This article was authored by Leigh Anne Schriever, who worked on drafting the recommendation discussed in this essay as an attorney advisor with ACUS.
This article first appeared in the Regulatory Review's series on "Improving the Accessibility and Transparency of Administrative Programs" that focuses on the ACUS Recommendations adopted at the December 2020 Plenary Session. Reposted with permission. The original may be found here, and the Regulatory Review's entire series may be found here.
Many federal agencies employ adjudicators who conduct adjudications on these agency matters. The public, however, knows little about the individuals who conduct these proceedings and may wonder: How are these adjudicators hired? How are cases assigned? And how do agencies ensure that adjudicators give the parties involved a fair hearing?
Agency websites often reveal surprisingly little information in response to these kinds of questions about agency adjudicators, and agencies should provide more information to the public on this topic.
Some adjudicators are administrative law judges (ALJs). Under the Administrative Procedure Act, ALJs preside over formal hearings. A fairly uniform set of rules governs their employment in an effort to ensure impartiality.
Recently, however, the terms of ALJs’ employment have come under scrutiny. In Lucia v. Securities and Exchange Commission, the U.S. Supreme Court concluded that ALJs presiding over securities adjudications are “officers of the United States” and subject to the requirements of the Appointments Clause in the U.S. Constitution. The Court granted the plaintiff in Lucia a new hearing because the ALJ presiding in his case had not been appointed consistent with the Constitution.
Beyond ALJs, other adjudicators hold a variety of titles, such as “administrative judge,” “hearing officer,” or “administrative appeals judge.” These adjudicators are subject to a heterogenous set of statutory provisions, agency rules, and agency policies.
But, as a 2018 Administrative Conference of the United States (ACUS) report by Kent Barnett of the University of Georgia School of Law and Logan Cornett, Malia Reddick, and Russell Wheeler of the Institute for the Advancement of the American Legal System highlights, little is known about these adjudicators. Nor is it well-understood how widely agency adjudicator policies vary—including policies about the kinds of cases they hear, minimum hiring qualifications, and measures to ensure impartiality.
For three key reasons, it is important for agencies to make information about adjudicators more accessible to the public. First, greater transparency about adjudications and adjudicators will improve public trust in agency processes. Individuals should feel more confident that they are receiving a fair hearing if they know more about their adjudicators.
Second, agencies can better learn from each other’s practices and experiences if they share information about adjudicators.
Finally, with continued challenges in federal courts to the constitutionality of adjudicators’ appointments, greater transparency will promote public understanding about the constitutional status of adjudicators.
To encourage greater transparency, ACUS began a project examining the publication of policies governing agency adjudicators.
Some agencies, it turns out, already publish a lot of information about their adjudicators. As ACUS highlighted in its report on this project, some agencies publicize policies governing adjudicators’ appointment and qualifications, duties and responsibilities, supervision and assignment of work, and position within agencies’ organizational hierarchies.
Some agencies also publish information about methods of evaluating adjudicator performance, their recusal or disqualification, the process for reviewing adjudications, limitations on communications with parties, and other policies ensuring a separation between agency adjudicative and enforcement functions. Yet agencies do not always disclose all policies associated with adjudicator positions. Policies about adjudicator compensation, discipline, and removal areless-readily available.
Even when agencies do make information about agency adjudications public, that information is often difficult to find and scattered across a number of sources. Some information can be found in an agency’s authorizing statute, while other policies are formally enacted as regulations and included in the Code of Federal Regulations.
In addition, many other policies are found only in the Federal Register or on agency websites. The information available on agency websites often lacks detail—despite being the first source many people consult for information. Furthermore, many of these documents are written in very technical language, which can be difficult for the general public to understand.
Based on this research, ACUS adopted at its last Plenary Session a recommendation about the publication of policies governing agency adjudicators.
In its recommendation, ACUS suggests that agencies provide information on their websites about certain adjudicatory policies. It urges agencies to offer this information in a short, straightforward manner, and it includes a list of the kinds of policies that should be published. ACUS also recommends that agencies post links and citations to sources of legal authority and other key legal documents, such as federal statutes, agency-issued rules, publicly available guidance documents, delegations of authority, and position descriptions.
ACUS notes that agencies should present these materials in a clear, logical, and comprehensive fashion. Depending on the agency’s mission, a link to the information should be placed either on the agency’s homepage or in a location on the website that is dedicated to adjudicative materials—somewhere that a user would logically navigate to if searching for that information.
With its new recommendation on adjudicator information, ACUS aims to make more information readily accessible to everyone who visits an agency’s website. Its recommendation builds on a number of other recommendations ACUS has adopted in the past several years. As ACUS indicates in all of these recommendations, agency transparency is an important part of good governance.