With administrative law judges (ALJs), our jobs are held within the very agency that is a party to matter in front of us. The consequence of having an adjudicatory function as a part of the Executive Branch of the federal government is that quite often a decision has to be made that rules against the interests of the agency that employs the ALJ. As legal professionals, we understand the nature of the process; meaning, no one wins every battle. The non-legal professionals that run our agencies are not always so understanding. Hence, the need to establish a public process for protecting the judicial independence of our ALJ community.
Over and above the anecdotal communication of interference with the judicial process, the American citizen has a right to expect and perceive fairness in the system. A system where the judge is an employee of the agency that is an opponent in their controversy leaves room for a perception that the system is rigged against them. As lawyers, we all know that the perception of impropriety is as bad as actual impropriety. To that end, the National Conference of the Administrative Law Judiciary (NCALJ) has worked for many years on a system where the Administrative Law Judges are employed in a different agency or division that is separated from the agency that is a party in the conflict.
Last year, the then Chair of the Judicial Division, Christopher Browning, worked with the leadership of NCALJ to establish a special task force of the Judicial Division to study and propose solutions for the issue surrounding decisional independence. The membership of that task force was chosen to allow for a broad range of voices from the ALJ community and other interested groups whose interests are affected by the work of the task force. While there were no official liaisons, the membership of the task force included members from the Administrative Law and Regulatory Practice Section, the military, the Association of Administrative Law Judges, and the Federal Administrative Law Judges Conference.
With those voices in mind, the Task Force Co-Chairs, Col. Linda Murnane and Judge David Welch, convened the task force to start studying the issues. The first issue to resolve was the scope of the Task Force. While previous efforts had focused on developing a central panel, the task force wanted to be clear that this process was studying the issue of decisional independence as it applies to the administrative adjudicatory process. The task force spent several months debating the issues and listening to presentations from Malcolm Rich of the Appleseed Foundation and Professor Robert Glicksman, of The George Washington University Law School, to provide a broader foundation of knowledge. Concurrently, NCALJ sponsored three webinars over the course of last year. The webinars were intended to provide non-task force ABA members an opportunity to learn more about the issues surrounding decisional independence and the central panel model. The first webinar was given to provide objective information while the second and third webinar were more persuasive and intended to provide a pro and con point of view for central panels. Since the expectation was that the task force would develop a resolution to be presented at the ABA House of Delegates, NCALJ wanted to provide as much background information to ABA members that may be asked to support that resolution.
Professor Michael Asimow, of Santa Clara University School of Law, presented a concept of a federal tribunal that heard matters involving federal benefits, such as the matters heard by the Social Security Administration. The federal tribunal would be led by three Chief Administrative Law Judges that would be selected on a rotating basis. The focus on federal benefits was intended to address the individual citizen and alleviate their concerns about the true measure of an ALJs independence. A corporate or governmental entity that is litigating against a federal agency has a greater level of understanding the nature of the administrative adjudicatory process. Whereas, an individual that is trying to attain deserved benefits from a huge institution like a federal agency has limited means to grasp all the nuances of the process since, in large part, it is over-whelming to most. These decisions appear financially small when compared to the larger issues that corporations regularly fight over; however, these “little decisions” mean the world to each citizen that is involved. The decision to approve or deny a federal benefit impacts a person’s life, literally and figuratively. Thus, compounded over the entire populace, how the federal administrative adjudicatory process has an enormous impact on how the average citizen feels about their government and their government’s ability to fairly dispense justice.
The task force began working on Professor Asimow’s concept and turning it into a workable Resolution. At the final meeting of the task force and during a discussion of the concept and initial draft of the Resolution, none of the task force membership objected to the federal tribunal concept and agreed to support the resolution that had been developed. Over the next few months, the leadership of the Task Force, of NCALJ, and of the Judicial Division worked with the ABA and other sections, divisions and forums to explain the concept and gain support for Resolution 200. At the ABA Annual Meeting last August, Resolution 200 was presented to the ABA House of Delegates. The Resolution was introduced by Judge Danette Mincey and you can watch her presentation online.
Demonstrating the effectiveness of the Judicial Division, Resolution 200 was passed with a near unanimous voice vote. The effort, diligence, and spirit given by each of the task force members is laudable and the National Conference of the Administrative Law Judiciary wishes to thank each of them for their commitment.
Task Force on Decisional Independence
Co-Chairs: Hon. David L. Welch & Col. Linda Murnane
Mr. Christopher Browning
Hon. John C. Allen, IV
Hon. Danette Mincey
Col. Tara Osborn
Hon. Robert Cohen
Hon. J. Matthew Martin
Prof. Michael Asimow
Hon. Ann Breen-Greco
Hon. Jodi Levine
Hon. Richard Goodwin
Hon. John Vittone
Hon. William Carpenter
Hon. Julian Mann
Mr. Matthew Weiner
Hon. Mimi Tsankov