Board and Inter Partes Review, which provides an overview of patent law and the processes for obtaining a patent and enforcing patent rights; discusses the 2011 Leahy-Smith America Invents Act and its creation of the Patent Trial and Appeal Board, including PTAB’s administrative structure; explains and compares the three types of post-grant proceedings established by the AIA with a focus on inter partes review; discusses several Supreme Court cases involving PTAB; and discusses current debates and proposed reforms of PTAB.
Appellate Jurisdiction Update (MSPB, Apr. 9). The Merit Systems Protection Board revised 5 C.F.R. § 1201.3, which contains a list of the types of appeals the MSPB has been granted jurisdiction to hear, to include a new appeal right adopted by OPM in 5 C.F.R. § 302.603 that gives certain federal employees moved into the excepted service, or moved between schedules in the excepted service, the ability to appeal to the MSPB any loss of status, appeal rights, or other accrued protections stemming from that move. The final rule takes effect May 9.
Director Review of PTAB Decisions (USPTO, Apr. 16). The United States Patent and Trademark Office proposed new rules to govern the process for the review of Patent Trial and Appeal Board decisions in Leahy-Smith America Invents Act proceedings by the USPTO Director. Specifically, consistent with the current interim process, the proposed rules would allow a party to an AIA proceeding to request Director Review of (1) a decision on whether to institute an AIA trial, (2) a final written decision in an AIA proceeding, or (3) a panel decision granting a request for rehearing of a decision on whether to institute a trial or a final written decision in an AIA proceeding. The proposed rules would also allow the Director to initiate review of any such decision sua sponte within 21 days after the expiration of the period for requesting a rehearing. Comments are due June 17.
PTAB Rules of Practice (USPTO, Apr. 19). The United States Patent and Trademark Office proposed changes to the rules of practice for inter partes review and post grant review proceedings before the Patent and Trial Appeal Board for use by the Director and PTAB in exercising discretion on whether to institute such proceedings. The proposed changes would largely formalize current practices set forth in existing precedent and guidance. The proposed rules also provide a separate briefing process for discretionary institution arguments and align the procedures for termination of proceedings pre- and post-institution. Comments are due June 18.
H.R. 8131 (Apr. 26). Sponsored by Rep. Marcy Kaptur (D-OH-9), this bill was introduced in the House and referred to the House Committee on the Judiciary to amend title 35 of the United States Code to require a patent owner to consent to the filing of a petition for inter partes review or post grant review, and for other purposes.
ALTERNATIVE DISPUTE RESOLUTION
ADR Process for 340B Program (HHS, Apr. 19). The Department of Health and Human Services revised the requirements and procedures for the administrative dispute resolution process in the 340B Drug Pricing Program to resolve (1) claims by covered entities that may have been overcharged for covered outpatient drugs purchased from manufacturers and, (2) after an audit, claims by manufacturers of 340B drugs that a covered entity may have violated the prohibitions against duplicate discounts or diversion. The final rule takes effect June 18.
CONGRESSIONAL AFFAIRS
Congressional Constituent Service Inquiries (ACUS). ACUS’s Committee on Administration and Management held its second meeting on April 26 to consider a project examining how agencies receive, process, and respond to congressional inquiries made on behalf of constituents who need assistance accessing federal programs or navigating adjudicative and other similar administrative processes. The project will identify best practices for agencies to promote quality, efficiency, and timeliness in agency procedures for responding to such inquiries. Among other topics, the project will address the body of law governing agency responses to congressional constituent service inquiries; the extent to which agencies have developed procedures for receiving, processing, and responding to such inquiries; and the scope, content, internal dissemination, and public availability of these procedures where adopted. The Committee is informed by a draft report by consultant Sean Kealey (Boston University).
MANAGEMENT AND OPERATIONS
H.R. 7917 (Apr. 10). Sponsored by Rep. Mike Bost (R-IL-12), this bill was introduced in the House and referred to the House Committee on Veterans’ Affairs and the House Subcommittee on Disability Assistance and Memorial Affairs to amend title 38 of the United States Code to improve the efficiency of adjudications and appeals of claims for benefits under laws administered by Secretary of Veterans Affairs, and for other purposes.
PROCEDURAL RULES
Procedures for Debarring Vessels from Entering U.S. Ports (DHS, Apr. 4). The Department of Homeland Security amended its regulations to add procedures for debarring vessels from entering U.S. ports that are owned or chartered by an entity found to be in violation of certain laws and regulations relating to the performance of longshore work by nonimmigrant crew members. Specifically, the new procedures, which take effect May 6, govern how U.S. Customs and Border Protection notifies a violating entity of a debarment and how a vessel owner or operator, or its authorized representative, may request mitigation of the debarment.
Requests for Hearing Revisions (DOL, Apr. 29). The Department of Labor finalized rule changes governing the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of these nonimmigrant workers. Among other changes, the final rule clarifies that issue exhaustion requirements apply to H-2A enforcement proceedings by revising 29 C.F.R. § 501.33 to explicitly state that issues not raised in a party’s request for a hearing before the OALJ may be deemed waived in any further proceedings. Notably, DOL chose not to finalize proposals that would have reduced the time for parties to submit rebuttal evidence to the Office of Foreign Labor Certification, the time for parties to appeal Notices of Debarment to the Office of Administrative Law Judges, and the time for parties to appeal debarment decisions to the Administrative Review Board. Therefore, the final rule retains the 30-day period for submitting rebuttal evidence and appealing debarment matters.
H.R. 8136 (Apr. 26). Sponsored by Rep. Mary Sattler Peltola (D-AK-AL), this bill was introduced in the House and referred to the House Committee on Veterans’ Affairs and the House Committee on the Judiciary to amend title 38 of the United States Code to modify the processes by which a veteran may appeal decisions affecting the provision of benefits under the laws administered by the Secretary of Veterans Affairs, and for other purposes.
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.
REPRESENTATION
Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It will also provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. Amy Widman (Rutgers Law School) is serving as consultant.
Model Rules of Representative Conduct (ACUS). The full working group met April 9 and April 24 to finalize the model rules of representative conduct. Following the adoption of Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings,Chair Fois convened a working group of public- and private-sector representatives to develop these model rules, which will help federal agencies amend or develop their own rules consistent with the best practices identified in Recommendation 2021-9. The working group has completed its work, and the model rules will be presented to the ACUS Assembly at the 81st Plenary Session on June 13.
TECHNOLOGY
Use of AI in USPTO Matters (USPTO, Apr. 11). The United States Patent and Trademark Office issued guidance explaining how USPTO’s existing rules and policies apply to the use of AI tools in matters before USPTO. Specifically, the guidance addresses the use of AI systems in drafting documents for submission to USPTO; the filing of documents at USPTO with the assistance of AI tools; the appropriate use of AI tools in interacting with USPTO’s IT systems; and confidentiality and national security concerns related to the use of AI systems.
ADMINISTRATIVE REVIEW
H.R. 7793 (Mar. 22). Sponsored by Rep. Mike Bost (R-IL-12), this bill was introduced in the House and referred to the House Committee on Veterans’ Affairs to amend title 38 of the United States Code to provide an individual with a claim for benefits under the laws administered by the Secretary of Veterans Affairs with more options to appeal a decision of the Secretary with respect to such claim to the Board of Veterans’ Appeals, and for other purposes.
CONGRESS
Congressional Hearing on Agency Adjudication (Mar. 20). The House Judiciary Subcommittee on the Administrative State, Regulatory Reform, and Antitrust held a hearing titled Reining in the Administrative State: Agency Adjudication and Other Agency Action to “examine problems that stem from how some federal agencies sue defendants in the agencies’ own in-house courts . . . [and] explore ways Congress should improve the status quo.”
CONGRESSIONAL AFFAIRS
Congressional Constituent Service Inquiries (ACUS). ACUS’s Committee on Administration and Management held its first meeting on March 28 to consider a project examining how agencies receive, process, and respond to congressional inquiries made on behalf of constituents who need assistance accessing federal programs or navigating adjudicative and other similar administrative processes. The project will identify best practices for agencies to promote quality, efficiency, and timeliness in agency procedures for responding to such inquiries. Among other topics, the project will address the body of law governing agency responses to congressional constituent service inquiries; the extent to which agencies have developed procedures for receiving, processing, and responding to such inquiries; and the scope, content, internal dissemination, and public availability of these procedures where adopted. The Committee is informed by a draft report by consultant Sean Kealey (Boston University).
ENFORCEMENT
Standards of Actions at Initial Stage of Enforcement Matters (FEC, Mar. 20). The Federal Election Commission issued a policy statement to explain and simplify the actions that the Commission will take at the initial stage of enforcement proceedings to address a Matter Under Review, which, effective April 19, are to either dismiss a Matter or find “reason to believe” that a person has committed, or is about to commit, a violation of the Federal Election Campaign Act.
MANAGEMENT AND OPERATIONS
Processing of Survivors Benefits Claims (VA, Mar. 11). The Department of Veterans Affairs proposed to amend its adjudication regulations that address the processing of survivors benefits claims. Specifically, the proposed rule would clarify that if the VA determines that a surviving spouse or child is eligible for dependency and indemnity compensation the VA would concurrently deny the co-existing claim for survivors pension, except where paying the survivors pension would be more beneficial to the claimant. Comments are due May 10.
Budget of the U.S. Government FY 2025 (White House, Mar. 11). The President’s Budget for Fiscal Year 2025 contains several proposals to improve timeliness in agency adjudication. For example, the Budget requests specific funding for the Executive Office for Immigration Review to enhance the immigration courts and help address the backlog of over 2.4 million currently pending cases. The Budget also requests specific funding for the Social Security Administration to improve customer service at SSA’s field offices, state disability determination services, and teleservice centers, and add staff to process more disability claims and reduce the wait times for decisions.
Corrected Filing Fees (DHS, Mar. 21). The Department of Homeland Security issued a correction to a final rule published January 31 that adjusted the fees for certain immigration and naturalization benefit requests charged by the U.S. Citizenship and Immigration Services. The corrections include fee exemptions and waivers that were inadvertently omitted in the preamble or regulatory text and technical and typographical errors that were identified in the final rule.
PROCEDURAL RULES
Motion to Amend Practice and Procedures (USPTO, Mar. 4). The United States Patent and Trademark Office issued a notice of proposed rulemaking to revise the rules for amending patents in trial proceedings under the Leahy-Smith America Invents Act before the Patent Trial and Appeal Board. The proposed changes would make permanent certain provisions of USPTO’s motion to amend (MTA) pilot program by providing patent owners with the option to (1) request non-binding preliminary guidance from PTAB in an original MTA and (2) file a revised MTA after receiving PTAB’s preliminary guidance without the need for prior authorization. The proposed changes would also revise the rules that allocate burdens of persuasion in connection with MTAs. Comments are due May 3.
FAA Airmen Certificate Appeals (DHS, Mar. 12). The Department of Homeland Security issued a final rule codifying the procedures that apply to Federal Aviation Administration certificate appeals before the Transportation Security Oversight Board (TSOB). The final rule amends an interim final rule published on August 9, 2022 to permit parties to consent to electronic service of documents; include a definition of the substantial evidence standard of review that applies to the proceedings; provide a process for the TSOB Review Panel to remand the case to the ALJ upon motion of the parties and a showing of good cause; and include the 60-day Court of Appeals filing deadline for appealing the TSOB Review Panel’s decision. The final rule takes effect on May 13.
Claims of Evasion of Antidumping and Countervailing Duty Orders (CBP, Mar. 18). The United States Customs and Border Protection issued a final rule adopting, with changes, interim regulations that were published August 22, 2016, setting forth procedures for the investigation of claims of evasion of antidumping and countervailing duty orders. Among other things, the final rule amends certain procedures for initiating and conducting investigations and makes clarifying and technical changes to the process for requesting administrative review of a determination as to evasion. The final rule takes effect April 17.
Revised Rules of Practice (USITC, Mar. 28). The United States International Trade Commission issued a notice of proposed rulemaking that would amend its Rules of Practice and Procedure regarding rules of general application, safeguards, antidumping and countervailing duty investigations, and section 387 adjudication and enforcement. Among other things, the proposed revisions would permanently adopt existing temporary waivers of paper-based filings and paper copy requirements and permit electronic filing and service of confidential and public documents; require supplementary materials, excluding witness testimony, in non-adjudicative hearings to be filed no later than the day of the hearing; and make clarifying revisions to its general provisions for attorneys and others practicing and appearing before the USITC. Comments are due by May 20.
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.
PROGRAM INTEGRITY
Addressing SSA Overpayments (SSA, Mar. 20). The Commissioner of Social Security announced four steps the agency is taking to address the issue of improper payments: (1) effective March 25, the default withholding rate for those who fail to respond to SSA’s demand for repayment will decrease from 100% to 10% of an overpaid beneficiary’s monthly Social Security benefit; (2) the burden of proof for determining whether the beneficiary is at fault in causing the overpayment will be shifted away from the beneficiary; (3) the term for repayment plans is extended from 36 months to 60 months; and (4) the process for requesting a waiver of repayment for overpaid beneficiaries who believe they are not at fault or without the ability to repay will be made easier.
REPRESENTATION
Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It will also provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. Amy Widman (Rutgers Law School) is serving as consultant.
Model Rules of Representative Conduct (ACUS). The full working group met March 6 and March 27 to begin finalizing the model rules of representative conduct. Following the adoption of Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings,Chair Fois convened a working group of public- and private-sector representatives to develop these model rules, which will help federal agencies amend or develop their own rules consistent with the best practices identified in Recommendation 2021-9. The working group was divided into four subcommittees—Qualifications, Conduct, Enforcement, and Transparency—which have all met and completed their work over the past year. The full working group is scheduled to meet again April 9.
Representative Fee Cap Increase (SSA, Mar. 29). Effective this fall, the Social Security Administration announced an increase to the fee cap for claimants’ representatives, from $7,200 to $9,200, under the fee agreement process. SSA also plans to tie future increases to the annual cost-of-living adjustment.
TECHNOLOGY
Mariner Credentialing Program Transformation (USCG, Mar. 14). In preparation of a fully electronic IT system, the Coast Guard issued a notice of proposed rulemaking that would allow for the electronic submission of information in the Mariner Credentialing Program. Specifically, the Coast Guard proposes to allow for the electronic submission of information required for credentialing, appeals involving course approvals and merchant mariner personnel issues, and eligibility requests for a no-fee Merchant Mariner Credential. The proposed rule would also require the electronic payment of mandatory fees through Pay.Gov, remove the requirement for prospective mariners to take an oath before an authorized official, and change the requirements for the Certificate of Discharge to Merchant Mariners. Comments are due May 13.
Appointed Representative Status Reports (SSA, Mar. 19). The Social Security Administration announced an upgrade to its electronic Appointed Representative Services application that allows appointed representatives to access a list of all their cases pending at the initial and reconsideration levels, in addition to cases pending at the hearings and Appeals Council levels.
Expanded Options for Electronic Signatures (USPTO, Mar. 22). The United States Patent and Trademark Office amended its regulations to provide for the broader permissibility of electronic signatures in patent correspondence. Specifically, the new rule permits the use of any form of electronic signatures specified by the USPTO Director. This currently consists of electronic signatures generated via third-party document-signing software, such as DocuSign and Acrobat Sign. The new rule also allows electronic signatures to be used in correspondence that is mailed, faxed, hand delivered, or submitted via the USPTO patent electronic filing system.
Updated Filing Procedures (FLRA, Mar. 26). To promote electronic filing, the Federal Labor Relations Authority issued a final rule updating procedures for obtaining and filing forms and other documents in proceedings before the Federal Service Impasses Panel and requiring appointments to file forms or documents in-person in FSIP matters. The final rule takes effect April 25.
Electronic Filings for Judicial Review (USPTO, Mar. 29). The United States Patent and Trademark Office amended its regulations to allow and require notices of appeal, notices of election, and requests for extension of time to file a notice of appeal or commence a civil action to be filed by email or by Priority Mail Express®, instead of by regular mail or hand delivery.
ACCESS TO JUSTICE
VA Equity Action Plan (VA, Feb. 14). The Department of Veterans Affairs released its FY 2024 Equity Action Plan, which, among other things, outlines strategies to improve benefit outcomes by removing barriers that underserved eligible veterans experience in the adjudication and promulgation of disability compensation benefits.
ADJUDICATORS
H.R. 7225 - Administrative Law Judges Competitive Service Restoration Act (Feb. 5). Sponsored by Rep. Gerald E. Connolly (D-VA-11), this bill was introduced in the House and referred to the House Committee on Oversight and Accountability to restore administrative law judges to the competitive service, and for other purposes.
ADMINISTRATIVE REVIEW
Appellate Jurisdiction Change (MSPB, Feb. 6). The Merit Systems Protection Board proposed a revision to 5 C.F.R. § 1201.3, which contains a list of the types of appeals the MSPB has been granted jurisdiction to hear, to include a new appeal right proposed by OPM that would give certain federal employees moved into the excepted service, or moved between schedules in the excepted service, the ability to appeal any loss of appeal rights stemming from that move to the MSPB. Comments are due March 7.
Supervisory Appeals Process (CFPB, Feb. 22). The Consumer Financial Protection Bureau revised its internal supervisory appeals process for institutions seeking to appeal a compliance rating or an adverse material finding. Specifically, the revised process broadens the pool of potential members of the appeals committee; provides a new option for resolving appeals by remanding the matter to CFPB Supervision staff for consideration of a modified finding; allows institutions to appeal any compliance rating that was issued to them instead of only adverse ratings; and includes additional clarifying changes. The revised supervisory appeals process is applicable as of February 22.
CONGRESSIONAL AFFAIRS
Congressional Constituent Service Inquiries (ACUS). ACUS is examining how agencies receive, process, and respond to congressional inquiries made on behalf of constituents who need assistance accessing federal programs or navigating adjudicative and other similar administrative processes. The project will identify best practices for agencies to promote quality, efficiency, and timeliness in agency procedures for responding to such inquiries. Among other topics, the project will address the body of law governing agency responses to congressional constituent service inquiries; the extent to which agencies have developed procedures for receiving, processing, and responding to such inquiries; and the scope, content, internal dissemination, and public availability of these procedures where adopted. Sean Kealey (Boston University) is serving as consultant.
MANAGEMENT AND OPERATIONS
Decisional Disparities in Administrative Programs (ACUS). ACUS has launched a project to study unwarranted disparities in enforcement and adjudication decisions under federal administrative programs.
USCIS Backlog Reduction (USCIS, Feb. 9). The United States Citizenship and Immigration Services released data showing progress in the backlog reduction of immigration cases, which include adjudications of immigration benefits and requests for naturalization, lawful permanent residency, employment visas, asylum, credible fear, and foreign adoptions. In FY 2023, USCIS reported receiving 10.9 million filings and completing more than 10 million pending cases, reducing its overall backlogs by 15%.
Use of Electronic Payroll Data in Program Administration (SSA, Feb. 15). The Social Security Administration issued proposed rules pursuant to section 824 of the Bipartisan Budget Act of 2015, which authorizes SSA to enter into information exchanges with payroll data providers to obtain wage and employment information. SSA plans to utilize automated, electronic information exchanges to adjust payment amounts, make entitlement or eligibility determinations for the SSDI and SSI programs, and prevent improper payments of these benefits for individuals who authorize SSA to obtain wage and employment information from a participating payroll data provider. Comments are due April 15.
Effectuation of Disability Benefits (SSAB, Feb. 29). The Social Security Advisory Board issued a report on the additional steps that the Social Security Administration must take to pay disability benefits to someone after it has deemed that person eligible or entitled to such benefits. This is known as the effectuation process. The report analyzes data and recommends specific systems, policy, and operational changes that SSA could make to improve the speed and accuracy of effectuation.
PROCEDURAL RULES
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.
REPRESENTATION
SSA Equity Action Plan (SSA, Feb. 14). The Social Security Administration released its updated Equity Action Plan, which, among other things, outlines the agency’s accomplishments and milestones for ensuring equitable service for unrepresented claimants in the disability application process.
Expanding Opportunities to Appear Before PTAB (USPTO, Feb. 21). The United States Patent and Trademark Office issued a notice of proposed rulemaking to revise the rules for admission to practice before the Patent Trial and Appeal Board (PTAB) in proceedings under the Leahy-Smith America Invents Act. Specifically, the proposed rules would give parties the option to designate non-registered practitioners who are recognized pro hac vice as lead counsel; excuse parties from the requirement to designate back-up counsel upon a showing of good cause; establish a streamlined alternative procedure for recognizing counsel pro hac vice that is available when counsel has previously been recognized pro hac vice in a different PTAB proceeding; and clarify that those recognized pro hac vice have a duty to inform PTAB of subsequent events that render inaccurate or incomplete representations they made to obtain pro hac vice recognition. Comments are due May 21.
Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication. The project will map and define the spectrum of assistance that parties to administrative proceedings may (or may not) have available to them and identify areas in which certain forms of assistance may be underutilized in administrative proceedings and, conversely, where agencies may be relying too heavily on certain types of assistance. It will also provide best practices for agencies to adopt in expanding access to representation in their proceedings, as well as how to work with different kinds of nonattorney representatives. Amy Widman (Rutgers Law School) is serving as consultant.
Model Rules of Representative Conduct (ACUS). The full working group will meet on March 6 to begin finalizing the model rules of representative conduct. Following the adoption of Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings, Chair Fois convened a working group of public- and private-sector representatives to develop these model rules, which will help federal agencies amend or develop their own rules consistent with the best practices identified in Recommendation 2021-9. The working group is divided into four subcommittees—Qualifications, Conduct, Enforcement, and Transparency—which have all met and completed their work over the past year.
TECHNOLOGY
Misuse of AI in PTAB and TTAB Proceedings (USPTO, Feb. 6). The United States Patent and Trademark Office issued guidance clarifying that its existing rules apply when AI is used to draft submissions in proceedings before the Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB). For example, all submissions must be reviewed for errors or omissions and the accuracy of all factual and legal representations must be verified, regardless of how the submission was prepared or generated, and submissions made with AI assistance that fail to adhere to these obligations are subject to the same sanctions.
Electronic Filing Mandate (DOL, Feb. 8). The Department of Labor published a final rule mandating electronic filing in proceedings before the Benefits Review Board for any persons represented by an attorney or lay representative. The e-filing mandate includes exceptions for good cause and self-represented parties, who may continue to use conventional means of filing. The rule takes effect March 11.
Representative Availability Portal (SSA, Feb. 12). The Social Security Administration issued a notice about its plan to roll out a new web-based portal for appointed representatives to submit their monthly availability to SSA for ALJ hearings.
Simplified Filing Requirements (FLRA, Feb. 15). As part of its continued move towards fully electronic case files, the Federal Labor Relations Authority revised its regulations to eliminate the requirement that parties file four copies of original documents that they file with the FLRA; the OGC; and the FLRA’s Administrative Law Judges, Regional Directors, and Hearing Officers. The FLRA also proposed regulatory revisions that would promote electronic filing in proceedings before the Federal Service Impasses Panel and require appointments to file forms or documents in-person in FSIP matters. Comments are due March 18.
APPOINTMENT AND REMOVAL
Raper v. Commissioner of Social Security (Jan. 3). The Eleventh Circuit held that there is no Appointments Clause violation when an earlier decision made by an unconstitutionally appointed ALJ is vacated on the merits and remanded to the same ALJ, who is now constitutionally appointed. Disagreeing with the Fourth and Ninth Circuits, which reached the opposite conclusion, the Eleventh Circuit reasoned that the District Court’s merits-based vacatur of the ALJ’s first decision “eliminated the taint of the unconstitutional appointment.” When the first decision was vacated, it became void with no legal effect, meaning the ALJ “started fresh” and “the entire second administrative adjudication was conducted by a constitutionally appointed ALJ.”
CONGRESSIONAL AFFAIRS
Congressional Constituent Service Inquiries (ACUS). ACUS is examining how agencies receive, process, and respond to congressional inquiries made on behalf of constituents who need assistance accessing federal programs or navigating adjudicative and other similar administrative processes. The project will identify best practices for agencies to promote quality, efficiency, and timeliness in agency procedures for responding to such inquiries. Among other topics, the project will address the body of law governing agency responses to congressional constituent service inquiries; the extent to which agencies have developed procedures for receiving, processing, and responding to such inquiries; and the scope, content, internal dissemination, and public availability of these procedures where adopted. Sean Kealey (Boston University) is serving as consultant.
JUDICIAL REVIEW
Loper Bright Enterprises v. Raimondo (U.S. Supreme Court). Oral arguments were heard on January 17 in tandem with those in Relentless, Inc. v. Department of Commerce. Both cases present the same question: whether the Court should overrule Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency. Although these cases do not involve agency interpretations of statutes announced in adjudicative orders, the Court’s forthcoming decision may affect whether and when reviewing courts must defer to such interpretations.
MANAGEMENT AND OPERATIONS
Revised Filing Fees (DHS, Jan. 31). The Department of Homeland Security issued a final rule adjusting the fees for certain immigration and naturalization benefit requests charged by the U.S. Citizenship and Immigration Services. The final rule also expands fee exemptions for humanitarian filings and adoptive families.
Decisional Disparities in Administrative Programs (ACUS). ACUS is accepting proposals from individuals interested in serving as a consultant to study unwarranted disparities in enforcement and adjudication decisions under federal administrative programs. Submissions are due by February 23.
PROCEDURAL RULES
Copyright Claims Board Smaller Claims Procedures (USCO, Jan. 16). The U.S. Copyright Office adopted a final rule amending procedures for “smaller claims” proceedings before the Copyright Claims Board, in which total damages sought do not exceed $5,000 exclusive of attorneys' fees and costs.
Public Participation in Agency Adjudication (ACUS). ACUS launched a project to identify best practices for public participation in agency adjudicative proceedings. Among other topics, the project will address circumstances in which public participation may be appropriate; options for public participation (e.g., written comments, oral presentations, intervention, amicus briefing); methods for facilitating public participation (e.g., notice, managing oral and written comments, technology use); and agencies’ use of information obtained through public engagement efforts. Michael Sant’Ambrogio (MSU Law) is serving as consultant.
REPRESENTATION
Study of the Patent Pro Bono Programs (USPTO, Dec. 29). The Unleashing American Innovators Act required the Director of the United States Patent and Trademark Office to complete a study of the patent pro bono programs, which provide financially under-resourced inventors and small businesses with free legal counsel to assist with preparing, filing, and prosecuting patent applications. The results of the study were reported to Congress, finding, among other things, that the regional patent pro bono programs effectively expand access to the patent system to historically underserved communities and include a significant number of non-attorney advocates (registered patent agents) who support the program.
Nonlawyer Assistance and Representation (ACUS). ACUS has launched a project to study representation and other forms of assistance provided by nonlawyers to participants in federal agency adjudication.
Model Rules of Representative Conduct (ACUS). Following the adoption of Recommendation 2021-9, Regulation of Representatives in Agency Adjudicative Proceedings, Chair Fois convened a working group of public- and private-sector representatives to develop model rules of representative conduct. The model rules will help federal agencies amend or develop their own rules consistent with the best practices identified in Recommendation 2021-9. The working group is divided into four subcommittees: Qualifications, Conduct, Enforcement, and Transparency. The Qualifications and Conduct Subcommittees have completed their work, and the Enforcement and Transparency Subcommittees had a joint meeting on February 1.
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