COMPTROLLER GENERAL'S
REPORT TO THE CONGRESS
ADMINISTRATIVE LAW PROCESS:
BETTER MANAGEMENT IS NEEDED
The lengthy and costly formal process
through which most administrative disputes
in the Federal Government are formally ad-
judicated can be improved. Cases can be
adjudicated more expeditiously and the Ad-
ministrative Law Judge--a pivotal figure--
can be made more effective.
More than 1,000 Administrative Law Judges,
with virtually guaranteed tenure until re-
tirement, 1/ serve in 28 agencies as quasi-
judicial officers presiding at formal ad-
ministrative hearings to resolve disputes.
The Federal executive departments and agen-
cies collectively process a larger case
load than U.S. courts, affect the rights
of more citizens, and employ more than
twice as many Administrative Law Judges as
there are active judges in Federal trial
courts. The administrative adjudicatory
process costs the Federal Government and
other involved parties millions of dollars
each year. There are also intangible costs
such as injuries and hardships, which can
result from delays in the process.
The Administrative Procedure Act sought to
insure the former hearing examiners--now
designated Administrative Law Judaes--
judicial capability and objectivity by
precluding agencies from evaluating their
performance and by assigning responsibility
for determining their qualifications, com-
pensation, and tenure to the Civil Service
Commission.
1/Unlike Federal judges who have lifetime
tenure, Administrative Law Judges have
tenure only until retirement.
Tear Sheet. Upon removal, the report
cover date should be noted hereon.
Administrative Law Judges are required to
conduct hearings and make decisions independ-
ently of agency influence or interference.
However, the final decision rests with the
agency as the Administrative Law Judges are
bound by agency rules and prior agency deci-
sions. The agency, by adopting, modifying. or
reversing the Administrative Law Judges' de-
cisions, renders final administrative deci-
sions which can be appealed to the U.S.
courts. This distinguishes Administrative
Law Judges from Federal judges whose decisions
are final and have the force of law unless ap-
pealed to a higher court.
Questions have surfaced as to whether all of
the more than 1,000 Administrative Law Judges
are performing functions in the mode and with
the responsibility normally associated with
the title "judge." The questions arise when
the administrative process and case complexity
of the regulatory agencies are compared with
the nonregulatory agencies. GAO is planning
to review this particular issue in the near
future.
OPPORTUNITIES TO IMPROVE
THE ADJUDICATION PROCESS
Although the Administrative Procedure Act was enacted to resolve conflicts promptly and fairly, timely decisions are not being made because the process is burdened with extensive reviews and more complex, judicial procedures than necessary.
Agencies review Administrative Law Judges' decisions because
--they want to maintain decision and policymaking authority and
--in some instances, short of such review,
agencies have little assurance that
Administrative Law Judges' decisions
are reasonable and in accordance with
agency policy.
While agencies have the authority to review
Administrative Law Judges' decisions, the
process at some is burdened unnecessarily with multiple layers and numerous agency personnel. This increases the time required to reach a final decision by hundreds of days and the cost by millions of dollars. Delay also has other effects:
--Unfair labor practices may continue to
exist.
--Licenses may not be granted to operate
businesses.
--Health and safety violations may go
uncorrected.
--Individuals may not be granted rightful claims for benefits.
These multilayer review processes also
raise doubts that the act's goals--making
Administrative Law Judges an important
factor in the decision process and assuring
that agency views are not being unduly em-
phasized or secretly submitted--are being
achieved.
Some disputes are subjected to the act's formal adjudication procedures when it appears more simplified procedures offer viable alternatives. This occurs primarily because criteria does not exist to show when formal Administrative Procedure Act procedures are required to guarantee due process. The result has been
-a significant increase in the number and types of cases being formally adjudicated,
--an increase in the number of Administrative Law Judges required to hear them, and
--extensive delays which can deprive rather than guarantee due process to the parties involved.
AGENCY PERSONNEL MANAGEMENT SYSTEMS
ARE NOT PARTICULARLY EFFECTIVE
Although Administrative Law Judges are agency employees with virtually guaranteed tenure until retirement, the Administrative Procedure Act specifically precludes agencies evaluating the performance of Administrative Law Judges. This personnel management function was not assigned to any other organization or person. Evaluation, to include developing objective standards, is critical to an effective personnel management system. Without it, it is difficult, if not impossible, to meet most other major personnel management needs. GAO found that agencies are unable to
--identify unsatisfactory Administrative Law Judges and take personnel action,
--make effective use of Administrative Law Judges to assure maximum productivity,
--plan adequately for Administrative Law Judge requirements to meet workload,
--provide the Civil Service Commission with information to determine the adequacy of its Administrative Law Judges certifying practices,
--develop Administrative Law Judges to their maximum potential through training or diversity of experience, and
--establish appropriate management feedback mechanisms to determine the effectiveness of an Administrative Law Judge personnel management system.
THE CIVIL SERVICE COMMISSION'S ROLE
NOT CLEARLY DEFINED
While the Administrative Procedure Act assigned the Civil Service Commission responsibility for determining Administrative Law Judge qualification, compensation, and tenure, the legislation is silent on
whether the Commission is to carry out
its normal Federal personnel management
responsibilities, such as issuing guide-
lines for agency use and evaluating
periodically agency systems for com-
pliance. The Commission has been re-
luctant to perform its normal functions
and has been of little help in assist-
ing agencies to resolve Administrative
Law Judge personnel management problems.
Because the Civil Service Commission does
not have access to information relating to
Administrative Law Judges productivity and
use, it has virtually no basis to evaluate
agency requests for additional Administra-
tive Law Judges. The Administrative Con-
ference of the United States is gathering
Administrative Law Judges productivity
data to develop a caseload accounting sys-
tem. This could assist the Commission in
this area.
The Civil Service Commission must approve
the use by agencies of selective certifica-
tion to hire Administrative Law Judges.
This involves establishing Administrative
Law Judge experience requirements. Gen-
erally these are obtained by working for,
or practicing before, the agency estab-
lishing the requirements. Eleven agencies
have selective certification authority,
some for over 20 years. However, the Com-
mission has not required these agencies
to justify the continued need for this
authority. Extensive use of selective
certification raises doubts about the im-
partiality of Administrative Law Judges
selected under this process.
RECOMMENDATIONS TO THE CONGRESS
The Congress should amend the Administrative Procedure Act to:
--Assign responsibility for periodic
evaluation of Administrative Law Judge performance to a specific organization.
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