REPORT FOR THE
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

PUBLIC AVAILABILITY OF INFORMATION ABOUT AGENCY
ADJUDICATORS

Leigh Anne Schriever
Attorney Advisor
Administrative Conference of the United States

This report was prepared for the consideration of the Administrative Conference of the United States. It does not
necessarily reflect the views of the Conference (including its Council, committees, or members).

Recommended Citation
Leigh Anne Schriever, Report on Public Availability of Information About Agency Adjudicators (Nov. 23,
2020) (report to the Admin. Conf. of the U.S.).

I.

INTRODUCTION

Federal adjudicators have long played a critical role throughout the federal government.
Adjudicators preside over proceedings subject to the formal adjudication provisions of the
Administrative Procedure Act (APA), other legally required evidentiary hearings, and more
informal proceedings in which a hearing may not take place at all. Taken together, adjudicators
make an incredible number of determinations that affect the public.1 One recent count suggests
that in addition to the approximately two thousand administrative law judges (ALJs), many more
adjudicators who are not ALJs, referred to as administrative judges (AJs) in this report, preside
over hearings or decide appeals following a hearing.2
Yet, aside from ALJs, the amount of easily accessible, public information we have about
these positions is largely limited. In 2018, as part of an effort to update the information available
about AJs, Kent Barnett, Malia Reddick, Logan Cornett, and Russell Wheeler surveyed sixtyfour federal agencies about their adjudicators and compiled that research into a report for
ACUS.3 Professor Barnett and Dr. Wheeler later published a law review article based on the
content of that report.4 The report and article both incorporated a call for greater transparency
around AJs and suggested that agencies should use procedural regulations to institute strong
policies regarding AJ independence and impartiality, and websites to provide greater
transparency and improve public faith in the agency’s adjudicative process.5 Barnett later
expanded on those transparency recommendations by suggesting what kinds of information
agencies should disclose, including policies about hiring, separation of functions, supervision, ex
parte communications, physical separation, performance appraisals, compensation, and removal
protections, and how they should disclose that information, including by providing it to litigants
and disclosing it on websites.6
This report complements that scholarship by assessing which disclosures agencies are
already making about their adjudicators and the ease with which the public can access those
disclosures, with the goal of identifying best practices for improving public access to relevant
information about agency adjudicators. This report also considers which kinds of information
agencies should make available, including what disclosures are necessary for the public to
understand the constitutional status and relative impartiality of adjudicators other than agency
heads.

1

See Jonah B. Gelbach and David Marcus, Rethinking Judicial Review of High Volume Agency Adjudication, 96
TEX. L. REV. 1097, 1098–99 (2018) (describing the number of cases decided annually by immigration judges,
veterans law judges, ALJs at the Office of Medicare Hearings and Appeals, and ALJs at the Social Security
Administration).
2
Kent Barnett et al., Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal 1–2
(Sept. 24, 2018) (report to the Admin. Conf. of the U.S.), https://www.acus.gov/report/non-alj-adjudicators-federalagencies-status-selection-oversight-and-removal-1.
3
Id. at 2.
4
Kent Barnett and Russell Wheeler, Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and
Removal, 53 GA. L. REV. 1 (2018)
5
Id. at 100-01; Barnett et al., supra note 2, at 71–72;
6
Kent H. Barnett, Some Kind of Hearing Officer, 94 WASH L. REV. 515, 563–82 (2019).

1

To answer those questions, I conducted searches to determine what, where, and how
disclosures are made about a sample of adjudicator positions. Section II provides some
background for the project. Section III describes the methodology of the research, and Section IV
discusses the research summary and findings. Section V presents a set of best practices agencies
should consider when making disclosures about their adjudicators and Section VI offers some
conclusions. Finally, the report contains appendices with a template for agency disclosures,
examples of current agency disclosure practices, a table summarizing the information agencies
currently make available regarding adjudicators surveyed in this report, and excerpts from the
report and law review articles by Kent Barnett and his coauthors suggesting how agencies can
improve their transparency around agency adjudicators and why disclosures about adjudicators
are important.
II.

BACKGROUND

Several years ago, ACUS began a well-received initiative to encourage agencies to disclose
on their websites important information relating to different aspects of their regulatory programs.
In particular, ACUS has recommended that agencies disclose information about high-level
officials leading federal agencies, as well as two categories of information related to
adjudications: (1) adjudication materials, including decisions and supporting materials and (2)
adjudication rules, including regulations and public-facing explanatory materials.7 This report
addresses a third category of important information about agency adjudications: policies related
to adjudicators, particularly those regarding their appointment, supervision, evaluation,
discipline, and removal.
The public and agencies benefit from the disclosure of information about agency
adjudicators. Agencies benefit from disclosures because greater transparency allows them to
compare practices across agencies. Practices that have worked at one agency may provide an
important learning opportunity for other agencies looking to improve their adjudicative process.
Proactive disclosures by agencies may also be more cost-effective, because agencies will not
need to respond to individual requests for information about their adjudicators.
Information about agency adjudicators also helps the public because when agencies disclose
information about their adjudicators and the policies that help ensure decisional independence,
such as limitations on ex parte communications, separation of adjudicative and enforcement
functions, and recusal requirements, it encourages public faith in the administrative process.
Additionally, disclosures about agency adjudicators play an important role in ensuring due
process in adjudications because participants need an impartial adjudicator to receive due
process, and need to perceive that their case is handled fairly.8 Congress enacted the APA,
particularly provisions relating to merit-based hiring, separation of functions, limitations on ex
parte communications, and removal protections, partly to ensure that ALJs had the necessary
7

Admin. Conf. of the U.S., Recommendation 2019-8, Public Identification of Agency Officials, 84 Fed. Reg. 71,354
(Dec. 27, 2019); Admin. Conf. of the U.S., Recommendation 2018-5, Public Availability of Adjudication Rules, 84
Fed. Reg. 2142 (Feb. 6, 2019); Admin. Conf. of the U.S., Recommendation 2017-1, Adjudication Materials on
Agency Websites, 82 Fed. Reg. 31,039 (July 5, 2017).
8
Barnett et al., supra note 2, at 6.

2

independence and impartiality after receiving complaints about unfair agency hearings.9 AJ
positions have become significantly more common since then, and many of the same concerns
over fairness exist in hearings conducted by that group of adjudicators. Agencies vary in how
they regulate their adjudicators, and there may be good reasons for those differences, but the
public needs information about adjudicators to be able to understand the purpose of those
differences.
Furthermore, these kinds of information help the public understand the constitutional status
of adjudicators under the Appointments Clause. The Constitution requires that the President
appoint all “Officers of the United States,” although Congress may also by law vest the
appointment of “inferior Officers” in the heads of departments and courts.10 The Supreme Court
has addressed this issue in a number of cases and has concluded that officers, as opposed to
employees, are individuals “exercising significant authority pursuant to the laws of the United
States.”11 In determining whether an officer is inferior or principal, the Court has focused on
whether the officer has cabined power and duties, and has cited as important indicia of the
constitutional status of appointed positions such criteria as job duties, level of authority, and
whether a higher-level official has authority to supervise, remove, and review decisions rendered
by the officer.12
Applying these principles to adjudicators, the Court held in Lucia v. Securities and Exchange
Commission that ALJs at the Securities and Exchange Commission are officers of the United
States and must be appointed in accordance with the Appointments Clause.13 Because of that
case, many agency heads chose to ratify the appointment of ALJs and many AJs who might
qualify as inferior officers.14 Less than a month after the Court issued the decision, President
Trump issued Executive Order 13,843, which allows agencies to hire new ALJs directly—that is,
without the Office of Personnel Management’s (OPM’s) involvement—generally using whatever
selection criteria and procedures they deem appropriate.15 OPM recently proposed a rule
implementing the Executive Order.16
Agencies have been working to reconfigure their process for appointing ALJs and many AJs
to conform to both Supreme Court precedent and the Executive Order.17 In light of all these
changes, ACUS took up a project on agency recruitment and selection of ALJs and adopted a
9

Id. at 1.
U.S. CONST. art. II, § 2, cl. 2.
11
Buckley v. Valeo, 424 U.S. 1, 126 (1976).
12
Edmond v. United States, 520 U.S. 651, 661–66 (1997); Morrison v. Olson, 487 U.S. 654, 671–73 (1988).
13
Lucia v. Sec. and Exch. Comm’n, 138 S. Ct. 2044, 2049 (2018)
14
See, e.g., SEC Ratifies Appointment of Administrative Law Judges, U.S. SEC. & EXCH. COMM’N (Nov. 30, 2017),
https://www.sec.gov/news/press-release/2017-215 (last visited Oct. 8, 2020); Proactive Disclosures – Appointments
Clause; U.S. DEP’T OF LABOR,
https://www.dol.gov/agencies/oalj/topics/information/Proactive_disclosures_ALJ_appointments (last visited Oct. 8,
2020).
15
Exec. Order No. 13,843, 83 Fed. Reg. 32,755 (July 10, 2018).
16
Administrative Law Judges, 85 Fed. Reg. 59,207 (Sept. 21, 2020).
17
See, e.g., Proactive Disclosures, U.S. DEP’T OF LABOR, supra note 14; DEP’T OF HEALTH & HUMAN SERVICES,
ADMINISTRATIVE LAW JUDGE APPOINTMENT PROCESS UNDER THE EXCEPTED SERVICE (2018),
https://www.hhs.gov/sites/default/files/alj-appointment-process.pdf (last visited Oct. 8, 2020).
10

3

recommendation as part of that project that called for agencies to “formulate and publish
minimum qualifications and selection criteria for ALJ hiring.”18
However, questions about the constitutional status of adjudicators remain. The APA specifies
that presidentially appointed agency heads, some of whom are removable only for cause, can
remove ALJs from office only upon a finding of “good cause” by the Merit Systems Protection
Board.19 The President can only remove Board members for “inefficiency, neglect of duty, or
malfeasance in office.”20 In finding that dual for-cause limitations on the removal of members of
the Public Company Accounting Oversight Board violated the Constitution’s separation of
powers, the Court left unanswered whether the same principles should apply to the APA’s
removal protections for ALJs.21 Similar questions may arise with respect to other administrative
adjudicators who are removable only for cause.
More recently, the Federal Circuit held that administrative patent judges (APJs), as created in
the America Invents Act, were principal officers because, under that statutory scheme, no
presidentially-appointed officer has independent authority to review an APJ’s decision and APJs
can only be removed for cause.22 That case is now pending before the Supreme Court.
This project on public availability of information about agency adjudicators grew out of
Barnett, Reddick, Cornett, and Wheeler’s 2018 report and ACUS’s recommendation on
recruitment and selection of ALJs, and responds to questions raised about the constitutional
status of adjudicators after Lucia and subsequent cases, as well as Executive Order 13,843. It
builds on the 2018 report by looking at not just what agency policies exist regarding
adjudicators, but which of those policies have been made available to the public and how. The
purpose of the project is to promote transparency, which benefits agencies by allowing the
comparison of best practices and allowing for efficient information disclosure, as well as the
public, so that they may understand the impartiality and constitutional status of adjudicators.
III.

METHODOLOGY

The research for this report was conducted by selecting sixteen adjudicator positions across
multiple agencies and combing through a variety of sources for any disclosures by agencies
regarding those adjudicators.
The positions were selected in an attempt to survey a wide range of positions. They include
both ALJs and AJs who conduct some sort of hearing or review appeals following a hearing.23
18

Admin. Conf. of the U.S., Recommendation 2019-2, Agency Recruitment and Selection of Administrative Law
Judges, ¶ 2, 84 Fed. Reg. 38,930, 38,931 (Aug. 8, 2019).
19
5 U.S.C. § 7521(a).
20
5 U.S.C. § 1202(d).
21
See, Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 507 n. 10 (2010); Fleming v. U.S.
Dep’t of Agric., No. 17-1246 (D.C. Cir.).
22
Arthrex v. Smith & Nephew, 941 F.3d 1320 (Fed. Cir. 2019), reh’g en banc denied, 953 F.3d 760 (Fed. Cir.
2020), cert. granted 592 U.S. __ (2020).
23
These adjudicators imperfectly map onto the division of adjudicators into “Type A,” “Type B,” and “Type C”
adjudicators, but likely incorporate all Type A and B adjudicators and some Type C adjudicators. See Admin. Conf.
of the U.S., Recommendation 2016-4, Evidentiary Hearings Not Required by the Administrative Procedure Act, 81
Fed. Reg. 94,314 (Dec. 23, 2016).

4

Hearings conducted by adjudicators surveyed for this report include those conducted subject to
the APA, other legally required evidentiary hearings, and certain proceedings which involve a
hearing that does not necessarily require decision making based on an exclusive record.
The positions are located in agencies with both higher- and lower-volume caseloads. They
include both hearing-level and appellate adjudicators, as well as adjudicators who preside over
trial-like and relatively informal proceedings. Occupants of each position preside, in at least
some cases, over some kind of oral hearing or decide appeals following an oral hearing. The
positions do not necessarily capture each of these variables in proportion to their presence in the
federal government. The positions selected do not include agency heads because a significant
amount of information is already available about them.
Table 1. Positions Selected for Review
Agency
Department of Agriculture
Department of Commerce/Patent
and Trademark Office
Department of Health and Human
Services
Department of Homeland
Security/U.S. Citizenship and
Immigration Services
Department of Justice
Department of Labor
Department of Labor
Department of Labor
Department of Veterans Affairs
Environmental Protection Agency
Department of the Treasury/Internal
Revenue Service
Merit Systems Protection Board
National Labor Relations Board
Occupational Safety and Health
Review Commission
Social Security Administration
Social Security Administration

Component
National Appeals Division
Patent Trial and Appeal Board

Position Title
Administrative Judge
Administrative Patent Judge

Office of Medicare Hearings and
Appeals
Administrative Appeals Office

Administrative Law Judge

Executive Office for Immigration
Review
Administrative Review Board
Benefits Review Board
Office of Administrative Law
Judges
Board of Veterans’ Appeals
Environmental Appeals Board

Immigration Judge

Independent Office of Appeals
Office of Regional Operations
Division of Judges
Office of the Chief Administrative
Law Judge
Office of Appellate Operations
Office of Hearings Operations

Administrative Appeals Officers

Administrative Appeals Judge
Administrative Appeals Judges
Administrative Law Judge
Veterans Law Judge
Environmental Appeals Board
Judge
Appeals Officer
Administrative Judge
Administrative Law Judge
Administrative Law Judge
Administrative Appeals Judge
Administrative Law Judge

For each of these positions, I searched the United States Code (USC), the Code of Federal
Regulations (CFR), Federal Register materials that are not codified in the CFR (including
notices and preambles to proposed and final rules), relatively formal publications available
online (e.g., memoranda, reports, case-processing and organizational manuals, and guides), and
informal website content (e.g., FAQ pages and descriptions of agency organization) to determine
what information about the terms and conditions applicable to the selected positions is already
publicly available. Other sources of publicly available information certainly do exist, such as
reports, uncodified public laws, and congressional testimony. Presumably relevant information
5

also resides in undisclosed or difficult-to-locate sources, such as job postings, position
descriptions, internal personnel manuals, and labor agreements. I restricted my search to sources
to which the public is likely to look for information and disclosures about adjudicators, because
readily available public information matters most for transparency purposes.
I classified the information I located into eleven categories.
Table 2. Categories of Disclosures
Category
Job Duties

Review of Adjudications

Appointment and Qualifications
Compensation
Ex Parte Communications and
Separation of Functions
Organization

Evaluation
Discipline and Removal
Supervision and Assignment of
Work
Recusal/Disqualification
Miscellaneous

Information Included in Category
Descriptions of adjudicators’ responsibilities, including tasks other than
adjudication that occupants of the position perform or are not allowed to
do
Descriptions of agency officials, if any, who have the authority to review
decisions rendered by occupants of the position on appeal, on their own
motion, or when requested by the adjudicator
Information about hiring qualifications, hiring procedures, term limits, and
who has appointment authority
Pay scales, bonuses, and performance incentives
Prohibitions and limitations on ex parte communications and any
requirements for independence from other components of the agency,
especially investigation and prosecution units
The organizational placement of occupants of the position, especially
information regarding who has authority to supervise adjudicators or who
adjudicators have the authority to supervise, as well as information about
the number of adjudicators and the physical location of their offices
Information about case processing goals, performance evaluations, and
methods for obtaining feedback about adjudicators
Information about discipline procedures, methods for reporting complaints
about adjudicators, and when adjudicators may be removed
Information about training available to adjudicators, who assigns work to
adjudicators, and quality review
Descriptions of standards for recusal or disqualification and whether
parties can request recusal
Descriptions of what policies and regulations are binding on adjudicators,
deadlines for decision making, restrictions on conduct outside of work, and
case prioritization policies

The categories are admittedly imperfect because they overlap, and a single piece of
information could arguably be placed into two or more categories, but they were created to more
easily assess the public availability of information across agencies and positions.
For obvious reasons, this research is not exhaustive, and, undoubtedly, some pieces of
information that are available could not be easily located. The fact that some information may
have escaped ready identification is itself indicative that relevant information concerning
adjudicators is not easily accessible to the public. This research should be viewed as identifying
what a member of the public could find with dedicated research rather than a perfect
encapsulation of every disclosure these agencies have ever made about their adjudicators.

6

Appendix C identifies each publicly available provision I was able to locate, provides its
location, provides a short summary of its content, and categorizes it according to the taxonomy
above. I have noted which provisions are unusually extensive.
IV.

RESEARCH SUMMARIES AND FINDINGS
a. Kinds of Information Made Publicly Available

For both ALJs and AJs, there are ample disclosures regarding administrative review and few
disclosures regarding job duties, compensation, and discipline and removal.
Across all the categories of disclosures covered by the research, information about review of
adjudications is the most widely available. Almost all surveyed agencies make at least one
disclosure about who has the authority to formally review adjudicator decisions as the next step
in an appeals process, whether that is a federal court or another individual or body inside the
agency. This information is usually available in multiple places, and for many agencies it is built
into a statutory scheme and is published on the agency website to help individuals navigating the
appeals process. The Office of Medicare Hearings and Appeals, for instance, has its review
process written into its authorizing statute, but it also put a description of that process into its
regulations and on its website (see Appendix B).24
Information regarding the appointment and qualifications of adjudicators is also regularly
available. The Federal Register contains many of these disclosures because some agencies, such
as the Department of Labor, post vacancies for several positions in the Federal Register, which
usually include descriptions of qualifications.25 These job postings, however, are not easy to
locate. One thing to note in this category is that I located publicly available information on new
procedures for hiring ALJs, since Executive Order 13,843, for only two of the five ALJ positions
examined.26
The most important categories with the fewest disclosures are compensation policies and
discipline and removal procedures. For compensation, very few policies regarding pay were
located, and most of them are statutory. This means that in order to determine how adjudicators
are paid, members of the public would most likely have to dig through the USC or OPM
regulations, which are not particularly easy sources for most non-lawyers to use. Additionally,
there are almost no disclosures about bonuses or performance incentives, even though the 2018
report found that seventy-one percent of AJ positions were eligible for bonuses.27 In fact, at least
three of the positions for which this report failed to find disclosures about bonuses were included
in the 2018 report as stating that their adjudicators did receive bonuses. 28
42 U.S.C. § 1395ff; 42 C.F.R. § 405.904; Level 4 Appeals, U.S. DEP’T OF HEALTH & HUMAN SERVS.,
https://www.hhs.gov/about/agencies/omha/the-appeals-process/level-4/index.html (last visited Oct. 9, 2020).
25
See, e.g., Vacancy Posting for a District Chief Administrative Law Judge, 84 Fed. Reg. 16,885 (Apr. 23, 2019).
26
Procedures for Appointment of Administrative Law Judges for the Department of Labor, 83 Fed. Reg. 44,307
(Aug. 30, 2018); DEP’T OF HEALTH AND HUMAN SERVICES, supra note 17.
27
Barnett et al., supra note 2, at 4.
28
Id. at 56 (mentioning that AJs at the Benefit Review Board, U.S. Merit Systems Protection Board, and the Patent
Trial and Appeal Board received bonuses in 2016).
24

7

Similarly, the discipline and review category has very few disclosures, most of which are not
very detailed. In fact, I found information about discipline or removal for only six of the
positions, not including the APA provisions that govern all ALJs, and only two of those detailed
who has the authority to remove an adjudicator.29 Immigration judges at the Executive Office of
Immigration Review are the only adjudicators with a somewhat detailed explanation of a
discipline process, which lays out how the agency handles complaints about immigration
judges.30 It seems likely that for both compensation policies and discipline and removal
practices, agencies have some kinds of policies internal to the agency that are not currently
available, or at least are not easily located.
The categories of job duties and miscellaneous, which includes descriptions of what policies
and regulations are binding on adjudicators, deadlines for decision making, restrictions on
conduct outside of work, and case prioritization policies, also have very few disclosures, but for
those categories it seems more likely that policies do not exist rather than that agencies are not
disclosing them. For job duties, most of the occupants of positions in this report serve purely as
adjudicators without participating in investigatory or prosecutorial activities, and so agencies
probably do not feel compelled to disclose that adjudicators adjudicate. The few disclosures in
job duties pertain to specific limitations on which kinds of cases adjudicators may adjudicate and
which tasks other than adjudication they may be assigned. The miscellaneous category, by its
nature, only includes disclosures that do not fit in any of the other primary categories; if there
were enough miscellaneous disclosures on any topics, they would have formed a new category.
For all the other categories, there is a moderate amount of disclosure. Most positions have
information available on agency websites about the organizational structure of the agency and
the adjudicators’ position within it. Many positions also have disclosures pertaining to ex parte
communications and recusal requirements (often in their regulations), but few have broader
disclosures regarding independence from other functions of the agency, such as prosecution or
enforcement units. One agency that handles the explanation of its adjudicators’ independence
especially well is the Internal Revenue Service Independent Office of Appeals (see Appendix B),
which Congress statutorily required to remain independent of the examination and collection

29

See, 37 C.F.R. § 11.803 (citing a process for practitioners to report misconduct by an administrative patent judge
at the Patent Trial and Appeal Board); Order Contingently Delegating Authority to the Chairman, the General
Counsel, and the Chief Administrative Law Judge, 76 Fed. Reg. 73,719, 73,720 (Nov. 29, 2011) (delegating to the
Chief Administrative Law Judge the authority to demote or discharge any ALJ if the National Labor Relations
Board has fewer than three Members); Social Security Ruling SSR 13-1p; Titles II and XVI, 78 Fed. Reg. 6168 (Jan.
29, 2013) (describing the process for addressing allegations of unfairness, prejudice, partiality, bias, misconduct, or
discrimination by ALJs); Secretary’s Order 01-2020-Delegation of Authority and Assignment of Responsibility to
the Administrative Review Board, 85 Fed. Reg. 13,186, 13,188 (March 6, 2020) (noting that the Secretary may
remove members of the Administrative Review Board at any time); U.S. DEP’T OF JUSTICE, SUMMARY OF OCIJ
PROCEDURE FOR HANDLING COMPLAINTS CONCERNING IMMIGRATION JUDGES,
https://www.justice.gov/eoir/page/file/1039481/download (last visited Oct. 2, 2020) (describing the process for
handling complaints about immigration judges); Inspector General, U.S. MERIT SYS. PROT. BD.,
https://www.mspb.gov/contact/ig.htm (last visited Oct. 2, 2020) (describing how to contact the MSPB Office of the
General Counsel to report misconduct by a member of the Merit Systems Protection Board).
30
U.S. DEP’T OF JUSTICE, SUMMARY OF OCIJ PROCEDURE supra note 29.

8

functions of the agency, and which also repeatedly emphasizes that independence and its
impartiality on its website.31
Agencies also have a number of disclosures about who assigns work to adjudicators, most
often in the CFR or in other formal documents, like case-processing manuals, but they do not
have many disclosures about other kinds of supervision. Descriptions of quality review are
occasionally somewhat detailed, as in the case of the Merit Systems Protection Board, which
describes which administrative judges receive pre-issuance quality review and which receive
post-issuance quality review in its procedures in the Judges’ Handbook.32 The Patent Trial and
Appeal Board also handles this area of disclosures well because, although its authorizing statute
includes a provision about how work is assigned to judges, the agency also provides an extensive
description of the process and provides additional information about supervision and training in a
series of videos designed to attract administrative patent judges. 33
Information about evaluations is sparse. References to kinds of evaluations can be found
fairly often, but the process is rarely described in any depth. Agencies sometimes make a fleeting
reference to case-processing goals in a strategic plan or on a website, but that is the majority of
information available.34 Additionally, although there is little information about how ALJs are
evaluated, this is likely because the APA exempts ALJs from performance evaluations.
b. Disclosure Location
The most common source for information about adjudicators is the CFR. Almost all agencies
use the CFR to inform the public about review of adjudications, and most also include
information on ex parte contacts and recusal procedures there as well.35 The CFR is not,
however, a common place for the agencies surveyed to place information about organization,
evaluation, or discipline. Additionally, agencies differ widely in the usability of their CFR
provisions. Some regulations are organized intuitively and all the information regarding a
particular adjudicator position is located under one sub-heading for the office in which they
work. A good example of this kind of organization is the Board of Veterans’ Appeals.36 For other
agencies, regulations are scattered across an enormous number of provisions and can only be
found by keyword searches, rather than by looking for intuitively named section headings. For a
26 U.S.C. § 7803; Appeals – An Independent Organization, INTERNAL REVENUE SERV.,
https://www.irs.gov/appeals/appeals-an-independent-organization (last visited Oct. 8, 2020).
32
MERIT SYS. PROTS. BD., JUDGES’ HANDBOOK 75 (2019).
33
35 U.S.C. § 6; Training and Resources for Administrative Patent Judges at the Patent Trial and Appeal Board
(PTAB), YOUTUBE, https://www.youtube.com/watch?v=I_BD-Hl12tQ&feature=youtu.be (last visited Oct. 8, 2020);
Standard Operating Procedure 1 (Revision 15) – Assignment of Judges to Panels, PATENT TRIAL & APPEAL BD.,
https://www.uspto.gov/sites/default/files/documents/SOP%201%20R15%20FINAL.pdf (last visited Oct. 8, 2020).
34
U.S. DEP’T OF AGRIC., USDA OFFICE OF HEARINGS AND APPEALS STRATEGIC PLAN 2018-2022 5; About the
Office, U.S. DEP’T OF JUSTICE, https://www.justice.gov/eoir/about-office (last visited Oct. 8, 2020).
35
See, e.g., 29 C.F.R. § 2200.92 (stating that ALJ decisions at the Occupational Safety and Health Review
Commission are reviewed by the Commission if appealed); 37 C.F.R. § 41.11 (prohibiting ex parte communications
with the Patent Trial and Appeal Board about inter partes reexaminations); 40 C.F.R. § 22.4(d) (stating when
members of the Environmental Appeals Board must disqualify themselves from a proceeding).
36
See, e.g., 38 C.F.R. §§ 20.1–20.1499 (covering almost all the regulations pertaining to the Board of Veterans’
Appeals in a section titled “Board of Veterans’ Appeals: Rules of Practice”).
31

9

member of the public unfamiliar with the CFR, combing through the regulations could be an
extremely daunting process for finding any useful information about adjudicators.
A significant amount of information about adjudicators is also located in the USC. The USC
contained the most information about who had the authority to review adjudicator decisions and
the appointment process.37 It also held the most information about compensation.38
Agencies also often use other kinds of formal documents to make disclosures. Many of these
agencies maintain extensive case processing manuals, bench books for judges, or practice
guides.39 These manuals often describe policies useful to the adjudicators themselves, such as
evaluation, assignment of work, and recusal policies. The National Labor Relations Board’s
Bench Book, for instance, contains information about the assignment of cases to ALJs,
prohibitions on ex parte communications, and disqualification of ALJs.40
Agencies make many disclosures on their websites, too, especially with regard to their
policies on organization and structure.41 This includes organizational charts and descriptions of
office locations. Agencies also often use websites to explain the appeals process, so websites
contain a number of disclosures regarding review of adjudications. Some agencies, like the
Office of Medicare Hearings and Appeals, organize this information very well by providing
separate information about each level of the appellate process, including who hears the appeal
and how to file an appeal.42 I identified almost no agencies that explain in website text
adjudicators’ compensation or recusal requirements.
Finally, the Federal Register has the fewest disclosures. As stated in the methodology
section, the only documents considered disclosures in the Federal Register were the ones made
exclusively there, rather than the text of all the final rules that are available there and in the CFR.
This limited the number of Federal Register documents that I considered, and those that I did
consider were often the most difficult documents to locate. Of the various categories of
information, the ones most likely to appear in the Federal Register were those pertaining to the
appointment process and qualifications for adjudicator positions.43
Some adjudicative bodies or specific adjudicator positions were created by statute, and others
were created by administrative action. The method of creating the adjudicative body or position
influences where agencies make disclosures. Policies regarding ALJs, for example, are amply
37

See, e.g., 42 U.S.C. § 1395ff(d)(2) (stating that if a beneficiary is dissatisfied with an ALJ decision, that decision
may be appealed to the Departmental Appeals Board of the Department of Health and Human Services).
38
See, e.g., 38 U.S.C. § 7101a (stating that Veterans Law Judges must be paid basic pay equivalent to that of ALJs).
39
See, e.g., SOC. SEC. ADMIN., HEARINGS, APPEALS, AND LITIGATION LAW MANUAL (2020); NAT’L LABOR
RELATIONS BD., BENCH BOOK: AN NLRB TRIAL MANUAL (2020).
40
NATIONAL LABOR RELATIONS BOARD, BENCH BOOK supra note 39, at 5–7, 9–12.
41
See, e.g., Executive Office for Immigration Review Organization Chart, U.S. DEP’T OF JUSTICE,
https://www.justice.gov/eoir/eoir-organization-chart/chart (last visited Oct. 2, 2020); Organization, NAT’L APPEALS
DIV., https://www.nad.usda.gov/content/organization (last visited Oct. 2, 2020).
42
See, e.g., The Appeals Process, U.S. DEP’T OF HEALTH & HUMAN SERVS.,
https://www.hhs.gov/about/agencies/omha/the-appeals-process/index.html (last visited Oct. 2, 2020).
43
See, e.g., Vacancy Posting for a Member of the Benefits Review Board, 84 Fed. Reg. 18,871, 18,871–72 (May 2,
2019) (including a description of the qualifications for the position).

10

described in the APA.44 Thus, individual agencies with ALJs may feel less compelled to disclose
information on those topics. Similarly, because Congress included detailed information about the
Board of Veterans’ Appeals in its authorizing statute, the majority of information about Veterans
Law Judges is in the USC.45 However, policies regarding the Environmental Appeals Board,
created by regulation, are found primarily in the CFR.46 One agency, the Administrative Review
Board, was created in a document styled as a Secretary’s Order, which is only available in the
Federal Register.47
c. How Disclosures are Made
The public would struggle to find many of the disclosures located for the purpose of this
project and, even if they did locate them, would find them difficult to understand. As noted
earlier, the most frequent source for information relevant to this report is the CFR, and a lot of
information about adjudicators can be found in the USC. Yet, these sources are often very
inefficient and difficult to use, particularly for the public. Depending on the agency, they can be
full of technical terms and laid out in nonintuitive ways.
The Federal Register, too, is not an ideal location to provide disclosures, partly because
searching within it can be difficult and can bring up an enormous number of results. Many
Federal Register notices are also very complicated, and some of the disclosures relating to
adjudicators are in nonintuitive locations, like the preamble or in responses to comments.
Although agencies routinely provide access on their websites to manuals and guides, some
are not easily discoverable and require searching in the search bar of the website because no
intuitive webpage appears to link to them. Agencies usually make these guides extremely
lengthy, however, and they often amass over a hundred pages of guidance full of agency-specific
terms that a member of the public would struggle to understand. Some of the manuals are also
difficult to use because they do not include a way to easily search the entire manual or may not
have a useful table of contents. The better kinds of these guides and manuals, like the Merit
Systems Protection Board’s Judges’ Handbook, The Environmental Appeals Board’s Practice
Manual, and the National Labor Relations Board’s Bench Book, can be searched all at once and
have detailed tables of contents that link to pages in the manual.48
Agency websites are the most transparent location for disclosures because the public can
easily find them, and agencies usually write them in more comprehensible and less technical
ways. Many agencies, however, seem to have unnecessarily restricted their website’s value by
using it almost entirely for information about organizational structure or the appeals process, at
least as far as pertains to adjudicators. Although agencies disclose much more information in
other locations, they have not made some of that information available in ways that are truly
44

5 U.S.C. §§ 554(d), 557(d), 3105, 4301, 5372, and 7521.
38 U.S.C. §§ 7101–7104.
46
See, e.g., 40 C.F.R. § 1.25(e)(1) (creating the Environmental Appeals Board).
47
See Secretary’s Order 01-2020, supra note 29 (updating and amending the notice creating the Administrative
Review Board).
48
THE ENVIRONMENTAL APPEALS BOARD, PRACTICE MANUAL (2013); NAT’L LABOR RELATIONS BD, BENCH BOOK
supra note 39; U.S. MERIT SYSTEMS PROTECTION BOARD, HANDBOOK supra note 32.
45

11

accessible for the public. Many agencies could better organize their websites, too. Agencies that
have easily findable, centralized locations on their websites for information about their
adjudicators, like the Department of Labor (see Appendix B), provide the most transparent
disclosures. 49
V.

BEST PRACTICES

Agencies should consider drafting short, plain language descriptions of the relevant policies
concerning their adjudicators and posting it on an intuitively located webpage, such as a page
that provides an overview of the adjudicative body. This description would not need to be
exhaustive, because the agency should also provide citations and links to other key legal
documents on the webpage so that individuals who are interested in more information can find
more comprehensive disclosures.
If, in the process of creating such a disclosure page, agencies discover that some of their
relevant policies are a matter of custom, they should consider documenting those policies so they
may be more effectively disclosed. Agencies could incorporate the creation of this disclosure
page into their next periodic modification of their website.
This approach balances the need for an easily located, plain language disclosure so that
members of the public can easily find information with the need for more thorough disclosures
for practitioners or members of the public who may be interested in a specific facet. It also
minimizes the burden on agencies because so many of these disclosures already exist, and
agencies would primarily link to already-documented policies.
A template of how agencies might structure this disclosure is located in Appendix A.
Examples of how agencies are currently structuring their website to provide some of these
disclosures are located in Appendix B. The template and examples are provided to give agencies
a place to start when considering how to restructure website disclosures about adjudicators.
Certainly, agencies have a wide variety of websites with layouts specific to their agency
structure, so these will need to be adapted.
Additionally, in the vast majority of cases, neither ALJ nor AJ positions will require every
sentence in the template provided, and the content included should be tailored to the specific
adjudicator position. Some agencies may have fewer disclosures to make; others may have even
more policies to disclose. Finally, each agency would need to determine whether any information
should be withheld under the Freedom of Information Act or another source of law or policy,
such as the Privacy Act.
VI.

CONCLUSION

Agencies do make a wide variety of public disclosures about their adjudicators already,
although information is less available for some categories such as adjudicator compensation,
bonuses, discipline procedures, and requirements for removal. But these disclosures are scattered
and difficult for the public to understand. Ultimately, placing information in a notice in the
49

Proactive Disclosures, U.S. DEP’T OF LABOR, supra note 14.

12

Federal Register or deep in an obscure portion of the CFR does little to inform the public about
adjudicator impartiality or the constitutional status of adjudicators. Agencies also already utilize
their websites well for some kinds of disclosures. In what is perhaps a perfectly reasonable
approach to limiting costs and organizing information, agencies have used their websites
primarily to give the public a broad overview of their agency and provide tools that allow the
public to effectively engage with the agency, either through policy-making or adjudications.
Agency websites can be put to better use, however, if agencies create a short webpage that
provides a central location for the public to find already-existing disclosures.
Both agencies and the public would benefit from this format of disclosure. Such a webpage
would enable the public to quickly find information about adjudicators that would increase their
trust in the agency’s adjudicative process. For agencies, it would facilitate comparing practices
and learning from each other’s experiences. It may also prove more cost-effective for agencies
since, in the wake of Lucia, Arthrex, and other cases, many agencies are likely already facing
increased requests for information regarding their adjudicators. The attention of the
administrative law community has turned to these kinds of positions, and it may turn out to be
extremely beneficial for agencies with adjudicators to disclose the kinds of information discussed
in this report. Transparency is a key aspect of good governance, and particularly when it may
also prove to be cost-effective, agencies should undertake efforts to proactively disclose
information when possible.

13

APPENDICES
Appendix A – Template Website Text for ALJs
About Our Administrative Law Judges
Administrative Law Judges (ALJs) at [agency name] conduct hearings and decide cases under
[insert name of authorizing act]. They are part of the [agency component in which ALJs are
located], which is directed by [title of office head] and has offices in [cities]. Visit [link to
agency organization chart] to see how [office] relates to other offices at [agency].
ALJs provide a neutral forum to resolve cases involving [kinds of cases ALJs hear] in a fair,
transparent, and accessible manner. Our ALJs are highly trained, impartial judges, appointed by
[agency official], who [describe qualifications]. ALJs are paid according to the [pay scale for
ALJs with link to the scale] scale (with cost-of-living adjustments for ALJs’ locations) set by
another agency, the Office of Personnel Management.
Cases are assigned to ALJs [in each geographic office] in rotation so far as practicable. The ALJ
assigned to your case is responsible for [job duties, like taking evidence, hearing objections,
issuing decisions]. ALJs are required by statute to perform their functions impartially. 5 U.S.C.
§ 556(b). To ensure impartiality, he or she does not take part in investigative or enforcement
activities, nor does he or she report to officials in the [agency]’s investigative or enforcement
components, including [list investigative/enforcement component(s)]. 5 U.S.C. §§ 554(d), 3105.
The ALJ assigned to your case may not communicate privately about the facts of your case with
other agency officials[, and more details on [agency name]’s rules about communicating with
ALJs are available at [location of agency-specific ex parte prohibitions]].
By law, [agency] does not reward or discipline ALJs for their decisions. [Agency] does not
evaluate ALJs’ performance and can only discipline or remove an ALJ from office if another
agency, the Merit Systems Protection Board, decides after a hearing that good cause supports
doing so. 5 U.S.C. §§ 4301, 7521.
The agency has adopted rules of recusal [link] that allow a participant to request that the ALJ in
charge his or her case be disqualified if the participant believes the ALJ cannot fairly and
impartially decide the cases.
If you are dissatisfied with an ALJ’s decision, you can appeal that decision to [agency
office/official]. Visit [link] for information on appealing an ALJ decision. [Agency
office/official] may also review your case on [its/his or her] own initiative if there is an issue
with the ALJ’s decision.
For Further Information:
•
•
•
•

Hiring Process: [link]
Pay rates: [link]
How cases are assigned to administrative law judges: [link]
Communicating with administrative law judges (ex parte communications): [link]
14

•
•
•
•

Process for assessing allegations of an administrative law judge’s conflict of interest
(recusal and disqualification procedures): [link]
How to appeal an administrative law judge’s decision: [link]
Case processing goals: [link]
Process for handling allegations of an administrative law judge’s misconduct: [link]

See also:
•
•
•

Congress’s rules governing administrative law judges: 5 U.S.C. §§ 554, 557, 3105, 4301,
5372, 7521
OPM’s regulations governing administrative law judges: 5 C.F.R. §§ 930.205, 930.206,
930.207, 930.211.
EO 13,843 (giving agencies control over the hiring process of administrative law judges)

15

Appendix B – Examples of Current Agency Practices
Figure 1 – Department of Labor’s Office of Administrative Law Judges
The Office of Administrative Law Judge’s website provides an example of how to include some
of the relevant information about adjudicators in plain-language text with citations.

16

Figure 2 – Department of Health and Human Service’s Office of Medicare Hearings and
Appeals
The Office of Medicare Hearings and Appeals’ website shows a clear and intuitive way to
organize information about adjudicators.

17

Figure 3 – Internal Revenue Service’s Independent Office of Appeals
The Independent Office of Appeal’s website presents an example of how agencies can use
website text reassure the public about their independence and impartiality in plain language.

18

Figure 4 – Environmental Protection Agency’s Office of Administrative Law Judges
The Office of Administrative Law Judges provides a good example of how an agency can
synthesize a variety of disclosures about administrative adjudicators into a short, plain-language
description.

19

Appendix C – Agency Disclosures Located For This Report
Key for Kinds of Disclosures:
JD = Job Duties
RA = Review of Adjudications
A&Q = Appointment and Qualifications
C = Compensation
E&S = Ex Parte Communications and
Separation of Functions
O = Organizational
Adjudicator
ALJs
All ALJs

E = Evaluation
D&R = Discipline and Removal
M = Miscellaneous
S&A = Supervision and Assignment of Work
R/D = Recusal/Disqualification

Information
Available

Location of
Information

Limited ex parte
communications
No one who has a
role in investigation
or enforcement can
supervise an ALJ
ALJs cannot be
involved in the
investigative or
prosecuting functions
for an agency
Cannot perform
duties inconsistent
with responsibilities
as ALJs
ALJs assigned cases
in rotation so far as is
practicable
ALJs excepted from
performance
appraisals
OPM controls pay
Only removable for
good cause
EO 13843 exempting ALJs
from the competitive
service and taking
authority away from
OPM to run their
selection

5 U.S.C. § 554(d);
557(d)
5 U.S.C. § 554(d)

E&S

5 U.S.C. § 554(d)

JD

5 U.S.C. § 3105

Alternative Location
of Info

Kind of
Disclosure

E&S

5 CFR § 930.207

5 U.S.C. § 3105

JD

S&A

5 USC § 4301

5 CFR § 930.206

E

5 U.S.C. § 5372
5 U.S.C. § 7521

5 CFR § 930.205
5 CFR § 930.211

C
D&R

https://www.whitehou
se.gov/presidentialactions/executiveorder-exceptingadministrative-lawjudges-competitiveservice/

https://www.federalre
gister.gov/documents/
2020/09/21/202017684/administrativelaw-judges;
https://chcoc.gov/cont
ent/executive-order%E2%80%93exceptingadministrative-lawjudges-competitive-

A&Q

20

service;
https://www.opm.gov/
services-foragencies/administrativ
e-law-judges/opmguidance-alj-loanprogram-datedaugust-1-2018.pdf

Social Security
Administration
- ALJ

Senior administrative
law judges pay
Senior administrative
law judge
appointments and
terms
Division of
supervisory authority
between OPM and
agencies
Disqualification/Rec
usal

5 CFR § 930.209

C

5 CFR § 930.209

A&Q

5 CFR § 930.201

S&A

A prohibition on the
representative, not
the ALJ,
communicating
outside the normal
course of business in
a way that attempts
to inappropriately
influence the
processing or
outcome of claims
Deputy
Commissioner for
Hearings Operations
or his delegate
chooses ALJS to
conduct hearings
ALJ can't serve on
Appeals Council for
a case where they
have already been
previously involved
No ex parte contacts
with ALJ for civil
monetary penalties
cases
ALJ decisions are
reviewed by the
Appeals Council

20 C.F.R. § 404.1740;
20 C.F.R. §416.1540

E&S

20 C.F.R. § 404.929;
20 C.F.R. § 416.1429

S&A

20 C.F.R. § 422.205

R/D

20 C.F.R. § 498.205

E&S

20 C.F.R. § 404.940;
20 C.F.R. § 416.1440

20 CFR § 404.970; 20
CFR § 416.1470

https://www.ssa.gov/
OP_Home/hallex/I02/I-2-1-60.html

https://secure.ssa.gov/
apps10/poms.nsf/lnx/0
203101001;

R/D

RA

21

before the
administrative
process ends and the
appeal proceeds to
federal court

Description of how
SSA deals with
complaints about
ALJ behavior

Division of Quality
Service receives/reviews/inve
stigates allegations of
ALJ misconduct
Division of Quality
Review - preeffectuation reviews
of hearing level
decisions and posteffectuation focused
reviews
Division of Quality
Service can require
mentoring, training,
counseling, or
disciplinary action
for ALJs

Office of
Medicare
Hearings and
Appeals (HHS)
- ALJ

Organizational Chart

Process for hiring
ALJs post-new EO

https://www.federalre
gister.gov/documents/
2019/03/15/201904817/social-securityruling-19-1p-titles-iiand-xvi-effect-of-thedecision-in-lucia-vsecurities-and;
https://www.ssa.gov/
OP_Home/rulings/oas
i/33/SSR82-13-oasi33.html
https://www.federalre
gister.gov/documents/
2013/01/29/201301833/social-securityruling-ssr-13-1p-titlesii-and-xvi-agencyprocesses-foraddressingallegations-of
https://www.ssa.gov/O
P_Home/hallex/I-01/I1-8.html

https://www.ssa.gov/O
P_Home/hallex/I-03/I3-0-20.html

D&R

https://secure.ssa.gov/
apps10/poms.nsf/lnx/0
203103300

D&R

https://secure.ssa.gov/
apps10/poms.nsf/subc
hapterlist!openview&r
estricttocategory=020
44

S&A

https://www.federalre
gister.gov/documents/
2013/01/29/201301833/social-securityruling-ssr-13-1p-titlesii-and-xvi-agencyprocesses-foraddressingallegations-of
https://www.hhs.gov/a
bout/agencies/omha/ab
out/organizationalchart/index.html

D&R

https://www.hhs.gov/s
ites/default/files/alj-

A&Q

O

22

Secretary provides
ALJs with continuing
education training
ALJs not allowed to
review a national
coverage
determination
In certain kinds of
cases, the
commissoner of
social security
assigns cases to ALJs
ALJ decisions are
reviewable by the
Medicare Appeals
Council, which is in
the Departmental
Appeals Board of
HHS

In civil monetary
cases, chair of the
departmental appeals
board designates
which ALJ conducts
hearing
Recusal standards

Rules and regs
binding on ALJs
In LCD review, no
ex parte contacts
allowed
Adjudication time
frames

appointmentprocess.pdf
42 USC § 1395ff

S&A

42 USC § 1395ff

JD

42 USC § 406

S&A

42 USC § 1395ff

42 CFR § 405.904;
https://www.hhs.gov/a
bout/agencies/omha/th
e-appealsprocess/level4/index.html;
https://www.federalre
gister.gov/documents/
2020/09/17/202020550/medicareprogramadministrative-lawjudge-hearingprogram-formedicare-claim-andentitlement-appeals

RA

42 CFR § 422.1024

S&A

42 CFR §§ 405.1026;
422.1026; 423.2026;
423.1026; 498.45
42 CFR § 423.2063

R/D

42 CFR § 426.406

E&S

42 CFR § 1016; 42
CFR § 2016

M

https://www.hhs.gov/s
ites/default/files/ocpm
-adjudication-timeframes-caseprioritization-and-

M

23

escalations-07-122019.pdf
How OMHA
prioritizes cases

Job descriptions for
everyone in OMHA
including ALJs and
who they supervise

Department of
Labor - ALJ

Whole website page
on ALJs post-Lucia
and how the agency
is dealing with it;
also posted resumes
of a bunch of ALJs
appointed after
2018's EO
Notice on procedures
for appointing ALJs
post-EO

Organizational Chart

Prohibition on ex
parte
communications
Every judge working
in each office
Chief judge assigns
ALJs to cases
Disqualification/Rec
usal

https://www.hhs.gov/s
ites/default/files/ocpm
-adjudication-timeframes-caseprioritization-andescalations-07-122019.pdf
https://www.federalre
gister.gov/documents/
2005/06/23/0512468/office-ofmedicare-hearingsand-appealsstatement-oforganizationfunctions-anddelegations-of
https://www.dol.gov/a
gencies/oalj/topics/inf
ormation/Proactive_di
sclosures_ALJ_appoin
tments

https://www.federalre
gister.gov/documents/
2018/08/30/201818924/procedures-forappointment-ofadministrative-lawjudges-for-thedepartment-of-labor
https://www.dol.gov/si
tes/dolgov/files/OALJ/
OALJ_OrgChart.pdf
29 CFR § 18.14

M

https://www.federalre
gister.gov/documents/
2011/04/11/20118356/statement-oforganizationfunctions-anddelegations-ofauthority

A&Q

A&Q

O

https://www.dol.gov/a
gencies/oalj/contacts/
ADDRESS

https://www.dol.gov/a
gencies/oalj/contacts/
ADDRESS
29 CFR § 18.12
29 CFR § 18.16

O

E&S

O

S&A
https://www.dol.gov/a
gencies/oalj/about/FA
Q15

R/D

24

Some ALJ decisions
can be reviewed by
the Secretary (ALJs
review cases under
over 80 statutes and
each statute
determines the
process for review of
ALJ decisions but I
have included a few
examples); ARB also
has authority to
review
Postings of ALJ
positions including
qualifications

National Labor
Relations
Board - ALJ

29 CFR § 18.95

https://www.federalre
gister.gov/documents/
2019/04/23/201908092/vacancyposting-for-a-districtchief-administrativelaw-judge
Organizational Chart https://www.nlrb.gov/
about-nlrb/who-weare/organization-chart
Listing of every ALJ https://www.nlrb.gov/
and in which office
about-nlrb/who-wethey work and their
are/divisionbackgrounds
judges/divisionjudges-directory
Their target metric
https://www.nlrb.gov/s
for ALJ improvement ites/default/files/attach
is speed of deciding
ments/pages/nodecases in their
130/nlrb-par-2019Performance and
design-508.pdf
Accountability report
Trial ALJ is not
https://www.nlrb.gov/s
allowed to be
ites/default/files/attach
selected by the chief
ments/pages/nodeALJ as a settlement
174/ulp-manualjudge for the same
september-2020.pdf
case
ALJ assigned to each 29 CFR § 102.34
case by Chief Judge
or Deputy or
Associate Chief
Judge
Rules for ex parte
29 CFR §§102.126communications
102.134

29 USC § 1813; 29
USC § 3246;
https://www.federalre
gister.gov/documents/
2020/03/06/202004019/secretarysorder-01-2020delegation-ofauthority-andassignment-ofresponsibility-to-the

RA

A&Q

O

O

E

R/D

https://www.nlrb.gov/
sites/default/files/attac
hments/pages/node82/alj-bench-book2020.pdf
https://www.nlrb.gov/
sites/default/files/attac
hments/pages/node82/alj-bench-book2020.pdf

S&A

E&S

25

Disqualification/Rec
usal

29 CFR § 102.36

ALJ can't advise or
consult with the
Board on certain
subjects
ALJ decisions on
unfair labor practice
cases are reviewed
by the Board
members and can't be
reviewed by anyone
else
If Board has fewer
than three members,
Chief ALJ has
authority over
appointment or
transfer

29 USC § 154

If Board has fewer
than three members,
Chief ALJ has
authority over
demotion or
discharge of any ALJ

Occupational
Safety and
Health Review
Commission ALJ

List of ALJs, where
they work, and their
backgrounds

Organizational Chart

Tracking ALJ rates
of processing cases
and trying to speed
them up (not clear
that this has any
impact on individual
ALJ's employment
outcomes)

29 USC § 154; 29
CFR § 101.12

https://www.nlrb.gov/
sites/default/files/attac
hments/pages/node82/alj-bench-book2020.pdf

R/D

JD

https://www.nlrb.gov/
sites/default/files/attac
hments/pages/node174/guide-to-boardprocedures-2020august-2020-final.pdf

RA

https://www.federalre
gister.gov/documents/
2011/11/29/201130699/ordercontingentlydelegating-authorityto-the-chairman-thegeneral-counsel-andthe-chief
https://www.federalre
gister.gov/documents/
2011/11/29/201130699/ordercontingentlydelegating-authorityto-the-chairman-thegeneral-counsel-andthe-chief
https://www.oshrc.gov
/about/administrativelaw-judges/

A&Q

https://www.oshrc.gov
/assets/1/6/Org_Chart_
Aug_10,_2020.pdf
https://www.oshrc.gov
/assets/1/6/20182022_Strategic_Plan_
February_12_2018.pdf

O

D&R

O

E

26

ALJs are provided
with training

https://www.oshrc.gov
/assets/1/6/20182022_Strategic_Plan_
February_12_2018.pdf
29 CFR § 2200.105
https://www.oshrc.go
v/assets/1/6/Commissi
on_Rules_with_TOC_
for_website%5Eupdat
ed_100419.pdf;
https://www.oshrc.go
v/guide-simplifiedproceedings/
https://www.oshrc.gov
/assets/1/6/Guide_to_
Review_Commission_
Procedures__October_2019.pdf
29 USC § 661
29 CFR § 2200.92;
https://www.oshrc.go
v/about/how-oshrcworks/
29 CFR § 2200.68
https://www.oshrc.go
v/assets/1/6/Commissi
on_Rules_with_TOC_
for_website%5Eupdat
ed_100419.pdf
29 USC § 661

S&A

29 USC § 661

A&Q

Organizational Chart
(shows that there is
quality review in
there)

https://www.bva.va.go
v/docs/Board_of_Vete
rans_Appeals_Organiz
ational_Chart.pdf

O

Description of hiring
process for judges

https://www.blogs.va.
gov/VAntage/53175/p
resident-trumpapprovesappointment-fouradditional-judges-vasboard-veteransappeals/
38 USC § 7101

A&Q

No ex parte
communications

Chief ALJ assigns
cases to ALJ

ALJ decisions are
reviewed by the
Commission if
appealed
Disqualification/Rec
usal

ALJs have to be paid
at least GS-16
Chairman is in
charge of appointing
ALJs
AJs
Board of
Veterans'
Appeals Veterans Law
Judge

Performance
incentives can be
awarded to judges by
reason of that
member's service if

E&S

S&A

RA

R/D

C

C

27

the Chairman
determines they
deserve it
Appointment
Pay
Performance
Reviews

Judge who made the
original decision
cannot participate in
reconsideration
Bound by regulations
of the Department,
instructions of the
Secretary, and
precedent opinions of
the chief legal officer
of the Department
Board is the final
appellate body in the
Department and
decisions can be
appealed to federal
court (Chairman can
order a
reconsideration, but
Board still does the
reconsideration)
Chairman assigns
proceedings to judges
Disqualification/Rec
usal
Appellants fill out a
form at the end of
their hearing to help
assess effectiveness
of current hearing
procedures; agency
also solicits
information from
veterans through
calls
Description of
qualifications

38 USC § 7101A
38 USC § 7101A
38 USC § 7101A

https://www.federalre
gister.gov/documents/
2003/02/10/033040/appealsregulations-title-formembers-of-theboard-of-veteransappeals

A&Q
C
E

38 USC § 7103

R/D

38 USC § 7104

M

38 USC § 7103

38 CFR § 20.1100;
https://www.bva.va.go
v/docs/Decision_Revi
ew_Process_Slides.pd
f

RA

38 CFR § 20.106

38 CFR § 20.604

S&A

38 CFR § 20.107
https://www.federalre
gister.gov/documents/
2014/12/29/201430347/agencyinformationcollection-board-ofveterans-appealscustomer-satisfactionwith-hearing-survey
https://www.federalre
gister.gov/documents/

R/D
https://www.federalre
gister.gov/documents/
2014/01/17/201400895/agencyinformationcollection-board-ofveterans-appealsvoice-of-the-veteranappellant-surveys

E

A&Q

28

Executive
Office for
Immigration
Review Immigration
Judge

Suggests there are
case processing goals

Pay rates table

Names and bios on a
number of judges
(not all)
Locations of all the
immigration judge
offices and which
judges work at each
Organizational Chart

Board of
Immigration Appeals
hears appeals from
Immigration Judges

Describes some ways
the EOIR is separate
from other agencies
How to raise a
concern regarding
conduct of
Immigration Judge
No ex parte contacts

2003/02/10/033040/appealsregulations-title-formembers-of-theboard-of-veteransappeals
https://www.justice.go
v/eoir/about-office

https://www.justice.go
v/eoir/page/file/12365
26/download
https://www.justice.go
v/eoir/office-of-thechief-immigrationjudge-bios
https://www.justice.go
v/eoir/eoirimmigration-courtlisting
https://www.justice.go
v/eoir/eoirorganizationchart/chart
8 CFR § 1003.10

E

C

O

O

O

https://www.justice.go
v/eoir/page/file/12585
36/download;
https://www.federalre
gister.gov/documents/
2019/07/23/201915553/agencyinformationcollection-activitiesproposed-collectioncomments-requestednotice-of-appeal

https://www.justice.go
v/eoir/page/file/12585
36/download
https://www.justice.go
v/eoir/page/file/12585
36/download
https://www.justice.go
v/eoir/page/file/12585
36/download

RA

E&S

D&R

https://www.justice.go
v/eoir/page/file/11963
41/download;
https://www.justice.go

E&S

29

Discipline process
for improper conduct
Rules for conduct
including not
practicing law in
front of federal
agencies, not
participating in
matters where they
have a financial
interest, not
accepting
compensation from
other sources, etc.
Statistics about
complaints about IJs
Performance
evaluations exist

To work at EOIR you
have to be a US
citizen
Chief Immigration
Judge assigns
work/cases to IJs
Attorney General
appoints IJs
Some discussion of
the qualifications for
being an IJ

Patent Trial
and Appeal
Board Administrative
Patent Judge

Ex parte
communications not
allowed, with
exceptions
Extensive description
of the process for

https://www.justice.go
v/eoir/page/file/10394
81/download
https://www.justice.go
v/sites/default/files/eoi
r/legacy/2013/05/23/Et
hicsandProfessionalis
mGuideforIJs.pdf

https://www.justice.go
v/eoir/page/file/11009
76/download
8 CFR § 1003.0

v/sites/default/files/eoi
r/legacy/2013/05/23/E
thicsandProfessionalis
mGuideforIJs.pdf
https://www.justice.go D&R
v/eoir/page/file/11009
51/download
M

D&R

8 CFR § 1003.0

https://www.justice.go E
v/sites/default/files/eoi
r/legacy/2009/06/04/E
OIRs22Improvements
Progress060509FINA
L.pdf
A&Q

8 CFR § 1003.9

S&A

8 CFR § 1003.10

A&Q

https://www.federalre
gister.gov/documents/
2014/07/11/201416279/designation-oftemporaryimmigration-judges
37 CFR § 41.11

A&Q

https://www.uspto.gov
/sites/default/files/doc

37 CFR § 42.5

E&S

35 USC § 6

S&A

30

Environmental
Protection
Agency Environmental
Appeals Board
Judge

assigning cases to
judges
Judges provide list of
conflicts to person
assigning cases and
judge is ultimately
responsible for
avoiding a conflict
There is judicial
review of decisions
from inter partes
reexamination
proceedings and
decisions arising out
of interferences
APJs appointed by
Secretary of
Commerce, have to
have extensive patent
legal experience
before appointment

uments/SOP%201%20
R15%20FINAL.pdf
https://www.uspto.gov
/sites/default/files/doc
uments/SOP%201%20
R15%20FINAL.pdf

Description of hiring
process

https://www.uspto.gov
/sites/default/files/doc
uments/ptab_brochure
_v2_4_10_14.pdf
https://www.youtube.c
om/watch?v=I_BDHl12tQ&feature=yout
u.be

A&Q

37 CFR § 11.803

D&R

https://yosemite.epa.g
ov/oa/EAB_Web_Doc
ket.nsf/General+Infor
mation/Frequently+As
ked+Questions?Open
Document#1
40 CFR § 22.8

O

Training offered on
teleworking/technolo
gy; discuss ongoing
training on areas of
patent law
There is a way for
practitioners to report
misconduct by a
judge
There are only three
of them currently,
and their bios are
posted

R/D

35 USC § 141

37 CFR § 41.81; 37
RA
CFR § 90.1;
https://www.uspto.go
v/web/offices/pac/mpe
p/mpep-1200.pdf

35 USC § 6

https://www.uspto.go
v/patents-applicationprocess/patent-trialand-appealboard/ptab-inventors;
https://www.youtube.
com/watch?v=uJ_3Gx
8hegU&feature=youtu
.be

No ex parte contact
with parties including
agency officials
involved in
prosecuting
EAB judges are
40 CFR § 1.25
appointed by the

A&Q

S&A

E&S

https://www.federalre
gister.gov/documents/

A&Q

31

Social Security
Administration
Administrative
Appeals Judge

Administrator, have
12 year terms, and
are eligible for reappointment (also
they are SES
employees)
Disqualification/recu
sal
Qualifications to be
EAB judge
Administrator can
limit EAB's authority
to interpret statutes
or regulations
through issuing his or
her own binding
legal interpretation
Most Board decisions
are final, except for
cases invovling
penalty assessments
against other federal
agencies which can
be appealed to the
Administrator; can
also appeal to federal
court; however, EAB
can refer any case to
the Administrator
that it deems
appropriate to on
civil penalties cases
Normally there are
four judges and cases
are assigned to a
random panel of
three; they rotate
which one of them
serves as the lead
judge for
administrative
matters, but no chief
judge
Disqualification/Rec
usal

2020/08/21/202016257/streamliningprocedures-forpermit-appeals

40 CFR § 22.4

R/D

40 CFR § 1.25

A&Q

40 CFR § 1.25

M

40 CFR § 22.4

https://yosemite.epa.g
ov/oa/EAB_Web_Doc
ket.nsf/General+Infor
mation/Frequently+As
ked+Questions?Open
Document#17

RA

https://yosemite.epa.g
ov/oa/EAB_Web_Doc
ket.nsf/8f612ee7fc725
edd852570760071cb8
e/889f7aab01cf481c85
257afd0054d515/$FIL
E/Practice%20Manual
%20August%202013.
pdf

S&A

https://www.ssa.gov/O
P_Home/hallex/I-03/I3-1-40.html

R/D

32

No ex parte contacts
between Appeals
Council and office of
Inspector General in
cases involving fraud
Appeals Council
review is the end of
the administrative
review process, so
their decisions are
reviewed by federal
courts

https://www.ssa.gov/O
P_Home/hallex/I-03/I3-10-1.html

Case Assignment

https://www.ssa.gov/O
P_Home/hallex/I-03/I3-0-7.html
https://www.ssa.gov/o
rg/ssachart.pdf
5 USC § 5372b
https://www.ssa.gov/o
rg/orgOARO.htm#oao
1

S&A

https://www.federalre
gister.gov/documents/
2020/11/16/202023856/hearings-heldby-administrativeappeals-judges-of-theappeals-council
https://www.ssa.gov/a
ppeals/about_ac.html

E&S

Organizational chart
Compensation
Descriptions of all
the roles in the Office
of Appellate
Operations

Description of how
SSA treats AAJs
like ALJs to
maintain
independence

Department of
Labor Administrative
Appeals Judge
at
Administrative
Review Board
(ARB) and
Benefits

Judges do work other
than adjudicate:
quality review,
policy
interpretations, and
court-related
functions
For Benefits Review
Board, Secretary
appoints the AAJs
and designates one as
chairman

20 CFR § 404.981; 20
CFR § 416.1481

33 USC § 921

E&S

https://secure.ssa.gov/
apps10/poms.nsf/lnx/0
203101001;
https://www.federalre
gister.gov/documents/
2016/03/14/201605663/social-securityacquiescence-rulingar-16-17-boley-vcolvin-judicialreview-of-anadministrative-law

RA

O
C
O

JD

https://www.dol.gov/a
gencies/brb/mission;
20 CFR § 801.201

A&Q

33

Review Board
(BRB)
BRB decisions are
appealed to federal
court

33 USC § 921

Secretary of Labor
promulgates rules
that govern BRB
Disqualification of
AAJs at BRB
ARB reports to the
Secretary of Labor

20 CFR § 801.104

M

20 CFR § 801.203

R/D

https://www.federalre
gister.gov/documents/
2020/03/06/202004019/secretarysorder-01-2020delegation-ofauthority-andassignment-ofresponsibility-to-the
https://www.federalre
gister.gov/documents/
2020/03/06/202004019/secretarysorder-01-2020delegation-ofauthority-andassignment-ofresponsibility-to-the
https://www.federalre
gister.gov/documents/
2020/03/06/202004019/secretarysorder-01-2020delegation-ofauthority-andassignment-ofresponsibility-to-the
https://www.federalre
gister.gov/documents/
2020/03/06/202004019/secretarysorder-01-2020-

O

ARB consists of five
members, one of
whom is Chair and
another is Vice Chair

Secretary has the
authority to remove
any ARB member at
any time

ARB members have
terms of four years or
less but can be
extended by the
Secretary

20 CFR § 802.410;
https://www.dol.gov/a
gencies/brb/mission;
https://www.federalre
gister.gov/documents/
2006/01/25/06696/delegation-ofauthority-andassignment-ofresponsibility-to-thebenefits-review-board

RA

O

D&R

A&Q

34

Secretary has
discretion to review
ARB decisions and
ARB may refer cases
to the Secretary

Qualifications for
ARB Members

Recently removed
the formal, multi-step
process for making
appointments to BRB
and ARB

Both agencies are
excepted from
competitive service

BRB members have
indefinite terms
subject to the
discretion of the
Secretary

BRB qualifications

delegation-ofauthority-andassignment-ofresponsibility-to-the
https://www.federalre
gister.gov/documents/
2020/03/06/202004019/secretarysorder-01-2020delegation-ofauthority-andassignment-ofresponsibility-to-the
https://www.federalre
gister.gov/documents/
2019/10/03/201921487/vacancyposting-for-a-memberof-the-administrativereview-board
https://www.federalre
gister.gov/documents/
2020/03/06/202004020/secretarysorder-02-2020procedures-forappointment-ofindividuals-todepartment-of-laborappellate
https://www.federalre
gister.gov/documents/
2020/03/06/202004274/exceptedservice-consolidatedlisting-of-schedules-ab-and-c-exceptions
https://www.federalre
gister.gov/documents/
2006/01/25/06696/delegation-ofauthority-andassignment-ofresponsibility-to-thebenefits-review-board
https://www.federalre
gister.gov/documents/
2019/05/02/201908900/vacancyposting-for-a-member-

RA

https://www.federalre A&Q
gister.gov/documents/
2020/03/19/202005698/vacancyposting-chair-of-theadministrative-reviewboard
old system:
A&Q
https://www.federalre
gister.gov/documents/
2018/07/27/201816127/secretarysorder-05-2018

A&Q

A&Q

A&Q

35

Department of
Agriculture National
Appeals
Division
Administrative
Judge

Organizational chart
and locations

AJs appointed by
Office of Hearings
and Appeals Director
Suggests that quality
control exists but
provides no detail
Case processing
goals exist

No ex parte contacts

of-the-benefitsreview-board
https://www.nad.usda.
gov/content/organizati
on

https://www.nad.usda.
gov/content/organizati
on
https://www.nad.usda.
gov/content/organizati
on
https://www.nad.usda.
gov/sites/default/files/
pictures/oha_strategic
_plan_8-2818_final.pdf
7 USC § 6997

O

7 USC § 6992; 7 CFR
§ 2.34

A&Q

E

E

7 CFR § 11.7;
https://www.nad.usda.
gov/content/commonappeal-relatedquestions
https://www.nad.usda.
gov/content/commonappeal-relatedquestions

E&S

Director assigns AJs
to cases

7 CFR § 11.8

Statute mandates
independence of
NAD from the rest of
DOA except for the
Secretary and Deputy
Secretary
No members of the
division may be
political appointees
Director reviews
decisions by AJs

7 USC § 6992

E&S

7 USC § 6992

A&Q

Description of
positions that
supervise AJs
NAD collects
customer survey info
on the quality of AJs

7 CFR § 11.22

O

https://www.federalre
gister.gov/documents/
2013/09/25/201323305/submission-for-

E

7 USC § 6998

7 CFR § 11.9;
https://www.nad.usda.
gov/sites/default/files/
pictures/nad-guideoct-2008.pdf

S&A

RA

36

U.S.
Citizenship and
Immigration
Services Administrative
Appeals
Officer

Case processing
goals and whether
they were met

Not independent of
parent agency and
applies agency
policies and legal
interpretations
Cannot discuss the
merits of a case

Internal
Revenue
Service Appeals
Officer

Organizational chart

Appeals team
manager assigns case
to appropriate
appeals officer
Ex parte
communications
prohibition
(extensive)
Restrictions on
outside speeches and
articles for
publication
Description of
Appeals Quality
Measurement System
Appeals Office
decision is generally
reviewable in federal
court
Appeals Office is
designed to be
independent and
report only to

omb-review-commentrequest
https://www.uscis.gov/
administrativeappeals/aaoprocessing-times

E

https://www.uscis.gov/
tools/aao-practicemanual/chapter-1-theadministrativeappeals-office
https://www.uscis.gov/
administrativeappeals/aao-practicemanual/chapter-6contacting-theadministrativeappeals-office#6.1c
https://www.irs.gov/pu
b/irs-utl/appeals-orgstructure.pdf

E&S

https://www.irs.gov/pu
b/irsutl/welcome_to_appea
ls_final_script.pdf
https://www.irs.gov/ir
m/part8/irm_08-001010

S&A

https://www.irs.gov/ir
m/part8/irm_08-001001

M

https://www.irs.gov/ir
m/part8/irm_08-001007
26 CFR § 301.7430-1

E

26 USC § 7803

E&S

O

E&S

https://www.irs.gov/p
ub/irs-pdf/p1.pdf

RA

https://www.irs.gov/a
ppeals/appeals-anindependentorganization;
https://www.federalre

E&S

37

Commissioner of
Internal Revenue

Merit Systems
Protection
Board Administrative
Judge

Appeals Officers
report to Chief of
Appeals
Office of Regional
Operations reviews
AJ decisions for
quality, timeliness,
consistency with law,
regulations, and
policy
Fraud/waste/abuse/m
ismanagement, etc.
of MSPB employees
are reported to the
Inspector General
Organizational chart

gister.gov/documents/
2020/11/17/202025240/irs-review-ofregulatory-and-otherrelief-to-supporteconomic-recovery
26 USC § 7803

O

https://www.mspb.gov
/MSPBSEARCH/view
docs.aspx?docnumber
=1279407&version=1
284518&application=
ACROBAT

E

https://www.mspb.gov
/contact/ig.htm

D&R

https://www.mspb.gov
/About/organization.ht
m
They're starting to
https://www.mspb.gov
track reversals and
/MSPBSEARCH/view
remands caused by
docs.aspx?docnumber
AJ error or oversight =1699796&version=1
705740&application=
ACROBAT
Case processing goal: https://www.mspb.gov
try to adjudicate all
/mspbsearch/viewdocs
appeals in 120 days
.aspx?docnumber=241
of receipt
913&version=242182
&application=ACROB
AT
Chief AJ assigns
https://www.mspb.gov
cases to AJs
/mspbsearch/viewdocs
.aspx?docnumber=241
913&version=242182
&application=ACROB
AT
Disqualification/recu 5 CFR § 1201.42
https://www.mspb.go
sal
v/mspbsearch/viewdo
cs.aspx?docnumber=2
41913&version=2421
82&application=ACR
OBAT
Quality review: every https://www.mspb.gov
decision written by
/mspbsearch/viewdocs

O

E

E

S&A

R/D

S&A

38

an AJ at GS-14 or
lower must be
reviewed prior to
issuance by CAJ;
complex cases by
GS-15s are reviewed
pre-issuance but less
complex cases
reviewed postissuance
AJs are paid on the
GS scale

Ex parte
communications are
prohibited if they
involve the merits of
the case or if a
written submission is
required (extensive
discussion)
MSPB decisions are
reviewed in federal
court

Appointment of
personnel for the
Board are not subject
to approval or
supervision of OPM
or the Executive
Office of the
President

.aspx?docnumber=241
913&version=242182
&application=ACROB
AT

https://www.mspb.gov
/mspbsearch/viewdocs
.aspx?docnumber=241
913&version=242182
&application=ACROB
AT
5 CFR § 1201.102
https://www.mspb.go
v/mspbsearch/viewdo
cs.aspx?docnumber=2
41913&version=2421
82&application=ACR
OBAT

C

5 USC § 7703

RA

5 USC § 1204

5 CFR § 1201.127;
https://www.mspb.go
v/appeals/appeals.htm
#jr;
https://www.federalre
gister.gov/documents/
2000/03/10/005903/opportunity-tofile-amicus-briefs-injerry-c-sturdy-vdepartment-of-thearmy-mspb-docket-no

E&S

A&Q

39

Appendix D – Excerpts of ACUS Report and Law Review Articles

40

This report was prepared for the consideration of the Administrative Conference of the United States. The opinions, views and
recommendation expressed are those of the authors and do not necessarily reflect those of the members of the Conference or its
committees, except where formal recommendations of the Conference are cited.