ACUS study examines how agency review models differ from agency to agency.
Hundreds of agencies in the federal bureaucracy adjudicate millions of cases every year. Almost all of their decisions at the hearing level can be appealed internally under systems established by law or, more commonly, by internal agency regulations.
Despite the widespread use of appeal systems in administrative arbitration, little comparative research has been undertaken to examine their role and operation across the federal government. Almost all studies of calling systems have been limited to particular agencies. Ronald cass1983 study for the United States Administrative Conference (ACUS) was a notable exception, although it was limited, as most studies have been, to appeals of hearing-level decisions under the Administrative Procedure Law (APA). Cass’s study built on a 1969 ACUS study through James freidman.
A few years ago, ACUS returned to the subject when it asked us to undertake a large-scale comparative study. study agency call systems. This study, unlike its two predecessors, covered systems that review both APA decisions and the much larger number of decisions at the non-APA hearing level. Scientists have called this is the new world of agency arbitration.
We identified call systems in twelve well-known agencies. They included the most commonly used review structures: direct appellate review by the head of the agency (usually a board or commission) leading to a final agency decision, such as to the Securities and Exchange Commission; direct appeal examination by a delegate of the head of agency leading to a final agency decision that cannot be reviewed by the head of agency, as in the Social Security Administration; appellate review by a legislated appeals arbitrator (often a multi-member board) resulting in a final non-reviewable decision by the head of the agency, such as at the Veterans Appeals Board; and interim appeal review (often by a multi-member body) resulting in a decision subject to final review by the head of the agency, such as the Immigration Review Executive Office of the Ministry of Justice.
For each agency call system, we used legal documents and other publicly available information to to prepare a detailed overview of the structure, composition, procedures and other attributes of the system. We have next led interviews with at least one senior official from each agency, in most cases the agency’s appeal program manager. We monitoring carefully crafted script, but we also asked follow-up questions based on the official’s answers during the interview and the detailed agency overview we created prior to the interview. While the design of our study has obvious and recognized methodological limitations, it represents an important contribution to the agency arbitration literature and has served ACUS well.
Based on agency-specific overviews, interviews and a review of the literature that accompanies them, we reached many discoveries concerning agency calling systems today. Our discoveries address important legal issues such as the legal or regulatory basis for appellate review; the sources of procedural law; the selection of cases to be considered on appeal, when the review is discretionary; and review standards. Our findings too address management, administration and bureaucratic oversight of appeal systems, as well as public disclosure of decisions and other documents on agency websites. Based on our findings and the proposed recommendations, ACUS adopted Recommendation 2020-3, Agency call systems, during its plenary session in December 2020. The recommendation offers agencies over two dozen best practices that, when implemented, will significantly improve their appellate review systems.
Our findings are too broad to be summarized here, but one is worth noting: the judicial model of appellate review associated with Federal Court review of agency decisions. is not the predominant model in agencies’ review of audience-level decisions, although it does play an important role in many programs. We have observed other review models at work, many of which have bureaucratic features distinct from Federal Court review.
The main reason that agency review models vary is that agency review can serve many – and sometimes competing – purposes. We identified at least seven objectives:
- Correction or prevention of errors;
- Interdecisional consistency;
- Policy development;
- Political responsibility;
- Management of arbitration at the hearing level;
- Operational efficiency and systemic awareness; and
- Reduction of litigation in federal courts.
The institutional and procedural choices of the agencies are guided by the objectives they have chosen. An appeal system whose primary purpose is policy development, as opposed to, for example, correcting or preventing errors, would be unlikely to grant review in most cases, especially in a high volume system with limited resources. Rather, the system would intervene selectively in cases where policy issues are contested. In addition, to focus on policy development, the system could provide a standard of deference for the review of factual findings or forgo some fact-finding reviews altogether.
Surprisingly, we found that few organizations had fully defined their goals for appellate review, let alone adapted their procedures and practices to achieve those goals. We replied to this lacuna in our report to ACUS by recommending, first and foremost, that the agencies explicitly identify the objective or objectives of the appellate review, not only internally, but also in their rules of practice released publicly, then structure their processes and procedures accordingly. ACUS, for its part, adopted our recommendation.
Our study is not the last word on agency appeals systems, but we hope it will encourage more scholarly research – and, in particular, more interagency and comparative studies – on agency arbitration in the world. level of appeals and hearings. To promote this scholarship, we have identified several promising areas for future studies.
More research is needed, for example on quality assurance systems in high volume arbitration programs. In an important item Last year, Daniel Ho and David Marcus suggested that quality assurance programs can “operate as a more systematic replacement for a laborious and underused appellate review system”. Recently, ACUS launched a project study, like Jerry mashaw studied for ACUS almost fifty years ago, quality assurance in arbitration.
In summary, when it comes to agency appellate review, much more work needs to be done – empirically, doctrinal, and theoretical – on issues large and small. Given the importance of the agency’s appellate review to administrative decisions, we strongly doubt that it will be another four decades before ACUS returns to the subject.
None of the views expressed here are those of institutions with which the authors are affiliated.
This essay is part of a 7-part series entitled Improve the accessibility and transparency of administrative programs.