Administrative law judge

{{Short description|Judge and trier of fact}} {{Redirect|ALJ}} {{Multiple issues| {{More citations needed|date=July 2020}} {{Primary sources|date=July 2020}} }} {{Use American English|date=March 2026}} {{Use mdy dates|date=March 2026}} {{US administrative law}} An '''administrative law judge''' ('''ALJ''') in the United States is a judge and trier of fact who both presides over trials and adjudicates claims or disputes involving administrative law—that is, involving administrative units of the executive branch of government. ALJs can administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations.<ref name="Barnett">{{cite journal |last1=Barnett |first1=Kent |author1-link=Kent Barnett |title=Resolving the ALJ Quandary |journal=Vanderbilt Law Review |date=April 2013 |volume=66 |issue=3 |pages=797–865 |url=https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1302&context=vlr |access-date=29 December 2020}}</ref> The term refers only to a quasi-judicial official who decides claims or disputes under the formal provisions of the Administrative Procedure Act governing adjudication, and "it is not (as many law students mistakenly assume) a generic phrase that can be used to describe any agency adjudicator".<ref name="Taylor_Page_242">{{cite book |last1=Taylor |first1=Margaret H. |editor1-last=Ramji-Nogales |editor1-first=Jaya |editor2-last=Schoenholtz |editor2-first=Andrew I. |editor3-last=Schrag |editor3-first=Philip G. |title=Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform |date=2009 |publisher=New York University Press |location=New York |isbn=9780814741061 |pages=227-249 |chapter-url=https://books.google.com/books?id=424VCgAAQBAJ&pg=PA242 |chapter=Refugee Roulette in an Administrative Law Context: The Deja vu of Decisional Disparities in Agency Adjudication}} (At p. 242.)</ref>

In the United States, the United States Supreme Court has recognized that the role of a federal administrative law judge is "functionally comparable" to that of an Article III judge. An ALJ's powers are often, if not generally, comparable to those of a trial judge, as ALJs may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. However, because of the strict separation of powers imposed by the federal Constitution, ALJs are always regarded as members of the executive branch, not the judicial branch. Unlike true judges in the judicial branch, ALJs lack broad subject-matter jurisdiction and are limited to the jurisdiction conferred upon their home agency by its governing statutes.

Depending upon the agency's jurisdiction, proceedings may have complex multiparty adjudication, as is the case with the Federal Energy Regulatory Commission, or simplified and less formal procedures, as is the case with the Social Security Administration.

== History ==

ALJs were referred to as "hearing examiners" in the original text of the Administrative Procedure Act of 1946 (APA). At the time, there was widespread dissatisfaction among Americans who had dealt directly with the federal government with the lack of uniformity in procedure among federal agencies in terms of how they appointed "hearing officers" (and many other kinds of officials with similar titles), and the procedures by which such officials heard and decided claims within each agency's jurisdiction. The point of the APA's adjudicative provisions was to bring about procedural uniformity and to impose "a rather prescriptive (albeit not inflexible) set of formal hearing procedures".<ref name="Lubbers">{{cite journal |last1=Lubbers |first1=Jeffrey |title=APA-Adjudication: Is the Quest for Uniformity Faltering |journal=Administrative Law Journal of the American University |date=1996 |volume=10 |pages=65-80 |url=https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=2649&context=facsch_lawrev}}</ref>

The number of hearing examiners grew "from 196 in June 1947 to 278 in June 1954, 494 in July 1962, and 792 in February 1974".<ref name="Lubbers" />

The phrase "hearing examiner" has a bureaucratic connotation which failed to fully convey the adjudicative nature of the hearing examiners' role. In 1972, the Civil Service Commission endorsed the phrase "administrative law judge" by promulgating a regulation to that effect, and in 1978, Congress belatedly amended the APA to replace "hearing examiner" with "administrative law judge".<ref name="Lubbers" />

The number of ALJs continued to rise to 1,183 in October 1982, but then their growth slowed significantly, reaching only 1,333 in March 1996. Nearly all this growth occurred in the Social Security Administration.<ref name="Lubbers" />

The original intent of the APA's drafters was that it would cover nearly all agency adjudications, but that objective was never achieved. During the 1980s, one reason for why many agencies started to get away with conducting adjudications outside the APA with non-ALJ adjudicators is that they exploited the broad deference afforded to their interpretation of their governing statutes by ''Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.'' (1984).<ref name="Barnett2">{{cite journal |last1=Barnett |first1=Kent H. |author1-link=Kent Barnett |title=Some Kind of Hearing Officer |journal=Washington Law Review |date=June 2019 |volume=94 |issue=2 |pages=515-582 |url=https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=2307&context=fac_artchop}} (At p. 534.)</ref>

In a 1996 article, Jeffrey Lubbers identified a tendency among many federal agencies to rely upon non-ALJ adjudicators rather than ALJs. He attributed this to three issues: "cost, restrictions on their selection, and their effective immunity from performance management." First, at the time, a ALJ's starting salary was $75,205, while a non-ALJ started at $41,404. Second, ALJs were subject to strict civil service rules which included a rigid candidate ranking process overly weighted towards veterans and any kind of litigation experience (without distinguishing between different types of litigation). These rules denied agency executives the flexibility to prioritize non-veteran ALJ candidates with actual experience in litigating the specific laws which the agency was charged with enforcing. Third, ALJs are generally exempt from the first-year probationary period and performance ratings applied to most federal employees, and the rule that ALJs can be terminated only "for cause" means that it is extremely difficult to terminate ALJs for low productivity.<ref name="Lubbers" />

Since then, the ALJ corps has continued to grow relatively slowly, while the number of non-ALJ adjudicators has skyrocketed. A 2018 study found that there were approximately 1,931 ALJs and 10,831 non-ALJ adjudicators.<ref name="Barnett3">{{cite journal |last1=Barnett |first1=Kent H. |last2=Wheeler |first2=Russell |author1-link=Kent Barnett |title=Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal |journal=Georgia Law Review |date=2018 |volume=53 |issue=1 |pages=1-128 |url=https://georgialawreview.org/wp-content/uploads/2025/01/Kent-Barnett-Russell-Wheeler-Non-ALJ-Adjudicators-in-Federal-Agencies-Status-Selection-Oversight-and-Removal-53-Georgia-Law-Review-1-2019.pdf}} (At p. 8.)</ref>

== Federal appointment and tenure == The APA requires that federal ALJs be appointed based on scores achieved in a comprehensive testing procedure, including a four-hour written examination and an oral examination before a panel that includes an Office of Personnel Management representative, an American Bar Association representative, and a sitting federal ALJ.

In American administrative law, ALJs are Article I judges under the U.S. Constitution. As such, they do not exercise full judicial power, essentially, the power over life, liberty, and property. Article I (legislative) judges and courts are not constrained to rendering opinions for only a "case or controversy" before them and may render advisory opinions on a purely prospective basis, such as, ''e.g.'', Congressional reference cases assigned to the Court of Federal Claims. Agency ALJs do not have the power to offer such advisory opinions, as it would be in violation of the power afforded them under the Administrative Procedures Act, 5 U.S.C. §557. Unlike the agency, ALJs are not policy or rule makers.

ALJs are generally considered to be part of the executive branch, not the judicial branch, but the APA is designed to guarantee the decisional independence of ALJs. They have absolute immunity from liability for their judicial acts and are triers of fact "insulated from political influence".{{Citation needed|date=February 2013}} Federal administrative law judges are not responsible to, or subject to, the supervision or direction of employees or agents of the federal agency engaged in the performance of investigative or prosecution functions for the agency. ''Ex parte'' communications are prohibited. ALJs are exempt from performance ratings, evaluation, and bonuses. 5 CFR 930.206. Agency officials may not interfere with their decision-making, and administrative law judges may be discharged only for good cause based upon a complaint filed by the agency with the Merit Systems Protection Board (MSPB) established and determined after an APA hearing on the record before an MSPB ALJ.<ref name=Butz>''Butz v. Economou'', 438 U.S. 478, 514 [1978]</ref> Only ALJs receive these statutory protections; "hearing officers" or "trial examiners", with delegated hearing functions, are not similarly protected by the APA.

In ''Lucia v. SEC'', decided in June 2018, the Supreme Court held that ALJs are Inferior Officers within the meaning of the Appointments Clause of the United States Constitution.<ref name="ap decision">{{cite web | url = https://www.seattletimes.com/nation-world/nation-politics/apxsupreme-court-sides-with-buckets-of-money-financier/ | title = Supreme Court sides with 'Buckets of Money' financier | date= June 21, 2018 | access-date = June 21, 2018 | publisher = Associated Press }}</ref><ref>{{cite book | last1= Skowronek | first1= Stephen | last2= Dearborn | first2= John A. | last3= King | first3 = Desmond | name-list-style= amp | url= https://global.oup.com/academic/product/phantoms-of-a-beleaguered-republic-9780197543085?cc=us&lang=en& | title= Phantoms of a Beleaguered Republic: The Deep State and the Unitary Executive | publisher= Oxford University Press | year= 2021 | pages= 153–160| isbn= 978-0-19-754308-5 }}</ref> This means that they must be appointed by the president or by heads of departments (but without also requiring Senate advice and consent, unless Congress amends the law to require that).

=== Attorney Advisors === ALJs usually hire Attorney Advisors, who serve a role similar to judicial law clerks of Article III judges. For example, Attorney Advisors assist the ALJs with research, writing, drafting of opinions and orders, and assisting with the administration of hearings and other trial-like adjudications. Furthermore, Attorney Advisors usually have practiced as lawyers in the particular field which the ALJ possesses expertise in.

== Authority and review of federal ALJs == The United States Supreme Court has recognized that the role of a federal administrative law judge is "functionally comparable" to that of an Article III judge. An ALJ's powers are often, if not generally, comparable to those of a trial judge: an ALJ may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. ALJs are limited as they have no power to sanction unless a statute provides such a power. Instead, the ALJ may refer a matter to an Article III Court to seek enforcement or sanctions. The process of agency adjudication is currently structured so as to assure that ALJs exercise independent judgment on the evidence before them, free from pressures by the parties or other officials within the agency.<ref name=Butz/><ref>''Federal Maritime Commission v. S.C. State Ports Authority'', 535 U.S. 743, 756 (2002)</ref>

The procedure for reviewing an ALJ's decision varies depending upon the agency. Agencies generally have an internal appellate body, with some agencies having a Cabinet secretary decide the final internal appeals. Moreover, after the internal agency appeals have been exhausted, a party may have the right to file an appeal in the state or federal courts. Relevant statutes usually require a party to exhaust all administrative appeals before they are allowed to sue an agency in court.

== Central panels == Administrative law judges may be employed by a "central panel" organization, which provides the judges with independence from agencies.<ref name=":0">{{Cite journal|last=Allen|first=Hoberg|date=1994|title=Administrative Hearings: State Central Panels in the 1990s|url=https://digitalcommons.pepperdine.edu/naalj/vol14/iss1/5/|journal=Journal of the National Association of Administrative Law Judiciary|language=en|volume=14|issue=1|issn=0735-0821}}</ref> The California Administrative Procedure Act created an early central panel in 1945, and it served as a model for other states.<ref name=":0" /> By 2015, over half of states had created such panels.<ref>{{Cite web|url=https://www.judges.org/alj-central-panels-how-is-it-going-out-there/|title=ALJ Central Panels: How is it Going Out There? {{!}} The National Judicial College|website=www.judges.org|language=en-US|archive-url=https://web.archive.org/web/20161030134405/https://www.judges.org/alj-central-panels-how-is-it-going-out-there/|archive-date=2016-10-30|url-status=live|access-date=2018-11-24}}</ref>

== State ALJs == Most U.S. states have a statute modeled after the APA. In some states, such as New Jersey, the state law is also known as the Administrative Procedure Act.

Unlike federal ALJs, whose powers are guaranteed by federal statute, state ALJs have widely varying power and prestige. In some state law contexts, ALJs have almost no power; their decisions are accorded practically no deference and become, in effect, recommendations. In some cities, ALJs are at-will employees of the agency, making their decisional independence potentially questionable.<ref>Ackman, Dan. [https://www.nytimes.com/2006/02/12/opinion/nyregionopinions/12CIackman.html?n=Top%2FReference%2FTimes%20Topics%2FOrganizations%2FC%2FCharter%20Revision%20Commission "The Price of Justice"]. ''New York Times'', Feb. 12, 2006</ref> In some agencies, ALJs dress like lawyers in business suits, share offices, and hold hearings in ordinary conference rooms. In other agencies (especially certain offices of the Division of Workers' Compensation of the California Department of Industrial Relations), ALJs wear robes like Article III judges, are referred to as "Honorable" and "Your Honor", work in private chambers, hold hearings in special "hearing rooms" that look like small courtrooms, and have court clerks who swear in witnesses.<ref name="Klunder">{{cite news |last1=Klunder |first1=Jan |title=Quest for Respect: Compensation Judges Win Right to Put On Robes |url=https://www.latimes.com/archives/la-xpm-1987-07-14-me-3867-story.html |access-date=29 December 2020 |work=Los Angeles Times |date=July 14, 1987}}</ref><ref name="Pace_Pages_634_637">{{cite book |last1=Pace |first1=Nicholas M. |last2=Reville |first2=Robert T. |last3=Galway |first3=Lionel |last4=Geller |first4=Amanda B. |last5=Hayden |first5=Orla |last6=Hill |first6=Laural A. |last7=Mardesich |first7=Christopher |last8=Neuhauser |first8=Frank W. |last9=Polich |first9=Suzanne |last10=Yeom |first10=Jane |last11=Zakaras |first11=Laura |title=Improving Dispute Resolution for California's Injured Workers |date=2003 |publisher=RAND Institute for Civil Justice |location=Santa Monica |pages=634–637 |url=https://www.rand.org/content/dam/rand/pubs/monograph_reports/2005/MR1425.pdf |access-date=29 December 2020}}</ref> State ALJs can be generalists or specialize in specific fields of law, such as tax law.<ref>Elizabeth Buroker Coffin, The Case for A State Tax Court, 8 St. & Loc. Tax Law. 63 (2003)</ref>

== Professional organizations == Professional organizations that represent federal ALJs include the Federal Administrative Law Judges Conference,<ref>[http://www.faljc.org Federal Administrative Law Judges Conference]</ref> the Association of Administrative Law Judges, which represents only Social Security ALJs, and the Forum of United States Administrative Law judges. Professional organizations that include both state and federal ALJs include the National Association of Administrative Law Judiciary, the ABA National Conference of Administrative Law Judiciary, and the National Association of Hearing Officials.

== Case law == The constitutionality of the use of ALJs by executive branch administrative agencies has become the subject of frequent challenges in judicial branch courts during the early 21st century. In ''Lucia v. SEC'' (2018), the U.S. Supreme Court ruled that ALJs are officers of the United States and thus subject to the Appointments Clause of the Constitution—requiring their appointment to be made by the President or an otherwise delegated officer—but they do not require Senate confirmation as they are merely considered "inferior" officers.<ref>{{cite web | url = https://www.nytimes.com/2018/06/21/us/politics/sec-judges-supreme-court.html | title = S.E.C. Judges Were Appointed Unlawfully, Justices Rule |first = Adam | last= Liptak | date =June 21, 2018 | accessdate = June 23, 2018 | work = The New York Times }}</ref> In 2023, the case of ''SEC v. Jarkesy'' raised the issues of whether the use of ALJ factfinding as a replacement for a jury trial violates the Seventh Amendment and the nondelegation doctrine.<ref>{{cite web | url = https://www.nytimes.com/live/2022/05/18/business/economy-news-stocks-inflation#sec-jury-trial-judge | title = A federal appeals court says the S.E.C.'s use of an in-house judge violates defendants' rights. | first = Matthew | last = Goldstein | date = May 18, 2022 | accessdate = May 19, 2022 | work = The New York Times }}</ref> In June 2024, the U.S. Supreme Court ruled by a 6-3 majority that the SEC's use of ALJs in administrative proceedings for regulatory violations analogous to securities fraud violates the Seventh Amendment because there was a right to a jury trial in fraud actions at common law, then refused to decide any other issues.<ref name="20240627NYTSavageLiptak">{{cite news |author1=Charlie Savage and Adam Liptak |title=Again Curbing Regulatory Agencies, Supreme Court Rejects S.E.C.'s Tribunals |url=https://www.nytimes.com/2024/06/27/us/politics/supreme-court-sec-tribunal.html |access-date=July 12, 2024 |work=The New York Times |publisher=The New York Times |archive-url=https://web.archive.org/web/20240709010354/https://www.nytimes.com/2024/06/27/us/politics/supreme-court-sec-tribunal.html |archive-date=July 9, 2024|date=June 27, 2024}}</ref>

While ''Lucia'' and ''Jarkesy'' were specifically focused on the SEC, there are other pending cases in lower-level courts (such as those brought by SpaceX and Trader Joe's) which brought similar challenges to the National Labor Relations Board's use of ALJs.<ref>{{cite web | url = https://fortune.com/2024/01/27/elon-musk-spacex-right-nlrb-unconstitutional-says-trader-joes/ | title = Elon Musk and SpaceX are right about the National Labor Relations Board being unconstitutional, argues Trader Joe's | first = Josh | last = Eidelson | date = January 27, 2024 | accessdate = January 27, 2024 | work = Fortune }}</ref> At least one court has ruled that the challenges would "neuter" the National Labor Relations Act and are unlikely to succeed, and that the National Labor Relations Board's use of ALJs is likely constitutional.<ref>{{cite news |last1=Wiessner |first1=Daniel |title=US judge rejects medical center's bid to 'neuter' NLRB |url=https://www.reuters.com/legal/government/us-judge-rejects-medical-centers-bid-neuter-nlrb-2024-09-16/ |access-date=16 September 2024 |agency=Reuters |date=16 September 2024}}</ref>

== International comparisons ==

The United States does not have administrative courts in the judicial branch.<ref name="Von_Mehren_Page_4">{{cite book |last1=von Mehren |first1=Arthur T. |last2=Murray |first2=Peter L. |author1-link=Arthur Taylor von Mehren |author2-link=Peter L. Murray |title=Law in the United States |date=2007 |publisher=Cambridge University Press |location=Cambridge |isbn=9781139462198 |page=4 |edition=2nd |url=https://books.google.com/books?id=9tpJlKdqVTsC&pg=PA4}}</ref><ref name="Farnsworth_Page_170">{{cite book |last1=Farnsworth |first1=E. Allan |author-link1=E. Allan Farnsworth |editor1-last=Sheppard |editor1-first=Steve |editor1-link=Stephen M. Sheppard |title=An Introduction to the Legal System of the United States |date=2010 |publisher=Oxford University Press |location=Oxford |isbn=9780199733101 |page=170 |edition=4th |url=https://books.google.com/books?id=eOFMAgAAQBAJ&pg=PA170 |access-date=November 17, 2020}}</ref> In contrast, in the United Kingdom the Tribunals, Courts and Enforcement Act 2007 recognises legally qualified members of the national system of administrative law tribunals as members of the judiciary of the United Kingdom who are guaranteed judicial independence.<ref>Tribunals, Courts and Enforcement Act 2007, s.1, Constitutional Reform Act 2005, s.3</ref>

ALJs cannot be recognized as members of the judicial branch of government (without first completely ejecting them from their home agencies in the executive branch), because to do so would violate the bedrock principle of separation of powers as embodied in the U.S. Constitution.<ref name="Sunstein_Page_83">{{cite book |last1=Sunstein |first1=Cass R. |last2=Vermeule |first2=Adrian |author1-link=Cass Sunstein |author2-link=Adrian Vermeule |title=Law and Leviathan: Redeeming the Administrative State |date=2020 |publisher=Harvard University Press |location=Cambridge |isbn=9780674249813 |page=83 |url=https://books.google.com/books?id=k6n8DwAAQBAJ&pg=PA83 |access-date=May 5, 2024}}</ref> In a 2013 majority opinion signed by Associate Justice Antonin Scalia, the U.S. Supreme Court explained:

{{blockquote|The dissent overstates when it claims that agencies exercise "legislative power" and "judicial power" ... The former is vested exclusively in Congress ... the latter in the "one supreme Court" and "such inferior Courts as the Congress may from time to time ordain and establish" ... Agencies make rules ... and conduct adjudications ... and have done so since the beginning of the Republic. These activities take "legislative" and "judicial" forms, but they are exercises of—indeed, under our constitutional structure they ''must be'' exercises of—the "executive Power."<ref>''City of Arlington v. FCC'', [https://scholar.google.com/scholar_case?case=15785238659483190922&hl=en 569 U.S. 290, 304 n.4] (2013) (emphasis in original).</ref>}}

== List of U.S. federal agencies with ALJs == Most of the agencies below have only a few dozen ALJs.<ref>{{Cite web | url=https://www.opm.gov/services-for-agencies/administrative-law-judges/#url=ALJs-by-Agency | title=ALJs by Agency | date=August 2020}}</ref> In 2013, the Social Security Administration (SSA) had by far the largest number of ALJs at over 1,400, who adjudicate over 700,000 cases each year. The average SSA hearing process occurs over a period of 373 days.<ref>{{Cite news | first=Stephen | last=Ohlemacher | title=Judges sue Social Security over 'quotas' | url=http://www.huffingtonpost.com/2013/04/19/judges-social-security_n_3115363.html| newspaper=Florida Today | location=Melbourne, Florida | pages= 3A | date=April 20, 2013 }}</ref>

* Commodity Futures Trading Commission * Department of Agriculture * Department of Health and Human Services/Department Appeals Board * Department of Health and Human Services/Office of Medicare Hearings and Appeals * Department of Housing and Urban Development * Department of the Interior * Department of Labor * Department of Transportation * Department of Veterans Affairs * Drug Enforcement Administration * Environmental Protection Agency * Federal Aviation Administration * Federal Communications Commission * Federal Energy Regulatory Commission * Federal Labor Relations Authority * Federal Maritime Commission * Federal Mine Safety and Health Review Commission * Federal Reserve Board of Governors * Federal Trade Commission * Food and Drug Administration * General Services Administration * International Trade Commission * Merit Systems Protection Board * National Labor Relations Board * National Transportation Safety Board * Nuclear Regulatory Commission * Occupational Safety and Health Review Commission * Office of Financial Institution Adjudication * Patent and Trademark Office * United States Coast Guard * United States Postal Service * Securities and Exchange Commission * Small Business Administration * Social Security Administration

Other federal agencies may request the U.S. Office of Personnel Management to lend them Administrative Law Judges from other federal agencies for a period of up to six months.

== List of state departments and agencies with ALJs == Some states, such as California, follow the federal model of having a separate corps of ALJs attached to each agency that uses them. Others, such as New Jersey, have consolidated all ALJs together into a single agency that holds hearings on behalf of all other state agencies. This type of state adjudicatory agency is called a "central panel agency". Many states have a central panel agency, but the agency does not handle all the hearings for every state agency.

==References== {{reflist}}

==External links== *[http://www.forumalj.org The Forum of United States Administrative Law Judges (FORUM)] *[http://www.NAALJ.org National Association of Administrative Law Judiciary] *[http://www.FALJC.org Federal Administrative Law Judges Conference] {{law}}

{{DEFAULTSORT:Administrative Law Judge}} Category:Judges Category:United States administrative law Category:Administrative courts in the United States