By Jason Rantanen
Yesterday, the President issued two significant executive orders relating to agency practice: the “Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents” and the “Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.”
The order on guidance documents requires agencies to provide their guidance documents on easily searchable websites along with disclaimers about their legal effect. In addition, for new guidance documents that are “significant,” the order requires public notice and comment of at least 30 days and approval by “the agency head or by an agency component head appointed by the President, before issuance.” “Significant guidance document” is defined as including the usual >$100 million effect on the economy, but also encompasses guidance documents that raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles of [EO] 12866.”
The order on adjudications seeks to require greater public notice of both agency jurisdiction and the relevant legals standards applied by agencies in enforcement actions and adjudications. Provisions include the requirement that “When an agency takes an administrative enforcement action, engages in adjudication, or otherwise makes a determination that has legal consequence for a person, it may apply only standards of conduct that have been publicly stated in a manner that would not cause unfair surprise.” The order also limits the use of guidance documents by the agency:
Sec. 3. Proper Reliance on Guidance Documents. Guidance documents may not be used to impose new standards of conduct on persons outside the executive branch except as expressly authorized by law or as expressly incorporated into a contract. When an agency takes an administrative enforcement action, engages in adjudication, or otherwise makes a determination that has legal consequence for a person, it must establish a violation of law by applying statutes or regulations. The agency may not treat noncompliance with a standard of conduct announced solely in a guidance document as itself a violation of applicable statutes or regulations. When an agency uses a guidance document to state the legal applicability of a statute or regulation, that document can do no more, with respect to prohibition of conduct, than articulate the agency’s understanding of how a statute or regulation applies to particular circumstances. An agency may cite a guidance document to convey that understanding in an administrative enforcement action or adjudication only if it has notified the public of such document in advance through publication, either in full or by citation if publicly available, in the Federal Register (or on the portion of the agency’s website that contains a single, searchable, indexed database of all guidance documents in effect).
The orders include several limitations on their scope and effect, but overall they’re very wide-reaching. I’m especially interested in the ways in which they might affect the USPTO, but really need to spend some time thinking through the implications. For example, on the one hand, the MPEP is specifically directed to examiners, not patent applicants. On the other hand, it’s often quoted directly by examiners in office action responses and relied on fairly heavily by applicants. Lots to unpack here.
There are some great posts over at the Notice and Comment blog about the two orders. Thanks to Chris Walker for pointing these out.
- Aaron Nielson summarizing the two orders: http://yalejreg.com/nc/breaking-news-two-major-executive-orders/
- Nicholas R. Parrillo’s initial reactions on the guidance order: http://yalejreg.com/nc/the-new-executive-orders-on-guidance-initial-reactions-by-nicholas-r-parrillo/
- Bernard Bell’s initial reactions on the effects on inspections: http://yalejreg.com/nc/the-october-9-executive-orders-and-government-acquisition-of-information/