ABA Launches Major Project on the APA

Administrative Law Practice Group Newsletter - Volume 3, Issue 3, Fall 1999

November 1, 1999

Alec D. Rogers

The American Bar Association's Section of Administrative Law and Regulatory Process has launched an ambitious initiative entitled "The Project on the Statement of Administrative Law." The Project's goal is to provide an "up-to-date, readable, authoritative statement" on administrative law and process.

This is necessary, according to a memo outlining the project, because new statutes, court rulings, and agency rules over the past five decades have altered the original framework established by the Administrative Procedures Act. These laws, regulations and rulings have all created new requirements for agencies and opportunities for knowledgeable lawyers to challenge administrative rule making. This has led to what the memo refers to as "Frustration with the difficulty of parsing the complex array of process commands."

The genesis of the project was a 1986 resolution adopted by the section that called for a restatement of the scope of review doctrine. This three-page resolution summarized the section's reading of case law involving when courts should overturn agency actions.

The Project is designed to state both current federal administrative law (not restricted to the APA) and begin discussion for necessary changes. The ABA acknowledges that agreement on what the law is may be the only thing that is possible, with some agreement on narrow areas of reform, although it hopes to achieve a broader consensus.

The project will produce numerous documents including outlines identifying current issues in administrative procedure, reports explaining the major issues, summaries of the current state of the law and blueprints for change containing recommendations for a redrafted APA. These documents will be presented for discussion and comments at various meetings and forums. Final drafts of the summaries and blueprints for change will be adopted upon approval of the section's Council.

The outlines, which are the first step in the process, are expected in the next few months and will be changed as the project moves forward. Preliminary reports from the Reporters are expected to begin circulating by the Section's 2000 Mid-Winter Meeting. Presentations of the summaries will commence in summer or fall of 2000. Specific reform proposals could be considered as early as the 2001 Annual Meeting.

The project will involve dozens of top academics and practitioners of administrative law. They will be divided into groups working on various subjects: adjudication; rulemaking; scope of judicial review; availability of judicial review; openness; and government management. The Chief Reporter for the project is Paul Verkuil, Dean of the Benjamin Cardozo School of Law. Cardozo law professors John Duffy and Michael Herz will assist him. Each of the working groups will have a set of Co-Reporters and several Associate Reporters. In addition to the Reporters will be an Advisory Board drawn from academia, government and the private bar.

As currently conceived, the project will go outside of the four corners of the APA and consider related areas of administrative activity. The Government Management group headed by William Funk of Lewis & Clark Law School and Cass Sunstein of the University of Chicago will consider such topics as government oversight and management of the agency decision making process, paperwork reduction act issues, and legislative oversight. This will touch on Executive Order 12866, which subjects executive branch rulemaking to cost benefit analysis and the other 17 executive orders and statutes faced by agencies when vetting rules imposed by the executive and Congress. Cost-benefit analyses and judicial review to enforce these requirements will receive substantial attention.

The section is hoping to obtain wide participation from practitioners, administrative law judges and scholars. Section officials acknowledge that much of the project's work will go beyond a mere restatement, which typically are more necessary in common law areas. And some have cautioned that appropriate timing is essential for such an undertaking. C. Boyden Gray, a member of the Federalist Society's Board of Visitors who is vice chairman of the ABA's Administrative Law Section, noted, for example, that the Supreme Court might be looking at some vital issues such as the delegation doctrine questions posed in the American Trucking case. It might, Gray suggested, be better to hold off on some final conclusions until where such unsettled questions are in the process of being resolved.

The working group on adjudication has already produced initial drafts on adjudicatory hearings, alternative dispute resolution, informal adjudication, separation of functions, and post hearing procedures. The authors are currently soliciting comments. These drafts, project updates and related documents can be found at the ABA's website: http://www.abanet.org/adminlaw/apa/index.html.

Alec D. Rogers is the Legislative Director and Counsel to U.S. Representative Nick Smith (R-Michigan). All views expressed herein are the author's exclusively.

Related Links

The Administrative Procedure Act Project