Administrative Law Judges-Giving Process Its Due

Article excerpt

When federal agencies like the Social Security Administration (SSA), National Labor Relations Board, Centers for Medicare and Medicaid Services, and others decide cases in their areas of expertise, the public wants to know that the decisions are fair and impartial. No one wants to challenge a denial of a Medicare or Social Security claim or bring an unfair labor practice or other type of case to an administrative agency for a decision if the decision maker is biased or a tool of some political agenda. To ensure that this does not happen, the law has provided for the last half-century that many of these agency decisions are to be made by independent, impartial government employees known as administrative law judges (ALJs).

ALJs are adjudicators who support their agencies by holding hearings, gathering and ruling on evidence, hearing and evaluating witnesses, issuing subpoenas, regulating the course of the legal proceedings, and preparing an initial or recommended decision for final agency action in an individual case. To ensure their impartiality in decision making, ALJs are statutorily assured of decisional independence within their agencies. Their pay is set by statute, their performance is not reviewed by agency management, they are not easily removed from office, and they are selected by a process that is set apart from the usual hiring channels of the federal bureaucracy. This hiring process is designed to favor legal generalists over agency insiders in the choice of new ALJs for agency adjudicative positions and offers military veterans a preference over nonveterans.

Background

Today, about 1,400 ALJs serve in some thirty agencies of the federal government. Approximately 86 percent of them serve in SSA branch offices all over the country, deciding disability benefits cases. A growing number also serve in the Department of Health and Human Services (HHS), deciding Medicare claims from four offices in Ohio, Florida, California, and Virginia.

At SSA, 1,100 ALJs heard more than 500,000 disability cases in 2006. In the same year, at the Office of Medicare Hearings and Appeals, 52 ALJs each processed an average of 1,800 claims. The 48 ALJs of the National Labor Relations Board issued 239 decisions and conducted 225 hearings. At the U.S. International Trade Commission (ITC), where I once worked, a small cadre of 4 ALJs considered a record-breaking 70 active "unfair import" cases in 2006. Although that number seems small compared with the caseloads of ALJs at other agencies, most ITC unfair import cases involve complex patented technology worth millions of dollars and are fought in long administrative hearings by numerous hotly competitive, litigious corporate opponents from the United States and foreign countries.

Agency caseloads vary with trends in government priorities. While the dockets of entitlements agencies like Social Security and Medicare now grow exponentially and require ever more ALJs and support staff members, those of economic regulatory agencies have dropped off, leading to attrition in the ranks of their ALJs. Several federal agencies, such as the Department of Education, Food and Drug Administration, and Federal Maritime Commission, make do today with only one ALJ apiece. Most other agencies in the economic regulatory sphere employ two to fifteen ALJs to process their administrative caseloads.

Although federal ALJs were established by the Administrative Procedure Act in 1947 for the purpose of reforming the way in which cases were heard and decided by what were then called "hearing examiners," ALJs have not provided the sole means by which the government decides administrative cases. There are thousands of other types of agency adjudicators, including "immigration judges" at the Department of Justice;" hearing officers" at the Department of Agriculture's National Appeals Division; "administrative judges" on various agency Boards of Contract Appeals, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission; "administrative patent judges" and "administrative trademark judges" at the US. …