Introduction

The Department of Transportation ("DOT") and the Nuclear Regulatory Commission ("NRC") both have launched major initiatives to automate agency proceedings. The two agencies have taken somewhat different approaches and are at different stages in implementing their initiatives. The two agencies also have quite different legal mandates, DOT's spanning some ten operating agencies and four generic modes of transportation. The NRC has a more narrowly focused legal mission and is not as complex organizationally. Nevertheless, the basic tasks performed in the proceedings being automated and in the legal and policy issues are similar. Moreover, the experience of these two agencies in automating their regulatory dockets will serve as models for many other Federal and state agencies.

The basic processes being automated by DOT and NRC are similar, although there are variations in the details, depending on the particular statutes applicable to specific proceedings. Most reasonably formal 1 proceedings at DOT and NRC, as at most other agencies, can be characterized either as rulemaking or as adjudication. Rulemaking is a quasi-legislative activity, in which an agency prescribes standards for future conduct, applied in a subsequent adjudicatory proceeding before the agency or a court. Procedural due process guarantees under the United States Constitution are less demanding with respect to rulemaking than adjudication. 2 Under the Constitution and under the Administrative Procedure Act, 3 it is enough if an agency provides notice to the general public of a proposed rule, receives comments from the public in writing or at a hearing, and publishes the text of the rule and the legal authority for it, along with a factual and policy justification, in the Federal Register. Many statutes specific to particular types of regulatory programs impose additional hearing requirements, in which case the process is sometimes called "hybrid rulemaking." In thinking about automating the rulemaking process, the basic steps representing candidates for automation are:

Publication of the notice of proposed rulemaking

Receiving public comments

Maintaining an accurate index or docket of public comments

Making docketed comments available to others

Publishing the final rule

Making the record of the rulemaking available

Agency adjudication is the process of applying a pre-existing rule or other standard of conduct to conduct that already has occurred. 4 Procedural due process and the Administrative Procedure Act impose a high degree of formality on agency adjudication. 5 The basic elements of adjudication are those involved in any formal litigation process. They can be identified functionally, as the late Judge Henry J. Friendly did, 6 as including:

An unbiased tribunal

Notice of the proposed action and the grounds asserted for it

The opportunity to present reasons why the proposed action should not be taken

Counsel

Opportunity to present evidence

Opportunity to cross-examine opposing evidence

Decision limited to that justified by the hearing record

Written statement of reasons for decision

Opportunity for review of the hearing in another tribunal

Or, the elements can be identified chronologically working from the beginning to the end of an adjudication process:

Pleadings, including at least a complaint and an answer or motions to dismiss

Adjudication of threshold motion to dismiss

Discovery, including oral depositions, interrogatories, requests for production, and requests for admission including related subpoenas

Determination of any summary judgment motions

Pretrial conferences and orders

Trial

Motions for judgment as a matter of law

Findings of fact and conclusions of law or special verdicts

Judgment

Post-judgment review

In a typical agency adjudication, some or all of these functions are performed by hearing officers called administrative law judges or administrative judges. 7 These officials are guaranteed certain independence from the agency and make recommended, preliminary, or initial decisions that are subject to further review or at least ratification by agency personnel with policy authority. Such further agency decisionmaking after the interlocutory decision by the ALJ or similar hearing officer usually takes place on the record developed before that hearing officer rather than de novo.

The details of agency adjudicatory procedures almost always are fleshed out by agency procedural rules. 8

The author of this report earlier has written about automation of rulemaking and adjudicatory procedures at a conceptual level. 9 This report examines the practical legal, technological, and policy problems confronted by DOT and NRC in automating their own rulemaking and adjudicatory proceedings proceedings, and generalizes from the DOT and NRC experience.

It begins by introducing some of the basic technologies and explaining how new developments in open networking technology significantly expand the range of choices available to agencies like DOT and NRC. Then the report focuses specifically on the two agencies, explaining their initiatives. It considers the policy and legal questions confronting these and other agencies who automate their regulatory proceedings. It concludes with draft recommendations for consideration by the Administrative Conference.

Footnotes

1 The word formal in this sentence is not used to signify formal adjudicatory procedure under the APA. Rather, it encompasses all agency proceedings in which the law specifies the way in which information is to be presented to, considered by, and disclosed by an agency.

2 Compare Londoner v. Denver, 210 U.S. 373 (1908) (municipal authority fact-finding required adjudicatory procedures to satisfy due process) with Bi-Metallic Investment Corp., 239 U.S. 254 (1915) (no due process right to hearing when quasi-legislative decision is involved).

3 APA rulemaking requirements are considered in VIII(A).

4 The pre-existing rule can be one that was developed in prior adjudication as well as one developed through rulemaking. See NLRB v. Bell Aerospace, 416 US 267, 294-95 (1974) (NLRB can adopt new rule in the course of adjudication); NLRB v. Wyman-Gordon 394 US 759 (1969) (agency need not use rulemaking procedure to develop new rule).

5 See VIII(A) for an overview of APA requirements.

6 See Henry J. Friendly, Some Kind Of Hearing, 123 U.Pa. L. Rev. 1267 (1975).

7 Administrative law judges ("ALJs") possess greater independence from their employing agencies than administrative judges ("AJs"). The APA provides that certain separations of functions must be observed to protect the ALJ from improper pressures from agency investigators and prosecutors. ALJs are selected through a special process overseen by OPM. Their pay is set by statute and OPM regulations. Any attempt by an agency to discipline or remove an ALJ requires a formal hearing at the Merit Systems Protection Board. ALJs are also exempt from the performance appraisal requirements applicable to almost all other federal employees under the Civil Service Reform Act. AJs are not statutorily exempt from performance appraisals, and several classes of AJs regularly are appraised by the agencies for which they work. The amount of functional independence accorded to AJs varies with the particular agency and type of adjudication; however, AJs presiding in agency adjudications in which a hearing is provided are accorded de facto protection from pressure from agency investigators and prosecutors, and do not perceive themselves as significantly more subject to agency pressure than do ALJs. ALJs are required to be lawyers, while some AJs who decide cases are not lawyers, but have other needed specialized expertise. See Jeffrey S. Lubbers , The Federal Administrative Judiciary: Establishing an Appropriate System of Performance Evaluation For ALJs, 7 Admin. L.J. Am. U. 589, 614-616 (1994).

8 See generally DOT v. ATA, 498 U.S. 1077 (1991), vacating and remanding for consideration of mootness, 900 F. 2d 369 (D.C. Cir. 1990) (requiring notice and opportunity for comment on substantial reworking of agency procedural rules); 60 Fed.Reg. 32738 (June 23,1995) (comprehensive recodification of SEC procedural rules).

9 See Henry H. Perritt, Jr., The Electronic Agency and the Traditional Paradigms of Administrative Law 44 ADMIN.L.REV. 79 (1992).

Back to Table of Contents


You can have this document FAXed to you through VCILP's FlexGate (sm) service.