The Administrative Procedure Act (“APA”) directs each agency to appoint as many administrative law judges (“ALJs”) as necessary to conduct proceedings in accordance with the APA’s main adjudicative provisions. 5 U.S.C. §§ 556, 3105 (2018). The APA does not, however, specify what procedure should be used to appoint ALJs. The Appointments Clause of the United States Constitution provides that “Officers” of the United States must be appointed by the president with the consent of the Senate, except that Congress may provide for the appointment of “inferior Officers” by the president, a head of a department, or a court. U.S. Const. art. II, §2, cl. 2.
In Lucia v. Securities and Exchange Commission (“SEC”), the Supreme Court held that SEC ALJs are “Officers” of the United States subject to the Appointments Clause. 138 S. Ct. 2044 (2018). As a consequence, the appointment of these ALJs by SEC staff members was unconstitutional. After Lucia, the president issued Executive Order 13843, which, among other things, placed ALJs in the “excepted service,” and, as a result, eliminated the existing United States Office of Personnel Management-administered process for the selection of ALJs.
After Lucia and Executive Order 13843, agencies have begun to modify their ALJ hiring procedures. In late 2018, for example, the United States Department of Labor and the United States Department of Health and Human Services adopted new ALJ hiring procedures that implement Executive Order 13843. See U.S. Department of Health and Human Services, “Administrative Law Judge Appointment Process: Departmental Appeals Board, Office of Medicare Hearings and Appeals,” https://www.hhs.gov/sites/default/files/alj-appointment-process.pdf; Secretary’s Order 07-2018, Procedures for Appointments of Administrative Law Judges for the Department of Labor, 83 Fed. Reg. 44307 (Aug. 30, 2018). These agencies have both chosen merit-based hiring processes tailored to each agency’s individual needs.
The Administrative Conference of the United States (“ACUS” or “the Conference”) recently commissioned a study on the selection of ALJs after Lucia and Executive Order 13843. Professor Jack Beermann of the Boston University School of Law, and Professor Jennifer Mascott of the Antonin Scalia Law School at George Mason University, served as researchers on the project. In this capacity, Professors Beermann and Mascott conducted interviews with thirteen of the twenty-eight agencies that employ ALJs. These interviews provided Professors Beermann and Mascott with information regarding agency practices and the potential mechanisms for evaluation of ALJ candidates. The researchers relayed and analyzed the data collected from these interviews in their draft Research Report on Federal Agency ALJ Hiring after Lucia and Executive Order 13843 (March 28, 2019).
A Joint Committee—consisting of the the members of ACUS’s Committee on Adjudication and Committee on Administration and Management—has considered the researchers’ report and proposed a series of recommendations. Subject to approval by the Conference’s Council, the recommendations proposed by the Joint Committee will be discussed and voted on by the full Assembly during the agency’s June 2019 plenary session.
©2019 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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