Administrative law judge
An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates the claims or disputes (in other words, ALJ-controlled proceedings are bench trials) involving administrative law.
ALJs can administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations. And depending upon the agency's jurisdiction, proceedings may have complex multi-party adjudication, as is the case with the Federal Energy Regulatory Commission, or simplified and less formal procedures, as is the case with the Social Security Administration.
- 1 Federal appointment and tenure
- 2 Authority and review of federal ALJs
- 3 Central panels
- 4 State ALJs
- 5 Professional organizations
- 6 International comparisons
- 7 List of U.S. federal agencies with ALJs
- 8 List of state departments and agencies with ALJs
- 9 See also
- 10 References
- 11 External links
Federal appointment and tenure
The Administrative Procedure Act of 1946 (APA) requires that federal ALJs be appointed based on scores achieved in a comprehensive testing procedure, including a four-hour written examination and an oral examination before a panel that includes an Office of Personnel Management representative, an American Bar Association representative, and a sitting federal ALJ. Federal ALJs are the only merit-based judicial corps in the United States.
In American administrative law, ALJs are Article II judges under the U.S. Constitution. As such, they do not exercise full judicial power, essentially, the power over life, liberty, and property. However, Article I judges and courts are not constrained to rendering opinions for only a "case or controversy" before them, and may render advisory opinions on a purely prospective basis, such as, e.g., Congressional reference cases assigned to the Court of Federal Claims. Agency ALJs do not have the power to offer such advisory opinions, as it would be in violation of the power afforded them under the Administrative Procedures Act, 5 U.S.C. §557. Unlike the agency, ALJs are not policy or rule makers.
ALJs are generally considered to be part of the executive branch, not the judicial branch, but the APA is designed to guarantee the decisional independence of ALJs. They have absolute immunity from liability for their judicial acts and are triers of fact "insulated from political influence". Federal administrative law judges are not responsible to, or subject to, the supervision or direction of employees or agents of the federal agency engaged in the performance of investigative or prosecution functions for the agency. Ex parte communications are prohibited. ALJs are exempt from performance ratings, evaluation, and bonuses. 5 CFR 930.206. Agency officials may not interfere with their decision making, and administrative law judges may be discharged only for good cause based upon a complaint filed by the agency with the Merit Systems Protection Board established and determined after an APA hearing on the record before an MSPB ALJ. Only ALJs receive these statutory protections; "hearing officers" or "trial examiners", with delegated hearing functions, are not similarly protected by the APA.
In Lucia v. SEC, decided in June 2018, the Supreme Court held that ALJs are Inferior Officers within the meaning of the Appointments Clause of the United States Constitution. This means that they must be appointed by the president (alone) or by head of department (not required to be confirmed by the Senate), but in practice, because courts in Franklin v. Mass., 505 U.S. 788 (1992), held that the U.S. President is not an agency under the Administrative Procedure Act, all ALJs must be appointed by heads of the agencies.
ALJs usually hire Attorney Advisors, who serve a role similar to judicial law clerks of Article III judges. For example, Attorney Advisors assist the ALJs with research, writing, drafting of opinions and orders, and assisting with the administration of hearings and other trial-like adjudications. Furthermore, Attorney Advisors usually have practiced as lawyers in the particular field which the ALJ possesses expertise in.
Authority and review of federal ALJs
The United States Supreme Court has recognized that the role of a federal administrative law judge is "functionally comparable" to that of an Article III judge. An ALJ's powers are often, if not generally, comparable to those of a trial judge: The ALJ may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. ALJs are limited as they have no power to sanction unless a statute provides such a power. Instead, the ALJ may refer a matter to an Article III Court to seek enforcement or sanctions. The process of agency adjudication is currently structured so as to assure that ALJs exercise independent judgment on the evidence before them, free from pressures by the parties or other officials within the agency.
The procedure for reviewing an ALJ's decision varies depending upon the agency. Agencies generally have an internal appellate body, with some agencies having a Cabinet secretary decide the final internal appeals. Moreover, after the internal agency appeals have been exhausted, a party may have the right to file an appeal in the state or federal courts. Relevant statutes usually require a party to exhaust all administrative appeals before they are allowed to sue an agency in court.
Administrative law judges may be employed by a "central panel" organization, which provides the judges with independence from agencies. The California Administrative Procedure Act created an early central panel in 1945, and it served as a model for other states. By 2015, over half of states had created such panels.
Unlike federal ALJs, whose powers are guaranteed by federal statute, state ALJs have widely varying power and prestige. In some state law contexts, ALJs have almost no power; their decisions are accorded practically no deference and become, in effect, recommendations. In some cities, ALJs are at-will employees of the agency, making their decisional independence potentially questionable. In some agencies, ALJs dress like lawyers in business suits, share offices, and hold hearings in ordinary conference rooms. In other agencies (particularly the Division of Workers' Compensation of the California Department of Industrial Relations), ALJs wear robes like Article III judges, are referred to as "Honorable" and "Your Honor", work in private chambers, hold hearings in special "hearing rooms" that look like small courtrooms, and have court clerks who swear in witnesses.
Professional organizations that represent federal ALJs include the Federal Administrative Law Judges Conference, the Association of Administrative Law Judges, which represents only Social Security ALJs, and the Forum of United States Administrative Law judges. Professional organizations that include both state and federal ALJs include the National Association of Administrative Law Judiciary, the ABA National Conference of Administrative Law Judiciary, and the National Association of Hearing Officials.
Unlike the United States, in the United Kingdom the Tribunals, Courts and Enforcement Act 2007 recognises legally qualified members of the national system of administrative law tribunals as members of the judiciary of the United Kingdom who are guaranteed judicial independence.
ALJs cannot be recognized as members of the judicial branch of government (without first completely ejecting them from their home agencies in the executive branch), because to do so would violate the bedrock principle of separation of powers as embodied in the U.S. Constitution. In a 2013 majority opinion signed by Associate Justice Antonin Scalia, the U.S. Supreme Court explained:
The dissent overstates when it claims that agencies exercise "legislative power" and "judicial power" ... The former is vested exclusively in Congress ... the latter in the "one supreme Court" and "such inferior Courts as the Congress may from time to time ordain and establish" ... Agencies make rules ... and conduct adjudications ... and have done so since the beginning of the Republic. These activities take "legislative" and "judicial" forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the "executive Power."
List of U.S. federal agencies with ALJs
Most of the agencies below have only a few dozen ALJs.[weasel words] In 2013, the Social Security Administration had by far the largest number of ALJs at over 1,400, who adjudicate over 700,000 cases each year. The average SSA hearing process occurs over a period of 373 days.
- Commodity Futures Trading Commission
- Department of Agriculture
- Department of Health and Human Services/Department Appeals Board
- Department of Health and Human Services/Office of Medicare Hearings and Appeals
- Department of Housing and Urban Development
- Department of the Interior
- Department of Justice/Executive Office for Immigration Review
- Department of Labor
- Department of Transportation
- Department of Veterans Affairs
- Drug Enforcement Administration
- Environmental Protection Agency
- Equal Employment Opportunity Commission
- Federal Aviation Administration
- Federal Communications Commission
- Federal Energy Regulatory Commission
- Federal Labor Relations Authority
- Federal Maritime Commission
- Federal Mine Safety and Health Review Commission
- Federal Reserve Board of Governors
- Federal Trade Commission
- Food and Drug Administration
- General Services Administration
- International Trade Commission
- Merit Systems Protection Board
- National Labor Relations Board
- National Transportation Safety Board
- Nuclear Regulatory Commission
- Occupational Safety and Health Review Commission
- Office of Financial Institution Adjudication
- Patent and Trademark Office
- United States Coast Guard
- United States Postal Service
- Securities and Exchange Commission
- Small Business Administration
- Social Security Administration
Other federal agencies may request the U.S. Office of Personnel Management to lend them Administrative Law Judges from other federal agencies for a period of up to six months.
List of state departments and agencies with ALJs
Some states, such as California, follow the federal model of having a separate corps of ALJs attached to each agency that uses them. Others, such as New Jersey, have consolidated all ALJs together into a single agency that holds hearings on behalf of all other state agencies. This type of state adjudicatory agency is called a "central panel agency". Many states have a central panel agency, but the agency does not handle all the hearings for every state agency.
- Alabama Department of Revenue
- California Department of Consumer Affairs
- California Department of Health Services
- California Department of Industrial Relations
- California Department of Social Services
- California Employment Development Department
- California Department of Developmental Services
- California Office of Tax Appeals
- California Public Utilities Commission
- Colorado Office of Administrative Courts
- Florida Division of Administrative Hearings
- Georgia Office of State Administrative Hearings
- Illinois Human Rights Commission
- Industrial Commission of Arizona
- Iowa Department of Corrections
- Iowa Department of Inspections and Appeals-Division of Administrative Hearings (does hearings for some but not all state agencies)
- Iowa Workforce Development Department
- Louisiana Division of Administrative Law
- Maryland Office of Administrative Hearings
- Maryland Public Service Commission (hearings for public utility cases)
- Massachusetts Executive Office of Transportation
- Massachusetts Department of Environmental Protection
- Michigan State Office of Administrative Hearings and Rules
- Minnesota Office of Administrative Hearings (does hearings for some but not all state agencies)
- Mississippi Department of Employment Security, Office of the Governor
- New Jersey Office of Administrative Law (does hearings for all state agencies)
- New York City Office of Administrative Trials and Hearings (does hearings for some but not all city agencies)
- New York City Department of Finance (hearings for parking violations)
- New York State Department of Environmental Conservation
- New York State Department of Labor
- New York State Department of Motor Vehicles Traffic Violations Bureau
- New York State Department of State
- New York State Office of Temporary and Disability Assistance
- Oklahoma Workers' Compensation Court Commission
- Pennsylvania Department of Insurance
- Pennsylvania Department of Labor and Industry, Bureau of Workers' Compensation
- Pennsylvania Liquor Control Board
- Pennsylvania Public Utility Commission
- South Carolina Administrative Law Court (does hearings for all state agencies)
- Texas Department of Banking
- Texas Finance Commission
- Texas Health and Human Services Commission
- Texas State Office of Administrative Hearings (does hearings for only some state agencies)
- Washington Office of Administrative Hearings (does hearings for all state agencies plus some local ones)
- West Virginia Public Employees Grievance Board
- West Virginia Public Service Commission
- West Virginia Insurance Commission (Workers Compensation)
- 5 U.S.C. § 556[permanent dead link]
- "Administrative Law Judge". jandils. Retrieved 13 July 2016.
- Butz v. Economou, 438 U.S. 478, 514 
- "Supreme Court sides with 'Buckets of Money' financier". Associated Press. June 21, 2018. Retrieved June 21, 2018.
- Federal Maritime Commission v. S.C. State Ports Authority, 535 U.S. 743, 756 (2002)
- Allen, Hoberg, (1994). "Administrative Hearings: State Central Panels in the 1990s". Journal of the National Association of Administrative Law Judiciary. 14 (1). ISSN 0735-0821.CS1 maint: extra punctuation (link)
- "ALJ Central Panels: How is it Going Out There? | The National Judicial College". www.judges.org. Archived from the original on 2016-10-30. Retrieved 2018-11-24.
- Ackman, Dan. "The Price of Justice". New York Times, Feb. 12, 2006
- Federal Administrative Law Judges Conference
- Tribunals, Courts and Enforcement Act 2007, s.1, Constitutional Reform Act 2005, s.3
- City of Arlington v. FCC, 569 U.S. __, __, n.4 (2013) (slip op. at 13) (emphasis in original).
- Ohlemacher, Stephen (April 20, 2013). "Judges sue Social Security over 'quotas'". Florida Today. Melbourne, Florida. pp. 3A.