Agency Adjudication Research Articles

Legal Considerations for Remote Hearings in Agency Adjudications

Legal Considerations for Remote Hearings in Agency Adjudications

The Rise of Money Sanctions in Federal Agency Adjudication

The Rise of Money Sanctions in Federal Agency Adjudication

To Find the Best Future System of Agency Adjudication We Should Return to the Past

To Find the Best Future System of Agency Adjudication We Should Return to the Past

Saving Agency Adjudication

Saving Agency Adjudication

Executive Control of Agency Adjudication: Capacity, Selection, and Precedential Rulemaking

Abstract While the volume of adjudication by federal agencies far outstrips the volume of cases decided by the federal judiciary, researchers have devoted relatively little attention to agency adjudication and political control thereof. We study three mechanisms of presidential control of immigration adjudication: capacity-building, selection, and precedential rulemaking. First, consistent with work on bureaucratic capacity, the Trump administration achieved its goal of increasing removals of noncitizens through an unprecedented increase in total hiring of immigration judges (IJs). Second, contrary to expectations from the literatures on judicial behavior and bureaucratic politics, we find little evidence of partisan effects in IJ selection. Third, we demonstrate the substantial power of what we call “precedential rulemaking”—the power by the Attorney General to select cases in which to issue binding precedent. These results illustrate the importance of incorporating mechanisms of supervisory and legal control into the study of administrative courts.

Precedential Decision Making in Agency Adjudication

Precedential Decision Making in Agency Adjudication

Put Away the Duct Tape and Bring Out the Prosecution: Combating the Unruly Passenger Crisis by Improving Federal Enforcement Procedures

a. Unruly passengers aboard commercial flights have become a critical issue for consumer airliners, federal agencies, and other key commercial aviation stakeholders. In the past few years, unruly passenger confrontations rose exponentially. Through a patchwork of Federal Aviation Administration (FAA) regulatory fines, civil penalties, and criminal sanctions, there are enforcement measures available to combat unruly passengers. However, this complex mix of regulations and statutes fails to clearly outline which agencies will be responsible for which types of conduct and what the appropriate penalty will be. Not only does this tangle of enforcement measures confuse and hinder prosecution of unruly passengers, it fails to provide fair notice to airline passengers of what constitutes prohibited unruly conduct and the corresponding penalty for violations. This Comment puts these issues at the forefront by examining the current state of the FAA and Department of Justice (DOJ) enforcement framework, and it proposes a more streamlined model as an alternative. The current FAA enforcement process is outlined in FAA Order Number 2150.3C and requires FAA enforcement counsel to use multiple matrices to determine the appropriate violation and sanction to impose. This complicated procedure is subject to a great deal of discretion by FAA enforcement counsel and accounts for a wide range of prohibited behaviors. Similarly, the statutes often used by the DOJ in unruly passenger enforcement cases include a broad range of available sanctions from civil penalties to incarceration. However, DOJ enforcement, triggered by an FAA referral, largely follows normal litigation proceedings rather than the agency adjudication proceedings used by the FAA. Instead of this complicated overlay of statutes and regulations, the proposed model uses a tiered schedule to identify prohibited unruly passenger behavior, the agency responsible for enforcement, and the appropriate penalty for violations. This proposed model will enhance fair notice to passengers and untangle the confusion amongst federal agencies and commercial aviation stakeholders created by the current unruly passenger enforcement process.

Administrative Law Theory and Fundamentals: An Integrated Approach

New casebooks can be hard to justify. Many legal doctrines and their canonical cases are well established. But few fields are more in need of fresh thinking than administrative law. My new casebook, Administrative Law Theory and Fundamentals: An Integrated Approach, newly out with Foundation Press, seeks to provide such thinking. To my knowledge, it is the only administrative law casebook with the words “theory” and “fundamentals” in its title. And the reason might be that there is at present no coherent theory regarding the nature of administrative power. And the debates surrounding administrative power, on the part of both proponents and opponents of administrative government, have stalled. The new casebook proposes a theory of administrative power that better explains constitutional text and structure, as well as historical and modern practice, than competing accounts. It argues that there are “exclusive” powers that only Congress, the President, and the courts can respectively exercise, but also “nonexclusive” powers that can be exercised by more than one branch. This theory of “nonexclusive powers” allows students and scholars of administrative law to make more sense of—or better critiques of—administrative concepts such as delegation, quasi-powers, judicial deference, agency adjudications, the chameleon-like quality of government power, and of the separation of powers more broadly. This five-page introduction seeks to situate this theory within the existing administrative law scholarship.

Executive Control of Agency Adjudication: Capacity, Selection and Precedential Rulemaking

While the volume of adjudication by federal agencies far outstrips the volume of cases decided by the federal judiciary, researchers have devoted relatively little attention to agency adjudication and political control thereof. We study three mechanisms of presidential control of immigration adjudication: capacity-building, selection, and precedential rulemaking. First, consistent with work on bureaucratic capacity, the Trump administration achieved its goal of increasing removals of noncitizens through an unprecedented increase in total hiring of immigration judges. Second, contrary to expectations from the literatures on judicial behavior and bureaucratic politics, we find little evidence of partisan effects in immigration judge selection. Third, we demonstrate the substantial power of what we call “precedential rulemaking” – the power by the Attorney General to select cases in which to issue binding precedent. These results illustrate the importance of incorporating mechanisms of supervisory and legal control into the study of administrative courts.

The Rediscovered Stages of Agency Adjudication

Modern administrative law understands the Administrative Procedure Act (APA) to establish an informal and a formal procedural mode of two types of agency action: rulemaking and adjudication. This Article argues this understanding, which is sound as applied to rulemaking, is wrong as applied to adjudication. Revisiting the voluminous and long-neglected research that informed the APA, this Article argues the statute codified informal and formal stages—not modes—of adjudication. In this staged process, informal procedures such as investigations, examinations, inspections, and conferences are used in the initial stages of the process and are sufficient to finally dispose of the vast majority of cases. A statutory hearing requirement directs an agency to elevate the few remaining disputes to a subsequent hearing stage, which across agencies is singularly defined by its purpose, timing, and procedural characteristics. Understanding adjudication as a staged process makes the APA’s regime coherent and offers new insights into the statute’s conceptual foundation. It clarifies that an adjudicatory “hearing” under the APA is formal, while amplifying principles that appropriately can be used to cabin hearings and effectuate Congress’s preference for agency over judicial resolution of administrative disputes. It provides a compelling explanation for the APA’s failure to establish minimum procedural requirements for informal adjudication. And once hearings are removed from this category, it emerges that informal adjudication may be better characterized as executive than quasi-judicial. Modern administrative law admits of this possibility, but the APA is blind to it because the statute was founded upon a conception of administrative action as purely quasi-legislative and quasi-judicial and fundamentally not executive. This Article thus identifies a serious, unacknowledged problem: the APA’s conceptual foundation has become antiquated.

Replacing Agency Adjudication with Independent Administrative Courts.

Modern administrative agencies conflict with a strong separation of powers, exercising not only executive power, but also delegated legislative and judicial power. This feature of modern agencies raises serious legitimacy concerns, because the separation of powers is one of the traditional means to constrain government power and deter improper government behavior. Defenders of the administrative state often argue, however, that these legitimacy concerns must be borne because modern government would not otherwise possess the expertise or efficient decision making capacity that such government requires to function. This Article, published as part of a symposium on administrative adjudication, argues that there is an alternative way of structuring administrative adjudication that would allow for both a strong separation of powers and efficient decision-making. I argue for a system of genuinely independent courts that have expertise and that use the streamlined procedures of agency adjudication. The judges of these courts might be either Article III or Article I judges and would be required to have expertise in either economics, medicine, or science. Such courts would serve to promote the limited and effective government of the separation of powers while also furthering the expert and expeditious decision-making of agency adjudication. The system would avoid the basic unfairness and bad results of having the prosecutor be the judge in his or her own case. It would also reduce the opportunity for agencies to take a host of other actions that are currently allowed, such as pursuing extreme ideologies not shared by the public or promoting the interests of a political party. But a system of independent administrative courts would not require that regulatory laws be administered by uninformed officials or through expensive and time-consuming procedures. One could employ expertise and streamlined procedures to allow for knowledgeable and low-cost decision-making.

Regulating Impartiality in Agency Adjudication

Which should prevail—the Take Care Clause of Article II or the Due Process Clause? To Justice Breyer’s chagrin, the majorities in Lucia v. SEC, 138 S. Ct. 2044 (2018), and Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010), expressly declined to resolve whether the U.S. Constitution condones SEC administrative law judges’ and other similarly situated agency adjudicators’ current statutory protection from at-will removal. The crux of the problem is that, on one hand, senior officials may use at-will removal to pressure agency adjudicators and thereby potentially imperil the impartiality that due process requires. On the other hand, Article II limits Congress’s ability to cocoon executive officers, including potentially agency adjudicators, from at-will removal. This article argues that the executive branch itself can and should moot or mitigate this constitutional clash. Nothing in Article II prevents the president from issuing executive orders and agencies from promulgating regulations—collectively, what I refer to as “impartiality regulations”—that require good cause for discipline or removal of an agency adjudicator, as well as other means of protecting adjudicator impartiality. Indeed, the executive branch has a longstanding, yet overlooked, practice of using executive orders and regulations for similar purposes. Impartiality regulations are but one form of the executive branch’s internal separation of powers. Self-imposed separation provides not only a strong practical solution for the agency-adjudication dilemma but—as scholars have come to develop in the past decade or so—a strong theoretical ground, too.

처분기준의 설정･공표와 신뢰보호

행정절차법 제20조 제1항의 취지는 헌법에서 유래한 법원칙으로서 동법 제1조 및 제5조에서 강조하고 있는 투명성의 원칙을 구체화한 것으로, 그동안 법원이 처분기준의 설정·공표의무의 위반을 매우 소극적으로만 다뤄오다가, 대상 판결인 서울고법 2017. 8. 17. 선고 2017누35945 판결에서 이제 그 의무위반을 정면으로 인정하고 있다. 법원이 그동안 처분기준 설정·공표의무위반에 소극적이었던 배경에는 새롭게 정립된 행정절차법상의 절차적 공정성의 요구와 행정규칙의 본질 사이에 일응 긴장관계가 있다는 점이 작용한 것이다. 행정규칙은 그 본질상 유연성과 상황적합성을 특징으로 하는데, 행정절차법상 공표의무가 인정됨으로써 자기구속을 받게 되므로, 절차적 통제의 가능성은 높아지지만 반대로 재량을 통한 유연한 해결의 장점은 사라질 우려가 있다. 필자는 비교법적인 검토를 거쳐 우리 법의 해석에 있어서도 제재적 처분기준과 수익적 처분기준이 성격이 다르므로 법정책적으로도 다르게 접근해야 하고, 처분기준이 실제로는 대부분 행정규칙이라는 점을 고려할 때 처분기준의 구체화 수준에 있어서 실무적으로 사용되는 각종 평가기준보다는 구체성의 정도가 완화되어야 한다고 제안한다. 더 나아가 처분기준의 변경시에도 행정절차법 제20조 제1항의 문언의 해석상 공표의무가 인정되는지 여부는 ‘구체성의 정도’를 판단한 후 기존의 법령이 구체적이지 않다고 보았을 때만 ‘변경된 처분기준’을 공표할 의무가 생기고, 이러한 의무위반의 효과는 당사자의 절차적 공정성을 침해한 경우로 제한되어야 한다고 본다. 이처럼 완화된 처분기준 설정･공표의무를 인정하더라도 처분기준의 변경시에 중요한 부분이 예측가능성의 범위를 벗어나 변경되는 경우에는 법령의 개정시에 신뢰보호를 위해 개정 법령의 적용을 제한하는 판례 법리에 따라 해결될 수 있다. 결국, 이러한 접근방식이 엄격한 절차적 의무를 부과한 행정절차법의 형식적 적용을 완화하면서 행정규칙의 본질에 맞는 적절한 해결방식이 될 것이라고 본다.

Bias in Regulatory Administration

The requirement of an objective, open-minded agency decisionmaker lies at the core of our administrative law scheme. And yet the ways in which doctrine plays out reflects a muddled and frequently overbearing approach to solving important problems in regulatory administration. This article takes a close look at the architecture of bias doctrine in administrative law, exploring doctrinal issues and also the theoretical underpinnings of the persistent, yet incorrigible, principle of neutrality in agency adjudication and rulemaking. Exploring these issues opens up promising new lines of inquiry about administrative law and regulatory decisionmaking more generally. Given the predicament of trust and discretion at the heart of debates over the scope and purposes of regulatory administration, how do the variegated bias doctrines help or hinder our rule of law and social welfare goals?

The New World of Agency Adjudication

In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.

The New World of Agency Adjudication

In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority. In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication. This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.

Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law

Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law

Supreme Court Brief Amicus Curiae of Administrative Law Scholars in Support of Neither Party

This brief on behalf of 29 administrative law scholars takes no position on whether Administrative Law Judges (ALJs) are employees or inferior officers. It urges the Court to issue an opinion that respects the decision that Congress made unanimously in 1946 to enact numerous statutory safeguards that assure that ALJs have decisional independence from the agencies where they work while assuring that agencies retain control over the policy content and legal basis for any decision made in an adjudication in which an ALJ presides. The brief describes the fifteen years of study and deliberation that led to the unanimous decision of Congress to enact the Administrative Procedure Act (APA) in 1946. It describes the particular attention that Congress devoted to the critical task of providing ALJs with the combination of statutory safeguards that minimize the risk that they will favor the agencies for whom they adjudicate cases while assuring that the agencies retain control of the policy content of any decision made in such an adjudication. It then describes the series of opinions the Supreme Court issued during the 1950s in which the Justices unanimously praised the provisions of the APA that assure that ALJs conduct adjudicatory hearings in an unbiased manner, explained the importance of those statutory provisions in protecting the values reflected in the Due Process Clause, and urged Congress to make those safeguards applicable to all agency adjudications. It concludes by urging the Court to issue an opinion that respects the decision that Congress made in 1946 to insulate ALJs from potential sources of pro-agency bias by including in the APA a combination of provisions that confer decisional independence on ALJs.

Be Careful What You Wish For: Ronald Reagan, Donald Trump, The Assault on Civil Rights, and The Surprising Story of How Title VII Got Its Private Right of Action

This essay reviews the impact of President Ronald Reagan’s policies on civil rights enforcement in the 1980s, as he tried to turn back the clock on civil rights. Reagan devastated the civil rights enforcement agencies, as he pandered to the white nationalists who helped him win election. But Reagan’s attempts ultimately failed, and leave behind an important lesson for President Donald Trump. Reagan’s appointments to and policies at the Equal Employment Opportunity Commission (EEOC), the Department of Justice’s Civil Rights Division, and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) seriously damaged civil rights enforcement. But employment discrimination law has survived and continues to be an often-effective tool against racism, misogyny, homophobia, religious hatred, and other forms of discrimination. Title VII cases (and claims under parallel statutes) continue to be a major part of the caseload in federal courts. Why? Because the Civil Rights Act is largely enforced by private civil rights groups and lawyers in private practice who bring cases before independent judges pursuant to a private right of action. Did a progressive Congress have the foresight to recognize that a private right of action would protect the victims of discrimination from future administrations hostile to civil rights, and thus include it in the statute as a check against enforcement agencies captured by civil rights opponents? Hardly. Rather, moderate and conservative Senate Republicans, resigned to the fact that an employment discrimination law was inevitable, and fearful of a powerful federal agency that would restrict business autonomy in the manner of the National Labor Relations Board (NLRB), substituted a private right of action for agency adjudication in an attempt to sabotage the effectiveness of Title VII. In 1964, the adoption of a private right of action was widely seen as a great loss for civil rights advocates, turning Title VII from an enforceable law to an ineffectual call for voluntary compliance with anti-discrimination policies. Almost no one foresaw the development of a private bar of plaintiffs’ employment discrimination lawyers. Those who tried to sabotage the enforcement of civil rights through a private right of action should be turning in their graves, having inadvertently given civil rights advocates a powerful tool to resist assaults on civil rights.

Fail to Comment at Your Own Risk: Does Issue Exhaustion Have a Place in Judicial Review of Rules?

The classic version of the exhaustion-of-remedies requirement generally requires a party to go through all the stages of an administrative adjudication before going to court. However, the doctrine has developed a new permutation, covering situations where a petitioner for judicial review did follow all the steps of the administrative appeals process, but had failed to raise in that process the issues now sought to be litigated in court. In those cases, which have been called “issue exhaustion” cases, the thwarted petitioner will likely be out of luck since normally there is no further opportunity to raise the issue at the agency. In that sense, issue exhaustion bears some resemblance to standing-to-sue cases — a particular litigant is deemed unfit to challenge the agency’s action in court. Unlike remedy exhaustion, however, which only applies to agency adjudication, issue exhaustion can theoretically be applied to agency rulemaking. As this article will show, this has started to become a reality — to the potential detriment of the rulemaking process, if applied in an overbroad fashion.Although only two federal statutes explicitly require issue exhaustion in judicial review of rulemaking, there are many more generic exhaustion statutes that courts have begun to apply to rulemaking challenges. Some of the policy reasons for apply exhaustion principles to review of agency adjudications also apply to reviews of rulemaking, but not all. And there are some drawbacks to applying it to rulemaking challenges in certain types of cases. This paper, prepared for the Administrative Conference of the United States, reviews the relevant statutes, the developing caselaw, and suggests the need for certain limitations to applying issue exhaustion in judicial reviews of rules. The paper provided the foundation for Administrative Conference Statement #19, Issue Exhaustion in Preenforcement Judicial Review of Administrative Rulemaking, Adopted September 25, 2015