The Administrative Law Judiciary: Change,Challenge,and Choices

Abstract

Over the past 40 years, and concomitant with the enormous expansion of governmental function and regulatory reach, an administrative law judiciary has emerged to assist government agencies with the fact-finding and individual case application needs of their regulatory mission. The legislation, case law, and national conceptions of judicial function that shaped the evolution have worked to render that adjudicative corps less an instrument and aid for executive rulemaking and discretionary exercise and more a court-like forum for final determination of rights and obligations in disputed cases of benefit entitlement, regulatory observance, and legal compliance. Fortunately, the realities of administrative law judge (ALJ) functions have moved in this direction. The vast majority of ALJs, at least at the federal level, are now engaged in dealing with an explosion of benefit and enforcement cases well suited to trial-type resolution of disputes in which government is a contending party. The development, however, brings into question the status of ALJs, almost unique to the United States, as agency employees and as surrogates whose decisions are “correctable” at agency level rather than the final determinations of a “trial judiciary.” Accordingly, it appears that a long list of proposals are ripe for evaluation and implementation.

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References

1. Kenneth C. Davis , Treatise on Administrative Law, vol. 3 (St. Paul, MN: West, 1980), p. 313.

2. See Administrative Conference of the United States , Federal Administrative Law Judge Hearings (Washington, DC: Government Printing Office, 1981), ch. 1.

3. For one valuable exception, see Frederick Davis , “Judicialization of Administrative Law: The Trial Type Hearing and the Changing Status of the Hearing Officer,” Duke Law Journal, 1977:389 (May 1977) (hereafter cited as“Judicialization of Administrative Law.”)

Jeffrey S. Lubbers , “Federal Administrative Law Judges: A Focus on our Invisible Judiciary,” Administrative Law Review, 33:109, 110 (Winter 1981).

5. Administrative Office of United States Courts , Annual Report of the Director, 1981 (Washington, DC: Government Printing Office, 1981), tables 13 and 42 (about 210,000 civil and criminal filings in 1981 (hereafter cited as “1981 U.S. Courts Report”).

6. Under the federal government's general schedule of “legal” positions, the GS-900 series, there are several position classifications beyond the Administrative Law Judge series (GS-935) which involve non-APA hearing officer duties.

7. D. L. Skoler and C. Weixel , “Social Security Adjudication in Five Nations: International Perspectives and Comparisons,” Administrative Law Review, 33:269 (Spring 1981).

8. Detailed eligibility requirements are set forth in Office of Personnel Management, Announcement No. 318: Administrative Law Judge (Oct. 1979), pp. 4-10, pursuant to the regulatory authority conferred by 5 U.S. Code, section 1305, and 5 Code of Federal Regulations, section 930.203.

Mans , “Selecting the Hidden Judiciary,” Judicature, 63:60, 72-73 (Aug. 1979).

10.

Malcolm Rich , “Adapting the Central Panel System: A Study of Seven States,” Judicature, 65:246 (Nov. 1981).

11.

11. 5 U.S. Code, sections 556 and 557. In practice, the vast majority of ALJ initial or recommended decisions actually become the final agency decision.

12.

12. 5 U.S. Code, section 557(c).

13.

13. 5 U.S. Code, sections 554(d), 3105, 5372, and 7521.

14.

Administrative Conference of the U.S. , Federal Administrative Law Judge Hearings, pp. 13-16.

15.

15. F. Davis , “Judicialization of Administrative Law,” p. 400. The author cites the Florida APA as forward-looking legislation which itself undertakes to define when hearings, formal or informal, are required without reference to other statutes.

16.

R. Marquardt and E. M. Wheat , “The Developing Concept of an Administrative Court,” Administrative Law Review, 33:301, 303 (Summer 1981) (hereafter cited as “Developing Concept”).

17.

17. Jeffrey S. Lubbers , “A Unified Corps of ALJs: Proposal to Test the Idea at the Federal Level,” Judicature, 65:266, 268 (Nov. 1981).

18.

for the sharp increase in civil penalty impositions by regulatory agencies and the opportunity to contest these through APA trial-type hearings, see Colin S. Diver , “The Assessment and Mitigation of Civil Money Penalties by Federal Administrative Agencies,” Columbia Law Review, 79:1436 (Dec. 1979).

19.

John J. McQuade , “The Central Panel Approach to Administrative Adjudication: The Massachusetts Division of Hearing Officers,” The Advocate (Fall 1978), p. 14.

20.

20. Uniform Laws Annotated, 9c:174-185 (1946 Act) and 14:357-586 (1961 revision).

21.

21. Model State Administrative Procedures Act, section 4-301 (1981).

22.

22. Levinson , “Central Panel System,” p. 239. The “final decision” jurisdiction of the Maine Administrative Court and the Missouri Administrative Hearing Commission is largely limited to licensee discipline cases.

23.

23. For a brief but good summary of independent ALJ corps and administrative court proposals, see Marquardt and Wheat , “Developing Concept,” pp. 305-310.

24.

24. The Veterans Administration operates the federal government's second largest disability adjudication program, dealing with more than 60,000 appeals per year through non-APA adjudicative panels consisting of lawyers and physicians and without right of judicial review. The Railroad Retirement Board employs a corps of non-APA hearing referees to adjudicate the appeals (mostly disability) which it must annually handle, with further appellate recourse to the Board itself and then to the U.S. Court of Appeals.

25.

25. K. Davis , Administrative Law Treatise, 3:321.

26.

Paul R. Verkuil , “The Emerging Concept of Administrative Procedure,” Columbia Law Review, 78:258, 320-328 (Mar. 1978) (hereafter cited as “Emerging Concept”).

27.

27. Commission on Law and the Economy , Federal Regulation: Roads to Reform (1979), pp. 92-93.

28.

28. Bernard G. Segal , “The Administrative Law Judge: Thirty Years of Progress and the Road Ahead,” American Bar Association Journal, 62: 1425 (Nov. 1976).

29.

29. 1981 U.S. Courts Report, pp. 27-28.

30.

30. See Verkuil , “Emerging Concept,” p. 321 (more finality for ALJ and appeal board determinations).

31.

31. F. Davis , “Judicialization of Administrative Law,” 2:406-409.