The Administrative Conference of the United States has recently adopted a recommendation about aggregation of similar claims in Agency Adjudication.
It recognizes that the aggregation is a useful tool to be used in appropriate circumstances. On the basis of this assumption, the recommendation (that covers both adjudications of administrative law judges and adjudications of non administrative law judges) aims at providing guidelines and best practices for agencies so as to guide them to evaluate whether and how to use or improve the aggregation. The Recommendation starts from the consideration that Federal agencies of the United States adjudicate many cases each year. However, taking advantage of their wide discretion (based on their statutes), federal agencies have generally avoided aggregation tools. Only few agencies have employed innovative tools to achieve greater equality in outcomes, to reduce potential allegations of bias or illegitimacy and to allow cases raising scientific or novel factual questions to “mature” (putting off aggregation until the agency has the benefit of several opinions and conclusions from different judges about how a case may be handled expeditiously).
The recommendations are ten and they establish that:
- the aggregate adjudication should be governed by formal or informal aggregation rules of procedure consistent with the APA and due process;
- the alternative decision-making techniques can resolve claims with common issues of fact or law;
- agencies should take steps to identify whether their cases have common claims and issues that might justify the adoption of rules governing aggregation;
- agencies should develop procedures and protocols to assign similar cases to the same judge or to a panel of judges based on a number of specific factors;
- agencies should develop procedures and protocols for judges to determine whether formally aggregate similar claims in a single proceeding;
- the agencies that use the aggregation should ensure a transparent process and that the interests of the parties and of stakeholders are adequately protected;
- agencies that use aggregation should produce available documents to explain how they initiate, conduct, and conclude aggregation proceedings and also whether aggregation is appropriate or not;
- agencies should consider to assign a specialized body of expert judges trained to manage the aggregation procedures, according with APA requirements where administrative law judges are assigned;
- the aggregation should be used to improve control of policy-making;
- agencies should ensure that the outcomes of aggregate adjudication are communicated to policymakers or personnel involved in rulemaking, so that they can determine whether a notice-and-comment rulemaking proceeding codifying the outcome might be worthwhile. Moreover, the recommendation provides that if agencies are uncertain, they can request interested parties to express an opinion on whether the agencies should codify the adjudicatory decision (in whole or in part) in a new regulation.