[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)]
[Notices]
[Pages 94312-94321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31047]


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 Notices
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  Federal Register / Vol. 81, No. 247 / Friday, December 23, 2016 / 
Notices  

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ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Adoption of Recommendations

AGENCY: Administrative Conference of the United States.

ACTION: Notice.

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SUMMARY: The Administrative Conference of the United States adopted 
four recommendations at its Sixty-sixth Plenary Session. The appended 
recommendations address: Special Procedural Rules for Social Security 
Litigation; Evidentiary Hearings Not Required by the Administrative 
Procedure Act; The Use of Ombuds in Federal Agencies; and Self-
Represented Parties in Administrative Proceedings.

FOR FURTHER INFORMATION CONTACT: For Recommendation 2016-3, Daniel 
Sheffner; for Recommendation 2016-4, Amber Williams; for Recommendation 
2016-5, David Pritzker; and for Recommendation 2016-6, Connie 
Vogelmann. For all of these actions the address and telephone number 
are: Administrative Conference of the United States, Suite 706 South, 
1120 20th Street NW., Washington, DC 20036; Telephone 202-480-2080.

SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 
591-596, established the Administrative Conference of the United 
States. The Conference studies the efficiency, adequacy, and fairness 
of the administrative procedures used by Federal agencies and makes 
recommendations to agencies, the President, Congress, and the Judicial 
Conference of the United States for procedural improvements (5 U.S.C. 
594(1)). For further information about the Conference and its 
activities, see www.acus.gov. At its Sixty-sixth Plenary Session, held 
December 13 and 14, 2016, the Assembly of the Conference adopted four 
recommendations.
    Recommendation 2016-3, Special Procedural Rules for Social Security 
Litigation in District Court. This recommendation encourages the 
Judicial Conference of the United States to develop a uniform set of 
procedural rules for cases under the Social Security Act in which an 
individual seeks district court review of a final administrative 
decision of the Commissioner of Social Security pursuant to 42 U.S.C. 
405(g). It also highlights areas in which such rules should be adopted 
and sets forth criteria for the promulgation of additional rules.
    Recommendation 2016-4, Evidentiary Hearings Not Required by the 
Administrative Procedure Act. This recommendation offers best practices 
to agencies for structuring evidentiary hearings that are not required 
by the Administrative Procedure Act. It suggests ways to ensure the 
integrity of the decisionmaking process; sets forth recommended pre-
hearing, hearing, and post-hearing practices; and urges agencies to 
describe their practices in a publicly accessible document and seek 
periodic feedback on those practices.
    Recommendation 2016-5, The Use of Ombuds in Federal Agencies. This 
recommendation takes account of the broad array of federal agency 
ombuds offices that have been established since the Administrative 
Conference's adoption in 1990 of Recommendation 90-2 on the same 
subject, https://www.acus.gov/recommendation/ombudsman-federal-agencies. The new recommendation continues to urge both agencies and 
Congress to consider creating additional ombuds offices that provide an 
opportunity for individuals to raise issues confidentially and receive 
assistance in resolving them without fear of retribution. The 
recommendation emphasizes the importance of adherence to the three core 
standards of independence, confidentiality, and impartiality, and 
identifies best practices for the operation, staffing, and evaluation 
of federal agency ombuds offices.
    Recommendation 2016-6, Self-Represented Parties in Administrative 
Proceedings. This recommendation offers best practices for agencies 
dealing with self-represented parties in administrative proceedings. 
Recommendations include the use of triage and diagnostic tools, 
development of a continuum of services to aid parties, and re-
evaluation and simplification of existing administrative proceedings, 
where possible. The project builds on the activity of a working group 
on Self-Represented Parties in Administrative Hearings that is co-led 
by the Administrative Conference and the Department of Justice's Office 
for Access to Justice.
    The Appendix below sets forth the full texts of these four 
recommendations. The Conference will transmit them to affected 
agencies, Congress, and the Judicial Conference of the United States. 
The recommendations are not binding, so the entities to which they are 
addressed will make decisions on their implementation.
    The Conference based these recommendations on research reports that 
are posted at: https://www.acus.gov/66thPlenary.

    Dated: December 20, 2016.
Shawne C. McGibbon,
General Counsel.

APPENDIX--RECOMMENDATIONS OF THE ADMINISTRATIVE CONFERENCE OF THE 
UNITED STATES

Administrative Conference Recommendation 2016-3

Special Procedural Rules for Social Security Litigation in District 
Court

Adopted December 13, 2016

    The Administrative Conference recommends that the Judicial 
Conference of the United States develop special procedural rules for 
cases under the Social Security Act \1\ in which an individual seeks 
district court review of a final administrative decision of the 
Commissioner of Social Security pursuant to 42 U.S.C. 405(g). The 
Rules Enabling Act delegates authority to the United States Supreme 
Court (acting initially through the Judicial Conference) to 
prescribe procedural rules for the lower federal courts.\2\ The Act 
does not require that procedural rules be trans-substantive (that 
is, be the same for all types of cases), although the Federal Rules 
of Civil Procedure (Federal Rules) have generally been so drafted. 
Rule 81 of the Federal Rules excepts certain specialized proceedings 
from the Rules' general procedural governing scheme.\3\ In the case 
of social security litigation in the federal courts, several factors 
warrant an additional set of exceptions. These factors include the 
extraordinary volume of social security litigation, the Federal 
Rules' failure to account for numerous procedural issues that

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arise due to the appellate nature of the litigation, and the costs 
imposed on parties by the various local rules fashioned to fill 
those procedural gaps.\4\
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    \1\ 42 U.S.C. 301 et seq. (2012).
    \2\ See 28 U.S.C. 2072(a) (2012).
    \3\ Fed. R. Civ. P. 81(a); see also Fed. R. Civ. P. 71.1-73 
(``Special Proceedings'').
    \4\ This recommendation is based on a portion of the extensive 
report prepared for the Administrative Conference by its independent 
consultants, Jonah Gelbach of the University of Pennsylvania Law 
School and David Marcus of the University of Arizona Rogers College 
of Law. See Jonah Gelbach & David Marcus, A Study of Social Security 
Litigation in the Federal Courts 127-42, 148-59 (July 28, 2016) 
(report to the Admin. Conf. of the U.S.).
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    * * *
    The Social Security Administration (SSA) administers the Social 
Security Disability Insurance program and the Supplemental Security 
Income program, two of the largest disability programs in the United 
States. An individual who fails to obtain disability benefits under 
either of these programs, after proceeding through SSA's extensive 
administrative adjudication system, may appeal the agency's decision 
to a federal district court.\5\ In reviewing SSA's decision, the 
district court's inquiry is typically based on the administrative 
record developed by the agency.
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    \5\ 42 U.S.C. 405(g) (2012).
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    District courts face exceptional challenges in social security 
litigation. Although institutionally oriented towards resolving 
cases in which they serve as the initial adjudicators, the federal 
district courts act as appellate tribunals in their review of 
disability decisions. That fact alone does not make these cases 
unique; appeals of agency actions generally go to district courts 
unless a statute expressly provides for direct review of an agency's 
actions by a court of appeals.\6\ However, social security appeals 
comprise approximately seven percent of district courts' dockets, 
generating substantially more litigation for district courts than 
any other type of appeal from a federal administrative agency. The 
high volume of social security cases in the federal courts is in no 
small part a result of the enormous magnitude of the social security 
disability program. The program, which is administered nationally, 
annually receives millions of applications for benefits. The 
magnitude of this judicial caseload suggests that a specialized 
approach in this area could bring about economies of scale that 
probably could not be achieved in other subject areas.
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    \6\ See Watts v. Sec. & Exch. Comm'n, 482 F.3d 501, 505 (D.C. 
Cir. 2007).
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    The Federal Rules were designed for cases litigated in the first 
instance, not for those reviewing, on an appellate basis, agency 
adjudicative decisions. Consequently, the Federal Rules fail to 
account for a variety of procedural issues that arise when a 
disability case is appealed to district court. For example, the 
Rules require the parties to file a complaint and an answer. Because 
a social security case is in substance an appellate proceeding, the 
case could more sensibly be initiated through a simple document akin 
to a notice of appeal or a petition for review. Moreover, although 
42 U.S.C. 405(g) provides that the certified record should be filed 
as ``part of'' the government's answer, there is no functional need 
at that stage for the government to file anything more than the 
record. In addition, the lack of congruence between the structure of 
the Rules and the nature of the proceeding has led to uncertainty 
about the type of motions that litigants should file in order to get 
their cases resolved on the merits. In some districts, for instance, 
the agency files the certified transcript of administrative 
proceedings instead of an answer, whereas other districts require 
the agency to file an answer. In still other districts, claimants 
must file motions for summary judgment to have their case 
adjudicated on the merits,\7\ whereas such motions are considered 
``not appropriate'' in others.\8\
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    \7\ See, e.g., E.D. Mo. L.R. 56-9.02; Order Setting Schedule, 
Donvan-Terris v. Colvin, Civ. No. 14-5125 (E.D. Wash. April 8, 
2015); E.D. Mo. L.R. 56-9.02.
    \8\ See, e.g., S.D. Iowa Local R. 56(i).
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    Social security disability litigation is not the only type of 
specialized litigation district courts regularly review in an 
appellate capacity. District courts entertain an equivalent number 
of habeas corpus petitions,\9\ as well as numerous appeals from 
bankruptcy courts. But habeas and bankruptcy appeals are governed by 
specially crafted, national rules that address those cases' specific 
issues.\10\ No particularized set of rules, however, accounts for 
the procedural gaps left by the Federal Rules in social security 
appeals.
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    \9\ During the twelve months that ended on September 30, 2014, 
the district courts received 19,185 ``general'' habeas corpus 
petitions and 19,146 social security appeals. Table C-2A, U.S. 
District Courts-Civil Cases Commenced, by Nature of the Suit, During 
the 12-Month Periods Ending September 30, 2009 Through 2014, at 3-4.
    \10\ See R. Governing Sec.  2254 Cases U.S. Dist. Cts. 1-12; 
Fed. R. Bankr. P. 1001-9037.
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    When specialized litigation with unique procedural needs lacks a 
tailored set of national procedural rules for its governance, 
districts and even individual judges have to craft their own. This 
is precisely what has happened with social security litigation. The 
Federal Rules do exempt disability cases from the initial disclosure 
requirements of Rule 26, and limit electronic access of nonparties 
to filings in social security cases,\11\ but, otherwise, they 
include no specialized procedures. As a result, numerous local 
rules, district-wide orders, and individual case management orders, 
addressing a multitude of issues at every stage in a social security 
case, have proliferated. Whether the agency must answer a complaint, 
what sort of merits briefs the parties are required to file, whether 
oral arguments are held, and the answers to a host of other 
questions differ considerably from district to district and, 
sometimes, judge to judge. Such local variations have not burgeoned 
in other subject areas in which district courts serve as appellate 
tribunals; this fact reflects the district courts' own recognition 
that social security cases pose distinctive challenges.
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    \11\ Fed. R. Civ. P. 26(a)(1)(B)(i); Fed. R. Civ. P. 5.2(c).
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    Many of the local rules and orders fashioned to fill the 
procedural gaps left by the Federal Rules generate inefficiencies 
and impose costs on claimants and SSA. For example, simultaneous 
briefing--the practice in some districts that requires both parties 
to file cross motions for resolution of the merits and to respond to 
each other's briefs in simultaneously filed responses--effectively 
doubles the number of briefs the parties must file. Some judges 
employ a related practice whereby the agency is required to file the 
opening brief.\12\ Because social security complaints are generally 
form complaints containing little specificity, courts that employ 
this practice (known as ``affirmative briefing'') essentially 
reverse the positions of the parties, leaving to the agency the task 
of defining the issues on appeal. The questionable nature of some of 
these local variations may be attributable in part to the fact that 
they can be imposed without observance of procedures that would 
assure sufficient deliberation and opportunities for public 
feedback. Proposed amendments to the Federal Rules must go through 
several steps, each of which requires public input. So-called 
``general orders'' and judge-specific orders, on the other hand, can 
be issued by a district or individual judge with very little 
process.
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    \12\ See, e.g., Standing Order Gov. Dev. of Soc. Sec. Cases 
Assigned to Judge Conrad (W.D. Va. Jan. 1, 2005); Briefing Schedule, 
Barnes v. Colvin, Civ. No 14-482 (S.D. Tex. Sept. 3, 2014), at 1-2.
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    The disability program is a national program that is intended to 
be administered in a uniform fashion, yet procedural localism raises 
the possibility that like cases will not be treated alike. 
Burdensome procedures adopted by some districts or judges, such as 
simultaneous briefing schedules, can increase delays and litigation 
costs for some claimants, while leaving other similarly situated 
claimants free from bearing those costs. Further, many of the 
attorneys who litigate social security cases--agency lawyers and 
claimants' representatives alike--maintain regional or even national 
practices. Localism, however, makes it difficult for those lawyers 
to economize their resources by, for instance, forcing them to 
refashion even successful arguments in order to fit several 
different courts' unique page-limits or formatting requirements.
    Procedural variation can thus impose a substantial burden on SSA 
as it attempts to administer a national program and can result in 
arbitrary delays and uneven costs for disability claimants appealing 
benefit denials. SSA and claimants would benefit from a set of 
uniform rules that recognize the appellate nature of disability 
cases. Indeed, several districts already treat disability cases as 
appeals.\13\ Many of these districts provide, for example, for the 
use of merits briefs instead of motions or for the filing of the 
certified administrative record in lieu of an answer.
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    \13\ See, e.g., General Order 05-15, In re Soc. Sec. Cases, 
Actions Seeking Rev. of the Comm'r of Soc. Sec.'s Final Dec. Denying 
an App. for Benefits (W.D. Wash. June 1, 2015); Standing Order, In 
re Actions Seek. Rev. of the Comm'r of Soc. Sec.'s Final Decs. 
Denying Soc. Sec. Benefits (W.D. NY Sept. 5, 2013); Standing Order 
for Disp. of Soc. Sec. App. (W.D. La. Sept. 2, 1994); E.D. Mo. L.R. 
9.02; D. Ariz. L.R. 16.1; N.D. Oh. L.R. 16.3.1.
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    The Supreme Court has recognized that the exercise of rulemaking 
power to craft

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specialized procedural rules for particular areas of litigation can 
be appropriate under the Rules Enabling Act.\14\ Yet, in 
recommending the creation of special procedural rules for social 
security disability and related litigation, the Administrative 
Conference is cognizant that the Judicial Conference has in the past 
been hesitant about amending the Federal Rules to incorporate 
provisions pertaining to particular substantive areas of the law. 
That hesitation has been driven, at least in part, by reluctance to 
recommend changes that would give rise to the appearance, or even 
the reality, of using the Federal Rules to advance substantive ends, 
such as heightened pleading standards that would disfavor litigants 
in particular subject areas. The proposals offered herein have very 
different purposes. Indeed, the Administrative Conference believes 
that rules promulgated pursuant to this recommendation should not 
favor one class of litigants over another or otherwise bear on 
substantive rights. Instead, this recommendation endorses the 
adoption of rules that would promote efficiency and uniformity in 
the procedural management of social security disability and related 
litigation, to the benefit of both claimants and the agency.\15\ 
Such a commitment to neutrality would also serve to dampen any 
apprehensions that the proposed rules would violate the Rules 
Enabling Act's proscription of rules that would ``abridge, enlarge, 
or modify any substantive right.'' \16\ Rules consistent with these 
criteria could potentially address a variety of topics, including 
setting appropriate deadlines for filing petitions for attorneys' 
fees, or establishing judicial extension practices, or perhaps 
authorizing the use of telephone, videoconference, or other 
telecommunication technologies. In developing such rules, the 
Judicial Conference may wish to consult existing appellate 
procedural schemes, such as the Federal Rules of Appellate Procedure 
and the Rules of Practice and Procedure of the United States Court 
of Appeals for Veterans Claims.
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    \14\ See Harris v. Nelson, 394 U.S. 286, 300 n.7 (1969) 
(inviting the Advisory Committee on Civil Rules to draft procedural 
rules for habeas corpus litigation).
    \15\ This recommendation is the latest in a line of Conference 
recommendations focused on improving the procedures used in social 
security cases. See, e.g., Recommendation 90-4, Social Security 
Disability Program Appeals Process: Supplementary Recommendation, 55 
FR 34,213 (June 8, 1990); Recommendation 87-7, A New Role for the 
Social Security Appeals Council, 52 FR 49,143 (Dec. 30, 1987); 
Recommendation 78-2, Procedures for Determining Social Security 
Disability Claims, 43 FR 27,508 (June 26, 1978).
    \16\ 28 U.S.C. 2072(b) (2012).
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    The Administrative Conference believes that a special set of 
procedural rules could bring much needed uniformity to social 
security disability and related litigation. In routine cases, page 
limits, deadlines, briefing schedules, and other procedural 
requirements should be uniform to ensure effective procedural 
management. At the same time, the new rules should be drafted to 
displace the Federal Rules only to the extent that the distinctive 
nature of social security litigation justifies such separate 
treatment.\17\ In this way, the drafters can avoid the promulgation 
of a special procedural regime that sacrifices flexibility and 
efficiency for uniformity in certain cases.
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    \17\ See Fed. R. Civ. P. 81(a)(6) (``[The Federal Rules], to the 
extent applicable, govern proceedings under [certain designated] 
laws, except as those laws provide other procedures.'').
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    The research that served as the foundation for this report 
focused on social security disability litigation commenced under 42 
U.S.C. 405(g). Section 405(g) also authorizes district court review 
of SSA old age and survivors benefits decisions, as well as other 
actions related to benefits. Because such non-disability appeals do 
not differ procedurally from disability cases in any meaningful 
way,\18\ it is the Conference's belief that this recommendation 
should apply, subject to the exceptions discussed below, to all 
cases under the Social Security Act in which an individual seeks 
district court review of a final administrative decision of the 
Commissioner of Social Security pursuant to 42 U.S.C. 405(g).
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    \18\ Further, they only constitute about four percent of total 
social security cases appealed to district courts annually. See 
Table C-2A, U.S. District Courts-Civil Cases Commenced, by Nature of 
the Suit, During the 12-Month Periods Ending September 30, 2009 
Through 2014, at 4.
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    The Conference recognizes that some cases might be brought under 
Sec.  405(g) that would fall outside the rationale for the proposed 
new rules. This could include class actions and other broad 
challenges to program administration, such as challenges to the 
constitutionality or validity of statutory and regulatory 
requirements, or similar broad challenges to agency policies and 
procedures. In these cases, the usual deadlines and page limits 
could be too confining. By citing these examples, the Conference 
does not intend to preclude other exclusions. The task of precisely 
defining the cases covered by any new rules would be worked out by 
the committee that drafts the rules, after additional research and 
more of an opportunity for public comment on the scope of the rules 
than has been possible for the Conference. It may also be necessary 
to include specific rules explaining the procedure for the exclusion 
of appropriate cases.

Recommendation

    1. The Judicial Conference, in consultation with Congress as 
appropriate, should develop for the Supreme Court's consideration a 
uniform set of procedural rules for cases under the Social Security 
Act in which an individual seeks district court review of a final 
administrative decision of the Commissioner of Social Security 
pursuant to 42 U.S.C. 405(g). These rules would not apply to class 
actions or to other cases that are outside the scope of the 
rationale for the proposal.
    2. Examples of rules that should be promulgated include:
    a. A rule providing that a claimant's complaint filed under 42 
U.S.C. 405(g) be substantially equivalent to a notice of appeal;
    b. A rule requiring the agency to file a certified copy of the 
administrative record as the main component of its answer;
    c. A rule or rules requiring the claimant to file an opening 
merits brief to which the agency would respond, and providing for 
appropriate subsequent proceedings and the filing of appropriate 
responses consistent with 42 U.S.C. 405(g) and the appellate nature 
of the proceedings;
    d. A rule or rules setting deadlines and page limits as 
appropriate; and
    e. Other rules that may promote efficiency and uniformity in 
social security disability and related litigation, without favoring 
one class of litigants over another or impacting substantive rights.

Administrative Conference Recommendation 2016-4

Evidentiary Hearings Not Required by the Administrative Procedure 
Act

Adopted December 13, 2016

    Federal administrative adjudication can be divided into three 
categories:
    (a) Adjudication that is regulated by the procedural provisions 
of the Administrative Procedure Act (APA) and usually presided over 
by an administrative law judge (referred to as Type A in the report 
that underlies this recommendation and throughout the preamble) \1\;
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    \1\ See Administrative Procedure Act, 5 U.S.C. 554-559 (2012). 
In a few kinds of cases, the ``presiding employees'' in APA hearings 
are not administrative law judges. Congress may provide for a 
presiding employee who is not an ALJ. See id. Sec.  556(b).
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    (b) Adjudication that consists of legally required evidentiary 
hearings that are not regulated by the APA's adjudication provisions 
in 5 U.S.C. 554 and 556-557 and that is presided over by 
adjudicators who are often called administrative judges, though they 
are known by many other titles (referred to as Type B in the report 
that underlies this recommendation and throughout the preamble) \2\; 
and
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    \2\ This type of adjudication is subject to 5 U.S.C. 555 
(requiring various procedural protections in all adjudication) and 5 
U.S.C. 558 (relating to licensing), as well as the APA's judicial 
review provisions.
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    (c) Adjudication that is not subject to a legally required 
(i.e., required by statute, executive order, or regulation) 
evidentiary hearing (referred to as Type C in the report that 
underlies this recommendation and throughout the preamble).\3\
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    \3\ See generally Michael Asimow, Evidentiary Hearings Outside 
the Administrative Procedure Act (Nov. 10, 2016) [hereinafter 
Asimow], available at https://www.acus.gov/report/evidentiary-hearings-outside-administrative-procedure-act-final-report.
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    This recommendation concerns best practices for the second 
category of adjudication, that is, Type B adjudication.\4\ In

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these adjudications, although there is no statutory mandate to hold 
an ``on the record'' hearing,\5\ a statute, regulation, or other 
source of law does require the agency to conduct an evidentiary 
hearing. Because the APA's adjudication provisions in 5 U.S.C. 554 
and 556-557 are not applicable to these adjudications, the 
procedures that an agency is required to follow are set forth 
elsewhere, most commonly in its own procedural regulations.
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    \4\ Traditionally, Type A adjudication has been referred to as 
``formal adjudication'' and Type B and Type C adjudication have been 
treated in an undifferentiated way as ``informal adjudication.'' 
This recommendation does not use that terminology for several 
reasons. First, the nature of Type B adjudication as involving a 
legally required hearing sharply distinguishes it from Type C 
adjudication and makes it feasible to prescribe best practices. 
Second, the term ``informal adjudication'' can be a misnomer when 
applied to Type B adjudication; in fact, Type B adjudication is 
often as ``formal'' or even more ``formal'' than Type A 
adjudication. Finally, Type C adjudication--which can properly be 
referred to as ``informal adjudication''--is an enormous category, 
consisting of many millions of adjudications each year. This type of 
adjudication is highly diverse and does not easily lend itself to an 
overarching set of best practices.
    \5\ See id. at 7-9 (discussing the boundary between Type A and 
Type B adjudication).
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    Type B adjudications are extremely diverse.\6\ They involve 
types of matters spanning many substantive areas, including 
immigration, veterans' benefits, environmental issues, government 
contracts, and intellectual property. Some involve disputes between 
the federal government and private parties; others involve disputes 
between two private parties. Some involve trial-type proceedings 
that are at least as formal as Type A adjudication. Others are quite 
informal and can be decided based only on written submissions. Some 
proceedings are highly adversarial; others are inquisitorial.\7\ 
Caseloads vary. Some have huge backlogs and long delays; others seem 
relatively current. The structures for internal appeal also vary.
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    \6\ See generally id. (describing the vast variety of 
evidentiary hearings that are not required by the APA). See also 
Federal Administrative Adjudication, available at https://www.acus.gov/research-projects/federal-administrative-adjudication 
(providing an extensive database that maps the contours of 
administrative adjudication across the federal government).
    \7\ See Asimow, supra note 3 at 11-12, 84-88 (providing examples 
of inquisitorial adjudications).
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    The purpose of this recommendation is to set forth best 
practices that agencies should incorporate into regulations 
governing hearing procedures in Type B adjudications. The procedures 
suggested below are highlighted as best practices because they 
achieve a favorable balance of the criteria of accuracy (meaning 
that the procedure produces a correct and consistent outcome), 
efficiency (meaning that the procedure minimizes cost and delay), 
and acceptability to the parties (meaning that the procedure meets 
appropriate standards of procedural fairness).
    Some of the best practices set forth in this recommendation may 
not be applicable or desirable for every Type B adjudicatory 
program. Accordingly, the recommendation does not attempt to 
prescribe the exact language that the agency should employ in its 
procedural regulations.\8\ This recommendation should be 
particularly useful to agencies that are either fashioning 
procedural regulations for new adjudicatory programs or seeking to 
revise their existing procedural regulations.
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    \8\ Drafters of procedural regulations implementing these best 
practices may want to consult the Conference-prepared 1993 Model 
Adjudication Rules for guidance on language, though those rules are 
directed to adjudication governed by the APA. See Michael Cox, The 
Model Adjudication Rules (MARS), 11 T.M. Cooley L. Rev. 75 (1994). 
The Conference has initiated a new Model Adjudication Rules Working 
Group to revise the model rules. See Admin. Conf. of the U.S., 
Office of the Chairman Model Adjudication Rules Working Group, 
available at https://www.acus.gov/research-projects/office-chairman-model-adjudication-rules-working-group for more information.
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Recommendation

Integrity of the Decisionmaking Process

    1. Exclusive Record. Procedural regulations should require a 
decision to be based on an exclusive record. That is, decisionmakers 
should be limited to considering factual information presented in 
testimony or documents they received before, at, or after the 
hearing to which all parties had access, and to matters officially 
noticed.
    2. Ex Parte Communications. Procedural regulations should 
prohibit ex parte communications relevant to the merits of the case 
between persons outside the agency and agency decisionmakers or 
staff who are advising or assisting the decisionmaker. 
Communications between persons outside the agency and agency 
decisionmakers or staff who advise or assist decisionmakers should 
occur only on the record. If oral, written, or electronic ex parte 
communications occur, they should be placed immediately on the 
record.
    3. Separation of Functions. In agencies that have combined 
functions of investigation, prosecution, and adjudication, 
procedural regulations should require internal separation of 
decisional and adversarial personnel. The regulations should 
prohibit staff who took an active part in investigating, 
prosecuting, or advocating in a case from serving as a decisionmaker 
or staff advising or assisting the decisionmaker in that same case. 
Adversary personnel should also be prohibited from furnishing ex 
parte advice or factual materials to a decisionmaker or staff who 
advise or assist decisionmakers.
    4. Staff Who Advise or Assist Decisionmakers. Procedural 
regulations should explain whether the agency permits ex parte 
advice or assistance to decisionmakers by staff. The staff may not 
have taken an active part in investigating, prosecuting, mediating, 
or advocating in the same case (see paragraph 3). The advice should 
not violate the exclusive record principle (see paragraph 1) by 
introducing new factual materials. The term ``factual materials'' 
does not include expert, technical, or other advice on the meaning 
or significance of ``factual materials.''
    5. Bias. Procedural regulations should prohibit decisionmaker 
bias in adjudicatory proceedings by stating that an adjudicator can 
be disqualified if any of the following types of bias is shown:
    a. Improper financial or other personal interest in the 
decision;
    b. Personal animus against a party or group to which that party 
belongs; or
    c. Prejudgment of the adjudicative facts at issue in the 
proceeding.
    Procedural regulations and manuals should explain when and how 
parties should raise claims of bias, and how agencies resolve them.

Pre-Hearing Practices

    6. Notice of Hearing. Procedural regulations should require 
notice to parties by appropriate means and sufficiently far in 
advance so that they may prepare for hearings. The notice should 
contain a statement of issues of fact and law to be decided. In 
addition, the notice should be in plain language and, when 
appropriate, contain the following basic information about the 
agency's adjudicatory process:
    a. Procedures for requesting a hearing;
    b. Discovery options, if any (see paragraph 10);
    c. Information about representation, including self-
representation and non-lawyer or limited representation, if 
permitted (see paragraphs 13-16), and any legal assistance options;
    d. Available procedural alternatives (e.g., in-person, video, or 
telephonic hearings (see paragraph 20); written and oral hearings 
(see paragraph 21); and alternative dispute resolution (ADR) 
opportunities (see paragraph 12));
    e. Deadlines for filing pleadings and documents;
    f. Procedures for subpoenaing documents and witnesses, if 
allowed (see paragraph 11);
    g. Opportunity for review of the initial decision at a higher 
agency level (see paragraph 26);
    h. Availability of judicial review; and
    i. Web site address for and/or citation to the procedural 
regulations and any practice manuals.
    7. Confidentiality. Procedural regulations should provide a 
process by which the parties may seek to keep certain information 
confidential or made subject to a protective order in order to 
protect privacy, confidential business information, or national 
security.
    8. Pre-Hearing Conferences. Procedural regulations should allow 
the decisionmaker discretion to require parties to participate in a 
pretrial conference if the decisionmaker believes the conference 
would simplify the hearing or promote settlement. The decisionmaker 
should require that (a) parties exchange witness lists and expert 
reports before the pretrial conference and (b) both sides be 
represented at the pretrial conference by persons with authority to 
agree to a settlement.
    9. Inspection of Materials. Procedural regulations should permit 
parties to inspect unprivileged materials in agency files that are 
not otherwise protected.
    10. Discovery. Agencies should empower their decisionmakers to 
order discovery through depositions, interrogatories, and other 
methods of discovery used in civil trials, upon a showing of need 
and cost justification.
    11. Subpoena Power. Agencies with subpoena power should explain 
their subpoena practice in detail. Agencies that do not have 
subpoena power should seek congressional approval for subpoena 
power, when appropriate.
    12. Alternative Dispute Resolution. Agencies should encourage 
and facilitate ADR, and ensure confidentiality of communications 
occurring during the ADR process.

[[Page 94316]]

Hearing Practices

    13. Lawyer Representation. Agencies should permit lawyer 
representation.
    14. Non-Lawyer Representation. Agencies should permit non-lawyer 
representation. Agencies should have the discretion to (a) establish 
criteria for appearances before the agency by non-lawyer 
representatives or (b) require approval on a case-by-case basis.\9\
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    \9\ Agencies should refer to Recommendation 86-1, Nonlawyer 
Assistance and Representation, 51 FR 25,641 (June 16, 1986), 
available at https://www.acus.gov/recommendation/nonlawyer-assistance-and-representation, when establishing or improving their 
procedures related to non-lawyer representation.
---------------------------------------------------------------------------

    15. Limited Representation. Agencies should permit limited 
representation by lawyers or non-lawyers, when appropriate (i.e., 
representation of a party with respect to some issues or during some 
phases of the adjudication).
    16. Self-Representation. Agencies should make hearings as 
accessible as possible to self-represented parties by providing 
plain language resources, legal information, and other assistance, 
as allowed by statute and regulations.\10\
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    \10\ Agencies should refer to Recommendation 2016-6, Self-
Represented Parties in Administrative Hearings, __FR __(Dec. __, 
2016), available at https://www.acus.gov/recommendation/self-represented-parties-administrative-proceedings-final-recommendation, 
when establishing or improving their procedures related to self-
represented parties.
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    17. Sanctions. Agencies with the requisite statutory power 
should authorize decisionmakers to sanction attorneys and parties 
for misconduct. Sanctions can include admonitions, monetary fines, 
and preclusion from appearing before the agency. Agencies should 
have a mechanism for administrative review of any sanctions.
    18. Open Hearings. Agencies should adopt the presumption that 
their hearings are open to the public, while retaining the ability 
to close the hearings in particular cases, including when the public 
interest in open proceedings is outweighed by the need to protect:
    a. National security;
    b. Law enforcement;
    c. Confidentiality of business documents; and
    d. Privacy of the parties to the hearing.
    19. Adjudicators. Agencies that decide a significant number of 
cases should use adjudicators--rather than agency heads, boards, or 
panels--to conduct hearings and provide initial decisions, subject 
to higher-level review (see paragraph 26).
    20. Video Teleconferencing and Telephone Hearings. Agencies 
should consult the Administrative Conference's recommendations \11\ 
in determining whether and when to conduct hearings or parts of 
hearings by video conferencing or telephone.
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    \11\ Agencies should refer to Recommendation 2011-4, Agency Use 
of Video Hearings: Best Practices and Possibilities for Expansion, 
76 FR 48,795 (Aug. 9, 2011), available at https://www.acus.gov/recommendation/agency-use-video-hearings-best-practices-and-possibilities-expansion; Recommendation 2014-7, Best Practices for 
Using Video Teleconferencing for Hearings, 79 FR 75,119 (Dec. 17, 
2014), available at https://www.acus.gov/recommendation/best-practices-using-video-teleconferencing-hearings; and the 
Conference's Handbook on Best Practices for Using Video 
Teleconferencing in Adjudicatory Hearings, available at https://www.acus.gov/report/handbook-best-practices-using-video-teleconferencing-adjudicatory-hearings , when establishing or 
improving their video teleconferencing hearings.
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    21. Written-Only Hearings. Procedural regulations should allow 
agencies to make use of written-only hearings in appropriate cases. 
Particularly good candidates for written-only hearings include those 
that solely involve disputes concerning:
    a. Interpretation of statutes or regulations; or
    b. Legislative facts as to which experts offer conflicting 
views.
    Agencies should also consider the adoption of procedures for 
summary judgment in cases in which there are no disputed issues of 
material fact.
    22. Oral Argument. Agencies generally should permit oral 
argument in connection with a written-only hearing if a party 
requests it, while retaining the discretion to dispense with oral 
argument if it appears to be of little value in a given case or 
parts of a case.
    23. Evidentiary Rules. Procedural regulations should prescribe 
the evidentiary rules the decisionmaker will apply in order to avoid 
confusion and time-consuming evidentiary disputes.\12\
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    \12\ Agencies should refer to Recommendation 86-2, Use of 
Federal Rules of Evidence in Federal Agency Adjudications, 51 FR 
25,642 (June 16, 1986), available at https://www.acus.gov/recommendation/use-federal-rules-vidence-federal-agency-adjudications, when considering whether or how to use the Federal 
Rules of Evidence.
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    24. Opportunity for Rebuttal. Agencies should allow an 
opportunity for rebuttal, which can take the form of cross-
examination of an adverse witness as well as additional written or 
oral evidence. Agencies should have the discretion to limit or 
preclude cross-examination or have it be conducted in camera in 
appropriate cases, such as when:
    a. The dispute concerns a question of legislative fact where the 
evidence consists of expert testimony;
    b. Credibility is not at issue;
    c. The only issue is how a decisionmaker should exercise 
discretion;
    d. National security could be jeopardized; or
    e. The identity of confidential informants might be revealed.

Post-Hearing Practices

    25. Decisions. Procedural regulations should require the 
decisionmaker to provide a written or transcribable decision and 
specify the contents of the decision. The decision should include:
    a. Findings of fact, including an explanation of how the 
decisionmaker made credibility determinations; and
    b. Conclusions of law, including an explanation of the 
decisionmaker's interpretation of statutes and regulations.
    26. Higher-Level Review. Apart from any opportunity for 
reconsideration by the initial decisionmaker, procedural regulations 
should provide for a higher-level review of initial adjudicatory 
decisions. Agencies should give parties an opportunity to file 
exceptions and make arguments to the reviewing authority. The 
reviewing authority should be entitled to summarily affirm the 
initial decision without being required to write a new decision.
    27. Precedential Decisions. Procedural regulations should allow 
and encourage agencies to designate decisions as precedential in 
order to improve decisional consistency. These decisions should be 
published on the agency's Web site to meet the requirements of 5 
U.S.C. 552.

Management of Procedures

    28. Complete Statement of Important Procedures. Agencies should 
set forth all important procedures and practices that affect persons 
outside the agency in procedural regulations that are published in 
the Federal Register and the Code of Federal Regulations and posted 
on the agency Web site.
    29. Manuals and Guides. Agencies should provide practice manuals 
and guides for decisionmakers, staff, parties, and representatives 
in which they spell out the details of the proceeding and illustrate 
the principles that are set forth in regulations. These manuals and 
guides should be written in simple, non-technical language and 
contain examples, model forms, and checklists, and they should be 
posted on the agency Web site.
    30. Review of Procedures. Agencies should periodically re-
examine and update their procedural regulations, practice manuals, 
and guides.
    31. Feedback. Agencies should seek feedback from decisionmakers, 
staff, parties, representatives, and other participants in order to 
evaluate and improve their adjudicatory programs.

Administrative Conference Recommendation 2016-5

The Use of Ombuds in Federal Agencies

Adopted December 14, 2016

    This recommendation updates and expands on the Administrative 
Conference's earlier Recommendation 90-2, The Ombudsman in Federal 
Agencies, adopted on June 7, 1990. That document concentrated on 
``external ombudsmen,'' those who primarily receive and address 
inquiries and complaints from the public, and was formulated before 
``use of ombuds'' was added to the definition of ``means of 
alternative dispute resolution'' in the Administrative Dispute 
Resolution Act (ADRA) \1\ in 1996. In 90-2, the Conference urged 
``the President and Congress to support federal agency initiatives 
to create and fund an effective ombudsman in those agencies with 
significant interaction with the public,'' believing that those 
agencies would benefit from establishing either agency-wide or 
program-specific ombudsman offices.
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    \1\ 5 U.S.C. 571-84 (2012); see id. Sec.  571(3) (2012).
---------------------------------------------------------------------------

    The present recommendation is based on a study of the far 
broader array of federal ombuds \2\ that have been established since

[[Page 94317]]

the Conference's earlier recommendation on this subject. Federal 
ombuds now include multiple variations of both primarily externally-
focused and primarily internally-focused ombuds (i.e., those who 
receive inquiries and complaints from persons within the agency). 
These individuals and offices can and do make a distinct and 
beneficial contribution to government effectiveness. While all forms 
of alternative dispute resolution expressly embraced by the ADRA 
have the capacity to reduce litigation costs and foster better 
relationships, the ombuds alone affords the constituent and the 
agency the opportunity to learn about and address issues before, in 
effect, they have been joined. Constituents and the agency are 
served by the ombuds' skilled, impartial assistance in resolution, 
and the agency is served by the opportunity for critical early 
warning of specific and systemic issues.
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    \2\ The term ombudsman is Scandinavian and means representative 
or proxy. Variations on the term exist in the field (ombudsmen, 
ombudsperson, ombuds, etc.). In this recommendation, the term 
``ombuds'' will be used as the predominant term to be as inclusive 
as possible. For historical background on the use of ombuds in other 
countries and their potential value in the United States, see Walter 
Gellhorn, Ombudsmen and Others: Citizen Protectors in Nine Countries 
(1966); Walter Gellhorn, When Americans Complain: Governmental 
Grievance Procedures (1966).
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    The research conducted to support this recommendation, including 
quantitative and qualitative surveys, interviews, case studies and 
profiles, revealed that federal ombuds can add value to their 
agencies in a variety of ways.\3\ Ombuds (1) identify significant 
new issues and patterns of concerns that are not well known or being 
ignored; (2) support significant procedural changes; (3) contribute 
to significant cost savings by dealing with identified issues, often 
at the earliest or pre-complaint stages, thereby reducing litigation 
and settling serious disputes; (4) prevent problems through training 
and briefings; (5) serve as an important liaison between colleagues, 
units, or agencies; and (6) provide a fair process for constituents.
---------------------------------------------------------------------------

    \3\ Carole Houk et al., A Reappraisal -- The Nature and Value of 
Ombudsmen in Federal Agencies, available at www.acus.gov/research-projects/ombudsman-federal-agencies-0.
---------------------------------------------------------------------------

    Externally-facing ombuds were more likely to report supporting 
the agency with specific mission-related initiatives; helping the 
agency to improve specific policies, procedures, or structures; 
making administrative decisions to resolve specific issues; helping 
within the agency to keep its organizational processes coordinated; 
and advocating on behalf of individuals. Internally-facing ombuds 
were more likely to report helping constituents by providing a safe 
way to discuss perceptions of unsafe or illegal behavior; promoting 
the use of fair and helpful options; helping to prevent problems by 
coaching one-on-one; and providing group training and briefings to 
constituents. Whistleblower ombuds and procurement ombuds--consonant 
with their particular focus on more narrowly defined 
responsibilities--described their accomplishments as providing 
specific information and education, and guidance about very specific 
matters of concern to their constituents.
    Since the Conference last considered ombuds in the federal 
government, the milieu in which government operates has, by all 
accounts, become more polarized, with government itself often the 
target of suspicion and hostility. In a challenging environment in 
which many federal agencies struggle to maintain the trust of the 
public they serve and even of their own employees, the ombuds is 
uniquely situated to provide both pertinent information and 
assistance in resolving issues to constituents and the agency alike. 
The ability of the ombuds to provide a place perceived as safe--
which can offer a ready, responsive, and respectful hearing and 
credible options--in itself builds trust. And trust is a commodity 
without which government in a democratic society cannot function 
effectively.
    Accordingly, the Conference continues to urge Congress and the 
President to create, fund, and otherwise support ombuds offices 
across the government consistent with the recommendation articulated 
below. Further, the Conference urges those agencies that already 
have ombuds, and those that are contemplating creating ombuds 
offices, to align their office standards and practices with those 
included in this recommendation. In general, the Conference 
recommends these practices to the extent applicable in particular 
situations, regardless of whether an ombuds office or program is 
created by Congress or by an agency.
    Although functionally the federal ombuds landscape is quite 
diverse, most federal ombuds share three core standards of 
practice--independence, confidentiality, and impartiality--and share 
common characteristics. The core standards are set forth in the 
standards adopted by the American Bar Association (ABA),\4\ the 
International Ombudsman Association (IOA),\5\ and the United States 
Ombudsman Association (USOA),\6\ though with some variations, 
particularly with respect to confidentiality. These organizations' 
standards are generally followed, as applicable, and considered 
essential by the ombuds profession, both within and outside 
government. The further an ombuds office and the agency in which it 
resides deviate from the three core standards in practice, the more 
difficult it will be to defend whatever confidentiality the office 
does offer should it be subjected to legal challenge.
---------------------------------------------------------------------------

    \4\ ABA Standards for the Establishment and Operation of Ombuds 
Offices (2004) (hereinafter ``ABA Standards''), available at https://www.americanbar.org/content/dam/aba/migrated/leadership/2004/dj/115. authcheckdam.pdf.
    \5\ IOA Standards of Practice (2009), available at https://www.ombudsassociation.org/IOA_Main/media/SiteFiles/IOA_Standards_of_Practice_Oct09.pdf.
    \6\ USOA Governmental Ombudsman Standards (2003), available at 
https://www.usombudsman.org/site-usoa/wp-content/uploads/USOA-STANDARDS1.pdf.
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    Most federal ombuds also share the following common 
characteristics: (1) Ombuds do not make decisions binding on the 
agency or provide formal rights-based processes for redress; (2) 
they have a commitment to fairness; and (3) they provide credible 
processes for receiving, reviewing, and assisting in the resolution 
of issues. The three core standards and these common 
characteristics, taken together, are central to the ombuds 
profession.
    Agencies have the authority to establish ombuds offices or 
programs. Although legislation establishing a generally applicable 
template and standards for federal ombuds has not been enacted, the 
1996 addition of the words ``use of ombuds'' to the definition of 
``means of alternative dispute resolution'' in ADRA clarifies that, 
when the ombuds office is assisting in the resolution of issues that 
are raised to it under its mandate, it is covered by the Act's 
provisions.\7\ The Act's coverage attaches to communications that 
take place when the constituent first approaches the ombuds office 
with an issue and continues to cover communications that occur until 
the case is, in effect, closed.\8\ While ADRA's definition of 
``alternative means of dispute resolution'' includes use of ombuds, 
federal agency ombuds programs would benefit from certain targeted 
amendments to ADRA to clarify certain definitions (e.g., ``issue in 
controversy,'' ``neutral,'' ``party'') and other provisions as they 
apply to the work of ombuds, to expressly align them with current 
practice.
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    \7\ Further, ombuds are ``neutrals'' within the meaning of the 
Act including those ombuds who, after impartial review, advocate for 
specific processes or outcomes. See ABA Standards, supra note 4, at 
14.
    \8\ The Act's coverage is generally understood to begin at 
intake in alternative dispute resolution offices and continue until 
closure even when the constituent's interaction with the office ends 
without a session process involving both parties. For example, 
guidance concerning ADRA confidentiality issued by the Federal 
Alternative Dispute Resolution Council in 2000 concluded that ADRA 
confidentiality applies to the intake and convening stages of ADR. 
See Confidentiality in Federal Alternative Dispute Resolution 
Programs, 65 FR 83,085, 83,090 (Dep't of Justice Dec. 29, 2000). 
Further, the Interagency ADR Working Group Steering Committee in its 
Guide states that ADR program administrators are ``neutrals when 
they are helping the parties resolve their controversy by, for 
example, discussing ADR options with the parties, coaching, and 
preparing them to negotiate . . . .'' See Interagency ADR Working 
Group Steering Comm., Protecting the Confidentiality of Dispute 
Resolution Proceedings 8 (2006). While ADRA covers dispute 
resolution communications occurring through the duration of the 
case, the neutral's obligation to maintain this confidentiality does 
not end with the closure of the case.
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    The research for this recommendation also identified three areas 
of potential conflict between (a) the requirements of ADRA Sec.  574 
and the scope of confidentiality that ombuds offer to constituents 
and (b) other legal requirements that may be applicable in certain 
situations. Federal ombuds should be aware of these matters and how 
they may affect particular ombuds programs:
    (a) The relationships among their statutory duties to report 
information, the requirements of ADRA Sec.  574(a)(3) on 
confidentiality, their agency's mission, and the professional 
standards to which they adhere. Any latitude they may have under 
ADRA Sec.  574(d)(1) should be considered in reaching an 
understanding within the agency and with constituents of the breadth 
and limits of confidentiality consistent with statutory 
requirements.

[[Page 94318]]

    (b) The requirements and interrelationship of the Federal 
Records Act,\9\ the Freedom of Information Act,\10\ and the Privacy 
Act,\11\ with regard to agency records and other documentation.
---------------------------------------------------------------------------

    \9\ 44 U.S.C. Chaps. 21, 22, 29, 31, and 33.
    \10\ 5 U.S.C. 552 (2012).
    \11\ Id. Sec.  552a.
---------------------------------------------------------------------------

    (c) The effect on confidentiality of the Federal Service Labor-
Management Relations Statute,\12\ pursuant to which the union may be 
entitled to notice and an opportunity to be present at meetings with 
bargaining unit employees (for those ombuds that have employees with 
a collective bargaining representative among their constituents, or 
who may have cause, in the course of resolving issues that have been 
brought to them, to engage with represented employees as well as 
management on issues affecting the terms and conditions of 
bargaining unit employees).
---------------------------------------------------------------------------

    \12\ Id. Sec. Sec.  7101-35; see id. Sec.  7114.
---------------------------------------------------------------------------

    In addition, this recommendation addresses standards applicable 
to federal agency ombuds offices and related issues involved in 
creating such offices. The practices included in this recommendation 
are intended to highlight some overarching beneficial practices 
observed among federal ombuds and to supplement the recommended 
practices and guidance available from various ombuds professional 
organizations.
    To foster continual improvement and accountability of individual 
ombuds offices, the recommendation advises that each ombuds office 
arrange for periodic evaluation of its management and program 
effectiveness. Evaluation of ombuds by colleagues within the office 
can be useful if the office is of sufficient size to make this 
feasible. Otherwise, any external evaluation should be conducted by 
individuals knowledgeable about the roles, functions, and standards 
of practice of federal ombuds. For example, peer evaluation using 
the expertise of similar types of ombuds in other offices or 
agencies, or by outside ombuds professionals, may be suitable.
    Finally, the recommendation urges the designation of an entity 
to serve as a government-wide resource to address certain issues of 
common concern among agency ombuds that transcend organizational 
boundaries.

Recommendation

    1. Establishment and Standards.
    a. Agencies should consider creating additional ombuds offices 
to provide places perceived as safe for designated constituents to 
raise issues confidentially and receive assistance in resolving them 
without fear of retribution. They should ensure that the office is 
able to, and does, adhere to the three core standards of 
independence, confidentiality, and impartiality, as these standards 
are described in generally recognized sets of professional 
standards, which include those adopted by the American Bar 
Association, the International Ombudsman Association, and the United 
States Ombudsman Association, and they should follow, to the extent 
applicable, the procedural recommendations below. Existing offices 
with the ombuds title that do not adhere to these standards should 
consider modifying their title, where permitted, to avoid any 
confusion.
    b. Ombuds offices created by executive action should be 
established or governed by a charter or other agency-wide directive 
specifying the office's mandate, standards, and operational 
requirements, so that others in the agency and the public are aware 
of the office's responsibilities.
    2. Legislative Considerations.
    a. Congress should consider creating additional ombuds offices. 
When Congress creates a new ombuds program, it should observe the 
procedural principles contained in this recommendation, to the 
extent applicable.
    b. Any action by Congress creating or affecting the operations 
of agency ombuds offices, whether through amendment of the 
Administrative Dispute Resolution Act (ADRA), 5 U.S.C. 571-84, or 
other legislative action, should reinforce the core standards of 
independence, confidentiality, and impartiality. Any such actions 
should maintain clarity and uniformity of definitions and purpose 
for federal agency ombuds, while allowing for differences in 
constituencies (whether primarily internal or external), type of 
office (advocate, analytic, organizational, etc.), and agency 
missions.
    3. Leadership Support.
    a. Agency leadership should provide visible support, renewed as 
leadership changes, for the role of ombuds offices in the agency and 
their standards, including independence, confidentiality, and 
impartiality.
    b. Agency leadership should consider carefully any specific 
recommendations for improved agency performance that are provided by 
agency ombuds.
    4. Independence.
    a. To promote the effectiveness and independence of ombuds 
offices, agencies should consider structuring ombuds offices so that 
they are perceived to have the necessary independence and are 
separate from other units of the agency. To ensure adequate support 
from agency leadership, ombuds offices should report to an agency 
official at the highest level of senior leadership. Ombuds offices 
should not have duties within the agency that might create a 
conflict with their responsibilities as a neutral, and their budgets 
should be publicly disclosed.
    b. The agency should ensure that the ombuds has direct access to 
the agency head and to other senior agency officials, as 
appropriate. Whether by statute, regulation, or charter, ombuds 
should expressly be given access to agency information and records 
pertinent to the ombuds' responsibilities as permitted by law.
    c. Ombuds and the agencies in which they are located should 
clearly articulate in all communications about the ombuds that the 
ombuds office is independent and specifically not a conduit for 
notice to the agency.
    d. Federal ombuds should not be subject to retaliation, up to 
and including removal from the ombuds office, based on their looking 
into and assisting with the resolution of any issues within the 
ombuds' area of jurisdiction.
    5. Confidentiality.
    a. Consistent with the generally accepted interpretation of ADRA 
Sec.  574, as applied to alternative dispute resolution offices, 
agencies should understand and support that the Act's requirements 
for confidentiality attach to communications that occur at intake 
and continue until the issue has been resolved or is otherwise no 
longer being handled by the ombuds, whether or not the constituent 
ever engages in mediation facilitated by the ombuds office. 
Restrictions on disclosure of such communications, however, should 
not cease with issue resolution or other indicia of closure within 
the ombuds office.
    b. Agencies (or other authorizers) should articulate the scope 
and limits of the confidentiality offered by ombuds offices in their 
enabling documents (whether statute, regulation, charter or other 
memoranda), as well as on the agency Web site, in brochures, and in 
any other descriptions or public communications about the office 
utilized by the office or the agency.
    c. Agency leadership and management should not ask for 
information falling within the scope of confidentiality offered by 
the ombuds office.
    d. If information is requested from an ombuds during discovery 
in litigation, or in the context of an internal administrative 
proceeding in connection with a grievance or complaint, then the 
ombuds should seek to protect confidentiality to the fullest extent 
possible under the provisions of ADRA Sec.  574, unless otherwise 
provided by law. Agencies should vigorously defend the 
confidentiality offered by ombuds offices.
    6. Impartiality. Ombuds should conduct inquiries and 
investigations in an impartial manner, free from conflicts of 
interest. After impartial review, ombuds may appropriately advocate 
with regard to process. An ombuds established with advocacy 
responsibilities may also advocate for specific outcomes.
    7. Legal Issues. Federal ombuds should consider potential 
conflicts in the following areas:
    a. The relationships among their statutory duties to report 
information, the requirements of ADRA Sec.  574(a)(3) on 
confidentiality, their agency's mission, and the professional 
standards to which they adhere.
    b. The requirements and interrelationship of the Federal Records 
Act, the Freedom of Information Act, and the Privacy Act, with 
regard to agency records and other documentation.
    c. The effect on confidentiality of the provision in the Federal 
Service Labor-Management Relations Statute, 5 U.S.C. 7114, where 
applicable, pursuant to which the union may be entitled to notice 
and an opportunity to be present at meetings with bargaining unit 
employees.
    8. Staffing.
    a. Agencies should reinforce the credibility of federal ombuds 
by appointment of ombuds with sufficient professional stature, who 
also possess the requisite knowledge, skills, and abilities. This 
should include, at a minimum,

[[Page 94319]]

knowledge of informal dispute resolution practices as well as, 
depending on the office mandate, familiarity with process design, 
training, data analysis, and facilitation and group work with 
diverse populations. Agency ombuds offices should also seek to 
achieve the necessary diversity of ombuds skills and backgrounds on 
their staffs to credibly handle all matters presented to the office.
    b. While the spectrum of federal ombuds is too diverse to 
recommend a single federal position classification, job grade, and 
set of qualifications, agencies and the Office of Personnel 
Management should consider working collaboratively, in consultation 
with the relevant ombuds professional associations, to craft and 
propose appropriate job descriptions, classifications, and 
qualifications, as set forth in the preceding subsection, covering 
the major categories of federal ombuds.
    9. Training and Skills.
    a. To promote accountability and professionalism, agencies 
should provide training to ombuds with regard to standards and 
practice, whether offered by one of the ombuds professional 
organizations or working groups, or from within the government.
    b. Ombuds should identify steps to build general competency and 
confidence within the office and to provide specific support to 
ombuds when cases become highly emotional or complex. More 
generally, as a regular practice to support and improve their 
skills, federal ombuds should participate in relevant professional 
working groups or ombuds association training programs.
    c. Ombuds offices should consider the use of developmental 
assignments via details to other agencies or offices, as 
appropriate, supplemented by mentoring, which can be helpful as part 
of their training program.
    10. Access to Counsel. To protect the independence and 
confidentiality of federal ombuds, agencies should ensure, 
consistent with available resources, that ombuds have access to 
legal counsel for matters within the purview of the ombuds, whether 
provided within the agency with appropriate safeguards for 
confidentiality, by direct hiring of attorneys by the ombuds office, 
or under an arrangement enabling the sharing across agencies of 
counsel for this purpose. Such counsel should be free of conflicts 
of interest.
    11. Physical Facilities. To reinforce confidentiality and the 
perception of independence, to the fullest extent possible and 
consistent with agency resources, the agency should ensure that the 
physical ombuds office and telephonic and online communications 
systems and documentation enable discreet meetings and 
conversations.
    12. Evaluation. Each ombuds office should, as a regular 
professional practice, ensure the periodic evaluation of both office 
management and program effectiveness for the purposes of continual 
improvement and accountability.
    13. Providing Information.
    a. Ombuds offices should provide information about relevant 
options to visitors to the ombuds office, including formal processes 
for resolving issues, and their requirements, so that visitors do 
not unintentionally waive these options by virtue of seeking 
assistance in the ombuds office. Correspondingly, ombuds offices 
should not engage in behavior that could mislead employees or other 
visitors about the respective roles of the ombuds and those entities 
that provide formal complaint processes.
    b. Agencies should disclose publicly on their Web sites the 
identity, contact information, statutory or other basis, and scope 
of responsibility for their ombuds offices, to the extent permitted 
by law.
    c. Agency ombuds offices should explore ways to document for 
agency senior leadership, without breaching confidentiality, the 
value of the use of ombuds, including identification of systemic 
problems within the agency and, where available, relevant data on 
cost savings and avoidance of litigation.
    14. Records Management. Federal ombuds offices should work with 
agency records officials to ensure appropriate confidentiality 
protections for the records created in the course of the office's 
work and to ensure that ombuds records are included in appropriate 
records schedules.
    15. Agency-wide Considerations.
    a. Ombuds offices should undertake outreach and education to 
build effective relationships with those affected by their work. 
Outreach efforts should foster awareness of the services that ombuds 
offer, to promote understanding of ombuds (and agency) processes and 
to ensure that constituents understand the role of the ombuds and 
applicable standards.
    b. To ensure that there is a mutual understanding of respective 
roles and responsibilities within the agency, ombuds offices should 
work proactively with other offices and stakeholders within their 
agencies to establish protocols for referrals and overlap, to build 
cooperative relationships and partnerships that will enable 
resolutions, and to develop internal champions. Such initiatives 
also help the ombuds to identify issues new to the agency, as well 
as patterns and systemic issues, and to understand how the ombuds 
can use the resources available to add the most value. Outreach 
should be ongoing to keep up with the turnover of agency officials 
and constituents and should utilize as many communications media as 
appropriate and feasible.
    16. Interagency Coordination. An entity should be designated to 
serve as a central resource for agency ombuds to address matters of 
common concern.

Administrative Conference Recommendation 2016-6

Self-Represented Parties in Administrative Proceedings

Adopted December 14, 2016

    Federal agencies conduct millions of proceedings each year, 
making decisions that affect such important matters as disability or 
veterans' benefits, immigration status, and home or property loans. 
In many of these adjudications, claimants appear unrepresented for 
part or all of the proceeding and must learn to navigate hearing 
procedures, which can be quite complex, without expert assistance. 
The presence of self-represented parties \1\ in administrative 
proceedings can create challenges for both administrative agencies 
and for the parties seeking agency assistance. Further, the presence 
of self-represented parties raises a number of concerns relating to 
the consistency of outcomes and the efficiency of processing cases.
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    \1\ The term ``self-represented'' is used to denote parties who 
do not have professional representation, provided by either a lawyer 
or an experienced nonlawyer. Representation by a non-expert family 
member or friend is included in this recommendation's use of the 
term ``self-represented.'' Administrative agencies generally use the 
term ``self-represented,'' in contrast to courts' use of the term 
pro se. Because this recommendation focuses on agency adjudication, 
it uses the term ``self-represented,'' while acknowledging that the 
two terms are effectively synonymous.
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    Because of these concerns, in the spring of 2015 the Department 
of Justice's Access to Justice Initiative asked the Administrative 
Conference to co-lead a working group on self-represented parties in 
administrative proceedings, and the Conference agreed. The working 
group, which operates under the umbrella of the Legal Aid 
Interagency Roundtable (LAIR), has been meeting since that time.\2\ 
During working group meetings, representatives from a number of 
agencies, including the Social Security Administration (SSA), 
Executive Office for Immigration Review (EOIR), Board of Veterans' 
Appeals (BVA), Internal Revenue Service (IRS), Department of Health 
and Human Services (HHS), Department of Agriculture (USDA), and 
Department of Housing and Urban Development (HUD) participated and 
shared information about their practices and procedures relating to 
self-represented parties. In working group meetings, agency 
representatives agreed that proceedings involving self-represented 
parties are challenging, and expressed interest both in learning 
more about how other agencies and courts handle self-represented 
parties and in improving their own practices. This recommendation, 
and its accompanying report,\3\ arose in response to those 
concerns.\4\
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    \2\ LAIR was established in 2012 by the White House Domestic 
Policy Council and the Department of Justice. See White House Legal 
Aid Interagency Roundtable, U.S. Dep't of Just., https://www.justice.gov/lair (last visited Aug. 16, 2016). It was formalized 
by presidential memorandum in the fall of 2015. See Memorandum from 
the President to the Heads of Exec. Dep'ts and Agencies (Sept. 14, 
2015), https://www.whitehouse.gov/the-press-office/2015/09/24/presidential-memorandum-establishment-white-house-legal-aid-interagency.
    \3\ Connie Vogelmann, Self-Represented Parties in Administrative 
Hearings (Sept. 7, 2016), https://www.acus.gov/sites/default/files/documents/Self-Represented-Parties-Administrative-Hearings-Draft-Report.pdf.
    \4\ This recommendation primarily targets the subset of 
administrative agencies that conduct their own administrative 
hearings. Components of a number of federal agencies--including HUD, 
HHS, and USDA--do not conduct hearings directly, and instead 
delegate adjudication responsibilities to state or local entities. 
Because the challenges facing these components are quite distinct, 
they are not addressed in this recommendation.

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[[Page 94320]]

    While civil courts have long recognized and worked to address 
the challenges introduced by the presence of self-represented 
parties, agencies have increasingly begun to focus on issues 
relating to self-representation only in recent years. Agencies are 
undertaking numerous efforts to accommodate self-represented parties 
in their adjudication processes.\5\ Yet quantitative information on 
self-representation in the administrative context is comparatively 
scarce, and there is much insight to be gained from the civil courts 
in identifying problems and solutions pertaining to self-
representation. Although there are important differences between 
procedures in administrative proceedings and those in civil courts, 
available information indicates that the two contexts share many of 
the same problems--and solutions--when dealing with self-represented 
parties.
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    \5\ Id. at 28-50.
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    Challenges related to self-represented parties in administrative 
proceedings can be broken down into two main categories: Those 
pertaining to the efficiency of the administrative proceeding and 
those relating to the outcome of the procedure.
    From an efficiency standpoint, self-represented parties' lack of 
familiarity with agency procedures and administrative processes can 
cause delay both in individual cases and on a systemic level. Delays 
in individual cases may arise when self-represented parties fail to 
appear for scheduled hearings, file paperwork incorrectly or 
incompletely, do not provide all relevant evidence, or make 
incoherent or legally irrelevant arguments before an adjudicator. In 
the aggregate, self-represented parties also may require significant 
assistance from agency staff in filing their claims and appeals, 
which can be challenging given agencies' significant resource 
constraints. Finally, self-represented parties may create challenges 
for adjudicators, who may struggle to provide appropriate assistance 
to them while maintaining impartiality and the appearance of 
impartiality. These problems are exacerbated by the fact that many 
agencies hear significant numbers of cases by self-represented 
parties each year.
    Self-represented parties also may face suboptimal outcomes in 
administrative proceedings compared to their represented 
counterparts, raising issues of fairness. Even administrative 
procedures that are designed to be handled without trained 
representation can be challenging for inexperienced parties to 
navigate, particularly in the face of disability or language or 
literacy barriers. Furthermore, missed deadlines or hearings may 
result in a self-represented party's case being dismissed, despite 
its merits. Self-represented parties often struggle to effectively 
present their cases and, despite adjudicators' best efforts, may 
receive worse results than parties with representation.
    Civil courts face many of these same efficiency and consistency 
concerns, and in response have implemented wide-ranging innovations 
to assist self-represented parties. These new approaches have 
included in-person self-service centers; workshops explaining the 
process or helping parties complete paperwork; and virtual services 
such as helplines accessible via phone, email, text, and chat. 
Courts have also invested in efforts to make processes more 
accessible to self-represented parties from the outset, through the 
development of web resources, e-filing and document assembly 
programs, and plain language and translation services for forms and 
other documents. Finally, courts have also used judicial resources 
and training to support judges and court personnel in their efforts 
to effectively and impartially support self-represented parties.
    These innovations have received extremely positive feedback from 
parties, and early reports indicate that they improve court 
efficiency and can yield significant cost savings for the 
judiciary.\6\ Administrative agencies have also implemented, or are 
in the process of implementing, many similar innovations.\7\ For 
instance, some agencies make use of pre-hearing conferences to 
reduce both the necessity and the complexity of subsequent 
hearings.\8\
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    \6\ Richard Zorza, Trends in Self-Represented Litigation 
Innovation, in Future Trends in State Courts 85 (Carol R. Flango et 
al. eds., 2006). See generally John Greacen, The Benefits and Costs 
of Programs to Assist Self-Represented Litigants (2009).
    \7\ Vogelmann, supra note 3, at 28-50.
    \8\ Id. at 32-33.
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    This recommendation builds on the successes of both civil courts 
and administrative agencies in dealing with self-represented parties 
and makes suggestions for further improvement. In making this 
recommendation, the Conference makes no normative judgment on the 
presence of self-represented parties in administrative proceedings. 
This recommendation assumes that there will be circumstances in 
which parties will choose to represent themselves, and seeks to 
improve the resources available to those parties and the fairness 
and efficiency of the overall administrative process.
    The recommendation is not intended to be one-size-fits-all, and 
not every recommendation will be appropriate for every 
administrative agency. To the extent that this recommendation 
requires additional expenditure of resources by agencies, 
innovations are likely to pay dividends in increased efficiency and 
consistency of outcome in the long term.\9\ The goals of this 
recommendation are to improve both the ease with which cases 
involving self-represented parties are processed and the consistency 
of the outcomes reached in those cases.
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    \9\ See generally Greacen, supra note 6.
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Recommendation

Agency Resources

    1. Agencies should consider investigating and implementing 
triage and diagnostic tools to direct self-represented parties to 
appropriate resources based on both the complexity of their case and 
their individual level of need. These tools can be used by self-
represented parties themselves for self-diagnosis or can be used by 
agency staff to improve the consistency and accuracy of information 
provided.
    2. Agencies should strive to develop a continuum of services for 
self-represented parties, from self-help to one-on-one guidance, 
that will allow parties to obtain assistance by different methods 
depending on need. In particular, and depending on the availability 
of resources, agencies should:
    a. Use Web sites to make relevant information available to the 
public, including self-represented parties and entities that assist 
them, to access and expand e-filing opportunities;
    b. Continue efforts to make forms and other important materials 
accessible to self-represented parties by providing them at the 
earliest possible stage in the proceeding in plain language, in both 
English and in other languages as needed, and by providing effective 
assistance for persons with special needs; and
    c. Provide a method for self-represented parties to communicate 
in ``real-time'' with agency staff or agency partners, as 
appropriate.
    3. Subject to the availability of resources and as permitted by 
agency statutes and regulations, agencies should provide training 
for adjudicators for dealing with self-represented parties, 
including providing guidance for how they should interact with self-
represented parties during administrative proceedings. Specifically, 
training should address interacting with self-represented parties in 
situations of limited literacy or English proficiency or mental or 
physical disability.

Data Collection and Agency Coordination

    4. Agencies should strive to collect the following information, 
subject to the availability of resources, and keeping in mind 
relevant statutes including the Paperwork Reduction Act, where 
applicable. Agencies should use the information collected to 
continually evaluate and revise their services for self-represented 
parties. In particular, agencies should:
    a. Seek to collect data on the number of self-represented 
parties in agency proceedings. In addition, agencies should collect 
data on their services for self-represented parties and request 
program feedback from agency personnel.
    b. Seek to collect data from self-represented parties about 
their experiences during the proceeding and on their use of self-
help resources.
    c. Strive to keep open lines of communication with other 
agencies and with civil courts, recognizing that in spite of 
differences in procedures, other adjudicators have important and 
transferable insights in working with self-represented parties.

Considerations for the Future

    5. In the long term, agencies should strive to re-evaluate 
procedures with an eye toward accommodating self-represented 
parties. Proceedings are often designed to accommodate attorneys and 
other trained professionals. Agencies should evaluate the 
feasibility of navigating their system for an outsider, and make 
changes--as allowed by their organic statutes and regulations--to 
simplify their processes accordingly. Although creation of 
simplified procedures

[[Page 94321]]

would benefit all parties, they would be expected to provide 
particular assistance to self-represented parties.

[FR Doc. 2016-31047 Filed 12-22-16; 8:45 am]
BILLING CODE 6110-01-P