Hageman Introduces Expedited Appeals Review Act Allowing Challengers of an Agency Decision an Expedited Verdict by a Neutral Arbiter

Washington, D.C. – Today, Congresswoman Hageman introduced the Expedited Appeals Review Act (EARA), which provides entities before the Department of the Interior’s Board of Land Appeals (IBLA) the opportunity to file for an expedited review so they can quickly go to court in front of a neutral arbiter.

Under current law, challengers of an agency decision within the Department of Interior (DOI), must appeal to the IBLA, an administrative court that is also housed within the DOI.  The use of administrative courts pose a variety of constitutional issues, including in relation to the separation of powers, as the agencies who adopt the regulations seek to enforce them through their in-house court system, such as the IBLA.  Over 90% of these cases are typically resolved in the agency’s favor, while often taking years for the case to be decided.

“We are a government ‘of, by and for the people’ and every agency and their employees should be accountable to the people. It is no wonder that the current construct of in-house courts ruling on cases where the agency’s policies are in question tend to fall on the side of the government almost exclusively.

“In my 3 decades of practicing law I witnessed cases argued before agency-appointed judges on numerous occasions and then waited as the IBLA delayed issuing a decision. Not only does this leave the non-agency party in limbo as to the outcome of their case, but also costs them significantly in potential fees and penalties waiting for their cases to be considered.

“This broken system needs to be fixed so that American citizens and companies have a fighting chance against the DOI’s ongoing agenda against our legacy industries.  My bill gives these parties the opportunity to expedite the process and pursue an impartial route in those circumstances where the IBLA is refusing to timely address the matter in front of it.  

The Expedited Appeals Review Act ensures that if IBLA fails to make a decision within 18 months of the appeal being filed, the applicant can demand an expedited review. The IBLA then has 6 months to resolve the case. Failure to do so allows for that non-agency party to proceed to district court where they will be granted the opportunity to conduct discovery and develop the administrative record.

Background:

• The IBLA is a regulatorily constructed, pseudo-judicial, administrative court within the Department of the Interior. It oversees appeals of agency actions, including those from the Bureau of Land Management, Bureau of Ocean Energy Management, Bureau of Safety and Environmental Enforcement, Office of Natural Resources Revenue, and Office of Surface Mining Reclamation and Enforcement.

• Currently, there are seven administrative judges, four of which were appointed in the last year. · There are over 650 appeals sitting before the IBLA, many of which have been pending for over five years.

• During an appeal, the agency establishes the administrative record. Frequently, the record is heavily redacted and purposefully excludes documents that favor the appellant. In fact, IBLA judges have explicitly found that the Department compiled administrative records in bad faith and in a biased manner.

• In FY ’23, IBLA decided only 36 cases on the merits, 34 (94%) of which upheld the Department’s decision. Once a case is finally decided, the administrative record is set and the agency’s decision receives deference, only being overturned if it is found to be arbitrary and capricious. And even if a party wins in District Court, the Court will remand the decision to the agency, restarting the entire process.

• As a member of the House Judiciary Committee, Rep. Hageman spearheaded an oversight hearing titled “Reining in the Administrative State: Agency Adjudication and Other Agency Action” which exposed the unconstitutionality of administrative courts, including their denial of due process and jury trial rights as well as infringement on the separation of powers

• Prior to taking office as Wyoming’s lone congressional member, Harriet Hageman was an attorney defending individuals and entities against government agencies, winning cases opposing several of the agencies that are within the Department of Interior.

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Contact: Chris Berardi, Sr. Advisor/Communications Director