Administrative Conference of the United States

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION:
EVALUATING THE STATUS AND PLACEMENT OF
ADJUDICATORS IN THE
FEDERAL SECTOR HEARING PROGRAM

Final Report: March 31, 2014

This report was prepared by the Office of the Chairman of the Administrative Conference of the
United States. The views expressed do not necessarily reflect those of the Council, the members
of the Conference, or its committees.

CONTRIBUTORS
MATTHEW LEE WIENER
EXECUTIVE DIRECTOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

GRETCHEN JACOBS
RESEARCH DIRECTOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

EMILY S. BREMER
ATTORNEY ADVISOR
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

TABLE OF CONTENTS
Introduction ..................................................................................................................................... 1
Executive Summary ........................................................................................................................ 2
I.

II.

Background ............................................................................................................................. 4
A.

The APA and Administrative Adjudication .......................................................... 4

B.

The Federal Sector Hearing Program .................................................................... 8

C.

Calls for Reform in the Federal Sector Hearing Program ................................... 10

D.

Historical Examples of Conversions to ALJs ..................................................... 11

1.

The Social Security Administration ................................................................ 11

2.

The Department of Labor ................................................................................ 12

Assessing the Effects of Transitioning From AJs to ALJs in the Federal Sector Hearing
Program ................................................................................................................................. 13
A.

Procedural Considerations................................................................................... 13

1.

De Novo Judicial Review ................................................................................ 13

2.

Status, Finality, and Review of the AJ’s Decision .......................................... 16

3.

Other Procedural Issues ................................................................................... 17

B.

Operational Considerations ................................................................................. 21

III. Assessing the Commission’s Authority over the Status of Adjudicators in the Federal Sector
Hearing Program ................................................................................................................... 23
A.

The Commission’s Authority over the Status of Adjudicators ........................... 23

B.

How OPM’s Role Affects the Commission’s Authority..................................... 27
1.

Effect on Commission’s Authority to Change Adjudicators’ Status ............... 27

2.

Effect on New ALJ Appointments .................................................................. 30

3.

Effect on Conversion of Existing AJs to ALJs ................................................ 31

IV. Determining Where to Situate Adjudicators Within the Commission’s Organizational
Structure ................................................................................................................................ 32

V.

A.

Organizational Changes Potentially Required by a Shift to ALJs ...................... 32

B.

Assessing the Organizational Placement of AJs ................................................. 34
1.

Legal Considerations Affecting the Organizational Placement of AJs ........... 35

2.

Alternative Approaches to the Organizational Placement of AJs ................... 36

Budgetary Considerations ..................................................................................................... 42
A.

Summary of Cost Model: Methodology & Inputs .............................................. 42

B.

Summary of Results ............................................................................................ 46

Conclusion .................................................................................................................................... 49
i

Appendix A: The APA’s Formal Adjudication Provisions ........................................................ A-1
Appendix B: Administrative Conference Recommendation 92-7 .............................................. A-6
Appendix C: Cost Elements: Values & Sources ....................................................................... A-19
Appendix D: Federal Pay Rates: Current & Projected Growth Rates ...................................... A-23
Appendix E: EEOC Adjudicators: Projected Growth Rates ..................................................... A-24
Appendix F: EEOC Adjudicators: Other Costs ........................................................................ A-25
Appendix G: Projected Pay Distribution of EEOC Adjudicators: All Scenarios ..................... A-26
Appendix H: Sample Annual (Incremental) Cost Equation ..................................................... A-27
Appendix I: Annual Costs: High, Primary, and Low Scenarios at
3% and 7% Discount Rates ............................................................................................... A-28
Appendix J: Breakdown of Annual Costs: Primary Scenario at 7% Discount Rate ................. A-29
Appendix K: Breakdown of Annual Costs: High Scenario at 7% Discount Rate .................... A-30
Appendix L: Breakdown of Annual Costs: Low Scenario at 7% Discount Rate ..................... A-31
Appendix M: MSPB Administrative Judge Position Description ............................................ A-32
Appendix N: Organizational Charts.......................................................................................... A-33

ii

INTRODUCTION
This is an independent study by the Office of the Chair of the Administrative Conference
of the United States (Conference) on the status and organizational placement of adjudicators in
the Equal Employment Opportunity Commission’s (Commission or EEOC) federal sector
hearing program. It focuses especially on the considerations the Commission would need to take
into account in the event it decided to use Administrative Law Judges (ALJs) instead of
Administrative Judges (AJs) in federal sector Equal Employment Opportunity (EEO) hearings.1
This report proceeds in five parts. Part I provides background information necessary for
understanding the issues analyzed throughout the report. It begins with a discussion of relevant
administrative law principles, with a focus on the adjudication provisions of the Administrative
Procedure Act (APA). It also provides an overview of the federal sector hearing program and
recent calls for reform, as well as some historical examples of other agencies’ experiences
transitioning from using non-ALJ adjudicators to ALJs in adjudicatory programs. Part II of the
report explores potential procedural and operational consequences that may result if the
Commission decided to use ALJs instead of AJs in the federal sector hearing program. Part III
analyzes the Commission’s authority to pursue such reform by appointing ALJs. This includes an
examination of how the role of the Office of Personal Management (OPM) in regulating the
federal ALJ corps may affect the Commission’s ability to: (1) use ALJs instead of AJs in federal
sector EEO hearings; (2) define ALJ qualifications and appoint ALJs; and (3) convert existing
AJs to ALJs. Part IV addresses how, if the Commission undertook this reform, it might situate
ALJs within the agency’s overall organizational structure. It also evaluates some issues related to
the organizational placement of AJs. Finally, Part V examines the potential budgetary
consequences of transitioning from AJs to ALJs in the federal sector hearing program.
Certain issues related to the status and placement of adjudicators in the federal sector
hearing program are beyond the scope of this study. Most importantly, normative questions
about whether the Commission should use ALJs instead of AJs or otherwise formalize federal
sector EEO hearing procedures are generally beyond the scope of this study. As we explain,
these questions ultimately require the Commission’s considered and expert policy judgment
regarding the nature and purpose of the federal sector hearing program and that program’s proper
place within the Commission’s broader mission. In addition, a robust analysis of where the
Commission should place its adjudicators—whether ALJs or AJs—within the agency’s
overarching organizational structure is beyond the scope of this study.2 Our examination of these
1

The Commission’s Strategic Enforcement Plan noted the importance of an evaluation of the “current structure of
the federal sector hearings program, specifically with respect to the placement and status of Administrative Judges in
the EEOC's organization, and related issues impacting the effectiveness of the program.” EQUAL EMP’T
OPPORTUNITY COMM’N, STRATEGIC ENFORCEMENT PLAN, FY 2013-2016 17, available at
http://www.eeoc.gov/eeoc/plan/sep.cfm. This study is intended to inform part of that evaluation.
2
As originally envisioned, this study would have provided a comprehensive evaluation of varying organizational
options for the federal sector program, including potential budgetary, reporting, labor relations, and personnel
considerations. That evaluation would have included legal research and data analysis, as well as extensive interviews
with (or surveys of) EEOC official at all levels, as well as other stakeholders and interested parties. In this way, it
would have been akin to the organizational assessment conducted for the Commission in 2003 by the National
Academy of Public Administration (NAPA), although the NAPA study largely focused on issues beyond the federal
sector program. See NAT’L ACAD. OF PUB. ADMIN., EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: ORGANIZING
FOR THE FUTURE (2003) [hereinafter “NAPA EEOC REPORT”]. However, due to budgetary constraints, the scope of

1

issues is limited to identifying legal considerations that may affect the organizational placement
of the EEOC’s adjudicators, accompanied by a discussion of how several other federal agencies
fit ALJ and non-ALJ adjudicators within their respective organizational structures.
This report is informed by substantial and broad-based research. We conducted extensive
legal research, examining the statutes and regulations governing the EEOC’s federal sector
hearing program, OPM’s ALJ program, and the standards governing federal employee pay and
benefits, as well as relevant legislative histories and secondary materials, including treatises and
scholarly publications. We also considered relevant data and trends from recent years as reflected
in publicly available sources, such as OPM’s website. Our research was deepened through
consideration of certain relevant internal EEOC documents, consultation with several experts in
the history and practice of administrative adjudication, and an econometric analysis of data
provided by EEOC regarding the number and compensation of EEOC AJs over the past five
years.3 In addition, we interviewed a number of EEOC employees, including four District
Directors, four AJs, one Supervisory AJ, and two officials in the EEOC’s Office of Federal
Operations (OFO). Finally, our analysis incorporates information obtained through telephone
discussions and written correspondence with OPM’s Office of the General Counsel.4
EXECUTIVE SUMMARY
The EEOC is an independent agency responsible for enforcing civil rights laws that
prohibit employers from discriminating against job applicants or employees on the basis of race,
color, religion, sex, national origin, age, disability, or genetic information.5 With regard to
private sector employers, the agency investigates charges of discrimination, works to redress
unlawful employment practices, and participates in employment discrimination litigation.6 The
Commission also has a significant role in ensuring nondiscrimination in government
employment.7 Although each federal agency bears primary responsibility for investigating its
own employees’ claims of discrimination, federal sector complainants may request that the

the instant study was narrowed to a “paper only” review of a sampling of other agencies’ organizational approaches
for formal and informal adjudication programs.
3
The data provided by EEOC included grade, step, and awards received by EEOC AJs for each year between 2008
and 2013. This data was used to build the economic model employed in Part V of this report, as well as to inform the
underlying economic assumptions for that budgetary analysis.
4
We conferred with two attorneys representing OPM’s Office of the General Counsel. Although knowledgeable
about OPM’s ALJ program and related matters, they were not speaking officially on behalf of the agency, and their
statements do not necessarily reflect OPM’s official positions. Their statements were offered as technical assistance
(not legal advice) to help us complete our work for the Commission. Subsequent references to OPM’s positions
throughout this report refer to the information obtained through this technical assistance. Our discussions began with
a September 25, 2013 telephone interview. In early January 2014, with EEOC’s consent, we shared a draft of this
report with OPM and solicited its feedback on the components of the analysis involving OPM’s ALJ program. On
February 6, 2014, OPM provided us its comments in writing. A second telephone interview followed on February
12, 2014. These communications are hereinafter cited as: Informal Communications, Office of the Gen. Counsel,
Office of Pers. Mgmt.
5
See 29 C.F.R. § 1601.1.
6
See generally id. §§ 1601.6-1601.14 (charges of discrimination), 1601.15-1601.17 (investigation of a charge),
1601.18-1601.22 (procedure following filing of a charge), 1601.23-1601.26 (procedure to rectify unlawful
employment practices), 1601.27-1601.29 (procedure concerning the institution of civil actions).
7
See 42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.101.

2

Commission conduct a hearing as a part of the investigative process.8 Federal sector EEO
hearings are “informal” adjudications, as no statute requires that they be conducted under the
APA.9 Thus, the presiding officers are AJs who do not have ALJ status. The Commission
employs approximately 90 AJs to accommodate federal sector hearing requests.10
This report is primarily concerned with identifying the considerations the Commission
would need to take into account in the event it decided to use ALJs instead of AJs in federal
sector EEO hearings. This decision must ultimately flow from a policy determination reflecting
the Commission’s expert judgment regarding the nature of federal sector EEO hearings and their
proper place with the Commission’s broader regulatory mission. In addition, the Commission
should consider the procedural and operational effects of reform, issues related to the
Commission’s authority to appoint and manage ALJs, potential changes that may be required to
accommodate ALJs within the Commission’s organizational structure, and budgetary effects of
transitioning from AJs to ALJs.
Procedural Considerations. Although no statute requires APA procedures in federal
sector EEO hearings, the Commission has the authority to impose such a requirement by
regulation. Exercising this authority may require the Commission to closely compare its existing
procedures with the APA and make modifications as necessary to meet the APA’s minimum,
skeletal requirements. The availability to federal employees of subsequent de novo trial of their
discrimination claims would not render federal sector hearings ineligible for formalization, but it
may present a difficult policy question for the Commission. The current relationship between the
AJ’s decision and the employing agencies’ final action, although unique to EEOC, appears to be
consistent with the APA. Other, more minor aspects of the Commission’s hearing regulations,
however, may require some modification to comply with the APA.
Operational Considerations. If the Commission decided to use ALJs instead of AJs, it
would have to accept the attendant limitations on its authority over the compensation and tenure
of its adjudicators. To preserve ALJ independence, Congress has committed these matters to
OPM. OPM regulations establish ALJ compensation levels and require employing agencies to
seek OPM’s approval before taking a wide variety of personnel actions with respect to ALJs. The
Commission would also be unable to take adverse actions against ALJs to ensure efficiency,
subject ALJs to performance standards or appraisals, or pay incentive awards to ALJs.
The Commission’s Authority to Appoint ALJs. Transitioning from AJs to ALJs in the
federal sector hearing program may require the Commission to, at a minimum, adopt a regulation
requiring that all federal sector EEO claims be adjudicated through formal, on-the-record
hearings under sections 554, 556, and 557 of the APA. Such action may in turn require the
Commission to overhaul its federal sector EEO procedures to ensure compliance with the APA.
New ALJs could be appointed only as permitted under federal statutes and OPM regulations
governing the examination, certification for selection, and appointment of ALJs. The
Commission could convert existing AJs to ALJ positions with OPM’s approval or as required by
legislation, executive order, or court order, provided each AJ passed OPM’s examination and
8

See infra Part I.B.
See infra Part I.A-B.
10
See infra Part V.
9

3

met OPM’s qualification requirements for ALJs. Waiving these conditions on conversion would
require specific legislative action.
Organizational Placement. The law provides the Commission with broad discretion
regarding the organizational structure and placement of adjudicators within the federal sector
hearing program. If the Commission decided to use ALJs instead of AJs in this program, certain
organizational modifications may be required to ensure compliance with the APA’s separation of
functions requirements and protections of ALJ decisional independence. The Commission would
likely want to create a centralized office dedicated to the federal sector hearing program and the
administration and management of ALJs. This office could use Chief ALJs, non-ALJ
administrators, or a mixture of the two, depending on what structure best suits the agency’s
needs. If the Commission continues to use AJs, there are a variety of ways in which it might
reorganize the program to address the needs of the agency, the AJs, or complainants.
Budgetary Considerations. Based on the economic model developed by the Conference
for this study, we estimate that, were the Commission to use ALJs as adjudicators in the federal
sector hearing program, the agency’s annual personnel costs—in terms of salaries, benefits, and
other related costs—would likely rise between $1.1 million and $2.5 million in a given year over
a ten-year period. Similarly, on an annualized basis, personnel costs increases from use of ALJs
would likely be $2.1 million per year under the primary (baseline) scenario. Increased costs
would stem from higher ALJ salaries and benefits relative to AJs, as well as OPM-assessed fees
for the ALJ program. Whether, or to what extent, the benefits to the Commission, litigants, or
others of using ALJs as federal sector adjudicators outweighs such costs would require
sophisticated economic analyses and is beyond the scope of this study.
I.

BACKGROUND

This part provides background information necessary to understand the issues analyzed
throughout the remainder of the report. It begins with fundamental administrative law principles
that bear on the interpretation and application of the APA’s adjudication provisions. It then
briefly explains the current operation of the federal sector hearing program and the recent calls
for the EEOC to pursue procedural and organizational reform in the program. It concludes with a
few historical examples of how other agencies have converted non-ALJ adjudicators to ALJ
status in certain adjudication programs.
A.

The APA and Administrative Adjudication

The Administrative Procedure Act was enacted in 1946 to bring greater clarity and
consistency to administrative governance by establishing minimum procedural requirements for
agency action.11 The legislation was based on a study of the highly diverse practices of thenexisting administrative agencies. This study culminated in a report issued to Congress in 1941 by

11

See generally George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges From New
Deal Politics, 90 NW. U. L. REV. 1557 (1996) (providing a detailed historical account of the APA’s roots,
development, and enactment). As Professor Shepherd explains, the APA “has provided agencies with broad
freedom, limited only by relatively weak procedural requirements and judicial review, to create and implement
policies in the many areas that agencies touch.” Id. at 1559.

4

the Attorney General’s Committee on Administrative Procedure.12 The APA’s provisions were
designed to capture best practices identified in the report, and sought to make only “relatively
modest reforms in adjudication, rulemaking, and judicial review.”13 Provided that an agency
observes the minimum procedural requirements established by the APA, it is afforded substantial
discretion to adopt procedures that meet its own unique needs.14
In administrative law parlance, “formal” adjudications are those conducted in accordance
with the APA’s adjudication provisions, codified at 5 U.S.C. §§ 554, 556, and 557.15 The APA
does not specify the circumstances in which formal hearing procedures must be observed.16 That
function is performed by other statutes.17 That is, an agency is only required to comply with the
APA’s adjudication provisions when a statute other than the APA requires a hearing “on the
record” or “in accordance with” the APA.18 Adjudicatory hearings not subject to such a statutory
requirement are typically referred to as “informal” adjudications.19 Most adjudicatory hearings
conducted by federal agencies are “informal” in this sense.20 The terminology here can be
misleading, however, as so-called “informal” adjudications are often conducted in accordance
with procedures consistent with those required by the APA.21

12

See ATTORNEY GENERAL’S COMM. ON ADMINISTRATIVE PROCEDURE, FINAL REPORT (1941); SECTION OF ADMIN.
LAW AND REGULATORY PRACTICE, AM. BAR ASS’N, A GUIDE TO FEDERAL AGENCY ADJUDICATION 5 (Jeffrey B.
Litwak ed., 2d ed. 2012) [hereinafter ABA GUIDE TO FEDERAL AGENCY ADJUDICATION].
13
Id. at 2; see also Shepherd, supra note 11, at 1559 (explaining that the APA “has provided agencies with broad
freedom, limited only by relatively weak procedural requirements”); see also Wong Yang Sung v. McGrath, 339
U.S. 33, 41 (1950) (“On purpose [of the APA] was to introduce greater uniformity of procedure and standardization
of administrative practice among the diverse agencies whose customs had departed widely from each other.”).
14
See Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 524 (1978).
15
These provisions have been included as Appendix A.
16
See 5 U.S.C. §§ 554, 556, 557; but see id. § 555 (setting forth certain minimum procedures related “ancillary
matters” that apply in both formal and informal adjudicatory proceedings).
17
See L. Harold Levinson, The Status of the Administrative Judge, 38 AM. J. COMP. L. (SUPP.) 523, 541 (1990).
18
See 5 U.S.C. § 554(a); see also TOM C. CLARK, U.S. DEP’T OF JUSTICE, ATTORNEY GENERAL’S MANUAL ON THE
ADMINISTRATIVE PROCEDURE ACT 41 (1947), available at http://www.law.fsu.edu/library/admin/1947cover.html
[hereinafter ATTORNEY GENERAL’S MANUAL]. The Attorney General was actively involved in the development of
the APA and prepared the Attorney General’s Manual in 1947, shortly after the APA’s passage, to provide guidance
to federal agencies on the law’s new requirements. See id. at 5, 6. The manual does not address all issues relevant to
this report. In particular, the manual does not discuss ALJ appointment, “since the Civil Service Commission [was]
entrusted with the responsibilities under that section and [was] . . . engaged in working out the necessary
requirements, assisted by the Advisory Committee of experts designated by the Commission.” Id. at 7.
19
See, e.g., ABA GUIDE TO FEDERAL AGENCY ADJUDICATION, supra note 12, at 176 (“The term ‘informal
adjudication’ describes the process for issuing orders when the formal adjudication provisions of the APA are not
applicable.” (footnotes omitted)). Throughout this report we refer to AJs as “adjudicators.” This may strike some as
odd, given our view that the question of whether the Commission should transition from AJs to ALJs rests
ultimately on the Commission’s expert judgment as to whether the federal sector program should serve a primarily
investigatory function or a primarily adjudicative function. In administrative law parlance, however, “adjudicator” is
the term ordinarily used to refer to non-ALJ officials who preside in non-formal proceedings that result in the
issuance of an order. See 5 U.S.C. §§ 551(6), (7) (defining, respectively, “order” and “adjudication”).
20
See, e.g., Levinson, supra note 17, at 541. “Perhaps 90 percent of federal agency adjudication is informal rather
than formal.” ABA GUIDE TO FEDERAL AGENCY ADJUDICATION, supra note 12, at 176
21
Conversely, the “formal” procedures established by the APA actually provide more flexibility to agencies than the
terminology might suggest. See Cooley R. Howarth, Jr., Restoring the Applicability of the APA’s Adjudicatory
Procedures, 56 ADMIN. L. REV. 1043, 1050 (2004). Immigration hearings are a good example of so-called
“informal” adjudications in which formal, judicialized procedures are observed. See Part IV.B.1.

5

The APA’s formal adjudication provisions were designed to ensure fairness, impartiality,
and due process in administrative adjudications. Ensuring some separation of the investigating
and prosecuting functions of agencies from the adjudication functions of those agencies was
fundamental to this overarching congressional purpose.22 To that end, the presiding official in a
formal adjudication under the APA must be an ALJ.23 ALJs are insulated from their employing
agencies by statutes that grant OPM authority over the selection, compensation, and tenure of
ALJs.24 In addition, ALJs may only be removed for “good cause,” as defined by the Merit
Systems Protection Board (MSPB).25 These protections, which we examine in greater detail
below, provide ALJs with a measure of judicial independence not enjoyed by non-ALJ
adjudicators.26
In the absence of a statute requiring formal APA adjudication, agencies have broad
discretion to fashion their own adjudicatory procedures, subject only to minimum constitutional
requirements, such as due process.27 Although agencies may voluntarily observe APA
procedures and appoint ALJs (subject to the potential limitations on ALJ appointment discussed
in Part III),28 it is more common for them to use their discretion to employ informal processes
and appoint non-ALJ adjudicators to preside over hearings.29 For this reason, the disputes that
have reached the courts have typically involved challenges to agencies’ decisions not to observe
APA requirements. As a consequence, much of the available judicial precedent is inapposite to
the questions the Commission must consider in determining whether to voluntarily transition to
using ALJs instead of AJs in the federal sector hearing program.30
When Congress has not required an agency to conduct adjudicatory hearings under the
APA, the question of whether to use ALJs is ultimately a question of policy.31 On the one hand,
22

See, e.g., Wong Yang Sung, 339 U.S. at 41 (noting that a “fundamental” purpose of the APA was “to curtail and
change the practice of embodying in one person or agency the duties of prosecutor or judge”).
23
See 5 U.S.C. § 556(b)(3). Until 1978, the APA referred to ALJs as “hearing examiners.” See Pub. L. No. 95-251,
92 Stat. 183 (1978). An ALJ need not preside over a formal adjudication if “the agency,” see id. § 556(b)(1), or “one
or more members of the body which comprises the agency,” see id. § 556(b)(2), preside instead. In informal
adjudications, by contrast, “the proceedings may be conducted by anyone the agency head chooses.” Levinson,
supra note 17, at 541.
24
See Part III.B.
25
See 5 U.S.C. § 7521; 5 C.F.R. § 930.211; see also Administrative Conference of the U.S., Recommendation 92-7,
The Federal Administrative Judiciary 8 (1992) (“Although agencies may seek removal or discipline of ALJs ‘for
good cause’ by initiating a formal proceeding at the MSPB, the Board has applied standards that have strictly limited
the contexts in which such actions may successfully be taken against an ALJ.”).
26
See Paul R. Verkuil, Reflections upon the Administrative Judiciary, 39 U.C.L.A. L. Rev. 1341, 1345 (1992)
[hereinafter Verkuil, Reflections].
27
E.g., ABA GUIDE TO FEDERAL AGENCY ADJUDICATION, supra note 12, at 178 (“Subject to constraints imposed by
due process, or by particular statutes or procedural regulations, an agency is free to provide any procedure (or no
procedure) in conducting informal adjudication.” (footnotes omitted)).
28
E.g., Levinson, supra note 17, at 541-42 (“[W]hen the APA does not apply, the proceedings may be conducted by
anyone the agency head chooses. The agency head could assign an ALJ for this purpose, but is more likely to assign
a non-ALJ member of the agency’s staff.”); Verkuil, Reflections, supra note 26, at 1351 (“Congress intended the
APA to leave to individual agencies the discretion whether to employ ALJs, restricting the requirements for ALJs to
those agencies whose organic legislation mandated ‘on the record’ hearings.”). Agency authority to voluntarily
employ formal adjudication under the APA is discussed in further detail later in this report. See Part III.A.
29
See, e.g., Levinson, supra note 17, at 541-42; see also Administrative Conference of the U.S., Recommendation
92-7, The Federal Administrative Judiciary 2 (1992) (discussing agency “movement away from ALJs toward AJs”).
30
This reality should be kept in mind because it has a somewhat pervasive effect on this report’s analysis.
31
See Verkuil, Reflections, supra note 26, at 1354.

6

ALJs have greater judicial independence and may be perceived as more impartial than non-ALJ
adjudicators. If the proceedings at issue implicate individual rights or otherwise require
assurances of impartiality and observance of due process, then using ALJs may be the best policy
choice.32 On the other hand, the very protections that ensure ALJ independence also insulate
ALJs from management and control by their employing agencies. The result is often to reduce
the employing agency’s ability to ensure efficiency and consistency in decisionmaking.33
Moreover, although ALJs are highly qualified, employing agencies generally cannot require
them to have specialized knowledge or experience as a precondition of selection and
appointment. Finally, there are also typically greater costs associated with employing ALJs. Not
only do they have higher salary and benefits levels, but the employing agency must use and pay
for OPM’s certification and selection process. These additional costs may well be worth the
countervailing benefits of using ALJs. But that determination ultimately depends on the nature
and purpose of the adjudicatory program at issue and the employing agency’s expert judgment
regarding the proper role of that program with the agency’s larger mission.
In Recommendation 92-7, The Federal Administrative Judiciary, the Administrative
Conference considered the differences between ALJs and non-ALJ adjudicators and identified
several factors that may bear on the decision of what type of adjudicator should be used in a
hearing program.34 Although the recommendation was directed to Congress, the factors it
identifies are the ones that the Commission should consider in determining whether to convert
federal sector AJs to ALJ status. In relevant part, the recommendation urged that:
[T]he following factors, if present, [should be considered] as
indicia to weigh in favor of requiring ALJ status:
1. The cases to be heard and decided are likely to involve:
a. Substantial impact on personal liberties or freedom;
b. Orders that carry with them a finding of criminal-like
culpability;
c. Imposition of sanctions with substantial economic effect;
or
d. Determination of discrimination under civil rights or
other analogous laws.35
2. The procedures established by statute or regulation for the
cases heard and decided are, or would be, the functional equivalent
of APA formal hearings.

32

See Administrative Conference of the U.S., Recommendation 92-7, The Federal Administrative Judiciary 3
(1992).
33
See id. at 8.
34
See id. at 3-4, 11-12.
35
It bears noting that the preamble to Recommendation 92-7 clarifies that this factor weighs in favor of using ALJs
“unless there is an opportunity for a de novo hearing in court.” Id. at 3.

7

3. The deciders in such cases are, or ought to be, lawyers—
taking into consideration the possibility that some programs might
require other types of specialized expertise on the part of
adjudicators or on panels of adjudicators.
4. Those incumbent AJs in such cases who are required to be
lawyers already meet standards for independence, selection,
experience, and compensation that approximate those accorded to
ALJs.36
Further discussion of the rationale for including each of these considerations in the analysis is
provided in the preamble to Recommendation 92-7,37 which appears as Appendix B.
B.

The Federal Sector Hearing Program

An important part of the Commission’s statutory mission is to ensure nondiscrimination
in federal sector employment. Federal employees are protected from:






Race, sex, and other discrimination under Title VII of the Civil Rights Act of 1964;38
Age discrimination under the Age Discrimination in Employment Act (ADEA);39
Disability discrimination under Titles I and V of the Americans with Disabilities Act of
1990 (ADA)40 and sections 501 and 505 of the Rehabilitation Act of 1973;41
Sex-based compensation discrimination under the Equal Pay Act (EPA);42
Genetic information discrimination under Title II of the Genetic Information
Nondiscrimination Act of 2008;43

The EEOC is not exclusively responsible for ensuring nondiscrimination in federal employment.
Rather, it shares this responsibility with individual federal agencies, each of which is required to
36

See id. at 11-12 (¶ I(A)).
See id. at 3-4.
38
42 U.S.C. § 2000e et seq. Title VII was enacted in 1964, see Pub. L. No. 88-352, and was amended by the Civil
Rights Act of 1991, see Pub. L. No. 102-166), and the Lily Ledbetter Fair Pay Act of 2009, see Pub. L. No. 111-2.
39
See 29 U.S.C. §§ 621 et seq. ADEA was enacted in 1967, see Pub. L. No. 90-202, as amended by the Older
Workers Benefit Protection Act, see Pub. L. No. 101-433, section 115 of the Civil Rights Act of 1991, see Pub. L.
No. 102-166, and the Lilly Ledbetter Fair Pay Act of 2009, see Pub. L. No. 111-2.
40
See 42 U.S.C. § 12101 et seq. The ADA was enacted in 1990, see Pub. L. No. 101-336, and amended by the Civil
Rights Act of 1991, see Pub. L. No. 102-166, the Americans with Disabilities Act Amendments Act of 2008, see
Pub. L. No. 110-325, and the Lilly Ledbetter Fair Pay Act of 2009, see Pub. L. No. 111-2. The ADA does not apply
to the federal sector, see 42 U.S.C. § 12111(5)(B)(i), but similar protection is provided for federal employees under
the Rehabilitation Act.
41
See 29 U.S.C. § 791 et seq. The Rehabilitation Act was enacted in 1973, see Pub. L. No. 93-112, and was
amended by section 512 of the ADA, see Pub. L. No. 101-336), the Rehabilitation Act Amendments of 1992, see
Pub. L. No. 102-569, section 102 of the Civil Rights Act of 1991, see Pub. L. No. 102-166, the Americans with
Disabilities Act Amendments Act of 2008, see Pub. L. No. 110-325, and the Lilly Ledbetter Fair Pay Act of 2009,
see Pub. L. No. 111-2.
42
See 29 U.S.C. § 206(d). The EPA was enacted in 1963, see Pub. L. No. 88-38, as an amendment to the Fair Labor
Standards Act of 1938.
43
See 42 U.S.C. § 2000ff et seq.
37

8

ensure nondiscrimination in its own employment practices.44 The Commission has significant
oversight responsibility, however, and “provides leadership and guidance to federal agencies on
all aspects of the federal government’s equal employment opportunity program.”45
Agencies have a significant role in investigating and resolving any discrimination claims
raised by their own employees. Within 45 days of an alleged discriminatory act, an aggrieved
federal employee must contact an EEO counselor in his or her agency.46 If the matter is not
resolved within 30 days,47 the aggrieved person has 15 days to file a discrimination complaint
with the agency alleged to have discriminated.48 The agency itself must conduct an investigation
into the claim.49 Within 180 days of filing, the agency generally must provide the complainant
with a copy of the investigative file and notify the complainant that he or she has 30 days to
request a hearing and decision from an AJ or an immediate final decision from the agency with
which the complaint was filed.50
A federal sector EEO hearing before one of the Commission’s AJs thus occurs only if the
aggrieved federal employee so requests.51 The Commission’s rules state that “[h]earings are part
of the investigative process.”52 They are “informal” hearings in APA parlance, because they are
not required by statute to be conducted “on the record” and in accordance with the procedures set
forth in 5 U.S.C. §§ 554, 556, and 557.53 Over the years, however, the procedures used to
conduct federal sector EEO hearings have been increasingly judicialized and today bear much in
common with APA procedures. For example, the Commission’s AJs have the power to dismiss
complaints,54 administer oaths,55 and order the production of documents and attendance of
witnesses.56 On the other hand, the AJs do not have subpoena power—meaning that they cannot
compel testimony or the production of documents by third parties (including ex-employees of the
defending agency)57—and the EEOC’s procedural regulations do not bar ex parte
communications.58

44

See 29 C.F.R. §§ 1614.102-1614.110.
EQUAL EMP’T OPPORTUNITY COMM’N, ABOUT EEOC, OVERVIEW, available at http://www.eeoc.gov/eeoc/. The
regulations governing the federal sector program are codified in 29 C.F.R. pt. 1614, which is further supplemented
by an EEO Management Directive, see EQUAL EMP’T OPPORTUNITY COMM’N, MD-110 (Nov. 9, 1999), available at
http://www.eeoc.gov/federal/directives/md110.cfm, and the AJ Handbook, see EQUAL EMP’T OPPORTUNITY
COMM’N,
HANDBOOK
FOR
ADMINISTRATIVE
JUDGES
(2002),
available
at
http://www.eeoc.gov/federal/ajhandbook.cfm.
46
See id. § 1614.105(a)(1).
47
The aggrieved person may also agree to a longer counseling period or choose to pursue alternative dispute
resolution. See id. § 1614.105(d).
48
See id. §§ 1614.105(d), 1614.106(a) & (b).
49
See id. § 1614.108(a).
50
See id. §§ 1614.108(f); 1614.110.
51
See id. §§ 1614.108(f), 1614.109(a).
52
Id. § 1614.109(e).
53
See Part III.A.
54
See 29 C.F.R. § 1614.109(b).
55
See id. § 1614.109(f)(2).
56
See id. § 1614.109(f)(1).
57
It bears noting that ALJs do not automatically have subpoena authority (or any of the other powers identified in 5
U.S.C. § 556(c)—the employing agency must itself have the requisite statutory authority. See 5 U.S.C. § 556(c)
(stating that “[s]ubject to published rules of the agency and within its powers, employees presiding at hearings may”
exercise the enumerated powers); see also ATTORNEY GENERAL’S MANUAL, supra note 18, at 74-75 (“[The APA]
45

9

Although the AJ issues an initial decision at the conclusion of a federal sector EEO
hearing,59 the final action on the complaint is taken by the defending agency.60 The agency may
issue a final order in accord with the AJ’s decision and, if applicable, grant the relief ordered by
the AJ.61 If the agency issues a final order that is not in accord with the AJ’s decision, however,
the agency must simultaneously file an appeal with the Commission.62 The complainant may also
file an appeal with the Commission if he or she is not satisfied by the agency’s final decision.63 If
the complainant is dissatisfied with the ultimate result obtained through the administrative
process, he or she may seek a trial de novo of his or her discrimination claims in federal court.64
C.

Calls for Reform in the Federal Sector Hearing Program

In recent years, some have urged procedural and organizational reforms in the federal
sector hearing program. For example, in 2011, the American Bar Association (ABA) House of
Delegates adopted Resolution 124, “urg[ing] the President, Congress, and the [EEOC] to adopt
measures to provide that employment discrimination hearings conducted by the EEOC be subject
to the formal adjudication requirements of the Administrative Procedure Act.”65 The National
Lawyers Guild and the National Association of Women Judges adopted similar resolutions in
2011 and 2012, respectively.66 The Administrative Judges Association (AJA), a voluntary
professional association of the Commission’s AJs, has also called for procedural and
organizational reform of the federal sector program.67 The AJA has specifically urged that EEOC
adjudicators be given ALJ status68 and that the EEOC should modify the organizational
placement of the program so that the Commission’s adjudicators would no longer report to the
Commission through District Directors and the Office of Field Programs (OFP). Even putting
aside the question of whether AJs should be converted into ALJs, there appears to be significant
disagreement over whether AJs should be organizationally placed under OFP, OFO, or some
new office especially created to oversee the federal sector hearing program.
vests in hearing officers only such of the enumerated powers as the agency itself possesses. If an agency lacks the
authority to issue subpenas [sic], subsection 7(b) does not grant the subpena [sic] power to that agency’s hearing
officers.”). The importance of EEOC carefully evaluating whether it possesses the requisite statutory authority is
discussed in greater detail below. See infra at notes 130-138 and accompanying text.
58
An EEOC order, however, does prohibit ex parte communications during federal sector hearings. EQUAL EMP’T
OPPORTUNITY COMM’N, ORDER NO. 690.001 (2002); EQUAL EMP’T OPPORTUNITY COMM’N, HANDBOOK FOR
ADMINISTRATIVE JUDGES ch. 1 pt. E (2002), available at http://www.eeoc.gov/federal/ajhandbook.cfm#initial.
59
See 29 C.F.R. § 1614.109(i).
60
See id. § 1614.110(a).
61
See id.
62
See id. Such appeals are filed with the Office of Federal Operations (OFO), which issues the initial decision on
behalf of the Commission. See id. §§ 1614.403(a), 1614.404. “The decision on an appeal from an agency’s final
action shall be based on a de novo review, except that the review of the factual findings in a decision by an
administrative judge . . . shall be based on a substantial evidence standard of review.” Id. § 1614.405(a).
63
See id. § 1614.401(a).
64
See Part II.A.1.
65
A.B.A. RESOLUTION 124 (adopted Aug. 2011).
66
See, e.g., Kathleen Mulligan & Albert Sheen, Faster and Fairer: Federal employees may choose streamlined
procedures to resolve complaints of employment discrimination, L.A. LAW., June 2012, at 19, 20, available at
http://www.lacba.org/Files/LAL/Vol35No4/2933.pdf.
67
See, e.g., Admin. Judges Ass’n, Comments on Request for Public Comment on Plan for Retrospective Analysis of
Significant Regulations (Mar. 28, 2011), available at http://www.eeoc.gov/laws/regulations/upload/Link-13-AJAComments-re-January-2011-Notice.pdf.
68
See id. at 4-6.

10

In response to this ongoing dialogue, the Commission has pursued the present study of
the status and placement of federal sector adjudicators.69
D.

Historical Examples of Conversions to ALJs

On at least two occasions in the 1970s and 1980s, other federal agencies successfully
converted non-ALJ adjudicators to ALJs. Both conversions were sought by agencies that
believed the appointment of ALJs was required by a newly-enacted statute. In both instances, the
Civil Service Commission (CSC), OPM’s predecessor, at first denied the agency’s request to
appoint ALJs based on its independent judgment that the relevant statutes did not require the
adjudications to be conducted under the APA. This delayed the appointment of ALJs until the
courts and/or Congress took action to resolve the inter-agency dispute and facilitate the
conversion to ALJs. Unfortunately, many of the details of these historical examples were not
recorded in publicly available documents and appear to have been lost over time. We have
provided here all of the information we have been able to locate.
1. The Social Security Administration
The first agency to accomplish an ALJ conversion was the Social Security
Administration (SSA), with respect to its Disability Insurance (DI) and Supplemental Security
Income (SSI) programs. Congress enacted the Social Security Act in 1935 and authorized the DI
program in 1956. For many years, it was unclear whether the APA’s formal adjudication
provisions applied to the DI program. In 1971, the Supreme Court declined an opportunity to
decide the question, reasoning that “the social security administrative procedure does not vary
from that prescribed by the APA. Indeed, the latter is modeled upon the Social Security Act.”70
The relevant provision of the Social Security Act, however, required only an “opportunity for
hearing,” not a “hearing on the record.”71 This language would not ordinarily be read to require
observance of formal APA adjudication procedures.72 In 1972, Congress supplemented the DI
program with the SSI program, requiring that the same procedures be used in both programs.
After the law was enacted, SSA asked the CSC for approval to hire additional ALJs to staff the
SSI program.73 The CSC denied the request, taking the position that the SSI program did not
require formal APA proceedings and, therefore, did not require the appointment of ALJs.74
69

See EQUAL EMP’T OPPORTUNITY COMM’N, STRATEGIC ENFORCEMENT PLAN, FY 2013-2016 17, available at
http://www.eeoc.gov/eeoc/plan/sep.cfm.
70
Richardson v. Perales, 402 U.S. 389, 408-409 (1971).
71
See 42 U.S.C. § 405(b). Having been enacted in 1935, eleven years before the APA was enacted, the Social
Security Act could not have referred to the APA’s formal adjudication provisions.
72
See Fourth in Hearing Series on Securing the Future of the Social Security Disability Insurance Program:
Subcomm. on Social Security of H. Comm. on Ways and Means, 112 th Cong. (June 27, 2012) (testimony of Jeffrey
S. Lubbers, Professor of Practice in Administrative Law, Washington College of Law, American Univ.); see also
United States v. Florida E. Coast Ry. Co., 410 U.S. 224 (1973) (“The term ‘hearing’ in its legal context undoubtedly
has a host of meanings.”).
73
Although it appears that the DI program was already using ALJs at the time the SSI program was created, it is not
clear when or how that practice began. Because Congress contemplated that the same procedures would be used in
both programs, however, SSA interpreted that to mean that formal hearings were required. This is what presumably
motivated SSA to seek the appointment of additional ALJs to staff the SSI program. Today, SSI and DI are
adjudicated by ALJs, and the resulting orders are subject to substantial evidence review in federal district court. See
42 U.S.C. §§ 405(g), 1383(c)(3). There nonetheless remains some dispute over whether Congress intended to

11

The impasse between SSA and the CSC went on for years, requiring two acts of Congress
before it was finally resolved in 1977.75 First, in 1976, Congress enacted legislation conferring a
two-year “temporary ALJ” status on SSI hearing officers.76 Finally, in 1977, Congress enacted
additional legislation granting the temporary ALJs permanent ALJ status.77
2. The Department of Labor
In the late 1970s or early 1980s, the Department of Labor (Department) similarly
converted non-ALJ adjudicators in the Federal Black Lung Benefits Program to ALJ status. In
1972, Congress enacted the Black Lung Benefits Act. To identify the procedures the Department
was required to observe in adjudicating claims under the Act, Congress cross-referenced the
Federal Coal Mine Health and Safety Act of 1969 (FCMHSA). Several months later, however,
Congress amended the relevant provisions of the FCMHSA to require formal adjudication under
the APA. The Department accordingly requested an allocation of ALJs to adjudicate Black Lung
Benefits claims. The CSC denied the request, taking the position that APA hearings were not
required because the cross-references in the Black Lung Benefits Act were properly interpreted
as requiring the FCMHSA’s pre-amendment, informal procedures. Because the CSC and the
Department were at an impasse, the Department adopted a regulation permitting non-ALJs to
adjudicate Black Lung Benefits claims. In 1976, however, the Benefits Review Board found that
regulation invalid.78 Ultimately, several federal circuit courts were called upon to review affected
cases. These courts uniformly interpreted the Black Lung Benefits Act to require formal APA
adjudications, and upheld the Department’s regulation permitting the use of non-ALJ
adjudicators only because Congress, out of necessity, had validated it in several appropriations
bills.79
The Department eventually succeeded in converting from non-ALJ adjudicators to ALJs
in the Black Lung Benefits program. Although it appears that several legislative acts and
multiple judicial opinions were required to break the impasse between the Department and the
CSC, we have not been able to identify with greater particularity how the conversion was
ultimately and permanently accomplished.80

require DI and SSI hearings be conducted under the APA. See Jeffrey Scott Wolfe, Are You Willing to Make the
Comment in Writing? The APA, ALJs, and SSA, 55 OKLA. L. REV. 203, 216-22 (2002); see also Verkuil, Reflections,
supra note 26, at 1348 (explaining that as of the 1970s, SSA “had long utilized ALJs, even though it was not
required by the APA ‘on the record’ hearing requirements to do so.”).
74
See generally Wolfe, supra note 73, at 213-16.
75
See Testimony of Jeffrey S. Lubbers before the Social Security Subcommittee, House Ways and Means
Committee 5 (June 27, 2012).
76
See Pub. L. No. 94-202 § 3.
77
See Pub. L. No. 95-216, tit. III, § 371, 91 Stat. 1559.
78
See, e.g., Office of Worker’s Comp. Programs v. Peabody Coal Co., 554 F.2d 310, 313-316 (7th Cir. 1977).
79
See U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264, 273 (5th Cir. 1979); Office of Workmen’s Comp. Program
v. Ala. By-Prods. Corp., 560 F.3d 710, 712, 718 (1977); Office of Workers’ Comp. Programs, E. Coal Corp., 561
F.2d 632, 650-51 (6th Cir. 1977); Krolick Contracting Corp. v. Benefits Review Bd., 558 F.2d 685, 688, 690 (3d
Cir. 1977); Peabody Coal, 554 F.2d at 340; Office of Workers’ Comp. Programs v. Nat’l Mines Corp., 554 F.2d
1267, 1273, 1275 (4th Cir. 1977); see also Eifler v. Office of Workers’ Comp. Programs, 926 F.2d 663, 665 (7th
Cir. 1991).
80
We have consulted with experts familiar with this transition, but have not been able to locate any person or
documents with further information regarding the history of the conversion.

12

II.

ASSESSING THE EFFECTS OF TRANSITIONING FROM AJS TO ALJS IN THE FEDERAL
SECTOR HEARING PROGRAM
A.

Procedural Considerations

As we explain in great detail later, OPM takes the position that ALJs may only be
appointed to preside over hearings required to be conducted in accordance with the APA’s
formal adjudication requirements.81 Title VII and the other nondiscrimination statutes
implemented through the Commission’s federal sector hearing program do not require that
federal employees’ discrimination claims be adjudicated through such a “hearing on the
record.”82 To transition from AJs to ALJs, the Commission may first have to address this
deficiency.83 One way to accomplish this would be for the Commission to seek and secure an
appropriate statutory amendment. Alternatively, OPM has suggested that it would be sufficient
for the Commission to adopt a regulation subjecting federal sector EEO hearings to the APA’s
formal adjudication requirements.84
This section explores the key procedural issues the Commission would need to consider
before adopting a rule requiring observance of APA procedures. It analyzes two potential hurdles
to such action identified by OPM: (1) federal employees’ right to file suit in federal court for a de
novo trial of discrimination claims previously adjudicated by the Commission; and (2) the nature
and source of the final agency action that emerges from a federal sector EEO hearing.
Determining that these hurdles could be overcome, this section concludes by identifying several
procedural rules that the Commission would likely need to closely evaluate and, perhaps, modify
in order to fully implement a rule requiring APA procedures in federal sector hearings.
1. De Novo Judicial Review
The first potential hurdle to requiring APA procedures in federal sector hearings is the
availability of a subsequent de novo trial of the same claims in federal court. Section 554 of APA
provides that matters subject to subsequent de novo trial in court are not subject to the Act’s
formal adjudication requirements:
This section applies, according to the provisions thereof, in every
case of adjudication required by statute to be determined on the
record after opportunity for an agency hearing, except to the extent
81

See Part III.B.1.; see generally 5 U.S.C. §§ 554, 556, 557.
If a statute uses the magic words “hearing on the record,” formal APA proceedings are required, but otherwise
courts generally defer to an agency’s interpretation as to the applicability of the APA’s formal adjudication
provisions. See, e.g., Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006). Courts would
likely be similarly deferential to an agency that interpreted its statute to require or permit formal adjudicatory
hearings in the absence of the phrase “hearing on the record.”
83
OPM has long taken the position that it has the statutory authority to approve or deny an agency’s request for an
“allocation” of ALJs. See Part III.B.1. Historically, legislative action, either alone or in conjunction with judicial
action, has been required to break the impasse between OPM (or its predecessor, the Civil Service Commission) and
an agency seeking to appoint ALJs to adjudicate disputes arguably not subject to the APA. See Part I.D. Although
the concept of an “allocation” is no longer relevant, OPM continues to assert the authority to approve new ALJ
position descriptions. Informal Communications, Office of the Gen. Counsel, Office of Pers. Mgmt., supra note 4.
84
Informal Communications, Office of the Gen. Counsel, Office of Pers. Mgmt., supra note 4.
82

13

that there is involved—(1) a matter subject to a subsequent trial of
the law and the facts de novo in a court.85
This exception was “included because whatever judgment the agency makes is effective only in a
prima facie sense at most and the party aggrieved is entitled to complete judicial retrial and
decision.”86 This provision thus reflects Congress’s judgment that it would be inefficient and
unnecessary to require agencies to provide formal hearings when the resulting decisions will
have little weight in court, and the rights of affected parties will be amply protected through the
judicial process. Courts have held that even the possibility of a subsequent de novo trial is
sufficient to trigger this exception.87 Although the statutory language could be read to prohibit
formal adjudication when subsequent trial de novo is available, it is couched as an exception to
the mandatory application of the APA. This suggests that the language is best read as providing
only that an agency is not required to conduct formal APA hearings in such circumstances. From
this perspective, the exception does not necessarily bar an agency from voluntarily observing
APA procedures.88
It is well settled “that federal employees are entitled to a trial de novo of their
employment discrimination claims,” even after they have availed themselves of an administrative
EEO hearing before an AJ.89 A federal employee who has been afforded a federal sector EEO
hearing and has prevailed may simply seek judicial enforcement of the final administrative
order.90 In a judicial action of this kind, review is limited: the only issues are whether the relief
ordered was within the Commission’s authority91 and whether the employing agency has
complied with the order.92 If a federal employee has lost before the agency or is dissatisfied with

85

5 U.S.C. § 554(a)(1).
S. COMM. ON THE JUDICIARY, 79TH CONG., ADMINISTRATIVE PROCEDURE ACT, S. REP. 752, at 202 (1945),
available at http://www.justice.gov/jmd/ls/legislative_histories/pl79-404/senaterept-752-1945.pdf; see also
ATTORNEY GENERAL’S MANUAL, supra note 18, at 43 (examining the legislative history and identifying the specific
types of proceedings Congress had in mind when it created the exemption).
87
See, e.g., Arwady Hand Trucks Sales, Inc. v. Vander Werf, 507 F. Supp. 2d 754, 760 (S.D. Tex. 2007) (“Because
the Court has the discretion to conduct a trial de novo of the [Bureau of Alcohol, Tobacco, and Firearms (ATF)]
denial decision, the underlying ATF hearing is a matter to which the APA adjudication procedures do not apply.”);
D’Angelo v. Dep’t of Navy, 593 F. Supp. 1307, 1310 (E.D. Pa. 1984).
88
As we note elsewhere, we have not been able to identify any agency that conducts formal adjudication of matters
subject to subsequent de novo trial in federal court.
89
Chandler v. Roudebush, 425 U.S. 840, 846 (1976) (addressing Title VII claims); see also Carver v. Holder, 606
F.3d 690, 697-98 (9th Cir. 2010) (explaining that Chandler applies to federal sector claims under Age
Discrimination in Employment Act (ADEA), which was modeled on Title VII).
90
See, e.g., Moore v. Devine, 780 F.2d 1559, 1564 (11th Cir. 1986) (“The employee may request enforcement by
the district court without requesting and trying the merits of the claim.”); Carver, 606 F.3d at 696 (explaining that
the first of two options available to the employee is to “bring an enforcement action against the agency”); Ellis v.
England, 432 F.3d 1321, 1324 (11th Cir. 2005) (same). On the other hand, “[u]pon conclusion of the administrative
process, the employing agency has no right to seek judicial review of the [Office of Federal Operations]’s resolution
of an employee’s claim.” Carver, 606 F.3d at 696.
91
See, e.g., Moore, 780 F.2d at 1563 (“Federal district courts have uniformly granted requests for enforcement of
favorable final agency and EEOC decisions without requiring de novo review of the merits of the discrimination
claims, unless the court has found the relief ordered to be outside the EEOC’s authority.”)
92
See, e.g., Massingill v. Nicholson, 496 F.3d 382, 384 (5th Cir. 2007) (“Once a federal-sector employee exhausts
her administrative remedies, she can file . . . a suit to enforce the final administrative disposition, in which the court
examines only whether the agency has complied with the disposition.”).
86

14

the relief ordered, he or she may seek a subsequent de novo judicial trial on one or more claims93
previously adjudicated through the federal sector hearing program. 94 As the Supreme Court has
explained:
Congress was aware of the fact that federal employees would have
the benefit of appropriate procedures for an impartial agency
adjudication of the complaint, and yet chose to give employees
who had been through those procedures the right to file a de novo
“civil action” equivalent to that enjoyed by private-sector
employees.95
In a civil action of this kind, the AJ’s decision and any Commission order issued on
administrative appeal are given no deference and treated merely as part of the evidence in the
case.96
One might argue that the de novo standard of judicial review renders federal sector
hearings ineligible to be formal adjudications under the APA. If one reads section 554(a)(1) as a
statutory declaration that matters subject to subsequent de novo trial cannot, by definition, be
formal adjudications, then a Commission regulation requiring APA procedures may be viewed as
insufficient to require the appointment of ALJs in the absence of legislation.97 Conclusively
establishing the Commission’s authority to voluntarily subject federal sector EEO hearings to
APA requirements, however, is somewhat challenging because of the lack of directly applicable
judicial precedent. Available precedent has typically involved private parties trying to force an
agency to observe APA requirements in exempted proceedings.98
To interpret section 554(a)(1) to deny the Commission’s authority to require APA
procedures in federal sector EEO hearings would be inconsistent with both the statute’s plain
language and fundamental administrative principles. As to the first point, section 554(a)(1) is
best read as creating a general exemption from the APA’s statutory requirements. To read it as a
93

See 42 U.S.C. § 2000e-16(c); Chandler, 425 U.S. at 840; see also, e.g., Scott v. Johanns, 409 F.3d 466, 469 (D.C.
Cir. 2005) (“In a Title VII suit brought after a final administrative disposition finding no discrimination, the district
court considers the discrimination claim de novo.”). Although the circuit courts have long split over the question of
whether a federal employee can challenge the ordered remedy without triggering a de novo trial of the underlying
liability issue, the weight of authority has recently tipped against allowing such bifurcation. See generally
Massingill, 496 F.3d at 384-85 (examining the history and trajectory of the circuit split before “agree[ing] with the
weight of authority”).
94
Complainants must exhaust administrative remedies before going to court, see 42 U.S.C. § 2000e-16(c); Brown v.
Gen. Servs. Admin., 425 U.S. 820, 833 (1976), although a hearing is an optional part of that process, see 29 C.F.R. §
1614.109(a) (“When a complainant requests a hearing, the Commission shall appoint an administrative judge to
conduct a hearing in accordance with this section.”).
95
Chandler, 425 U.S. at 863 (internal quotations marks, alterations, and footnote omitted).
96
E.g., id. at 863 n.39 (“Prior administrative findings made with respect to an employment discrimination claim
may, of course, be admitted as evidence at a federal-sector trial de novo.” (citing FED. R. EVID. 803 (8)(c))).
97
Cf. ATTORNEY GENERAL’S MANUAL, supra note 18, at 9 (“[I]nvestigatory proceedings, no matter how formal,
which do not lead to the issuance of an order containing the element of final disposition as required by the
definition, do not constitute adjudication.”). Of course, Congress could legislatively address this issue by changing
the standard of review in subsequently filed employment discrimination actions. It could also statutorily override the
APA’s exemption by requiring that federal sector discrimination claims be adjudicated under the APA. See Starrett
v. Special Counsel, 792 F.2d 1246 (4th Cir. 1986).
98
See, e.g., Arwady Hand Trucks Sales, 507 F. Supp. 2d at 757, 760.

15

prohibition on the use of APA procedures in exempted proceedings would be at odds with the
fundamental administrative principle that the APA establishes only minimum, skeletal
procedural requirements, and agencies have broad discretion to design and observe more
demanding procedural requirements.99 As the Supreme Court has explained, even if certain
“proceedings need not be conducted pursuant to the Act, 5 U.S.C. § 554, the agency remains
‘free under the Act to accord litigants appearing before it more procedural rights than the Act
requires.’”100 Thus, the Commission presumably has the authority to require APA procedures in
federal sector EEO hearings notwithstanding the possibility that the matters adjudicated
subsequently may be subject to de novo trial in federal court.
The more fundamental question for the Commission, however, is whether it is necessary,
desirable, or appropriate to subject federal sector hearings to the formal procedures of the APA
when the issues adjudicated may be subsequently tried de novo in federal court. Although this is
an issue over which agencies should have discretion, we have been unable to identify any other
agency program in which formal adjudicatory hearings are combined with subsequent de novo
judicial review. Ultimately, the decision must be based on the Commission’s interpretation of the
nondiscrimination statutes Congress has charged it with enforcing and its expert judgment
regarding the proper role of the federal sector program within the Commission’s larger
organization and mission. If the Commission views the federal sector hearing program as part of
an investigatory process designed to mirror or complement its private sector investigative
process, then further formalization of the hearings may not make sense. On the other hand, if it
views the predominant purpose of the federal sector hearing program as assuring the impartial
adjudication of individual federal employees’ claims of employment discrimination, then formal
hearings under the APA may be appropriate. The Commission should carefully consider whether
a formal adjudicative vision of the program makes sense without legislative action to eliminate
de novo judicial review and give greater finality and weight to the administrative decisions
produced through federal sector hearings.
2. Status, Finality, and Review of the AJ’s Decision
A second potential hurdle to the Commission’s adopting a rule requiring APA procedures
in federal sector EEO hearings is the current relationship between the AJ’s decision and the
employing agency’s final action. Under current regulations, an AJ’s decision in a federal sector
hearing does not immediately become final, but is instead returned to the agency alleged to have
discriminated (the “defending agency”). The defending agency is required to “take final action
on the complaint by issuing a final order within 40 days of receipt.”101 Only if the agency fails to
take action within the established time period does the AJ’s decision become final agency
action.102 And it becomes the final action of the defending agency, not the Commission.103 This
99

See, e.g., Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 349 (1st Cir. 2004) (“The APA lays
out only the most skeletal framework for conducting agency adjudications, leaving broad discretion to the affected
agencies in formulating detailed procedural rules.”).
100
Int’l Tel. & Tel. Corp. v. Local 134, Int’l Bhd. of Elec. Workers, 419 U.S. 428, 448 (1975).
101
See 29 C.F.R. § 1614.110(a).
102
See id. § 1614.109(i).
103
See id. § 1614.109(i) (“If an agency does not issue a final order within 40 days of receipt of the administrative
judge’s decision in accordance with 1614.110, then the decision of the administrative judge shall become the final
action of the agency.”).

16

procedural characteristic appears to be unique to the federal sector hearing program. Ordinarily,
an AJ or ALJ opinion, if not administratively appealed within a time established by rule,
becomes final action of the agency for which the adjudicator is working. Moreover, EEOC
regulations permit the defending agency to issue a final order that “does not fully implement” the
AJ’s decision.”104 But in such circumstances, the regulations provide that “the agency shall
simultaneously file an appeal” with the Commission and “append a copy of the appeal to the
final order.”105 Appeals from federal sector EEO hearings are processed by the OFO,106 to which
the Commission has delegated the requisite authority.107
OPM has expressed concern that this aspect of the process may be inconsistent with the
APA’s formal adjudication requirements.108 We are of the view, however, that this concern is
misplaced and this aspect of the Commission’s current process is generally consistent with APA
requirements.
The APA specifically contemplates that an ALJ’s decision may be a “recommended” or
“initial” decision that may not necessarily become final agency action. 109 More specifically, the
APA provides that “[w]hen the presiding employee makes an initial decision, that decision then
becomes the decision of the agency without further proceedings unless there is an appeal to, or
review on motion of, the agency within time provided by rule.”110 The issue is whether the
statute’s reference to “the agency” requires that the agency employing the ALJ and the agency
issuing the final decision are one and the same. In our view, the statutory language merely
reflects the fact that, in most instances, adjudication occurs within a single agency. Although the
Commission’s process is in this sense unique, it nonetheless appears to be consistent with the
statutory requirement. The AJ’s decision is an initial decision that becomes final agency action
unless the defending agency, within a time prescribed by rule, either: (1) issues a final order fully
implementing the AJ’s decision; or (2) issues a final order that does not fully implement the AJ’s
decision, while simultaneously filing an appeal of the AJ’s decision with the Commission. That a
final order implementing the AJ’s decision comes from an agency other than the EEOC should
not make any difference in terms of the appeal process outlined in the APA.111 Furthermore, the
defending agency has no authority to take final action inconsistent with the AJ’s decision in the
absence of a successful appeal to the Commission.
3. Other Procedural Issues
To effectuate a rule requiring APA procedures in the federal sector hearing program, the
Commission may be required to make other procedural modifications. We have evaluated the
Commission’s current rules and identified several provisions that are potentially inconsistent
with the APA. For purposes of our review, we focus only on the procedures codified in the
104

Id. § 1614.110(a).
Id. § 1614.110(a); see id. at § 1614.403.
106
See id. § 1614.403.
107
See id. § 1614.403.
108
Informal Communications, Office of the Gen. Counsel, Office of Pers. Mgmt., supra note 4.
109
See 5 U.S.C. §§ 554(d), 557(b) & (c).
110
5 U.S.C. § 557(b).
111
Cf. Maka v. United States Immigration & Naturalization Serv., 904 F.2d 1351, 1356 n.6 (9th Cir. 1990) (finding
nothing inconsistent with 5 U.S.C. § 557 where the agency exercising delegated authority to review an ALJ’s
decision was “not an officer of the INS”).
105

17

Commission’s regulations. We recognize that these procedures are supplemented in important
ways through EEOC Orders and the guidance contained in the AJ Handbook.112 OPM’s concern,
however, is that federal sector hearings be required to be conducted under the APA. Thus, the
determinative comparison must be between the two sources of binding procedural requirements:
the Commission’s regulations and the APA.
There are a several inconsistencies between the APA’s formal hearing procedures and
federal sector EEO hearing procedures that may need to be resolved if the Commission decides
to transition to using ALJs. In particular, the Commission would need to consider whether:


To modify the rules on pre-complaint processing, the filing of complaints, and the
scheduling and location of hearings to ensure adequate notice to the parties and
consideration of convenience and necessity.113



To extend to complainants the opportunity to submit offers of resolution.114



To address the question of ALJ impartiality and standards for recusal.115



To codify appropriate rules governing ex parte contacts.116



To remove the statement that “[h]earings are part of the investigative process,”117
because it is inconsistent with the APA’s separation-of-functions requirements.118



To grant ALJs additional powers. In particular, the rules do not appear to
expressly grant AJs the power to issue subpoenas,119 hold conferences for
settlement or simplification of the issues,120 notify the parties of ADR alternatives
or encourage their use,121 require parties or their representatives to attend
conferences,122 or dispose of procedural requests or similar matters.123



To identify which party bears the burden of proof in federal sector EEO
hearings.124

112

See supra note 58.
See 5 U.S.C. § 554(b).
114
See id. § 554(c)(1).
115
See id. § 556(b).
116
See id. § 556(d)
117
29 C.F.R. § 1614.109(e).
118
See 5 U.S.C. § 554(d).
119
See id. § 556(c)(2). As previously noted, this may require the Commission to seek the statutory authority to issue
subpoenas, if it does not already possess the requisite authority for ALJs to exercise. See supra note 57. This issue is
explored in greater detail at the end of the present section. See infra at notes 130-138 and accompanying text.
120
See 5 U.S.C § 556(c)(6).
121
See id. § 556(c)(7).
122
See id. § 556(c)(8).
123
See id. § 556(c)(9).
124
See id. § 556(d); see also Steadman v. Sec. & Exch. Comm’n, 450 U.S. 91 (1981) (holding that the
preponderance-of-the-evidence test applies in formal APA adjudications).
113

18



To identify the evidentiary standard for the issuance of a decision or order.125



To define the necessary contents of the administrative record with greater
specificity.126



To implement the requirement that “[w]hen an agency decision rests on official
notice of a material fact not appearing in the evidence in the record, a party is
entitled, on timely request, to an opportunity to show the contrary.”127

The Commission may conclude that its existing rules already fulfill the APA’s “most skeletal”
requirements or require only modest changes to achieve that goal.128 A court would likely give
the agency wide latitude to reach such a conclusion, provided it were adequately explained and
legally supported.129
As a practical matter, the Commission would likely need to satisfy OPM that its
procedures fully comply with the APA’s formal adjudication provisions. For this reason, should
the Commission pursue an overhaul of its procedures in order to use ALJs in the federal sector
hearing process, it may be prudent to consult with OPM to ascertain exactly what modifications
to the Commission’s procedural rules it would deem necessary to satisfy its requirements for
appointing ALJs.
The Commission would also need to consider whether legislative action would be
required to make the procedural modifications that may be necessary to satisfy OPM that federal
sector hearing procedures are fully consistent with the APA’s formal adjudication provisions.130
In addition to the availability of subsequent de novo judicial trial, which we have examined in
detail above,131 another issue arises with respect to ALJ subpoena authority. As previously
noted,132 the APA does not automatically endow ALJs with the powers enumerated in 5 U.S.C. §
556, including the power to issue subpoenas.133 A statute other than the APA must grant an
agency statutory authority to issue subpoenas before that agency can subdelegate the authority to
125

See 5 U.S.C. § 556(d).
See id. § 556(c).
127
See id. § 556(e).
128
Citizens Awareness Network, 391 F.3d at 349.
129
See, e.g., id. at 352.
130
It warrants clarifying that, in our view, a hearing may qualify as a “formal” adjudication required to be conducted
under the APA even if the presiding ALJ does not have all the powers enumerated in the APA, including the
authority to issue subpoenas. See 5 U.S.C. § 556(c) (providing that, “[s]ubject to published rules of the agency and
within its powers, employees presiding at hearings may” administer oaths, issue subpoenas, etc. (emphasis added)).
Were it not so, Administrative Conference Recommendation 70-4, Discovery in Agency Adjudication would make
little sense. This recommendation urges agencies to “recognize” certain “minimum standards for discovery” in
formal hearings subject to the APA’s adjudication provisions. Id. at 1. With respect to subpoenas, the
recommendation provides that: “The presiding officer should have the power to issue subpoenas ad testificandum
and duces tecum at any time during the course of the proceeding. Agencies affected by this Recommendation that do
not have the statutory authority to issue subpoenas should seek to obtain any necessary authority from the
Congress.” Id. at 6 (¶ 9). If subpoena authority were an indispensable element of formal adjudication, this
recommendation would be superfluous.
131
See supra Part II.A.1.
132
See supra note 57.
133
See 5 U.S.C. § 556(c)(2).
126

19

its ALJs.134 EEOC already has statutory authority to issue subpoenas.135 Although the text is
extremely broad on its face, the Commission would need to consider whether the authority it
grants extends to the federal sector program.136 Careful scrutiny may be required because the
statutory provision at issue was enacted in 1972, before responsibility for the federal sector
program was transferred from the CSC to EEOC.137 It is possible that Congress intended the
Commission would issue subpoenas only in the context of private sector investigations. Careful
regard to the limits of EEOC’s current statutory authority may also be warranted because in the
federal sector context, EEOC subpoenas would be issued to, and enforced against, other federal
agencies.138
Finally, the use of ALJs in federal sector hearings may create new issues that do not arise
in the current hearing process. For example, if ALJs presided over federal EEO hearings, a
conflict of interest might arise in hearings involving claims that OPM has discriminated in its
employment practices. OPM’s statutory authority over ALJ selection, compensation, and
tenure139 could undermine an EEOC ALJ’s real or perceived impartiality in such hearings.
Because all ALJs have the same special relationship with OPM, the Commission could not
address this issue by “borrowing” an ALJ from another agency. 140 Rather, to address this issue in
a manner consistent with the APA, one or more Commissioners or the full Commission would
need to preside over any federal sector EEO hearing involving claims against OPM.141

134

See, e.g., Peters v. United States, 853 F.2d 692, 696 (9th Cir. 1988) (“The authority of an administrative agency
to issue subpoenas for investigatory purposes is created solely by statute.”); Johnson v. United States, 628 F.2d 187,
193 (D.C. Cir. 1980) (“Subpoena power is not an intrinsic feature of the administrative process, and courts cannot
engraft subpoena authority onto an agency’s charter from Congress.”); Sec. & Exch. Comm’n v. Bourbon Sales
Corp., 47 F. Supp. 70, 72 (W.D. Kan. 1942) (“When jurisdiction over the subject matter . . . is shown to exist, the
authority to issue the subpoena is controlled by the express terms of the particular statute involved.”).
135
See 42 U.S.C. § 2000e-9 (“For the purpose of all hearings and investigations conducted by the Commission or its
duly authorized agents or agencies, section 161 of title 29 shall apply.”); see also 29 U.S.C. § 161 (granting
authority to issue “subpenas [sic] requiring the attendance and testimony of witnesses or the production of any
evidence” and providing for federal court aid in enforcement); see generally Equal Emp’t Opportunity Comm’n v.
K-Mart Corp., 694 F.2d 1055 (6th Cir. 1982) (discussing how standards governing judicial review and enforcement
of administrative subpoenas apply in the context of EEOC private sector investigations).
136
Our discussion here is at a fairly broad level of generality, and it bears noting that a full evaluation of the
availability of subpoena authority for purposes of federal sector hearings would likely require an analysis of each
individual statute enforced through federal sector hearings. The adjudicatory tools available to the agency under
each statute may vary.
137
The provision was added by the 1972 amendments to Title VII. See Equal Employment Opportunity Act of 1972,
Pub. L. No. 92-261, § 7, 86 Stat. 103, 109 (1972). A similar issue, discussed below, arises with respect to the
Commission’s statutory authority to appoint ALJs. See infra at notes 184-194 and accompanying text. The
implications, however, are different in each case. Although it is clear that subpoena authority must be specifically
granted by Congress, see supra note 57 and notes 133-134 and accompanying text, ALJ appointment authority is
more in the nature of an inherent authority, see infra at Part III.A and note 182.
138
MSPB, which also adjudicates federal employees’ claims against their employing agencies, has statutory
authority to issue subpoenas See 5 U.S.C. § 1204(b)(2)(A); Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2138
(2012).
139
See Part III.B.
140
In the current process, when a hearing involves a claim of discrimination against EEOC, the agency uses a nonALJ adjudicator employed by another agency to preside over the hearing. See Bullock v. Berrien, 688 F.3d 613, 615
(9th Cir. 2012). Similarly, the MSPB’s “policy is to insulate the adjudication of its own employees’ appeals from
agency involvement as much as possible.” 5 C.F.R. § 1201.13.
141
See 5 U.S.C. § 556(b)(1)-(2).

20

B.

Operational Considerations

OPM’s statutory responsibilities for the federal ALJ program, which are examined in
greater detail below,142 would have significant operational consequences for EEOC in the event
the agency decided to transition to using ALJs in the federal sector hearing program. While Part
III, below, focuses on how OPM’s role would affect the Commission’s appointment authority,
this section focuses on how it would affect the Commission’s authority over the compensation,
tenure, and management of ALJs.
To preserve ALJ independence, OPM is vested with statutory authority over the
compensation and tenure of ALJs.143 Employing agencies are required by statute and regulation
to pay OPM for the costs associated with administering the ALJ program.144 In addition, ALJs
are compensated according to a special scale established by statute. 145 That statute also vests
OPM with the authority to “determine, in accordance with procedures which [OPM] shall by
regulation prescribe, the level in which each administrative-law-judge position shall be placed
and the qualifications to be required for appointment at each level.”146 Finally, OPM has a role in
certain agency personnel actions in relation to the management of ALJs.147
The budgetary implications of these requirements are analyzed in detail below, 148 but
there are also some non-financial implications that warrant consideration. At the broadest level,
employing ALJs in the federal sector hearing process would require the Commission to establish
and maintain a good working relationship with OPM.149 Although the Office of Management and
Budget (OMB) has suggested there is no requirement for agencies to annually enter into an
Interagency Agreement (IAA) with OPM, it has taken the position that doing so is a “good
practice.”150 OPM has taken the position, however, that such agreements are neither necessary
nor appropriate and that it will not negotiate IAAs related to the ALJ program. 151 If the
Commission reforms its federal sector hearing program to accommodate the use of ALJs, it
should consider how it will ensure clear expectations and a forward-looking understanding of
program costs.
Using ALJs would also impose some restrictions on the Commission’s personnel
management authority.152 OPM regulations provide that OPM has the authority to “[a]pprove
142

See Part III.B.
See, e.g., 5 U.S.C. § 5372
144
See id. § 1104(a)(2)
145
See id. § 5372.
146
See id. § 5372(b)(2); see generally 5 C.F.R. §§ 930.201-930.211 (OPM regulations implementing its statutory
authority to regulate the selection, compensation, and tenure of ALJs employed by other agencies).
147
Although OPM does not initiate these actions, it reviews and responds to personnel actions initiated by the
employing agency to ensure adherence to the rules designed to protect ALJs.
148
See Part V.
149
See generally SOC. SEC. ADMIN., OFFICE OF THE INSPECTOR GEN., A-05-12-22144, CONGRESSIONAL RESPONSE
REPORT: INTERAGENCY AGREEMENTS WITH THE OFFICE OF PERSONNEL MANAGEMENT FOR ADMINISTRATIVE LAW
JUDGE SERVICES (2013) [hereinafter 2013 SSA OIG REPORT], available at http://oig.ssa.gov/audits-andinvestigations/audit-reports/A-05-12-22144.
150
See id. at 10.
151
Informal Communications, Office of the Gen. Counsel, Office of Pers. Mgmt., supra note 4.
152
It bears noting that appointing ALJs would not require the Commission to hire additional support staff. Although
ALJs in some agencies are supported by administrative personnel or decision writers, see, e.g., HAROLD J. KRENT &
143

21

noncompetitive personnel actions for [ALJs], including but not limited to promotions, transfers,
reinstatements, restorations, and reassignments,”153 as well as any “personnel actions related to
pay.”154 The regulations make explicit the obligation of the employing agency to seek OPM
approval before taking any of these enumerated actions.155 By statute, agencies may only take
personnel action against an ALJ “for good cause established and determined by the Merit
Systems Protection Board on the record after opportunity for hearing before the Board.”156
Although there are a few limited exceptions,157 this requirement generally applies to removals,
suspensions, reductions in grade or pay, and furloughs of thirty days or less. 158 Actions against
ALJs are also subject to procedural and substantive requirements established in OPM’s
regulations.159
The statutory protections of ALJ independence would affect the Commission’s authority
to assign cases and other duties to ALJs. First, the Commission would be required to assign ALJs
“to cases in rotation so far as practicable.”160 Second, if the Commission were to require
additional ALJs on a temporary basis, such as to address an unexpected increase in hearing
requests, it could meet that need by appointing ALJs on detail from other agencies. The detailed
ALJs would be “selected by [OPM] from and with consent of other agencies.”161 Third, the
Commission would also generally have to seek and obtain OPM’s approval before it could detail
or assign an ALJ to a non-ALJ position within the agency.162 Fourth, the law provides that ALJs
“may not perform duties inconsistent with their duties and responsibilities as administrative law
judges.”163 This requirement would have a potentially significant effect on the Commission’s
ability to rely on ALJs to perform some of the work currently done by AJs.164 Finally, ALJs,

SCOTT MORRIS, ACHIEVING GREATER CONSISTENCY IN SOCIAL SECURITY ADJUDICATION: AN EMPIRICAL STUDY
AND SUGGESTED REFORMS 6-7 (2013), available at http://www.acus.gov/sites/default/files/documents/
Achieving_Greater_Consistency_Final_Report_4-3-2013_clean.pdf (discussing SSA’s use of “pooled” decision
writers in each hearing office), ALJs in other agencies are accorded no such support, Interview with Office
Manager, Division of Judges, Nat’l Labor Relations Bd. (Mar. 27, 2014). Agencies may provide support staff to
ALJs based on available resources and operational necessities (typically related to caseloads). But this is all
discretionary—there is no legal requirement that an agency provide its ALJs with support staff.
153
5 C.F.R. § 930.201(e)(4); see also id. at § 930.204 (e) (governing promotion); id. at § 930.204 (f) (“Prior to
OPM’s approval, the agency must provide a bona fide management reason for [a] reassignment.”); id. at §
930.204(g) (addressing qualifications for reinstatement); id. at § 930.204(h) (imposing limitations on ALJ transfers).
154
Id. § 930.201(e)(5); see also id. § 930.205(c), (f)(2), (g), & (j).
155
See id. § 930.201(f)(4).
156
5 U.S.C. § 7521. OPM does not need to approve “good cause” actions. Informal Communications, Office of the
Gen. Counsel, Office of Pers. Mgmt., supra note 4.
157
See 5 U.S.C. § 7521(b)(A)-(C).
158
See id. § 7521(b)(1)-(5).
159
See 5 C.F.R. § 930.211.
160
5 U.S.C. § 3105. Our understanding is that this is not a burdensome requirement and has rarely, if ever, been
enforced.
161
Id. § 3344; see also 5 C.F.R. § 930.201(e)(7) (providing that OPM has the authority to “[a]rrange the temporary
detail (loan) of an administrative law judge from one agency to another under the provisions of the administrative
law judge loan program”); id. at § 9301.208 (prescribing regulations governing the ALJ loan program).
162
See 5 C.F.R. § 930.201(e)(6).
163
5 U.S.C. § 3105.
164
Our understanding is that AJs often perform duties to help their home offices and OFP achieve goals in areas
outside of the federal sector hearing program, particularly by contributing to outreach and education initiatives. Such
additional duties do not appear to be inconsistent with the duties of an ALJ.

22

unlike AJs, are not subject to performance standards and cannot receive any monetary awards or
incentives.165
Finally, using ALJs in the federal sector hearing program may require modifications to
the organizational structure and placement of ALJs within the agency. These considerations,
which are related primarily to the separation of functions, are addressed in Part IV.A.
III.

ASSESSING THE COMMISSION’S AUTHORITY OVER THE STATUS OF ADJUDICATORS IN
THE FEDERAL SECTOR HEARING PROGRAM
A.

The Commission’s Authority over the Status of Adjudicators

As an initial matter, there is no statutory requirement that ALJs preside over hearings in
the federal sector program. As previously discussed, it is individual statutes, and not the APA
itself, that determine whether a hearing must be conducted under the APA.166 The statutes that
govern in the federal sector hearing program include Title VII of the Civil Rights Act of 1964,167
the Age Discrimination in Employment Act of 1967,168 the Rehabilitation Act of 1973,169 the
Equal Pay Act of 1963,170 and the Genetic Information Nondiscrimination Act of 2008.171 None
of these statutes contains any provision requiring that federal sector EEO hearings be conducted
on the record or otherwise in accordance with the APA’s requirements for formal adjudication.172
On the other hand, nothing in the relevant statutory provisions would explicitly prevent
the Commission from appointing ALJs to preside over hearings in the federal sector program. 173
As previously explained, agencies generally have wide discretion to formulate their own
procedures, subject only to the minimal requirements imposed by the APA.174 In informal
adjudicatory settings, such as in the federal sector program, the APA does not specify the
procedures that must be observed.175 Agencies administering statutes that require “hearings” or
“public hearings” but not “hearings on the record” have been accorded Chevron deference when

165

See 5 U.S.C. § 4301(2)(D); 5 C.F.R. § 930.206; see also Administrative Conference of the U.S.,
Recommendation 92-7, The Federal Administrative Judiciary 8-10 (1992) (discussing ALJ evaluation and
discipline).
166
See Part I.A.
167
42 U.S.C. § 2000e et seq.
168
See 29 U.S.C. § 621 et seq.
169
See id. § 791 et seq. The Americans with Disabilities Act of 1990, see 42 U.S.C. § 12101 et seq., does not apply
to the federal sector, see 42 U.S.C. § 12111(5)(B)(i), but the Rehabilitation Act provides similar protections for
federal employees.
170
See 29 U.S.C. § 206(d).
171
See 42 U.S.C. § 2000ff et seq.
172
See, e.g., 29 U.S.C. §§ 633a, 794a; 42 U.S.C. § 2000e-16, 2000ff-6(b), (e), & (f).
173
5 U.S.C. § 3105 provides that “[e]ach agency shall appoint as many administrative law judges as are necessary
for proceedings required to be conducted in accordance with” the APA’s formal adjudication provisions. If Title VII
required formal hearings in federal sector cases, this provision would clearly require EEOC to appoint as many ALJs
as were required to conduct those hearings. The relevant question here, however, is a different one: does EEOC have
the authority to appoint ALJs to preside over hearings if the agency voluntarily subjects them to the APA?
174
See Part I.A.
175
E.g., Occidental Petroleum Corp. v. Sec. & Exch. Comm’n, 873 F.2d 325, 337 (D.C. Cir. 1989) (explaining that
“no provision of the APA contains specific procedures to govern an informal agency adjudication”).

23

interpreting these terms to allow informal adjudication.”176 Similar deference would likely be
afforded to an agency that interpreted such provisions to require formal adjudication. Indeed,
agencies generally have broad discretion to fashion their procedural rules, including by
observing procedures more formal than the minimum required by the APA in a particular
context.177 An agency may revise its procedural rules whenever it “reasonably determines that
existing processes are unsatisfactory and takes steps that are fairly targeted at improving the
situation.”178 The only limitations in this regard are that “[a]n agency may not act precipitously
or in an irrational manner.”179 These principles suggest that, in the absence of some statutory
provision to the contrary, the Commission has the authority to formalize its hearing procedures
and appoint ALJs to preside over federal sector EEO hearings.180
In addition, Title VII appears to give the Commission the specific authority to appoint
ALJs, as well as broad discretion over the procedures it uses to prevent and remedy unlawful
discrimination against federal government employees. 42 U.S.C. § 2000e-4(a)(2) grants the
Chairman of the EEOC the authority to appoint ALJs when, in his or her judgment, doing so is
necessary to carry out the EEOC’s functions:
The Chairman shall be responsible on behalf of the Commission
for the administrative operations of the Commission, and . . . shall
appoint, in accordance with the provisions of title 5 governing
appointments in the competitive service, such . . . administrative
law judges . . . as he deems necessary to assist it in the
performance of its functions . . . : Provided, That assignment,
removal, and compensation of administrative law judges shall be in
accordance with sections 3105, 3344, 5372, and 7521 of title 5.181
Although this provision appears to be primarily concerned with the division of authority within
the EEOC between the Chair and the Commission, it nonetheless suggests that the agency has

176

See, e.g., Dominion Energy, 443 F.3d at 18 (concluding that Congress’s intent in using the phrase “public
hearing” in the Clean Water Act was ambiguous and that EPA’s interpretation was reasonable under Chevron step
two); Chemical Waste Mgmt., Inc. v. EPA, 873 F.2d 1477, 1480-83 (D.C. Cir. 1989) (same with respect to the
Resource Conservation and Recovery Act). In the latter case, the D.C. Circuit made plain that the agency could
change its interpretation from one that required a formal hearing to one that required an informal hearing. Id. at 1481
(noting that the agency “would remain free to change its interpretation in order to permit the use of informal
procedures to implement the 1984 Amendments, provided that its new interpretation is otherwise legally permissible
and is adequately explained”). Presumably, it would be even easier for an agency to justify reinterpreting a statute to
require formal instead informal hearings, since the change would provide additional procedural rights and
protections.
177
E.g., New Life Evangelistic Ctr., Inc. v. Sebelius, 753 F. Supp. 2d 103, 121 (D.D.C. 2010) (“Agencies are, of
course, free to adopt additional procedures as they see fit.”); cf. Vermont Yankee, 435 U.S. at 543 (noting “the very
basic tenet of administrative law that agencies should be free to fashion their own rules of procedure”).
178
Citizens Awareness Network, 391 F.3d at 352.
179
Id.
180
But see Paul R. Verkuil et al., The Federal Administrative Judiciary, 1992 A.C.U.S. 771, 1046 n.1310 (1992)
(explaining that OPM has historically taken the position that ALJs should be appointed only to formal proceedings
required to be conducted under the APA). OPM’s position on this issue is discussed in Part III.B.1.
181
42 U.S.C. § 2000e-4(a)(2).

24

statutory authority to appoint ALJs.182 In addition, the statutes governing the federal sector
hearing program grant the Commission broad remedial discretion, as well as the authority to
“issue such rules, regulations, orders and instructions as it deems necessary and appropriate to
carry out its responsibilities.”183 This language gives specific expression to the more general
principle that an agency has broad authority to design procedures that are, in its sound judgment,
best suited to accomplishing its statutory mission.
A careful analysis of the legislative evolution of 42 U.S.C. § 2000e-4(a)(2) suggests,
however, that its authorization to appoint ALJs was unrelated to the federal sector hearing
program or, for that matter, any other then-existing EEOC adjudicatory program. The key is the
Equal Employment Opportunity Act of 1972, which contained several relevant provisions
amending the Civil Rights Act of 1964. It was the 1972 amendments that granted the
Commission the authority now found in 42 U.S.C. § 2000e-4(a)(2) to appoint ALJs.184 The
legislation also created the provision now codified at 42 U.S.C. § 2000e-16, addressing
nondiscrimination in federal government employment.185 There are two primary reasons to
question whether the 1972 amendments granted the EEOC authority to appoint ALJs for the
purpose of conducting federal sector EEO hearings. First, the provision addressing
nondiscrimination in federal government employment did not refer to hearings or contain any
indication that Congress contemplated the use of formal adjudication as a means of
enforcement.186 Second, the legislation vested responsibility for enforcing this provision, which
is now codified at 42 U.S.C. § 2000e-16, in the Civil Service Commission, not EEOC.187
It is not clear why Congress added the ALJ appointment language to the statute in 1972.
Neither the final text of the law nor its legislative history reveals the reason. The provision may
well have been a vestige of earlier versions of the legislation that would have conferred on the
EEOC the authority to adjudicate claims of discrimination against private employers and, upon
finding a violation, to issue cease-and-desist orders (subject to judicial review).188 Those earlier
versions provided, not surprisingly, for formal, APA adjudications of such claims,189 and so
182

The statute’s apparent focus on the division of authority between the Chair and the Commission makes sense if
ALJ appointment authority is understood as an inherent authority derivative of agency authority to establish
procedures appropriate for the particular circumstances of a given program. See generally Parts I.A. and III.A.
183
See 42 U.S.C. § 2000e-16(b).
184
See Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 7, 86 Stat. 103, 110 (1972). At the time,
ALJs were still referred to as “hearing examiners,” so this is the term used in the legislation. See id.
185
See id. § 11, 86 Stat. at 111-12.
186
See id.
187
See id.. CSC’s 1977 regulations reveal that the agency did not use ALJs to adjudicate federal sector EEO claims.
See 5 C.F.R. pt. 772 (1977). The authority to enforce nondiscrimination in federal sector employment was
subsequently transferred to the EEOC during the 1978 reorganization.
188
Whether the EEOC should be given that authority (as opposed to the authority to litigate in federal court) became
the central issue in the debates during the ninety-first and ninety-second Congresses leading up to the enactment of
the 1972 Act. See, e.g., SEAN FAHRANG, THE LITIGATION STATE 131-35 (2010); George P. Sape & Thomas J. Hart,
Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 GEO. WASH. L. REV. 824, 830-45
(1972); see also, e.g., H. REP. 92-238, at 58 (1971), reprinted in S. COMM. ON LABOR AND PUBLIC WELFARE,
LEGISLATIVE HISTORY OF THE EQUAL EMPLOYMENT OPPORTUNITY ACT OF 1972 118 (Comm. Print 1972)
[hereinafter after LEGISLATIVE HISTORY] (identifying the EEOC’s adjudicatory authority as “the major issue”).
189
See, e.g., Equal Employment Opportunities Enforcement Act, S. 2453, 91st Cong. § 2 (1969) (authorizing EEOC
to conduct formal, APA adjudications); id. § 8 (authorizing appointment of hearing examiners). S. 2453 was the
“immediate forerunner to the 1972 amendments.” Sape & Hart, supra note 188, at 832. It passed the Senate but not
the House. Congress took up the legislation again in the next Congress. Like S. 2453, the original (committee-

25

conferred upon the Chair of the Commission the authority to appoint ALJs by inserting the
above-quoted language that now appears in Title VII.190 (Title VII originally authorized only the
appointment of “officers, agents, attorneys, and employees.”191) Late in the process, the
legislation was amended to withhold adjudicatory authority from the EEOC, but no
corresponding change was made to the provision conferring ALJ appointment authority on the
EEOC. The retention of that provision was very likely inadvertent. The voluminous legislative
history does not appear to suggest any other explanation.
The only provision of the 1972 amendments that requires the use of ALJs addresses the
procedure for denial, termination, or suspension of government contracts for an employercontractor’s failure to comply with the executive order (11246) requiring affirmative action.192
The provision added section 718 to Title VII and is now codified at 42 U.S.C. § 2000e-17.
Requiring the use of formal adjudicatory hearings, section 2000e-17 provides, in relevant part:
No Government contract or portion thereof, with any employer,
shall be denied, withheld, terminated, or suspended, by any agency
or officer of the United States under any equal employment
opportunity law or order, where such employer has an affirmative
action plan which has previously been accepted by the
Government for the same facility within the past twelve months
without first according such employer full hearing and
adjudication under the provisions of title 5, United States Code,
section 554, and the following pertinent sections.193
But these procedural requirements apply, as the statutory language makes clear, to adverse
actions against a contractor undertaken by “any agency” of the federal government, not to the
EEOC.194 They were directed, in particular, to the only federal agency then responsible for
approving the affirmative action plans of private federal contractors and otherwise administering
Executive Order 11246: the Department of Labor’s Office of Federal Contract Compliance
Programs (OFCCP). (A proviso to the above-quoted section of the 1972 Act specifically
mentions the OFCCP as the responsible agency.) The legislative history of the Senate
amendment by which the above-quoted language was added confirms this reading.195

reported) House version of the legislation that would become the 1972 Act (H.R. 1746) conferred adjudicatory
authority on the EEOC, see H. REP. 92-238, at 27, reprinted in LEGISLATIVE HISTORY, supra note 188, at 87,
authorized the appointment of hearing examiners, see id. at 30, reprinted in LEGISLATIVE HISTORY, supra note 188,
at 90, and made explicit that the adjudications would be “on the record,” id. at 28, reprinted in LEGISLATIVE
HISTORY, supra note 188, at 88. (The committee report expressly noted that the hearings would be governed by the
formal adjudication provisions of the APA. See id. at 10, reprinted in LEGISLATIVE HISTORY, supra note 188, at 70.)
The original (committee-reported) Senate bill was in accord on all these matters. See S. Rep. 92-415 (1971),
reprinted in LEGISLATIVE HISTORY, supra note 188, at 410-97.
190
See S. 2453 § 8.
191
Civil Rights Act of 1964, Pub. L. No. 88-352, § 705(a), 78 Stat. 241, 258 (1964).
192
See Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 13, 86 Stat. 103, 113 (1972).
193
Id. (emphasis added).
194
No other provision of the 1972 Act required EEOC to conduct formal hearings.
195
See LEGISLATIVE HISTORY, supra note 188, at 949-50 (floor statement of sponsor that it “would merely give
some semblance of fair play in cases where employers had filed and had approved by the Office of Federal Contract
Compliance an affirmative action plan, and provide that after it had approved it the Office of Federal Contract

26

That said, the absence of any adjudication-related provisions to which the 1972
amendment to 42 U.S.C. § 2000e-4(a)(2) might relate does not necessarily deprive that provision
of legal effect. The canon of interpretation that a statute should not be read to render one of its
provisions surplusage—among other textual canons—may dictate that the statute be read to
confer ALJ-appointment authority, even if at the time of enactment there were no adjudicatory
programs in which it could be exercised. We only caution that the matter is not free from doubt.
Regardless of the purposes for which the Commission might appoint ALJs, however, any
such appointments would be subject to OPM’s statutory authority over the federal ALJ corps.
This is evident on the face of Title VII, which expressly conditions the Chairman’s authority to
appoint ALJs on compliance with other federal statutes, including those that vest in OPM
authority over the examination, certification for selection, and compensation of ALJs. 196 This is
best read to mean simply that any ALJs appointed by the Commission must conform to the
requirements governing OPM’s overall ALJ program. The next section evaluates the ways in
which OPM’s role would affect the Commission’s authority to appoint and manage ALJs.
B.

How OPM’s Role Affects the Commission’s Authority

To preserve the independence of ALJs from their employing agency, Congress has given
OPM a significant role in the examination, certification for appointment, and compensation of all
ALJs used throughout the federal system.197 OPM’s role affects the Commission’s authority by:
(1) effectively requiring the Commission to get OPM’s authorization to use ALJs instead of AJs
in the federal sector hearing program; (2) limiting the Commission’s ability to establish ALJ
qualifications and independently select ALJs for appointment; and (3) preventing the
Commission from performing a direct conversion of existing AJs to ALJs. This section provides
an overview of OPM’s role and then analyzes each of the three ways in which that role affects
the Commission’s authority.
1. Effect on Commission’s Authority to Change Adjudicators’ Status
First, OPM interprets the relevant statutes as granting it authority to approve or deny an
agency’s request to create new ALJ positions based on OPM’s independent determination of
whether the appointment of ALJs is appropriate in the circumstances of a particular agency
adjudicatory program. As OPM has explained it, the agency’s evaluation and approval of new
Complaint Programs could not reject that plan without giving the employer an opportunity to be heard under the
Administrative Procedure Act”); id. at 951 (sponsor’s statement during floor colloquy) (“Well, here is the difficulty:
The Office of Contract Compliance Programs has been approving plans, time after time they approve a plan and
then, they refuse to give a man a contract based on the plan that has been approved.”); accord id. at 955 (statement
of amendment’s sponsor during floor colloquy). See also Clarence Mitchell, An Advocate’s View of the 1972
Amendments to Title VII, 5 COLUM. HUM. RTS. LAW REVIEW, 311, 330 (1973). The provision that become 42 U.S.C.
§ 2000e-17 never appeared in the House legislation. The Senate negotiated for its inclusion at conference
committee. See H. REP. NO. 92-899, at 21, reprinted in LEGISLATIVE HISTORY, supra note 188, at 1841.
196
See 42 U.S.C. § 2000e-4(a)(2).
197
See 5 U.S.C. §§ 1104(a), 1302(a), 1305, 3105, 3304, 3323(b), 3344, 4301(2)(D), 5372, and 7521; see generally
VANESSA K. BURROWS, CONG. RESEARCH SERV., RL 34607, ADMINISTRATIVE LAW JUDGES: AN OVERVIEW (2010);
Jeffrey S. Lubbers, Federal Administrative Law Judges: A Focus on Our Invisible Judiciary, 33 ADMIN. L. REV.
109, 111 (1981) [hereinafter Lubbers, Invisible Judiciary]. This part of the study focuses exclusively on how OPM’s
authority affects the Commission’s authority to appoint ALJs or convert existing AJs to ALJs. Parts II and III will
analyze the procedural, budgetary, and organizational consequences of OPM’s role.

27

ALJ position descriptions for conformity with its regulations governing positions requirements is
expressly authorized by three statutory provisions.198 The first such provision is 5 U.S.C. § 1303,
which provides that OPM “may investigate and report on matters concerning . . . the enforcement
and effect of the rules prescribed by the President under this title for the administration of the
competitive service.”199 The second 5 U.S.C. § 1305, which provides that “[f]or the purpose of
sections . . . of this title that relate to administrative law judges, the Office of Personnel
Management may. . . investigate [and] prescribe regulations.”200 The third and final provision is
5 U.S.C. § 1304, which vests in OPM the functions of “executing, administering, and enforcing .
. . the civil service rules and regulations of the President and the Office and the laws governing
the civil service.”201 OPM further notes that the civil service rules state that OPM “shall
promulgate and enforce regulations necessary to carry out the provisions of the Civil Service Act
and the Veterans’ Preference Act, . . . the Civil Service Rules, and all other statutes and
Executive orders imposing responsibilities on the Office.”202 The rules also task OPM with the
responsibility of “[e]valuating the effectiveness of . . . agency compliance with and enforcement
of applicable laws, rules, regulations and office directives.”203
Our research also suggests another, more practical explanation for why OPM and its
predecessor, the CSC, have asserted authority to approve or deny agency requests to appoint
ALJs. At one time, a statutory ceiling on the number of “supergrade” positions available in the
federal government effectively capped the number of ALJ positions that could be created
government-wide.204 This may have justified OPM’s reserving ALJ positions for those
proceedings required by statute to be conducted under the APA’s formal adjudication
provisions.205 The strict statutory ceiling that created this necessity, however, has since been
eliminated.206 Thus, “it is no longer necessary for OPM to participate in th[e] process” of
reviewing and approving agency requests for additional ALJ positions.207
In our view, OPM’s continued assertion of authority to grant or deny agency requests to
create new ALJ positions is misplaced. It does not appear to be compelled by statute.208 It is also
in tension with provisions that appear to vest ALJ appointment authority in employing agencies
and not OPM.209 Moreover, it seems inconsistent with fundamental principles of administrative

198

Informal Communications, Office of the Gen. Counsel, Office of Pers. Mgmt., supra note 4.
5 U.S.C. § 1303(1)
200
Id. § 1305.
201
Id. § 1103(a)(5)(A); see also 5 C.F.R. § 5.1 (authorizing OPM to enforce the civil service rules).
202
See 5 C.F.R. § 5.1.
203
See id. § 5.2(b).
204
See Lubbers, Invisible Judiciary, supra note 197, at 112-13 n.18.
205
As Recommendation 92-7 explained it: “Historically, OPM has had responsibility to review and rule on agency
requests for additional ALJ positions. In the past, when there were government-wide limits on “supergrade
positions, which included ALJs, this oversight role served a purpose.” Administrative Conference of the U.S.,
Recommendation 92-7, The Federal Administrative Judiciary 4 (1992).
206
See 5 U.S.C. § 5108.
207
Administrative Conference of the U.S., Recommendation 92-7, The Federal Administrative Judiciary 4 (1992).
208
See 5 U.S.C. §§ 3105, 5372. No statute prohibits the use of ALJs in informal proceedings, grants OPM the
authority to determine when formal proceedings are “required” or ALJ appointments are “necessary,” or suggests
that formal proceedings are “required” only when required by statute.
209
See, e.g., id. § 3105 (mandating that “[e]ach agency shall appoint as many administrative law judges as are
necessary for proceedings required to be conducted in accordance with sections 556 and 557” of the APA (emphasis
199

28

law recognizing that agencies have broad authority to design adjudicative procedures and
provide affected citizens with procedural protections beyond those required by the APA or other
statutes.210 In short, “[a]gencies should be free, within their normal resource allocation
constraints, to determine for themselves whether they need more or fewer ALJs.”211
As a practical matter, however, disagreements between an employing agency and OPM
are difficult to resolve because there is no clear avenue for compulsory dispute resolution by a
third party (e.g., judicial review). Such disagreements have historically been resolved through
legislation or a combination of legislation and court order.212 Another option might be for an
agency denied an allocation of ALJs by OPM to seek an opinion from the Department of
Justice’s Office of Legal Counsel.213
To change the status of its federal sector adjudicators, then, the Commission may first
have to obtain OPM’s agreement that it would be appropriate for ALJs to preside over federal
sector EEO hearings.214 OPM might deny the Commission’s request to appoint ALJs for this
purpose unless EEOC first adopted a regulation requiring that federal sector EEO hearings be
conducted under the APA and reformed the program’s procedures as necessary to comply with
APA requirements.215 As previously noted, the APA clearly requires that ALJs preside in formal
adjudications,216 and Congress has not statutorily required that federal sector EEO hearings be
conducted “on the record” or in accordance with the APA. Although there appears to be no
formal legal barrier to an agency’s appointing ALJs to preside over informal hearings, 217 OPM’s
position is that it will approve an agency’s request to appoint ALJs only if the positions include

added)); 5 C.F.R. § 930.201(f)(1) (specifying that employing agencies have “the authority to appoint as many
administrative law judges as necessary for proceedings conducted under 5 U.S.C. 556 and 557”).
210
See supra at notes 174-180 and accompanying text.
211
Administrative Conference of the U.S., Recommendation 92-7, The Federal Administrative Judiciary 4 (1992).
212
See Part I.D.
213
Exec. Order No. 12,146, 44 Fed. Reg. 42,657 (1979) provides that “[w]henever two or more Executive agencies
are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a
particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to the
Attorney General.” The Attorney General has delegated this authority to the head of OLC. See 28 C.F.R. § 0.25; see
also DEP’T OF JUSTICE, OFFICE OF LEGAL COUNSEL, ABOUT THE OFFICE, http://www.justice.gov/olc (“By delegation
from the Attorney General, the Assistant Attorney General in charge of the Office of Legal Counsel provides
authoritative legal advice to the President and all the Executive Branch agencies. The Office . . . provides . . . written
opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the
Executive Branch, and offices within the Department. Such requests typically deal with legal issues of particular
complexity and importance or about which two or more agencies are in disagreement.” (emphasis added)).
214
Legally, OPM’s authority over the selection, certification, and tenure of ALJs is distinct from an employing
agency’s authority to interpret its own statutes and design its own procedures. As a practical matter, however, OPM
occupies a position as gatekeeper and an impasse between an employing agency and OPM may be difficult to
resolve without legislative action.
215
See Part II.A.
216
But see supra note 23.
217
See Levinson, supra note 17, at 541-42. As a practical matter, however, agencies usually elect to use non-ALJ
adjudicators for informal hearings. See id. It bears noting that SSA’s “expanded use of ALJs [accomplished by
legislation in the 1970s] emerged without APA compulsion” and “raised the prospect that ALJs could be used in
other non-formal hearing settings.” Verkuil, Reflections, supra note 26, at 1349. “The use of ALJs to preside over
non APA informal rulemaking,” however, “has long been advocated but not readily embraced.” Id. at 1349 n.34.

29

duties presiding over adjudications required to be conducted under the APA.218 Current OPM
regulations reflect this position.219 OPM has explained, however, that an agency regulation
requiring hearings to be conducted under the APA may be sufficient, provided the agency’s
hearing procedures in fact comply with APA requirements.220 OPM further takes the view that its
examination and qualification requirements are necessary to ensure ALJs have the degree of
judicial competence required to preside over adjudicative proceedings conducted under the
APA.221 As members of the government-wide federal ALJ corps, all ALJs are expected to be
competent to preside over APA hearings in any adjudicatory program in the federal
government.222
2. Effect on New ALJ Appointments
Second, OPM has exclusive authority over the initial examination of ALJs, as well as the
certification of individuals eligible for selection by employing agencies. 223 OPM recruits ALJ
candidates,224 establishes qualification requirements for ALJ positions,225 and periodically
administers an ALJ examination of its own design.226 ALJ candidates who pass the examination
and have the necessary qualifications are certified for selection as ALJs and placed in a register
of eligible candidates.227 To appoint a new ALJ from the register,228 agencies may select a
candidate from the top three available candidates, considering candidate geographical
preferences, position location, and veterans’ preference rules.229 Each employing agency must
pay OPM an annual pro rata share, based on the actual number of ALJs it employs, of OPM’s

218

E.g., Verkuil et al., supra note 180, at 1046 n.1310 (“Interestingly, while there is no barrier to their use in
nonformal hearing contexts, OPM has taken the position that it will only assign ALJs to agencies where there is
APA work to be done.”).
219
See 5 C.F.R. § 930.201(a) (“This subpart applies to individuals appointed under 5 U.S.C. 3105 for proceedings
required to be conducted in accordance with 5 U.S.C. 556 and 557 and to administrative law judge positions”
(emphasis added)); id. § 930.202 (defining “[a]dministrative law judge position” as “a position in which any portion
of the duties requires the appointment of an administrative law judge under 5 U.S.C. § 3105 (emphasis added)).
220
Informal Communications, Office of the Gen. Counsel, Office of Pers. Mgmt., supra note 4.
221
Id.
222
This ensures that any ALJ has the qualifications necessary to be detailed or transferred to another agency as
necessary to meet shifting needs for ALJs. See 5 C.F.R. §§ 930.207, 930.208.
223
See 5 U.S.C. §§ 1104(a), 1302, 3301, 3304; see also, e.g., Lubbers, Invisible Judiciary, supra note 197, at 111.
OPM’s statutory authority over ALJ examinations is expressly non-delegable. See 5 U.S.C. § 1104(a)(2).
224
See 5 C.F.R. § 930.201(e)(1).
225
See 5 U.S.C. § 5372(b)(2); 5 C.F.R. § 930.201(e)(3); see also OFFICE OF PERS. MGMT., QUALIFICATION
STANDARD FOR ADMINISTRATIVE LAW JUDGE POSITIONS, http://www.opm.gov/policy-data-oversight/classificationqualifications/general-schedule-qualification-standards/specialty-areas/administrative-law-judge-positions/
[hereinafter ALJ QUALIFICATION STANDARD].
226
See 5 C.F.R. § 930.201(d), (e)(1).
227
See 5 U.S.C. § 3313; 5 C.F.R. § 332.401.
228
Agencies sometimes hire ALJs “laterally” from other agencies, thus circumventing the need to hire from the
OPM register, although OPM’s regulations appear to require OPM approval for such appointments. See 5 C.F.R. §
930.204(a); see also id. § 930.204(h). The large number of Social Security ALJs around the country provides a
fertile source of lateral transfers. See ABA GUIDE TO FEDERAL AGENCY ADJUDICATION, supra note 12, at 203 n.20.
229
See 5 U.S.C. §§ 3317, 3318; 5 C.F.R. §§ 332.402, 332.404; Burrows, supra note 197, at 2-3. An agency may
appoint an ALJ not in the available register selection only with OPM’s prior approval. See 5 C.F.R. § 930.204(a).

30

total cost of developing and administering the ALJ examination and operating the ALJ
program.230
OPM’s role in relation to the federal ALJ corps would thus limit the Commission’s
authority to establish qualifications for its ALJs and independently select particular ALJs for
appointment. OPM requires that ALJs be licensed attorneys at the time of application and
appointment.231 Applicants must also have seven years of qualifying litigation or administrative
experience as a licensed attorney.232 Finally, applicants must pass the ALJ examination.233 When
appointing ALJs, the Commission would generally be restricted to selecting from the top three
candidates in the ALJ certificate234 and would not be able to select other individuals without
OPM’s prior approval.235 One consequence of this process is that the Commission would be
unable to require as a condition of employment that its ALJs possess specialized experience with
civil rights and antidiscrimination law.
3. Effect on Conversion of Existing AJs to ALJs
Finally, OPM exercises significant control over the conversion of existing adjudicators to
newly-created ALJ positions. Such conversions may be accomplished with OPM’s prior
approval, provided that the affected adjudicators pass the ALJ examination and meet OPM’s ALJ
qualification requirements.236 OPM regulations acknowledge that ALJ conversions may
sometimes proceed “on the basis of legislation, Executive order, or a decision of a court.” 237
Even in such circumstances, however, OPM regulations condition the conversion on the affected
adjudicators’ passing the ALJ examination and meeting ALJ qualification requirements.238
OPM regulations would thus prevent the Commission from simply converting its existing
AJs to ALJs. As previously explained, OPM regulations provide that non-ALJ personnel may be
converted to positions newly classified as ALJ positions either with OPM’s approval239 or as
required by statute, executive order, or judicial decision.240 OPM would not exercise its
discretion to approve the appointment of existing AJs to newly-created ALJ positions if those
AJs did not meet OPM’s qualification requirements.241 Similarly, OPM regulations provide that
230

See 5 U.S.C. § 1104(a)(2), 1304(e); 5 C.F.R. § 930.203; see generally 2013 SSA OIG REPORT, supra note 149. In
FY 2011, the Social Security Administration was assessed $1,526.00 per ALJ. See id. at 4. In FY 2012, the fee was
$1,633.00 per ALJ. See id. at 6 tbl. 1.
231
See 5 C.F.R. § 930.204(b). In 2008, OPM issued an interim rule suspending the requirement that ALJs maintain
licensure once appointed as ALJs, see Programs for Specific Positions and Examinations (Miscellaneous), 73 Fed.
Reg. 41,235 (July 18, 2008), and it has recently finalized that rule, see 78 Fed. Reg. 71,987 (Dec. 2, 2013). This rule
does not affect the requirement that ALJ candidates be licensed attorneys at the time of application and appointment.
232
See ALJ QUALIFICATION STANDARD, supra note 225.
233
See id.
234
See 5 U.S.C. §§ 3317, 3318(a). The EEOC could reach other applicants on the basis of a sustained objection or
pass over request. See id. § 3318; 5 C.F.R. § 332.406. In addition, the three-consideration rule, see 5 C.F.R. §
332.405, could be used to discontinue consideration of candidates on the register who have received three bona fide
considerations. See generally Lackhouse v. Merit Sys. Prot. Bd., 773 F.2d 313 (1984).
235
See 5 C.F.R. § 930.204(a).
236
See id. § 930.204.
237
Id. § 930.204(c).
238
See id.
239
See id. § 930.204(a).
240
See id. § 930.204(c).
241
Informal Communications, Office of the Gen. Counsel, Office of Pers. Mgmt., supra note 4.

31

ALJ conversions based on legislation, executive order, or judicial decision can be accomplished
only if certain conditions are met and the affected incumbents meet OPM’s qualifications and
have passed the ALJ examination.242 Of course, Congress has the authority to override these
requirements with respect to specific incumbents, but precise legislative language would be
required for the Commission to convert existing AJs to ALJ positions without meeting OPM’s
conditions.243
DETERMINING WHERE TO SITUATE ADJUDICATORS WITHIN THE COMMISSION’S
ORGANIZATIONAL STRUCTURE

IV.

A.

Organizational Changes Potentially Required by a Shift to ALJs

If the Commission decided to use ALJs instead of AJs in the federal sector hearing
program, it would retain substantial discretion over the placement of those ALJs within the
agency’s broader organizational structure.244 No provision of the APA directly addresses this
issue or requires agencies to employ a particular organizational structure for formal adjudicative
programs.245 On the other hand, the provisions of the law aimed at preserving the separation of
functions and protecting ALJs’ decisional independence may have indirect implications for the
organizational placement of ALJs.246 Of particular relevance are the provisions, previously
discussed, that insulate ALJs from their employing agencies by providing them with certain
protections against agency personnel actions and performance reviews. 247 In addition, the APA
requires separation between adjudicators and investigating or prosecuting employees in
individual or factually-related cases.248
Although the law has little to say about the organizational placement of formal
administrative adjudication programs, most agencies that employ ALJs place those ALJs within
a dedicated office that reports directly or near-directly to the top level of agency. For example:


The Social Security Administration has an Office of the Chief Administrative Law Judge,
which reports to the Deputy Commissioner of Disability Adjudication and Review.249

242

See 5 C.F.R. § 930.204(c).
Informal Communications, Office of the Gen. Counsel, Office of Pers. Mgmt., supra note 4.
244
See Russell L. Weaver, Management of ALJ Offices in Executive Departments and Agencies, 47 ADMIN. L. REV.
303, 315 (1995) (explaining that “[t]he APA offers little guidance” on issues related to administration of ALJ
offices).
245
See 5 U.S.C. §§ 554, 556, 557.
246
See Weaver, supra note 244, at 315; see also Benjamin W. Mintz, Administrative Separation of Functions:
OSHA and the NLRB, 47 CATH. U. L. REV. 877, 881 (1998) (explaining how “[t]he APA implements the separation
of functions in two basic ways” with respect to ALJs); cf. CHARLES KOCH, JR., ADMINISTRATIVE LAW AND
PRACTICE, VOL. 2, at 61 (3d ed. 2010) (“Generally administrative law judges are part of the agency bureaucracy but
with some special status and protection.”).
247
See Part II.B.
248
See 5 U.S.C. § 554(d).
249
SOC. SEC’Y ADMIN., ORGANIZATIONAL CHART, http://www.ssa.gov/org/ssachart.pdf. The administrative structure
also includes Regional Chief ALJs who oversee ALJs in each of the agency’s ten regions, as well as Hearing Office
Chief ALJs who oversee ALJs in particular hearing offices. See id.
243

32



The Department of Justice’s Executive Office of Immigration Review (EOIR) has an
Office of the Chief Administrative Hearing Officer (OCAHO), which oversees EOIR’s
ALJs and reports to the Deputy Director of EOIR.250



The Department of Transportation has an Office of Hearings, which is headed by a Chief
ALJ and reports to the Assistant Secretary for Administration.251



The Department of the Interior has an Office of Hearings and Appeals, which is headed
by a Director who reports to the Assistant Secretary of Policy, Management, and Budget
through the Deputy Assistant Secretary of Technology, Information, and Business
Services.252



The Department of Labor has an Office of Administrative Law Judges, which is headed
by a Chief ALJ and reports to the Secretary of Labor.253

These agencies’ organizational charts are provided in Appendix N. As these brief descriptions
above suggest, some ALJ offices are administered by Chief ALJs, while others are administered
by non-ALJ officials.254 Indeed, some agencies take a hybrid approach, using both non-ALJ and
ALJ administrators to run the ALJ office.255 The APA permits all of these approaches.256
A variety of considerations may make a particular organizational structure more desirable
for an individual agency. 257 Creating a dedicated office for ALJs, for example, may help
maintain the separation of functions, improve the public’s perception of the impartiality of an
agency’s ALJs, facilitate better communication with agency leadership, and provide a foundation
for improved consistency in adjudication programs that operate nationwide. The choice between
ALJ and non-ALJ administrators is ultimately a matter of which system the agency concludes is

250

See DEP’T OF JUSTICE, EXEC. OFFICE FOR IMMIGRATION REVIEW, ORGANIZATION CHART,
http://www.justice.gov/eoir/sibpages/Organization.html. OCAHO ALJs preside over hearings arising under the
Immigration and Nationality Act related to employer sanctions, unfair employment practices, and document fraud.
See DEPT. OF JUSTICE, FACT SHEET (Oct. 1, 2013), http://www.justice.gov/eoir/press/2012/
OCAHOFactSheet05292012.pdf. Other types of proceedings relating to immigration status, such as cases involving
removal (deportation) actions and asylum petitions, are heard by non-ALJ adjudicators. See Part IV.B.1.
251
See
DEP’T
OF
TRANSP.,
OFFICE
OF
HEARINGS,
http://www.dot.gov/mission/administrations/administration/hearings.
252
See DEP’T OF INTERIOR, ABOUT THE OFFICE OF HEARINGS AND APPEALS, http://www.doi.gov/oha/index.cfm.
253
See DEP’T OF LABOR, OFFICE OF ADMIN. LAW JUDGES, http://www.oalj.dol.gov/; Dep’t of Labor, Organizational
Chart, http://www.dol.gov/dol/aboutdol/orgchart.htm. Beyond this office, the administrative structure extends to
nationwide district offices, each of which is staffed with its own District Chief ALJ. See DEP’T OF LABOR, OFFICE OF
ADMIN. LAW JUDGES, ORGANIZATIONAL CHART, http://www.oalj.dol.gov/ORGANIZATIONAL_CHARTA.HTM.
254
See generally Weaver, supra note 244.
255
See id. at 306.
256
E.g., id. at 315 (“The APA does not require that ALJs administer ALJ offices. On the contrary, under the Act,
Congress allowed ALJs to be assigned to specific agencies and to report to non-ALJs within those agencies.”).
257
The Association of Administrative Law Judges provides helpful information about federal agencies that employ
ALJs. See ASS’N OF ADMIN. LAW JUDGES, AGENCIES EMPLOYING ADMINISTRATIVE LAW JUDGES,
http://www.aalj.org/agencies-employing-administrative-law-judges.

33

most desirable for its own purposes. Both systems have advantages and disadvantages. An
agency choosing between them might consider a variety of factors, including:


The preferences of the agency’s ALJs and whether or to what extent they would be
comfortable with non-ALJ administrators;258



The effect on the public perception of agency adjudications 259 and the needs of
complainants;260



The consequences for the decisional independence of the ALJs;261



How best to meet the agency’s needs with respect to case assignment,262 decisional
leadership,263 productivity,264 and efficiency.265

If the Commission were to use ALJs in the federal sector hearing program, it may find
that certain organizational changes are necessary or desirable, or both. Some modifications to the
existing organizational structure may be required to respect the decisional independence of ALJs
or ensure a proper separation of functions.266 For example, it would perhaps be necessary or, at a
minimum, prudent, to remove ALJs from the direct supervision of District Directors. In addition,
the Commission may wish to follow the example of other agencies by creating an office in its
D.C. headquarters that is exclusively dedicated to the administration of the federal sector hearing
program and the management of the agency’s ALJs. If the Commission were to pursue such
reorganization, it should consider the views of relevant agency personnel, including both
adjudicators and non-adjudicators, using that feedback to design a system of administration and
management best suited to the purposes of the federal sector hearing program and that program’s
contribution to the Commission’s larger mission.
B.

Assessing the Organizational Placement of AJs

Even if the Commission does not reform the federal sector hearing program to
accommodate the use of ALJs, it may consider making certain modifications to the current
organizational placement of its AJs. As previously explained, a comprehensive normative
evaluation of whether such reform is necessary or desirable is beyond the scope of this project.267
To provide the Commission with some sense of the options available to it, however, this section:
(1) identifies legal considerations that may affect the Commission’s options for reforming the
organizational placement of its AJs; and (2) provides a few illustrative examples of how other
258

See Weaver, supra note 244, at 315-17.
See id. at 317-18.
260
See id. at 324-25.
261
See id. at 318-21.
262
See id. at 321-23.
263
See id. at 323-24, 325-28.
264
See id. at 324, 330-31.
265
See id. at 328-30.
266
Cf. KOCH, supra note 246, at 64 (“The key is to develop a structure for . . . management that does not
compromise independence.”).
267
See supra note 2.
259

34

agencies have structured informal adjudication programs. We briefly explore the organizational
structure and placement of the Department of Justice’s EOIR, the Merit Systems Protection
Board (MSPB), the United States Department of Agriculture’s (USDA) National Appeals
Division (NAD), and the Railroad Retirement Board (RRB).268 Where possible, we go beyond
merely identifying the organizational placement of these agencies’ non-ALJ adjudicators, in
order to give some sense of the procedural and managerial aspects of the organizational
structures.
1. Legal Considerations Affecting the Organizational Placement of AJs
Although the vast majority of agency adjudications are conducted informally,269 the law
has very little to say about the procedures and organizational structures that agencies may
employ in informal adjudicatory programs. The few potential legal constraints on agency
discretion in this area directly relate to procedural issues, as opposed to questions of
organizational placement.270 They are grounded in three possible sources. First, the due process
clause of the U.S. Constitution may require an agency to observe certain minimum procedural
requirements when constitutionally protected interests are at stake.271 Second, although the APA
generally does not concern itself with informal adjudications,272 5 U.S.C. § 555, which addresses
“ancillary matters,” such as the right to counsel for persons compelled to appear before an
agency, may have some relevance in this context.273 Third, individual statutes may require
agencies to follow specified procedures in certain informal adjudications.274 Although an agency
may find that a particular organizational structure works better or is perceived to provide a fairer
or more neutral forum for adjudication, such judgments are rarely compelled by administrative
law or legal ethics.
The few legal requirements that may constrain agency discretion in informal adjudication
appear to have little or no application to the federal sector hearing program. Federal sector EEO
hearings do not result in the deprivation of constitutionally protected interests. Section 555 of the
APA truly involves “ancillary matters” and is unlikely to have any meaningful effect on the
268

These agencies’ organizational charts are provided in Appendix N.
See supra at Part. I.A.; see also ATTORNEY GENERAL’S COMM. ON ADMINISTRATIVE PROCEDURE, FINAL REPORT
35 (1941) (“[E]ven where formal proceedings are fully available, informal procedures constitute the vast bulk of
administrative adjudication and are truly the lifeblood of the administrative process.”).
270
Procedural requirements may, of course, have organizational consequences. See supra at Part IV.A.
271
See U.S. CONST. amend. V; see, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976) (involving Social Security
disability benefits); Goldberg v. Kelly, 397 U.S. 254 (1970) (involving Aid to Families with Dependent Children
benefits); see generally ABA GUIDE TO FEDERAL AGENCY ADJUDICATION, supra note 12, at 11-40 (examining
hearings required by procedural due process).
272
See Paul R. Verkuil, A Study of Informal Adjudication Procedures, 43 U. CHI. L. REV. 739, 744 (1976)
[hereinafter Verkuil, Informal Adjudication].
273
See 5 U.S.C. § 555; ABA GUIDE TO FEDERAL AGENCY ADJUDICATION, supra note 12, at 183-87; see also
Pension Benefit Guar. Corp. v. LTV Corp. , 496 U.S. 633, 655 (1990) (“The determination in this case . . . was
lawfully made by informal adjudication, the minimal requirements for which are set forth in § 555 of the APA.”).
Another provision of the APA that may apply to informal adjudication involves licensing issues. See 5 U.S.C. §
558(c); see also Everett v. United States, 158 F.3d 1364, 1368 (D.C. Cir. 1998), cert. denied 526 U.S. 1132 (1999)
(rejecting as “obviously wrong” an argument that a helicopter permit could not be issued through informal
adjudication). This provision is irrelevant for our purposes because the federal sector hearing program does not
involve licensing.
274
See ABA GUIDE TO FEDERAL AGENCY ADJUDICATION, supra note 12, at 178-79.
269

35

higher level issues relevant to the question of where the Commission should place its AJs.
Finally, none of the statutes applicable to federal sector EEO hearings appear to contain any
provision that would constrain the Commission’s discretion to design and structure the program
as it sees fit.
It therefore appears that the Commission has broad discretion over the organizational
structure of the federal sector program. This discretion extends to two conceptually separate
aspects of the program’s organizational structure: (1) personnel management structure, which
primarily relates to the placement of the program within the EEOC’s overarching organizational
structure;275 and (2) procedural structure, which involves potential interaction between
organizational structure and the procedures through which administrative appeals from AJ
decisions are processed.276 The Commission could make modifications to either or both of these
organizational aspects of the program, depending on its determination regarding what is most
appropriate and will work best for the federal sector hearing program.277 We have not been able
to identify any legal principles or requirements that would limit the options available to the
Commission in this area.
2. Alternative Approaches to the Organizational Placement of AJs
In order to provide the Commission with some guidance as to how it might exercise its
substantial discretion over the organizational placement of its AJs, we provide below a few
examples of how other agencies have structured informal adjudication programs. Perhaps
because agencies are generally “free to provide any procedure (or no procedure) in conducting
informal adjudication,”278 there is great variety in the procedural and organizational structures
that agencies use in informal adjudicatory programs.279 Our selection of the examples explored
below was guided by a few principles. First, we have sought to provide organizational examples
of agencies that operate adjudication programs that serve similar purposes or functions as the
federal sector program.280 In this respect, we were limited to administrative adjudication
programs for which sufficient information is publicly available regarding the organizational
placement of non-ALJ adjudications.281 Additionally, we have endeavored to examine a variety

275

Options available to the Commission along this dimension would include retaining the organizational placement
of AJs under OFP, moving the AJs to another existing office such as OFO, or reorganizing the AJs under the
auspices of a new organizational unit (e.g., an Office of Administrative Judges).
276
Currently, AJs are organized under OFP, while appeals from AJ decisions are processed through OFO. One could
envision a revised structure in which the staff who conduct hearings are organizationally placed within the same unit
as the staff who review appeals.
277
The NAPA study previously mentioned includes some analysis and recommendations regarding the
organizational placement of the federal sector hearing program. See NAPA EEOC REPORT, supra note 2, at 60-62.
278
ABA GUIDE TO FEDERAL AGENCY ADJUDICATION, supra note 12, at 178.
279
See generally Verkuil, Informal Adjudication, supra note 272. One reason for this diversity is that informal
adjudications are conducted for many different purposes, including to award grants, disburse benefits or subsidies,
issue licenses, conduct inspections or audits, assess penalties for regulatory noncompliance, develop labor relations
orders or orders requiring regulated parties to cure violations, and even to craft internal agency statutory
interpretations. See ABA GUIDE TO FEDERAL AGENCY ADJUDICATION, supra note 12, at 176-77.
280
MSPB is the closest analog to EEOC in this regard. See infra at Part. IV.2.b.
281
It is often difficult to determine, from an external perspective, how a program is organized and managed. DOJ is
a good example of an agency that provides a great deal of information to the public about such matters through its
published regulations. See infra Part IV.2.a.

36

of adjudication programs that, taken together, might convey some sense of the great diversity of
possible procedural and organization structures used in informal adjudicatory programs.
a. The Executive Office of Immigration Review (EOIR)
The Department of Justice’s EOIR not only houses the Chief Administrative Hearing
Officer and the program’s ALJs, it also houses the Chief Immigration Judge and the far more
numerous “immigration judges” who adjudicate immigration removal cases.282 Although DOJ
describes immigration proceedings as “formal court proceedings,”283 immigration judges are
non-ALJ adjudicators.284 EOIR is headed by a Director, assisted by a Deputy Director, with the
work of the office further divided among seven subsidiary offices. 285 The Director of EOIR is
authorized to manage, supervise, and evaluate the performance of these subsidiary offices.286
One of these is the Office of the Chief Immigration Judge (OCIJ), within which immigration
judges are placed.287
The Attorney General has delegated to the Director of EOIR significant authority over
immigration judges and the conduct of immigration hearings. Perhaps most notably, the Director
is authorized to:
Direct the conduct of all EOIR employees to ensure the efficient
disposition of all pending cases, including the power, in his
discretion, to set priorities or time frames for the resolution of
cases; to direct that the adjudication of certain cases be deferred; to
regulate the assignment of adjudicators to cases; and otherwise to
manage the docket of matters to be decided by . . . the immigration
judges.288
The Director also has the power to “[p]rovide for performance appraisals for immigration judges
. . . while fully respecting their roles as adjudicators, including [by providing] a process for
reporting adjudications that reflect temperament problems or poor decisional quality.”289
Similarly, the Director is responsible for “[a]dminister[ing] an examination for newly-appointed
282

See DEP’T OF JUSTICE, EXEC. OFFICE FOR IMMIGRATION REVIEW, EOIR AT A GLANCE (Sept. 9, 2010),
http://www.justice.gov/eoir/press/2010/EOIRataGlance09092010.htm. It perhaps bears noting that EOIR is separate
and independent from the non-adjudicatory immigration functions and programs within DOJ, including the Office of
Special Counsel for Immigration-Related Unfair Employment Practices (part of the Civil Rights Division), which
brings anti-discrimination enforcement actions on behalf of the U.S., and the Office of Immigration Litigation (part
of the Civil Division), which handles all civil immigration matters. See DEP’T OF JUSTICE, EXEC. OFFICE OF
IMMIGRATION REVIEW, ABOUT THE OFFICE, http://www.justice.gov/eoir/orginfo.htm.
283
E.g., DEP’T OF JUSTICE, EXEC. OFFICE FOR IMMIGRATION REVIEW, OFFICE OF THE CHIEF IMMIGRATION JUDGE,
http://www.justice.gov/eoir/ocijinfo.htm (“Immigration judges are responsible for conducting formal court
proceedings and act independently in deciding the matters before them.”).
284
See 8 C.F.R. § 1003.10. Although immigration hearings are informal proceedings in APA parlance, the
regulations governing the procedures followed in such hearings are quite detailed and comprehensive. See generally
id. §§ 1003.12-1003.47.
285
See DEP’T OF JUSTICE, EXEC. OFFICE FOR IMMIGRATION REVIEW, ORGANIZATION CHART,
http://www.justice.gov/eoir/sibpages/Organization.html; see also 8 C.F.R. § 1003.0(a).
286
See 8 C.F.R. § 1003.0(b)(1).
287
See id. § 1003.9(a).
288
Id. § 1003.0(b)(1)(ii).
289
Id. § 1003.0(b)(1)(v).

37

immigration judges” to ensure “their familiarity with key principles of immigration law before
they begin to adjudicate matters” and “evaluat[ing] the temperament and skills of each new
immigration judge.”290 Finally, the Director is authorized to “[p]rovide for comprehensive,
continuing training and support for . . . immigration judges . . . in order to promote the quality
and consistency of adjudications”291 and “[i]mplement a process for receiving, evaluating, and
responding to complaints of inappropriate conduct by EOIR adjudicators.”292
It is the OCIJ, however, that “provides overall program direction, articulates policies and
procedures, and establishes priorities for over 260 immigration judges in 59 immigration courts”
nationwide.293 OCIJ is headed by the Chief Immigration Judge, with assistance from two Deputy
Chief Immigration Judges, twelve Assistant Chief Immigration Judges, and one Chief
Counsel.294 The Chief Immigration Judge is appointed by the Attorney General295 and, “[s]ubject
to the supervision of the Director,” is “responsible for the supervision, direction, and scheduling
of the immigration judges in the conduct of the hearings and duties assigned to them.”296 DOJ
regulations expressly deny the Chief Immigration Judge the power “to direct the result of an
adjudication assigned to another immigration judge,”297 but otherwise grant him or her broad
authority to manage, supervise, and evaluate immigration judges.298
Appeals from immigration judges’ decisions are taken to the Board of Immigration
Appeals.299 Both the Board of Immigration Appeals and the Office of the Chief Immigration
Judge are housed within EOIR and report directly to its Director (through the Deputy
Director).300
b. The Merit Systems Protection Board (MSPB)
Established in 1978,301 the MSPB “is an independent, quasi-judicial agency in the
Executive branch that serves as the guardian of Federal merit systems.” 302 It is responsible for,
among other things, adjudicating federal employees’ appeals of agency personnel actions. 303 In a
few instances, MSPB adjudications are conducted under the APA, and the presiding official is an
290

Id. § 1003.0(b)(1)(vi).
Id. § 1003.0(b)(1)(vii).
292
Id. § 1003.0(b)(1)(viii).
293
See DEP’T OF JUSTICE, EXEC. OFFICE FOR IMMIGRATION REVIEW, OFFICE OF THE CHIEF IMMIGRATION JUDGE,
http://www.justice.gov/eoir/ocijinfo.htm.
294
See DEP’T OF JUSTICE, EXEC. OFFICE FOR IMMIGRATION REVIEW, OFFICE OF THE CHIEF IMMIGRATION JUDGE,
BIOGRAPHICAL INFO., http://www.justice.gov/eoir/fs/ocijbio.htm.
295
See 8 C.F.R. § 1003.9(a).
296
Id. § 1003.9(b).
297
Id. § 1003.9(c).
298
See id. § 1003.9(b). The Chief Immigration Judge may also “[a]djudicate cases as an immigration judge.” See id.
at § 1003.9(b)(5).
299
See id. § 1003.38(a).
300
See Appendix N.
301
See Reorganization Plan No. 2 of 1978, codified by the Civil Service Reform Act of 1978, Pub. L. No. 95-454.
302
MERIT SYS. PROT. BD., ABOUT MSPB, http://www.mspb.gov/About/about.htm; see also 5 C.F.R. § 1200.1 (“The
Merit Systems Protection Board (the Board) is an independent Government agency that operates like a court. The
Board was created to ensure that all Federal government agencies follow Federal merit systems practices.”).
303
5 C.F.R. § 1200.1. In recent years, MSPB has not employed its own ALJs, but has relied on loaned ALJs
procured under 5 U.S.C. § 3344.
291

38

ALJ.304 In the mine run of cases, however, which involve (non-ALJ) federal employee appeals
from agency personnel action,305 the claims are adjudicated informally by non-ALJ adjudicators.
As in federal sector EEO hearings, these MSPB adjudicators are non-ALJ “Administrative
Judges.”306
Like the EEOC, the MSPB divides its jurisdiction into regional and field offices,307 and it
is the AJs located in these offices that “hear and decide initial appeals and other assigned
cases.”308 As the agency’s organizational chart shows, the regional and field offices are situated
under the authority of the MSPB’s Office of Regional Operations. 309 The Office of Regional
Operations and each regional or field office is staffed with a Chief Administrative Judge (CAJ)
tasked with overseeing the work of the MSPB’s AJs.310 At the headquarters level, the current
Director of Regional Operations also serves as the Chief Administrative Law Judge. 311 In
regional offices, it appears that the CAJ also typically serves as the regional director.312 This
likely reflects the fact that MSPB’s work is predominately adjudicatory. It has no second
program analogous to the EEOC’s private sector investigations and therefore perhaps does not
require a more complex or duplicative management structure.
Procedurally, MSPB AJs issue initial decisions that are administratively appealable
directly to the Board, which appears to give some deference to the AJ’s factual findings. In this
context, the initial complaint that a federal employee files against his or her employing agency is
referred to as an “appeal.”313 When an appeal is filed, the CAJ in the appropriate field office
assigns it to an AJ,314 which issues an “initial decision” on the appeal.315 The initial decision may
then be challenged through a “petition for review” filed with the MSPB itself.316 The agency’s
304

For example, ALJs preside over hearings involving merit systems claims brought by ALJs employed by other
agencies of the federal government. See 5 C.F.R. § 1200.10(b)(2). The ALJs that preside over such hearings are
placed within the MSPB’s Office of the Administrative Law Judge. See id.
305
See 5 C.F.R. § 1201.3(a) (describing the MSPB’s appellate jurisdiction).
306
The position description for an AJ employed by MSPB is provided in Appendix M.
307
See MERIT SYS. PROT. BD., MSPB JURISDICTION, http://www.mspb.gov/contact/contact.htm.
308
5 C.F.R. § 1200.10(c).
309
See MERIT SYS. PROT. BD., ORGANIZATION, http://www.mspb.gov/About/organization.htm; see also 5 C.F.R. §
1200.10(b)(1) (“The Director, Office of Regional Operations, manages the adjudicatory and administrative functions
of the MSPB regional and field offices.”).
310
See MERIT SYS. PROT. BD., MSPB JURISDICTION, http://www.mspb.gov/contact/contact.htm.
311
See id. We were unable to find publicly available information explaining the relationship between the CAJ in
headquarters and the CAJs located in individual regional and field offices.
312
See id.; see also U.S. MERIT SYS. PROT. BD., JUDGES’ HANDBOOK 1 (Oct. 2007),
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=241913&version=242182&application=ACROBAT
(“As used in this handbook, the term “CAJ” refers to the regional director or the CAJ designee of a field office.”).
The same appears to hold for field offices, in which the CAJ is also the managing official. See MERIT SYS. PROT.
BD., MSPB JURISDICTION, http://www.mspb.gov/contact/contact.htm.
313
See, e.g., 5 C.F.R. § 1201.11(f) (defining “[a]ppeal” as “[a] request for review of an agency action.”).
314
U.S.
MERIT
SYS.
PROT.
BD.,
JUDGES’
HANDBOOK
10
(Oct.
2007),
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=241913&version=242182&application=ACROBAT.
CAJs also perform pre-issuance quality review of initial decisions. See id. at 54.
315
See, e.g., 5 C.F.R. § 1201.11 (governing the initial decision by the judge); id. § 1201.113 (identifying the
circumstances in which the initial decision will become final).
316
See, e.g., id. § 1201.11(g) (defining “[p]etition for review as “[a] request for review of an initial decision of a
judge.”); § 1201.114(1) (“A petition for review is a pleading in which a party contends that an initial decision was
incorrectly decided in whole or in part.”). Organizationally and procedurally, MSPB has no analog to the

39

regulations identify circumstances in which the MSPB may grant a petition for review. 317
Although the MSPB may grant a petition for review if “[t]he initial decision contains erroneous
findings of material fact,”318 such a result is limited in three ways. First, the regulations require
that “[a]ny alleged factual error must be material, meaning of sufficient weight to warrant an
outcome different from that of the initial decision.”319 In addition, the party alleging an error of
fact “must explain why the challenged factual determination is incorrect and identify specific
evidence in the record that demonstrates that error.”320 Finally, the regulations provide that the
MSPB will generally be deferential to an AJ’s credibility determinations. 321 These limitations
suggest that, as a practical matter, MSPB AJs operate as fact finders for the agency in matters
subject to a petition for review.
c. The National Appeals Division (NAD)
The USDA’s NAD is an example of an informal adjudication program that nonetheless
bears many of the procedural and organizational hallmarks of formal adjudication. NAD was
created in 1994 as part of a congressionally-mandated reorganization of the USDA.322 In NAD,
Congress consolidated the adjudicatory functions of seven USDA component agencies into a
single administrative forum.323 NAD conducts “impartial administrative appeals hearings and
reviews of adverse program decisions” made by USDA officials in those component agencies.324
NAD adjudicators therefore hear cases involving a variety of subjects, including agricultural
assistance, commodities and conservation programs, and rural housing and development. 325 As
of 2008, NAD docketed about 13,000 cases annually.326
In terms of its organizational structure, NAD is independent of any USDA program office
and reports to directly to the Secretary (through the Deputy Secretary). 327 NAD is headed by a
Director, who is appointed by the Secretary for a six-year term.328 NAD houses both hearing-

Commission’s OFO—administrative appeals from the AJs’ initial decision go directly to and are decided by the
MSPB.
317
See id. § 1201.115.
318
Id. § 1201.115(a).
319
Id. § 1201.115(a)(1).
320
Id. § 1201.115(a)(2).
321
See id. § 1201.115(a)(2) (“In reviewing a claim of an erroneous finding of fact, the Board will give deference to
an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation
of the demeanor of witnesses testifying at a hearing.”).
322
See Federal Crop Insurance Reform and Department of Agriculture Reorganization Act of 1994, Pub. L. 103-354,
tit. II, subtit. H, 108 Stat. 3228 (1994) (codified at 7 U.S.C. §§ 6991-6999). Although the Act characterizes NAD as
handling “appeals,” the Division actually conducts both hearing-level and appellate adjudications.
323
7 U.S.C. §§ 6991-6992.
324
See U.S. DEP’T OF AGRIC., NAT’L APPEALS DIV., ABOUT NAD, MISSION STATEMENT,
http://www.nad.usda.gov/about_mission.html.
325
U.S. DEP’T OF AGRIC., NAT’L APPEALS DIV., ABOUT NAD, http://www.nad.usda.gov/about_nad.html; see also 7
C.F.R. § 11.1 (2013).
326
See Five Points Road Joint Venture v. Johanns, 542 F.3d 1121, 1128-29 (7th Cir. 2008).
327
See U.S. DEP’T OF AGRIC., ORGANIZATIONAL CHART, http://www.usda.gov/wps/portal/usda/
usdahome?navid=USDA_ORG_CHART, reprinted in Appendix N.
328
See 7 U.S.C. § 6992(b); U.S. DEP’T OF AGRIC., NAT’L APPEALS DIV., ABOUT NAD, ORGANIZATIONAL ROLES,
http://www.nad.usda.gov/about_roles.html.

40

level and appellate offices.329 Hearings are conducted by non-ALJ adjudicators, who are referred
to as “hearing officers” and are dispersed among three regions.330 Three Regional Assistant
Directors are responsible for overseeing the adjudication process within their respective regions,
by, among other things, supervising and providing operational support for hearing officers
(including by assigning cases), as well as performing other administrative functions.331 The
Regional Assistant Directors, in turn, report to the NAD Director.332
An applicant or participant who receives an adverse program decision related to a
covered USDA program may seek review by NAD. Once an appeal is filed, cases are assigned to
a hearing officer. Private parties are entitled to hearings (either in-person or telephonic) upon
request.333 Hearing officers are responsible for managing pre-trial proceedings, conducting trialtype evidentiary hearings, and issuing written determinations.334 NAD hearings are informal in
APA terminology, but have many of the characteristics associated with formal adjudication. Ex
parte contacts are prohibited, and hearing officers are authorized to administer oaths and to issue
subpoenas to compel the production of documents or the attendance of witnesses.335 Official
records of hearings are maintained by audiotape or, at the discretion (and expense) of the private
party, by transcript.336 A hearing officer’s post-hearing notice of determination becomes the
agency’s final administrative decision absent a timely request for review by either party. 337
Should a party seek review of a hearing officer’s determination, the appeal is heard by the
NAD Director (or his or her delegee).338 In his or her role as appellate adjudicator, the Director is
assisted by a staff of appeals officers who research and draft the Director’s review
determinations. A Supervisory Appeals Officer manages the appellate staff.339 The Director’s
final determination on review represents the agency’s final administrative action, and parties
may seek judicial review thereafter.340

329

See, e.g., 7 C.F.R. §§11.8-11.15; U.S. DEP’T OF AGRIC., NAT’L APPEALS DIV., ORGANIZATIONAL CHART,
http://www.usda.gov/wps/portal/usda/usdahome?navid=USDA_ORG_CHART, reprinted in Appendix N.
330
See 7 C.F.R. §§ 11.1, 11.21; see also U.S. DEP’T OF AGRIC., NAT’L APPEALS DIV.,
http://www.nad.usda.gov/contact_us.html. NAD regional offices are located as follows: Eastern Region
(Indianapolis, IN); Southern Region (Memphis, Tennessee); and Western Region (Lakewood, CO). NAD
headquarters is located in Alexandria, VA. 7 C.F.R. § 11.21.
331
See 7 C.F.R. § 11.22(d); U.S. DEP’T OF AGRIC., NAT’L APPEALS DIV., ABOUT NAD, ORGANIZATIONAL ROLES,
http://www.nad.usda.gov/about_roles.html.
332
See 7 C.F.R. § 11.22(d).
333
Id. § 11.6(b).
334
Id. § 11.8.
335
Id. § 11.8(a).
336
Id. § 11.8(b)(5)(iii).
337
Id. § 11.8(f)
338
Id. § 11.9.
339
See U.S. DEP’T OF AGRIC., NAT’L APPEALS DIV., ABOUT NAD, ORGANIZATIONAL ROLES,
http://www.nad.usda.gov/about_roles.html. The Director and appellate staff are located in headquarters.
340
7 C.F.R. §§ 11.9(d), 11.13.

41

d. The Railroad Retirement Board (RRB)
The Chicago-based RRB primarily adjudicates benefits claims by railroad workers and
their families under the Railroad Retirement and Railroad Unemployment Insurance Acts. 341 A
claimant dissatisfied with the initial decision on his or her application for benefits has the right to
file an appeal with the Bureau of Hearings and Appeals and to request an oral hearing on factual
issues.342 These informal proceedings are not conducted under the APA, and the presiding
official is a non-ALJ “hearings officer.”343 Appeals from the decision of a hearing officer are
taken to the Board.344 Organizationally, the Bureau of Hearings and Appeals is situated within
the Office of the General Counsel,345 and the General Counsel is “responsible for . . . planning,
directing, and coordinating the work of . . . the Bureau of Hearings and Appeals.”346
V.

BUDGETARY CONSIDERATIONS

While numerous factors would necessarily underlie any decision to change the status of
adjudicators in the federal sector program, this section explores the potential effect of such
reform only from the perspective of the personnel costs of using ALJs instead of AJs. More
specifically, our assessment models, monetizes, and evaluates the likely fiscal impact—in terms
of salary, benefits, and other personnel-related costs—of using ALJs (instead of AJs) in the
federal sector hearing program over a 10-year period. Two important points bear emphasis. First,
this model assesses the likely additional incremental—rather than absolute—costs to the
Commission of using ALJs as adjudicators in the federal sector hearing program; that is, we
assess the likely cost differential between ALJs and AJs, since it is only these costs that can
properly be attributed to switching to ALJs. Second, this assessment solely evaluates the direct
personnel costs to the Commission of using ALJs in the federal sector program.347 We were not
tasked by the agency to monetize the potential benefits of ALJ adjudicators, and we do not
attempt to do so here. Whether—or to what extent—monetized benefits to the Commission,
litigants, or other federal sector stakeholders might offset cost increases associated with use of
ALJs would require a more complex economic analysis that is beyond the scope of this study.
A.

Summary of Cost Model: Methodology & Inputs

The essential framework of the model used to estimate the incremental costs of using
ALJs as federal sector adjudicators involves three key aspects: analytical timeframe, cost
elements (inputs), and incorporation of uncertainty. With respect to timeframe, a 10-year period
is used because this is a standard time horizon for analyzing future costs (or benefits) of federal
341

See, e.g., 20 C.F.R. § 258.1(a); see also id. § 200.1(a)(3) (“The Board administers the Railroad Retirement Act
and the Railroad Unemployment Insurance Act. . . . The Board also participates in the administration of the Federal
Medicare health insurance program.”).
342
See id. §§ 200.2(a)(2), 200.2(b)(8), 320.12.
343
See 20 C.F.R. §§ 200.2(a)(2), 200.2(b)(8); see also id. § 320.18 (governing appointment of hearings officers); id.
§ 320.20 (identifying the powers of the hearings officer).
344
See id. § 320.39. The Board’s decisions are subject to judicial review. See id. § 320.45.
345
See R.R. RET. BD., RRB ORGANIZATIONAL CHART, http://www.rrb.gov/org/org_chart.asp.
346
20 C.F.R. § 200.1(b)(2).
347
Thus, the extent to which—if any—that switching to ALJ adjudicators might lead to higher (or lower) indirect
operational or personnel costs (by, for example, prompting other Commission employees subsequently seeking to
have their positions upgraded) are not captured in this economic analysis.

42

agency action, as well as a period for which assumptions about future events can be made with a
sufficient degree of reliability.348 It is assumed for modeling purposes that “Year 1” is 2015 and
“Year 10” is 2024.349 In terms of cost elements, the model uses four basic inputs: number of
adjudicators; salaries; benefits; and other costs (namely, AJ performance awards and fees
assessed by OPM for each agency’s pro rata share of ALJ program costs). Each of these four cost
elements, in turn, was derived from EEOC data or publicly available sources. While Appendices
C – L provide detailed descriptions of these cost elements and their underlying sources and
assumptions, salient aspects of these inputs are summarized below:


Number of Adjudicators. EEOC-provided data show that the agency currently
employs 89 full-time AJs in the federal sector program plus 6 full-time
equivalents (FTEs) based on the average number of hours worked annually by
part-time EEOC AJs.350 It is thus assumed that 95 full-time adjudicators is the
“base” number of adjudicators that, depending on the applicable set of cost
assumptions, is projected to grow, contract, or remain the same over the 10-year
period.



Salaries—General. Federal salaries consist of basic and locality pay. The model
uses one (or both) types of pay as relevant to the particular cost calculation.
Because EEOC-provided data did not identify AJs’ duty stations, locality pay for
each grade/step pair used in the model is based on the median locality pay of all
federal pay jurisdictions that currently house an EEOC district or field office.



Salaries (Grade)—AJs. AJs are classified, pursuant to the Commission’s
personnel standards, as Grades 11 to 14 on the federal General Schedule (GS) pay
system. Summary personnel data provided by the Commission to the Conference
for this study show that, over the past five years, the vast majority of AJs (about
93%) have been GS-14s, with the rest of the AJ corps at the GS-13 level save for
a single GS-15 (in 2013 only); the Commission has not employed any GS-11/12s
in the past four years. It is thus assumed that the “base” number of AJs follow this
same general distribution (i.e., 93% GS-14s, 6% GS-13s, and 1% GS-15).



Salaries (Within-Grade Steps)—AJs. Data initially provided by EEOC indicated
only the grade levels (and not within-grade steps) of AJs. Subsequently, EEOC
provided supplementary data identifying the number of AJs at each grade/step

348

See, e.g., OFFICE OF MGMT. AND BUDGET, REGULATORY IMPACT ANALYSIS: FREQUENTLY ASKED QUESTIONS 4
(Feb. 2011) [hereinafter OMB RIA FAQS] (characterizing 10 years as one of the “standard timeframe[s]” for
economic analyses of actions by federal agencies); OFFICE OF MGMT. AND BUDGET, REGULATORY IMPACT
ANALYSIS: A PRIMER 11 (Aug. 2011) [hereinafter OMB RIA PRIMER] (discussing selection of time horizon for
economic analysis); see also OFFICE OF MGMT. AND BUDGET, CIRCULAR A-4 15 (Sept. 2003) [hereinafter OMB
CIRCULAR A-4]. While assessment of the fiscal implications of using ALJs in the Commission’s federal sector
program is not governed by OMB standards, such guidance nonetheless distills well-established methodologies that
warrant application to the extent feasible in the instant cost analysis.
349
Of course, whether the Commission ultimately will employ ALJs in the federal sector hearing program, and if so,
when, remains an open question at this juncture. However, modeling costs requires a defined timeframe for analysis.
For cost modeling purposes only, it is thus assumed that the Commission would begin using ALJs in 2015.
350
See OFFICE OF MGMT. AND BUDGET, CIRCULAR A-76 (2003) (providing FTE conversion factor of 1,776 annual
hours).

43

pair in recent years (i.e., fiscal years 2008 through 2013). A chart depicting this
grade/step data is set forth in Appendix C.)351 However, the complexity of
modelling over twenty grade/step pairs for a ten-year period, coupled with other
data constraints (such as lack of historical data on which to base detailed
accession, attrition and retirement assumptions for AJs in future years), precluded
detailed economic forecasting for specific grade/step pairs across the entire corps
of AJs. Nonetheless, the EEOC-provided supplementary grade/step data were
used to build the model’s simplified methodology regarding within-grade steps
held by AJs. Drawing from this data, it is assumed that, within each respective
grade, all AJs occupy Step 4, Step 7, or Step 10 depending on the relevant cost
scenario.


Salaries (Level/Rate)—ALJs. ALJ pay is established by OPM based on a
government-wide pay scale.352 This pay scale has three levels (AL-3, AL-2, and
AL-1); however, it is assumed that nearly all EEOC ALJs would occupy the
lowest level (AL-3) since the other two levels represent managerial positions.
Grade AL-3, in turn, encompasses five within-level rates (A thru F). To simplify
modeling, it is assumed that non-managerial EEOC ALJs would be assigned to
one of three rates—namely, AL-3/A, AL-3/C, or AL-3/F—and then progress to
higher rates based on a modeled approximation of time-in-rate requirements. With
respect to ALJ management, it is assumed that, should the Commission transition
to using ALJs, the Commission would need one Chief ALJ (at the AL-2 level)
and, depending on the particular cost scenario, another one or two Regional Chief
ALJs (also at the AL-2 level).



Benefits. Modeled benefits inputs are limited to those agency-provided benefits
that are proportional to salary (e.g., retirement benefits), since it is only such
benefits that show incremental variance between ALJs and AJs. Benefits
calculations use basic (rather than locality) pay rates according to applicable
statutory or administrative formulae. Benefits included in the model are: Federal
Employees Retirement System (FERS) (11.9% basic pay); Federal Employees’
Group Life Insurance (FEGLI) (0.75¢ per $1,000 basic pay); Thrift Savings Plan
(TSP) - Basic (automatic agency contribution of 1% basic pay); and TSP Matching (agency matching of employee TSP contribution up to 5% basic pay).



Other Costs. This cost element addresses two separate inputs – one unique to AJs
(performance awards) and one applicable only to ALJs (OPM fees). AJs—as
General Schedule employees—can receive discretionary annual performance

351

Notably, between FY 2008 and FY 2013, there was a marked shift in the predominant grade/step pairs across all
AJs. In FY 2008, GS-14/8 represented the grade/step pair with the highest number of AJs, followed by GS-14/9 and
GS-14/10. See Appendix C. By the end of FY 2013, however, AJs at the GS-14/10 pay level far outnumbered both
GS-14/9s and GS-14/8s. Id. The exact causes of this significant change in AJ pay distribution are not known, though
it is likely that federal budget limitations and hiring freezes (which constrain job movement), as well as the general
economic downturn, played some role.
352
See 5 U.S.C. § 5372 (providing that OPM “shall determine . . . the [pay] level in which each administrative-lawjudge position shall be placed”); 5 C.F.R. § 930.205 (“OPM assigns each administrative law judge position to one of
the three levels of basic pay, AL-3, AL-2 or AL-1 of the administrative law judge pay system[.]”).

44

awards. (ALJs are prohibited from receiving performance or incentive awards.)353
EEOC provided ACUS with summary AJ performance (cash) award data for FYs
2008 through 2013. Due to budget constraints, the Commission granted no cash
awards to AJs in 2012 and 2013. It is assumed that, for any given model year, the
AJ corps receives cash awards based on the four-year annual weighted average of
cash awards collectively granted to AJs in FY 2008 through FY 2011, with award
frequency (e.g., annually, biennially) dependent on the particular cost scenario.
Second, OPM annually bills each agency employing ALJs its pro rata share of
OPM’s cost of administering the ALJ program.354 In 2012, the OPM-assessed fee
was $1,633 per ALJ.355 In recent years, this fee has increased annually by 6% to
22%, with a median increase of 7%.356
In addition, the model incorporates “low” (L), “medium” (M), and “high” (H)
assumptions for certain cost elements to account for uncertainties inherent in forecasting future
costs, as well as to permit growth (or contraction) over time. Cost elements with L/M/H ranges
are thus integral to the cost model because they permit a more refined analysis than single-point
estimates. For example, it cannot be known at this time the extent to which federal salaries will
increase in coming years, or whether the rolls of the Commission’s adjudicators will expand,
contract, or remain the same in the coming decade. Modeling key cost elements (or uncertainties)
using ranges permit development of a primary (medium) cost scenario that is bounded by
plausible upper and lower bound cost estimates. A sample, simplified annual cost equation from
the model is set forth in Appendix H.
In our model, each cost element with an L/M/H range is based on, or derived from, an
objective data source such as EEOC-provided summary personnel data, current and past OPM
federal salary tables, or reports on recent TSP participation and contribution rates by federal
employees. Cost inputs with L/M/H ranges include: annual number of federal sector
adjudicators; pay rates under the federal GS and AL pay systems; distribution of AJs and ALJs
under their respective pay systems; TSP participation and deferral rates; and OPM-assessed ALJ
program fees. (For a complete list of cost elements with L/M/H ranges and their underlying
assumptions, see Appendix C.)
In sum, the foregoing represents the fundamentals of the cost model. Based on this
model, annual costs are calculated for each of the 10 years and, within each of these years,
separately for each of the three (i.e., L/M/H) scenarios. Annual cost estimates for each of these
cost scenarios are generated by respectively indulging all applicable “low” assumptions, all
“medium” assumptions, and all “high” assumptions. It bears noting that, because these three
scenarios assess incremental (rather than absolute costs), it does not necessarily follow that
353

See 5 C.F.R. § 930.203 (“An agency may not grant any monetary or honorary award or incentive . . . to an
administrative law judge.”); see also 5 U.S.C. §§ 4502-4504.
354
See 5 U.S.C. § 1104(a)(2); 5 C.F.R. § 930.203 (providing, in pertinent part: “Each agency employing
administrative law judges must reimburse OPM for the cost of developing and administering the administrative law
judge examination. Each agency is charged a pro rata share of the examination cost. . . . OPM computes the cost of
the examination program on an annual basis and notifies the employing agencies of their respective shares after the
calculations are made.”); see also 2013 SSA OIG REPORT, supra note 149, at 6 tbl. 1 (discussing OPM-assessed ALJ
fees).
355
See 2013 SSA OIG REPORT, supra note 149, at 6 tbl. 1.
356
Id.

45

results from the “low” or “high” scenarios will respectively show the lowest and highest annual
(incremental) costs. The “baseline” against which ALJ-related costs are assessed is the status
quo—namely, continued use of AJs as federal sector adjudicators. Annual cost totals for each
year (and each L/M/H scenario) are presented as “rolled-up” costs at both 3% and 7% discount
rates in order to account for differences in the timing of such costs. 357 In addition, costs are also
presented on an annualized basis for the federal sector program generally, as well as per ALJ. 358
B.

Summary of Results

We estimate the likely incremental costs to the Commission of using ALJs as federal
sector adjudicators over the studied 10-year period from three perspectives: total annual costs,
total annualized costs, and annualized per-ALJ costs. All annual and annualized cost results
represent incremental costs (i.e., cost differential between using ALJs and AJs in the federal
sector program) unless stated otherwise. Additionally, the scenario assessing the “medium” cost
inputs at a 7% discount rate is termed the “primary scenario” because it presents the central,
most likely cost scenario. The “high” and “low” scenarios form the upper and lower bounds of
the expected range of annual costs to the Commission of using ALJs as federal sector
adjudicators. Complete results from our cost assessment are presented in Appendices I – L. Key
findings from these analyses are summarized below.
First, use of ALJs as adjudicators in the federal sector hearing program will increase
annual costs for the Commission under all of the modeled scenarios. For example, under the
primary scenario, annual costs are expected to rise between $1.1 million and $2.5 million for any
given year. Annual costs for each of the three scenarios over the studied 10-year term are
depicted in Figure 1, which appears on the next page.
It may be noted that, in this figure (and in other annual cost results presented herein)
there is the seeming incongruity of the “low” scenario showing the highest annual costs, while
the “high” scenario presents the lowest annual costs. This is not a typographical error. Rather,
this apparent anomaly stems from two inter-related considerations. First, as noted previously,
modeled costs are incremental (i.e., the cost differential between using ALJs and AJs as federal
sector adjudicators), not absolute. Consequently, the “higher” cost curve for the “low” scenario
demonstrates that collectively indulging all “low” modeling assumptions yields the greatest
incremental costs relative to the “medium” and “high” cost scenarios. Second, as befits a cost
scenario modeling lower-range estimates, the “low” scenario assumes that a greater proportion of
federal sector adjudicators (whether AJs and ALJs) hold relatively lower-ranking positions on
their respective pay scales. Since the lower end of the pay scale is precisely where the greatest
ALJ–AJ salary disparities occur, this low cost assumption results in higher incremental salary
357

Since costs from use of ALJs in the federal sector program would not be incurred all at one time, it would be
incorrect to simply add up all expected costs without taking into account when such costs would be incurred by the
agency. See OMB CIRCULAR A-4, supra note 348, at 33-34 (discussing the importance of discounting costs or
benefits accrued over time and specifying use of both 3% and 7% discount rates); see also OMB RIA PRIMER, supra
note 348, at 11 (same). Or, put in more colloquial terms, discounting costs incurred over time is important because
“a dollar today is worth more than a dollar tomorrow.”
358
Annualization involves taking the sum of a future stream of costs (or benefits) and estimating approximate yearly
costs. See OMB CIRCULAR A-4, supra note 348, at 45; see also OMB RIA FAQS, supra note 348, at 6-8. This
process is akin to mathematical averaging except that, as with discounting, it takes into account the timing of the
accrual of costs/benefits.

46

costs.359 Consequently, the “low” scenario forms the likely upper-bound estimate of likely annual
(incremental) costs of using ALJs as adjudicators in the federal sector program.
Figure 1: Annual Costs - Low, Primary, and High Scenarios (7% Discount Rate)
$3.0

Annual Costs (millions)

$2.5
$2.0
$1.5
$1.0
$0.5
$0.0
2015

2016

2017

Low Scenario

2018

2019

2020

Primary Scenario

2021

2022

2023

2024

High Scenario

Moreover, the key driver of annual costs under all scenarios is the relatively higher
salaries for ALJs under government-wide pay rates. For example, under current (2013) federal
pay rates, the locality pay for an entry-level ALJ (AL-3/A) is about $13,000 higher than a midlevel AJ (GS-14/4). (See Appendix D.) This ALJ:AJ pay gap is reflected in the cost curves in
Figure 1 above. Costs under each scenario exhibit the highest increases in Years 1 through 4 (i.e.,
2015 - 2018) as EEOC ALJs are appointed and progress through the ALJ pay scale. In Years 5
through 10, the cost curves for the three scenarios flatten—and come close to converging—due
to several inter-related factors, including: longer time-in-grade requirements for promotions
between higher steps in the ALJ pay scale; a “maturing” distribution of ALJs on the ALJ pay
scale as it settles into a consistent pattern; and a projection that federal pay will continue to lag
relative to inflation.

359

For example, the “low” scenario assumes that nearly all ALJs will hold entry-level positions (AL-3A), and most
AJs will be paid at the GS-14/4 level. See Appendices C - G. Based on 2013 pay rates, the difference in annual basic
pay between these two pay rates is $13,078. By comparison, the “high” scenario assumes that most ALJs will hold
mid-level positions (AL-3/C), and most AJs will hold senior positions (GS-14/10). Id. The pay differential between
these more senior adjudicators is about 10% lower ($11,965). See Appendix D.

47

Overall, ALJ salaries represent, on average, about 80% of annual costs over the 10-year
period. Depicted in the figure below (Figure 2) are the annual cost breakdowns for the studied
10-year term under the primary scenario:
Figure 2: Breakdown of Annual Costs Under Primary Scenario (7% Discount Rate)

2023
2021
2019
2017
2015
$0.0

$0.5

$1.0

$1.5

$2.0

$2.5

Annual Cost (Millions)
Other Costs (OPM ALJ Fees)

Benefits

Salary

While ALJ salaries are the largest component of annual costs, benefits and, to a lesser
extent, OPM ALJ fees, also play a role. Since FERS, FEGLI, and TSP benefits are proportional
to basic pay, higher ALJ pay also leads to incrementally higher benefit costs. Under the primary
scenario, these benefits are expected to collectively average about $287,000 in present dollars,
which represents 13% of total annual costs. (See Figure 2 above and Appendix J.) Likewise,
OPM’s ALJ fees are projected to rise annually anywhere from 5% - 9% based on fee assessments
in recent years. OPM ALJ fees are estimated to average about $170,000 in present dollars under
the primary scenario, which represents 7% of total annual costs. (See Figure 2 above and
Appendix J.)
Turning to annualized costs, another key result from our analysis shows that, on an
annualized basis, cost increases from use of ALJ adjudicators are expected to be $2.1 million
under the primary scenario. Presented below are annualized costs for each of the three (L/M/H)
scenarios at both 3% and 7% discount rates:
Annualized Costs of ALJs Serving as Federal Sector Adjudicators 3% and 7% Discount Rates

Discount Rate

High
Scenario
($millions)

Primary
Scenario
($millions)

Low
Scenario
($millions)

3%

$2.4

$2.6

$3.5

7%

$1.9

$2.1

$3.0

48

Lastly, our analysis shows that annual per capita ALJ costs under the primary scenario
are expected to range from a low of $11,737 (Year 1) to a high of about $26,000 (Years 6 - 7),
and average about $23,000 annually in present dollars over the 10-year period. (See Appendix
G.)
CONCLUSION
The decision of whether to use ALJs instead of AJs in the federal sector hearing program
requires the Commission to consider a variety of factors. Transitioning from AJs to ALJs may
require the Commission to revise its hearing procedures. It would also likely have significant
operational and budgetary consequences and may potentially require the Commission to modify
its organizational structure to accommodate the use of ALJs. Ultimately, however, the
determination of adjudicator status is a question of policy that will require the Commission’s
expert judgment regarding the nature of federal sector EEO hearings and their proper place with
the Commission’s broader regulatory mission.

49

APPENDICES

APPENDIX A: THE APA’S FORMAL ADJUDICATION PROVISIONS
5 U.S.C. § 554 – Adjudications
(a) This section applies, according to the provisions thereof, in every case of adjudication
required by statute to be determined on the record after opportunity for an agency hearing, except
to the extent that there is involved—
(1) a matter subject to a subsequent trial of the law and the facts de novo in a court;
(2) the selection or tenure of an employee, except a [sic] administrative law judge
appointed under section 3105 of this title;
(3) proceedings in which decisions rest solely on inspections, tests, or elections;
(4) the conduct of military or foreign affairs functions;
(5) cases in which an agency is acting as an agent for a court; or
(6) the certification of worker representatives.
(b) Persons entitled to notice of an agency hearing shall be timely informed of—
(1) the time, place, and nature of the hearing;
(2) the legal authority and jurisdiction under which the hearing is to be held; and
(3) the matters of fact and law asserted.
When private persons are the moving parties, other parties to the proceeding shall give prompt
notice of issues controverted in fact or law; and in other instances agencies may by rule require
responsive pleading. In fixing the time and place for hearings, due regard shall be had for the
convenience and necessity of the parties or their representatives.
(c) The agency shall give all interested parties opportunity for—
(1) the submission and consideration of facts, arguments, offers of settlement, or
proposals of adjustment when time, the nature of the proceeding, and the public interest
permit; and
(2) to the extent that the parties are unable so to determine a controversy by consent,
hearing and decision on notice and in accordance with sections 556 and 557 of this title.
(d) The employee who presides at the reception of evidence pursuant to section 556 of this title
shall make the recommended decision or initial decision required by section 557 of this title,
unless he becomes unavailable to the agency. Except to the extent required for the disposition of
ex parte matters as authorized by law, such an employee may not—
(1) consult a person or party on a fact in issue, unless on notice and opportunity for all
parties to participate; or
(2) be responsible to or subject to the supervision or direction of an employee or agent
engaged in the performance of investigative or prosecuting functions for an agency.
An employee or agent engaged in the performance of investigative or prosecuting functions for
an agency in a case may not, in that or a factually related case, participate or advise in the
A-1

decision, recommended decision, or agency review pursuant to section 557 of this title, except as
witness or counsel in public proceedings. This subsection does not apply—
(A) in determining applications for initial licenses;
(B) to proceedings involving the validity or application of rates, facilities, or practices of
public utilities or carriers; or
(C) to the agency or a member or members of the body comprising the agency.
(e) The agency, with like effect as in the case of other orders, and in its sound discretion, may
issue a declaratory order to terminate a controversy or remove uncertainty.
5 U.S.C. § 556 – Hearings; presiding employees; powers and duties; burden of proof;
evidence; record as basis of decision
(a) This section applies, according to the provisions thereof, to hearings required by section 553
or 554 of this title to be conducted in accordance with this section.
(b) There shall preside at the taking of evidence—
(1) the agency;
(2) one or more members of the body which comprises the agency; or
(3) one or more administrative law judges appointed under section 3105 of this title.
This subchapter does not supersede the conduct of specified classes of proceedings, in whole or
in part, by or before boards or other employees specially provided for by or designated under
statute. The functions of presiding employees and of employees participating in decisions in
accordance with section 557 of this title shall be conducted in an impartial manner. A presiding
or participating employee may at any time disqualify himself. On the filing in good faith of a
timely and sufficient affidavit of personal bias or other disqualification of a presiding or
participating employee, the agency shall determine the matter as a part of the record and decision
in the case.
(c) Subject to published rules of the agency and within its powers, employees presiding at
hearings may—
(1) administer oaths and affirmations;
(2) issue subpenas authorized by law;
(3) rule on offers of proof and receive relevant evidence;
(4) take depositions or have depositions taken when the ends of justice would be served;
(5) regulate the course of the hearing;
(6) hold conferences for the settlement or simplification of the issues by consent of the
parties or by the use of alternative means of dispute resolution as provided in subchapter
IV of this chapter;
(7) inform the parties as to the availability of one or more alternative means of dispute
resolution, and encourage use of such methods;
A-2

(8) require the attendance at any conference held pursuant to paragraph (6) of at least one
representative of each party who has authority to negotiate concerning resolution of
issues in controversy;
(9) dispose of procedural requests or similar matters;
(10) make or recommend decisions in accordance with section 557 of this title; and
(11) take other action authorized by agency rule consistent with this subchapter.
(d) Except as otherwise provided by statute, the proponent of a rule or order has the burden of
proof. Any oral or documentary evidence may be received, but the agency as a matter of policy
shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. A
sanction may not be imposed or rule or order issued except on consideration of the whole record
or those parts thereof cited by a party and supported by and in accordance with the reliable,
probative, and substantial evidence. The agency may, to the extent consistent with the interests
of justice and the policy of the underlying statutes administered by the agency, consider a
violation of section 557 (d) of this title sufficient grounds for a decision adverse to a party who
has knowingly committed such violation or knowingly caused such violation to occur. A party is
entitled to present his case or defense by oral or documentary evidence, to submit rebuttal
evidence, and to conduct such cross-examination as may be required for a full and true disclosure
of the facts. In rule making or determining claims for money or benefits or applications for initial
licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the
submission of all or part of the evidence in written form.
(e) The transcript of testimony and exhibits, together with all papers and requests filed in the
proceeding, constitutes the exclusive record for decision in accordance with section 557 of this
title and, on payment of lawfully prescribed costs, shall be made available to the parties. When
an agency decision rests on official notice of a material fact not appearing in the evidence in the
record, a party is entitled, on timely request, to an opportunity to show the contrary.
5 U.S.C. § 557 – Initial decisions; conclusiveness; review by agency; submissions by parties;
contents of decisions; record
(a) This section applies, according to the provisions thereof, when a hearing is required to be
conducted in accordance with section 556 of this title.
(b) When the agency did not preside at the reception of the evidence, the presiding employee or,
in cases not subject to section 554 (d) of this title, an employee qualified to preside at hearings
pursuant to section 556 of this title, shall initially decide the case unless the agency requires,
either in specific cases or by general rule, the entire record to be certified to it for decision. When
the presiding employee makes an initial decision, that decision then becomes the decision of the
agency without further proceedings unless there is an appeal to, or review on motion of, the
agency within time provided by rule. On appeal from or review of the initial decision, the agency
has all the powers which it would have in making the initial decision except as it may limit the
issues on notice or by rule. When the agency makes the decision without having presided at the
reception of the evidence, the presiding employee or an employee qualified to preside at hearings
pursuant to section 556 of this title shall first recommend a decision, except that in rule making
or determining applications for initial licenses—
A-3

(1) instead thereof the agency may issue a tentative decision or one of its responsible
employees may recommend a decision; or
(2) this procedure may be omitted in a case in which the agency finds on the record that
due and timely execution of its functions imperatively and unavoidably so requires.
(c) Before a recommended, initial, or tentative decision, or a decision on agency review of the
decision of subordinate employees, the parties are entitled to a reasonable opportunity to submit
for the consideration of the employees participating in the decisions—
(1) proposed findings and conclusions; or
(2) exceptions to the decisions or recommended decisions of subordinate employees or to
tentative agency decisions; and
(3) supporting reasons for the exceptions or proposed findings or conclusions.
The record shall show the ruling on each finding, conclusion, or exception presented. All
decisions, including initial, recommended, and tentative decisions, are a part of the record and
shall include a statement of—
(A) findings and conclusions, and the reasons or basis therefor, on all the material issues
of fact, law, or discretion presented on the record; and
(B) the appropriate rule, order, sanction, relief, or denial thereof.
(d)
(1) In any agency proceeding which is subject to subsection (a) of this section, except to
the extent required for the disposition of ex parte matters as authorized by law—
(A) no interested person outside the agency shall make or knowingly cause to be
made to any member of the body comprising the agency, administrative law
judge, or other employee who is or may reasonably be expected to be involved in
the decisional process of the proceeding, an ex parte communication relevant to
the merits of the proceeding;
(B) no member of the body comprising the agency, administrative law judge, or
other employee who is or may reasonably be expected to be involved in the
decisional process of the proceeding, shall make or knowingly cause to be made
to any interested person outside the agency an ex parte communication relevant to
the merits of the proceeding;
(C) a member of the body comprising the agency, administrative law judge, or
other employee who is or may reasonably be expected to be involved in the
decisional process of such proceeding who receives, or who makes or knowingly
causes to be made, a communication prohibited by this subsection shall place on
the public record of the proceeding:
(i) all such written communications;
(ii) memoranda stating the substance of all such oral communications; and
(iii) all written responses, and memoranda stating the substance of all oral
responses, to the materials described in clauses (i) and (ii) of this
subparagraph;
A-4

(D) upon receipt of a communication knowingly made or knowingly caused to be
made by a party in violation of this subsection, the agency, administrative law
judge, or other employee presiding at the hearing may, to the extent consistent
with the interests of justice and the policy of the underlying statutes, require the
party to show cause why his claim or interest in the proceeding should not be
dismissed, denied, disregarded, or otherwise adversely affected on account of
such violation; and
(E) the prohibitions of this subsection shall apply beginning at such time as the
agency may designate, but in no case shall they begin to apply later than the time
at which a proceeding is noticed for hearing unless the person responsible for the
communication has knowledge that it will be noticed, in which case the
prohibitions shall apply beginning at the time of his acquisition of such
knowledge.
(2) This subsection does not constitute authority to withhold information from Congress.

A-5

APPENDIX B: ADMINISTRATIVE CONFERENCE RECOMMENDATION 92-7

The Federal Administrative Judiciary
(Adopted December 10, 1992)
PREAMBLE
At the request of the Office of Personnel Management, the Administrative Conference
undertook a study of a series of issues relating to the roles of Federal administrative law judges
(ALJs) and non-ALJ adjudicators, or administrative judges (AJs),360 as they have evolved over
the last several decades. The study addressed a number of different issues, including those
relating to selection and evaluation of ALJs and AJs, the relationship of ALJs and AJs to their
employing agencies, including the appropriate level of “independence” of such decision makers,
and under what circumstances each type of decision maker should be used. Many of these issues
are controversial, and the Conference has heard strong arguments from those with differing
views.
The Administrative Conference takes as its starting point in considering the role of the
Federal administrative judiciary the role created for “hearing examiners,” now redesignated as
“administrative law judges,” in the Administrative Procedure Act in 1946.361 That Act
contemplated the existence of impartial factfinders, with substantive expertise in the subjects
relevant to the adjudications over which they preside, who would be insulated from the
investigatory and prosecutorial efforts of employing agencies through protections concerning
hiring, salary, and tenure, as well as separation-of-functions requirements. The decisions of such
impartial factfinders were made subject to broad review by agency heads to ensure that the
accountable appointee at the top of each agency has control over the policymaking for which the
agency has responsibility.
The need for impartial factfinders in administrative adjudications is evident. To ensure the
acceptability of the process, some degree of adjudicator independence is necessary in those
adjudications involving some kind of hearing.362 The legitimacy of an adjudicatory process also
depends on the consistency of its results and its efficiency.
ALJs possess a degree of independence that dates back to the enactment of the APA and is
governed by the APA and related statutes. The APA provides that certain separations of
functions must be observed to protect the ALJ from improper pressures from agency
investigators and prosecutors. ALJs are selected through a special process overseen by OPM.
Their pay is set by statute and OPM regulations. Any attempt by an agency to discipline or
remove an ALJ requires a formal hearing at the Merit Systems Protection Board. ALJs are also

360

The term “administrative judge,” as used here, includes non-ALJ hearing officers, whatever their title, who
preside at adjudicatory hearings.
361
In 1969, the Conference addressed some of these issues in the context of hearing examiners. See Conference
Recommendation 69-9, 1 CFR 305.69-9 (part A) (1988). Many of the recommendations set forth here pertaining to
selection and training of ALJs are broadly consistent with the earlier recommendation, but to the extent that they
differ, this recommendation is intended to supersede part A of Recommendation 69-9.
362
The study underlying this recommendation limited its consideration to adjudicators who preside over some kind
of hearing. More informal adjudication processes are outside the scope of the study.

A-6

exempt from the performance appraisal requirements applicable to almost all other Federal
employees under the Civil Service Reform Act.
While the number of ALJs in the Federal government has leveled off in the last decade, and
has actually decreased outside of the Social Security Administration, some agencies have been
making increased use of AJs. The amount of functional independence accorded to AJs varies
with the particular agency and type of adjudication; however, AJs generally lack the statutory
protections guaranteed to ALJs. AJs are not statutorily exempt from performance appraisals, and
several major groups of AJs regularly undergo such appraisals by the agencies for which they
work. In general, however, AJs presiding in agency adjudications in which a hearing is provided
are accorded de facto protection from pressure from agency investigators and prosecutors, and,
according to the Conference’s survey, do not perceive themselves as significantly more subject
to agency pressure than do ALJs.
The Conference’s general view is that the movement away from the uniformity of
qualifications, procedures, and protections of independence that derives from using ALJs in
appropriate adjudications is unfortunate. The Conference believes that, to some extent, this
movement away from ALJs toward AJs has been fueled by perceptions among agency
management of difficulties in selecting and managing ALJs. These recommendations attempt to
address these perceived problems. It should be noted these recommendations are interdependent.
For example, recommendations concerning the conversion of AJ positions to ALJ positions, and
creation of new ALJ positions in new programs, are premised on the implementation of
improvements in the selection and evaluation processes.
Use of ALJs and AJs
There is no apparent rationale undergirding current congressional or agency decisions on the
use of ALJs or non-ALJs in particular types of cases. Congress seems to make such choices on
an ad hoc basis. Moreover, it is quite clear that similar types of determinations made in different
agencies are being made by different types of decision makers. For example, disability benefits
adjudications at the Social Security Administration are handled by ALJs; at the Department of
Veterans Affairs, AJs adjudicate similar types of cases. Moreover, in some contexts, non-ALJ
adjudicators preside over cases in which extremely important issues of personal liberty are
potentially at stake, such as deportation proceedings and security clearance cases.
The uniform structure established by the APA for on-the-record hearings and for
qualifications of presiding officers serves to provide a consistency that helps furnish legitimacy
and acceptance of agency adjudication. A rationalized system of determining when ALJs should
be used would encourage uniformity not only in procedure, and in the qualifications of the initial
decider, but in adjudication of similar interests. The Conference, therefore, recommends that
Congress consider the conversion of AJ positions to ALJ positions in certain contexts. While the
Conference does not identify specific types of cases for which such conversion should be made,
it proposes a series of factors for Congress to consider in making such determinations; these
same factors should also apply when Congress creates new programs involving evidentiary
hearings.
One critical factor is the nature of the interest being adjudicated. The separation of functions
mandated by the APA as well as the selection criteria designed to ensure the highest quality
A-7

adjudicators, are of particular value in situations where the most important interests are at stake.
Generally speaking, a hearing that is likely to involve a substantial impact on personal liberties
or freedom, for example, is one where use of an ALJ likely would be appropriate. Similarly,
cases that could result in an order carrying with it a criminal-like finding of culpability,
imposition of sanctions with a substantial economic effect (such as large monetary penalties or
some license revocations),363 or a determination of discrimination under civil rights laws (unless
there is an opportunity for a de novo hearing in court) represent categories of proceedings that
may call for ALJ use. This characterization should be done for types of cases rather than for
particular cases.
Another factor to consider is whether the procedures established by statute or by rule for cases
heard and decided are, or would be, substantially equivalent to APA formal hearings. In such
cases, the additional uniformity that would derive from making the cases formally subject to 5
U.S.C. §§554, 556, and 557 would argue in favor of ALJs.
ALJs are required to be lawyers. Some AJs who decide cases are not lawyers, but have other
needed specialized expertise. For example, certain adjudicators at the Nuclear Regulatory
Commission are physicists or engineers who participate on multi-member boards. In determining
whether it is appropriate to use ALJs in particular types of cases, Congress should consider
whether the benefits of using ALJs are outweighed by the benefits of having other expertise
brought to bear. It should also consider whether lawyers serving with nonlawyers on decision
panels should be ALJs.
A final consideration, particularly in the context of considering conversion of existing AJ
positions to ALJ positions, is the extent to which the current adjudicators closely approximate
ALJs in their decisional independence, the criteria for their selection, or their compensation and
experience levels. If existing AJs are functioning well and do not approach parity with ALJs on
these criteria, there may be no need to make the conversion. On the other hand, if they closely
match ALJs on these factors, uniformity interests may weigh in favor of conversion.
Although none of these factors is necessarily intended to be determinative, the more that these
factors weigh in favor of ALJ status for the decision maker, the more appropriate it is for
Congress to mandate such status. It should be noted, however, that these recommendations are
not intended to be seen as encouraging increased formalization of administrative adjudicatory
processes.
In situations where Congress does convert AJ positions to ALJ positions, those AJs who can
satisfy OPM eligibility qualifications should be eligible for immediate appointment as ALJs.
Thus, only those existing AJs meeting the standards for ALJ appointment would become ALJs,
but they would not be required to go through the competitive selection process.
Historically, OPM has had responsibility to review and rule on agency requests for additional
ALJ positions. In the past, when there were government-wide limits on “supergrade” positions,
which included ALJs, this oversight role served a purpose. Those limits no longer exist, and it is
no longer necessary for OPM to participate in this process. Agencies should be free, within their

363

Grant or contract disputes would not fall within this category, unless a monetary penalty was involved.

A-8

normal resource allocation constraints, to determine for themselves whether they need more or
fewer ALJs.
ALJ Selection
The selection process for ALJs has been administered by OPM (and its predecessor
agency) since 1946. OPM develops the criteria for selection, accepts applications for the register
of eligibles, and rates the applicants on the basis of their experience as described in a lengthy
statement prepared by the applicant, a personal reference inquiry, a written demonstration of
decision-writing ability, and a panel interview. The scores from this process determine an
applicant’s rank on the register of eligibles. Because OPM has historically considered ALJs as
being in the competitive service, OPM follows the statutory requirements for filling vacancies.
Thus, OPM rates and ranks eligibles on a scale from 70 to 100, and when an agency seek to fill a
vacancy, OPM certifies the top three names on the register to that agency. In practice, only
applicants with scores from 85 to 100 have been certified.
The Veterans’ Preference Act, which has historically applied to most civil service hiring, is
applicable to selection of administrative law judges. As applied, veterans deemed qualified for
the preference are awarded an extra 5 points, and disabled veterans are awarded an extra 10
points in their scores. These extra points have had an extremely large impact, given the small
range in unadjusted scores. In addition, under current law, agencies may not pass over a veteran
to hire a nonveteran with the same or lower score on the certificate. As a consequence,
application of the veterans’ preference has almost always been determinative in the ALJ
selection system.
There has been concern about the ALJ selection process, arising from the determinative
impact of veterans’ preference and the very limited selection options available to agencies. In
fact, most agencies in recent years have found ways to circumvent this process somewhat,
primarily by hiring laterally from other agency ALJ offices, or (in those few agencies that hire
substantial numbers of ALJs) by waiting until there are numerous slots to fill at one time, thus
entitling them to a larger certificate of eligibles from OPM.
Despite this circumvention, the application of veterans’ preference to the ALJ selection
process has had a materially negative effect on the potential quality of the federal administrative
judiciary primarily because it has effectively prevented agencies from being able to hire
representative numbers of qualified women candidates as ALJs. There is also some evidence that
application of the veterans’ preference may have adversely affected the hiring of racial
minorities. Thus, agencies are prevented from being able to select the best qualified ALJs for
specific positions from a pool of representative applicants. The Conference recognizes the
general policy of veterans’ preference in Federal hiring reflects a valid social concern,
particularly as it helps those who leave military service enter the Federal civilian workforce. But,
in view of the conflict between this policy and the valid need of Federal agencies to have an
opportunity to select the best qualified ALJs from among representative applicants, the
Conference recommends Congress abolish veterans’ preference in the particular and limited
context of ALJ selection.364 In that connection, it should be noted that in 1978, Congress created
364

The Conference has recommended a similar modification to the veterans’ preference in this context before. See
Conference Recommendation 69-9, 1 CFR 305.69-9 ¶ A(4) (1988).

A-9

a similar narrow exemption for members of the Senior Executive Service. Moreover, there is no
veterans’ preference in the selection for any other Federal judicial position.
The Conference’s recommendation on the selection of ALJs would leave with OPM the
responsibility for preparing the register of eligibles (i.e., for determining the basic qualifications
for the position and rating the applicants). OPM is urged to ensure that all applicants placed on
the register are in fact qualified to fulfill the responsibilities of being an ALJ.
In conjunction with this, however, the recommendation would also expand the choices that
agencies would have in selecting from among those qualified applicants. Under this
recommendation, after OPM rated the applicants, it would compile a register of all applicants
deemed qualified following the final rating process. An agency could request a certificate with
the names of all applicants whose numerical ratings placed them in the highest-ranked 50 percent
of the register. Agencies could also request a certificate containing a smaller number of names or
applicants in a higher percentile. The agency would have the authority to hire anyone on the
certificate.365
In addition, if, following review of the highest-ranked 50 percent, an agency needed to
review additional names to find a suitable candidate, it could request an additional certificate
from OPM. Such an exception should be invoked rarely, and only upon a showing of exceptional
circumstances.
The Conference recognizes that any limitation on the number of qualified candidates on the
certificate, including the “top three” limitation now in place, might be criticized as arbitrary. By
recommending the highest-ranked 50 percent of the applicants OPM has determined to be
qualified, the Conference is attempting to balance two factors. The Conference recognizes the
agencies’ strong interest in having a substantially larger pool of qualified candidates from which
to select ALJs who meet their varying criteria and needs. It also recognizes the importance of
ensuring that such a pool is highly qualified, as measured by a uniform objective rating system.
The Conference believes that its recommendation provides a reasonable balance of these factors.
It provides a pool large enough that agencies should be able to find candidates for ALJ positions
who satisfy their varying and specific needs. At the same time, OPM estimates the top 50 percent
of the register corresponds to those applicants with scores of 85 or better out of 100.
Agencies would also have access to a computerized database that would contain the complete
application files of individual applicants on their certificate, including numerical ratings,
geographical or agency preferences, particular kinds of experience, and veteran status. This
database would allow agencies the option to narrow the list of qualified applicants and focus on
those whom they would like to consider further. For example, an agency could search for all
candidates willing to relocate to New York City, who spoke Spanish, and had ratings in the top
20 percent.
To ensure that the register contains a broad range of qualified applicants, the Conference also
recommends that OPM and hiring agencies expand recruitment of women and minority
applicants for ALJ positions. In addition, because questions have been raised about OPM’s
365

In order to implement this recommendation, Congress would need at a minimum to modify the veterans’
preference to eliminate the provision restricting the passing over of veterans, so agencies would have the ability to
hire any qualified applicant on the certificate.

A-10

current method of assessing litigation experience for the purposes of scoring applicants for ALJ
positions, the Conference recommends OPM review its rating criteria to determine whether they
are appropriate.
For much of the last decade, the register has been closed, thus precluding newly interested
applicants from being considered for ALJ positions. Although OPM deferred reopening the
register pending the outcome of the Conference’s consideration and recommendations, it has
announced the register will be reopened in the spring of 1993. While the Conference’s
recommendations would significantly affect the ALJ selection process, the impact would come
mostly at the end of the process, after OPM has evaluated and rated the new applicants. This
procedure is likely to be a time-consuming one, given the expected large influx of applicants.
Therefore, the Conference supports reopening the application process, so that OPM can begin
rating the candidates now, even though the recommended changes in the later stages have not yet
been implemented. This way, when and if those changes are in place, the updated register will be
readily available. It should be noted, however, the Conference is also recommending OPM
review some of its rating criteria, which would need to be done before it begins rating new
applicants.
OPM has indicated that it has a planned program to expand recruitment of women and
minority applicants for the register. The Conference both encourages OPM to give such a
program a high priority, and recommends OPM and the hiring agencies take steps in particular to
recruit among minority bar associations and other institutions with large numbers of minorities
or women.
The Conference’s view is that implementing these recommendations will provide agencies the
opportunity to select ALJs from a broad range of highly qualified candidates and to hire the best
applicants from a representative register.
ALJ Evaluation and Discipline
At present, ALJs, virtually alone among Federal employees, are statutorily exempt from any
performance appraisal. Although agencies may seek removal or discipline of ALJs “for good
cause” by initiating a formal proceeding at the MSPB, the Board has applied standards that have
strictly limited the contexts in which such actions may successfully be taken against an ALJ. For
example, agency actions premised on low productivity have never been successful before the
Board.
The Conference recognizes the importance of independence for ALJs. Their role under the
APA as independent fact finders requires they be protected from pressure in making their
decisions. There can be a tension, however, between this independence and the agency’s role as
final policymaker, including the need for consistency of result and political accountability.
Moreover, agencies have a legitimate interest in being able to manage their employees, including
ALJs, in order to ensure the adjudicatory system is an efficient and fair one.
The Conference, therefore, recommends that a system of review of ALJ performance be
developed. Chief ALJs would be given the responsibility to coordinate development of case
processing guidelines, with the participation of other agency ALJs, agency managers and others.
These guidelines, which would address issues such as ALJ productivity and step-by-step time
A-11

goals,366 would be one of the bases upon which Chief ALJs would conduct regular (e.g., annual)
performance reviews. Judicial comportment and demeanor would be another basis for review.
Another factor on the list of bases for performance review, which list is not intended to be
exclusive, would be the existence of a clear disregard of, or pattern of non-adherence to, properly
articulated and disseminated rules, procedures, precedents and other agency policy. Such
performance review systems need not involve quantitative measures or specific performance
levels, but they should provide meaningful and useful feedback on performance.367
Conversely, ALJs should also have a mechanism for dealing with legitimate concerns about
improper agency infringement of, or interference with, their decisional independence. Under the
Conference’s recommendation, each agency employing ALJs should set up a system for
receiving and investigating allegations of such activity by agency management officials and.
where warranted, referring them to the appropriate authorities for action.368 OPM would have
oversight responsibility, and could, upon request by an ALJ or at its own discretion, review an
agency’s response to such allegations, and recommend appropriate further action.
Under the Conference recommendation, the Chief ALJs’ responsibilities would also include
developing ALJ training and counseling programs designed to enhance professional capabilities
and to remedy individual performance deficiencies, and, in appropriate cases, issuing reprimands
or recommending disciplinary action.369
Recently, attention has been focused on allegations of prejudice against certain classes of
litigants by some ALJs.370 While there is no known evidence that such a problem is widespread,
the Conference’s view is it is important to have a mechanism for handling complaints or
allegations relating to ALJ misconduct, including allegations of bias or prejudice. The
Conference, therefore, recommends that Chief ALJs, either individually or through an ALJ peer
review group, receive and investigate such complaints or allegations, and recommend
appropriate corrective or disciplinary actions. To the extent practicable, such investigation and
the processing of any corrective or disciplinary recommendation should be expedited to protect
affected interests and create public confidence in the process. Where appropriate, consensual
resolutions are encouraged. The Conference also recommends agencies publicize the existence of
their complaint procedures, in published rules and procedures or in some other appropriate
fashion, and inform complainants in a timely manner of the disposition of their complaints.
The Conference is also recommending OPM assign the various responsibilities relating to
ALJs to a specific unit within that agency. Such a unit would, among other things, have
responsibility for overseeing personnel, hiring and performance matters involving Chief ALJs,
366

See Conference Recommendation 86-7, “Case Management as a Tool for Improving Agency Adjudication,” 1
CFR 305.86-7 (1992), at ¶2.
367
Many states now use performance reviews for their state court judges and ALJs. The performance of Federal
magistrate-judges is evaluated as a condition of reappointment. Even some Federal courts are beginning to
experiment with evaluation of judges’ performance.
368
Such authorities might include OPM for certain lesser sanctions, and the Office of Special Counsel or MSPB in
more serious cases.
369
See 43 Op. Att’y Gen. 1 (1977) (discussing certain limitations on agency’s authority to reprimand ALJs).
370
See, e.g., U.S. GAO, Social Security: Racial Difference in Disability Decisions Warrants Further Investigation,
GAO/HRD-92-56 (April 1992). Cf. Ninth Circuit, Gender Bias Task Force, Preliminary Report (Discussion Draft)
(July 1992) at 93-103 (discussing gender bias issues relating to disability determinations).

A-12

thus providing them additional insulation from agency pressures. Because of the increased
importance of the position of Chief ALJ under this proposal, Congress also should consider
making the position subject to a term appointment, as it has done for Chief Judges of United
States District Courts.
The Conference also recommends proceedings before the Merit Systems Protection Board
involving charges against ALJs be heard by a three-judge panel. Judging administrative law
judges is a sensitive process, and the benefit of collegial decision making in this context seems
worth the added cost. The panel should be selected from a pool of ALJs. Currently, MSPB has
only one ALJ. So long as this is the case, the pool should consist of ALJs from other agencies,
but the panel in a particular case should not involve ALJs from the same agency as the
respondent ALJ.
Policy Articulation
As discussed, the APA model of agency decision making is based on the use of independent
ALJs to find facts and to apply agency policy to those facts. This system requires granting ALJs
independence as fact finders, but it also must ensure agency policymakers are able to establish
policies in an efficient manner for application by ALJs in individual cases. The methods
available to agencies include promulgation of rules of general applicability, the use of a system
of precedential decision,371 or other appropriate practices, such as proper use of policy
statements.372 Such policy statements must be properly disseminated.
Where the agency has made its policies known in an appropriate fashion, ALJs and AJs are
bound to apply them in individual cases. Policymaking is the realm of the agency, and the ALJ’s
(or AJ’s) role is to apply such policies to the facts the judge finds in an individual case.
The Concept of an ALJ Corps
There has been over the last decade considerable discussion of the concept of an ALJ corps.
Although there have been differences among the specific proposals, the concept in general
includes separating ALJs from individual agencies, and placing them in a new, separate agency.
Recent legislative proposals provided, among other things, that new ALJs would be selected by a
chief judge of the corps, and that ALJs would be divided into several general subject matter
divisions (such as health and benefits; safety and environment; and communications, public
utility and transportation regulation).373
The Conference discussed these recent legislative proposals to establish a centralized ALJ
corps as a means of handling some of the issues addressed in this recommendation. Some of
these recommendations are independent of such proposals; others are inconsistent with them.
The Conference concluded there is no basis at this time for structural changes more extensive
than those proposed here.

371

See Conference Recommendation 89-8, “Agency Practices and Procedures for the Indexing and Public
Availability of Adjudicatory Decisions,” 1 CFR 305.89-8 (1992) ¶1 at n. 2.
372
See Conference Recommendation 92-2, “Agency Policy Statements,” 57 FR 30101, 30103 (1992), to be codified
at 1 CFR 305.92-2.
373
See S. 826 and H.R. 3910, 102d Cong.

A-13

Recommendation
I. Congressionally Mandated Use of ALJs and AJs374
A. When Congress considers new or existing programs that involve agency on-the-record
adjudications, it should seek to preserve the uniformity of process and of qualifications of
presiding officers contemplated by the APA, by providing for the use of administrative law
judges (ALJs) in all appropriate circumstances.375 To further this goal, Congress should consider
converting certain existing administrative judge (AJ) positions376 to ALJ positions. In
determining the appropriateness of converting existing AJ positions to ALJ status and of
requiring the use of ALJs in particular types of new adjudications, Congress should consider the
following factors, if present, as indicia to weigh in favor of requiring ALJ status:
1. The cases to be heard and decided are likely to involve:
a. Substantial impact on personal liberties or freedom;
b. Orders that carry with them a finding of criminal-like culpability;
c. Imposition of sanctions with substantial economic effect; or
d. Determination of discrimination under civil rights or other analogous laws.
2. The procedures established by statute or regulation for the cases heard and decided are, or
would be, the functional equivalent of APA formal hearings.
3. The deciders in such cases are, or ought to be, lawyers--taking into consideration the
possibility that some programs might require other types of specialized expertise on the part of
adjudicators or on panels of adjudicators.
4. Those incumbent AJs in such cases who are required to be lawyers already meet standards
for independence, selection, experience, and compensation that approximate those accorded to
ALJs.
B. When Congress determines it should require ALJs to preside over hearings in specific
classes of existing federal agency adjudications at which ALJs do not now preside, it should
specify that those AJs presiding over such proceedings at that time who can satisfy the Office of
Personnel Management’s eligibility qualifications for ALJs be eligible for immediate
appointments as ALJs.
C. Congress should provide that OPM should no longer be responsible for reviewing and
ruling on agency requests for additional ALJ positions. Decisions relating to an agency’s need

374

The recommendations in this Part I are interdependent with those of Parts II and III urging improvements in the
selection and evaluation processes for ALJs.
375
This recommendation is not intended to be seen as encouraging increased formalization of administrative
adjudicatory processes.
376
The term “administrative judge,” as used here, includes non-ALJ hearing officers, whatever their title, who
preside at adjudicatory hearings.

A-14

for more or fewer ALJ positions should be made by the individual agencies through the normal
resource allocation process.
II. ALJ Selection
A. Congress should authorize where required, and OPM should establish, a. process for the
selection of qualified ALJs by federal agencies that contains the following elements:
1. OPM should continue to administer the process for determining whether applicants are
qualified to be on the register of those eligible for ALJ positions and for rating such applicants.
OPM should ensure that all applicants appearing on the register are in fact qualified to fulfill the
duties of an ALJ under applicable law, including that they have the capability and willingness to
provide impartial, independent fact finding and decision making. To the extent that this may
require revising the examination process, OPM should make the appropriate changes.
2. Those applicants determined by OPM to be qualified should be listed on the register with
their numerical scores noted. Agencies seeking to fill ALJ positions should be allowed to request
a certificate containing the names of those applicants whose numerical ratings place them in the
highest-ranking 50 percent of the register of eligible applicants. Agencies should have the
discretion to request a certificate with a smaller number of percentage of the register. Agencies
should also be given access to a computerized database containing the complete application files
of those applicants on the certificate.
3. A hiring agency should be permitted to select any applicant from the certificate who, in the
agency’s opinion, possesses the qualifications for the particular position to be filled. An agency
may request that OPM provide an additional number of names upon a showing of exceptional
circumstances.
B. OPM and the hiring agencies should give a high priority to expanding recruitment of
women and minority applicants for ALJ positions. OPM also should review its ALJ application
criteria to determine whether its current method of assessing litigation experience is appropriate.
C. OPM immediately should implement Parts II (A)(1) and (B), which may involve revisions
to the examination or scoring process. Pending implementation of the other recommendations in
this Part, OPM should open the register application process as soon as possible, and keep it open
continuously.
D. In order to implement the proposals in paragraphs II (A) and (B) above, Congress should
abolish the veterans’ preference in ALJ selection.
III. ALJ Evaluation and Discipline
Congress should authorize, where necessary, and OPM and the agencies that employ ALJs
should establish, the following processes for assisting ALJs and the agencies that employ them to
carry out their responsibilities to the public and to individual parties:
A. Organization
1. OPM should assign a specific unit the responsibility for (a) overseeing those matters
concerning the selection of ALJs, (b) overseeing all personnel, hiring and performance matters
A-15

that involve Chief ALJs, (c) acting on allegations of improper interference with decisional
independence of ALJs, (d) conducting regular performance reviews of Chief ALJs, and (e)
periodically publishing reports on the effectiveness with which OPM’s responsibilities are
performed and seeking recommendations as to how the program may be improved.
2. Each agency that employs more than one ALJ should designate a Chief ALJ, who is given
the responsibility within the agency to do the tasks assigned to the Chief ALJ under this Part
III.377
3. OPM should provide guidance and assistance to aid Chief ALJs fulfilling the
responsibilities given to them under this Part III.
4. OPM and the agencies should ensure that Chief ALJs are insulated from improper agency
influence when carrying out the responsibilities described in this Part III.378
B. Evaluation and Training
Chief ALJs should be given the authority to:
1. Develop and oversee a training and counseling program for ALJs designed to enhance
professional capabilities and to remedy individual performance deficiencies.
2. Coordinate the development of case processing guidelines, with the participation of other
agency ALJs, agency managers and, where available, competent advisory groups.
3. Conduct regular ALJ performance reviews based on relevant factors, including case
processing guidelines, judicial comportment and demeanor, and the existence, if any, of a clear
disregard of or pattern of non-adherence to properly articulated and disseminated rules,
procedures, precedents, and other agency policy.
4. Individually, or through involvement of an ALJ peer review group established for this
purpose, provide appropriate professional guidance, including oral or written reprimands, and,
where good cause appears to exist, recommend disciplinary action against ALJs be brought by
the employing agency at the Merit Systems Protection Board (MSPB) based on such
performance reviews.
C. Complaints About ALJs
Each agency that employs ALJs should set up a system for receiving and evaluating
complaints or allegations of misconduct by an ALJ, including bias or prejudice.
1. The Chief ALJ in each agency, individually or through involvement of an ALJ peer review
group established for this purpose, should be given responsibility for receiving and investigating
such complaints.
377

In agencies with large numbers of ALJs, the Chief ALJ might appropriately delegate some or all such
responsibility to deputy or regional chief ALJs.
378
Congress also should consider making the position of Chief ALJ subject to a term appointment. This suggestion
does not result from a finding by the Conference that any number of current Chief ALJs are not functioning
effectively. The Conference notes, however, that Chief Judges of United States District Courts are subject to term
appointments and believes it is appropriate to consider whether a similar limitation should apply to Chief ALJs.

A-16

2. If a Chief ALJ determines that ALJ misconduct occurred, the Chief ALJ should
recommend the agency take appropriate corrective action, or, in appropriate cases, recommend
that disciplinary action against the ALJ be brought by the agency at the MSPB.
3. If a Chief ALJ determines further investigation by another authority is warranted, he or she
should refer the case to that authority.
4. Each agency should make known to interested persons in an appropriate fashion the
existence of such complaint procedure.
5. Where allegations of misconduct implicate a Chief ALJ, they should be referred to OPM
for such investigation and recommended action.
6. Complainants should be given notice of the disposition of their complaints.
D. Complaints by ALJs
Each agency that employs ALJs should set up a system for receiving and investigating
allegations of unlawful agency infringement on ALJ decisional independence or other improper
interference in the fulfillment of ALJ responsibilities. Such a system should be subject to OPM
oversight. Where investigation reveals the probable occurrence of such an impropriety, the
matter should be referred to the appropriate authority for review and recommended action
designed to remedy the situation and prevent recurrence, including the issuance of oral or written
reprimands and other appropriate sanctions.
E. MSPB Panels
MSPB should assign cases involving charges against ALJs to a three-judge panel of ALJs
drawn from a pool. No judge on the panel should be from the same agency as the respondent
ALJ.
IV. Policy Articulation
To ensure that ALJs and affected persons are aware of their responsibilities, agencies should
articulate their policies through rules of general applicability, a system of precedential decisions,
or other appropriate practices.379 Congress, the President, and the courts should encourage such
policy articulation.
V. The Concept of an ALJ Corps
Congress should not at this time make structural changes more extensive than those proposed
here, such as those in recent legislative proposals to establish a centralized corps of ALJs.

379

See generally Conference Recommendation 71-2, “Articulation of Agency Policies,” 1 CFR 305.71-2 (1992);
Conference Recommendation 87-7, “A New Role for the Social Security Appeals Council,” 1 CFR 305.87-7 (1992);
Conference Recommendation 89-8, “Agency Practices and Procedures for the Indexing and Public Availability of
Adjudicatory Decisions,” 1 CFR 305.89-8 (1992); Conference Recommendation 92-2, “Agency Policy Statements,”
57 FR 30101, 30103 (1992), to be codified at 1 CFR 305.92-2.

A-17

Citations:
57 FR 61760 (December 29, 1992)
__ FR _____ (2011)
1992 ACUS 28 (vol. 1)

A-18

APPENDIX C: COST ELEMENTS: VALUES & SOURCES
1.

Cost Elements: Summary Table
Cost Elements

Value(s)

Sources & Notes

Adjudicators:

EEOC Adjudicators (AJ
& ALJ) – Total Number

95

EEOC Adjudicators (AJ
& ALJ) – Projected
Growth Rate

Low=(-7); Medium=No
Change; High=(+16)

AJ Pay Distribution

GS-13 (6%); GS-14
(93%); GS-15 (1%)
Low=Step 4;
Medium=Step 7;
High=Step 10

ALJ Pay Distribution

See Appendix D
(distribution of ALJs
among AL-3/A, AL-3/C,
AL-3/F & AL-2 pay rates
under L/M/H scenarios)

Base value for number of EEOC adjudicators derived from
total of number of full-time EEOC AJs (89) plus full-time
equivalents (FTEs) of hours worked by part-time EEOC
AJs (6). See Summary EEOC AJ Data (2008 - 2013)
provided to ACUS (Nov. 4, 2013); OMB Circular A-76
(2003) (providing FTE conversion factor of 1,776 annual
hours).
Medium scenario assumes no change in the number of
EEOC adjudicators over the 10-year term. The low and
high scenarios respectively assume a modest net decline (7) or increase (+16) in adjudicators over the same period.
For the high scenario, the projected number of adjudicators
as of Year 10 (i.e., 111) approximates the total annual
number of EEOC adjudicators (full-time judges + FTEs of
part-time judges) in the 2008 - 2011 period.
For grade distribution of AJs, see Summary EEOC AJ
Data (2008 - 2013) provided to ACUS (Nov. 4, 2013).
With respect to within-grade steps, due to data limitations
and need to simplify the cost modeling process, the pay
distribution of adjudicators within GS Grades 13, 14, and
15 is assumed as follows for each of the three cost
scenarios: Low=Step 4; Medium=Step 7; High=Step 10.
The step levels for each cost scenario are drawn from
EEOC-provided supplementary grade/step data for AJs for
FYs 2008 - 2013. See Supplementary EEOC Data (2008 2013) provided to ACUS (Feb. 11, 2014); see also
Appendix C.2 – Cost Estimates: Recent Trends in AJ Pay
(FY2008 – FY2013) (graphical depiction of supplementary
EEOC data).
Estimated ALJ pay distribution within the AL-3 level is
modeled to reflect relative GS grade distribution of EEOC
AJs in recent years (2008 - 20013). See EEOC AJ Data
provided to ACUS (Nov. 4, 2013). The “high” scenario
largely mirrors relative pay distribution of EEOC AJs
among entry-level (AL-3/A = 6%), mid-range (AL-3/C =
93%), and senior (AL-3/F=1%) pay levels. The “low”
scenario generally inverts the pay distributions in the high
scenario (94%/6%/0%). The “medium” scenario strikes a
middle-ground approach (60%/39%/1%) between the
“high” and “low” scenarios. With respect to ALJ
management, the low estimate assumes one Chief ALJ
(AL-2), while the medium and high estimates additionally
assume one or two Regional Chief ALJs (AL-2)
respectively.

A-19

Cost Elements

Value(s)

Sources & Notes

See Appendix B (GS-13,
GS-14 & GS-15 basic
pay)
See Appendix B (AL-3/A,
AL-3/C, AL-3/F & AL-2
basic pay)

See Exec. Order 13,641 (April 5, 2013), Schedule 1; OPM,
“Salary Table 2013-GS” (2013).

Salaries:
GS Basic Pay Rates

ALJ Basic Pay Rates

GS Locality Pay Rates

See Appendix B (GS-13,
GS-14 & GS-15 basic
pay)

ALJ Locality Pay Rates

See Appendix B (AL-3/A,
AL-3/C, AL-3/F & AL-2
basic pay)

GS/ALJ Pay (Projected
Growth Rates - Basic &
Locality Pay)

Low=1.5% (Triennial);
Medium=1.5% (Biennial);
High=1.5% (Annual)

See Exec. Order 13,641 (April 5, 2013), Schedule 10;
OPM, “Salary Table No. 2013-ALJ” (2013).
Locality pay is based on median of locality pay for
applicable GS grades/steps in pay areas (i.e., counties or
other jurisdictions) in which EEOC district or field offices
are currently located. See Exec. Order 13,641 (April 5,
2013), Schedule 9; OPM, “GS 2013 Locality Pay Tables”
(2013).
Locality pay is based on median of locality pay for
applicable ALJ rate/level in pay areas (i.e., counties or
other jurisdictions) in which EEOC district or field offices
are currently located. See OPM, “2013 Locality Rates of
Pay Administrative Law Judges” (2013).
Projected federal pay growth rate (medium scenario) is
based on average growth rates in recent years (2008 2013). “High” and “low” scenario growth rates
respectively represent one year less or more between pay
increases relative to “medium” scenario. Pay increases
apportioned between basic pay (1%) and locality pay
(0.5%). See, e.g., OPM, “Salary Table 2013-GS” (2013);
Congressional Research Service, Pay and Pension
Increases Since 1969 (Jan. 2010).

Benefits:
FERS

11.9% basic pay

FEGLI

33% of “Basic Insurance
Amount” (.75¢ per $1,000
basic pay)

TSP - Basic

1% basic pay

TSP - Matching
(Statutory Agency
Contribution)

agency matching
contribution up to 5%
basic pay

TSP - Matching
(Projected Agency
Matching Contribution)

Low=1.9%;
Medium=2.25%;
High=2.63%

See Congressional Research Service, RL30023, Federal
Employees' Retirement System: Budget and Trust Fund
Issues 5 (June 2013); OPM, Benefits Administration Letter
No. 11-304 (June 2011).
See OPM, FEGLI Program Booklet for Federal Employees
6 (Aug. 2004).
See Congressional Research Service, RL30387, Federal
Employees' Retirement System: The Role of the Thrift
Savings Plan 5 (March 2013).
See Congressional Research Service, RL30387, Federal
Employees' Retirement System: The Role of the Thrift
Savings Plan 5 (March 2013).
The “medium” estimate for agency matching contribution
is based on the weighted historical average of recent
deferral rates by participating employees covered by the
Federal Employee Retirement System. See Federal
Retirement Thrift Investment Board, Participant Behavior
and Demographics: Analysis of 2006 - 2010 (2013).
“Low” and “high” values represent respectively slightly
lower and higher participation/deferral rates (by about 5%)
relative to “medium” scenario.

A-20

Cost Elements

Value(s)

Sources & Notes

Other Costs:
OPM ALJ Fee

$1,633

OPM ALJ Fee
(Projected Growth
Rates)

Low=5%; Medium=7%;
High=9%

AJ Performance (Cash)
Awards

Low = 4-yr. weighted avg.
(biennial); Medium = 4-yr.
weighted avg. (2 out of 3
years); High = 4-yr.
weighted avg. (annual)

See Social Security Administration, Office of Inspector
General, A-05-12-22144, Interagency Agreements with
Office of Personnel Management for ALJ Services 6 tbl. 1
(Feb. 2013).
Projected growth rate (“medium” scenario) represents
median annual increase in OPM ALJ fees in recent years
(2005 - 2012). See SSA OIG, Interagency Agreements with
OPM for ALJ Services 6 tbl. 1 (Feb. 2013). Growth rates
for “low” and “high” scenarios represent respectively 2%
lower and 2% higher annual fee increase relative to
“medium” scenario.
EEOC did not grant any performance (cash) awards to AJs
in FY 2012 and FY 2013; however, the agency did grant
such awards in FYs 2008 - 2011. See Summary EEOC AJ
Awards Data (2008 - 10) provided to ACUS (Feb. 11,
2014). It is not known when, and to what extent, EEOC
will resume granting cash awards to AJs. The Medium
scenario assumes cash awards will resume in Year 1, and
continue to be awarded two out of every 3 years thereafter.
Low scenario assumes cash awards will resume in Year 2,
and continue to be awarded biennially thereafter. High
scenario assumes cash awards will resume in Year 1 and
continue to be awarded annually. Amount of performance
(cash) awards based on 4-year weighted average for cash
awards collectively granted to AJs on an annual basis in
FYs 2008 through 2011. [Note: By law, ALJs are
prohibited from receiving performance or incentive
awards.]

A-21

2.

Cost Elements: Recent Trends in AJ Pay

Recent Trends in AJ Pay by Grade and Step (FY2008 - FY2013)
35
R² = 0.9059

Number of AJs (Annual)

30
25
20
15

R² = 0.8842

10
5
0

FY2008

FY2009

FY2010

FY2011

FY2012

FY2013

Grade/Step Pay Distribution by Fiscal Year
12-1

12-7

13-1

13-2

13-3

13-4

13-5

13-6

13-7

13-8

13-10

14-1

14-2

14-3

14-4

14-5

14-6

14-7

14-8

14-9

14-10

15-6

Poly. (14-8)

Poly. (14-10)

(Note: Trend lines for GS-14/8 (red) and GS-14/10 (purple) based on formulae using second order polynomials. R-squared values depict the degree of “fit”
between the trend lines and data, with values at or near “1” showing the greatest reliability.)

A-22

APPENDIX D: FEDERAL PAY RATES: CURRENT & PROJECTED GROWTH RATES

2013 General Schedule (GS) Basic Pay Rates

2013 General Schedule (GS) Locality Pay Rates
(Median of US Jurisdictions with EEOC Offices)

Step 4

Step 7

Step 10

GS 13

$78,841

$86,008

$93,175

GS 13

$95,137.00

GS 14

$93,166

$101,635

$110,104

GS 14

$112,423.00 $122,643.00 $132,862.00

GS 15

$109,591

$119,554

$129,517

GS 15

$132,243.00 $144,266.00 $155,500.00

2013 ALJ Basic Pay Rates

Step 4

Step 7

$103,786.00 $112,434.00

2013 ALJ Locality Pay Rates
(Median of US Jurisdictions with
EEOC Offices)

AL-3A

$103,900

AL-3A

$125,501

AL-3C

$119,900

AL-3C

$144,827

AL-3F

$143,700

AL-3F

$165,300

AL-2

$151,800

AL-2

$165,300

Federal Pay (Locality & Basic) – Projected
Growth Rates (Year 1 - Year 10)
1.5%
triennially
Low
1.5%
biennially
Medium
1.5%
annually
High

A-23

Step 10

APPENDIX E: EEOC ADJUDICATORS: PROJECTED GROWTH RATES
Projected EEOC Adjudicator Growth Rates
(Year 2 - Year 10)
High

Projected ALJ Pay Distribution
(Year 1)

Annual (+1) & Biennial (+2)

Low

Medium

High

Medium

No change

AL-3A

92%

60%

6%

Low

Biennial (-1)

AL-3C

7%

37%

90%

AL-3F

0%

1%

1%

AL-2

1%

2%

3%

Projected Number of EEOC Adjudicators

Low

Medium

Current (2013)

--

95

--

Year 1

93

95

98

Year 2

92

95

99

Year 3

92

95

101

Year 4

91

95

102

Year 5

91

95

104

Year 6

90

95

105

Year 7

90

95

107

Year 8

89

95

108

Year 9

89

95

110

Year 10

88

95

111

A-24

High

APPENDIX F: EEOC ADJUDICATORS: OTHER COSTS

Projected EEOC AJ Performance (Cash) Awards
ANNUAL AWARD AMOUNTS
All
Scenarios

Historical 4-yr. Weighted Average for
EEOC AJ Awards
(FY 2008 - FY 2011)
AWARD FREQUENCY

High

Annual

Medium
Low

2 out of every 3 years
Biennial

OPM Pro Rata ALJ Fees – Projected Growth
Rates (Year 1 - Year 10)
5%
7%
9%

Low
Medium
High

A-25

APPENDIX G: PROJECTED PAY DISTRIBUTION OF EEOC ADJUDICATORS: ALL SCENARIOS
Projected AJ GS Grade/Step Distribution (Y1 - Y10) (Low)
Y1

Y2

Y3

Y4

Y5

Y6

Y7

Y8

Y9

Y10

GS-13

6

5

5

5

5

5

5

5

5

5

GS-14

86

86

86

85

85

84

84

83

83

82

GS-15

1

1

1

1

1

1

1

1

1

1

Projected AJ GS Grade/Step Distribution (Y1 - Y10) (Medium)
Y1

Y2

Y3

Y4

Y5

Y6

Y7

Y8

Y9

Y10

GS-13

6

6

6

6

6

6

6

6

6

6

GS-14

88

88

88

88

88

88

88

88

88

88

GS-15

1

1

1

1

1

1

1

1

1

1

Projected AJ GS Grade/Step Distribution (Y1 - Y10) (High)
Y1

Y2

Y3

Y4

Y5

Y6

Y7

Y8

Y9

Y10

GS-13

6

6

6

6

6

6

6

6

6

7

GS-14

91

92

94

95

97

98

100

101

102

103

GS-15

1

1

1

1

1

1

1

1

1

1

ALJ ~ Projected Level/Rate Distribution (Y1 - Y10) (Low)
Y1

Y2

Y3

Y4

Y5

Y6

Y7

Y8

Y9

Y10

AL-3A

87

47

11

6

6

6

6

6

6

6

AL-3C

5

43

79

77

69

61

53

47

42

37

AL-3F

0

1

1

7

15

22

30

35

40

44

AL-2

1

1

1

1

1

1

1

1

1

1

ALJ ~ Projected Level/Rate Distribution (Y1 - Y10) (Medium)
Y1

Y2

Y3

Y4

Y5

Y6

Y7

Y8

Y9

Y10

AL-3A

57

27

5

5

4

4

5

5

4

4

AL-3C

35

58

73

62

53

43

32

30

29

27

AL-3F

1

8

15

26

36

46

56

58

60

62

AL-2

2

2

2

2

2

2

2

2

2

2

Projected ALJ Level/Rate Distribution (Y1 - Y10) (High)
Y1

Y2

Y3

Y4

Y5

Y6

Y7

Y8

Y9

Y10

AL-3A

6

5

4

5

3

3

4

4

3

3

AL-3C

88

72

57

39

25

15

14

13

14

14

AL-3F

1

19

37

55

73

84

86

88

90

91

AL-2

3

3

3

3

3

3

3

3

3

3

A-26

APPENDIX H: SAMPLE ANNUAL (INCREMENTAL) COST EQUATION

In simplified form, the incremental cost equation for any given year (i.e., Year 1 - Year 10) is as follows:

Incremental Costs of Using ALJs in Year X =
[(# of ALJs x Locality Pay x L/M/H Projected Growth Rate) + (# of ALJs x FERS benefits) + (# of ALJs x FEGLI benefits) + (# of
ALJs x TSP-Basic benefits) + (# of ALJs x TSP-Matching benefits x L/M/H Projected Deferral Rate) + (# ALJs x OPM ALJ Fee x
L/M/H Growth Rate)]
minus
[(# of AJs x Locality Pay x L/M/H Growth Rate) + (# of AJs x FERS benefits) + (# of AJs x FEGLI benefits) + (# of AJs x TSP-Basic
benefits) + (# of AJs x TSP-Matching benefits x L/M/H Projected Deferral Rates) + (AJ Performance (Cash) Awards)]

A-27

APPENDIX I: ANNUAL COSTS: HIGH, PRIMARY, AND LOW SCENARIOS AT 3% AND 7% DISCOUNT RATES

Annual Costs (Low Scenario)
Year 1
(2015)

Year 2
(2016)

Year 3
(2017)

Year 4
(2018)

Year 5
(2019)

Year 6
(2020)

Year 7
(2021)

Year 8
(2022)

Year 9
(2023)

Year 10
(2024)

Total Incremental
Costs

$1,633,488

$2,440,397

$3,283,939

$3,482,811

$3,731,501

$3,827,439

$4,147,130

$4,144,807

$4,319,632

$4,366,053

Discount Rate - 3%

$1,633,488

$2,367,185

$3,086,903

$3,204,186

$3,321,035

$3,291,598

$3,483,589

$3,357,293

$3,412,509

$3,361,861

Discount Rate - 7%

$1,633,488

$2,269,569

$2,857,027

$2,855,905

$2,835,940

$2,717,482

$2,778,577

$2,569,780

$2,505,387

$2,357,669

Year 1
(2015)

Year 2
(2016)

Year 3
(2017)

Year 4
(2018)

Year 5
(2019)

Year 6
(2020)

Year 7
(2021)

Year 8
(2022)

Year 9
(2023)

Year 10
(2024)

Total Incremental
Costs

$1,115,002

$1,953,573

$2,677,696

$2,911,502

$3,206,586

$3,510,885

$3,719,137

$3,780,874

$3,931,831

$3,979,601

Discount Rate - 3%

$1,115,002

$1,894,966

$2,517,034

$2,678,582

$2,853,862

$3,019,361

$3,124,075

$3,062,508

$3,106,147

$3,064,293

Discount Rate - 7%

$1,115,002

$1,816,823

$2,329,595

$2,387,432

$2,437,006

$2,492,729

$2,491,822

$2,344,142

$2,280,462

$2,148,984

Year 1
(2015)

Year 2
(2016)

Year 3
(2017)

Year 4
(2018)

Year 5
(2019)

Year 6
(2020)

Year 7
(2021)

Year 8
(2022)

Year 9
(2023)

Year 10
(2024)

Total Incremental
Costs

$1,048,256

$1,545,003

$2,062,892

$2,526,909

$3,016,054

$3,276,097

$3,498,851

$3,602,370

$3,764,516

$3,849,326

Discount Rate - 3%

$1,048,256

$1,498,653

$1,939,118

$2,324,757

$2,684,288

$2,817,443

$2,939,035

$2,917,920

$2,973,968

$2,963,981

Discount Rate - 7%

$1,048,256

$1,436,853

$1,794,716

$2,072,066

$2,292,201

$2,326,029

$2,344,230

$2,233,469

$2,183,419

$2,078,636

Annual Costs (Medium Scenario)

Annual Costs (High Scenario)

A-28

APPENDIX J: BREAKDOWN OF ANNUAL COSTS: PRIMARY SCENARIO AT 7% DISCOUNT RATE

Year

Salary

Benefits

Year 1
Year 2
Year 3
Year 4
Year 5
Year 6
Year 7
Year 8
Year 9
Year 10

$832,377
$1,449,948
$1,862,677
$1,942,140
$1,981,780
$1,998,938
$2,022,319
$1,897,294
$1,819,420
$1,716,607

$151,715
$233,564
$290,725
$307,355
$317,930
$323,513
$331,802
$311,714
$300,304
$301,250

Other Costs (AJ
Awards & OPM ALJ
Fees)
$130,910
$133,311
$176,193
$137,938
$137,296
$170,278
$137,700
$135,134
$160,738
$131,128

A-29

Annual Total
$1,115,002
$1,816,823
$2,329,595
$2,387,432
$2,437,006
$2,492,729
$2,491,822
$2,344,142
$2,280,462
$2,148,984

Annual
Costs Per
ALJ
$11,737
$19,124
$24,522
$25,131
$25,653
$26,239
$26,230
$24,675
$24,005
$22,621

APPENDIX K: BREAKDOWN OF ANNUAL COSTS: HIGH SCENARIO AT 7% DISCOUNT RATE

Year

Salary

Benefits

Year 1
Year 2
Year 3
Year 4
Year 5
Year 6
Year 7
Year 8
Year 9
Year 10

$746,249
$1,073,001
$1,372,358
$1,601,927
$1,779,969
$1,799,503
$1,823,134
$1,729,347
$1,676,588
$1,598,405

$160,103
$214,459
$264,438
$305,217
$342,581
$353,496
$342,186
$325,326
$325,333
$300,411

Other Costs (AJ
Awards & OPM ALJ
Fees)
$141,904
$149,393
$157,920
$164,921
$169,651
$173,031
$178,910
$178,797
$181,498
$179,820

A-30

Annual Total
$1,048,256
$1,436,853
$1,794,716
$2,072,066
$2,292,201
$2,326,029
$2,344,230
$2,233,469
$2,183,419
$2,078,636

Annual
Costs Per
ALJ
$10,696
$14,514
$17,769
$20,314
$22,040
$22,153
$21,909
$20,680
$19,849
$18,726

APPENDIX L: BREAKDOWN OF ANNUAL COSTS: LOW SCENARIO AT 7% DISCOUNT RATE

Year

Salary

Benefits

Year 1
Year 2
Year 3
Year 4
Year 5
Year 6
Year 7
Year 8
Year 9
Year 10

$1,277,635
$1,883,415
$2,370,221
$2,400,042
$2,350,150
$2,275,066
$2,302,434
$2,143,609
$2,065,573
$1,959,852

$188,453
$266,541
$328,327
$338,112
$336,405
$330,079
$335,041
$319,233
$309,731
$297,170

Other Costs (AJ
Awards & OPM ALJ
Fees)
$167,400
$119,613
$158,479
$117,750
$149,386
$112,336
$141,102
$106,939
$130,082
$100,647

A-31

Annual Total
$1,633,488
$2,269,569
$2,857,027
$2,855,905
$2,835,940
$2,717,482
$2,778,577
$2,569,780
$2,505,387
$2,357,669

Annual
Costs Per
ALJ
$17,564
$24,669
$31,055
$31,384
$31,164
$30,194
$30,873
$28,874
$28,150
$26,792

APPENDIX M: MSPB ADMINISTRATIVE JUDGE POSITION DESCRIPTION
MSPB—Administrative Judges/Hearing Examiners—Job Duties
If the judge is an attorney-examiner, or AJ, his or her duties are as follows: “The Administrative
Judge’s (AJ) principal duty is to adjudicate appeals. As part of this process, the AJ must perform
the following: Conduct prehearing and status conferences in order to explore the possibility of
settlement and to narrow and simplify the issues in the case; advise the parties with regard to
their respective burden of proof, duties, and responsibilities; oversee the discovery process;
advise the parties with respect to settlement negotiations and provide them with help in
facilitating that process; conduct hearings (including convening the hearing as appropriate,
regulating the course of the hearing, maintaining decorum and excluding any person from the
hearing for good reason); and issue initial decisions. The AJ has significant discretion in
managing his/her caseload in accordance with Board Policy concerning quality, production, and
timeliness. The AJ’s initial decision may form the bases for subsequent precedential Board or
court decisions. Depending upon the result of the case, initial decisions also can have significant
and lasting effects on the careers and retirements of the affected individuals. The above
description of duties represents the position of an Administrative Judge who is at the full
performance level, routinely assigned the most complicated and sensitive cases.”
General Attorney Series (0905)—Grade Range GS-13/15
Source: MERIT SYS. PROT. BD., JOB ANNOUNCEMENT NO. MSPB-EXE-2013-0005 (Sept. 2013),
available at https://www.usajobs.gov/GetJob/ViewDetails/351586400.

A-32

APPENDIX N: ORGANIZATIONAL CHARTS
This appendix includes organizational charts for the following agencies that employ non-ALJ
adjudicators:
1.

Social Security Administration (SSA)

2.

Department of Justice (DOJ)

3.

DOJ’s Executive Office of Immigration Review (EOIR)

4.

Department of Transportation’s (DOT) Office of Hearings

5.

Department of Interior (DOI)—Assistant Secretary of Policy, Management, and
Budget

6.

DOI Office of Hearings and Appeals

7.

Department of Labor (DOL)—Office of the Secretary of Labor

8.

Merit Systems Protection Board (MSPB)

9.

Railroad Retirement Board (RRB)

10.

United States Department of Agriculture (USDA)

11.

USDA’s National Appeals Division (NAD)

A-33

SOCIAL SECURITY ADMINISTRATION
Commissioner
Carolyn W. Colvin*
Executive Secretary,
Office of Executive
Operations
Karena L. Kilgore

February 3, 2014

Deputy Commissioner
Carolyn W. Colvin
Chief of Staff
James A. Kissko
Deputy Chief of Staff
Katherine A. Thornton

Chief
Actuary
Stephen C. Goss
Deputy Chief Actuary,
Office of Short Range
Estimates
Eli N. Donkar

Deputy Chief Actuary,
Office of Long Range
Estimates
Alice H. Wade

Deputy
Commissioner,
Budget, Finance,
Quality, and
Management
Peter D. Spencer
Assistant DC
Elizabeth Reich
Assoc Commsnr,
Office of Financial
Policy and Operations
Carla A. Krabbe

Assoc Commsnr,
Office of Acquisition
and Grants
Seth P. Binstock

Assoc Commsnr,
Office of Facilities and
Supply Management
Christopher Molander*

Assoc Commsnr,
Office of Security
and Emergency
Preparedness
Jonas M. Garland

Directors
Baltimore,
Patricia A. Biggers
Boston,
Christine D. Tebbetts
New York,
Darryl A. Donaldson
Philadelphia,
Diane M. Graboyes
Atlanta,
Robert L. Raines
Chicago,
Mary J. Byrns
Dallas,
Sheena M. Hayes
Kansas City,
Carrie A. Taber
Denver,
Cathy B. Horiuchi
San Francisco,
Darryl R. Moore
Seattle,
Rubie J. Toney

Assistant DC
Phillip A. Gambino

Deputy
Commissioner,
Disability
Adjudication and
Review
Glenn E. Sklar
Assistant DC
James C. Borland

Press Officer,
LaVenia J. LaVelle

Assoc Commsnr,
Office of Budget
Bonnie Kind

Office of Field Site
Operations

Deputy
Commissioner,
Communications
Douglas K. Walker

Assoc Commsnr,
Office of Media
Management
Mark E. Graydon

Assoc Commsnr,
Office of Quality
Review
Amy G. Thompson

Assoc Commsnr,
Office of Quality
Improvement
Daryl X. Wise

Assoc Commsnr,
Office of
Communications
Planning and
Technology
Laura N. Train

Assoc Commsnr,
Office of External Affairs
Kojuan L. Almond

Assoc Commsnr,
Office of Public Inquiries
Steven L. Patrick

Assoc Commsnr,
Office of Open
Government
H. Alan Lane

Chief ALJ,
Office of the Chief
Administrative
Law Judge
Debra L. Bice
Regional Chief
Administrative Law
Judges
Boston,
Carol A. Sax
New York,
Mark S. Sochaczewsky
Philadelphia,
Jasper J. Bede
Atlanta,
Ollie L. Garmon
Chicago,
Sherry D. Thompson
Dallas,
Joan Parks Saunders
Kansas City,
Sherianne Laba
Denver,
Lyle D. Olson*
San Francisco,
William J. King, Jr.
Seattle,
David J. DeLaittre
Executive Director,
Office of Appellate
Operations
Patricia A. Jonas
Assoc Commsnr,
Office of Executive
Operations and Human
Resources
James R. Julian

General
Counsel
David F. Black
Deputy
General
Counsel
Gwen Jones Kelley

Assoc General Counsel,
Office of General Law
Mitchell Chitwood

Assoc General Counsel,
Office of Program Law
Jeffrey C. Blair

Regional Chief Counsels
Boston,
Frank A. Cristaudo*
New York,
Stephen P. Conte
Philadelphia,
Nora R. Koch*
Atlanta,
Mary Ann Sloan
Chicago,
Donna L. Calvert
Dallas,
Michael McGaughran
Kansas City,
Kristi A. Schmidt
Denver,
John J. Lee
San Francisco,
Donna L. Calvert*
Seattle,
David F. Morado

Deputy
Commissioner,
Human
Resources
Reginald F. Wells

Inspector
General
Patrick P. O'Carroll
Deputy Inspector
General
Gale S. Stone

Assistant DC
Dorothy A.
Smallwood*

Asst Inspector General,
Office of Investigations
Richard A. Rohde

Assoc Commsnr,
Office of Personnel
Bonnie L. Doyle

Asst Inspector General,
Office of Audit
Steven L. Schaeffer

Assoc Commsnr,
Office of LaborManagement and
Employee Relations
Thomas M. Funciello

Counsel,
Office of the Counsel to
the Inspector General
B. Chad Bungard

Assoc Commsnr,
Office of Civil Rights
and Equal Opportunity
Alan S. Frank

Assoc Commsnr,
Office of Learning
Lydia C. Marshall

Asst Inspector General,
Office of Technology
and Resource
Management
Michael D. Robinson

Asst Inspector General,
Office of External
Relations
Jonathan L. Lasher

Deputy
Commissioner,
Legislation and
Congressional
Affairs
Scott L. Frey
Assistant DC
Thomas M. Parrott

Assoc Commsnr,
Office of Legislative
Development and
Operations
Royce B. Min

Assoc Commsnr,
Office of Congressional
Affairs
Kenneth E. Mannella

Deputy
Commissioner,
Operations
Nancy A. Berryhill
Assistant DC
Theresa L. Gruber
Assistant DC
Martha J. Lambie
Regional
Commissioners
Boston,
Michael F. Bertrand
New York,
Beatrice M. Disman
Philadelphia,
Terry M. Stradtman
Atlanta,
Michael W. Grochowski
Chicago,
Marcia R. Mosley
Dallas,
Sheila S. Everett
Kansas City,
Ken Powell
Denver,
Sean P. Brune
San Francisco,
Grace M. Kim
Seattle,
Stanley Friendship

Assoc Commsnr,
Office of Public Service
and Operations Support
Erik N. D. Jones

Assoc Commsnr,
Office of Telephone
Services
Kenneth H. Rivers

Executive Director,
Office of Privacy
and Disclosure
Kirsten J. Moncada

*Acting

Assoc Commsnr,
Office of Budget,
Facilities and Security
Frank Biro
Assoc Commsnr,
Office of Electronic
Services and Strategic
Information
Nancy O. Webb
Director,
National Case
Assistance Center
Katrice Kendle

A-34

Assoc Commsnr,
Office of Central
Operations
Van T. Nguyen

Deputy
Commissioner,
Retirement and
Disability Policy
Marianna
LaCanfora*
Assistant DC
Manuel de la
Puente*

Assoc Commsnr,
Office of Income
Security Programs
Nancy J. Martinez
Assoc Commsnr,
Office of Research,
Evaluation and
Statistics
Theodore M. Horan*
Assoc Commsnr,
Office of Retirement
Policy
Natalie T. Lu*
Assoc Commsnr,
Office of Data Exchange
and Policy Publications
Stephen G. Evangelista

Assoc Commsnr,
Office of International
Programs
Vance N. Teel

Assoc Commsnr,
Office of Disability
Policy
Gina P. Clemons
Assoc Commsnr,
Office of Research,
Demonstration and
Employment Support
David A. Weaver

Deputy
Commissioner/
Chief Information
Officer, Systems
William B. Zielinski
Assistant DC/
Deputy CIO
Herbert M. Strauss

Assoc Commsnr,
Office of
Telecommunications
and Systems Operations
Thomas G. Grzymski

Assoc Commsnr,
Office of Systems
Electronic Services
Diana E. Andrews

Assoc Commsnr,
Office of Applications
and Supplemental
Security Income
Systems
Frank Sotaski
Assoc Commsnr,
Office of Earnings,
Enumeration and
Administrative Systems
Karen R. Martin

Assoc Commsnr,
Office of Enterprise
Support, Architecture
and Engineering
John C. Morenz

Assoc Commsnr,
Office of Retirement and
Survivors Insurance
Systems
John W. Simermeyer

Assoc Commsnr,
Office of Electronic
Services and
Technology
Sylviane D. Haldiman

Assoc Commsnr,
Office of Disability
Systems
Roderick O. Hairston

Assoc Commsnr,
Office of Disability
Determinations
Ann P. Robert*

Assoc Commsnr,
Office of Information
Security
Marti A. Eckert*

Chief Strategic
Officer
Ruby D. Burrell
Deputy Chief
Strategic Officer
Darlynda K. Bogle

Director,
Office of Performance
Management and
Business Analytics
(Vacant)

Director,
Office of Strategic
Planning and Innovation
(Vacant)

$

EXEC UTIVE OFF IC E FOR I MM IGRATION REVIEW
21010321 1a
r- -i
I
m

00I

01
0
r
0c zmm3
z( , ) mx 1 0
m
+
r-

21 0103 1:110 Alrl d3C1

A-36

[Excerpt from DEPARTMENT OF TRANSPORTATION OFFICE OF SECRETARY - FY 2014 CONGRESSIONAL BUDGET
JUSTIFICATION, SECTION 6 – ADDITIONAL JUSTIFICATIONS, available at: http://www.dot.gov/sites/dot.dev/
files/docs/ OST_FY2014_ Budget_ Estimates.pdf]

Assistant Secretary for Administration - Reimbursable Program
Office of Hearings
The Office of Hearings is located in the Office of the Assistant Secretary for Administration in order to
separate the Office from all investigatory and prosecution functions. The Office of Hearings is composed
of administrative law judges, who hold hearings under the Administrative Procedure Act (5 U.S.C. § 551
et seq.) (APA) for the Department’s Office of the Secretary (primarily in aviation matters) and the
Department’s component modal administrations that need formal APA hearings, including the Federal
Aviation Administration, Federal Motor Carrier Safety Administration, and the Pipeline and Hazardous
Materials Safety Administration.

A-37

ASSISTANT SECRETARY- POLICY, MANAGEMENT AND BUDGET

Secretary
Chief Diversity Officer
Assistant Secretary
Policy, Management and Budget

Chief of Staff

Deputy Assistant Secretary
Technology, Information &
Business Services

Deputy Assistant Secretary
Law Enforcement,
Security & Emergency
Management

Deputy Assistant
Secretary
Youth, Partnerships &
Service

Deputy Assistant Secretary
Natural Resources
Revenue

Human Resources

Collaborative Action &
Dispute Resolution

Emergency
Management

Conservation &
Educational Partnerships

Office of Natural
Resources Revenue

Budget

Occupational Health &
Safety

Geospatial Information
Officer

Financial Management

Strategic Development
of Human Capital

Office of Valuation
Services

Deputy Assistant
Secretary
Policy & International
Affairs

Deputy Assistant Secretary
Budget, Finance,
Performance & Acquisition

Environmental Policy &
Compliance

Acquisition & Property
Management

International Affairs

Native Hawaiian
Relations

Restoration and Damage
Assessment

Interagency Borderland
Coordinator

Planning & Performance
Management

Deputy Assistant Secretary
Human Capital & Diversity

Civil Rights*

Law Enforcement
and Security

Wildland Fire
Coordination

Service – Take Pride in
America

Youth in the Great
Outdoors

National Business Center

Hearings & Appeals
Policy Analysis

Small & Disadvantaged
Business Utilization*
Chief Information Officer*

*Reports to the Secretary of the Interior and receives administrative support and guidance from the Assistant Secretary and Deputy Assistant Secretaries of Policy, Management
and Budget.

[Available at: http://www.doi.gov/pmb/upload/PMBOrgChart.pdf]
A-38

OFFICE OF HEARINGS AND APPEALS
ORGANIZATION CHART

DIRECTOR

PRINCIPAL DEPUTY
DIRECTOR

INTERIOR BOARD
OF INDIAN
APPEALS

INTERIOR BOARD
OF LAND
APPEALS

DEPUTY DIRECTOR
(COUNSELOR TO THE
DIRECTOR)

ADMINISTRATIVE
DIVISION

PROBATE
HEARINGS
DIVISION

DEPARTMENTAL
CASES HEARINGS
DIVISION

WELSA
HEARINGS
DIVISION

[Available at: http://www.doi.gov/oha/manuals/upload/OHAOrgChart.pdf] A-39

[Available at: http://www.dol.gov/dol/aboutdol/orgchart.htm]

A-40

Merit Systems Protection Board

[Available at: http://www.mspb.gov/About/organization.htm]

A-41

[Available at: http://www.rrb.gov/pdf/bfo/par2012.pdf]

A-42

A-43

3/28/2014

http://www.nad.usda.gov/about_organization.html

National Appeals Division Organizational Chart

A-44

1/1