Notice & Comment

The ABA AdLaw Section’s Report to the President-Elect: Adjudication Recommendations, by Michael Asimow

Michael AsimowA Trump administration is unlikely to be supportive of three of the four recommendations relating to adjudication in the Report to the President-Elect by the ABA Section on Administrative Law and Regulatory Practice. Considering these recommendations (though not in the order they were presented in the ABA’s letter):

1) The Ad Law Section urged the President to re-establish a strong Office of ALJs in OPM.  I understand that this office was closed in 2002, so the issue isn’t really whether there’s an Office of ALJs. The issue is OPM’s failure to hire enough ALJs. Increasing the number of ALJs is quite urgent. Both Medicare and Social Security have an enormous backlog of pending cases because they do not have enough ALJs to keeping up with their constantly swelling caseload.  Sick people must wait years for their disability hearings; Medicare providers must wait years for resolution of their disputes. OPM has given a low priority to hiring ALJs and has not come close to meeting the demand for new ALJs. The process of interviewing, testing, and hiring ALJs must be streamlined and the rolls opened more frequently.  Trump seems to care about preserving entitlements such as Social Security disability. However, his voter base is probably indifferent or even hostile to improving disability or Medicare. In any event, it’s hard to see how hiring more ALJs will become a priority. ALJs are highly paid federal employees, so hiring more of them will cost real money and swell federal employment rolls, yet Trump has promised to reduce the size of the federal government.

2) The ABA called attention to the severe backlogs, not only in Social Security and Medicare, but also in veterans’ claims and immigration.  Now we’re into an area where Trump made big promises and must deliver.  He must improve the administration of veterans’ claims (as well as veterans’ health care) and he must be prepared for a huge increase in Immigration Court (IC) litigation if he plans to step up the number of deportations. Yet both agencies are unable to cope with their rising caseload–much less an enhanced caseload. These bureaucratic bottlenecks will be a serious obstacle to Trump keeping his promises.  Making progress will require a sharp augmentation in resources available for VA regional offices, the Board of Veterans’ Appeals, the Immigration Court and the Board of Immigration Appeals as well as stronger management of the adjudicatory process.

3) The ABA urged that the President encourage agencies to speed up front-line decisionmaking in areas like permitting, licensing, and petitions for waivers.  As far as I can determine, this recommendation resulted from a compromise between its drafters, with one of them wanting to authorize interlocutory appeals in permit cases and the other skeptical of this idea, so they compromised on language criticizing delays.  It is unclear whether there is any evidence that such delays are any worse than they’ve ever been.  It’s equally unclear what the problem is.  Are delays attributable to agencies doing their job of scrutinizing applications, staff members trying to stall development, or a serious shortage of resources?  From the point of view of the Trump administration as strongly anti-regulation, it would probably be better to repeal the permitting or licensing regimes entirely rather than to allocate more resources into speeding up the application process.

4) The report urges the President-elect to support the principles of Resolution 114, adopted by the ABA House of Delegates in 2005.  This resolution recognized that there is a large swath of federal administrative adjudication that is outside the existing APA adjudication provisions, yet which provides adjudicatory evidentiary hearings that are similar to APA hearings. Just to name a few, decisions relating to immigration, government contracts, patents and trademarks, veterans’ benefits, federal government employment discrimination, and merit systems protection, are all required by statute or regulations to provide evidentiary hearings. These hearings often are as formal or more formal than those required by the APA, although administrative judges (AJs) rather than ALJs preside over their hearings.

Resolution 114 proposed that Congress amend the APA to bring these adjudicatory schemes (referred to as Type B adjudication) under the APA. As a result, provisions for fair adjudication such as separation of functions, cross-examination, and prohibition on ex parte communications would be applied. However, in recognition of what is politically feasible, the presiding officer in Type B adjudication would continue to be AJs instead of ALJs.[1]

The Trump administration might be mildly favorable toward this proposal which would guarantee fair procedures to persons who have a wide range of disputes adjudicated by federal agencies, but would not cost anything.  However, it seems unlikely that the new administration will pay any more attention to the issue than previous administrations. The Trump people are loaded down with much more pressing concerns.

Another approach toward adopting the principles of Resolution 114 is currently under consideration by ACUS and will come up at the December 2016 plenary session.[2] It would articulate the same idea in the form of about 30 best practices and recommend that these practices be incorporated in Type B agency procedural regulations.  This approach is probably better than the statutory approach taken by Resolution 114 because it can be accomplished without legislation (which would present some serious drafting problems). It would fly under the political radar and be seen as an uncontroversial good government proposal. It’s also more flexible than a statute, because it allows agencies to opt out of any of the best practices that don’t fit its particular situation.

In conclusion, the new administration might be interested in putting resources into improving immigration and veterans’ claim adjudication, but the other ABA recommendations are unlikely to gain any traction.

Michael Asimow is a Visiting Professor of Law at Stanford Law School.

[1] See Michael Asimow, The Spreading Umbrella: Extending the APA’s Adjudication Provisions to All Evidentiary Hearings, 56 Admin. L. Rev. 1003 (2004).

[2] See Michael Asimow, Evidentiary Hearings Outside the Administrative Procedure Act (ACUS Nov. 2016).

This is post is part of the Symposium on the ABA AdLaw Section’s 2016 Report to the President-Elect. An introduction to the symposium is here, and all of the posts are collected here. The views in this post, which expand upon the recommendations set forth in the Report, are the author’s own and do not necessarily reflect the views of the ABA AdLaw Section. The full Report is available here.

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