*This is the tenth post in a symposium on the decisional independence of administrative adjudicators. For other posts in the series, click here.
To conclude this symposium, I’ve been asked to describe recommendations of the Administrative Conference of the United States (ACUS) that bear on the decisional independence of federal agency adjudicators. While this post describes recommendations adopted by the ACUS Assembly, all opinions and characterizations are my own.
Much of ACUS’s work in recent years has addressed administrative adjudication. (See www.acus.gov/adjudication.) Several recommendations in particular address issues examined in this symposium: the integrity of adjudication processes, adjudicator recruitment and hiring, administrative review of adjudicator decisions, and disclosure of policies governing adjudicators.
Integrity of Adjudication Processes
To promote the decisional integrity in evidentiary hearings not governed by the formal adjudication provisions of the Administrative Procedure Act (APA), ACUS encouraged agencies in Recommendation 2016-4 to adopt procedural regulations that largely mimic those contained in the APA’s formal hearing provisions (5 U.S.C. § 554, 556–557). Specifically, ACUS recommended that agencies:
- Require decisions to be based on an exclusive record,
- Prohibit ex parte communications between persons outside the agency and adjudicators or adjudicative staff,
- Separate agency adjudicative personnel from personnel who perform prosecutorial or investigative functions, and
- Explain whether the agency permits ex parte advice or assistance to adjudicators by staff.
ACUS also recommended that agencies adopt procedural regulations stating that an adjudicator can be disqualified if a conflict of interest, personal animus, or prejudgment of adjudicative facts is shown. Recommendation 2018-4, Recusal Rules for Administrative Adjudicators, provided further guidance.
Adjudicator Recruitment and Hiring
An important consideration for decisional independence is the manner in which adjudicators are recruited and selected. Following Executive Order 13843, which excepted ALJs from the competitive service, ACUS issued Recommendation 2019-2. That recommendation encourages agencies to recruit widely, formulate and publish minimum qualifications and selection criteria for ALJ hiring, and develop processes for reviewing and assessing ALJ applications.
Regarding non-ALJ adjudicators, Recommendation 2019-9, Recruiting and Hiring Agency Attorneys, encouraged agencies to design and administer guidelines and procedures “to ensure that those hired will act impartially and maintain the appearance of impartiality.” ACUS acknowledged that agencies may need to adopt additional procedures to assess applicants’ ability to “discharge the duties of an adjudicator with impartiality.”
Administrative Review of Adjudicator Decisions
Many agencies rely on appellate and quality assurance systems to detect and remedy issues in individual adjudications and systemic issues of fairness, accuracy, consistency, and timeliness in adjudicative programs. At the Social Security Administration (SSA), for example, administrative appeals judges review a selective sample of unappealed ALJ decisions to “enhanc[e] both accuracy and consistency.” In Recommendation 2013-1, Improving Consistency in Social Security Disability Adjudication,ACUS recommended that SSA use selective review “in a manner consistent with ALJ decisional independence” and “use announced, neutral, and objective criteria” to select cases for review.
In Recommendation 2021-10, Quality Assurance Systems in Agency Adjudication,ACUS recommended that agencies “should not use information gathered through quality assurance systems in ways that could improperly influence decision making or personnel matters.” The APA, for example, prohibits agencies from rating ALJs’ job performance or granting performance incentives like bonuses and awards.
Disclosure of Policies Governing Adjudicators
Transparency is a running theme throughout the recommendations described in this post. In addition to recommending that agencies develop policies on decisional integrity, adjudicator hiring, and the use of quality assurance information, ACUS recommended that agencies make them publicly available. As noted in Recommendation 2018-4, disclosing such information not only promotes impartiality but helps “inspire public confidence” in agency decision making.
In Recommendation 2020-5, ACUS recommended that each adjudicative agency prominently display on its website “a short, straightforward description of all generally applicable policies and practices, along with the legal authority, governing the appointment and oversight” of ALJs and other adjudicators who preside over evidentiary hearings.
ACUS has also encouraged agencies to provide greater public access to procedural rules, decisions and other case records, adjudicative proceedings, case management data, and quality assurance information. These information sources might provide additional insight into decisional independence and the impartiality of agency decision making.
Jeremy Graboyes is the Director of Public and Interagency Programs at the Administrative Conference of the United States. The views expressed are those of the author and do not necessarily represent the Administrative Conference or the federal government.