I did not take a course on administrative law when I was in law school at the University of Kentucky.  I am not sure if such a course was even offered at UK.  In the 1960s, law school curriculum was largely unchanged from what was offered at law schools in the 1930s.  Students came to class with our version of an IPAD (a ballpoint pen and yellow legal pad), and the men wore ties.  The few women students wore suits and high heel shoes.

 

I came to Washington, DC in 1967 after graduation and began my career as an attorney on the staff of the Federal Trade Commission, the “Little Old Lady of Pennsylvania Avenue,” as it was called sometimes by its critics.  Very quickly I was involved in proceedings before “Hearing Examiners,” later named administrative law judges (ALJs).  Except for two years in the Army, I was involved in administrative adjudication and rulemaking proceedings for over 40 years as a federal official.  I was an investigating attorney, trial counsel, and a judge.  Even during the years I spent with the Antitrust Division of the Department of Justice, I was involved in administrative proceedings of all kinds at various government agencies, such as the Civil Aeronautics Board and the Interstate Commerce Commission.  To those who say that federal agencies never die, tell that to the large numbers of people, public and private, who earned their living at the CAB and ICC.  Today, I continue to participate in administrative adjudications at the State Department as a member of the Foreign Service Grievance Board.

 

The nature of administrative adjudication has changed a great deal in the past 50 years.  I doubt that the authors of the Administrative Procedure Act (APA) would recognize the breadth of administrative proceedings that take place each day before ALJs, Administrative Judges, Immigration Judges, Boards, Commissions, Adjudication Officers, and appellate boards at over thirty federal agencies and departments.  In the 1960s, economic regulation at agencies, such as the ICC, CAB, Federal Power Commission, and Federal Communications Commission, were staffed by large numbers of judges who held multi-party hearings, for example, to determine if an airline could fly from Chicago to Topeka, a trucker could haul meat products from Des Moines to Portland, and what rate a company could charge for the transmission of natural gas across state lines.  While there is still a considerable amount of economic regulation by federal agencies, much has been “deregulated” or simply abolished.  

 

Today, a great deal of administrative adjudication involves the determination of benefits or rights by agencies.  Fifty years ago, the Social Security Administration (SSA) and Department of Labor had very small staffs devoted to adjudication.  Today SSA has almost 1400 judges and a caseload in the hundreds of thousands.  Fifty years ago, there were no Medicare hearings.  Today, the Centers for Medicare and Medicaid Services employs almost 100 judges and has a caseload in the hundreds of thousands.  The Board of Veterans’ Appeals (BVA) has an overwhelming caseload and is still processing claims from the Korean War.  Today, we have “new” agencies involved in administrative adjudication, such as the Federal Labor Relations Authority, Commodity Futures Trading Commission, the Occupational Safety and Health Review Commission, Equal Employment Opportunity Commission, and the Federal Mine Safety and Health Review Commission. 

 

I was a member of several committees and an interested observer of the operations of the old Administrative Conference of the United States before it was abolished in 1995.  I was very pleased to join the new ACUS in 2010 when Congress wisely recreated the agency.  The overwhelmingly important role that the administrative process plays in the daily lives of our nation’s citizens, businesses, and institutions requires an agency that can study that process and advise agencies, presidents, and the Congress on how the process is working and how it can be improved.  The renewed ACUS fulfills that responsibility with a partnership composed of professionals from the agencies, public and private sectors, and academic institutions through careful study and vigorous debate.

 

I have chaired the Adjudication Committee for ACUS for the past several years.  During that time we have issued reports and recommendations in several different areas of federal adjudication.  All of the committee’s recommendations, with modifications, have been adopted by the Plenary Sessions.  In 2011, our first committee project concerned the use of video hearings by agencies that have high volume caseloads as a way to reduce backlogs and improve the efficiency of the hearing process without compromising the rights of the parties.  The report reviewed the history of the use of video hearings at several agencies (SSA, BVA, and the Executive Office for Immigration Review (EOIR)) and found that the use of video hearings can help the agencies to be more efficient and improve the delivery of service to the parties.  The recommendations urged agencies with high volumes of cases to consider the use of video hearings, and set forth certain criteria that should be considered when making that decision.  Also, the recommendation and report described certain best practices that agencies considering video technology should consider as part of their decisional process.

 

Our next project in 2012 involved the challenges in the deportation hearing process at EOIR.  The caseload for EOIR had reached almost 250,000 cases with a pending time period of 459 days. After an extensive study of potential improvements to the deportation hearing process, the Plenary Session adopted a broad range of recommendations for improvement including the representation of aliens in the process, improved management practices at EOIR, and the increased use of video hearings.

 

The Committee’s third project studied a part of the adjudication process at SSA for disability and supplemental income claims.  SSA operates the largest disability claims process in the nation with a pending caseload of over 750,000 cases.  The nearly 1400 SSA judges hear and decide about 500 cases per judge each year.  The judges and the agency have accomplished a great deal in the processing of this large volume of work.  However, the system is struggling to deal with a rising tide of new cases each year with a process that strives to be efficient, respect the rights of claimants, and delivers decisions in a timely manner.  It is a difficult balance to achieve.  

 

Our review and recommendations dealt with limited parts of the system.  The recommendations adopted by the Plenary Council dealt with the SSA treating physician rule, steps SSA could undertake to reduce remands from the federal courts, and the role of the SSA Appeals Council to deal with variances in decisional outcomes, hearing lengths, and the application of agency policy.  There is no doubt that the SSA process needs considerable more analysis to achieve a fully efficient and fair system of adjudication.

In a way, administrative law is the gift that keeps on giving.  It is never static.  It changes on a continuing basis as society changes and the Congress and agencies enact policies or new laws to deal with the change.  Much of the subject matter taught in law school today did not exist 50 years ago, and much of the “new” law and policy is based on the administrative process.  Just try to imagine what the next 50 years will bring to the legal profession and the nation.

 

I am very proud to be part of the renewed ACUS and the work of the Committee on Adjudication.  ACUS has demonstrated that valuable work to improve the process can be done by a committed partnership of private and public representatives.  There is much more that needs to be done to achieve the purposes of the APA, and ACUS will play a leading role in achieving that goal.