Report from Governmental Affairs

Change the Rules

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Recognizing the perva­sive role that ad­ministrative hearings play in sorting out disputes arising under federal law, the ABA supports a number of initiatives in Congress to improve the process of setting the procedural rules for agencies that conduct those hearings.

In late 2006, the House Judiciary Subcommittee on Commercial and Administrative Law, chaired by Rep. Chris Cannon, R-Utah, was approaching the completion of its Administrative Law, Process and Procedure Proj­ect for the 21st Century.

ABA positions on administrative law issues have been conveyed primarily through the Section of Administra­tive Law and Regulatory Practice, and the Na­tional Conference of Administra­tive Law Judiciary in the Ju­dicial Division.

The first order of business is reactivating the Admin­istrative Con­ference of the United States.

Congress established the confer­ence in 1964 to serve as the federal government’s in-house adviser on, and coordinator of, administrative procedural reform. The confer­ence —a public/private partnership—enjoyed bipartisan support for more than 25 years until 1995, when Congress dissolved it. In 2004, Congress reauthorized the conference for three years, but never approved funding for it.

Comments submitted to the subcommittee in July by Eleanor D. Kinney of Indianap­o­lis, then chair of the Adminis­tra­tive Law Section, and in November by current chair Daniel E. Troy of Wash­ington, D.C., emphasized that a revitalized administrative conference could play a crucial role in supporting recommendations contained in the subcommittee’s project report.

“Through the years, ACUS was a valuable resource providing information on the efficiency, adequacy and fairness of the administrative procedures used by administrative agencies in carrying out their programs,” stated Troy in a letter submitted to the subcommittee. “This was a continuing responsibility and a continuing need, a need that has not ceased to exist.”

The ABA has urged Congress to fund the conference at the fully authorized level of $3.2 million for the current fiscal year—which appeared unlikely to happen during Congress’ lame-duck session after the Novem­ber elections—and to enact legislation to reauthorize the agency for fiscal year 2008 and beyond.


The ABA also supports amendments to the admin­is­trative Procedure Act, which set a framework for federal rulemaking when it was passed in 1946. The act’s rulemaking, public information and judicial review provisions generally apply to most federal agencies, but the adjudication sections have more limited application.

Type A adjudications—those covered by the act—include hearings conducted by more than 20 federal agencies on such matters as Social Security Act disability, old age and survivor benefits claims; Medicare claims; and labor law cases. Type B hearings—those exempt from the act’s adjudication provisions—include cases involving immigration and asylum, veterans’ benefits, government contract disputes, civil money penalties, security clearances, IRS collection disputes and some 80 other matters.

The adjudication provisions of the act allow parties in Type A hearings to present and contest evidence, require an independent decision-maker to state findings and reasons for decisions, and prohibit ex parte contacts. The ABA adopted policy in 2005 urging Congress to apply those provisions to Type B cases, as well. The ABA also supports the creation of an independent U.S. Administrative Law Judge Conference that would be responsible for testing, selection and appointments of administrative law judges. Those responsibilities are currently carried out by the Office of Personnel Management.

This column is written by the ABA Governmental Affairs Office and discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.

Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office publication.

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