Wikipedia

Administrative law judge

(Redirected from Attorney Advisor)
"ALJ" redirects here. For other uses, see ALJ (disambiguation).

An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates claims or disputes involving administrative law. ALJs can administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations.[1]

In the United States, 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, as ALJs may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions.

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.

Federal appointment and tenure

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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.

In American administrative law, ALJs are Article I judges under the U.S. Constitution. As such, they do not exercise full judicial power, essentially, the power over life, liberty, and property. Article I (legislative) 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".[citation needed] 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 (MSPB) established and determined after an APA hearing on the record before an MSPB ALJ.[2] 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.[3][4] This means that they must be appointed by the president or by heads of departments (but without also requiring Senate advice and consent, unless Congress amends the law to require that).

Attorney Advisors

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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

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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: an 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.[2][5]

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.

Central panels

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Administrative law judges may be employed by a "central panel" organization, which provides the judges with independence from agencies.[6] The California Administrative Procedure Act created an early central panel in 1945, and it served as a model for other states.[6] By 2015, over half of states had created such panels.[7]

State ALJs

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Most U.S. states have a statute modeled after the APA. In some states, such as New Jersey, the state law is also known as the Administrative Procedure Act.

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.[8] In some agencies, ALJs dress like lawyers in business suits, share offices, and hold hearings in ordinary conference rooms. In other agencies (especially certain offices of 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.[9][10] State ALJs can be generalists or specialize in specific fields of law, such as tax law.[11]

Professional organizations

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Professional organizations that represent federal ALJs include the Federal Administrative Law Judges Conference,[12] 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.

Case law

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The constitutionality of the use of ALJs by executive branch administrative agencies has become the subject of frequent challenges in judicial branch courts during the early 21st century. In Lucia v. SEC (2018), the U.S. Supreme Court ruled that ALJs are officers of the United States and thus subject to the Appointments Clause of the Constitution—requiring their appointment to be made by the President or an otherwise delegated officer—but they do not require Senate confirmation as they are merely considered "inferior" officers.[13] In 2023, the case of SEC v. Jarkesy raised the issues of whether the use of ALJ factfinding as a replacement for a jury trial violates the Seventh Amendment and the nondelegation doctrine.[14] In June 2024, the U.S. Supreme Court ruled by a 6-3 majority that the SEC's use of ALJs in administrative proceedings for regulatory violations analogous to securities fraud violates the Seventh Amendment because there was a right to a jury trial in fraud actions at common law, then refused to decide any other issues.[15]

While Lucia and Jarkesy were specifically focused on the SEC, there are other pending cases in lower-level courts (such as those brought by SpaceX and Trader Joe's) which brought similar challenges to the National Labor Relations Board's use of ALJs.[16] At least one court has ruled that the challenges would "neuter" the National Labor Relations Act and are unlikely to succeed, and that the National Labor Relations Board's use of ALJs is likely constitutional.[17]

International comparisons

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The United States does not have administrative courts in the judicial branch.[18] In contrast, 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.[19]

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.[20] 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."[21]

List of U.S. federal agencies with ALJs

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Most of the agencies below have only a few dozen ALJs.[22] In 2013, the Social Security Administration (SSA) 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.[23]

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

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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.

See also

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References

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  1. ^ Barnett, Kent (April 2013). "Resolving the ALJ Quandary". Vanderbilt Law Review. 66 (3): 797–865. Retrieved 29 December 2020.
  2. ^ a b Butz v. Economou, 438 U.S. 478, 514 [1978]
  3. ^ "Supreme Court sides with 'Buckets of Money' financier". Associated Press. June 21, 2018. Retrieved June 21, 2018.
  4. ^ Skowronek, Stephen; Dearborn, John A. & King, Desmond (2021). Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive. Oxford University Press. pp. 153–160. ISBN 978-0-19-754308-5.
  5. ^ Federal Maritime Commission v. S.C. State Ports Authority, 535 U.S. 743, 756 (2002)
  6. ^ a b 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.
  7. ^ "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.
  8. ^ Ackman, Dan. "The Price of Justice". New York Times, Feb. 12, 2006
  9. ^ Klunder, Jan (July 14, 1987). "Quest for Respect: Compensation Judges Win Right to Put On Robes". Los Angeles Times. Retrieved 29 December 2020.
  10. ^ Pace, Nicholas M.; Reville, Robert T.; Galway, Lionel; Geller, Amanda B.; Hayden, Orla; Hill, Laural A.; Mardesich, Christopher; Neuhauser, Frank W.; Polich, Suzanne; Yeom, Jane; Zakaras, Laura (2003). Improving Dispute Resolution for California's Injured Workers (PDF). Santa Monica: RAND Institute for Civil Justice. pp. 634–637. Retrieved 29 December 2020.
  11. ^ Elizabeth Buroker Coffin, The Case for A State Tax Court, 8 St. & Loc. Tax Law. 63 (2003)
  12. ^ Federal Administrative Law Judges Conference
  13. ^ Liptak, Adam (June 21, 2018). "S.E.C. Judges Were Appointed Unlawfully, Justices Rule". The New York Times. Retrieved June 23, 2018.
  14. ^ Goldstein, Matthew (May 18, 2022). "A federal appeals court says the S.E.C.'s use of an in-house judge violates defendants' rights". The New York Times. Retrieved May 19, 2022.
  15. ^ Charlie Savage and Adam Liptak (June 27, 2024). "Again Curbing Regulatory Agencies, Supreme Court Rejects S.E.C.'s Tribunals". The New York Times. The New York Times. Archived from the original on July 9, 2024. Retrieved July 12, 2024.
  16. ^ Eidelson, Josh (January 27, 2024). "Elon Musk and SpaceX are right about the National Labor Relations Board being unconstitutional, argues Trader Joe's". Fortune. Retrieved January 27, 2024.
  17. ^ Wiessner, Daniel (16 September 2024). "US judge rejects medical center's bid to 'neuter' NLRB". Reuters. Retrieved 16 September 2024.
  18. ^ Farnsworth, E. Allan (2010). Sheppard, Steve (ed.). An Introduction to the Legal System of the United States (4th ed.). Oxford: Oxford University Press. p. 170. ISBN 9780199733101. Retrieved November 17, 2020.
  19. ^ Tribunals, Courts and Enforcement Act 2007, s.1, Constitutional Reform Act 2005, s.3
  20. ^ Sunstein, Cass R.; Vermeule, Adrian (2020). Law and Leviathan: Redeeming the Administrative State. Cambridge: Harvard University Press. p. 83. ISBN 9780674249813. Retrieved May 5, 2024.
  21. ^ City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013) (emphasis in original).
  22. ^ "ALJs by Agency". August 2020.
  23. ^ Ohlemacher, Stephen (April 20, 2013). "Judges sue Social Security over 'quotas'". Florida Today. Melbourne, Florida. pp. 3A.
  24. ^ "State Personnel Board".
  25. ^ "110618a Railroad Commission Appoints Dana Lewis as Director of Hearings". www.rrc.texas.gov. Retrieved 2021-07-15.
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