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From YouTube: Committee on Adjudication Meeting #1 | Precedential Decision Making in Agency Adjudication
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A
A
I
just
want
to
briefly
announce
that
unfortunately
acus's
new
chair,
Andrew
Flores,
was
unable
to
attend
this
meeting
because
of
another
conflict,
so,
but
he
sends
his
best
wishes
and
appreciation
for
all
of
our
hard
work
and
assures
me
that
he
will
be
here
to
discuss
in
person
with
everyone
at
our
second
meeting
on
November
4th
beyond
that.
I
will
briefly
take
role
and
then
hand
it
over
to
Nadine
our
chair
to
take
over
the
meeting.
I'm
gonna
call
two
rolls.
A
A
Here
great
Adam
Kress,
it's
alternate
for
Annika
Cooper
here
right,
welcome,
hi,
Doug,
bloom
I'm
here,
I'm
sure
I've
bangled
up
your
first
name.
No,
you
actually
said
it
right
hi.
How
about
that?
Okay,
Janice,
Hoffman
and
Renee
Landers
are
both
joining
us
a
little
bit
late,
but
did
either
manage
to
sneak
in
early.
C
A
C
A
A
D
G
F
A
B
Great,
thank
you.
It's
good
to
see
everybody.
Thank
you
for
joining
us
on
a
Friday
afternoon.
I
know
that
might
be
the
last
thing
you
want
to
do
on
a
Friday
afternoon,
or
maybe
it's
the
first
thing.
I
don't
know
so.
I'm
gonna
run
through
the
ground
rules.
Some
of
you
know
these
already,
but
for
those
of
you
who
don't
we're
going
to
run
through
them
anyhow,
only
acus
members
or
their
designated
alternates
have
full
speaking
privileges.
So
a
non-acis
member.
B
Please
keep
yourself
on
mute
and
if
you
want
to
speak
again,
use
the
chat
feature
or
raise
your
hand
using
the
zoom
function
and
I
will
call
on
you
and
then
you
can
unmute,
say
your
piece
and
then
mute
again.
I
would
like
to
ask
that
all
acus
members
and
their
alternates
use
the
webcam.
It's
always
good
to
see
faces,
and
it
facilitates
the
discussion
in
a
better
way.
I
think
so.
Unanimous
consent
is
required
for
anyone
other
than
aqueous
members
and
their
alternates
to
participate.
B
B
You
are
thank
you
thanks
for
asking
I
should
I
can
read
the
list
of
those.
If
there's
any
just
raise
a
question,
if
you
have
one
like
judge,
leznick
just
did
but
I
think
most
of
you
know
who
who
you
do,
which
category
you're
in
again,
if
you
want
to
speak
and
you're,
not
an
aqueous
member
or
an
alternate,
you
need
to
use
the
function.
The
zoom
raise
your
hand
function
or
the
chat
feature
do
not
use
the
chat
feature
for
anything
other
than
indicating
that
you
want
to
speak.
B
B
Great
so
let's
talk
about
our
Consultants
before
I
turn
it
over
to
them.
I
I
just
want
to
say
you
know
it's
really
great.
We
are
in
incredibly
good
hands
for
this
project.
I'm
really
excited
to
have
have
these
wonderful
people
involved.
Matt
I'll
start
with
you.
You
need
no
introduction.
Basically,
for
those
of
you
don't
know
Matt,
he
led
the
administrative
conference
as
acting
chairman
for
more
years
than
I.
Think
he
expected
to
and
was
appointed
as
special
counsel
to
the
conference.
B
This
past
summer
he's
also
a
Committee
Member
Matt's
teaching
at
Penn
law,
school
and
obviously
still
contributing
to
the
work
of
the
conference,
and,
if
you
haven't
seen
it,
I
I
would
recommend
checking
out
a
tribute
written
by
our
fellow
Committee
Member
Jack
Biermann
last
year,
honoring
Matt
I
I
commend
you
that
read
that
Chris
Walker,
likewise
very
familiar
to
all
of
us.
He
is
the
fellow
Committee
Member.
Currently
a
law,
professor
at
the
University
of
Michigan,
formerly
a
law
professor
at
Ohio,
State,
University,
Chris,
teaches
many
subjects.
B
B
Finally,
last
but
not
least,
Melissa
Wasserman
I
look
forward
to
getting
to
know
you
as
well
as
I,
know,
Matt
and
Chris.
Also,
a
member
of
the
committee
Melissa
is
currently
a
law
professor
at
the
University
of
Texas
at
Austin,
formerly
a
law
professor
at
the
University
of
Illinois.
She
also
researches
and
teaches
many
subjects,
including
administrative
law.
Melissa
worked
with
Chris
on
an
article
in
2019,
the
new
world
of
agency
adjudication,
and
they
studied
in
part
the
presidential
decision-making
primarily
at
the
patent
trade
trial
and
appeal
board.
B
I
Well
and
Nadine
I
think
I've
drawn
the
straw
on
this
one,
but
if
any,
thank
you
initially
thank
you
for
your
very
generous,
generous,
generous
comments.
This
is
actually
my
first
meeting
as
a
member
of
the
committee
and
I'm
very
glad
to
be
part
of
the
committee,
even
though
I'm
not
allowed
to
vote
today,
because
I've
I
I'm
recusing
myself,
as
is
Chris
and
Ezra
Chris
and
Melissa,
who
are
also
members
of
the
committee,
because
we're
consultants
in
the
Yankees
bylaws
require
us
to
do
so.
I
In
addition
to
thanking
you,
I
do
also
want
to
thank
before
I
on
behalf
of
I.
Think
I
can
do
that
on
behalf
of
Melissa
and
Matt
I
want
to
thank
Jeremy
and
Matt
glue
for
helping
with
this
project
in
innumerable
ways,
both
on
the
sort
of
administrative
side
and
the
more
substantive
side
as
well.
Thank
you
to
both
of
them.
I
I
We
very
much
appreciate
that
I
know
there's.
This
is
a
very
distinguished
company
and
there's
a
lot
of
expertise
in
this
virtual
room
today.
So
we
do
really
welcome
your
comments
and
I
should
say
that
Jack.
Let
me
thank
you
not
only
for
writing
that
tribute
to
me,
but
also
for
your
comments
on
this
project,
which
were
excellent.
You
pointed
out,
among
other
things,
that
Allentown
Mack
I
think
it's
Allentown.
I
Mac
versus
nlrv
should
be
accounted
for
in
the
recommendations,
and
it
should
it
should
be
accounted
for
it
in
the
report
too,
and
we
will
certainly
include
that
on
the
next
draft
of
the
report.
So
let
me
just
offer
I
think
I
have
about
four
observations
here
before
just
asking
Chris
and
Melissa
if
they
have
any
supplemental
thoughts.
First,
let
me
just
maybe
we
can
just
stipulate
to
a
definition
of
precedent.
The
word
precedent
can
be
used
in
different
ways.
I
You
could
refer
to
something
presidential
as
being
an
example
or
a
guide.
We
use
presidential
decision
making
in
this
report,
as
do
at
least
the
courts
of
appeals
and
and
and
all
agencies,
I
think
or
most
agencies.
We
use
presidential.
We
use
the
word
presidential
to
refer
to
a
decision
that
is
legally
binding
in
some
man
or
another.
I
Of
course
it
can
be
overruled
and
when
I
and
when
we
say
binding,
we're
referring
to
binding
on
other
adjudicators
within
the
agency,
either
on
sort
of
a
vertical
basis
or
almost
always
on
a
vertical
basis,
but
also
sometimes
on
a
horizontal
basis
when
we're
referring
to
say
in
a
palette
tribunal
within
an
agency.
So
that's
that's
the
the
first
observation.
The
second
observation
is
something
that
Chris
might
want
to
speak
further
to,
but
on
the
sort
of
conventional
account
of
agency
adjudication.
I
That
is
the
account
that
you
see
that
you
read
about
in
law
school
case
books,
especially
when
you're
talking
about
the
chenery2
principle
policy
making
is
an
important
part
of
or
or
maybe
an
important
part
of
agency
adjudication,
or
at
least
an
agency
adjudication
is
one
of
the
policy
making
formats
that
an
agency
might
employ.
It
was
interesting.
I
It
struck
us
as
interesting
that
nearly
all
of
the
interviewees,
almost
all
of
them
adjudicators,
did
not
characterize
what
they
do
as
policy
making,
but
rather
rather
see
what
see
see
the
task
on
which
their
the
task,
in
which
they're
engaged
as
much
more
akin
to
what
a
judge
does
when
deciding
cases
which
is
you
know,
engaged
in
an
interpretive
exercise
rather
than
a
policy
making
exercise.
Chris
may
want
to
elaborate
upon
that
or
maybe
maybe
you
have
some
questions
on
that,
but
let
me
leave
it
there
for
now.
I
I
That
is
appellate
systems
that
designate
some
decisions
as
presidential
and
others
not
as
presidential
most
of
the
agencies
do
not
have
rules,
let
alone
CFR,
codified
rules
of
practice
that
set
forth
the
criteria
for
designating
decisions
as
presidential
or
non-presidential.
Now
there
are
some
important
exceptions
here
that
might
be
might
even
be
thought
of
as
Exemplar,
so
the
board
of
immigration,
appeals
or
eoir
the
eoir
system.
There
are
rules
in
specific
rules
in
place.
I
The
agencies
are
situated
quite
differently,
I
think
than
the
the
U.S
ports
of
appeals,
which
do
most
of
which
do
have
rules
that
draw
the
distinction
and
many
of
which
actually
set
forth
the
criteria
for
distinguishing
between
presidential
and
non-precedential
decisions
and
I
know,
if
you
don't,
if
you
don't,
if
they
don't
do
it
in
rules,
they
at
least
do
it
in
their
case
law.
So
those
are
my
four
observations
and,
before
receiving
with
Nadine's
permission,
any
questions
or
comments
that
the
committee
members
have.
D
Mean
the
only
thing
I'd
add
we
can
talk
more
about
the
policy
making
if
folks
are
interested,
I
I
would
just
say
from
having
done
all
these
interviews,
which
was
super
fun.
I
mean
these
folks
are
just
they're,
just
fun:
they're
they're,
they're
they're.
All
thinking
about
this
issue
they've
been
thinking
about
President
just
making
for
a
long
time.
D
They
don't
talk
with
each
other
that
much
and
there's
just
so
much
variety
among
agencies,
and
so
I
hope
that
this
report
is
studying.
This
recommendation
encourages
agencies
to
take
a
look
at
how
other
agencies
are
doing
it,
because
the
I
was
just
surprised
with
how
how
different
each
agency
not
only
structures
it
procedurally,
but
why
they're
even
doing
it
in
the
first
place,
you
know
the
motivations
for
for
presidential
decision
making
just
really
vary
among
agencies,
so
I'm
hoping
this
project
really
really
encourages
that
kind
of
cross-agency
collaboration
and
study.
I
Nadine
Magnus
offer
one
one
additional
comment
that
I
had
neglected.
No
doubt
there
are
some
errors
in
the
report
and
we
will
go
to
the
agency
go
to
the
agency
officials,
whose
agencies
are
addressed
in
the
report
just
to
ensure
that
we
haven't
gotten
anything
too
wrong
or
the
details
wrong.
I
think
we're
pretty
confident
that,
overall,
that
any
errors
are
not
of
such
a
magnitude
as
to
call
into
question
any
of
our
general
findings
or
recommendations.
I
B
B
B
B
B
So
give
me
one
second,
okay,
great
so
we'll
start
I
guess
at
the
top
right
right
with
the
very
first
recommendation
here
one
and
we
can
consider
one
a
through
c,
let's
just
see
generally,
if
there
are
comments
or
suggestions
here
and
then
we
can
look
specifically
at
Jax
and
I'll
ask
Jack
to
kind
of
explain
a
little
bit.
Why
he's
recommending
what
he's
recommending
so
anything
in
general
on
this
first
recommendation.
C
J
Okay,
you
know
the
first
adding
if
so,
when
was
just
because
then
the
first
sentence
captures
everything
in
the
recommendation,
so
I
just
thought.
That
was
a
good
opening
sentence.
These
are
mostly
wordsmithing,
not
really
substantive,
and
you
know
I'm
just
a
little
obsessed.
You
know
with
that
sort
of
thing,
and
and
in
this,
in
a
and
and
B
where
I
I
recommended
taking
out
the
word
regularly.
J
E
E
D
We
still
have
to
Define
in
the
Preamble
to
be
sure
and
say
it's
more
complicated
than
this,
but
I
do
think
it
helps
kind
of
underscore
that
this
is
a
agency
head
decision
or
the
Appellate
body
that's
been
delegated
to
each
state
has
Authority
or
the
Appellate
body
that
the
statute
has
given
the
authority
to
make
final
to
make
presidential
decisions.
What.
B
H
Is
so
recognizing
that
we're
trying
to
capture
well
more
than
what
the
executive
office
for
immigration
reduce
situation
is
in
regard
to
these
decisions?
Our
situation
could
be
similar
to
others
in
that
we
would
not
want
to
be
referring
to
immigration.
Judge
decisions,
as
potentially
presidential
and
I
recognize
that
those
are
some
of
the
considerations
outlined
below.
The
problem,
of
course,
would
be
related
principally
to
volume,
but
then
also
just
even
the
case,
specific
factual
determinations
that
come
into
play
with
each
of
those
individual
cases.
H
C
F
Let
me
first
say
that
I
agree
with
all
of
Jack's
stylistic
changes.
Amazing
I
had
the
same
ones,
but
on
this
issue
in
particular,
there
are
agencies
that
adopt
alj
decisions
as
their
own
I
mean
alj,
not
just
IJ
alj
decisions
as
their
own
I.
Think
and
I
I,
don't
know
if
they
would
want
to
consider
them
or
maybe
would
want
to
consider
them
to
be
presidential
I.
Just
it's
I
I,
putting
a
pellet
in
parentheses,
I.
F
Don't
that
just
confuses
to
me
even
more
I
mean
if
you
just
said
final
agency
decisions.
Well,
the
point
is
obviously
the
what
Paula
says
is
we
don't
make
presidential
a
lot
of
final
agency
decisions,
because
there's
so
many
or
whatever
reason?
But
even
if
you
include
within
our
within
our
overall
framework
final
agency
decisions,
then
you
break
down
to
which
ones
are
going
to
be
presidential
which
one's
not
and
the
agency
can
eliminate
whole
scores
of
them,
other
categories
of
them
easily,
so
I,
don't
know
why
final
agency
decision
doesn't
do
it.
J
Yeah
I'm
I
think
I'm
in
pretty
much
agreement
with
what
bill
just
said.
I
just
wanted
to
point
out
that
sometimes
an
agency
can
take
a
decision
without
an
ALG
hearing
it
first
and
so
those
those
wouldn't
really
be
considered.
A
pellet
I
mean
unless
you
just
consider
by
Nature
that
the
agency
is,
you
know,
always
in
an
appellate
situation.
J
I
mean
my
unders
I'm,
not
sure
they
ever
do
it,
but
I
I
think
that
some
agency,
you
know
whether
it's
a
independent
agency
or
the
head
of
a
department
can
take
a
case
even
before
the
alj
makes
a
decision
so
appellate
might
not
capture
everything.
Final
agency
decisions
and
I
I,
I,
guess
I'm.
It
makes
me
think.
Is
there
a
reason
to
add
the
word
adjudicatory
somewhere
in
here?
C
K
K
B
So,
just
to
be
clear,
it's
my
understanding
that
the
the
the
report
uses
appellate
decisions
and
I
think
Chris
has
explained
why
and
to
the
extent
that
some
of
these
concerns
can
be
fleshed
out.
As
noted
in
Jeremy's
comment,
when
we
clarify
what
exactly
we
mean
by
that
in
the
Preamble,
maybe
that's
the
better
approach
here
and
to
the
extent
that
it
can
include
some
of
the
final
agency
Concepts
that
I
think
Jeff
was
looking
for
here.
B
K
L
H
Thank
you
yeah
understanding
that
the
intent
is
certainly
not
how
I'm
going
to
refer
and
see
what
it
talks
about
to
identify
which
cases
Merit
closer
attention.
Just
possibly
looking
at
the
language
there
to
make
clear
that
we
don't
mean
attention
in
making
the
decision
that
attention
in
terms
of
whether
that
would
be
presidential.
H
K
K
I
I
completely
agree
with
Jack's
edits.
I
think
that
once
you
have
that
edits,
which
maybe
should
be
that
you
know
it's
the
extent
to
which
an
agency
issues
such
a
large
volume
of
decisions
that
adjudicators
cannot
reasonably
be
expected
to
identify
which
Merit
decisions
Merit
closer
attention,
the
witch
made
sense
when
you're
saying
which
adjudicators
cannot
reasonably
be
expected
to
sift
through.
You
know,
I,
don't
know
if
that's
right,
I've
been
reading
this
a
few
times,
I
just
thought:
I'd
raise
it.
Jack.
B
H
J
K
K
One
of
the
things
they
should
consider
is
the
extent
to
which
the
agency
issues
such
a
large
volume
that
adjudicators
cannot
reasonably
be
expected
to
identify
essentially
on
their
own
I
mean.
This
is
what
you're
trying
to
get
without
guidance
from
the
agency.
I,
don't
know
that
we
need
to
put
it
in
here
yeah,
but
I
think
in
the
Preamble
discussing
it.
K
H
And
now,
I'm
back
to
May
reason
being
I,
think
the
I
could
imagine
sort
of
a
triage
effect
right
that
the
the
individual
adjudicator
may
look
at
it
and
say
this
could
be
presidential
and
it
would
go
to
be
determined
as
to
whether
that
would
actually
serve
as
precedent,
because
the
large
volume
of
decisions
May
prevent
the
individual
adjudicator
from
being
able
to
make
that
decision
in
a
vacuum.
But
an
agency
process
could
perhaps
result
in
the
should,
rather
than
the
May,
so
I
think
may
may
may
be
more
appropriate
here.
After
all,.
B
K
K
I
know,
and
actually
I
do
have
another
Point,
even
based
on
this,
on
the
May
I
I,
like
buying
probably
better
than
guide,
essentially
based
on
what
I'm
thinking
precedent
should
mean,
but
maybe
it's
then
may
appropriately
bind
right
to
identify
which
decisions
May
appropriately
bind
future
determinations
again.
This
whole
thing
is
the
whole
reason
right
on
this
to
say
to
those
agencies
that
haven't
yet
done
this
hey
all
you
might
want
to.
K
B
B
E
B
E
K
C
B
K
K
That's
right
so,
but
in
determining
whether
to
treat
an
appellate
decision
as
present
I
feel
like
we
need
to
here.
You
said
agencies
that
distinguish
between
presidential
and
non-presidential
and
I.
Think
part
of
what
we're
saying
in
this
recommendation
is
agencies
need
to
determine
so
sort
of
like.
K
You
have
two
things
here.
You
have
agencies
that
already
distinguished
between
the
two
and
you
have
agencies
like
the
EEOC,
where,
although
the
report
says
that
the
agency
does
make
that
distinction,
it
actually
doesn't,
there
are
some
that
are
done
by
the
full
commission
that
sort
of
people
pay
more
attention
to.
But
as
a
matter
of
precedent,
the
commission
has
never
made
that
decision.
K
So
I
think
what
you're
trying
to
say
in
this
recommendation
is
in
determining
whether
to
treat
only
some
appellate
decisions
as
presidential
okay,
which
is
already
some
agencies,
are
doing
it
and
some
aren't
in
determining
whether
to
treat
only
some
appellate
decisions
as
presidential
the
agency
should
consider.
You
know.
F
B
E
K
J
The
what
what
I
understand
the
problem
with
what
I
wrote
in
that
it's
it's.
It
turns
into
a
list
of
factors,
the
problem
that
I
still
but
the
other.
The
problem
that
led
me
to
to
think
about
making
suggesting
a
change
was
that
this
we
don't
actually
say
that
these
points
in
the
point
in
favor
of
treating
these
particular
kinds
of
decisions
is
presidential.
It
seems
like
I
mean,
maybe
it's
just
so
obvious,
but
you
know
I
mean
I
mean
it
doesn't
say
like
that.
J
If
it's
an
issue
of
first
impression
ought
to
be
presidential,
someone
might
say:
well
it's
our
first
time
ever
trying
to
deal
with
this
problem.
So
maybe
we
ought
to
be
a
little
careful
and
not
treat
it
as
presidential,
yet,
but
I
think
the
intent
was
that
all
of
these
are
points
leaning
in
favor
of
treating
them
as
presidential
and
I.
Think
I'm,
just
maybe
I,
don't
I'm
not
coming
up
with
a
way
to
say
it,
but
I
think
that
we
need
this.
J
B
A
L
Yeah,
that's
that's
correct,
I
mean
if
you
look
at
recommendation
one
right
now.
Basically,
it
says
agency
should
establish
a
policy
that
all
appellate
decisions
are
presidential.
Some
are
presidential,
are
none
are
presidential
if
you
decide
that
all
or
none
are
presidential,
there's
no
need
to
determine
which
particular
decision
in
a
given
system
should
or
should
not
be
given
presidential
effect.
So,
who
assumes
you've
chosen
that
sort
of
middle
path
right.
B
F
They
should
consider
the
following
and
then
I
don't
see
why
that
is
inconsistent
with
an
agency
that
considers
all
the
presidential
they
they
don't
have
to
decide
individual
cases
and
for
agencies
decide,
there's
no
precedence,
they
don't
have
to
decide
either.
So
it's
all
it's
it.
You
don't
have
to
say
I.
Don't
think
that
this
only
applies
to
those
agencies
that
make
decisions
about
some
and
not
others.
H
Language
suggestion,
perhaps
combining
in
determining
whether
to
treat
only
some
appellate
decisions
as
presidential
indications
in
favor
of
treating
as
precedent
include
and
then
I
think.
We
would
unfortunately
have
to
change
all
of
the
enumerated
pieces
to
gerunds.
But
instead
of
the
current
more
proper
verbs.
H
J
B
C
C
K
So
that
brings
me
back
to
this
raises
the
issue
to
which
I
had
first
raise
your
concern,
which
is
it
sounds
like
this
recommendation
is
only
directed
to
agencies
that
have
already
decided
this
now.
I
know
that
recommendation
number
one
says
you
should
decide,
but
you
might
need
to
repeat
that
right
in
agencies
that
choose
to
treat
only
some
decisions
as
president
as
presidential
indications
that
an
appellate
should
be
I
mean
that
this
is.
We
can
see
how
repetitive
this
language
is
yeah.
B
C
B
K
Correct
correct,
I
really
want
I
think
this
recommendation
can
be
very
helpful
to
agencies
that
issue
a
lot
of
decisions
that,
in
practice,
as
you
sort
of
got
from
your
interview
with
the
EOC
in
practice,
They
Don't
Really,
quote
unquote
sift
through
everything,
but
they
will
certainly
have
in
their
mind
something
that's
been
voted
on
by
the
commission,
but
they
have
not
made
that
decision
and
I
think
they
should
and
when
they
now
choose
to
actually
differentiate
between
their
decisions.
These
are
precisely
the
indications
that
they
should
be
looking
at.
B
K
H
H
When
agencies
determine
only
some
appellate,
decisions
will
be
presidential.
Serious
consideration
should
be
given
to
such
issuance.
If
the
decision
colon
I
can
read
it
again,
if
you'd
like
when
agencies
determine
only
some
appellate
decisions
will
be
presidential,
serious
consideration
should
be
given
to
such
issuance.
If
the
decision.
K
K
C
B
B
B
J
There
and
eight
so
I
what
I
had
written
was
an
agency
that
choose
to
treat
only
some
Republicans
presidential
indications.
That
decision
should
be
treated
as
president
include
whether
the
decision,
foreign
I
guess
I'm,
indifferent
between
the
two.
It's
the
same
point,
whatever
the
committee
prefers,
is
fine
with
me.
B
B
B
B
B
E
E
B
B
B
F
It
seems
to
me
that
I
mean
one
of
the
things
that
concerned
me
about.
This
was
I
would
want
them
to
not
only
to
I
want
them
to
cite
it
and
say,
and
this
is
a
non-precedential
decision-
I
want
them
to
identify
it
as
a
non-precedented,
absolutely
and
I
think
that
should
be
in
the
recommendation,
but
rather
than
worrying
about
3H
and
so
forth.
What
about
having
a
sub
hit
here
that
says?
Use
I
mean
the
heading
here
is
use
of
presidential
decision
making.
F
B
F
B
H
E
This
is
a
place
where
three
of
the
recommendations
in
the
report
didn't
make
it
into
this
section
and
it's
the
ones
on
page
50,
51
of
the
reports
c,
one
through
three
and
C
four,
five.
Six
and
seven
are
the
ones
that
made
it
into
here,
but
one
through
three
didn't
and
I
think
it
might
be
worth
spending
a
little
time
to
decide
whether
whether
or
not
we
want
to
say
what's
in
C
one
through
three,
we
can
do
that
after
Jack
finishes.
B
J
Oh
no
I
mean
I
just
I,
just
there's
a
there's
for
for
new
decisions.
I
guess
you're
you,
the
the
idea
is
to
just
to
only
get
appellate
adjudicators
to
chime
in
on
whether
to
make
a
new
decision
as
presidential,
but
with
regard
to
look
a
look
back
where
you
look
at
old
decisions
and
decide
whether
to
designate
some
pre-existing
ones,
you
ask
other
all
the
all
adjudicators
other
Asian
officials.
The
party
is
the
case
and
the
public
yeah.
C
J
G
I
think
what
we
were
trying
to
do
right
for
the
New
decisions
was
simply
give
the
opportunity
for
other
adjudicators
to
kind
of
review
them
to
see
if
there
was
kind
of
conflict
with
other
decisions
before
they
were
issued.
As
presidential
and
I
thought,
the
other.
The
input
from
I
think
it's
a
good
point,
but
like
the
input
from
others,.
G
I
think
that's
a
fair
point.
I
when
I
was
thinking
of.
Initially
it
was
the
new
decisions.
We
were
thinking
about
getting
input
from
other
adjudicators
before
it
was
sort
of
issued
as
conflicts
with
other
decisions
that
were
out
there,
but
we
are
asking
for
input
from
the
public
and
other
adjudicators
and
deciding
you
know
when
we're
making
earlier
on
before
a
decision
is,
is
addressed
as
presidential
as
well
so
I
think
it's
a
good
point
taken.
C
B
D
Ahead,
please
Chris
I
mean
I,
think
we
were
trying
to
address
something
different.
There
I
mean,
and
maybe
it's
just
not
clear
enough,
but
the
idea
as
most
of
us
you
know
saying
the
idea
of
the
first
one
is
that
you
should
pre-circulate,
or
at
least
you
should
consider
pre-circulating
that
decision.
So
you
decide
to
make
a
presidential
pre-circulate,
like
some
of
the
circuit
courts,
do
I'm
using
circuit
courts
here
for
Jack's.
You
know
benefit,
but
the
but.
K
D
Should
solicit
input
on
whether
to
make
decisions
presidential,
whether
they're
new
decisions
or
old
decisions
or
a
lie,
but
that
was
kind
of
what
we
were
getting
at,
because
some
agencies
do
do
pre-circulation
within
the
whole
appellate
body
and
I
think
we
thought
that
was
a
really
good
practice,
but
that's
different
than
like
when
the
AG
says
I'm
thinking
of
making
a
presidential
decision
in
the
immigration
context.
Semi-Amicus
briefs
like
that
to
me:
that's
a
different,
a
different
different
approach.
J
They
haven't
been
for
over
100
years,
but
the
this,
the
last
clause
in
number
five
actually
already
captures
I
I,
didn't
I,
didn't
even
focus
on
this
I
would
recommend
taking
the
word
certain
out
of
that
last
clause
on
line
42,
but
you've
already
got
the
whole
group
on
on
pending
matters.
So
it
just
seems.
Like
number
four
is
saying
you
know:
I
asked
this
narrow
group
on
pending
matters
and
then
the
the
number
five
says
ask
the
whole
group
on
pending
matters.
So
it's
actually
yeah.
It
seems
like
it's.
J
J
F
I
really
don't
like
the
solution,
because
I
think
it
mixes
apples
and
oranges,
old,
four
or
four
that's
been
crossed
out
is
saying,
as
as
a
general
rule
all
right,
you
should
circulate
a
proposed
decision
among
the
other
appellate
people,
and
that
is
routinely
done
on
federal
courts
of
appeals,
if
not
federal
circuit
courts,
and
it's
good
practice
right
and
it
ought
to
be
done
in
in
the
agencies,
at
least
as
a
general
rule.
We
should
say
they
should
do
that
now.
F
The
separate
issue
right
and
the
separate
issue
is
number
five,
which
is
one
look
back.
That's
one
issue
of
five
and
the
other
one
is.
There
may
be
some
extraordinary
cases
that
you
might
want
to
do
more
than
just
circulated
among
the
other
appellate
adjudicators
and
in
those
cases
you
could
that
could
come
under
this,
but
so
there's
sort
of
three
different
ideas
here.
F
One
is
what
you
do
in
every
case,
which
is
to
send
it
among
the
other
appellate
adjudicators
to
what
you
do
when
you
go,
do
will
look
back
to
involve
other
people
and
then
three
what
you
do
in
certain
extreme
cases
and
I.
Certainly,
don't
want
to
have
every
case
go
to
the
public
to
determine
whether
or
not
it
should
be
presidential.
That's
just
that's
just
too
much
sorry.
B
K
So
that
was
going
to
be
exactly
my
point
so
with
that
repeating
that,
just
to
underscore
that
I
think
four
should
stay
the
way
it
is
which
is
now
when
you're
thinking
about
the
process.
If
you're
going
to
have
only
some
be
presidential,
you
might
want
to
consider
input
from
just
the
other
adjudicators.
Not
anyone
else
then,
especially
if
you're
an
agency
that
is
now
for
the
first
time
going
to
be
doing
decisions
about
existing,
so
I
I,
don't
think
you
need
appellate.
K
Adjudicator
is
not
involved
in
deciding
the
case,
because
it's
no
longer
the
case
I'm,
just
speaking
for
going
back
to
the
original
language,
now
consider
input
from
any
adjudicator
other
agency
that
have
whether
to
designate
again
take
out
pending
right
because
I'm
recommending
going
back
to
the
language
for
the
reasons
Bill
said
whether
to
designate
existing
appellate
decisions
as
presidential
okay,
that's
concept.
Two
then
maybe
let's
hear
actually
if
we
could
hear
from
the
Consultants
as
to
what
they
mean
by
certain
pending
matters.
K
D
D
Is
they
had
a
process
for
aljs
to
certify
questions,
to
an
appellate
body
to
make
a
personal
decision
out
of
they
also
have
processes
for
interlocutory
review
of
certain
decisions,
or
even
just
questions
within
a
case
that
allowed
for
the
public
body
to
come
in
quickly
and
kind
of
provide
an
answer
to
that
question.
They
also
some
had
opportunities
to
what
a
case
before
was
decided.
The
parties
themselves
be
able
to
say
we
think
you
should
publish
this
decision
like
it
shouldn't
be
presidential.
It
shouldn't
just
be
because
it's
a
recurring
issue.
D
The
agency
has
and
so
I
think.
That's
the
idea
of
like
the
first
one
is
pre-circulation.
The
second
one
is
help.
Have
people
help
identify
cases
that
are
already?
This
is
already
published,
whether
to
make
them
presidential
and
the
third
one
was
kind
of
more
the
interlocutory.
In
some
circumstances,
you
might
want
to
allow
for
the
public
for
aljs
for
agency
adjudicators
appellate
Educators
to
kind
of
jump
in
and
suggest
to
the
agency.
D
You
might
want
to
tackle
this
right
now,
because
we've
got
a
lot
of
other
cases
just
like
this,
so
they
are
kind
of
three
different
categories,
although
I
do
understand
why
four
and
five
are
the
way
they
are
now
like
I
understand
why
the
staff
did
that,
but
I
would
probably
break
them
out
into
three.
If
the
committee
thinks
that
third
one
is
is
worth
highlighting
in
the
in
the
recommendation.
K
B
K
K
B
F
Well,
I
I
I,
like
the
idea,
was
we've
broken
it
out,
but
I
don't
think
it's
quite
responsive
to
Chris
Walker's
Point
in
the
sense
that
it's
not
the
I
mean
it's
providing
a
system
by
which
aljs
As
I
understood
it
would
certify
questions
to
the
Appellate
body
to
make
a
decision
in
a
pending
matter,
and
as
it
is
now,
it's
not
agency
should
consider
soliciting
input.
It's
we.
D
I
Probably
also
Nadine,
if
I
may,
we
probably
also
want
to
look
back
at
the
recommendation
on
an
agency
of
pellet
systems
to
say
to
see
what
it
says
about
interlocutory
appeals
and
certification
of
questions
by
hearing
level,
adjudicators
I
think
there's
something
in
there
on
that.
I
do
know
that
there's
something
on
that
subject
in
the
acus
model,
adjudication
rules,
so
we
probably
ought
to
between
now
and
the
next
meeting
take
a
look
at
that.
B
B
C
F
B
K
I
just
didn't
say
by
the
way
that
on
seven
I
know,
there
was
no
comments,
but
I
just
want
to
say
how
positive
I
think
that
is
really
positive
on
eight
I'm,
not
sure
that
I
understand
why
I
only
consider
expressly
a
ruling.
It
just
seems
to
me
you
have
to
you
have
to
and
in
fact
I
think
that's
part
of
the
problem.
Sometimes
you
know
so
it
should
expressly
overrule.
The
decision
in
whole
learn
part
as
the
circumstances
dictate
and
explain
its
new
decision.
You
know
or
Jeff.
E
K
See
that
I
would
strongly
recommend
not
to
try
not
to
put
in
modify
in
this
sense.
Okay,
let's
we
may
want
to
talk
about
modifying,
but
I
think
the
key
thing
here
is
that
when
they
reject
or
disavow
the
holding
of
a
presidential
decision,
it
should
expressly
overrule
the
decision
in
whole
or
in
part,
as
the
circumstances
dictate
okay,
because
they
might
not
overrule
the
whole
thing.
K
K
I
think
if
they're
just
modifying
then
by
definition
they
are,
they
will
be
referring
to
that
presidential
decision
and
just
modifying
it
that
will
be
in
the
decision,
so
I'm
sort
of
less
concerned
about
telling
them
hey,
hey.
You
know
reference
that
previous
one
and
get
rid
of
it
if
you're,
just
modifying
I,
think
probably
but
or
maybe
not-
maybe
they're
modifying,
but
not
referencing,
the
old
precedent,
in
which
case
the
rules
should
be.
You
have
to
then
expressly
refer
to
the
precedent.
You're
modifying
this
is
all
just
about
notice
and
non-confusion.
F
Gonna
argue
strongly
about
putting
and
explain
why
it
is
overruling
the
decision.
I
mean
that's
the
requirement
that
the
courts
have
put
on
it.
If
you
just
say
we're
overruling
it.
Here's
our
new
decision,
all
right,
that's
going
to
be
arbitrary
and
capricious
that's
black
letter
law.
So
I
think
you
need
to
put
in
here
and
explain
why
it's
overwhelming
decision.
K
D
I,
don't
think
that
is
the
law,
but
I
mean
I,
mean
we're
thinking
fox
versus
FCC,
like
I,
don't
know,
I
mean
I,
I
kind
of
like
the
I.
I
idea
of
just
saying
and
provide
reasons
for
its
decision,
not
reasons
why
it's
over
really
this
decision
provide
I
mean
that's
at
least
how
I
read
fox
versus
FCC
I.
Think
explaining
why
this
decision
is
better
than
the
prior
ones,
I
think.
But
they
said
you.
E
A
F
Forget
that
in
after
after
Fox
we
had
you
know
drugs
from
the
DC
circuit,
say
I,
don't
know
what
the
hell
they
were
talking
about.
Of
course,
they
have
to
decide.
I
have
to
explain
why
it's
better
I
I,
think
yeah
I
I
agree.
You
can
read
scalia's
opinion
the
way
you
do
but
I
don't
think
that's
the
way.
It's
being
read.
I.
F
D
B
B
E
A
four
and
five
which
we
also,
which
are
also
not
reflected,
and
maybe
that
should
have
come
earlier,
but
one
and
two
of
them
have
to
do
with
sort
of
a
middle
ground
type
of
designation,
where
the
consultant
suggest
and
notice
that
some
agencies
do
this.
That
agencies
should
consider
whether,
even
if
they
do
not
designate
a
decision
as
presidential,
they
should
identify
it,
as
quote
adopted
or
quote
informative
or
the
like,
because
it
might
may
be
useful
to
hearing
level
or
call
it
adjudicators.
E
So
that's
one
thing
that
is
not
in
our
set
of
recommendations,
and
maybe
that
would
have
should
have
come
in
earlier
if
we're
going
to
put
it
in,
but
then
in
see
one
two
and
three.
The
three
recommendations
are
basically
that
agencies
should
consider
ways
to
streamline
this.
The
decision-making
process.
E
Second
agency,
that
for
agencies
that
do
have
a
time
consuming
process
for
designating
presidential
presidential
decisions.
They
should
consider
experimenting
with
these
alternative
designations
and
three.
They
should
consider
whether
adjudicators
who
decide
a
case
should
be
given
authority
to
designate
their
decision
as
presidential.
At
that
time
it
is
issued,
or
instead
such
authorities
should
be
given
to
or
shared
with
other
adjudicators
to
be
exercised
after
the
decision
is
issued.
So
those
are
three
thoughts
that
you
know,
I,
think
kind
of
fit
into
this
recommendation.
L
C1
certainly
I
think
here,
it's
agency
should
consider
ways
to
streamline
decision
making.
I
mean
that's
the
thrust
of
lots
of
Acres
recommendations,
and
at
least
for
my
reading.
It's
not
necessarily
recommending
anything
except
the
agency
should
think
about
how
to
make
their
processes
more
efficient,
to
the
extent
that
the
Consultants
can
identify
specific
ways
to
streamline
decision
making.
That
might
make
a
useful
recommendation,
but
simply
saying
agencies
should
streamline
their
processes,
doesn't
necessarily
recommend
anything.
E
D
On
the
first
one,
I
I
think
what
we
were
trying
to
get
at
and
and
maybe
it's
not
clear
and
our
our
part
is.
You
know
there
are
some
agencies
that
have
really
really
elaborate
processes
for
designated
decisions
of
presidential,
so
they
never
actually
designate
any
I.
Think
probably.
The
worst
example
is
the
USCIS
that
you
they
have
to
go
through
the
Attorney
General,
the
head
of
DHS,
the
head
of
their
office
olc
and
get
all
of
the
sign
off
in
order
to
to
design
any
decisions.
D
Not
the
only
ones
or
others
that
kind
of
have
more
complicated
processes.
I
mean
I,
agree
with
Jeremy.
If
it's
just
do
your
job
like
find
ways
to
do
it
more
quickly,
that's
maybe
not
the
best.
On
the
flip
side,
if
there's
an
aqueous
recommendation
that
actually
has
that.
Maybe
that
gives
agencies
that
have
problems
the
ability
to
kind
of
go
back
to
their
political
heads
and
say
we
might
want
to
rethink
this
I.
Think
it's
just
to
shoot.
A
recommendation
looks
like
we're
an
outlier.
D
On
the
adopted,
informative,
I
wish
we
even
had
more
quite
frankly,
because
I
think
some
things
that
agencies
do
on
their
websites
is
kind
of
identify.
Big
presidential
decisions
like
these
are
the
ones
that
really
really
matter
like
and
I,
think
that's
also
helpful
when
you're,
especially
in
agencies
that
have
issue
a
lot
of
presidential
decisions,
to
try
to
kind
of
try
to
highlight
ones
that
are
that
are
more
more
important,
but
that's
at
least
what
the
what
we
were
trying
to
get
out
of
the
report
with
that.
First,
one.
L
D
I
mean
the
reason
we
don't
name
names.
Is
we
just
don't
name
names
right
right,
I
mean
we
want.
We
don't
I
mean
the
report.
We
actually
do
a
little
bit.
I
mean
USCS
has
an
amazing
system,
it's
not
their
fault,
but
just
kind
of
flag
that
that
this
might
allow
them.
Agencies
like
that
to
have
a
little
bit
more
yeah,
at
least
have
a
talking
point
on
the
agenda
when
they
talk
about
how
to
improve
their
system.
L
C
F
F
L
I
mean
that
maybe
could
be
stated
more
explicitly,
but
the
idea
was
to
move
it
into
agencies
shouldn't
just
consider
whether
they're
going
to
do
a
or
b
they
should
do
a
or
they
should
do
B
and
they
should
explicitly
say
which
option
they're
going
with.
So
maybe
that
can
be
brought
further
up,
but
it
was
not
excluded
from
the
recommendations
but
play
somewhere
else.
E
So
my
my
last
point,
I,
know
I
know
we're
sort
of
interrupting
the
flow
of
going
through
all
the
rest
of
the
recommendations,
but
is
the
recommendation
on
page
47,
which
is
A4
of
the
report.
This
is
kind
of
a
broader
point
that
sometimes
agencies
might
be
able
to
address
issues
that
could
be
addressed
through
presidential
decisions.
They
might
be
better
addressed
through
guidance
documents,
especially
in
high
volume,
adjudication
programs.
L
So
our
thinking
was
that
it
would
be
preambular
you'd
have
a
recommendation
that
preamble
to
identify
there
are
lots
of
mechanisms
for
agencies
to
ensure
consistency
or
accuracy.
We've
recently
issued
a
recommendation
on
quality
assurance
appellate
review
by
itself
is
a
mechanism.
Rulemaking
is
obviously
a
mechanism,
and
so
there
would
be
a
paragraph
situating
presidential
decision
making
alongside
those
other
mechanisms
for
ensuring
consistency.
That
was
at
least
our
thinking.
B
B
Okay,
so
the
next
Matthew
yeah
we
can
get
two
availability
before
we
go
into
availability.
I
think
we
should
take
a
a
little
break,
I'm
a
firm
believer
in
Zoom
fatigue,
so
maybe
a
10
minute
break
and
we'll
reconvene,
and
hopefully
we
can
work
through
the
rest
and
the
time
we
have
left
I'll
see
you
in
10.,
yeah,
okay,
see
ask
and
it
happens,
look
at
that
like
magic,
okay,
so
we're
back
and
we
are
going
to
start
with
the
subsection
on
availability.
K
B
I'll
come
fast
to
to
kind
of
thinking
twice
about
that
phrase.
I,
you
know,
I'm
an
old
person
here
so
on
their
face
to
me
means
the
paper
right,
but
obviously
we
mean
anywhere.
It
appears
right.
So
it's
it's
on
the
paper
if
you're
still
doing
paper
it's
on
the
website,
if
that's,
hopefully
enough,
if
you
have
a
reporter,
you
have
your
own,
you
know
published
reporter
I
mean,
obviously
it
should
be.
B
B
K
I
hadn't
lowered
my
hand,
but
actually
have
it.
I
I
actually
think
that
I
agree
about
on
their
face
not
being
necessary,
but
I
actually
think
clearly
is
better
than
explicitly
because
that
sort
of
gets
to
the
point
of
hey
just
be
clear
about
this
and
I
actually
think
this
is
where
the
citation
idea
it
could
be
really
helpful,
because
if
it's
actually
a
different
citation
form
that
itself
will
help.
You
know
folks,
so
it
might
be
if
we
have
a
citation
recommendation,
it
might
end
up
coming
in
in
somewhere
around
here.
C
C
E
F
C
B
C
K
I
think
I
think
your
best
bet,
even
those
duplicative
to
maybe
just
keep
it
clean
as
a
new
one
and
repeat
the
agencies
that
choose
to
treat
I
mean
it's
odd
to
start
a
new
thing
with
such
agencies.
It
made
sense
when
it
was
all
one
thing
yeah
and
here,
because
it
is
a
good
point
to
separate
those,
because
the
third
sentence
really
does
apply
fit
with
the
second.
So
you
don't
need
to
say
agencies
for
agencies
that
choose
to
oh,
no,
no,
you
can
such
agencies
should
now.
B
F
Well,
I
I
liked,
what's
now
10
to
be
9B,
and
then
you
can
just
say
such
agencies,
because
it's
referring
to
the
agencies
in
Maine
nine,
but
the
last
sentence
of
what
is
now
10
is
all
agencies,
not
just
the
agencies
that
have
some
decisions
be
presidential.
That
is
all
agencies.
Even
the
agencies
that
have
everything
be
presidential
should
indicate
when
presidential
decisions
have
been
overruled
or
modified.
B
F
Maybe,
but
my
only
point
is
it's
not
part
of
nine
or
ten?
It's
this
whole
separate
idea,
because
it's
different
agencies
all
right,
the
first
nine
and
what
was
the
beginning
of
ten-
was
only
for
agencies
to
do
some
presidential
stuff.
But
what's
now
11
has
to
be
what
applies
to
all
agencies.
So
that's
why
it
needs
to
be
separate.
Now
we.
B
E
H
So
my
comment,
I,
think
sort
of
is
related
to
that
and
also
to
Nadine
your
original
statement
related
to
on
their
face,
and
when
you
mentioned
that
I
was
relieved
and
now
I.
Think
the
rest
of
the
conversation
has
taken
me
to
place
of
concern
in
terms
of
Maintenance
so
agreeing
with
the
on
their
face
piece.
You
know
it
seems
like
we're
now
saying
that
every
single,
like
the
decision
itself
on
the
pdf
version
or
whatever
there
may
be
that
it
says
somehow
we
have
indicated
this
is
a
precedent
decision.
H
So
my
concern
is,
if
that's
not,
if
an
agency
were
to
choose
say
not
to
just
like
put
a
stamp
at
the
top
or
even
if
they
do
how.
We
then
indicate
outside
of
the
digests
and
the
indexes
themselves
and
on
those
PDF
decisions
that
something
is
changed
because
for
historical
purposes,
we
would
obviously
want
to
be
maintaining
that
that
had
at
some
time
been
a
precedent
decision,
but
we
would
also
want
to
then
have
clearly
marked
that
it
has
been
overruled
or
modified.
E
F
Bill
yeah,
it's
you
can't
have
9,
A
and
B
the
way
it
is
now
because,
right
now
it
says
all
appellate
decisions
should
indicate
the
presidential
status
of
appellate
decisions
and
digests.
So
the
I
mean
there's
two
concepts
here:
one
the
decision
itself
should
clearly
State
their
presidential
status
and
that's
one
thing
then
there's
a
whole
nother
thing
says.
Such
agencies
should
also
indicate
the
presidential
status
of
appellate
decisions
in
digesting
index
of
cases
that
agencies
make
publicly
available.
F
Well,
I
I
I'd,
like
keeping
if
you're
having
I
like
I'd,
make
it
Nine
and
Nine
a
I
just
make
the
second
sentence,
nine
a
rather
than
maybe
you
don't
you're
not
allowed
to
have
just
A's
right,
I
know
in
which,
in
which
case,
just
make
it
a
second
sentence.
But
you
can't
have
it
this
way
because
it
doesn't
even
it
doesn't
make
sense.
It
doesn't
make
sense.
B
E
K
Mm-Hmm
yeah,
you
can
then
say
all
appellate
decisions
should
clearly
state
that
they're
presidential,
because
they're
not
right
but
I,
do
think
it's
well
I,
don't
know
that
it's
so
hard
to.
If
you're
really
going
to
distinguish
between
presidential
and
not
to
just
clearly
State
the
presidential
status.
You
know
an
agency
can
decide
the
way
you're
going
to
identify
the
that
presidential
status.
K
H
H
If
the
recommendation
indicates
that
we
should
identify
the
presidential
status,
thereby
implying
we
would
say
precedent,
non-precedent,
the
recommendation
would
be
difficult
for
some
agencies
perhaps
to
meet
and
maintain
marking
those
non-presidential
decisions.
That's
where,
where
I
was
coming
from,
whereas
if
we
recommend
indicating
precedent
and
an
agency
wishes
to
take
on
the
opposite,
also
marking
non-precedent
decisions,
they
could
do
that.
There's
nothing
against
the
recommendation
to
take
that
extra
step.
H
K
K
C
K
H
In
line
with
the
idea
of
having
marked
a
decision
non-precedent
and
having
to
somehow
figure
out
how
to
then
remark
and
Mark
over
like
this
I
think
works
especially
you're
right
with
the
language
of
indicating
instead
of
marking
or
anything
like
that,
but
there's
a
lot
of
variety
in
ways.
Agencies
could
accomplish
it.
So
I'm
comfortable
with
this
as
drafted.
H
B
M
K
J
Yeah
leaving
having
number
10
only
reference
digestion
indexes
is
concerning
to
me,
because
you
would
think
in
the
decision
that
they
were
when
they
were
overruling
when
they
should
also
do
that,
although
they
have
to
anyway,
but
I'm,
not
sure
that
I,
you
know,
I
I'm,
not
sure
that
I'm
not
sure
that
it's
it
it.
It
mandates
a
particular
form
of
indication.
The
first
sentence
anyway,
so
in
large.
The
theory
is
that
you,
it
means
you
have
to
put
it
on
the
first
page,
but
that
doesn't
say
that
so
I
don't
I.
E
B
B
H
There
are
certainly
ways
again
that
we're
working
on
now
of
better
marking
things
overruled
and
modified
in
our
digestion
indexes,
not
the
decisions
themselves.
I
would
very
much
be
interested
in
hearing
ways
that
we
could
maintain
the
original
decision
with
its
original
precedent,
Mark
some
you
know
in
an
archive
or,
however,
it
would
be,
while
also
then
maintaining
one
that
shows
it
has
been
overruled
or
modified,
so
as
not
to
alter
the
original
decision
and
the
Integrity
of
that
document.
H
H
E
H
B
F
I,
would
we
have
here
in
10A
should
do
something?
Perhaps
we
should
have
a
should
consider
doing
what
Lauren
is
suggesting?
You
know
maybe
possible
for
some
agencies
to
be
able
to
go
back
and
put
a
big
X
on
the
original
decision
that
was
overruled
and
it's
filed
in
some
way.
But
you
know
that's,
that's
that's
going
to
be
agency
specific,
to
say
the
least.
I
I'd
put
it
second
I'd
put
I'd
I'd,
have
the
I'd?
L
How
many
years
now
not
an
idea
specifically
but
I,
did
want
to
call
the
committee's
attention-
it's
not
quite
parallel,
but
it
might
provide
either
a
useful
model
or
something
else
to
consider.
Acus
obviously
recently
adopted
a
recommendation
last
year
on
the
public
availability
of
an
operative
guidance
in
a
sense
we're
talking
about
inoperative
presidential
decisions.
K
Yeah
number
one
again
considering
implementation
I,
don't
like
the
piece
of
saying
should
consider,
because
the
whole
thing
is
they're
considering.
Okay,
all
of
this
and
I
do
think
that
I
like
it
as
I'm
sort
of
like
Lauren
I,
can
do
either
the
sentence
that's
been
deleted,
although
I
think
I
have
a
preference
for
just
the
second
sentence.
This
is
about
the
availability.
Agencies.
Digest
and
index
should
clearly
indicate
when
presidential
decisions
have
been
overruled
or
modified
period.
I
mean
a
lot
of
agencies.
Don't
do
digests
and
indexes
I
mean
EOC.
E
K
K
On
the
email,
yeah
eoc's,
Federal
sector
decisions,
every
single
one
of
them
is
on
the
website,
so
if
you've
actually
overruled
the
decision
and
I
think
it
is
good
practice
to
say,
go
back
to
the
website
where
that
initial
decision
is
listed
and
put
that
little
weird
flag.
You
know
this
has
been
overruled
by
and
you
have
the
new
decision
and
the
link
to
it.
So
I
don't
think
this
is
overly
burdensome
and
I
do
think.
It's
good
policy,
foreign.
B
E
K
B
B
F
E
552
says
so:
it
says
if
a
final
order,
opinion
statement
of
policy,
interpretation
or
staff
manual
a
final,
a
final
order,
opinion
that
affects
a
member
of
the
public
may
be
relied
on
used
or
cited
as
precedent
by
an
agency
against
a
party
only
if
it
has
been
indexed
and
either
available
or
published,
as
provided
by
this
paragraph.
So
552
already
requires
I
I,
don't
know
how,
if
it's,
if
it's
being
followed
by
all
the
agencies,
I
think
I.
E
L
M
B
E
E
B
E
E
K
B
B
B
J
B
B
C
K
Yeah,
it's
not
completely
understood,
though
it's
sort
of
more
that
should
consider
doing
this,
which
again
is
a
resource
thing.
You
know-
and
you
know
second
sense
if
the
agency
does
engage
in
this
in
such
tracking
to
make
that
available
to
make
that
information
available,
but
I
just
want
to
say,
I
really
think
that's
a
resource
issue.
B
H
With
apologies,
I
was
circling.
Circling
back
just
as
a
note
for
the
comment
when
looking
at
the
Preamble
language
related
to
the
embassies,
it
it
doesn't
appear
unless
I'm
really
missing
something
that
the
index
in
552
is
actually
for
the
decisions
of
the
agency.
It
appears
that
that's
more
related
to
the
the
copies
of
records
and
I,
don't
think
that
it's
intended
to
include
agency
decisions.
I
could
be
very
wrong,
but
that's
I
think
how
we've
always
interpreted
it
anyway.
H
H
So
yeah
I
mean
this
like
I
said
this
is
the
note
for
the
comment.
I
mean
the
the
way
that
we
were
talking
about
the
summaries
and
pieces
of
presidential
decisions
being
organized
topically.
It
seems
to
me
that,
let's
see
we're
cited,
oh
I
see
what
you
mean,
because
if
it's
cited
as
president
agency.
H
E
E
K
B
B
I
think
the
last
sentence
was
struck
was
proposed
to
be
struck
because
it
does
not
make
a
recommendation.
So
it's
it's
something
that
might
be
typically
included
in
a
preamble,
but
I
see
your
point
about
trying
to
build
it
into
the
first
sentence:
to
make
it
clear
that
what
you
do
with
it
once
you
track
it.
B
C
H
Nope
nope
yeah
yeah
because
we're
saying
it
and
it's
not
clear,
and
if
we
did
mean
that
the
agencies
ever
ruled
themselves,
then
that's
different.
And
probably
we
should
put
the
ten
again.
But
it
seems
to
me,
like
I,
was
imagining
when
a
federal
court
overrules
one
of
our
appellate
body,
Bia
decisions
that
it
would
be
marked
such
on
our
website,
digest
and
indices,
and
that
that
seems.
We
would
obviously
be
somewhat
tracking
that
using
Westlaw
Alexis
Etc
information
from
our
litigators
and
that
that's
really
what
we're
trying
to
do
in
14..
B
K
Because
I
think
part
of
this
is
a
problem
because
we've
separated
it
out,
but
here's
all
the
shoulds
okay,
so
I
think
10
I
had
read
it
just
when
they,
when
the
agency
of
ruled
itself
right.
Okay,
that
had
all
been
just
as
Nadine
said,
but
I
think
now
that
you
made
this
point,
we
should
make
that
clear,
so
should
clearly
indicate
if
it
has
overruled.
It
has
overruled.
K
Say
the
agency
right
if
the
agency
has
ever
will
too
clear
if
the
agency
has
overruled
the
presidential
decision.
Yes
take
that
out
and
then
yeah
overruled
or
modified
a
presidential
decision.
Okay,
then
take
out
the
risk
and
then
we've
got
they
should
do
this.
Then
it's
and
then
they
should
update
the
manuals
and
then
they
should
consider
posting.
K
You
know
actually,
probably
12
and
13
should
be
flipped,
because
here
are
all
the
shoulds.
You
know
communicated
update
your
manuals
and
by
the
way,
no
one's
going
to
end
up
doing
that,
but
it
is
a
should
and
then
consider
posting
a
new
website.
The
brief
summaries
and
14
and
I
think
Adam
made
that
really
good
point.
That
Jackie
was
just
trying
to
do
wordsmithing,
but
it
actually
missed
this
piece.
K
B
J
When
I
chime
in
once,
it
could
also
be
modified
by
Statute,
you
know
or
superseded
by
an
agency
regulation,
and
so
there's
much
more.
The
tracking
involves
much
more
than
just
federal
court
remand
and
then
on
line
84
here,
the
the
agency,
the
the
num,
the
new
number
10
I,
guess
it
is
takes
care
of
the
part
about
agency
in
another
case.
J
So
if
we're
talking
only
about
external,
then
the
subsequent,
including
whether
the
case
was
remanded
by
a
federal
court
or
remanded
or
overturned
by
a
federal
court
right,
remanded,
overturned
or
Modified
by
a
federal
court
or
superseded
by
Statute
or
other
agency
action
such
as
a
rule.
You
know
something
like
that.
J
I
I
E
K
K
B
J
C
J
Just
I
do
want
to
point
out
that
I
I
made
the
edit
as
minimal
as
possible,
but
I'm
not
sure
that
it's
typical
for
us
to
have
that
to
enables
language
in
a
recommendation.
I
mean
you
know
that
still
is
somewhat
Preamble
language,
the
all
the
other
ones.
It's
pretty,
it's
implicit!
Why
we're
do
why
we're
recommending
it
I,
don't
I,
don't
I
have
nothing
against
it,
but
it
does
stick
out
a
little
bit
as.
J
K
I
Yes
right
say
something
on
the
Preamble:
it
wouldn't
be
customary
I
mean
we
we
need
to
just
this
needs
to
be
discussed
with
the
staff,
but
it
there's
I've
heard
some
discussion
about
this
is
going
to
be
addressed
into
Preamble
and
that
the
Preamble
The
Preamble
is
not
going
to
have
that
level
of
granularity
on
some
of
these
points.
I
just
just
want
to
sort
of
note
that
it's
just
that's
not
how
ink
is
draft
stuff
normally.
K
Well,
I'd
like
to
suggest
that
we
really
think
about
that
in
terms
of
what
might
make
sense
to
put
in
a
preamble,
because
people
aren't
going
to
be
reading
the
report
necessarily
and
I
think
I
mean
this
might
be
a
bigger
conversation,
but
I
think
this
discussion
indicates
why.
Maybe
we
do
want
some
of
this
stuff
in
the
Preamble
I,
I'm
I.
Think
it's
a
good
point.
You've
raised,
but
I
think
it's
something
to
think
about.
I
There's
also
the
the
sort
of
counterbility
consideration
which
you
sometimes
hear
from
acus
members
and
a
few
members
of
the
council
I've
heard
this
before-
is
that
if
some
things
really
needs
to
be
called
to
the
attention
of
an
aging
agency
official,
it
should
be
in
the
recommendation
just
a
counterfeeling
consideration.
But
this
is
something
for
really
the
staff
and
to
discuss
I.
Think
in
terms
of
the
approach.
I
E
I
F
I
just
want
to
say:
I,
don't
I,
don't
know
why
you
need
to
say
anything
in
the
Preamble
about
about
this
particular
provision,
because
it's
pretty
obvious
you
can
say
you're
saying
to
make
it
available
to
agency
officials
in
the
public.
That's
a
that
makes
clear
why
you're
doing
it,
I
don't
I,
don't
think
you
need
anything
in
the
Preamble
to
justify
that.
L
That
you,
what
I
was
going
to
say
I
think
we
can
have
a
simple
statement:
here's
what
foia
requires
here's
other
options
to
make
things.
The
important
thing
is
to
make
these
things
not
only
available
available
in
an
accessible
way,
and
the
recommendation
goes
into
it
and
I
think
the
prefer
tourist
language
that
was
just
struck
could,
as
Bill
said,
apply
to
any
of
these
here,
not
just
14.,
so
that
should
be
easy
to
handle.
B
B
E
B
F
F
B
A
Back
up,
Jack
also
noted
that,
and
and
so
we
and
he
suggested,
we
delete
G,
or
he
might
have
just
pointed
it
out
to
me
and
I
suggested.
We
delete
G
to
resolve
that
issue
that
that
that
came
about
when
we
were
trying
to
add
in
overruling
sort
of
toward
the
end
of
drafting
and
I
put
it
in
a
couple
different
places
and
then
didn't
forgot.
F
C
E
K
Yeah
but
I
think
this
is
where
I
was
thinking,
repetition
might
be.
Okay,
can
you
just
scroll
up
to
the
top
here?
I
mean
you
may
not
need
it,
but
as
part
of
their
rules
of
practice,
I
I,
we
didn't
say
up
there
that
it
should
be
in
their
rules
of
practice.
We
were
just
saying:
hey,
they
can
cite
it
and
you
should
think
about
it.
I
think
it's
a
I
think
that
repetition
may
be
worth
it
here.
K
Okay,
now
here's
your
checklist
also
put
in
that
piece
that
you've
figured
out
about
how
you're
going
to
consider
them.
So
I
understand
it's
somewhat
repetitive,
but
I
don't
think
completely,
because
this
is
about
what
should
actually
be
in
the
rule,
I
mean,
if
you
scroll
up
to
where
we
had
it
before
I,
think
it's
pretty
clear.
K
K
K
H
C
B
B
B
F
I
disagree,
I
mean
I'm
materially
amending
I,
don't
know
what
you
know:
I
I
I,
just
if
you
J,
if
you
just
amended,
you
know
how
material
does
it
have
to
be
to
go
through
notice
and
comment.
I
mean
notice
and
comment
just
makes
so
much
more
time
and
effort
to
something
I.
Don't
I,
don't
see
why
it's.