Our Conference along with the Federal Administrative Law Judges Conference and the Committee on Administrative Law Judges of the Federal Bar Association has been attempting for the last few years to improve the recruitment process at the Civil Service Commission and now at the Office of Personnel Management. Administative Law Judges sit on the interview panels. Recently, the Office of Personnel Management has instituted a study to determine what, if any, improvements are needed in the recruitment and appointment process for administrative law judges. The various conferences of administrative law judges are working with the Office of Personnel Management, and we have selected representatives to sit on an advisory board studying recruitment alternatives. Our Conference participated in the recent study of administrative law judges sponsored by the Civil Service Commission. As noted in an earlier answer, our Conference has begun a program to help attract minorities into the administrative law judiciary. 24. The question is not why GS-15 Administrative Law Judges should be accorded preferential treatment in pay matters. The question that must be addressed is how to attract and retain highly qualified lawyers in the administrative judiciary. Highly paid private practitioners and highly paid government lawyers in the Senior Executive Service cannot be attracted to the administrative judiciary if salary levels are not adequate. We recommend that salary levels for administrative law judges be set by the Quadrennial Pay Commission as indicated in my direct testimony on May 3, 1979 at pages 13-14. If the · Quadrennial Pay Commission decides that the pay levels for administrative law judges, whatever their grades, are not adequate to attract highly qualified candidates, the public interest requires that they make a report of their findings to the President and to the Congress, so that appropriate action can be taken. At that point the President can decide whether or not the salaries of Administrative Law Judges, whatever their grades, should be raised. 34 25. Seven agencies currently using administrative law judges have none permanently assigned and must borrow for all their needs. As indicated in Judge Fauver's testimony, pp. 67-68, those loans exceeded 13 man years during 1978. Substantial numbers of additional loans are made to agencies which are temporarily understaffed. At the CAB alone four judges are presently on loan to the National Transportation Safety Board and seven additional judges have been loaned to the National Labor Relations Board, despite Chairman Fanning's testimony that only judges with NLRB expertise can handle NLRB cases and that loans to NLRB have been very limited. We have been informed by the Office of Administrative Law Judges, Office of Personnel Management, that in the 120 days preceding June 19, 1979 approximately 55 judges have been on loan to agencies other than the ones at which they are employed. During that period these judges have been occupied with approximately 75 cases. There can be no serious question that there is a sufficient demand for judges on loan to authorize the centralized administration of a corps of judges established for that purpose. [From The Judges' Journal, Fall 1978, Vol. 17, No. 4] ADMINISTRATIVE Conference of Administrative Law Judges Ernst Liebman Administrative Law Judge Regulatory Commission Bethesda, MD MYTHS AND SCAPEGOATS In ancient times, the chief Hebrew priest, as part of the cermony prescribed by biblical law for the Day of Atonement (Lev. 16:10) symbolically placed the sins of the people upon the head of a goat and sent it into the wilderness. Absolved of their sins by the priest and scapegoat, the people were free to sin again the following years. Today, the sins of the regulatory process are upon us. We are frustrated with the morass of regulations, high costs, delays, paperwork and red tape: i.e., the general inability of government agencies to achieve statutory goals. In our need to lay blame for our institutional inadequacies we look for scapegoats; in our quest for solutions we create myths. One scapegoat is the administrative law judge; one myth is that our regulatory process will be greatly improved if only agencies were to impose production quotas on the administrative law judge by requiring a judge to hear and decide cases within specified times. Case quotas are now being imposed by some federal departments and agencies. For example, the Department of Health, Education and Welfare, largely in response to its high backlog of cases, establishes monthly case quotas for its administrative law judges; in at least one instance, it brought disciplinary action before the Civil Service Commission against an administrative law judge who, it claims, decided too few cases in a specified period. The National Labor Relations Board also imposes quotas. And a number of other agencies, such as the Civil Aeronautics Board and the Federal Energy Regulatory Commission, establish target dates by which its judges are expected to decide cases. We may expect other federal agencies to follow suit in reaction to the Report of the Government Accounting Office, Administrative Law Process: Better Management is Needed (May 15, 1978). That report called upon each federal agency employing administrative law judges to establish "objective" standards for the judge's performance "in terms of quality and quantity of work" (p. 47). It is instructive to note that the GAO report was unable to suggest what those objective performance standards should be. One may concede as a general proposition that a judge who does not do a full day's work should be subject to some kind of discipline. But beyond that generalization one enters a practical and philosophical thicket. As every judge knows, the length of time it takes to try a case depends upon many factors: for example, the number and financial resources of the parties, the number of witnesses, the number, impor tance, and complexity of the issues, the scope of discovery, and the skill of counsel. The trial judge must control a case firmly if it is to run smoothly and efficiently. But an arbitrary deadline for the termination of the case, except in extraordinary circumstances, can lead only to thorny procedural dilemmas during the trial; ultimately denials of due process and a fair hearing will occur. Time quotas would also create difficult problems for the judge once the trial is over. Every judge who has agonized over a close question, drastically affecting lives or financial fortunes, knows that justice is not measured by a time and motion study. How many of our citizens want their case decided by a judge who is not yet comfortable with his tentative decision. Should we classify our cases so that, for example, a judge must try and decide a small claims case in an hour, a minor felony in a day, a murder case in a week? How can one measure the complexity of legal and factual issues before the judge, much less determine how long a judge should take to decide them? Should a judge be given more time to decide a case and write a decision if the lawyers' briefs are not helpful or the witnesses make a difference? Should a judge with a high intelligence quotient be given less or more time to decide a case than a judge with a low intelligence quotient? Who is to decide these questions, and when? Who is to judge the judges? Do we not have room in our judicial system for judges who decide wisely but slowly? Would Solomon's justice have been as wise had he been subjected to a quota? Even if one were to grant that a time and motion mentality is applicable to rendering justice, ultimately the question becomes how much time is saved and how is the quality of justice improved by imposing time limits. I submit that the quality of justice will suffer, and little, if any, time will be saved by quotas. Most judges probably are performing their judicial roles as well as they are able. The few judges who do not perform adequately will hardly change the overall case output statistics. A hearing conducted under time constraints often will cause serious due process problems ultimately requiring reversal and remand, and the resulting additional delay. By the same token a decision written under time constraints may well cause more delay during the reviewing process than would otherwise occur because the decision, though legally adequate, omits the detailed analysis which every appellate tribunal needs when reviewing a decision. (Please turn the page) An unfortunate effect of the emphasis on case quotas for administrative law judges is that it diverts our energies from the true sources and causes a delay in the administrative process. For as the GAO Report (p. 11), the Senate Study on Regulation (Volume IV, Delay in the Regulatory Process, July 1977), and recent case tracking studies now taking place at the Federal Energy Regulatory Commission make abundantly clear, the greatest delay in the administrative process occurs in the agencies before and after a case is in the hearing stage. Even at the hearing stage, many of the delays are due to agency inadequacies, such as failures of staff to be prepared, or due to complex legal requirements, such as the National Environmental Policy Act. The Senate Study on Regulation suggests (p. ix) that the principal causes of excessive delay at regulatory agencies are overemphasis on trial-type procedures, inadequate leadership and planning, failure to set and enforce deadlines, too many layers of review, and failure to make sufficient use of incentives and sanctions. I respectfully dissent. The three fundamental causes for agency delay in deciding cases, I suggest, are: (1) the great increase in the number of problems coming before the agencies. (2) insufficient numbers of competent agency staff. and (3)—perhaps most important-the judgment of agency heads or members not to set cases for hearing. or not to decide them on review once they are heard. because it is politically unwise or inexpedient to do so. Agency heads and commissioners are politically astute. If they delay setting cases for hearing or delay their own decisions, they do so for political or personal reasons. Placing mandatory case quotas and time limits on administrative law judges will not speed up a game slowed down or stopped by the coaches. When a commission wants to eliminate a backlog. it can quickly do so. Take, for example, what happened at the Federal Power Commission in the early 1960s when the commission cleaned up in short order a large inherited backlog of cases. The sad effects of judicial decision quotas will be the denial of fair hearings to our citizens, inadequate records upon which to make intelligent decisions, and the diversion of our eyes from the true causes of delay in the regulatory process. Senator LEVIN. Judge Grossman, you may proceed. TESTIMONY OF JUDGE HOWARD I. GROSSMAN, CHAIRMAN, LEGISLATIVE COMMITTEE, ASSOCIATION OF ADMINISTRATIVE LAW JUDGES IN THE U.S. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE Mr. GROSSMAN. Thank you, Mr. Chairman. My name is Howard I. Grossman. I am an administrative law judge and chairman of the Legislative Committee of the Association of Administrative Law Judges in the U.S. Department of Health, Education, and Welfare. I represent that association. I note that the first program notice of these hearings may have suggested that I represent the Department of Health, Education, and Welfare. This is not correct. On the other hand, the second program notice is also incorrect, because it leaves out the correct title which is Association of Administrative Law Judges in the U.S. Department of Health, Education, and Welfare. There are more than 600 administrative law judges in HEW-more than half the entire administrative law judges corps of about 1,100. The administrative law judges in HEW render an average of about 250 to 300 decisions per year, by far the highest average in the entire Federal establishment. More than 90 percent of these decisions are in the field of disability, involving either insured applicants under title II of the Social Security Act, or applicants under the Federal welfare system of title XVI of that act. The combination of these factors results in the fact that the preponderant majority of all administrative adjudications in the U.S. Government are in the field of disability-far more than all the other combined. All of these adjudications involve human beings rather than corporations. Many of them have debilitating and painful illnesses, or have just gone through traumatic accidents resulting in serious injury. Many have mental problems. Almost all are desperately poor, and some are illiterate and unrepresented at hearing. Many are of advanced age. A few are malingerers. In many cases the granting or denial of an award means concomitant awards to de pendents of the disabled. The rights of children are thus involved. În some cases the administrative law judges' decision is literally one of life or death. The problems of social security are under continuous scrutiny by the House Ways and Means Committee, its Subcommittee on Social Security, and by the Senate Finance Committee. These problems may fairly be said to be among the most important social problems facing the American people today. Reference has already been made to the statutory language of one of the proposed bills to the effect that the general hearing process applies to initial claims for subsidies or benefits, or to any other agency proceeding which, the agency determines, should be in accordance with the new hearing process. There already have been varying comments made in this hearing about the statutory language. The plain meaning of this language would appear to make it applicable to disability adjudications under the Social Security Act, or its applicability may be determined by the Social Security Administration. If this in fact is the intention of the proponents of S. 262 and other similar bills, it means that this committee now has before it for consideration a subject matter which is under continuous investigation by other committees of the Congress. This includes a long, intensive study of administrative law judges and the entire adjudicatory process in social security. It also includes a bill amending the Social Security Act about to be reported to the House by the Ways and Means Committee. Other bills further amending_the process of adjudication are pending before the Social Security Subcommittee. A recent report of the House Social Security Subcommittee contains references to the 1978 GAO report and the Senate documents on which these bills are based. With respect to these reports, the 1979 Social Security Subcommittee report states as follows: The Senate Committee on Governmental Affairs recommendations were directed at the regulatory agency practice, and neither its report nor the GAO report deal in any perceptive way with the unique problems of benefit adjudication under the APA. When the predecessor to S. 262 was filed last year, it contained the same language of applicability to proceedings to determine benefit claims as is contained in the current bill. At that time, I asked one of the legislative draftsmen whether this language applied to social security benefit hearings. He replied, "What hearings are those?" It seems almost incredible that the Congress would pass and the President would sign a bill with major impact upon a subject matter never even considered by the legislative draftsmen. Yet this is the probable effect of this proposed legislation upon social security benefit hearings if enacted in its present form. The recent Social Security Subcommittee report, to which I referred, contains a description of an attempt by social security managers to manage, control, evaluate, and terminates administrative law judges, in the same philosophy as that which underlies S. 262 and S. 755. Indeed, it may fairly be said that the principles of these |