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"H.R. 14688, 91st Congress, would redesignate
hearing examiners as 'administrative trial judges.'
The Conference at its September 1966 session (Conf.
Rept., p. 40) expressed the opinion that the desig-
nation hearing examiner' is well understood and
that the proposed change would be inappropriate and
confusing. The Conference was informed that the
Administrative Conference of the United States at
its October 1969 session disapproved the change in
the title of 'hearing examiner.' After further con-
sideration, the Conference reaffirmed its disapproval
of this legislation." (Proceedings of the Judicial
Conference of the United States, p. 11 (September
1970).)

The CSC Job Evaluation and Pay Review Task Force (Oliver
Report), January 1972, found that:

1.

2.

3.

"Hearing examiner" was a desirable title, but
was not truly descriptive of the duties involved.
"Administrative Law Examiner" received a high degree
of agency support and should be the new title.

"Judge" was too controversial and was not a viable
choice.

However, the Congress recently enacted legislation (P.L. 95-251, 92 Stat. 183, Mar. 27, 1978) formalizing in statute CSC's admininstrative title change.

Questions have surfaced as to whether all of the more that 1,000 ALJS are performing functions in the mode and with the responsibilities normally associated with the title of "judge." The questions arise when the administrative process and case complexity of the regulatory agencies are compared with the nonregulatory agencies. We are planning to review, in the near future, this particular issue.

SCOPE AND APPROACH OF REVIEW

In conducting this review, we included a representative number of ALJS employed by the 28 agencies. (See app. I for a complete listing of the agencies employing ALJs.) We did our review at the following four agencies.

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We also distributed a questionnaire to the 857 permanent ALJS employed by the 28 agencies as of August 1977. We received responses from 754 ALJS about their recruiting and selection, training, case processing characteristics, and perceptions toward their duties. Appendix II contains a discussion of the questionnaire design, administration and responses, the questionnaire, and ALJS' responses.

We interviewed agency officials, including the chairman and/or commissioners, assistant secretaries, executive directors, executive secretaries, and the chief ALJS at each agency. We also talked with or obtained comments from officials at the:

--Administrative Conference of the United States.

--CSC's Advisory Committee on ALJS.

--Administrative Office of the United States Courts.

--Veterans Administration's Board of Veterans Appeals (BVA).

--U.S. Tax Court.

--Federal Administrative Law Judge Conference.

--Bureau of Hearings and Appeals (BHA), Social Security
Administration (SSA).

--Standing Committee on Administrative Law Judges, Federal Bar Association.

--Professor Arthur S. Miller, George Washington University Law School.

--Chief Administrative Judges, Federal Trade Commission,
Federal Energy Regulatory Commission, U.S. Coast

Guard, Department of the Interior, and Federal Com-
munications Commission.

--Executive Director, Federal Energy Regulatory

Commission.

Some of these officials felt that, .because we did not review all agencies employing ALJs, our observations may apply in differing degrees to individual agencies. Nevertheless, there was general agreement that reform was needed in this area.

In addition, we discussed and obtained information regarding ALJ matters with CSC officials, including the Executive Director and Director of the Office of ALJs. Our focus was on personnel management for ALJS and other Federal employees and CSC's and other agencies' role in this regard. Information was also obtained on alternative methods to formal adjudication of administrative cases, standards of performance, evaluation of ALJ productivity, and background and history of APA and ALJs.

We reviewed the information which CSC received in response to the "Report of the Committee on the Study of the Utilization of Administrative Law Judges" (La Macchia study) questionnaire sent to chief ALJs, ALJs and Government attorneys. In addition, we examined previous studies of the system of administrative law, including the organization and procedure of formal adjudication, and analyzed the APA of 1946 and regulations and policies pertaining to formal adjudication. We also read numerous articles and studies concerning ALJS and the APA. (See app. III.)

At the four agencies visited, we reviewed the case processing system for selected cases and evaluated the personnel management system, the use of ALJS and staff, and the control exercised over ALJ performance. We did not evaluate the correctness of ALJs' decisions. We also gathered statistics on ALJ productivity, determined the extent of case backlogs and case processing times, and discussed case processing

delays with agency officials and chief ALJs to determine efforts to overcome problems noted. A previous review 1/ conducted during 1976 examined many of these same areas at SSA.

We recognize rulemaking is a viable alternative for administratively handling certain types of cases. However, this report does not address the rulemaking process since the role of ALJS is greatly concentrated in the adjudicatory process. 2/

1/"Problems and Progress in Holding Timelier Hearings for Disability Claimants," HRD-77-173, Oct. 1, 1976.

2/For a general discussion of this subject see: Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv. L. Rev. 921 (1965); Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Reform, 118 U. Pa. L. Rev. 485 (1970).

CHAPTER 2

OPPORTUNITIES TO IMPROVE

THE ADJUDICATION PROCESS

Although the Congress enacted the Administrative Procedure Act to resolve conflicts promptly and fairly, timely final decisions are not being made because the process is burdened with extensive agency review and the use of more complex and judicial procedures than necessary to resolve some cases (overformalization). These processes increase the time and money being spent to reach final decisions and raise doubts about the impartiality provisions of the administrative process being achieved.

ADMINISTRATIVE LAW AND THE APA

The Congress enacted the APA to reform the adjudication of cases by prescribing various standards and ways to improve the administrative adjudication process. The APA's basic

purposes:

said:

1. Require agencies to keep the public currently
informed of their organization, procedures, and
rules.

2. Provide for public participation in the rulemaking process.

3.

Prescribe uniform standards for the conduct of
formal rulemaking and adjudicatory proceedings.

4. Restate the law of judicial review.

During Senate consideration of the APA, Senator McCarron

"*** The purpose [of the bill] is to improve the administration of Justice by prescribing fair administrative procedure, (it) is a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal Government. It is designed to provide guarantees of due process in administrative procedure." (Emphasis added.)

Subsequently, John W. Macy, Jr., former Chairman, CSC, stated:

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