Notice & Comment

Addressing Doubts About a Federal Central Panel, by Richard E. Levy & Robert L. Glicksman

*This is the seventh post in a symposium on the decisional independence of administrative adjudicators. For other posts in the series, click here.

Professor Emily Bremer, the organizer of this symposium on the decisional independence of administrative adjudicators, remarked in her Introduction to the symposium that the “APA’s regime for ensuring the impartiality and decisional independence of agency adjudicators has failed.” In our initial contribution to the symposium, we recommended consideration of the adoption of the central panel model of administrative adjudication that many states have adopted as a promising reform aimed at restoring that impartiality and decisional independence. In his response to our argument, Professor Ron Levin “decline[d] to join the federal central panel bandwagon,” concluding that we had not persuaded him that the shift to a central panel model was either a necessary or appropriate means of addressing concerns about the decisional independence of agency adjudicators.

We thank Professor Levin for engaging with us on this issue, and Professor Bremer and the Yale Journal on Regulation for giving us the opportunity to respond to his qualms about our recommendations. Because we respect Professor Levin and others who have objected to the central panel model, we have sought to consider those objections with an open mind. Nonetheless, we remain unconvinced by those objections and stand by our original judgment, which rests on a very simple, straightforward, and (we think) unassailable premise: those responsible for adjudicating cases involving an agency are less vulnerable to improper influence by the agency if they are not employed by and under the direct supervision of the agency.

Professor Levin posits that our article in the Minnesota Law Review promoting a central panel “gave impetus to a resolution that the National Conference of the Administrative Law Judiciary (NCALJ) submitted to the ABA House of Delegates last summer.” It might be more accurate to say that our article provided the occasion for this resolution, insofar as the impetus—in the sense of the desire to push for this reform—was already present in those that supported it. Professor Levin explains that, as the representative of the ABA Section of Administrative Law and Regulatory Practice, he helped draft the Section’s statement of opposition to the resolution. We want to clarify our relationship to that resolution. As Professor Levin indicates, our article was published before the drafting of that resolution. Our aim in writing the article, which remains our aim today, was to put the option of a central panel on the table as a mechanism for restoring the decisional independence that the APA’s drafters sought to provide.

Although members of the NCALJ sought our assistance in drafting a report to support their resolution, our article, and the arguments for a central panel we have presented as part of this symposium, stand on their own. Put differently, our support for a central panel is not in response to NCALJ concerns, which we became aware of only after we published our article. Our article was driven by our own observations and concerns, which other administrative law scholars share, including, as noted above, Professor Bremer. Conversely, although we have been happy to support efforts to obtain ABA endorsement for a central panel, we were not involved in the drafting of the resolution itself and our support for a central panel is not tied to the specifics of that resolution.

In our initial submission to this symposium, we reported that we had received comments from ALJs about the behind-the-scenes pressure they had received from their agencies’ political leadership to decide cases in ways the leadership favored. Professor Levin suggests that we have accepted these assessments too uncritically, that ALJs are not disinterested, and that “the voices of agency leadership have not been heard in this debate.” It is not surprising to us that reports of improper pressure come from the ALJs who purport to have been subject to it. They are likely the only ones that are aware of such behind-the-scenes pressures. Although it is true that they may have an ax to grind, so do the agencies, whose leadership can be expected to deny infringing on ALJs’ decisional independence even if they have in fact done so. The objections of agency leadership are not new—agency leaders have advanced them vociferously in the past whenever proposals for a federal central panel have gained attention. We sought to account for them in our Minnesota Law Review article.

Most fundamentally, we do not share Professor Levin’s view that the SSA’s problems in the 1980s can be dismissed as an aberration. Other agencies have experienced similar problems. As Jill Family observed in her contribution to this symposium, for example, “immigration law is the poster child for the need for greater decisional independence in agency adjudication.” To be sure, it is difficult to assess the scope and severity of the problem, precisely because the means through which agencies may seek to influence adjudication are subtle and often invisible to outside observers. Thus, we completely agree with Professor Levin that “reform ought to be based on a careful and disinterested inquiry into the scope of such interference.” We would welcome such an inquiry as part of a comprehensive assessment about how best to protect adjudicatory independence, including but not limited to the creation of a central panel. Perhaps the Administrative Conference of the United States could commission such a study.

Professor Levin objects that a central panel would not solve the problem of unqualified appointments or address the negative impact of the Supreme Court’s removal power decisions, which he acknowledges are among the recent developments that “are causing consternation among many administrative judges.” He expresses concern that the creation of a central panel would give “assumedly unqualified or partisan ALJs more decisional independence.” Our point, however, is that recent developments such as President Trump’s removal of ALJs from the civil service and the Supreme Court’s shackling of congressional authority to limit presidential removal power have adverse implications for the system of administrative adjudication as a whole. The environment that these and other developments described in our initial post have opened the adjudicatory process to the kind of behind-the-scenes political pressure that many ALJs reported. That kind of pressure is more problematic when appointments are politicized and the threat of discipline hovers over adjudicators as they ponder issuing decisions that may not conform to the desires of agency leaders. The advantage of the central panel approach is that agencies do not have a direct line to adjudicators to enable them to exercise behind-the-scenes political control.

Professor Levin identifies two structural advantages that the current system supposedly provides—the ability to assign cases to adjudicators with subject matter expertise and the superior ability of agencies to manage ALJs and administrative judges in a manner that corresponds to program needs. Neither of these advantages persuade us that the current model is superior to a central panel.

First, the advantages of decisional expertise would be retained under a properly designed central panel because adjudicators within the central panel could continue to specialize and agencies would continue to have final decisional authority. For example, the same Social Security ALJs who decide disability cases under the current system would continue to decide disability cases under the central panel model—they would just be housed in a different agency. Likewise, agencies could continue to control policy provided control is exercised transparently and lawfully (such as through the adoption of legislative rules or guidance documents). In particular, agencies would retain the power to decide cases themselves instead of assigning them to the central panel, and even when judges on the central panel make initial decisions, agencies would retain de novo review authority. As long as the agency follows proper review procedures and provides an explanation for any disagreements with the judges whose decisions are being reviewed, that kind of control should not be problematic.

Second, Professor Levin argues that managerial decisions such as production quotas and quality assurance as control mechanisms would be less responsive to agencies’ programmatic needs under a central panel approach. While we agree that reasonable production quotas may be a valid means of agency supervision, these kinds of managerial actions also provide a handy tool for agency leaders to exert improper influence over their adjudicators. We cannot identify a good reason why bona fide managerial actions cannot be crafted with the agency’s input under a central panel approach or why quality assurance cannot be conducted by program experts within the panel. While there might be some marginal loss of managerial efficiency, when fundamental fairness clashes with administrative efficiency, we would rather err on the side of fairness.

We argued in our initial piece that many states have adopted some version of the central panel model and that the success of those experiments bodes well for a federal central panel. Professor Levin responded that we cited only one study concerning the effectiveness of state central panels and that the study’s focus on the input of panel directors renders its conclusions untrustworthy. While Professor Levin is correct that it would be a mistake to place too much weight on the views of panel directors, that the people who run central panels think the approach works surely says something about their efficacy. The more telling evidence is that more and more states have adopted the model over time and that the central panel’s jurisdiction has been steadily expanded in states that adopted it on a limited basis. What we have not seen is a body of literature that is critical of how central panels have worked in the states that have adopted them or a study suggesting they do not work.

In sum, whatever the merits of the APA compromise as an original matter, that compromise no longer exists. The threat to decisional adjudicatory is real and ongoing, and it justifies engaging in a thoughtful inquiry into the viability and desirability of alternative models, including a federal central panel. We understand that the status quo is the product of more than 75 years of entrenched practice and that change is likely to involve a difficult, long-term project. Sometimes, the long-term gains of such overhauls are worth the short-term costs.

Our goal is a modest one—to ensure that a federal central panel is on the table and receives serious consideration as an option for reforming and improving administrative adjudication. We expect that further study and careful consideration of the pros and cons of various approaches, as reflected in our posts and the opposing views advanced by Professor Levin, will convince others that a central panel approach offers the best balance between maintaining agency policy control and safeguarding adjudicatory independence. We hope such a study is soon in the offing.

Richard E. Levy is the J.B. Smith Distinguished Professor of Constitutional Law at Kansas University School of Law. Robert L. Glicksman is the J.B. and Maurice C. Shapiro Professor of Environmental Law at George Washington Law School.