ALJ Role Being Sunsetted at Some Agencies; Idea Floated at FCC

Agencies likely would prefer to use administrative judges (AJ) over ALJs since they're easier to hire, easier to remove and easier to manage, Lubbers said. AJs generally have less independence, are subject to annual performance evaluations by the agency at which they work and are appointed by agencies without outside input from others like the Office of Personnel Management. With AJs, agencies can be more selective in whom they hire, and AJ salaries are lower, Lubbers said. While agencies can be limited in whether to use an ALJ or AJ in a proceeding, Lubbers said, the APA only requires agencies use ALJs in cases where Congress says the statute in question calls for hearings, giving them the opportunity to opt out of using ALJs if not required to do so. It's possible agencies have been asking Congress to omit that requirement from their hearing statutes, he said.

ALJs will be needed as long as the APA survives in its current form, said FCC ALJ Richard Sippel. He said the size of the ALJ population depends on need, with the FCC and FTC down to one each because of workloads. And while discovery "can be very extensive, intensive, and expensive ... the question remains, is it worth it?”

Using the ALJ is extremely expensive for parties in terms of costs and time, but it's important when cases present complicated and disputed fact issues, said a communications lawyer with ALJ experience. Dispensing with the ALJ and resolving matters without witnesses being cross-examined and opportunities for parties to test each others' thinking and assertions would damage the quality of the process significantly, the lawyer said. In cases like the discrimination complaint brought by GSN, the process could be improved by the Media Bureau resolving uncontested issues and the ALJ resolving disputed fact claims, the lawyer said. The lawyer also said it's unlikely the agency under Chairman Ajit Pai will pursue the idea. The agency didn't comment but pointed us to Pai's comments at the July meeting at which he said he would give the idea his attention.

As of December, 1,957 ALJs were at 27 federal agencies, according to OPM data. The FCC, FTC, Consumer Financial Protection Bureau, Postal Service and DOJ’s Executive Office for Immigration Review each had one. Social Security Administration, with 1,673, had by far the largest ALJ staff. The number of federal agency ALJs has largely hovered between 1,700 and 1,800 since 2010, according to OPM. Some agencies, like Social Security Administration and Medicare, have seen their ALJ numbers increase due to caseloads, experts said.

For agencies that don't have their own ALJs, an OPM loan program allows an ALJ from another agency to be assigned voluntarily to the case, Postal ALJ Gilbert said. But that's not a viable long-term solution for agencies that have more than occasional ALJ demand, he said, because they have to reimburse the agency from which they borrowed an ALJ. "A place like the FCC, with a significant docket, it wouldn't make financial sense." Sippel has issued nine orders in four proceedings this year.

An agency like the FCC that has statutes that require hearings on the record can use techniques to avoid such hearings, Lubbers said. He pointed to the agency in the past having 10 or more ALJs when there were comparative hearings to award TV and radio stations -- which since has been replaced by auctions and by freeing up of more broadcasting bandwidth. There have been proposals in Congress to unify all ALJ courts into one centralized entity that hears all administrative claims, but the idea has never gone far, Gilbert said, saying FALJC has said the proposal is workable.