CSC the possibility of obtaining 30 additional ALJS to handle what it termed "its increased workload." Since CSC receives little information regarding ALJ use or productivity, it was unaware of ICC's situation and accordingly had no basis to discuss with ICC and NLRB the possibility of reassigning ICC ALJS to the NLRB or any other agency needing their services. Similarly, CSC did not know the extent to which ALJS currently employed by NLRB were effectively doing their jobs, and thus did not have a basis for assessing whether the NLRB request for additional ALJs was reasonable.

Federal Agency Hearings: A Proposed Caseload Accounting System, a 1974 report prepared by a member of the Administrative Office of the U.S. Courts and issued by the Administrative Conference of the United States, suggested a possible solution to the above-noted problem. It recommended that a uniform weighted caseload system be implemented to assure that ALJS were being assigned to agencies where they could be used most effectively. The Conference has published its first report containing caseload and processing time statistics for ALJ proceedings at 23 agencies during fiscal year 1975. 1/ It is hoped that a continuation and refinement of this system may eventually be used to develop a uniform weighted caseload system for all agencies. Such a system, used by the Administrative Office of the U.S. Courts to evaluate the workload of U.S. district courts, assigns a weight to each type of case handled by a judge. The weight is based on the amount of time it usually takes to adjudicate that type case. By implementing such a system at each agency employing ALJS, the Congress, CSC, and other agencies would receive information regarding ALJ use and productivity on a consistent basis and could make comparisons and with some degree of accuracy determine how best to allocate ALJS. Both the La Macchia study and ALJ response to our questionnaire indicated that implementation of a uniform weighted caseload system is feasible. As stated in the La Macchia report:

"The Committee concludes that a caseload accounting
system along the lines of the system prepared for
the Administrative Conference of the United States
is feasible."

1/Federal Administrative Law Judges Hearings--Statistical Report for 1975, Administrative Conference of the United States (1977).

In our questionnaire we asked whether such a system would be helpful to the Congress in determining which agencies have the greatest need for ALJs. Of the 731 ALJS responding, 52 percent believed it would be helpful.

SELECTIVE CERTIFICATION--A PRACTICE WHICH IF
USED EXTENSIVELY CAN ADVERSELY REFLECT ON THE
ADMINISTRATIVE PROCESS

Selective certification is used by 11 of the 28 agencies employing ALJS. This process allows agencies, with prior CSC approval, to hire individuals with special skills or experience in a particular area. For example, NLRB generally hires individuals with labor law experience to fill their ALJ positions. Individuals possessing these special skills or experience most commonly acquire them by working at or practicing before the agency using selective certification to hire its ALJS. The result is that many ALJ positions are filled by agencies appointing attorneys from their own staffs. In this regard, 417 (58 percent) of the 718 ALJS responding to our questionnaire indicated that they were selected as an ALJ through selective certification. also inquired into the extent that the ALJS believed selective certification contributed to the selection of the most qualified applicant. The 596 responses received indicated a difference of opinion: 263, or 44 percent, believed that selective certification made a minor contribution in selecting the most qualified applicant, while 223, or 37 percent, believed it made a major contribution. These responses indicate that some of the 417 ALJS appointed through selective certification believed the practice did not contribute to selection of the most qualified applicant.

Most of the agencies have had the authority to use selective certification for over 20 years without having to justify the continued need for such authority. While this process provides the agencies with a method to hire ALJS with special talents and qualifications and who can be productive immediately, it can also lead to doubts about the impartiality of the administrative adjudication process. In this regard the La Macchia study reported:

"The majority of agencies utilizing selective
certification strongly favor the practice because
of the need for subject matter expertise in the ALJ,
and the view that on-the-job training is excessively
time consuming and overly expensive. Those who
oppose the practice argue that it results in
inbreeding, that those selected have been imbued with
the agency's point of view which may affect the

independence of their judgment, that the appearance
of justice is lost when yesterday's staff attorney
becomes today's 'impartial' judge, and that, most
of all, its use effectively excludes from meaningful
listing on the CSC registers many able and willing
private practitioners and general attorneys in
government service. In this connection, it should
be noted, that certain ABA officials have urged
abolition of the practice or its rigorous limita-
tion."

The report contained a conclusion that the use of selective certification should be limited to specifically authorized appointments based on written CSC standards.

CONCLUSIONS AND RECOMMENDATIONS

CONCLUSIONS

ALJS play a pivotal role in the administrative process, which costs the Federal Government millions of dollars each year and significantly impacts on the national economy and lives of thousands of citizens.

Although the formal adjudicative process was established to resolve conflicts promptly and fairly, timely decisions are not being made because the process is burdened with extensive agency review of ALJ decisions and, in many instances, over formalization. In addition to adversely affecting the timeliness of decisions, these factors have also served to increase costs and raise questions regarding the impartiality of agency decisions and the need for a highly formalized mechanism to resolve what could be categorized as relatively simple disputes.

The Administrative Procedure Act is not specific regarding the party responsible for most ALJ personnel management functions and accordingly little is being done to monitor ALJ performance. Agencies are reluctant to attempt to manage ALJs for fear it will be interpreted as an infringement on ALJ independence and tend to resort to extensive review of ALJ decisions in order to have some

that ALJ decisions are reasonable and in accordance with agency policy.

Because of the nonspecificity of the APA, CSC has similarly been reluctant to become actively involved in ALJ personnel management. CSC has not performed those personnel management functions it normally performs for other Federal employees and has not been as helpful as it could in assisting agencies employing ALJs to resolve their personnel management problems.

These criticisms are not new. For the past 30 years, committees, studies, and advisory groups have said substantially the same things. Yet little has been done by the Congress, employing agencies, or CSC to significantly improve the situation. The results have been (1) costly delays in the administrative adjudicatory process which was intended by the Congress to expedite the adjudication of disputes and (2) less than desirable performance by an undetermined number of ALJS.

THE ADJUDICATION PROCESS

Cumbersome agency review of ALJ decisions and unnecessarily formal procedures to adjudicate some cases delay final administrative decisions and may deny due process to the parties involved. Additionally, they can result in the inefficient and ineffective use of agency resources, including ALJS, the unnecessary expenditure of millions of dollars and cause the impartiality of the process to be questioned. Such delay, as calculated by the Senate Committee on Governmental Affairs, costs the Government, the parties involved, and the general public millions of dollars. In addition, it casts doubt on one of the essential objectives of the APA, that ALJs be an important factor in the decision process and that the views of agency personnel be not unduly emphasized or secretly submitted.

No criteria exist to determine what types of cases require APA formality. As a result, the number of cases being adjudicated formally and the number of ALJs required to accomplish the task has significantly increased since the Congress enacted the APA. Formal APA procedures are used to adjudicate some cases when simple and more expeditious procedures, consistent with due process requirements, offer viable alternatives.

ALJ PERSONNEL MANAGEMENT

ALJS are unique among Federal employees. The Congress, through enacting the APA, created a semiindependent group of ALJS and enforced their status by precluding employing agencies from evaluating ALJ performance. APA, however, omitted assigning the evaluation responsibility to any other organization, thereby in effect making ALJs totally rather than semiindependent. In this regard, analysis of agency data and discussions with parties involved in the process, indicates that the performance of some ALJS is less than satisfactory. The extent of this problem cannot be determined until objective standards are established and ALJ performance is evaluated against such standards.

The chief ALJs, who are responsible for supervising the quality and quantity of ALJ's work and who are a part of agency management, exercise varying degrees of managerial authority. Although productivity statistics are available, they are of limited use because most agencies have not established objective performance standards. The lack of ALJ performance evaluations, including developing of objective standards, has also adversely affected agencies in (1) determining the number of ALJS needed to accomplish