Federal administrative adjudicators
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Federal administrative adjudicators are federal government officials who preside over administrative hearings and proceedings in a process called adjudication. These officials can be divided into two categories: administrative law judges (ALJs) and non-ALJ adjudicators, sometimes referred to as administrative judges (AJs).
Although many of these officials have the word judge in their job title, administrative adjudicators are part of the executive rather than the judicial branch. They are not judges as described in Article III of the Constitution.
Despite not being Article III judges, administrative adjudicators may prepare for and conduct hearings or proceedings, make findings, and issue decisions on behalf of the agency that employs them. Dozens of federal agencies employ administrative adjudicators to handle a variety of cases, including enforcement actions, immigration hearings, and applications or appeals for benefits, licenses, and patents.
This page features information on the numbers and titles of federal administrative adjudicators, the agencies that use them, and the qualifications required of them, as well as links to more in-depth coverage of these officials and related aspects of the federal administrative state.
Administrative law judges
Administrative law judges (ALJs) are adjudicators that conduct all formal adjudication proceedings and may also conduct informal adjudication. Under the Administrative Procedure Act (APA) of 1946, which created and defined the role of the ALJ, agencies must have an ALJ preside when a hearing on the record is required by statute. In formal adjudication proceedings, ALJs act as judge and jury in a trial-like proceeding.[1][2][3][4]
Nearly 2,000 ALJs worked at various federal agencies as of March 2017; the largest employers of ALJs at the time were the Social Security Administration (1,655 ALJs), the Office of Medicare Hearings and Appeals at the Department of Health and Human Services (101 ALJs), and the Department of Labor (41 ALJs). Prospective ALJs are recruited and exmained by the Office of Personnel Management, then hired and paid by agencies.[1][2][3][4]
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.[1][2]
The OPM website describes the work of ALJs in the following way:[2]
| “ | 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"[2] | ||
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[2] | ||||||
|---|---|---|---|---|---|---|
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Non-ALJ adjudicators
Non-ALJ adjudicators, sometimes collectively referred to as administrative judges (AJs), have a variety of responsibilities and titles depending on the agency that employs them and their caseload. Non-ALJs conduct informal adjudication proceedings, which may involve a hearing or a written process. Unlike administrative law judges, non-ALJ adjudicators are not covered by the APA and their positions are not standardized across the government. Non-ALJs conduct the majority of adjudication proceedings.[6]
The work, titles, qualifications, and pay of non-ALJ adjudicators vary substantially. Law professor Kent Barnett described the variety of titles assigned to non-ALJ adjudicators in his 2019 law review article "Some Kind of Hearing Officer":[6]
- "The more than 10,000 non-ALJs go by numerous titles, including Administrative Appeals Judge (and similar variations), Administrative Judge, Attorney-Examiner, Copyright Royalty Judge, Hearing Officer, Immigration Judge, Judgment Officer, Patent Examiner, Presiding Officer, Regional Director, Regional Judicial Officer, and Settlement Officer. Of these, 964 have the word 'judge' in their titles."[7]
There were more than 10,000 non-ALJ adjudicators working at various federal agencies as of February 2018. The largest employers of non-ALJs at the time were the Patent and Trademark Office at the Department of Commerce (7,856 patent examiners), the Internal Revenue Service (714 non-ALJs), the Department of Veterans Affairs (630 non-ALJs), National Labor Relations Board (600 non-ALJs), and the Executive Office for Immigration Review at the Department of Justice (326 immigration judges and other non-ALJs).[6]
The Administrative Conference of the United States (ACUS), an independent federal agency tasked with developing recommendations to improve federal administrative processes, published a draft report on non-ALJ adjudicators on February 14, 2018. The report contained the most up-to-date data as of the last update for this article in March 2024. The report included survey data about non-ALJs collected from at least one subcomponent of 53 federal agencies. Surveys were sent to 64 agencies. The ACUS report highlights the difficulty of describing non-ALJs and the work they do, noting in the introduction that "these Non-ALJ Hearings do not share a statutory framework. Nor do the non-ALJs themselves." The report later describes the variety of titles used by non-ALJs:[6]
| “ |
One of the difficulties in studying non-ALJs is simply describing them because of their numerous titles. Agencies reported having 37 types of non-ALJs, meaning that one agency or subcomponent may have more than one type of non-ALJ (for instance, Administrative Judges and Hearing Officers). Those 37 separately identified types of non-ALJs share 23 titles (meaning, for example, that more than one agency may employ non-ALJs with the title “Hearing Officer”). ... Seven of those titles include “judge” in them and are held by nearly 1,000 (964) of the non-ALJs. And nearly 200 of those non-ALJs are referred to as “Administrative Judges,” a title very similar to “Administrative Law Judge.”[5] |
” |
| —ACUS, "Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal"[6] | ||
Non-ALJs by the numbers
Non-ALJs by agency
The following table shows the number of full- and part-time non-ALJs employed by various federal agencies:
| Number of non-ALJs by agency[6] | |||
|---|---|---|---|
| Agency | Subcomponent | Full-Time Non-ALJs | Part-Time Non-ALJs |
| Administrative Office of the United States Courts | Fair Employement Practices Office | 1 | |
| Commodity Futures Trading Commission | Office of Proceedings | 15 | |
| Equal Employment Opportunity Commission | 87 | 5 | |
| Federal Deposit Insurance Corporation | Ad-hoc | ||
| Federal Labor Relations Authority | Office of General Counsel | 40 | |
| Federal Maritime Commission | 2* | ||
| Government Accountability Office | 43 | 2 | |
| Library of Congress | 3 | ||
| Merit Systems Protection Board | 68 | 2 | |
| National Aeronautics and Space Administration | 1 | ||
| National Labor Relations Board | 600 | ||
| Nuclear Regulatory Commission | 11 | 19 | |
| Peace Corps | 6 | ||
| Pension Benefit Guaranty Corporation | 6 | ||
| Railroad Retirement Board | Bureau of Hearings and Appeals | 6 | |
| Social Security Administration | Office of Appellate Operations | 61 | |
| U.S. Environmental Protection Agency | Office of Administration & Resources | 2 | |
| U.S. Environmental Protection Agency | Regional Offices | 10 | |
| U.S. Department of Agriculture | Agricultural Marketing Service, Specialty Crops Program | 3 | |
| U.S. Department of Commerce | Patent Trial and Appeal Board | 265 | 10 |
| U.S. Department of Commerce | Patent and Trademark Office | 7,856 | |
| U.S. Department of Defense | Armed Services Board of Contract Appeals | 22 | |
| U.S. Department of Education | Office of Hearings and Appeals | 2 | |
| U.S. Department of Health and Human Services | Office of Secretary, Departmental Appeals Board | 5 | |
| U.S. Department of Homeland Security | Coast Guard | 3 | |
| U.S. Department of Justice | Executive Office for Immigration Review | 326 | |
| U.S. Department of Labor | Benefits Review Board | 5 | |
| U.S. Department of the Treasury | Alcohol and Tobacco Tax and Trade Bureau | Contract | |
| U.S. Department of the Treasury | Internal Revenue Service | 714 | |
| U.S. Department of Veterans Affairs | 630 | ||
| *One non-ALJ is appointed as necessary | 10,792 | 39 | |
| 10,831 total reported non-ALJs | |||
Non-ALJ titles
The following table shows the various titles that agencies use for their non-ALJ adjudicators:
| Titles of non-ALJs[6] | ||
|---|---|---|
| Title | Number | "Judge" in Title? |
| Administrative appeals judge | 66 | Yes |
| Administrative judge | 193 | Yes |
| Administrative patent judge | 275 | Yes |
| Appeals board member | 11 | No |
| Appeals officer | 457 | No |
| Attorney-examiner / Senior attorney | 42 | No |
| Board of contract appeals judge | 22 | Yes |
| Board of immigration appeals member | 16 | No |
| Copyright royalty judge | 3 | Yes |
| Decision review officer | 535 | No |
| Hearing officer | 651 | No |
| Hearing panelist | 6 | No |
| Immigration judge | 310 | Yes |
| Judgment officer | 15 | No |
| Labor arbitrator | Contract | No |
| Ombudsman | 1 | No |
| Patent examiner | 7,856 | No |
| Presiding officer | 3 (plus ad hoc) | No |
| Regional director | 6 | No |
| Regional judicial officer | 10 | No |
| Settlement officer | 257 | No |
| Small claims officer | 1 | No |
| Veterans law judge | 95 | Yes |
| Total number of non-ALJs / Total with "judge" in title: | 10,831 | 964 |
Noteworthy events
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.[8][9][10]
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.[9]
"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.[9]
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.[11][12]
See also
External links
Footnotes
- ↑ 1.0 1.1 1.2 1.3 Office of Personnel Management, "Administrative Law Judges," accessed April 13, 2018
- ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 Office of Personnel Management, "Classification & Qualifications," accessed April 13, 2018
- ↑ 3.0 3.1 JUSTIA, "Administrative Hearings," accessed July 21, 2017
- ↑ 4.0 4.1 JUSTIA, "Administrative Law Judges," accessed July 21, 2017
- ↑ 5.0 5.1 5.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ 6.0 6.1 6.2 6.3 6.4 6.5 6.6 Administrative Conference of the United Sates, "Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal," February 14, 2018
- ↑ Washington Law Review, "Some Kind of Hearing Officer," 2019
- ↑ Bloomberg, "‘Buckets of Money’ Case Tests Power of SEC Judges in Trump Era," April 23, 2018
- ↑ 9.0 9.1 9.2 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
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