Agencies today conduct adjudicative hearings in three ways: in person, remotely using video and audio (video or video teleconference (VTC) hearings), and remotely with audio only (telephone hearings).
In more normal times, each method has its boosters and skeptics. To see just how unpopular any shift to video or hearings can be, just look at public responses to the use of remote hearings in the immigration courts and a recent Social Security Administration proposal that would have given the agency greater flexibility to schedule video hearings.
But these are not normal times. We’re practicing social distancing. We have to #stayathome. A majority of the country—now including DC and its suburbs where most federal agencies congregate—is under a stay-at-home or shelter-in-place order. Federal, state, and local government offices are mostly shuttered, with all but essential employees sent home to telework. Courts are adopting similar measures.
These are all necessary steps—steps we shouldn’t lift until public health experts deem it wise. That may take some time; how long is uncertain. In the meantime, what should happen with the millions of critical unemployment, disability, worker’s compensation, immigration, Medicare, and other cases awaiting hearings at federal, state, local agencies across the country?
Agencies are undoubtedly better equipped to meet this challenge today than at any time in the past. Over the past few decades, agencies have ramped up their capacity to hold video hearings and electronically serve parties, sign documents, manage cases, and view case records. E-filing has become increasingly ubiquitous. Most importantly today, adjudicators and staff, as well as parties and their representatives, can often access these systems from their homes.
Still, agencies now face new legal and practical questions:
- Many agencies conduct video and telephone hearings only in limited situations or with the consent of the parties. Is it consistent with due process to now compel parties to appear remotely? Should they allow parties to choose between a remote hearing or indefinite postponement? (What if one party wants to proceed remotely, but another would prefer to wait for an in-person hearing?) Should agencies simply postpone all hearings indefinitely or shift everything three months later (or longer)?
- In contexts where open hearings are the norm, can remote hearings easily be made available to the public, either in real time or afterward?
- More broadly, what do agencies and adjudicators need now to do authorize the use or expanded use of remote hearings? Do existing rules of practice need to be amended? Does a Chief Judge need to issue an order? Can individual adjudicators issue their own standing orders (and should they)?
- Many adjudicators have experience conducting remote hearings from agency-furnished spaces using agency-procured equipment. Are adjudicators now equipped and trained to manage remote hearings from home, perhaps using their own equipment? Are they able to record or transcribe remote hearings from home?
- What software or service should adjudicators use to conduct remote hearings? Is a well-known, user-friendly, off-the-shelf, but public service (e.g., Zoom for Government) sufficient, or is a more secure option preferable?
- Are internet connections consistently and sufficiently stable and high-quality? Can the country’s internet infrastructure handle the data-heavy transition to video conference by agencies (and everyone else)?
- Do adjudicators, staff, and participants have remote access to responsive IT support?
- How can adjudicators accommodate unrepresented parties; parties who cannot be in the same physical location as their representatives; and parties who, for any number of reasons, may have trouble using VTC technology?
There’s probably no single, sufficient answer to any of these questions. There’s extraordinary diversity among the processes, purposes, infrastructure, resources, and laws applicable to varied federal, state, and local adjudication programs. As the current crisis progresses, and as it impacts local communities differently, agencies may also face unique challenges and will need to flexibly adapt to them.
More importantly, it’s probably too early to identify clear best practices. They will emerge as agency officials experiment; solicit feedback from adjudicators, staff, participants, and stakeholders; and take stock of what’s working and what isn’t. Agencies and external stakeholders should share their observations broadly and publicly—for their own benefit and the benefit of other agencies who face similar challenges.
The National Association of the Administrative Law Judiciary (NAALJ) has already put out a request for administrative tribunals to share best practices. Other organizations, and agencies themselves, should consider doing the same. With this post, I hope to help jump-start that dialogue by cataloging the approaches some federal, state, and local agencies have publicly adopted as of March 31. My apologies for any I’ve missed.
Much of the information below will undoubtedly change in the coming weeks and months as agencies learn important lessons, hear from parties and advocates, and refine their protocols. During this already challenging time, I hope they’ll also consider sharing lessons, feedback, and refinements with the public and with each other.
Board of Veterans Appeals
BVA has temporarily suspended all in-person hearings and encouraged parties and their representatives to “elect” a virtual hearing or reschedule. Parties who prefer to wait for an in-person hearing “will receive top priority in hearing rescheduling.” Virtual hearings, which the agency had already planned to launch in 2020, allow parties to appear before Veterans Law Judges (VLJ) “from a personal computer or mobile device.” BVA provides detailed instructions for parties on internet and device requirements, troubleshooting (including access to a help desk), and hearing recording and transcription.
Executive Office for Immigration Review
There has been mounting pressure on EOIR over the last several weeks to postpone hearings or shift to remote hearings. As covered in the press (here, here, here, here, here, here, here, here, etc.), all of the following have directed statements to the Chief Immigration Judge, EOIR Director, or Attorney General: National Association of Immigration Judges; the American Immigration Lawyers Association; dozens of immigration law professors; more than 100 advocacy and labor organizations; and Democratic senators.
On March 16, EOIR postponed, through April 10, all hearings for cases in which a party is not currently detained. On March 18, the EOIR Director issued a Policy Memorandum which outlined emergency procedures, including discretion to waive the presence of represented respondents, grants motions for continuance for good cause, limit the number of people in attendance, issue standing orders regarding telephone hearings, and conduct hearings by VTC when feasible. And on March 23, EOIR and the Department of Homeland Security released a joint statement postponing all Migrant Protection Protocols (MPP) hearings through April 22. Affected individuals must “present themselves at their designated port of entry on their previously scheduled date to receive a tear sheet and hearing notice containing their new hearing dates.”
Most immigration courts remain open. Many are open only for detained hearings, given the liberty issues at stake, or other limited purposes. Others are closed. Individual offices and immigration judges have issued their own standing orders, many of which permit representatives to appear by telephone for certain proceedings “without prior approval and without filing a motion in advance.” Most require representatives to give the immigration court a phone number where the immigration judge can call the representative for the hearing.
Federal Mine Safety and Health Review Commission
On March 24, FMSHRC suspended all in-person hearings, settlement judge conferences, and mediations through April 30. Hearings may continue by telephone or other means “[w]ith the consent of the parties and in coordination with the presiding administrative law judge.” ALJs can decide cases on the record “[i]f the parties agree that an in-person evidentiary hearing is not needed.” Settlement judge conferences and mediations may also continue by telephone or other means.
Internal Revenue Service
The IRS announced that the Independent Office of Appeals is not holding in-person conferences but may hold conferences by telephone or videoconference.
On March 19, the Chief ALJ issued an order suspending most hearings and procedural deadlines through May 15. Parties may petition the ALJ to conduct a telephone hearing “based on compelling circumstances.” With the consent of all parties, mediators and settlement judges may also conduct mediations and settlement judge conferences by telephone. The order does not apply to certain expedited non-immigrant employment proceedings.
Merit Systems Protection Board
As of March 16, all MSPB employees are on mandatory telework, and parties are encouraged to use the agency’s e-filing system, e-Appeal Online, instead of submitting paper documents. MSPB is “assessing each situation” and “will communicate with affected parties.” Some hearings will reportedly take place by phone.
National Labor Relations Board
Occupational Safety and Health Review Commission
According to a statement on its website, The Office of ALJs “remains open and is conducting necessary judicial business (using technology as appropriate). Most staff are teleworking; only “essential staff” are in the office. The Chief ALJ “is confident that all assigned judges will apply the principles of flexibility and accommodation to reasonable requests for filing or scheduling adjustments necessitated by reasonable and fact-based travel, health or safety concerns, or advice or directives of public health officials.”
Office of Medicare Hearings and Appeals
According to its website, although OMHA offices are closed to the public, they “remain open for business with employees working under maximum telework flexibilities.” While the Chief ALJ “supports the Administrative Law Judges exercising flexibility with regard to reasonable requests to reschedule hearings,” parties “should continue to appear for hearings by telephone as scheduled” unless notified otherwise.
Patent Trial and Appeal Board and Trademark Trial Appeal Board
On March 13, the Patent and Trademark Office announced that all hearings scheduled to take place at USPTO offices on or after March 13 would be “conducted remotely by video or telephone.” According to the official statement, PTAB and TTAB will provide parties with additional instructions on how to participate in remote hearings.
According to a practitioner, PTAB has reportedly offered parties the option of a video or telephone hearing. According to the account, PTAB “plans to retain control of the medium and provide the connection information to the parties; however, the parties must provide the equipment and facilities to participate on their end.” The orders so far require parties to coordinate with PTAB a week before scheduled hearings to test connections, acknowledge bandwidth problems, “provide suggestions for accommodating for such technological shortcomings, such as identifying the speaker and increasing pauses between speakers.”
Social Security Administration
Following a statement from the Association of Administrative Law Judges and a fair amount of press coverage, SSA closed its hearing offices to the public on March 17 and advised claimants it would contact them before their hearing to “offer” a phone hearing. SSA will indefinitely postpone hearings for claimants who would prefer to appear before an ALJ in person. On March 23, SSA apparently reported that ALJs could not yet conduct telephone hearings from home. In a March 27 interview, Judge Melissa McIntosh, President of the Association of Administrative Law Judges, said SSA ALJs were awaiting guidance on conducting telephone hearings from home using software that would enable ALJs to securely place and receive calls and record phone conversations.
While there appear to be no plans for ALJs to conduct video hearings from their homes, it’s worth noting that, since 2008, SSA has conducted a pilot under which representatives can make appearances from their own offices. The pilot requires that representatives satisfy certain technical requirements, including specifications for bandwidth, encryption, lighting, and equipment. One claimant’s representative has also floated using FaceTime, Skype, or Viber.
State and Local Agencies
Here are links to the policies I was able to locate on the state central panel websites as of March 31:
- California (see also special education hearings and mediation)
- Colorado (see also workers’ compensation hearings and general services’ hearings)
- District of Columbia
- Florida (see also supplemental order)
- Georgia (see also instructions for hearings by telephone or video)
- New Jersey
- New York
- North Carolina
- South Carolina (see also supplemental order)
- South Dakota
Some offices are continuing with in-person hearings, often with the option of a remote hearing (Oregon, North Carolina, South Dakota). Some offices have simply postponed all hearings, indefinitely or through some future date (Kansas, Louisiana, Maryland, New Jersey, New York), perhaps due to a lack of resources, remote hearing infrastructure, or telework readiness.
Others have postponed certain categories of hearings but are proceeding with certain critical caseloads either remotely (Alaska, California, Colorado, District of Columbia, Illinois) or in person (Colorado, Minnesota, Texas). In some jurisdictions, whether a hearing will proceed remotely or be postponed also depends on the locality in which the hearing is scheduled to take place (Colorado) or the specific circumstances of a case (Minnesota).
At least one agency appears to be converting hearings to settlement conferences (Wisconsin).
Where in-person hearings are allowed to go forward, states have typically instituted policies such as allowing only parties and their representatives in the hearing room, requiring witnesses to appear remotely, permitting parties to participate remotely, permitting conversion to a remote hearing, requiring that parties submit evidence and other documents electronically days before the hearing, advising individuals with diagnosed Covid-19 or flu-like symptoms not to enter the premises, or continuing hearings for those with Covid-19 or flu-like symptoms (Colorado, North Carolina South Carolina, South Dakota, Texas).
Although some agencies are conducting video hearings, agencies that have decided to proceed with remote hearings in some or all cases are typically doing so by telephone. Agencies that are using video hearings—at least in some cases—include California, Florida, Georgia, North Carolina, Seattle, and Wisconsin. Georgia has provided instructions for using GoToMeeting for telephone and video hearings. Seattle is using Skype. At least in mediation cases, California has provided instructions for using Microsoft Teams.
In contrast to federal agencies, several of which are conducting remote hearings on an opt-in basis, many state agencies appear to be defaulting to remote hearings, at least in certain cases, except where there is good cause (Colorado, Florida, Oregon), one party objects (District of Columbia, Florida, Iowa, Oregon, Washington), or all parties mutually agree to continue the hearing (Alaska). Some state agencies do require (or at least strive to obtain the consent) of all parties before proceeding with a remote hearing (North Carolina, Texas). While some agencies are proactively reaching out to those with scheduled hearings, some agency policies simply advise parties to contact the office if they would like to proceed with a remote hearing (New York City).
New policies are coming online each day. As NAALJ has urged, state and local agencies will do well to share notes, remain flexible, and keep the public informed.
Jeremy Graboyes is Deputy Research Director at the Administrative Conference of the United States. The views expressed in this essay are those of the author and do not necessarily represent the views of the Administrative Conference or the federal government.