Administrative Law Judges.
The title “administrative law judge” replaced that of “hearing examiner” in 1972. Whatever the name, the main concerns with ALJs have always been impartiality, competence, and efficiency. Prior to enactment of the APA in 1946, hearing examiners were subject to discipline by the agencies in which they worked. They might combine investigatory, prosecutorial, and judicial functions. The APA requires a separation of functions and insulates ALJs from supervision by agency investigators and prosecutors. It also prohibits communication outside the hearing on matters “relevant to the merits of the proceeding” with individuals who are not employed by the agency (sec. 557[d]). More generally, such one-sided communications (called “ex parte”), whether with outsiders or agency personnel, are disparaged because they give an appearance of unfairness. Although discipline is adjudicated by the MSPB, the ALJs are still employed by the individual agencies. The vast majority of the federal government’s 1,400 or so ALJs are in the SSA, though significant numbers also work for the Department of Labor and NLRB. Federal ALJs perform the following functions: 1. “Administer oaths and affirmations” 2. “Issue subpoenas” 3. “Rule on offers of proof and receive relevant evidence”4. Handle depositions 5. Manage the hearings 6. Hold conferences, which the parties are required to attend, for consideration of the settlement or simplification of cases 7. Encourage the parties to engage in alternative means of resolving the case (discussed below) 8. “Dispose of procedural requests” 9. Make initial or recommended decisions 10. Take other actions consistent with APA procedures (APA sec. 556[c]; see Lubbers 1994, 293–294) This list makes it clear that ALJ performance is a major component of administrative adjudicatory systems. The problem of ALJ impartiality is complicated. Despite their independence from agency hierarchies, ALJs are part of the organizations in which they work. They are likely to share many organizational goals and values. Their responses to political and media criticisms of their agencies may be identical to those of other employees. Association with an agency, especially over a long period, is likely to have an impact on their worldviews and judgments. Even if this were not the case, the whole arrangement of allowing an agency to employ a judge who rules on its own enforcement efforts creates an appearance of bias. The FCC has openly recognized this by physically separating its ALJs from other agency personnel (W. Fox 2000, 246). Another approach to maintaining impartiality is to place ALJs in a special corps to be assigned on a rotational basis to the various agencies by a central agency, such as the Office of Personnel Management or the MSPB. Several states, including Florida and New Jersey,have used such a system, with apparent success (W. Fox 2000, 245). The idea has been discussed at the federal level for years but never adopted. The flip side concern is that federal adjudication is too specialized and complex to make rotation practicable (Lubbers 1994). Administrative law is tolerant of the appearance of bias in another context as well. Prehearing bias does not automatically disqualify agency adjudicators, including ALJs, from participating in adjudicatory decisionmaking. If the bias involves legislative facts (i.e., general information relevant to policy matters), adjudicators are excluded only if they have an “unalterably” or “irrevocably closed” mind on the matter under consideration ( Housing Study Group v. Kemp 1990, 332; FTC v. Cement Institute 1948, 701; Warren 2011, 266–269). The rationale for this standard is that FTC, FCC, and other commissioners advocate and promote policies as part of their jobs, often indicating a preference for enforcement in one area or another. If such statements precluded them from participating in adjudication, they would essentially have to give up one function or the other. Either way, they would be less effective in implementing their agencies’ missions. Moreover, in drafting the APA, Congress clearly gave broad adjudicatory authority to boards, commissions, and agency heads. By contrast, if the prehearing bias involves adjudicative facts (matters pertaining to the parties to the case), it is highly likely that the adjudication will be unfair, and the ALJ or other decisionmaker should be disqualified. The Cinderella court emphasized that chairman Dixon’s conclusive public statement of adjudicative facts was particularly offensive. Essentially he had prejudged Cinderella’s lack of virtue. Any adjudication with his participation would be poisoned. Even though Dixon’s vote was not necessary for a majority of the commissioners to find Cinderella shady, “Litigants are entitled to an impartial tribunal whether it consists of one man or twenty and there is no way which we know ofwhereby the influence of one upon the others can be quantitatively measured” ( Cinderella Career and Finishing Schools, Inc. v. FTC 1970, 592). Personal bias, which sometimes manifests itself during hearings, can also lead to disqualification. ALJs and other adjudicators are, after all, human beings with a variety of personal preferences and prejudices. Personal bias may be displayed in open derogatory statements about a participant in the adjudication. At other times, it is derived from an adjudicator’s overall record of favoring one set of interests over another (e.g., management over labor). An exception to disqualification for any of these biases may be made under the rule of necessity . This occurs when enforcement would be impossible because there are no impartial adjudicators who can hear the case. The point is that from a public policy perspective, biased enforcement is better than none at all, and it can be subsequently checked by judicial review. ALJs’ competence and efficiency are also of concern, though perhaps more so to the agencies than to private parties. Federal ALJs are not subject to performance appraisals, but they can be disciplined or fired for good cause . Consequently, their performance can be evaluated, but only within limits that do not unduly compromise their impartiality. This was illustrated during the 1980s when the SSA embarked on controversial initiatives to encourage better and quicker ALJ decisionmaking. One effort dealt with competence by tracking the rate at which individual ALJs ruled in favor of disability claimants (so-called allowance rates). Those with the highest rates had all their decisions reviewed by the SSA Appeals Counsel, presumably on the assumption that many were incorrect. The SSA also developed, but did not implement, a comprehensive plan to counsel ALJs with the highest allowance rates. Additionally, it set allowance-rate goals for the ALJs in an attempt to rein in the disability budget.These practices were challenged in court but changed before a definitive decision was handed down (Lubbers 1994, 295–296). The SSA also created monthly production goals for the ALJs in order to increase their efficiency. The goals established the minimum number of dispositions expected. The ALJs charged that the goals infringed on their independent decisionmaking. However, the courts disagreed and found no violation of the APA (Lubbers 1994, 296). Further, the SSA tried to fire several ALJs for low productivity. It was successful in getting the MSPB to agree that this constituted good cause, though it was unable to carry the heavy burden of persuasion required. In the MSPB’s view, the productivity rate by itself was an inadequate indicator of poor performance because cases are not “fungible.” Some are more difficult than others and take more time to resolve. Perhaps the SSA’s greatest victory was promoting agreement that guidelines could feasibly be used to maintain or improve the quality and efficiency of ALJ decisionmaking (Lubbers 1994, 296–297).
Rosenbloom, D.H. (2014). Administrative Law for Public Managers (2nd ed.). Boulder, CO: Westview Press.
Question:
The commissioners and board members of multiheaded federal agencies are political appointees. In your view, should they be authorized to overrule administrative law judges when cases are appealed? Why or why not?
