Of the hundreds of thousands of claims and benefits agencies adjudicate each year, the overwhelming majority are presided over by administrative adjudicators who are neither administrative law judges (ALJs) nor agency heads. These adjudicators are known by many different titles (e.g., “Immigration Judge,” “Veterans Law Judge,” “Administrative Patent Judge,” “Administrative Appeals Judge”) but are commonly referred to collectively as “administrative judges” (AJs). While hearings over which ALJs preside are regulated by the adjudication provisions of the Administrative Procedure Act (APA) (5 U.S.C. §§ 554, 556–557), AJ hearings are regulated by the unique governing statutes, regulations, practices, and customs of the agencies that employ them. ACUS recently adopted a recommendation—Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative Procedure Act—that offers best practices for agencies to consider when updating or establishing procedures for evidentiary hearings not governed by the adjudication provisions of the APA. It did not, however, offer recommendations that specifically address the adjudicators who preside over these hearings: AJs.
ACUS recently undertook a project on the selection, oversight, evaluation, discipline, and removal of AJs, subjects that were outside the scope of Recommendation 2016-4. Professor Kent Barnett of the University of Georgia School of Law and the Institute for the Advancement of the American Legal System (represented by ACUS Public Member Russell Wheeler, Logan Cornett, and Malia Reddick) serve as project consultants. Their extensive draft report was transmitted to ACUS’s Committee on Adjudication, which has proposed a recommendation. Following consideration by ACUS’s Council, it is anticipated that the Committee’s recommendation will be debated and voted on by ACUS’s Assembly at the 69th Plenary Session this June.