Untangling Federal Administrative Appeals Practice in the District of Colorado
| Publication year | 2013 |
| Pages | 31 |
| Citation | Vol. 42 No. 3 Pg. 31 |
By W. Cory Haller, Karen E. Robertson
Articles Federal Administrative Appeals Practice
About the Authors
W. Cory Haller is an Attorney Fellow with Kaplan Kirsch & Rockwell. His practice is focused on environmental, natural resources, and public lands litigation—(303) 825-7000, challer@kaplankirsch.com. Before joining the firm, he served as a term clerk to the Honorable John L. Kane of the U.S. District Court for the District of Colorado. Karen E. Robertson is career clerk for the Honorable John L. Kane of the U.S. District Court for the District of Colorado. Before joining Judge Kane, she practiced in the Denver offices of Holme, Roberts & Owen and Kobayahshi & Associates, where her practice was focused on employment law and gender discrimination. Substantive review of this article was performed by Judge John L. Kane.
Federal administrative appeals filed in the District of Colorado are governed by hybridized rules and procedures combining aspects of civil and appellate practice. Fortunately, local rules of practice and a growing body of case law provide significant guidance.
Although appeals of federal agency decisions are generally heard by federal district courts, they do not fit comfortably within the Federal Rules of Civil Procedure. To address their unique procedural requirements, administrative appeals filed in the District of Colorado are assigned to a special docket, deferred to as the AP docket. The AP docket is governed by the Local Rules of Practice of the U.S. District Court for the District of Colorado—AP Rules (LAP Rules), which supplement the local and federal rules of civil procedure.
This article discusses the rules governing federal administrative appeals, referred to as AP practice, in the District of Colorado. The article begins with a brief examination of the history of the AP docket, then discusses the basics of AP practice in the district. Finally, the article addresses some common issues and questions particular to AP practice.
History of the AP Docket
Before the Tenth Circuit's 1994 decision in Olenhouse v. Commodity Credit Corporation, [1]AP practice in the district courts of the Tenth Circuit were governed by an assortment of rules and procedures. Many districts did not distinguish social security or other administrative appeals from routine civil cases, thus conflating practice standards and procedures fundamentally inconsistent with the appellate nature of judicial review under the Administrative Procedure Act (APA). [2]This amorphous treatment adversely impacted the quality and efficiency of administrative appellate review.
Unlike typical civil disputes resolved on the basis of facts developed at the district court level, administrative appeals are reviews of decisions made (or not made) on facts already determined and applied in an administrative process. They are not tried to juries and with rare exception do not involve discovery or dispositive motions practice. Because district court judges are predisposed to see themselves as "trial" courts and prioritize their caseloads accordingly, social security and other administrative appeals often languished on district court dockets as an afterthought.[3]
In Olenhouse, the Tenth Circuit confronted this problem head on, clarifying the unique nature of administrative appeals and declaring explicitly that "[r]eviews of agency action in the district courts must be processed as appeals."[4] The crux of the Tenth Circuit’s holding in Olenhouse regarding the proper procedure to follow in AP cases is its "explicit[] prohibit[ion]" of "[t]he use of motions for summary judgment or so-called motions to affirm."[5] Because such motions permit the issues on appeal "to be defined by the appellee" and invite reviewing courts "to rely on evidence outside the administrative record, " the court declared them fundamentally "inconsistent with the standards for judicial review of agency action under the APA."[6] The Tenth Circuit also admonished that district courts, when engaging in their appellate function, "should govern [themselves] by referring to the Federal Rules of Appellate Procedure."[7]
In light of Olenhouse, and in an attempt to alleviate delays burdening the court at the time, the District of Colorado created the AP docket. The AP docket is tasked with pre-merits management of administrative appeals, including appeals arising under the APA and social security appeals.[8] In 2011, the District of Colorado amended and expanded the local rules of practice related to the operation of the AP docket. Those rules address the scope of the AP docket, the procedures relating to filing an administrative appeal, and the general management of AP cases.[9]
Fundamentally, the LAP Rules recognize that administrative appeals present unique procedural challenges. As a result, the LAP Rules prescribe a hybridized set of procedures adapting ordinary civil procedures to a quasi-appellate context. Although these rules represent an important first step in codifying AP practice, they form a structural framework only and provide no clear guidance on many common issues facing the AP practitioner. This is likely due to the court’s recognition that the nature of a specific appeal shapes the substantive contours of judicial review and, axiomatically, pre-merits practices.
Parties to an administrative appeal must therefore seek guidance from the jurisdictional statute underlying that appeal, as well as the growing body of case law addressing AP practice in the district. This article explores the District of Colorado’s LAP Rules and draws on existing case law to focus on some common issues that remain unaddressed.
The Basics of AP Practice
Cases assigned to the AP docket are governed by a routine set of procedures. Once a case is assigned to the AP docket, it is reviewed by the AP judge. If it has been improperly or unnecessarily assigned to the AP docket, it will be designated for reassignment directly to a merits judge. For example, administrative appeals that do not involve a record review of an agency decision—such as a request for a mandatory injunction or an appeal based on an agency’s failure to act—often are re-assigned directly to a merits judge.[10]
After the review is complete and assignment to the AP docket is deemed proper, the court ordinarily will await the filing of an answer or other responsive pleading. Once an answer or other responsive pleading has been filed, the court will order the parties to confer and submit a Joint Case Management Plan (JCMP). The JCMP sets forth a schedule for: (1) the designation of the administrative record; (2) the resolution of anticipated pre-merits disputes; and (3) briefing of the merits of the appeal. The court reviews the proposed JCMP, resolves any disputes, and issues the JCMP as an order of the court. Once all appropriate pre-merits disputes are resolved and the matter is fully briefed, it will be designated for random assignment to a merits judge.
Despite the seemingly straightforward nature of this process, there are a number of pitfalls that can complicate and delay the resolution of an AP case. From the proper filing of the appeal, to the preparation of the JCMP, to the resolution of record disputes, the LAP Rules and a growing body of case law provide significant guidance. The balance of this article focuses on some common questions and issues relating to AP practice.
Common Questions and Issues Relating to AP Practice
The new LAP Rules were intended to facilitate the proper filing and perfecting of an administrative appeal in the District of Colorado. Given the recency of the LAP Rules’ enactment, common questions and issues arise.
Proper Filing of an AP Case
To properly initiate "a social security appeal, a case commenced or reviewed under 5 U.S.C. § 706, . . . or a bankruptcy appeal, " a filing party must pay special attention to the Civil Cover Sheet.[11] The local rules require the filing party to select the box labeled "AP Docket" in the "Brief Description" field of Section VI of the Civil Cover Sheet.[12]Although not required by the local rules, the filing party also should select the box labeled "899 Administrative Procedure Act/Review or Appeal of Agency Decision" under "Other Statutes" in Section IV of the Civil Cover Sheet.[13]
Failure to fully or accurately complete the Civil Cover Sheet may result in the improper assignment of the case and unnecessary delay. The converse, however, is not true. A case that is improperly designated for assignment to the AP docket will not be significantly delayed, because...
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