Help us improve in just 2 minutes—share your thoughts in our reader survey.

"Against Administrative Judges" by Kent Barnett (2016)

From Ballotpedia
Jump to: navigation, search
New Administrative State Banner.png
Administrative State
Administrative State Icon Gold.png
Five Pillars of the Administrative State
• Judicial deference
• Nondelegation
• Executive control
• Procedural rights
• Agency dynamics
Click here for more coverage of the administrative state on Ballotpedia

"Against Administrative Judges" (2016) is an article by American legal scholar Kent Barnett. The article claims that federal agencies could benefit from increasing the use of administrative law judges (ALJs) in agency adjudication proceedings as opposed to administrative judges (AJs). Barnett observes that ALJs enjoy oversight and removal protections under the Administrative Procedure Act (APA) that allow them to operate with more independence from agency control than AJs. He argues that the increased independence of ALJs allows them to operate with more impartiality than AJs, which reduces due process concerns and increases the likelihood that an agency will receive judicial deference. Barnett also examines and proposes solutions to address conventional arguments used by agencies to support the use of AJs over ALJs, including perceived cost savings, subject-matter expertise, and efficiency.[1]

HIGHLIGHTS
  • Author: Kent Barnett
  • Source: UC Davis Law Review
  • Abstract: Barnett provides the following summary of his argument concerning administrative law judges (ALJs) and administrative judges (AJs) in the introduction to the paper:


    "This Article argues that, contrary to agency orthodoxy and regardless of regulated parties’ interests, agencies should choose ALJs over AJs to further their own interests. With broad direction to choose AJs or ALJs, agencies prefer the former because of increased control over AJs’ job performance and policy implementation in flexible, informal proceedings—all for less cost. Yet, not only are the relative informality and cost savings of AJ proceedings exaggerated (based on data that this Article is the first to consider meaningfully), but the use of AJs has overlooked downsides. Agency control of AJs undermines their perceived impartiality, creating unacknowledged due process concerns under two recent Supreme Court decisions—Caperton v. A.T. Massey Coal Co. and Free Enterprise Fund v. PCAOB—and complicating agencies’ missions. Choosing ALJs also increases the likelihood of agencies receiving deferential judicial review and absolute official immunity for agency adjudicators. Thus, this Article broadens and contextualizes the current ALJ controversy by highlighting the more pervasive and problematic phenomenon of AJs in administrative adjudication."[1]

    • Author

    Kent Barnett

    Kent Barnett is an American legal scholar. As of May 2018, he worked as an associate professor at the University of Georgia School of Law. Prior to joining the University of Georgia School of Law faculty in 2012, Barnett worked as a visiting assistant professor at the University of Kentucky College of Law and served as a clerk for Judge John M. Rogers of the United States Court of Appeals for the 6th Circuit. He previously practiced law with Weil, Gotshal & Manges LLP and Heygood, Orr & Pearson. According to his faculty profile with the University of Georgia School of Law, Barnett specializes in administrative law, contracts, and consumer law. His scholarship related to the administrative state has been published in the New York University Law Review, the Michigan Law Review, the Vanderbilt Law Review, the Notre Dame Law Review, the Indiana Law Journal, the UC Davis Law Review and the North Carolina Law Review.[2][3]

    Below is a summary of Barnett's education and career:[2][3]

    • Academic degrees:
    • 2012 - Present: Associate professor, University of Georgia School of Law
    • 2010-2012: Visiting professor, University of Kentucky College of Law
    • 2009-2010: Attorney, Heygood, Orr & Pearson
    • 2006-2009: Attorney, Weil, Gotshal & Manges LLP[4]

    Distinguishing ALJs from AJs

    See also: Federal administrative adjudicators

    Barnett opens the paper by identifying the differences between the two types of federal administrative adjudicators—administrative law judges (ALJs) and administrative judges (AJs). He observes that ALJs and AJs generally perform the same function by presiding over administrative adjudication proceedings. While the Administrative Procedure Act (APA) requires ALJs to preside over formal adjudication proceedings, AJs consider evidence and issue rulings during informal adjudication. Barnett notes that the similarities between ALJs and AJs often result in confusion among scholars:

    “ Unsurprisingly, because of AJs’ and ALJs’ shared functions, similar hearings, and nearly identical titles and acronyms, they are frequently confused with one another or treated as if they are nearly synonymous. Some scholars consciously group them together when addressing concerns about administrative adjudication generally. Others seem to group them together inadvertently, although understandably. Yet, as compared to their functional similarities, AJs and ALJs differ in ways that are less obvious to litigants: their number and potential employers, appointment, removal, and ability to resist agency oversight.[1][5] ”

    The primary difference between ALJs and AJs, argues Barnett, is that ALJs enjoy a greater degree of independence than their AJ counterparts. While ALJs are vetted through the U.S. Office of Personnel Management (OPM), AJs are directly hired by their employing agency. Moreover, ALJs enjoy oversight and removal protections under the APA while AJs are subject to performance reviews and can be disciplined or fired by agency staff. The lack of AJ independence from agency control creates broader concerns for the impartiality of agency adjudication proceedings, according to Barnett:

    “ The key problem with all agency hearings—whether with an ALJ or AJ—is that they create inherent partiality concerns. The adjudicator’s employing agency is often a party and controls the adjudicator’s budget and perhaps salary. Indeed, the agency may even present expert witnesses who are the adjudicator’s own co-workers. Congress sought to address these concerns in the APA for ALJs by giving ALJs independence based on their hiring, removal, oversight, and limited interactions with agency officials. Yet even with the APA’s many ALJ-independence measures, scholars have questioned ALJs’ appearance of partiality for decades, coming to different conclusions as to whether ALJs violate due process. But Congress has not given AJs any of these indicia of independence, even after the well-publicized partisan hiring and firing of Immigration Judges (a type of AJ) during the George W. Bush Administration.[1][5] ”

    Conventional support of AJs

    Barnett pivots from describing the differences between ALJs and AJs to providing the reader with conventional arguments in support of the use of AJs by federal agencies. He observes that agencies often hire AJs to handle informal adjudication proceedings, which are not statutorily required to be conducted by ALJs. Since AJs can be hired from within an agency's ranks, as opposed to through the OPM, agencies claim that AJs possess valuable agency experience and subject-matter expertise that can be applied during adjudication proceedings. Barnett also notes that agencies are able to exercise more control over AJs' performance compared to ALJs. Agencies are able to manage the hiring and firing AJs, conduct performance reviews, and set salaries. Barnett quoted Paul Verkuil, former chairman of the Administrative Conference of the United States (ACUS), to support these claims:

    “ Agencies nearly always choose AJs over ALJs. As Paul Verkuil concisely explained, '[T]hey are opting for a decider who has less decisional independence, lower pay and benefits, and less job security.' Notably, these characteristics (as well as agencies’ freedom to appoint AJs) all point to the same benefit for agencies—control. From agencies’ viewpoint, control permits them to influence agency policy and render proceedings, guided by employees with technical expertise and more interaction with others in the agency, more efficient.[1][5] ”

    Arguments against the use of AJs

    Barnett concludes his analysis by arguing that agencies would be better served by using ALJs instead of AJs in adjudication proceedings. He claims that the use of ALJs minimizes due process concerns for agency adjudication because ALJs offer a greater degree of impartiality than AJs. The protections from oversight and removal under the APA allow ALJs to operate with more independence from agency control than their AJ counterparts. Barnett also observes that the cost savings associated with selecting AJs over AJs are overstated since roughly half of AJs are compensated at similar levels as ALJs. In addition, Barnett claims that AJs are also not necessarily more efficient for agencies than ALJs since informal adjudication proceedings decided by AJs are less likely to receive judicial deference:

    “ But another, often-ignored issue lurks in the Chevron eligibility analysis: whether agencies choose formal or informal adjudicatory hearings. When agencies act through formal adjudication under the APA and thus almost always use an ALJ, Mead provides that they are generally eligible for Chevron deference. But the same is not true of informal adjudication. In Mead itself, the Court refused, after determining that Chevron did not apply, to defer to statutory interpretations arising from informal adjudication. Instead, courts must engage in an indeterminate inquiry as to whether the informal interpretation at issue is Chevron eligible. Thus, agencies can obtain heightened judicial review more easily for issues of law by choosing ALJs.[1][5] ”

    In terms of agency efficiency, Barnett also argues that consolidating the adjudication duties of AJs—who often perform other agency duties—under ALJs could improve organizational efficiency. Lastly, Barnett states that sufficient subject-matter expertise can be acquired by ALJs over the course of their tenure. For those cases requiring more rigorous subject-matter expertise, he suggests that the OPM revive the selective certification process, which allowed agencies to hire ALJs with subject-matter expertise outside of the OPM's top-three candidates for the position.

    See also

    Full text

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 UC Davis Law Review, "Against Administrative Judges" June 2016
    2. ↑ 2.0 2.1 University of Georgia School of Law, "Faculty Spotlight: Assistant Professor Kent Barnett," accessed May 4, 2018
    3. ↑ 3.0 3.1 The Federalist Society, "Prof. Kent Barnett," accessed May 4, 2018
    4. ↑ LinkedIn, "Kent Barnett," accessed May 4, 2018
    5. ↑ 5.0 5.1 5.2 5.3 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    v • e
    The Administrative State
    MainThe Administrative State Project Badge.png
    Pillars
    Reporting
    Laws
    Administrative Procedure Act • Antiquities Act • Civil Service Reform Act • Clayton Antitrust Act • Communications Act of 1934 • Congressional Review Act • Electronic Freedom of Information Act • Federal Food, Drug, and Cosmetic Act of 1938 • Federal Housekeeping Statute • Federal Reserve Act • Federal Trade Commission Act of 1914 • Freedom of Information Act • Government in the Sunshine Act • Independent Offices Appropriations Act of 1952 • Information Quality Act • Interstate Commerce Act • National Labor Relations Act • Paperwork Reduction Act • Pendleton Act • Privacy Act of 1974 • Regulatory Flexibility Act • REINS Act • REINS Act (Wisconsin) • Securities Act of 1933 • Securities Exchange Act of 1934 • Sherman Antitrust Act • Small Business Regulatory Enforcement Fairness Act • Truth in Regulating Act • Unfunded Mandates Reform Act
    Cases
    Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States
    Terms
    Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
    Bibliography
    Agencies
    Retrieved from "https://ballotpedia.org/wiki/index.php?title=%22Against_Administrative_Judges%22_by_Kent_Barnett_(2016)&oldid=9158531"