Agency Appellate Systems

Final Report to the Administrative Conference of the United States, Dec. 14, 2020

Ohio State Legal Studies Research Paper No. 577

80 Pages Posted: 11 Nov 2020 Last revised: 15 Dec 2020

See all articles by Christopher J. Walker

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law

Matthew Wiener

Administrative Conference of the United States

Date Written: December 14, 2020

Abstract

This Report returns to an important but little studied subject that the Administrative Conference of the United States (ACUS) last addressed nearly forty years ago: internal agency review (sometimes called administrative review) of hearing-level adjudicators’ decisions—or, as we call it, “agency appellate review.” In 1983, ACUS addressed the legal structures of appellate review. The main question it asked then, as it had over a decade earlier, is when and how agencies heads, if not constrained by statute, should delegate their authority to review the decisions of administrative law judges.

Our focus in the Report lies elsewhere. We take the legal structures of appellate programs as they are now constituted and ask, among other important questions: How should the programs structure their decision-making processes? What cases should they review? Under what standards of review? What procedural rules should they use? What form should those rules take? How should they promulgate the rules? What form should their decisions take? (When, for instance, should decisions be designated precedential?) What extra-decisional activities might they undertake to improve the hearing-level decisions they review and also their own decisions? What bureaucratic mechanisms might they employ to carry out their missions as efficiently and fairly as scarce resources allow? What information should they share with the public? It is important to emphasize up front that these questions, and all others we consider here, can usually be addressed by agencies as a matter of administrative choice. Few agencies are constrained by statute.

This Report proceeds as follows. Part I provides necessary background on agency appellate systems (their structures, objectives, and legal bases), prior ACUS recommendations on the subject, and judicial review of agency adjudicative decisions. After Part II explains our study methodology, Part III presents our main findings. Part IV sets forth our recommendations for ACUS’s consideration. The Conclusion offers some possibilities for further ACUS study.

Keywords: administrative law, agency adjudication, appellate review, ACUS

Suggested Citation

Walker, Christopher J. and Wiener, Matthew, Agency Appellate Systems (December 14, 2020). Final Report to the Administrative Conference of the United States, Dec. 14, 2020, Ohio State Legal Studies Research Paper No. 577, Available at SSRN: https://ssrn.com/abstract=3728393

Christopher J. Walker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-1898 (Phone)

HOME PAGE: http://www.chrisjwalker.com

Matthew Wiener

Administrative Conference of the United States ( email )

1120 20th St NW
Suite 706 South
Washington, DC 20036
United States

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