Administrative law judge
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- See also: Federal administrative adjudicators
Administrative law judge (ALJ), in the context of federal administrative law, refers to an official who presides over federal administrative hearings. An administrative law judge serves as both the judge and the jury in an administrative hearing. The Administrative Procedure Act requires that administrative law judges preside over hearings during formal adjudication proceedings, but they may also preside over hearings during informal adjudication. Adjudication proceedings include agency determinations outside of the rulemaking process that aim to resolve disputes between either agencies and private parties or between two private parties.[1][2][3][4]
By comparison, federal agency employees known as administrative judges (AJ) are hired directly by federal agencies to conduct informal adjudication, which makes up nearly 90 percent of all adjudication proceedings and is often applied to benefits-related decisions as well as cases concerning immigration, equal employment, government contracts, or security clearance issues.[1][5][6][7][2][3]
Background
The 1946 Administrative Procedure Act (APA) established the role of the administrative law judge (ALJ). According to the U.S. Office of Personnel Management (OPM), the federal government established ALJs as impartial adjudicators in order to "ensure fairness in administrative proceedings before Federal Government agencies." Since their authority is limited to federal executive branch agencies, ALJs are part of the executive branch rather than the judicial branch.[8][3][9]
ALJs preside over administrative hearings involving disputes between federal agencies and affected parties. Though ALJs may preside over hearings during informal adjudication, the APA requires ALJs to preside over formal adjudication proceedings. Since administrative hearings operate in a manner similar to civil bench trials, ALJs serve as both the judge and the jury. They have the authority to hold hearings, issue subpoenas, review findings, and administer rulings..[2][3][1]
In the interest of safeguarding the neutrality of ALJs during adjudication proceedings, the APA prohibits ALJs from performing investigative or prosecutorial functions or reporting to an official who performs those functions. ALJs are also generally prohibited from having ex parte communications with other agency officials or interested parties to a case. Agencies cannot subject ALJs to performance reviews or award them bonuses. Agencies are also prohibited from disciplining or firing ALJs except for "good cause" as determined by the Merit Systems Protection Board.[10]
A number of federal agencies employ their own ALJs, including the Social Security Administration, the U.S. Department of Labor, the U.S. Department of the Interior, the U.S. Department of Agriculture, and the U.S. Drug Enforcement Administration. According to the OPM, employing agencies have "[t]he responsibility to ensure the independence of the administrative law judge" in all proceedings.[3]
Administrative law judge vs. administrative judge
- See also: Administrative judge
The federal government employed nearly 2,000 administrative law judges and more than 10,000 administrative judges and other non-ALJ adjudicators as of 2017, the most recent year for which comprehensive data was available at the time of this article's last update in March 2024. Unlike administrative law judges, who are officers of the United States and must be appointed by the president, the courts, or agency heads, administrative judges are hired directly by agencies. As such, administrative judges do not share in the statutory protections from removal, discipline, and performance reviews that ALJs receive under the Administrative Procedure Act. According to Paul Verkuil, former chairman of the Administrative Conference of the United States, administrative judges generally have less independence than administrative law judges, are compensated at a lower rate, and have less job security.[11][12][1][13]
State-level ALJs
- See also: State administrative law judge
Many state and local entities have authorized their own ALJs with varying degrees of scope and authority. For more information, click here.[3][9]
Appointment and duties of administrative law judges
Appointment process
President Donald Trump (R) issued an executive order in July 2018 that removed ALJs from the hiring requirements of the competitive civil service and reclassified ALJs subject to the hiring procedures of the excepted service. The order was issued in light of the United States Supreme Court's June 2018 decision in Lucia v. SEC, which held that ALJs are officers of the United States who must be appointed by the president, the courts, or agency heads rather than hired by agency staff. The reclassification of ALJs as members of the excepted service allows agency heads to directly appoint ALJs and select candidates who meet specific agency qualifications.[14]
Prior to the executive order, ALJs were required to undergo a recruitment and examination process administered by the U.S. Office of Personnel Management (OPM) as part of the competitive civil service. After candidates had been vetted by the OPM, agencies could hire ALJs from the OPM's candidate pool.[8][15]
Qualifications
President Trump's executive order required that ALJ candidates, other than incumbent ALJs, must possess a professional license to practice law pursuant to the standards of their licensing government entity. Agencies may require additional qualifications when appropriate.[14]
Duties
ALJs carry out the following duties, according to the OPM:
| “ | ALJs serve as independent impartial triers of fact in formal proceedings requiring a decision on the record after the opportunity for a hearing ... ALJs rule on preliminary motions, conduct pre-hearing conferences, issue subpoenas, conduct hearings (which may include written and/or oral testimony and cross-examination), review briefs, and prepare and issue decisions, along with written findings of fact and conclusions of law.[8][16] | ” |
Data on administrative law judges
- See also: Federal administrative adjudicators
The U.S. Office of Personnel Management (OPM) reported 1,931 administrative law judges working for federal agencies as of March 2017, the most recent year for which comprehensive data was available at the time of this article's last update in March 2024. The vast majority of these ALJs (1,655) were employed at the Social Security Administration. The role of the ALJ was created and standardized under the Administrative Procedure Act (APA) of 1946. When an agency is required by statute to use a formal adjudication proceeding, an ALJ must preside. ALJs are recruited and examined by OPM, then hired and paid by agencies. When an agency needs to fill an ALJ position, OPM will offer a list of three candidates for the agency to choose from. Agencies may also hire ALJs from other agencies, either permanently or on a temporary basis, with the approval of OPM.[17][18]
The OPM website describes the work of ALJs in the following way:[18]
| “ | ALJs serve as independent impartial triers of fact in formal proceedings requiring a decision on the record after the opportunity for a hearing. In general, ALJs prepare for and preside at formal proceedings required by statute to be held under or in accordance with provisions of the APA, codified, in relevant part, in sections 553 through 559 of title 5, United States Code (U.S.C.). ALJs rule on preliminary motions, conduct pre-hearing conferences, issue subpoenas, conduct hearings (which may include written and/or oral testimony and cross-examination), review briefs, and prepare and issue decisions, along with written findings of fact and conclusions of law.
|
” |
| —U.S. Office of Personnel Management, "Qualification Standard For Administrative Law Judge Positions"[18] | ||
ALJs by the numbers
ALJs by agency
The following table shows the distribution of ALJs among federal agencies as of March 2017:
ALJ qualifications
The following table outlines the qualification standards required by law for ALJs:
| Qualification requirements for ALJs[18] | ||||||
|---|---|---|---|---|---|---|
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Noteworthy events
Federal court rules DOJ administrative law judges are unconstitutional (2024)
The United States District Court for the Southern District of Georgia on March 25, 2024, ruled in favor of Walmart’s challenge to the constitutionality of the Department of Justice’s (DOJ) administrative law judges (ALJ).
The DOJ initiated administrative law proceedings against Walmart, claiming that the company had violated certain immigration laws. Walmart filed a complaint on June 16, 2023, arguing that the enforcement proceedings should be blocked because they were “being conducted by an administrative law judge [(“ALJ”)] who is unconstitutionally shielded from the President’s supervision.”
Judge James Randal Hall of the Georgia district court ruled in favor of Walmart, issuing a permanent injunction and arguing that the department’s ALJs violate Article II of the U.S. Constitution because their for-cause removal protections insulate them from the president’s removal authority.
Leon Fresco, the former head of the DOJ’s Office of Immigration Litigation during the Obama administration, argued against the court’s decision, stating, “Congress delegated this specific authority … To the extent the Department of Justice is unable to carry out that function, this will be extremely damaging,” according to Bloomberg Law.
The decision follows a ruling in November 2023 in the United States District Court for the Southern District of Texas in favor of a similar challenge issued by SpaceX against the department’s enforcement proceedings. Judge Rolando Olvera temporarily blocked the DOJ’s proceedings against SpaceX pending further litigation, arguing that the DOJ’s ALJ proceedings were likely unconstitutional.
The DOJ filed a motion for summary judgment in the Texas court on March 22, 2024, and was expected to appeal the Georgia court’s decision, according to Bloomberg Law.[19][20]
Federal Circuit finds MSPB ALJs are constitutionally appointed (2023)
The United States Court of Appeals for the Federal Circuit on January 17, 2023, refused a rehearing in McIntosh v. Department of Defense, finalizing its November 2022 holding that the administrative law judges (ALJs) of the Merit Systems Protection Board (MSPB) are constitutionally appointed.[21][22]
Former Defense Department employee Elfina McIntosh filed a complaint with the MSPB arguing that the department unlawfully fired her in 2017 in retaliation for her whistleblowing activity. The board upheld McIntosh’s removal and she appealed to the Federal Circuit. McIntosh argued in part that the MSPB ALJ assigned to her case was unconstitutionally appointed pursuant to the U.S. Supreme Court’s 2018 decision in Lucia v. Securities and Exchange Commission (SEC), which found that the SEC’s ALJs are officers of the United States and, as such, must be appointed by the president, the courts, or agency heads according to the U.S. Constitution’s appointments clause.[21][22]
The three-judge panel of the Federal Circuit in November disagreed with McIntosh, finding in part that the MSPB’s ALJs do not constitute principal officers because their decisions are not final and can be reviewed by the board. Moreover, the court found that the ALJs’ protections against removal do not solely qualify them as principal officers. Since the MSPB board in March 2022 ratified all prior appointments of its ALJs, the court deemed unnecessary any further examination of whether ALJs constitute inferior officers.[21][22]
Fifth Circuit allows district courts to hear constitutional challenges to ALJs (2021)
The United States Court of Appeals for the Fifth Circuit on December 21, 2021, held 9-7 in Cochran v. SEC that district courts have subject matter jurisdiction to hear constitutional challenges to the administrative law judges (ALJs) at the Securities and Exchange Commission (SEC) without plaintiffs first raising those challenges during agency adjudication. Plaintiff Michelle Cochran argued that double for-cause removal protections serve to unconstitutionally insulate the SEC's ALJs from removal by the president, who has sole removal authority over federal appointees.[23]
"[I]t is possible that Cochran could ultimately wind her way through enforcement proceedings and get some later chance at judicial review," wrote Judge Catharina Haynes in the majority opinion, "but it is also possible that she could never have that opportunity, and that is enough to preserve district court jurisdiction."[23]
Federal judge expresses concern over constitutionality of ALJ proceedings (2019)
- See also: Lucia v. SEC
Judge John McBryde of the United States District Court for the Northern District of Texas expressed concern on March 26, 2018, in his opinion for Cochran v. SEC over the constitutionality of the administrative law judges (ALJs) at the Securities and Exchange Commission (SEC).[24]
The ALJ who presided over the Michelle Cochran’s initial adjudication proceedings before the SEC in 2016 held in favor of the agency. Cochran appealed the decision, but further action on the case was stalled as Lucia v. SEC moved through the federal courts. The Lucia case challenged the constitutionality of the SEC’s ALJ appointment process and the United States Supreme Court ultimately ruled in June 2018 that the agency's ALJ appointments violated the U.S. Constitution’s Appointments Clause.[25]
Following the Lucia decision, the SEC reassigned all pending cases before the agency, including Cochran’s appeal, to new proceedings before a different, constitutionally appointed ALJ.[25]
Cochran filed for injunctive relief against the agency proceedings in district court, claiming that the SEC’s ALJs remained unconstitutionally appointed despite ratification by the agency’s commissioners. Cochran argued that the SEC's ALJs remained unconstitutional because they can only be removed for cause by members of the Merit Systems Protection Board (MSPB), who themselves can only be removed for cause by the president. She claimed that the double for-cause removal protections serve to unconstitutionally insulate ALJs from removal by the president, who has sole removal authority over federal appointees.[25][26]
McBryde dismissed the case due to the court’s lack of subject matter jurisdiction. However, he expressed concern over the constitutionality of the SEC’s ALJs in his opinion, stating, "The court is deeply concerned with the fact that plaintiff has been subjected to extensive proceedings before an ALJ who was not constitutionally appointed and contends that the one she must now face for further, undoubtedly extended, proceedings likewise is unconstitutionally appointed.”[26]
The New Civil Liberties Alliance, a pro bono law firm with a focus on the administrative state, stated that it will appeal Cochran's case to the United States Court of Appeals for the Fifth Circuit.[24]
NLRB rules that agency ALJs were properly appointed (2018)
The commissioners of the National Labor Relations Board (NLRB) ruled on August 6, 2018, that the agency's ALJs were validly appointed by the agency pursuant to the Appointments Clause of the United States Constitution. The commissioners' unanimous vote rejected a challenge by Westrock Services Inc., a graphics printing company, that argued for the dismissal of the company's case before the NLRB on the grounds that the agency's ALJs had not been properly appointed.[27][24]
Westrock claimed that the NLRB's ALJs had not been appointed by the appropriate department head. The company argued that only the heads of cabinet-level agencies and the departments included under 5 U.S.C. § 101 constituted department heads for the purposes of the Appointments Clause. As such, Westrock argued that the NLRB commissioners did not have the authority to ratify their ALJ appointments.[27][24]
The NLRB commissioners rejected Westrock's claims and based their dismissal on the United States Supreme Court's decision in Lucia v. SEC, which held that the ALJs of the Securities and Exchange Commission (SEC) are inferior officers of the United States who must be appointed by the SEC commissioners, rather than hired by agency staff, in accordance with the Appointments Clause. The NLRB commissioners also cited Free Enterprise Fund v. Public Company Accounting Oversight Board, which held that the SEC, as a “freestanding component of the Executive Branch, not subordinate to or contained within any other such component, ... constitutes a ‘Departmen[t]’ for the purposes of the Appointments Clause.” Therefore, the NLRB concluded that its commissioners, like those of the SEC, jointly function as a department head for the purposes of the Appointment Clause.[24]
Westrock had not responded to the ruling as of August 7, 2018. The company can appeal the decision in federal court.[27]
Federal appeals court finds appointments of agency ALJs invalid (2018)
A three-judge panel of the United States Court of Appeals for the 6th Circuit held on July 31, 2018, that the Federal Mine Safety and Health Review Commission’s (FMSHRC) roster of ALJs was invalidly appointed. The panel ruled that the FMSHRC’s commissioners, rather than its chief ALJ, must appoint the agency's ALJs pursuant to the Appointments Clause of the United States Constitution. The panel consisted of judges Jeffrey Sutton, Deborah Cook, and Ralph Guy.[22][28]
The panel issued the decision in Jones Brothers Inc., Petitioner, v. Secretary of Labor, Mine Safety and Health Administration; Federal Mine Safety and Health Review Commission, a case on appeal from the FMSHRC concerning a fine issued to Jones Brothers by the Mine Safety and Health Administration for certain safety violations. The panel vacated the FMSHRC’s decision and remanded the case to the agency for new proceedings before a validly appointed ALJ.[22]
The panel opinion cited the United States Supreme Court's decision in Lucia v. SEC, which held that the ALJs of the Securities and Exchange Commission (SEC) are inferior officers of the United States who must be appointed by the SEC commissioners, rather than hired by agency staff, in accordance with the Appointments Clause.[22]
DOJ recommends deference to agency heads in ALJ removal process (2018)
The U.S. Department of Justice (DOJ) issued a confidential memo in July 2018 to the general counsels of federal agencies stating that agency heads have the authority to determine what constitutes good cause in order to fire ALJs. The memo was issued in light of President Trump's executive order converting ALJs to political appointees in the excepted service. Reuters obtained a copy of the memo and released its contents on July 23.[29]
The memo states that the U.S. Merit Systems Protection Board (MSPB), an independent federal agency that determines what constitutes good cause in order to fire an ALJ, must be “suitably deferential” to the assessment provided by an agency head who seeks to remove an ALJ for failing "to perform adequately or to follow agency policies, procedures or instructions." ALJs can only be fired if the MSPB, after the opportunity for a hearing, finds that their actions demonstrate good cause for removal.[29]
SEC halts ALJ proceedings (2018)
On June 21, 2018, the Securities and Exchange Commission (SEC) issued an order to halt, or stay, adjudication proceedings before its in-house administrative law judges (ALJs). The order was effective for 30 days, subject to further direction from the agency. The stay applied to the more than 100 pending cases and 12 cases on appeal before the SEC at the time of the order. On July 20, 2018, the SEC extended the stay for another 30 days, effective through August 22, 2018.[30][31][32]
The SEC issued the order following the June 21 decision from the United States Supreme Court in Lucia v. SEC. The Lucia decision held that the SEC ALJs are Officers of the United States subject to the Appointments Clause. As such, they had been improperly appointed at the time of Lucia’s case. Though the SEC retroactively ratified its ALJ appointments pursuant to the Appointments Clause in November 2017, the full impact of the Lucia opinion for ALJs at the SEC and other federal agencies remained unclear at the time.[31]
"In light of the Supreme Court's decision in Lucia v. SEC, we find it prudent to stay any pending administrative proceeding initiated by an order instituting proceedings that commenced the proceeding and set it for hearing before an administrative law judge, including any such proceeding currently pending before the commission," stated the order.[31]
The SEC issued an order on August 22, 2018, announcing that the agency would resume adjudication proceedings before its in-house ALJs and would allow for all pending and appealed cases to have a new hearing before a different ALJ. The opportunity for a new hearing allows the SEC to restart the cases in an effort to ward off potential litigation from pending and appealed cases that were heard by a then-improperly appointed ALJ.[33][34]
See also
External links
Footnotes
- ↑ 1.0 1.1 1.2 1.3 William & Mary Law School Scholarship Repository, "Reflections upon the Federal Administrative Judiciary," 1992
- ↑ 2.0 2.1 2.2 JUSTIA, "Administrative Hearings," accessed July 21, 2017
- ↑ 3.0 3.1 3.2 3.3 3.4 3.5 JUSTIA, "Administrative Law Judges," accessed July 21, 2017
- ↑ Asimow, M. (2003). A Guide to Federal Agency Adjudication. Chicago, IL: American Bar Association. (pages xiv-3)
- ↑ Administrative Conference of the United States, "Informal Agency Adjudication, Committee on Adjudication, Proposed Recommendation for Committee," October 20, 2016
- ↑ American Bar Association, "CHAPTER 9: INFORMAL ADJUDICATION," February 8, 2002
- ↑ Washington and Lee Law Review, "Agency Adjudication, the Importance of Facts, and the Limitations of Labels," March 1, 2000
- ↑ 8.0 8.1 8.2 U.S. Office of Personnel Management, "Qualification Standard For Administrative Law Judge Positions," accessed July 20, 2017
- ↑ 9.0 9.1 Congressional Research Service, "Administrative Law Judges: An Overview," April 13, 2010
- ↑ Washington Law Review, "Some Kind of Hearing Officer," 2019
- ↑ Office of Personnel Management, "Administrative Law Judges," accessed April 1, 2025
- ↑ Administrative Conference of the United Sates, "Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal," April 1, 2025
- ↑ UC Davis Law Review, "Against Administrative Judges," accessed April 1, 2025
- ↑ 14.0 14.1 White House, "Executive Order Excepting Administrative Law Judges from the Competitive Service," July 10, 2018
- ↑ U.S. Office of Personnel Management, "Administrative Law Judges," accessed July 20, 2017
- ↑ 16.0 16.1 16.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 17.0 17.1 Office of Personnel Management, "Administrative Law Judges," accessed April 1, 2025
- ↑ 18.0 18.1 18.2 18.3 18.4 Office of Personnel Management, "Classification & Qualifications," accessed April 1, 2025
- ↑ Bloomberg Law, "Walmart Prevails on Claims DOJ's Judges Are Unconstitutional," March 26, 2024
- ↑ Reuters, "SpaceX lawsuit could gut protections for non-US citizen job seekers, DOJ says," March 25, 2024
- ↑ 21.0 21.1 21.2 Government Executive, "Court Affirms That Federal Employee Appeals Agency's Judges Are Constitutionally Appointed," January 18, 2023
- ↑ 22.0 22.1 22.2 22.3 22.4 22.5 U.S. Court of Appeals for the Federal Circuit, McIntosh v. Department of Defense, November 2022 Cite error: Invalid
<ref>tag; name "opinion" defined multiple times with different content - ↑ 23.0 23.1 United States Court of Appeals for the Fifth Circuit, "Cochran v. SEC," December 21, 2021
- ↑ 24.0 24.1 24.2 24.3 24.4 Global News Wire, "Texas Federal Judge Expresses ‘Deep Concern’ with Potentially Unconstitutional ALJ Proceedings for NCLA Client," March 26, 2019 Cite error: Invalid
<ref>tag; name "press" defined multiple times with different content - ↑ 25.0 25.1 25.2 United States District Court for the Northern District of Texas, "Complaint for declaratory and injunctive relief," January 18, 2019
- ↑ 26.0 26.1 'United States District Court for the Northern District of Texas, "Cochran v. SEC, "March 26, 2019
- ↑ 27.0 27.1 27.2 Bloomberg News, "Labor Board Affirms Appointments of In-House Judges," August 6, 2018
- ↑ Reuters, "6th Circuit says MSHA judges' appointments invalid," July 31, 2018
- ↑ 29.0 29.1 Reuters, "In confidential memo to agency GCs, DOJ signals ‘aggressive’ stand on firing ALJs," July 23, 2018
- ↑ Bloomberg, "‘Buckets of Money’ Case Tests Power of SEC Judges in Trump Era," April 23, 2018
- ↑ 31.0 31.1 31.2 Pensions and Investments, "SEC puts in-house cases on hold after Supreme Court ruling," June 25, 2018
- ↑ Securities and Exchange Commission, "In re: Pending Administrative Proceedings, ORDER," July 20, 2018
- ↑ The Wall Street Journal, "SEC to Rehear Dozens of Cases That Went Before In-House Judges," August 23, 2018
- ↑ The New York Times, "S.E.C. Will Rehear Dozens of Cases After Supreme Court Ruling," August 23, 2018
