November 2005, Volume 91, Issue 7
Administrative Reconsideration
by Daniel Bress
91 Va. L. Rev. 1737 (2005)
View PDF 
The United States Code and Code of Federal Regulations are replete with detailed provisions granting agencies engaged in adjudication the power to reopen their own final judgments. The question addressed in this paper is whether federal agencies can and should have the power to reconsider their final decisions in the absence of an express grant of authority in a statute or regulation. Federal courts have generally said that federal agencies do possess the “inherent” power to reconsider in most circumstances. Part I of this paper provides the first comprehensive overview of the doctrine of administrative reconsideration and shows where federal courts are more or less likely to find that the presumption of inherent power holds. Part I concludes with a brief overview of state law in this area, with particular focus on the division among state courts over whether state agencies possess an inherent power to reconsider. Part II considers whether the inherent power to reconsider is justified for federal agencies and presents three arguments to show that it is not. First, and most importantly, while various Supreme Court precedents have been marshaled in support of an inherent power to reconsider, a more thorough reading of these cases indicates that they may in fact foreclose it. Second, Congress and agencies have pervasively regulated in the area of administrative reconsideration to such an extent that an inherent power to reconsider should be heavily disfavored. Third, an inherent power to reconsider is normatively unattractive because it fosters considerable procedural uncertainty. The paper concludes by setting out a more appropriate yet modest rule: Federal administrative agencies should only have the power to reconsider adjudications when that power has been expressly granted by Congress, or when an agency has promulgated a valid reconsideration provision pursuant to its rulemaking processes.
Click on an icon below to access the full text of this article*
 Westlaw |  LexisNexis |  HeinOnline |  SSRN |  Bloomberg
* These are third-party content providers; they may require a separate subscription or charge a fee for access.
|
|