CODE OF
FEDERAL REGULATIONS
TITLE 1--GENERAL
PROVISIONS
CHAPTER
III--ADMINISTRATIVE CONFERENCE OF THE UNITED
STATES
PART
305--RECOMMENDATIONS OF THE ADMINISTRATIVE
CONFERENCE OF THE UNITED STATES
1 C.F.R. s 305.91-9
s 305.91-9 Specialized
Review of Administrative Action (Recommendation No.
91- 9).
In recent years, there has
been much talk of a crisis in the federal courts.
In response, Congress empaneled the Federal Courts
Study Committee, charging it with responsibility to
examine the problems facing the courts and to
develop a long-range plan for addressing them. The
Committee issued its report in April 1990, touching
on many different aspects of the problem, among
them those related to judicial review of
administrative action.
The Federal Courts Study
Committee specifically rejected a proposal to
divert all administrative appeals to a specialized
court within the Article III judiciary. The
Committee recognized that administrative review
cases do not form a major percentage of the
caseload of the federal courts of appeals. Yet
assigning jurisdiction to a specialized court may
provide more efficient or effective review for some
types of administrative cases. It, therefore,
proposed diversion of some cases now in the Article
III courts to other adjudicatory bodies; in
particular, the Committee recommended creation of
an Article I court to review Social Security
disability claims and perhaps, eventually, other
administrative benefit claims.
Finding the optimal
structure for review of administrative cases
involves a complex balancing of various factors:
the need for uniform law versus the benefits of
"percolation" in the decentralized circuits; the
value of expert decisionmakers versus the broader
perspective of generalists; the efficiency of
specialization versus the risk of bias that
specialization entails. And the calculation can
vary in the context of different administrative
programs, which differ in the volume, complexity,
and level of technical content of the caseloads
they generate. For these reasons, the Conference,
like the Federal Courts Study Committee, opposes
allocating review of all administrative cases to a
single specialized court, whether inside or outside
the Article III system.
Should Congress consider
the creation of specialized courts for review of
particular administrative programs, this
recommendation sets forth criteria for Congress to
take into account in determining when to create
specialized courts and how to structure them to
enhance their effectiveness. Certain
characteristics held in common by many federal
regulatory and benefit programs raise particular
problems within the existing system of judicial
review. Uniformity in decisionmaking can be
especially important in the context of
administrative action under national programs. The
agencies themselves are structured hierarchically,
so as to speak with a single voice in applying law
and policy to individual circumstances. But the
federal court system that reviews these agency
programs is decentralized, and different circuits
often reach different outcomes on the same issue.
The Supreme Court's capacity to resolve these
conflicts is severely limited by the modest number
of administrative law cases it considers each year.
As a result, agencies often face the choice of
refusing to acquiesce in decisions below the
Supreme Court level, abandoning policy positions
they believe to be correct, or implementing
programs differently in different regions (and,
consequently, treating similarly situated
individuals or entities differently and encouraging
forum shopping).
Another special aspect
shared by some federal regulatory programs is that
they involve complex technical or scientific
issues, which may present great challenges to
reviewing courts without special expertise in the
relevant areas. Cases on review of agency
rulemaking and ratemaking actions, in particular,
frequently involve lengthy administrative records
filled with conflicting material on technical
issues of fact and policy; the judges must devote
extra time to poring over these records and to
producing the longer opinions these cases often
engender.
Other federal programs
(such as individual benefit programs) produce
masses of litigation involving primarily questions
of specific fact. Resolution of these issues may be
an inefficient allocation of the time of the
federal courts.
While review by
specialized courts may offer a solution for these
problems, specialization brings dangers as well.
One premise of the national system of courts of
general jurisdiction is that sound decisionmaking
results from exposure to a wide range of problems
and issues; adjudicative bodies with limited
subject matter jurisdiction may lack this
generalist perspective. Specialization can also
produce bias problems of two kinds: the
appointments process may be distorted as interest
group pressures lead to the selection and
confirmation of nominees for their views on
specific issues; in addition, the standard of
review may be distorted, either because expertise
leads the court to substitute its judgment for that
of the agency or because familiarity with a
particular agency leads the court to accept the
agency's positions too readily. Public perception
that a court is biased can reduce its effectiveness
even when actual bias is not present. Finally, a
specialized court may suffer reduced prestige if
its repetitive subject matter attracts lower
caliber judges.
The recommendations that
follow offer guidance to Congress on the
considerations it should take into account when it
deliberates about whether to assign responsibility
for review to a specialized court; they should be
read as a whole. Thus, for example, the criteria in
recommendation 2 may suggest assignment of Social
Security disability cases to a specialized court;
if Congress considers such an approach, however, it
should take into account recommendations 3(B) and
3(C), favoring a balanced docket and a
jurisdictional mix. These recommendations are
intended to complement Conference Recommendation
75-3, "The Choice of Forum for Judicial Review of
Administrative Action," I CFR 305.75-3 (1990),
which the Conference continues to believe should
form the foundation for decisionmaking about the
appropriate forum for judicial review of
administrative action within the Article III
courts.
Recommendation
1. When considering
proposals for the creation of a specialized court
or courts to review administrative action, Congress
should take into account that federal agency
programs vary greatly in the volume, complexity,
and level of technical content of the caseloads
they generate, and, thus, any solutions adopted
should be designed to fit the specific
administrative programs to which they will apply.
For these reasons, among others, the Conference
opposes the creation or designation of a single
specialized court, either within the Article III
judiciary or under Article I, to handle review of
all administrative cases.
2. Congress should
recognize that it is appropriate to create
specialized courts for particular administrative
programs only if such programs are characterized by
the following:
A. A program area in which
one might reasonably expect a consistently large
volume of cases, diversion of which might
significantly alleviate burdens on the generalist
federal courts;
B. The predominance of
factual issues specific to particular cases, or the
predominance of scientific or other technical
issues requiring special expertise of
decisionmakers; and
C. The particular
importance of uniformity in agency administration
of a program.
3. If Congress creates
specialized courts to review particular
administrative programs, it should, to the extent
possible, structure the courts as follows:
A. To minimize
jurisdictional uncertainty, the subject matter
before the courts should be segregable from other
claims.
B. To ensure that the
courts maintain a balanced perspective on the
issues before them, the courts' dockets should be
designed to expose judges to all sides of pertinent
controversies and to the broadest possible scope of
related issues within a field of law.
C. To encourage generalist
judicial appointments, to minimize distortion of
the standard of review resulting from loss of the
generalist perspective, and to avoid the fact or
appearance of capture by special interests, the
courts' subject matter jurisdiction should be
diverse.
If the court provides the
final stage of judicial review before Supreme Court
review, satisfaction of criterion C is
essential.
4. If Congress creates
specialized courts to review particular
administrative programs, it should provide for
periodic evaluation of those courts to determine
whether there is a continuing need for specialized
review.
5. In any legislation
providing for specialized review of particular
administrative programs, Congress should assign to
each court or reviewing body the type of functions
it is best suited to perform and should minimize
duplication of review functions. In particular, any
such legislation should:
A. Avoid de novo review of
factual issues already subject to formal
adjudication at the agency.
B. Make the decisions of
specialized courts final on review of questions of
fact specific to the case (including the
sufficiency of the evidence in that case by
whatever standard it is reviewed).
C. When review has been
assigned to an Article I specialized court, provide
a subsequent layer of judicial review by an Article
III court for questions of constitutional or
statutory interpretation.
[56 FR 67143, Dec. 30,
1991]
Authority: 5 U.S.C.
591-596.
SOURCE: 38 FR 19782, July
23, 1973; 57 FR 61760, 61768, Dec. 29, 1992, unless
otherwise noted.
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