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Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Administrative Conference 57th Plenary Session Agenda

Posted in Legislation, Regulatory Process

The Administrative Conference of the United States (ACUS) will meet for its 57th Plenary Session on December 6 – 7, 2012, to consider three recommendations dealing with

  • Reform of the Procedural Trap between the Court of Federal Claims and the United States District Courts;
  • Third-Party Programs for Regulatory Compliance; and
  • Civil Monetary Penalty Inflation Adjustment.

Discussions in the 100-member Plenary session are always informative and informed, often lively, and sometimes contentious, as befitting any meeting of the best minds in the business.

Jurisdictional Traps:  28 U.S.C. § 1500 divides jurisdiction between the United States Court of Federal Claims and the United States District Courts in adjudicating claims against the United States by barring the former from proceeding if a case is pending in the latter.  Certain “mixed” multiple claims arising from the same Federal act can be trapped on a jurisdictional divide if Congress has vested jurisdiction over the different claims in the District Courts and the Court of Federal Claims.  The Committee on Judicial Review recommends that Congress repeal the provision and enact a new presumptive stay and order of disposition provision.  The accompanying report details the vicissitudes of this procedural trap for the unwary and the fully informed litigator.

Third Party Inspections:  A number of Federal agencies use private third parties to inspect and verify that regulated entities comply with federal regulatory standards and other requirements.  The draft report surveyed eight federal agency programs that rely on private third parties to assess compliance of regulated entities by six different regulatory agencies; half assess compliance with mandatory standards and half assess compliance with voluntary standards; use of third parties is required in six and optional in two.  The existence of the report may spur further consideration of third party assessment programs and the Committee on Collaborative Governance recommends steps for deciding when and how to establish such programs.

Civil Monetary Penalty Inflation Adjustment:  Congress has provided agencies with a tool to adjust civil monetary penalties to reflect the fact that inflation weakens the deterrent effect of such penalties over time.  The mechanics of adjustment through a final rule are technically complex but substantively fairly straight forward and arithmetic.  The draft report points out the inflation gap created by the statutory 10% cap on adjustments, the asynchronous, but mandatory use of the Consumer Price Index (CPI-U) against actual inflation creating another gap, and a statutory “rounding error” gap.  The Committee on Administration and Management recommends legislative reconsideration of these issues, and that agencies, at a minimum, conduct a quadrennial review of penalties for adjustment.

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Disclosure:  The author of this blog is a consultant to the ACUS Committee on Judicial Review on another project not before this Plenary Session.