Draft: Feb. 13, 2001
ADMINISTRATIVE LAW JUDGES
UNDER THE FEDERAL ADMINISTRATIVE PROCEDURE ACT
a. ALJ powers
The APA confers substantial powers on administrative law judges (ALJs) in the course of presiding at hearings.[1] For example, subject to published rules of the agency, ALJs are empowered to administer oaths, issue subpoenas, receive relevant evidence, take depositions, and regulate the course of the hearing. These fundamental powers arise from the APA "without the necessity of express agency delegation" and "an agency is without the power to withhold such powers" from its ALJs.[2]
b. The selection process
i. General rule.
The Office of Personnel Management (OPM), the central personnel agency of the federal government, holds periodic competitions for ALJ positions. To be eligible for hire, an applicant must meet the minimum qualifications set by OPM. If the minimum qualifications are met, the applicant participates in an examination procedure and is then issued a final rating. Agencies wishing to hire ALJs must select from the top three candidates rated by OPMthen request certificates of applicants and hire applicants based on their ratings.[3]
The OPM has discretionary power to create and modify the selection criteria and examinations. OPM's action in creating or modifying selection standards can be invalidated only if its actions are found to be Because the OPM has broad discretion in determining the method of selection, the creation and modification of these standards can only be declared invalid if the OPM’s actions are arbitrary and unreasonable.[4]
Illustration:
1. X is a candidate for a position as an ALJ. X takes part in the examination process, is given a rating by the OPM, and is put on a register. OPM subsequently decides to modify its selection procedure, and since some of the candidates had not yet been rated, it disregards the register and re-rates all the candidates. X is then given a rating lower than his previous one. A court could find that the OPM’s actions are within its discretion.[5]
ii.Qualifications.
To be eligible for an ALJ position, applicants must meet OPM's minimum qualifications.[6] The minimum requirements are the following:
1
A minimum seven years as an attorney preparing for, participating in, or reviewing formal hearings or trials involving administrative law or litigation at the federal, state or local level;
One year of experience at a level of difficulty and responsibility characteristic of the first grade level below that of the position applied for;[7] or
Two years of experience equivalent to a position two grade levels below.[8]
1
OPM has broad discretion in interpreting its own regulations governing these criteria, but an arbitrary interpretation is an abuse of discretion.
Illustrations:
2. OPM rates Y ineligible the for an ALJ position because Y did not meet its their minimum qualifications. Y believes her work preparing Advice Memoranda, which authorize offices of agency B to issue complaints or dismiss cases, should count toward the seven-year trial experience requirement. However, the OPM interprets this requirement to exclude Y’s experience. A court could find that the OPM’s interpretation of its own rule is within the scope of its power.[9]
3. OPM rates Z ineligible for an ALJ position because Z did not meet the seven necessary years of qualifying experience. OPM allows trial preparation experience to count toward this requirement if the applicant has at least two years experience in the actual preparation and trial of cases. OPM counts only those trial preparation days belonging to cases actually tried. Z’s experience is devoted mostly to cases that settled, and therefore Z does not qualify. A court could find that this interpretation of trial experience is arbitrary and capricious.[10]
iii. Supplemental qualifications.
Applicants who meet the initial requirements are assigned a score on a supplemental qualifications statement according to the level of their experience.[11] The score is based on the applicant’s knowledge of rules of evidence and trial procedure, analytical ability, decision-making ability, oral communication ability and judicial temperament, writing ability, and organizational skills.[12]
iv.Examination procedures.
Applicants who meet initial qualifications also participate in the following examination procedures:
1
Written demonstration. The written demonstration is a five-hour essay examination that calls upon where applicants to demonstrate their ability to prepare a clear, well-reasoned decision of the type they would write as administrative law judges. The exams are scored by OPM examiners using a scoring syllabus that measures ability to analyze issues and apply the law.[13]
Panel interview. The hour-long panel interview conducted by an ALJ, a non-federal attorney, and a senior OPM employee, is designed to evaluate personal characteristics. The interview assesses an applicant’s abilities to deal with people, communicate orally, make decisions, and evaluate situations. Applicants are asked pre-written questions and then judged on a scale of 1 to 5 for each ability.[14]
Personal reference inquiry.
1
OPM examiners send questionnaires to the
applicant’s professional contacts, including personal references,
supervisors, opposing counsel, and judges before whom the applicant has
appeared., and opposing counsel in which the applicant has participated.[15] To obtain bias-free evaluations, the questionnaires use a forced choice method.
v.Final ratings.
Applicants are assigned a final numerical rating on a scale of 0 to 100, with 70 required to pass. The rating is based on a weighted sum of the scores from the supplemental qualifications statement and the three examination procedures.[16] If the applicant is a veteran, 5 points are added to the score; 10 points are added if the veteran is disabled.[17] Applicants are then added to the register. Applicants can appeal their final rating within 30 days of the date of final action or such later time as allowed by the Appeals Panel.[18]
Applicants are ranked on the basis of their final ratings when agencies request applicant certificates. OPM certifies t of the applicants. At least three eligible applicants to the employing agency for consideration for each vacancy (the "rule of three").[19] An agency must select one of these candidates (though not necessarily in the order in which they are ranked).[20]
vi. Transfer.
Agencies often prefer to avoid hiring ALJs off the register. Instead, they hire ALJs laterally from other agencies. Lateral transfers are allowed after an ALJ has served at least one year in the agency making the original hire.[21]
c.Inconsistent functions
i. General rule.
An agency cannot assign an ALJ to perform duties inconsistent with the duties and responsibilities of ALJs.[22]
(a) Explanation.
A major purpose of the APA is to ensure that federal ALJs will be decisionally independent of the agencies they serve. The employing agency must not assign an ALJ to perform any duties that might appear to prevent parties other than the agency from receiving a fair hearing.[23] This includes duties that might create an appearance that an ALJ is biased or that may intimidate ALJs into taking sides with the agency. However, an ALJ can be assigned to duties that do not affect the way in which an ALJ conducts adjudications.
Illustrations:
1. P is an ALJ for agency C. P presides over hearings regarding social security benefits and decides a high percentage of his cases against the agency. C implements a new rule that requires P to sweep the hearing room floors every night after his hearings conclude. A court could find that P’s odd duty of sweeping the floors could be an attempt to intimidate P into lowering his percentage of cases decided against C. Therefore, this duty could be inconsistent with his duties as an ALJ in violation of the APA.[24]
2. Q is an ALJ for agency D. Q presides over a hearing to determine whether a licensee should be subject to a monetary sanction. Such cases are adversarial in nature. D has delegated to Q the duty of investigating and gathering evidence for this case. A court could find that Q is performing duties inconsistent with his duties as an ALJ in violation of the APA.[25]
3. Assume the same facts as in 2, except that Q is presiding over a Social Security case. Social Security cases are traditionally non-adversarial in nature. D is not represented by counsel and social security applicants are frequently not represented by counsel. Q's duties include gathering evidence for both sides, then deciding the case. The Supreme Court has upheld this procedure under due process; it did not discuss whether performing both duties is in violation of the APA.[26]
4. R is an ALJ for agency F. R presides over a hearing held by F regarding whether it is an unfair labor practice for labor union G to refuse to install equipment unless non-union members are excluded from the job. R finds that G did engage in an unfair labor practice. R subsequently serves as counsel at a different hearing to prosecute an unfair labor charge based upon the evidence adduced at the previous hearing. Because R had both the duty of hearing the evidence in the first hearing and later relying upon it as prosecutorial evidence, a court could find that the two duties are inconsistent.[27]
5. S is a Chief ALJ for agency H. S presides over hearings just as regular ALJs do, but she also performs various managerial and administrative duties. These duties include maintaining a calendar of cases, assigning ALJs to these cases, and advising ALJs on procedural problems arising in the conduct of hearings. S is not performing any duties inconsistent with her position as an ALJ.
d.Tenure
i. General rule.
The position of ALJ is a tenured position. An ALJ may be removed or disciplined[28] only for good cause established by the Merit Systems Protection Board (MSPB) after opportunity of hearing before the Board.[29]
ii.What constitutes good cause.
(a)General rule.
Actions by an ALJ that wholly undermine confidence in the administrative adjudicatory process constitute good cause for disciplinary action.[30]
(b) Misconduct.
Misconduct or incompetence constitutes good cause for removal of an ALJ. Misconduct includes conduct that disrupts the workplace or violates generally accepted rules of conduct.[31] The MSPB can impose discipline when an "ALJ's actions constitute serious improprieties, flagrant abuses of authority, or repeated breaches of acceptable standards of judicial behavior."[32]
Illustrations:
1. P is an ALJ for agency C. P makes unwanted advances and lewd comments to women members of the agency staff. This conduct is violative of generally accepted rules of conduct, grossly offensive to many employees, and disrupts the work place. C has good cause to remove P.[33]
2. A supervisor at agency D reprimands Q, an ALJ for agency D, about not performing his duties. Q files a grievance about the supervisor, claiming undue harassment. Q did not act inappropriately and cannot be disciplined for good cause.
3. Assume the same facts in 3, except Q files 100 grievances about the supervisor, intentionally placing a heavy burden on those responsible for processing grievances. Q has misused the grievance system, which constitutes good cause for disciplinary action.[34]
4. R, an ALJ for agency F, privately makes derogatory statements about an agency employee to F's Chief ALJ. This conduct does not affect the status of the derogated employee and does not affect anyone else in the work place. F does not have good cause to suspend R.[35]
5. Assume the same facts in 5, except R makes the statements to the derogated employee’s subordinate during working hours. This conduct could potentially affect the derogated employee’s relationship with others in the work place. Therefore, these actions constitute good cause for the suspension of R.[36]
(c) Insubordination.
Deliberate insubordination by an ALJ is good cause for adverse action.[37] Insubordination includes refusal to follow proper agency orders, such as refusal to schedule or to hear assigned cases or refusal to deliver legal documents.[38] An agency must, however, establish that the insubordinate behavior meaningfully impaired the relationship between ALJ and supervisor.[39]
Illustrations:
6. S is an ALJ for agency G. The head of G orders S to hand over files from a case he suspects S handled with bias. S refuses to deliver the files. G has good cause for adverse action against S.[40]
7. T is an ALJ for agency H. H makes some management changes within the agency that T disagrees with. In protest, T cancels her hearings for the next month. When H orders T to reschedule the hearings, T refuses. Because T is being deliberately disobedient, H has good cause to take adverse action against her.[41]
(d) Physical incapacity.
Complete disability of an ALJ, so that he or she cannot perform his or her adjudicatory duties, constitutes good cause for removal.[42]
Illustration:
8. V is an ALJ for agency J. V has been declared legally insane. H has good cause to remove V from his position upon hearing before the MSPB.
(e) Violation of statute.
Violation of statute may be good cause for adverse action against an ALJ.[43]
Illustrations:
9. W, an ALJ for agency K, uses a government-owned vehicle for other than official purposes in violation of a statute. K has good cause to take disciplinary action.[44]
10. X, an ALJ for agency L, abuses the free mail privilege by using official envelopes for private matters in violation of a criminal statute. L has good cause to discipline X.[45]
(f) Performance during adjudicatory proceeding.
An ALJ can be disciplined on the basis of his or her performance during the course of an adjudicatory proceeding.[46] A knowing refusal to follow clear precedents can constitute good cause.[47] Similarly, unacceptably low productivity can be good cause for disciplinary action, although MSPB cases have imposed a high burden of proof on an agency that seeks to discipline an ALJ on low productivity grounds.[48]
Illustration:
12. Y, an ALJ for agency M, has a case disposition rate of about 50% of the nation-wide average. However, there is no evidence that the nation-wide average is a measurement of reasonable productivity, or that Y's cases were similar in difficulty to those decided by other ALJs. Consequently, MSPB will determine that M lacked good cause to remove Y.[49]
(g) Reduction in force.
A reduction in force (RIF) constitutes good cause to remove an ALJ.[50] The requirement of a hearing before the MSPB does not apply to RIFs.[51] RIFs can occur by reason of lack of funds, personnel ceilings, reorganizations, decrease of work, or similar reasons.[52] In case of a RIF, ALJs with the lowest number of “retention credits” are dropped.[53]
iii.What does not constitute good cause.
(a)Interference with ALJ independence.
If a disciplinary action by an agency is arbitrary, politically motivated, or based on reasons that constitute an improper interference with the performance by an ALJ of his or her judicial functions, the charge cannot constitute good cause.[54] Improper interference with ALJ performance includes interference with the writing of opinions[55] or interference with the way in which an ALJ conducts hearings. It has been held that the decisional independence of ALJs is constitutionally protected.[56]
Illustration:
1. B, an ALJ for agency P, continually criticizes P in his written decisions. P orders B to stop his criticism, and B refuses. B cannot be disciplined for insubordination because the charge improperly interferes with B’s duty as an ALJ.[57]
14. E, an ALJ for federal agency M, remands a case to a state agency to articulate its rationale. CALJ, the chief ALJ, believes E's decision is incorrect and pressures E to vacate it and to decide the case without remand. This action improperly interfered with E's judicial independence.[58]
(b) Efficiency of the service.
The standard of "good cause" is not the same as the standard of “efficiency of the service” which is used in connection with adverse action against other government employees.[59]
iv. Disciplinary actions.
(a)Removal.
1/ General rule.
Removal is the involuntary separation of an employee from his position, whether or not for disciplinary reasons.[60]
Illustration:
2. D is an ALJ for agency R. R retires D for disability against his will. Although D is not dismissed for disciplinary reasons, the retirement is involuntary, and it therefore constitutes a removal. D is entitled to an APA hearing before the MSPB and good cause must be shown before D is removed.[61]
2/ Constructive removal.
An agency constructively removes an ALJ if it engages in actions that prevent the impartial exercise of the ALJ’s judicial functions.[62] The determination of whether a constructive removal has occurred is based on whether a reasonable person, considering the totality of the circumstances, would consider the actions to constitute interference with the judge's independence.[63] In such a case, an ALJ may initiate an action before the MSPB. The ALJ has the burden to establish that a constructive removal has occurred.
An ALJ's independence does not provide immunity from appropriate supervision.[64] Reasonable efforts to increase production levels or other administrative policies disliked by ALJs do not interfere with judicial independence or impartial decisionmaking.[65]
Illustrations:
2. Agency T is suffering from low production rates. This results in staffing shortages and public criticism of T’s ALJs. T restricts ALJ transfers to new locations. This measure did not constitute constructive removal because it did not prevent the impartial exercise of ALJ judicial functions.[66]
3. Agency V orders G, one of V’s ALJs, to attend a program designed to help him with his perceived deficiencies at work. V’s actions do not affect G’s judicial independence, and G has not been constructively removed.[67]
(b) Suspension.
Conduct that constitutes good cause for disciplinary action may be deserving of supension, instead of removal, if mitigating circumstances exist.[68]
(c)Reduction in grade/pay level.
A reduction in grade or pay is an active intervention by an agency calculated to demote an ALJ. A reduction in pay is a reduction in the rate of pay fixed by law or administrative action for the position held by an employee (i.e., the basic rate of pay set for a position).[69]
Illustration:
4. N, an ALJ for agency C, submits a travel voucher for C to pay. C refuses to pay. This is not a reduction in pay deserving of a hearing in front of MSPB.[70]
v. Choice of discipline
In reviewing adverse action against an ALJ, MSPB can consider whether the particular method of discipline chosen by the agency was an abuse of discretion. Agencies must consider all relevant factors, including not only the gravity of the offense but such other matters as mitigating circumstances, the frequency of the offense, and whether the action accords with justice in the particular situation. If the agency explains why it imposed more severe discipline despite mitigating factors, its decision merits more deference from MSPB than if it fails to do so.[71]