Administrative Conference of the United States
NON-ALJ ADJUDICATORS IN FEDERAL AGENCIES:
STATUS, SELECTION, OVERSIGHT, AND REMOVAL
Final Report, Updated: September 24, 2018
This updated version of the report includes a note at page 18 from the Office of the
Chairman identifying a correction recommended by an agency official.

Kent Barnett*

Malia Reddick**

Logan Cornett***

Russell Wheeler****

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.

* Associate Professor, University of Georgia

** Manager, Quality Judges Initiative, IAALS

Senior Research Analyst, Institute for the
Advancement of the American Legal System
(IAALS)

****

***

IAALS; Visiting Fellow, The Brookings
Institution; President, The Governance Institute

TABLE OF CONTENTS
EXECUTIVE SUMMARY ............................................................................................................... 1
I.

Non-ALJ Hearings and Prior Research ......................................................................... 5
A.

Baseline: Administrative Law Judge Hearings ..................................................... 7

B.

Non-ALJ Hearings .................................................................................................. 8

C.

Prior Studies Concerning Non-ALJs ...................................................................... 9
1.

The Frye Study ....................................................................................................... 9

2.

1992 ACUS Report .................................................................................................10

3.

The Limon Study ...................................................................................................11

4.

The Asimow Study .................................................................................................11

II.

Purpose, Scope, and Methodology of Project.............................................................12

A.

Purpose...................................................................................................................12

B.

Scope ......................................................................................................................13

C.

Survey Design and Methodological Limitations ...................................................15

III.

Data Set .....................................................................................................................17

IV.

Survey Data ...............................................................................................................17

A.

Types of Non-ALJs .................................................................................................18
1.

Number of Non-ALJs .............................................................................................18

2.

Titles ......................................................................................................................21

3.

Salaries...................................................................................................................22
a.

Non-ALJs on General-Service Pay Scales .........................................................23

b.

Non-ALJs on Special Pay Scales ........................................................................27

B.

Types of Non-ALJ Oral Hearings ..........................................................................31
1.

Nature of Hearings ................................................................................................31

2.

Agency as Party .....................................................................................................33

3.

Appeals and Finality..............................................................................................35

4.

Case-Processing Goals ...........................................................................................37

C.

Non-ALJ Selection .................................................................................................38

D.

Non-ALJ Oversight and Independence .................................................................41

1.

Separation of Functions .........................................................................................41
a.

Non-ALJ Functions ............................................................................................41

b.

Reporting Relationships .....................................................................................44

2.

Ex Parte Communications .....................................................................................46

3.

Physical Separation ...............................................................................................49
ii

4.

Recusal Requirements ...........................................................................................50

5.

Performance Appraisals and Bonuses ...................................................................51

6.
V.

a.

Subject to Performance Appraisals ....................................................................52

b.

Nature of Performance Appraisals ....................................................................53

c.

Bonus Eligibility .................................................................................................55

d.

Precautions with Performance Appraisals and Bonuses ..................................58
Non-ALJ Removal ..................................................................................................60

Suggested Alternative Practices ...............................................................................61

A.

Non-ALJ Selection .................................................................................................62

B.

Non-ALJ Oversight and Independence .................................................................64

C.

Non-ALJ Removal ..................................................................................................69

D.

Agency Transparency and Assessment .................................................................71

APPENDIX A ..............................................................................................................................74
APPENDIX B ..............................................................................................................................88
APPENDIX C ..............................................................................................................................93

Figure 1 – Number of Reported Non-ALJs .............................................................................19
Figure 2 – Agencies Reporting >25 Non-ALJs, excl. Commerce ............................................21
Figure 3 – Non-ALJ Titles.......................................................................................................22
Figure 4 – Pay Scales for Non-ALJs (GS vs. Special Scales), incl. Patent Examiners (n=9507)
.................................................................................................................................................24
Figure 5 – Pay Scales for Non-ALJs (GS vs. Special Scales), excl. Patent Examiners (n=1651)
.................................................................................................................................................24
Figure 6 – Non-ALJs on GS Pay Scale, incl. Patent Examiners ............................................25
Figure 7 – Non-ALJs on GS Pay Scale, excl. Patent Examiners ............................................26
Figure 8 – Non-ALJs on GS Pay Scale, by Agency, excl. Patent Examiners .........................27
Figure 9 – Special pay Scales for Non-ALJs (n=710) .............................................................28
Figure 10 – AAJ Pay Scale (n=64) ..........................................................................................29
Figure 11 – BCA Judges' Pay Scale (n=22) .............................................................................29
Figure 12 – IJs' Pay Scale (n=310) ..........................................................................................30
Figure 13 – SES, SL/ST, AD Pay Scales for Non-ALJs (n=313).............................................31
Figure 14 – Subject Matter of Non-ALJ Hearings (n=47) ......................................................32
Figure 15 – Whether Agency is a Party in Non-ALJ Hearing Types (n=47) .........................34
Figure 16 – Finality of Non-ALJ Decision by Non-ALJ Hearing Type (n=47).......................35
iii

Figure 17 – Nature of Administrative Appellate Proceedings (n=25) ....................................36
Figure 18 – Case-Processing Goals (n=47)..............................................................................38
Figure 19 – Minimum Qualifications (Initial Hires) (n=27) ...................................................39
Figure 20 – Minimum Qualifications (Existing Employees) (n=27).......................................40
Figure 21 – Required Separation of Functions (n=37) ...........................................................42
Figure 22 – Separation of Functions for Certain Hearings (n=17) ........................................43
Figure 23 – Source(s) for Separation-of-Functions Requirements (n=10) .............................44
Figure 24 – Non-ALJs' Direct Supervisors (n=37) ..................................................................45
Figure 25 – Prohibitions on Ex Parte Communications (n=37) .............................................47
Figure 26 – Sources of Limitations on Ex Parte Communications (n=12) .............................48
Figure 27 – Physical Separation (n=37)..................................................................................50
Figure 28 – Sources of Disqualification Obligation (n=31).....................................................51
Figure 29 – Types Subject to Performance Appraisals (n=37) ...............................................52
Figure 30 – Number of Non-ALJs & Performance Appraisals (n=10,831) ............................53
Figure 31 – Nature of Performance Appraisals (n=26) ..........................................................54
Figure 32 – Bonus Eligibility, by Types of Non-ALJs Subject to Performance Appraisals
(n=28) .......................................................................................................................................55
Figure 33 – Bonus Eligibility, by No. of Non-ALJs (n=10,831) ..............................................56
Figure 34 – Percentage of Non-ALJs Who Received Bonuses in 2017 (n=15) .......................56
Figure 35 – Bonus Ranges (n=10) ...........................................................................................57
Figure 36 – Precautions to Protect Impartiality (n=17) .........................................................59
Figure 37 – Nature of Precautions, Categorized (n=17) .........................................................60
Figure 38 – Protection from At-Will Removal (n=36) .............................................................61

iv

EXECUTIVE SUMMARY
Federal administrative adjudication dwarfs federal judicial adjudication in volume and
variety. Some of these agency adjudications, such as those over which approximately 2,000
administrative law judges (“ALJs”) preside, share a statutory framework under the
Administrative Procedure Act (“APA”). The APA also provides uniform provisions for ALJs
that seek to protect ALJs from undue agency interference with their decisionmaking. This
framework permits relatively easy interagency comparison and discussion.
But these APA hearings are only a fraction of agencies’ adjudicatory hearings. Instead, most
administrative hearings are before adjudicators who are not ALJs. These adjudicators—who
number more than 10,000—go by numerous titles but are often collectively called “non-ALJ
adjudicators,” “non-ALJ-hearing officers,” “administrative judges,” or variations of those
terms. In this paper, we use the simpler (and admittedly imprecise) term “non-ALJs.”
Likewise, we refer to (and define in more detail below) the hearings over which they preside
as “Non-ALJ Hearings.” Neither these Non-ALJ Hearings nor the non-ALJs themselves
share a statutory framework, whether under the APA or other statute. As a result, there are
many differences among various agencies’ proceedings and in characteristics of their nonALJs. These differences render it difficult to describe and analyze those characteristics and
proceedings comparatively and to offer recommendations for non-ALJs collectively.
Recognizing these problems, ACUS has recently commissioned reports and issued
recommendations related to both these diverse non-ALJ proceedings and agency adjudication
more generally.1 ACUS commissioned this report to obtain data and provide
recommendations concerning non-ALJs’ appointment, independence, and oversight,
especially as contrasted with ALJs’.
Responding to significant concerns over unfair and unprofessional agency hearings, Congress
enacted the APA in 1946 to protect ALJs’ independence from their agencies, who are often
parties to litigation before ALJs. To that end, the APA includes provisions concerning meritbased hiring, separation of functions, limitations on ex parte communications, and protection
from at-will removal. At times agencies have criticized their lack of control over the hiring,
job-performance, and removal of ALJs.
Without addressing agencies’ concerns over using ALJs, judicial doctrine over the past few
decades has allowed agencies more discretion to use non-ALJs in place of ALJs. In contrast
to ALJs, these non-ALJs almost never have statutory protections to promote their
independence. Congress and policymakers have concentrated more on agencies’ rulemaking
powers and process, providing little oversight or coordination over non-ALJs and their
hearings. Non-ALJs, if not confused with ALJs, have largely worked in the shadows as the
federal bureaucracy’s “hidden judiciary.”2 But non-ALJs’ independence is as important for
regulated parties and the agencies themselves as it was when Congress enacted the APA
with ALJs’ protections. Impartial non-ALJs are central to due process, fair proceedings with
For a collection of ACUS reports concerning adjudication, see ACUS.GOV, https://www.acus.gov/pastprojects/adjudication (last visited on Aug. 11, 2017), and ACUS.GOV, https://www.acus.gov/current-projects
(last visited on Aug. 11, 2017).
1

2 Paul R. Verkuil, Reflections Upon the Federal Administrative Judiciary, 39 UCLA L. REV. 1341, 1345

(1992).

1

correct decisions, and—perhaps most overlooked—faith in government and administrative
programs. (We use the terms impartial and independent interchangeably throughout.3)
This report’s two key purposes are (1) to build on prior projects by reporting updated and
more comprehensive data concerning non-ALJs, and (2) to identify, based in part on these
data, practices for non-ALJ selection, oversight, and independence that promote non-ALJs’
actual and apparent impartiality. We recognize that Conference members and agency
officials may have countervailing and disparate views as to our recommendations, and that
agencies have different statutory charges and various factors to consider in administering
their agencies and their adjudication systems. Accordingly, we offer our recommendations in
the spirit of providing agencies and the Conference alternative approaches to establishing or
reconsidering their adjudication regimes and these regimes’ effects on adjudicator
impartiality.
To meet our two purposes, we circulated a detailed survey to 64 federal agencies and received
responses from at least one subcomponent of 53 of those agencies, for a response rate of 83%.
We asked the responding agencies to provide information on a certain class of hearings, if
any, within their department or agency: those in which a party could request an oral hearing
to present evidence for which an agency official other than an ALJ or agency head presided
(“Non-ALJ Hearings”). (The full description of Non-ALJ Hearings appears infra.)
For agencies that reported offering Non-ALJ Hearings, we asked the respondents two sets of
questions. The first concerned the different types of Non-ALJ Hearings that their agencies
provide (for instance, an agency may have enforcement proceedings under one statute and
benefits proceedings under another statute). The second concerned the different types of nonALJs as identified by title and agency. For instance, an agency may have two types of nonALJs—“Administrative Judges” and “Hearing Officers”—who hear the same or different
kinds of matters. An agency received a set of questions for each type of Non-ALJ Hearing and
each type of non-ALJs that it identified. Within these sets of questions, we requested
information on, among other things, the nature of the hearings, the number of agency nonALJs, their salaries and bonuses, hiring qualifications, the nature of agency oversight and
performance appraisals, the propriety of ex parte contacts, and protection from at-will
removal.
Below is a summary of our key findings and alternative practices for agencies to consider in
reassessing their non-ALJ programs’ promotion of non-ALJ impartiality:
Key Findings
Types of Non-ALJ Hearings and Non-ALJs: Agencies reported 47 types of Non-ALJ
Hearings and 37 types of non-ALJs.

3 To be sure, independence and impartiality are different concepts. But they are related. In the adjudicatory

context, independence generally refers to structural characteristics that insulate an adjudicator from some
authority or other parties. Independence is a means of promoting an adjudicator’s impartiality, i.e., her
ability to issue fair, neutral decisions. See James E. Moliterno, The Administrative Judiciary’s Independence
Myth, 41 WAKE FOREST L. REV. 1191, 1200 (2006). The key issue for agency adjudicators is what degree of
independence is necessary to promote or ensure their impartiality. See id. at 1213–15.

2

Nature of Non-ALJ Hearings: The 47 types of Non-ALJ Hearings concern six subjectmatter categories that we identified for the respondents in the survey (such as enforcement,
benefits, contracts, etc.) and a number of miscellaneous subject matters. No subject area
comprised even 25% of the Non-ALJ Hearings. Agencies reported that the agencies
themselves are parties to the Non-ALJ Hearings in 22 (47%) of the 47 types, and it is these
hearings that may present the most significant concerns over non-ALJ independence and
agency oversight.
Numbers and Titles of Non-ALJs: In contrast to the 1,931 ALJs in the federal government,
agencies reported at least 10,831 non-ALJs. All but 39 of them are fulltime agency employees
(although some fulltime non-ALJs may have only part-time adjudicatory duties). Of the
10,831 non-ALJs, 8,131 are Patent Examiners or Appellate Patent Judges for the
Department of Commerce. The agencies with the next largest groups of non-ALJs are
Treasury (714), VA (630), NLRB (6004), and DOJ’s Executive Office for Immigration Review
(326). Non-ALJs reported in our survey go by 23 different titles.
Non-ALJ Salaries: We were able to calculate approximate base salaries for 9,507 non-ALJs.
More than 90% are paid under the General Schedule (GS) pay scale. Excluding the 7,856
Patent Examiners, 57% (941) of the remaining 1,651 non-ALJs are paid in compliance with
the GS scale.
Comparison of ALJ and Non-ALJ Salaries: In general, non-ALJs have lower salaries
than ALJs. Of all 9,507 non-ALJs for whom we had calculable base-salary information, 5,415
or 57% are paid within pay scales or grades that overlap with ALJs’ (GS-14, GS-15, and all
applicable special pay scales). If we exclude Patent Examiners and consider the remaining
1,651 non-ALJs for whom we have calculable base-salary information, 68% have base-salary
ranges that overlap with ALJs.
Minimum Qualifications for Hiring Non-ALJs: Whether hiring non-ALJs internally or
externally, agencies’ most common minimum qualification is a law degree. When hiring
externally, agencies applied no other qualification to even half of the 37 non-ALJ types for
which agencies responded. When hiring internally, agencies considered only subject-matter
expertise and demeanor as minimum qualifications for more than half of the non-ALJ types.
Perhaps the most surprising findings were that agencies rely only upon subject-matter
expertise when hiring externally about 30% of the time and that agencies rely more on
references for internal hires than they do for external hires.
Separation of Functions: Sixteen (43%) non-ALJ types have no separation of functions
(i.e., they are not prohibited from performing agency tasks other than adjudication or
reporting to particular agency personnel with nonadjudicatory functions). The remaining
non-ALJs have some kind of separation of functions. Some are fully separated from other
agency functions because the non-ALJs can only adjudicate. Some have more limited
separation. For instance, some can perform functions that are not related to investigation or
prosecution (similar to ALJs), while other non-ALJs can perform agency functions subject to
various other limitations. Other non-ALJs have no need for separation of functions because

4 The NLRB reported that it had “approximately” 600 non-ALJs, and we have used 600 for ease of calculation

throughout.

3

their agencies only adjudicate and thus have only one function. Non-ALJs in 34 of the 37
types do not report directly to supervisors who supervise investigations or prosecutions.
Ex Parte Communications: Twenty-one (57%) non-ALJ types are prohibited from having
any ex parte communications, 11 (30%) are partially limited, and five (14%) have no
limitations. The most common way of limiting ex parte communications is through internal
guidance or custom, relatively opaque mechanisms for describing prohibitions and ensuring
compliance.
Physical Separation: One prominent scholar suggested decades ago that adjudicators’
physical separation from other agency personnel was a relatively low-cost way of creating
psychological distance between them and ameliorating the adjudicators’ sense of separation.
Agencies reported that 18 types of non-ALJs are physically separated, 18 are not, and one is
sometimes separated.
Recusal: Thirty-one (84%) Non-ALJ types must recuse themselves if they cannot serve as
unbiased adjudicators; the remaining types are not required to recuse themselves.
Performance Appraisals: Twenty-eight (76%) non-ALJ types and 99% of all non-ALJs by
number are subject to performance appraisals. These appraisals most commonly consider
numerical case-processing goals and various characteristics of the decisions themselves (such
as their reasoning or appropriate citations), although many agencies design the review to
ignore case outcomes.
Bonuses: Twenty-six (71%) non-ALJ types are eligible for bonuses, and 90% of all non-ALJs
by number are eligible for bonuses. The range of bonus-eligible non-ALJs who received
bonuses in 2016 was from 7% (CFTC) to 100% (for several non-ALJ types). Reported bonuses
ranged from a few hundred dollars to $36,000.
Protection from At-Will Removal: Agencies reported that only three non-ALJ types have
protection from at-will removal (aside from standard civil-service protections), two of which
had protections in collective-bargaining agreements and one of which had statutory
protection.
Key Alternative Practices
Hiring Process: Agencies might consider using advisory panels as part of the non-ALJ
hiring process (these panels are often called “merit-selection panels” in the state and federal
judicial context). These advisory panels could be comprised of different constituencies
(including non-ALJs and agency officials) and consider transparent, positive criteria when
recommending candidates to hiring authorities.
Separation of Functions and Space: To the extent possible, agencies might provide nonALJs separation of functions and physical separation to provide actual and apparent
independence from other arms of the agency, especially when the agency is a party to the
proceedings.
Ex Parte Communications: Agencies might formally prohibit non-ALJs from engaging in
ex parte communications related to the merits of a matter over which they are presiding.
4

This suggested prohibition, although slightly more stringent than the one for ALJs under the
APA, is consistent with the ACUS Model Adjudication Rules and most agencies’ reported
practice. It is, however, slightly more stringent than a recently adopted ACUS
recommendation for informal adjudicators (Recommendation 2016-2) that would permit
certain internal agency ex parte discussions with non-ALJs.
Recusal Requirements: Most non-ALJ types must recuse when, as stated in our
questionnaire, they “cannot serve as . . . unbiased adjudicator[s].”5 Agencies might
memorialize recusal standards for all non-ALJs.
Performance Appraisals and Bonuses: Agencies might promulgate clear criteria,
unrelated to case outcomes, for performance appraisals and bonus payments.
Providing Clear Grounds for Adverse Actions: Agencies might permit adverse actions,
including removal, for non-ALJs only on specified grounds that are unrelated to case
outcomes.
Method of Agency Action: To further transparency, salience, and efficacy, agencies might
use notice-and-comment rulemaking when promulgating provisions concerning non-ALJ
independence. Agency custom and internal guidance, both of which are often opaque and less
concrete than substantive rules, are less optimal.
I. Non-ALJ Hearings and Prior Research
Adversarial hearings over which ALJs preside (“ALJ Hearings”) are relatively uniform, and
the APA protects ALJs as a class from agency influence.6 The relative ease in describing and
evaluating ALJ Hearings may help explain why they receive the overwhelming share of
scholarly attention as to agency adjudication. Although ALJ Hearings are central to the
federal administrative state, Non-ALJ Hearings exceed ALJ Hearings in number.
Non-ALJ Hearings, unlike ALJ Hearings, vary greatly throughout the administrative state,
and this variety renders describing and analyzing them a challenge. Moreover, non-ALJs as
a class do not have statutorily protected indicia of independence or even uniform titles.
(Indeed, non-ALJs—if not simply confused with ALJs7—are informally defined not by who
5 See App. A (Q. 42). We did not specify a standard for recusal in our survey. Others have noted the difficulty

of “finding the appropriate, specific set of governing [ethical] rules” for agency adjudicators. See, e.g.,
Moliterno, supra note 3, at 1194 (citing various state and federal standards governing recusals and other
ethical considerations for administrative adjudicators); see generally Patricia E. Salkin, Judging Ethics for
Administrative Law Judges, 11 WIDENER J. PUB. L. 7 (2002) (discussing the treatment of ethics for primarily
state administrative adjudicators). To limit the length and burden of our survey, we did not ask agencies to
identify their recusal standards.
6 Prominent examples of nonadversarial ALJ Hearings include certain welfare programs (such as social

security and Medicare).
7 In fact, the U.S. Supreme Court, no less, recently mistook non-ALJs for ALJs by incorrectly indicating that

an MSPB ALJ, instead of a non-ALJ, had presided over an administrative adjudication at issue. Compare
Perry v. MSPB, 137 S. Ct. 1975, 1982 (2017) (stating that an Administrative Law Judge presided over the
matter), with Perry v. Dep’t of Commerce, No. CD–0752–12–0486–B–1, 2014 WL 5358308, at *1–2 (M.S.P.B.
Dec. 23, 2013) (noting that an Administrative Judge presided over the matter). The MSPB uses ALJs for
matters concerning ALJs and non-ALJs (often called “Administrative Judges”) for nearly all other federal
employees. See Paul R. Verkuil, supra note 2, at1352 n.47; MERIT SYS. PROTECTION BD., ADVERSE ACTIONS:

5

they are but by whom they are not.) The lack of uniformity in non-ALJ proceedings’ and in
non-ALJs’ characteristics may explain why scholars and policymakers largely ignore them.
Although some agency non-ALJs have received considerable attention in recent years (e.g.,
immigration judges), non-ALJs in the aggregate are difficult to discuss in general terms and,
given the variety of non-ALJs and their evidentiary hearings, often difficult even to identify.
As we discuss infra in Part I.C., only a few earlier studies have reported cross-agency data
on non-ALJs and their hearings. Two of them surveyed numerous agencies to ascertain how
many non-ALJs existed within the federal government, how many agencies used non-ALJs,
and which federal pay grades applied to them. Those surveys, however, were limited in scope
and are more than 15 and 25 years old, respectively. A more recent ACUS-commissioned
study reported substantial data on the nature of certain Non-ALJ Hearings and some data
related to non-ALJ impartiality. But its focus was not on the number of non-ALJs, the variety
of the cases that they decide, their hiring, their oversight, or their protection from at-will
removal.
Our focus is on non-ALJs’ impartiality. The U.S. Supreme Court has held that impartiality
requirements under the Due Process Clause apply to agency adjudication.8 Because actual
bias would be very difficult for litigating parties to prove, courts establish prophylactic
measures to promote judges’ impartiality—and its appearance—and to help ensure, as the
Supreme Court said almost 100 years ago, that adjudicators hold “the balance nice, clear and
true.”9 These measures often concern, among other things, the adjudicator’s appointment,
relationship with the parties, and financial interest in the proceeding.10 Even in the absence
of constitutional concerns, policymakers have incentives to consider these prophylactic
measures to promote adjudicators’ impartiality. After all, doing so protects the integrity of
the adjudicating body and its process—attributes that benefit the agency, as well as the
litigants.11
In this study, we:
(1) report our survey data on the number of non-ALJs, the kinds of proceedings over which
they preside, qualifications for their appointment, and characteristics concerning agency
supervision and oversight; and

A COMPILATION OF ARTICLES (A RPT. TO THE PRESIDENT AND THE CONGRESS OF THE U.S.) 55 (2016) (“Some
types of cases are required, by statute, to use an ALJ. In other cases, a regulation establishes the use of the
ALJ because the agency issuing the regulation exercised the discretion given to it by a statute to set forth
the rule that an ALJ would be used. Nearly all adverse action cases—whether taken under chapter 43 or
75
of
title
5—are
heard
by
an
AJ
not
an
ALJ.”),
available
at
https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1361510&version=1366861&application=A
CROBAT.
8 See Schweiker v. McClure, 456 U.S. 188, 196 (1982).
9 Caperton v. A.T. Massey Coal Co., 556 U.S. 878–79 (2009) (quoting Tumey v. Ohio, 273 U.S. 510, 532

(1927)).
10 See Kent Barnett, Against Administrative Judges, 49 UC DAVIS L. REV. 1643, 1671–78 (2016).
11 See Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, 2011 BYU L. REV.

943, 968.

6

(2) suggest various ways for agencies to promote non-ALJs’ appearance of impartiality by
focusing on their appointments and oversight.
Before describing our methodology in Part II, reporting our data in Part III, and providing
our suggestions in Part IV, we begin in this Part by contrasting the two key kinds of agency
evidentiary hearings—ALJ Hearings and Non-ALJ Hearings—and describing the prior
studies concerning non-ALJs and their hearings.
A. Baseline: Administrative Law Judge Hearings
The drafters of the 1946 APA envisioned that the APA’s uniform provisions concerning
“formal” on-the-record adjudication would apply to a wide variety of adjudicatory hearings
required by statute, even in the absence of specific language calling for “on the record”
hearings.12 Under APA §§ 554, 556, and 557, formal adjudication provides numerous
procedural protections. One of the most important protections for regulated parties is that
an independent ALJ must preside over nearly all formal adjudications.13 ALJ independence
was a purposeful and prominent response to widespread concerns before the APA’s
enactment over unqualified and biased agency adjudicators.14
The APA promotes ALJ independence in numerous ways. First, an independent agency, the
Office of Personnel Management (OPM), oversees agency hiring of ALJs under a merit-based
system. After administering an ALJ exam and rating candidates, OPM provides a list of the
three highest-scored candidates for each ALJ vacancy from which the hiring agency must
choose its ALJs.15 Second, ALJs are required by statute to be impartial.16 Third, ALJs cannot
perform duties inconsistent with their adjudicatory function,17 such as investigating or
prosecuting, or by reporting to an official with these duties.18 These provisions provide a
separation of functions between adjudication and prosecution within the agency. Fourth,
ALJs can engage in only limited ex parte communications.19 Fifth, paid under an ALJ-specific
pay scale, ALJs are exempt from performance appraisals and cannot receive bonuses.20
12 S. REP. NO. 752 at 207 (1946), REPRINTED IN COMM. ON THE JUDICIARY, 79TH CONG., LEGISLATIVE HISTORY

OF THE ADMINISTRATIVE PROCEDURE ACT 268 (1947); DEP’T OF JUSTICE, ATTORNEY GENERAL’S MANUAL ON THE

ADMINISTRATIVE PROCEDURE ACT 41–43 (1947) (arguing that formal adjudication applied to nearly all
hearings required by statute).
13 5 U.S.C. § 556(b) (2012).

See Daniel J. Gifford, Federal Administrative Law Judges: The Relevance of Past Choices to Future
Directions, 49 ADMIN. L. REV. 1, 3–9, 43–45 (1997).
14

15 Kent Barnett, Resolving the ALJ Quandary, 66 VAND. L. REV. 797, 804–05 (2013).
16 5 U.S.C. § 556(b).
17 Id. § 3105 (stating that ALJs “may not perform duties inconsistent with their duties and responsibilities

as administrative law judges”).
18 Id. § 554(d).
19 Id.; id. § 557(d)(1).

20

See Barnett, supra note 10, at 1655–56. This is not to say that reviewing judges’ performance necessarily
interferes with their independence; the key determinants are how the review is structured and the criteria
on which it is based. See Jeffrey S. Lubbers, The Federal Administrative Judiciary: Establishing an

Appropriate System of Performance Evaluation for ALJs, 7 ADMIN. L. J. AM. U. 589, 603–07 (1993–94)
(suggesting that ALJs’ performance be subject to peer review led by Chief ALJs). In fact, a majority of state7

Finally, agencies cannot remove their ALJs except for “good cause established and
determined by” another independent agency, the Merit Systems Protection Board.21
As of March 2017, OPM reported 1,931 ALJs. They are employed by 27 agencies. Of these
1,931 ALJs, SSA employs 1,655. The agencies with the next highest numbers of ALJs are
DHS with 106, the Department of Labor with 41, and the NLRB with 34. Twenty of the 27
agencies employ fewer than 10 ALJs.22
Until the early 2000s, OPM operated an Office of Administrative Law Judges to assist with
the hiring of ALJs and related matters.23 Along with the uniformity of ALJ characteristics
and their proceedings, the presence of that office led numerous scholars and policymakers to
collect information on ALJs and analyze formal adjudication in depth. Accordingly, formal
adjudication and ALJs are often the only form of agency adjudication and agency adjudicators
that receive sustained attention in administrative-law courses. This limited focus on ALJs in
the law-school curriculum typically leaves only ALJs with a place in academic and policymaking discourse.
B. Non-ALJ Hearings
The focus on ALJs and APA formal adjudication obscures agencies’ increased use of non-ALJs
for evidentiary hearings that do not qualify as formal adjudication under the APA. After the
Supreme Court’s well-known Chevron decision,24 courts granted agencies broad discretion to
interpret statutes that did not expressly call for on-the-record hearings (the trigger for ALJ
Hearings under the APA) as permitting Non-ALJ Hearings.25 The APA only minimally
governs these Non-ALJ Hearings (often referred to as “informal adjudications”) and provides
almost no required procedures.26 That said, due to statute or agency-created procedures, Non-

court judges who undergo performance evaluations by law regularly report that such assessments do not
impact their independence and can even enhance it. See, e.g., Kevin M. Esterling and Kathleen M. Sampson,
JUDICIAL RETENTION EVALUATION PROGRAMS IN FOUR STATES: A REPORT WITH RECOMMENDATIONS 39
(Chicago: American Judicature Society, 1998); INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., THE
BENCH SPEAKS ON JUDICIAL PERFORMANCE EVALUATION: A SURVEY OF COLORADO JUDGES (2008),
http://iaals.du.edu /images/wygwam/documents/publications/Bench_Speaks_On_JPE2008.pdf.
21 5 U.S.C. § 7521(a) (2012).

See Administrative Law Judges: ALJs by Agency, OPM.GOV, https://www.opm.gov/services-foragencies/administrative-law-judges/#url=ALJs-by-Agency [hereinafter ALJs by Agency].
22

23 See John T. Miller, Jr., Some Reflections on OPM’s Administration of Its APA ALJ Functions, 30 WTR

ADMIN. & REG. L. NEWS 6 (2005).
24 See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
25 See, e.g., Chem. Waste Mgmt., Inc. v. EPA, 873 F.2d 1477 (D.C. Cir. 1989); Dominion Energy Brayton

Point v. Johnson, 443 F.3d 12 (1st Cir. 2006); see also ADMIN. CONFERENCE OF THE U.S., EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION: EVALUATING THE STATUS AND PLACEMENT OF ADJUDICATORS IN THE FEDERAL
SECTOR
HEARING
PROGRAM
23–24
(2014),
at
https://www.acus.gov/sites/default/files/documents/FINAL%20EEOC%20Final%20Report%20%5B3-3114%5D.pdf.
26 APA § 555 applies to “Ancillary Matters” and § 558 applies to certain licensing and sanctioning actions.

8

ALJ Hearings are often similar in formality and procedure to formal adjudication under the
APA.27
Despite numerous Non-ALJ Hearings’ procedural similarity to ALJ Hearings, Non-ALJ
Hearings are meaningfully different from ALJ Hearings in one key respect: non-ALJs preside
over them. Except for extremely rare exceptions, non-ALJs, who go by different titles at
different agencies, do not have ALJs’ statutory protections as to their independence.28 Not
only do Non-ALJ Hearings differ across the federal administrative state, but the non-ALJs’
characteristics are similarly disparate.
The lack of uniformity can be problematic for scholars and policymakers. The absence of
uniform hearing procedures and uniform protections for non-ALJs leads to balkanized agency
proceedings for which data collection across agencies proves difficult. Without information,
it grows even more difficult to have useful discussions as to the hearings or the adjudicators.
Aside from certain exceptions (such as immigration judges), they have become the “hidden
judiciary,”29 largely neglected by policymakers despite their vital function within the federal
administrative state.
C. Prior Studies Concerning Non-ALJs
Three comprehensive empirical projects have attempted to provide some cross-agency insight
into non-ALJs, non-ALJ Hearings, or both.30 Here, we provide a brief overview of each survey.
We refer to relevant findings in the discussion of our findings and suggestions.
1. The Frye Study
The first study was a 1989 ACUS-sponsored survey that culminated in a law-review article
in 1992 by ALJ (and former non-ALJ) John Frye (“the Frye Study”).31 The survey asked
twelve questions of agencies that “administer[ed] one or more programs that offer the
opportunity for an oral hearing presided over by an official who is not an [ALJ],”32 even if
27 See 2 PAUL R. VERKUIL ET AL., ADMIN. CONFERENCE OF THE U.S., RECOMMENDATION AND REPORT 92–7, THE

FEDERAL ADMINISTRATIVE JUDICIARY 1053–54 (1992); MICHAEL ASIMOW, EVIDENTIARY HEARINGS OUTSIDE
THE ADMINISTRATIVE PROCEDURE ACT 2 (2016).
28 See Barnett, supra note 10, at 1656–62; id. at 1649 n.21 (“Congress has also given certain AJs—Board of

Contracts Appeals Judges—some or all of the protections that ALJs have. For instance, all of those judges
must be appointed like ALJs from a register by the hiring agency. See 41 U.S.C. § 7105(a)(1), (b)(2), (c)(2),
(d)(2) (2012). One group also has the same protection from at-will removal that ALJs share. See 41 U.S.C.
§ 7105(a) (no protection from at-will removal for Armed Services Board Judges); id. § 7105(b)(3) (same
protection as ALJs from at-will removal for Civil Board of Contract Appeals Judge); id. § 7105(c) (no
protection for Tennessee Valley Authority Board Judges), (d) (no protection from at-will removal for Postal
Service Board Judges).” (some internal citations omitted)).
29 See id. at 1645 (quoting Chris Guthrie et al., The “Hidden Judiciary”: An Empirical Examination of

Executive Branch Justice, 58 DUKE L.J. 1477, 1478 (2009)).
30 There are a handful of case studies, too. See, e.g., Paul R. Verkuil, A Study of Informal Adjudication

Procedures, 43 U. CHI. L. REV. 739 (1976) (considering whether informal adjudications within four federal
agencies met due process requirements).
31 See John H. Frye III, Survey of Non-ALJ Hearing Programs in the Federal Government, 44 ADMIN. L. REV.

261 (1992). ACUS administered the survey in 1989. See VERKUIL ET AL., supra note 27, at 950.
32 Id., app. A, at 348.

9

most matters were handled through written submissions.33 Frye, with ACUS’s assistance,
sent the survey to 48 agencies and received responses from 47. Of those 47 agencies, 34
responded that they held hearings that were described in the questionnaire.
Frye reported 2,692 non-ALJs, who were associated with 83 separate case types.
Approximately 2,200—including about 1,700 who worked for the Department of Veterans
Affairs—were within paygrades GS-9 through 15. Approximately 175 non-ALJs were
“supergrades” (that is, paid on the general service scale above GS-15), senior-executive
service (SES) officials, or military officers; only eight of these higher paid non-ALJs had other
duties.34 Frye also reported that approximately 240 non-ALJs were part-time agency officials
or did not work for the government. For instance, hearing officers for certain medicalinsurance claims were employed by insurance carriers, not the federal government.35 Of all
the non-ALJs, only 601 had no other duties, and 438 were lawyers.36
Frye spent most of his lengthy report discussing the different kinds of cases for which
agencies used non-ALJs (enforcement, benefits, etc.), the number of cases for each type, and
the due process implications of the reported hearings. He also reported some findings
concerning the nature of non-ALJs. He primarily divided the non-ALJs into two groups: those
who only presided over hearings and those who had additional duties.37 He argued that the
former group were likely to be more efficient managing their dockets (especially with higher
caseloads) and appeared more independent from the agency itself.38 Within both groups, he
reported information related to agency oversight or non-ALJ independence, such as the use
of performance appraisals and formal and informal review of non-ALJ decisions.39 Although
he asked questions concerning non-ALJ hiring, “most agencies did not provide any
information on the qualifications that they deem important.”40
2. 1992 ACUS Report
The Frye Study served as a critical source for a comprehensive 1992 ACUS study by Paul
Verkuil, Daniel Gifford, Charles Koch, Richard Pierce, and Jeffrey Lubbers. Their report
considered both ALJ Hearings and Non-ALJ Hearings. They relied upon the Frye Study and
additional research to provide, among other things, information on the ALJ- and non-ALJselection processes, their independence, a thorough history of administrative adjudication,
and a survey of adjudicators’ attitudes. They recommended converting certain non-ALJ
Hearings to ALJ Hearings.41 Their report led to ACUS Recommendation 92-7. Among other
things, it called for non-ALJs who oversee certain significant matters (including those with
substantial economic effects or limitations on personal liberty) to have “standards for

33 See id. at 267 n.9.
34 Id., app. B, at 349.
35 See id., app. B, at 350.
36 Id.
37 See id. at 269–74.
38 Id. at 270–71.
39 See id. at 269–74.
40 Id. at 272.
41 See VERKUIL ET AL., supra note 27, passim.

10

independence, selection, experience, and compensation that approximate those accorded to
ALJs.”42
3. The Limon Study
In 2002, Raymond Limon, a former Executive Director of OPM’s now-defunct Office of
Administrative Law Judges, recognized that “there is no systematic or centralized method to
track non-ALJ workforce information” and sought to update Frye’s data (“the Limon
Study”).43 Similar to the Frye Study, the Limon Study asked whether agencies “provide[d] an
opportunity for an ‘oral hearing’ conducted by an agency official who is not an [ALJ].”44 The
10 questions that Limon posed were similar to those in the Frye Study, although they
concentrated more on the non-ALJs and less on the hearings and caseloads. For instance, the
Limon Study asked about the number of non-ALJs, their titles, their pay grades and
occupation series, their minimum qualifications, and their performance appraisals and
protection from agency bias.45
Limon sent his survey to more agencies than did Frye—80 to Frye’s 48. He also received more
responses (65 to Frye’s 47), although a similar number of agencies (36 for Limon and 35 for
Frye) reported having relevant Non-ALJ Hearings.46
The Limon Study reported key differences between Frye’s and its data, but the Limon Study
mostly presented its data in spreadsheet format for others to analyze.47 Most germane to this
report, the Limon Study found that the number of non-ALJs had increased from
approximately 2700 to 3370, with the Department of Commerce replacing Veterans Affairs
as having the most non-ALJs (approximately 1100).48 Approximately 83% of the non-ALJs
received performance appraisals.49
4. The Asimow Study
Professor Michael Asimow prepared a 2016 report, Evidentiary Hearings Outside the
Administrative Procedure Act, for ACUS (“the Asimow Study”). The adjudications at issue
were similar, but not identical, to those in the Frye and Limon Studies. Recall that Frye and
Limon broadly considered instances in which the agencies provided oral hearings over which
non-ALJs presided. Asimow, in contrast, studied what he refers to as “Type B” adjudications.
In brief, Asimow contrasts Type B adjudications with Type A adjudications (ALJ Hearings
under the APA), and Type C adjudications (those adjudications that occur without any
ADMIN. CONFERENCE OF THE U.S., REP’T AND RECOMMENDATION 92-7, THE FEDERAL ADMINISTRATIVE
JUDICIARY 12 (1992).
42

43 RAYMOND LIMON, OFFICE OF ADMIN. L. JUDGES, THE FEDERAL ADMINISTRATIVE JUDICIARY THEN AND NOW—

A DECADE OF CHANGE 1992–2002 2 (1992).
44 See id., app. B (“2002 Survey Questions of Non-ALJ Hearing Programs”).
45 See id., app. B.
46 See Barnett, supra note 10, at 1657–58 nn. 90–91.
47 LIMON, supra note 43, at 2 (“We wanted to limit our involvement to ‘data collection’ and allow for other

interested parties to draw their own conclusions or findings.”).
48 See id. at 3.
49 See id. at 4.

11

evidentiary hearing required by law). Type B adjudications, in comparison, are oral or written
hearings required by law over which non-ALJs preside, to which the formal-adjudication
provisions of the APA do not apply, and for which the parties’ evidence and argument, along
with officially noticed matters, must serve as the exclusive record for decision.50 Type B
hearings do not include public hearings, conferences that do not become part of the exclusive
record, “front-line” initial decisions that precede evidentiary hearings, or review that does
not permit the submission of new evidence.51 Thus, Asimow’s selected category of hearings is
broader than Frye’s and Limon’s because it includes oral and written hearings. But it is
narrower because it includes hearings that require an exclusive record and excludes certain
hearings or adjudications that Frye and Limon may have included.
The Asimow Study focused on the procedures in ten selected subject-matter adjudications
over which non-ALJs preside and recommended best practices, which ACUS largely
adopted.52 It also provided some limited information on the number of non-ALJs and their
caseloads.53 And it reported data on the integrity of the ten adjudication areas, such as
whether they have provisions or guidance on bias, ex parte communications, and separation
of functions.54 In addition to reporting his findings on these particular adjudications, Asimow,
working with ACUS and Stanford Law School, established a comprehensive database to
collect and confirm, on an ongoing basis, data on all forms of federal administrative
adjudication.55 This data that Asimow has collected for the database overlaps with some of
the data that we collect here, including: representation of private parties and agencies,
discovery, subpoena authority, ex parte communications, types of hearings and appeals, cross
examination, caseload statistics, and information about adjudicators.
II. Purpose, Scope, and Methodology of Project
Although taking inspiration from these earlier studies, our study has different purposes, a
broader scope, and a slightly different survey design.
A. Purpose
First, we seek to update Frye’s and Limon’s data on non-ALJs’ numbers, status, and case
types throughout the federal administrative state. More specifically, we provide updated data
on non-ALJ paygrades, titles, and (part-time or fulltime) employment statuses.
Second, we provide more comprehensive data than those studies provided on indicia of nonALJs’ independence. These indicia include qualifications for their selection, whether they are
hired from outside or from within the agency, their physical separation from others in the
50 See ASIMOW, supra note 27, at 2, 10.
51 Id. at 11.

See
Recommendation
2016-4,
adopted
Dec.
12,
https://www.acus.gov/sites/default/files/documents/informal-agency-adjudication-recommendationfinal.pdf
52

2016,

53 See id. at 16, tbl. 2.
54 See id. at 35, tbl. 3.
55 ADMIN. CONFERENCE OF THE U.S. AND STANFORD LAW SCHOOL, FEDERAL ADMINISTRATIVE ADJUDICATION

DATABASE, https://acus.law.stanford.edu/ (last visited Feb. 3, 2018).

12

agency, any limitations on their duties, whether they receive performance appraisals from
their agencies, whether they are eligible for bonuses, whether they must recuse themselves
if they cannot serve as unbiased adjudicators, and whether they have any protection from atwill removal. (After consultation with ACUS staff, we determined that questions concerning
the mechanisms for non-ALJ selection would require narrative answers that would render
comparisons difficult.)
Third, we provide suggestions for protecting non-ALJ independence. We comment on nonALJ selection, protection from undue agency influence during proceedings, and protection
from undue agency oversight. Unlike prior projects or academic literature, our purpose is not
to recommend when agencies or Congress should use ALJs or non-ALJs,56 or to suggest
particular procedures for evidentiary hearings, save those that concern non-ALJ
independence.57
B. Scope
Despite the earlier studies’ substantial influence on our project, our project has a unique
focus that does not track theirs. We focus on the non-ALJs themselves and only on the aspects
of their hearings that most directly implicate non-ALJs’ independence. Relatedly, although
our study updates much of the data from the Frye and Limon Studies, our survey is
substantially broader with more targeted questions concerning matters related to non-ALJs’
independence. The use of more particularized questions provides more consistent answers
from the responding agencies and permits better comparisons across agencies.
Because of the variety of agency adjudications, it is frequently difficult to identify and define
in a survey instrument various terms related to Non-ALJ Hearings. Moreover, the inclusion
of too many definitions or complicated, nuanced definitions can dissuade agencies from
completing the survey. Thus, we provided as descriptive a definition as we thought prudent
to capture the kinds of Non-ALJ Hearings that we sought to consider (referred to as “oral
hearings” in the survey itself):
One of the parties to the adjudication can—by statute,
regulation, or other law—obtain an oral hearing over which an
agency official presides to present evidence, even if most matters
are handled through written submissions without an oral
hearing,
and
the presiding agency official is not a member or commissioner of
the agency, and is not an "Administrative Law Judge." Instead,
the agency official goes by another title, such as Administrative
Judge, Administrative Appeals Judge, Administrative Patent

56 See, e.g., VERKUIL ET AL., supra note 27; Barnett, supra note 10.
57 ACUS has charged a working group with revising the Model Adjudication Rules (MARs). The MARs are

intended to serve as model rules for agencies’ adversarial, evidentiary hearings.

13

Judge, Board of Contract Appeals Judge, Veterans Law Judge,
Immigration Judge, Presiding Officer, Hearing Officer, etc.
The relevant “oral hearings” do not include “public hearings” in
which members of the public are invited to make statements or
an initial "front-line" agency decision when that initial decision
is followed by an evidentiary hearing before an agency or court.58
By considering only instances in which a party can obtain an oral hearing (even if parties
rarely do so), we largely tracked Frye’s and Limon’s definition. But, like the Asimow Study
(and unlike the Frye and Limon Studies), we limited our evidentiary hearings to those to
which a party had a right to such a hearing, whether through a statute or regulation. Notably,
our definition does not include those hearings for which a party cannot seek an oral (as
opposed to a written) hearing, and thus our definition is narrower than Asimow’s definition
of “Type B” hearing. Despite our interest in these “written” hearings that Asimow included,
we were concerned that responding agencies may confuse those hearings with what Asimow
refers to as “Type C” adjudications. Similar to all of these studies, the hearings that we
considered did not distinguish hearings concerning facts, law, and agency discretion.59
In an effort to capture all Non-ALJ Hearings, we also did not include Asimow’s exclusiverecord limitation. The APA requires an exclusive record only for ALJ Hearings.60 Because our
focus was primarily on the adjudicators, as opposed to the process of the hearing, we wanted
to ensure that we obtained all of the uses of non-ALJs within federal agencies. That said,
except as otherwise indicated, we are not aware of any hearings that the agencies identified
that lack an exclusive-record limitation, and thus future surveys may consider including the
exclusive-record limitation.61
As did Asimow, however, we excluded “public hearings,” those to which the public may
provide statements. We also excluded “front-line” determinations, meaning initial decisions
that are followed by evidentiary hearings. Finally, we excluded hearings over which the
agency heads presided because it is likely that different due process considerations apply to
those adjudications.62 That said, although our definition targets trial-like adjudicators who
preside at evidentiary hearings, we did not exclude administrative appellate processes over
which non-ALJs preside because they were included in the Frye and Limon Studies and
because it is not clear whether evidentiary matters are never permitted in those appellate
proceedings. We do, however, segregate appellate proceedings from initial hearings, where
indicated. Otherwise, our findings and suggestions apply to trial and appellate non-ALJs
alike.

58 See App. A (Part A), attached hereto.
59 See, e.g., ASIMOW, supra note 27, at 8.
60 See 5 U.S.C. § 556(e).

Because our definition is not identical to Asimow’s, we refer to our reported hearings as Non-ALJ
Hearings, not “Type B” hearings.
61

62 See Barnett, supra note 10, at 1679–80.

14

C. Survey Design and Methodological Limitations
In this quantitative study, we administered a survey, attached as Appendix A, to numerous
federal agencies, identified in Appendix B. With the assistance of ACUS’s research attorneys,
we compiled a list of agencies that responded to earlier surveys or that we anticipated may
have had responsive oral hearings. In February 2017, we then circulated the surveys to
ACUS’s contacts at 64 agencies or subcomponents within agencies, along with the agencies’
responses (if any) to the Limon Study to help ensure that the agency did not overlook
responsive non-ALJs and Non-ALJ Hearings. We asked the ACUS contacts to circulate the
survey to those within their agencies and offices who had knowledge of adjudication
programs. Although we asked them to contact us if they had questions as to which “oral
hearings” were responsive or the meaning of certain questions, only a handful of agencies did
so.
Our survey sought information on different types of Non-ALJ Hearings and non-ALJs
themselves. We asked responding agencies (or their subcomponents) first to identify
themselves and then to report whether they had any “oral hearings” as defined in Part II.B.
If they answered no, the survey ended. If they responded yes, the survey proceeded with two
batteries of questions. One battery concerned types of Non-ALJ Hearings, and the other
concerned types of non-ALJs. In contrast to the approximately 12 questions that the Frye
and Limon Studies posed to agencies, each agency with responsive “oral hearings” would
have received as many as 13 questions for the battery on hearings and 28 questions for the
battery on non-ALJs, depending on their answers and any related follow-up questions.
Agencies received one battery for each type of Non-ALJ Hearing and one battery for each
type of non-ALJ. If agencies had more than one type of Non-ALJ Hearing or one type of nonALJ, they would have received many more total questions.
The battery of questions concerning the types of Non-ALJ Hearings dealt with, among other
things, the title of the presiding non-ALJs, the number who preside over those hearings,
whether they are full- or part-time, whether the agency borrows non-ALJs from other
agencies, whether the non-ALJs’ employing agency is party to the proceeding, whether the
non-ALJs can issue final orders, whether the agency offers an internal appellate process, and
whether the agency applies any quantitative case-processing goals as to those Non-ALJ
Hearings.
The battery of questions for the types of non-ALJs considered, among other things, their
titles, their number, their paygrades and occupational series, the agency’s hiring criteria for
selecting non-ALJs from within and outside the agency, whether the agency prohibits ex
parte communications, whether the agency imposes any separation of functions, whether and
how the agency conducts performance appraisals, whether the non-ALJs are eligible for
bonuses, whether they are required to recuse themselves if they cannot serve as unbiased
adjudicators, and whether they are protected from at-will removal.63

63 Our survey presented the questions with “skip logic,” meaning that a responding agency to one question

could lead to follow up questions depending on how they answered the predicate question. Because our
questions routinely relied upon preceding questions for context, we presented our questions in a fixed order.
Accordingly, our survey did not take steps to minimize response-order effects. See, e.g., Jon A. Krosnick &
Duane F. Alwin, An Evaluation of a Cognitive Theory of Response-Order Effects in Survey Measurement, 51
PUB. OP. Q. 201 (1987).

15

We received responses on a rolling basis between February and May 2017. Because some
agencies have more than one office with adjudicatory programs, one agency or department
may have provided more than one response. If we received more than one response for the
same adjudicatory program within the agency, we selected the more complete survey or
combined answers to different questions to provide a more comprehensive response. After
receiving answers from the agencies, we reviewed the answers for any meaningful
inconsistencies. We then contacted the agency official who responded to the survey to resolve
them.
Our further communications with agency contacts asking them to complete the survey led to
a higher, but not close to a 100%, response rate. Our large number of responses from a diverse
number of agencies provides some basis for generalizing our findings.64 But we err
conservatively here and present our findings descriptively. Relatedly, we do not claim to have
captured all non-ALJs and Non-ALJ Hearings in our study.65 Instead, we are reporting our
significant findings only as to those non-ALJs and Non-ALJ Hearings that agencies have
identified in response to our survey.
As with all surveys, one must be careful in assessing the agencies’ reported data. Responding
officials can engage in social-desirability bias—that is, attempting to demonstrate (either to
themselves or to others) more familiarity with the surveyed issues than they possess. 66
Moreover, because we did not permit anonymous responses, this bias may be more
meaningful because the officials may seek to present their agency in a more positive light or,
alternatively, to highlight what they perceive as flaws within the agency.
Relatedly, we report the data as the agencies responded. We have not independently
confirmed the data provided (except as discussed below), and thus the agencies may have
reported incorrect data. Many agencies failed to answer every question posed. Their failure
to do so limits our response rate for particular questions. That said, when an agency’s later
answers permitted us to answer an earlier question confidently to which the agency did not
respond, we marked a response to that question for the agency so as to obtain more complete
responses.67 We indicate in the description of our findings the number of responses to the
particular question.
Finally, at times, an agency’s answers were inconsistent or obviously mistaken. Based on
more specific answers or easily confirmed facts, we report what we perceived to be the correct
answer. Of course, these revisions to the reported data required judgment. Fortunately, these
64 See generally FLOYD J. FOWLER, JR., SURVEY RESEARCH METHODS 9-11 (5th ed. 2014).
65 For instance, the Small Business Administration did not respond to our survey, but it has an Office of

Hearings and Appeals. See U.S. SMALL BUSINESS ADMINISTRATION WEBSITE, OFFICE OF HEARINGS AND
APPEALS, https://www.sba.gov/oha (last visited Mar. 18, 2018).
See Harold A. Sackeim & Ruben C. Gur, Self-Deception, Self-Confrontation, and Consciousness, in 2
CONSCIOUSNESS AND SELF-REGULATION: ADVANCES IN RESEARCH AND THEORY 139, 142–50 (Gary E. Schwartz
& David Shapiro eds., 1978).
66

67 For purposes of certain analysis, we added two variables—the nature of the non-ALJs’ hearings and

whether the hearings might be limited only to administrative appellate proceedings in which no new
evidence would be received—after all agencies had responded. We coded these variables based on the
agencies similar response to other questions. The variable concerning the nature of the non-ALJs’ hearings
aided our ability to cross-tabulate our reported data using IBM SPSS statistics software.

16

revisions were few, and errors in those judgments, if any, would not meaningfully affect our
reported results. And as mentioned earlier, for meaningful questions or inconsistencies, we
contacted the agencies for clarification, which we used to revise their reported answers.
III. Data Set
Even with these limitations, we have a robust dataset that yields numerous interesting
findings.
We sent a detailed survey to 64 federal departments, agencies, or subcomponents within
them.68 We received 61 responses from 53 federal entities, whether identified as an “agency”
or at least one subcomponent within a larger entity.69 One agency, accordingly, may have had
more than one subcomponent respond. Responses from 53 of the 64 federal entities to which
we sent surveys means that 83% of the entities provided at least one response. While 31
agencies or their subcomponents reported they do not conduct Non-ALJ Hearings, the
analyses that follow are based on responses from 30 agencies or their subcomponents that
conduct Non-ALJ Hearings. Notably, we had slightly fewer agencies respond that they had
responsive hearings than for either the Limon Study or the Frye Study.70 For ease of
reference, we refer to all responding entities as “agencies.” (A list of the surveyed agencies
and the nature of their responses, if any, are attached as Appendix B.)
Agencies reported having 47 types of Non-ALJ Hearings, 15 of which may consist of only
appellate Non-ALJ Hearings. They also reported 37 types of non-ALJs. (Appendix C lists the
reported types of hearings and types of non-ALJs for each responding agency.)
IV. Survey Data
We present our findings in the following order: (1) the types, number, titles, and salaries of
non-ALJs; (2) the types of Non-ALJ Hearings over which they preside; (3) minimum
qualifications for non-ALJs’ selection; and (4) agencies’ oversight of non-ALJs and, relatedly,
non-ALJs’ independence. We do not rely on all of the reported findings below in our
recommendations to agencies—especially many of those in subsection A—because issues
surrounding the number and pay for non-ALJs would require legislative intervention. Other
findings, including many of those in subsection B, help inform later analyses and
recommendations, even if they play only a secondary role. But we report the data here
because they offer a more descriptive picture of non-ALJs and how agencies use them than
simply reporting non-ALJs’ indicia of independence from their agencies, and they may aid
future research or recommendations.

68 For comparison’s sake, Limon surveyed 80 agencies, and Frye surveyed 48 agencies. Compare LIMON,

supra note 43, at 2 (“[W]e eventually contacted over 80 Federal agencies and offices . . . .”), with Frye, supra
note 31, app. A (listing 48 agencies to which surveys were sent).
69 65 agencies responded to Limon Study and 47 responded to the Frye Study. Compare LIMON, supra note

43, app. C, with Frye, supra note 31, app. A.
70 36 agencies responded that they had relevant non-ALJ hearings for the Limon Study, and 35 did so for

the Frye Study. Compare LIMON, supra note 43, app. C, with Frye, supra note 31, app. A.

17

A. Types of Non-ALJs
Agencies reported 37 total types of non-ALJs, meaning that one responding agency may have
more than one kind of non-ALJ. For instance, the IRS has two types of non-ALJs: Settlement
Officers and Appeals Officers. If a different agency also employed non-ALJs titled Settlement
Officers or Appeals Officers, we would recognize them as additional types. The characteristics
of different non-ALJs within the same agency often vary, and we have attempted to capture
their diverse features. In this subsection, we consider non-ALJs’ numbers, titles, and salaries.
1. Number of Non-ALJs
Agencies reported, as indicated in Figure 1, at least 10,831 non-ALJs.71 (Of course, these
numbers are fluid; an agency may have hired more non-ALJs or declined to fill later vacancies
after answering the survey.) All but 39 of these non-ALJs are fulltime agency employees,
although some fulltime employees have other duties in addition to presiding over
adjudications. Of these 10,831 non-ALJs, 8,131 (75%) work for the Department of
Commerce—7,856 as Patent Examiners for the Patent and Trademark Office and 275 as
Appellate Patent Judges with the Patent and Trademark Appeal Board (including ten parttime judges and seven judges with administrative responsibilities). Accordingly, the
remaining 2,700 non-ALJs work for other agencies.
Agency

Subcomponent

Administrative
Office of the U.S.
Courts
CFTC
USDA

Fair Employment
Office

Fulltime
non-ALJs
Practices

Office of Proceedings
15 [1]*
Agricultural
Marketing 3
Service,
Specialty
Crops
Program
Patent Trial and Appeal Board 265

Part-time
ALJs

non-

1

10

71 We calculated this number based on the number of non-ALJs for which agencies reported salary grades

(9,594) and additional non-ALJs whom agencies reported when responding to other questions. The Peace
Corps did not provide any salary information on its 6 non-ALJs, the VA on its 630 reported non-ALJs, the
Administrative Office of the Courts on its part-time non-ALJ, and the NLRB on its 600 reported non-ALJs.
We added these non-ALJs to our count.
When agencies reported part-time information and salary information on their non-ALJs, we have assumed
that these part-time employees were included in the reported salary-related numbers. Other agencies
reported hiring non-ALJs on a contract basis (Treasury’s Alcohol and Tobacco Tax and Trade Bureau for
labor arbitrations and FDIC for miscellaneous proceedings). We have not included these contract non-ALJs
in our totals.
When agencies reported different numbers of non-ALJs in response to different questions, we used the
response to salary-related information because it was more specific. For instance, PTO reported 8300 Patent
Examiners, but PTO provided salary data on only 7,856 of them. Relatedly, EEOC reported 110
Administrative Judges in response to one question but salary data on only 92 of them; CFTC reported one
non-ALJ in response to one question but reported 15 non-ALJs when answering salary-related questions;
Treasury reported 449 Appeals Officers but provided salary information on 457 of them; DOJ/EOIR reported
300 non-ALJs at one point, but provided salary information on 326 of them; MSPB reported 64 non-ALJs
for one question and 70 in salary-related answers.
* In response to a correction suggested by a CFTC agency official, the number of CFTC fulltime
non-ALJs has been changed from 15 to 1 in this table. Further modifications to the report to
reflect this change have not been made.

18

Department
Commerce
Department
Defense
Department
Education
HHS

of U.S. Patent and Trademark 7856
Office
of Armed Services Board of 22
Contract Appeals
of Office of Hearings and Appeals 2

DHS
DOJ
DOL
Department
Treasury

3
326
5

Office
of
Secretary,
Departmental Appeals Board
Coast Guard
EOIR
Benefits Review Board
of Alcohol and Tobacco Tax and
Trade Bureau
IRS

VA
EEOC
EPA

FDIC
Federal
Maritime
Commission
FLRA
GAO
Library of Congress
MSPB
NASA
NLRB
NRC
Peace Corps
Pension
Benefit
Guaranty Corp.
Railroad Retirement
Bd.
SSA

5

Contract

714
630
87
Regional Offices
10
Office of Administration & 2
Resources

5

Ad hoc
272
Office of General Counsel

40
43
3
68
1
600
11
6
6

2
2

19

Bureau of Hearings and 6
Appeals
Office of Appellate Operations 61
10,792
39
10,831
(total reported non-ALJs)

Figure 1 – Number of Reported Non-ALJs

The number of reported non-ALJs has increased substantially—by approximately 183%—
since the 2002 Limon Study. Limon reported 3,370 non-ALJs, an approximate 25% increase
over Frye’s reported findings.73 Most notably, the number of Patent Examiners has increased
72 One non-ALJ is appointed as necessary.
73 Frye, supra note 43, at 3.

19

from 1,000 to more than 7,800.74 Although we were initially skeptical of this substantial
increase, PTO had announced its goal of hiring thousands more Patent Examiners shortly
after the Limon Study75 and has reported an increase of more than 50% in its employee
numbers over less than a decade in 2014.76 The reported number in the Limon Study and our
survey, if anything, are likely both substantially lower than the numbers that PTO uses for
its annual reports. For instance, for FY2002 (the same year as Limon’s Study), PTO reported
3,538 Patent Examiners,77 compared to the 1,000 reported to Limon in 2002. And by FY2016,
PTO reported more than 8,300 Patent Examiners, as compared to the 7,856 reported in our
survey in 2017.78
Only 39 of the 10,831 non-ALJs, as Figure 1 indicates, are part-time agency employees. The
NRC had the largest number of part-time non-ALJs with 19, followed by the PTO with 10,
the EEOC with five, and a few other agencies having smaller numbers. A few agencies—such
as the FDIC and the Treasury’s Alcohol and Tobacco Tax and Trade Bureau—reported using
non-ALJs but so rarely that they merely hired contract non-ALJs as necessary.
A total of 2,700 non-ALJs work for agencies other than the Department of Commerce. Ten
agencies each employ more than 25 non-ALJs, as indicated on Figure 2: Treasury (714), VA
(630), NLRB (600), DOJ (326), EEOC (92), MSPB (70, including two part-time Chief AJs),
SSA (61), GAO (45), FLRA (40), and NRC (30). Together, these ten agencies employ 2,608 of
the 2,700 non-ALJs who do not work for Commerce. The remaining 92 of the 2700 non-ALJs
work for other agencies.
Of these agencies with more than 25 non-ALJs and Commerce, six were also included in the
Limon Study’s top-ten list of non-ALJs by agency. Those on both lists include Commerce,
Treasury, Veterans Affairs, DOJ, EEOC, and MSPB.79 SSA reported only 25 non-ALJs in the
Limon Study and more than doubled its numbers in our survey.80 Notably the FLRA reported
for the Limon Study that it used only ALJs, providing an example of the well-known trend of
agencies moving towards using non-ALJs.81 Differences between the reported numbers in the
Limon Study and ours largely arise because some agencies or their subcomponents responded
to one but not the other.82

74 See LIMON, supra note 43, at app. C at 1.
75 PTO, PERFORMANCE AND ACCOUNTABILITY REPORT FY 2003, at 2 (stating that it hoped to almost 3000

additional Patent Examiners over the next five years).
See Dennis Couch, USPTO’s Swelling Examiner Rolls,
https://patentlyo.com/patent/2014/11/usptos-swelling-examiner.html.
76

PATENTLYO,

Nov.

30,

2014,

77 See PTO, PERFORMANCE AND ACCOUNTABILITY REPORT FY 2002, at 9.
78 See PTO, PERFORMANCE AND ACCOUNTABILITY REPORT FY 2016, at 16. This number was greater than 9100

the year before. See PTO, PERFORMANCE AND ACCOUNTABILITY
https://www.uspto.gov/sites/default/files/documents/USPTOFY15PAR.pdf

REPORT

FY

2015,

at

14,

79 See LIMON, supra note 43, at app. C (chart of “2002 Top Ten List of Non-ALJs By Agency”).
80 See id. at app. C, 6.
81 See id. at app. C, 2.
82 For instance, the Navy was one of the top ten agencies in the Limon Study, but it did not respond to our

survey. Similarly, we did not hear from the Army or the Air Force, despite their participating in the Limon

20

Agencies Reporting >25 Non-ALJs, excl. Commerce
NRC

30

FLRA

40

GAO

45

SSA

61

MSPB

70

EEOC

92

DOJ

326

NLRB

600

VA

630

Treasury

714
0

100

200

300

400

500

600

700

800

Figure 2 – Agencies Reporting >25 Non-ALJs, excl. Commerce

For comparative purposes, OPM reports that 1,931 ALJs work for 27 agencies,83 while our
survey indicates that 10,831 non-ALJs work for 27 agencies. Just as more than 85% of ALJs
work for one agency (SSA),84 more than 79% of non-ALJs work for one agency (Commerce).
Similarly, although only four agencies have more than 25 ALJs,85 ten agencies employ more
than 25 non-ALJs.
2. Titles
As noted earlier, one of the difficulties in studying non-ALJs is simply describing them
because of their variety of titles. Agencies reported having 37 types of non-ALJs, meaning
that some agencies or subcomponents have more than one type of non-ALJ (for instance,
Administrative Judges and Hearing Officers). Those 37 separately identified types of nonALJs share 23 titles (meaning, for example, that more than one agency may employ nonALJs with the title “Hearing Officer”).
Figure 3 illustrates the various titles and the number of officials that hold them. Seven of
those titles include “judge” in them and are held by nearly 1,000 (964) of the non-ALJs. And
nearly 200 of those non-ALJs are referred to as “Administrative Judges,” a title very similar
to “Administrative Law Judge.”

Study. Although we did receive a response from the Armed Services Board of Contract Appeals for the
Department of Defense, its Defense Legal Services Office did not respond to our survey as it did to the Limon
Study. The NLRB reported the number of non-ALJs for our survey, but not for the Limon Study.
83 See ALJs by Agency, supra note 22.
84 See id.
85 See id.

21

1.

Non-ALJ Titles
Administrative Appeals Judges

No. of Non-ALJs

2.
3.
4.
5.
6.
7.
8.
9.
10.

Administrative Judge
Administrative Patent Judge
Appeals Board Members
Appeals Officers
Attorney-Examiner / Senior Attorney
Board of Immigration Appeals Members
Board of Contract Appeals Judge (or AJ)
Copyright Royalty Judge
Decision Review Officer

11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.

Hearing Officer
Hearing Panelist
Immigration Judge
Judgment Officer
Labor Arbitrators
Ombudsman
Patent Examiner
Presiding Officer
Regional Directors
Regional Judicial Officer
Settlement Officers
Small Claims Officer
Veterans Law Judge

66
193
275
11
457
42
16
22
3

535
651
6
310
15
Contract
1
7,856
3 (plus ad hoc)
6
10
257
1
95
(total) 10,831

“Judge” in title
66
193
275

22
3

310

95
964

Figure 3 – Non-ALJ Titles

3. Salaries
Agencies provided salary data on 30 of the 37 types of non-ALJs and 9,594 non-ALJs of the
10,831 reported non-ALJs.86 Of these 9,594 non-ALJs, we were able to calculate high or low
base salaries for 9,507 of them.87 (The difference between the high and low base salaries vary
based on steps or other distinctions within a pay grade.) We present the highest and lowest
86 We received no salary information from the Administrative Office of the Courts, VA (for either of its two

kinds of non-ALJs), FDIC (whose non-ALJ is hired on an ad-hoc basis), the NLRB, the Peace Corps, and
Treasury for its Labor Arbitrators (who are hired on a contract basis).
Agencies reported specified paygrades that we provided on the survey for 9,239 non-ALJs. Agencies
reported paying 355 non-ALJs under “other” pay scales, some for which we did not have specific salary data.
We were able, however, to calculate the salary ranges for PTO’s reported 268 Appellate Patent Judges. The
PTO listed their salaries under the generic “AD” pay scale (“Agency Determined”), but we were able to
calculate their salaries because the PTO posts these salaries on its website. See USPTO 2014 AD Pay Plan,
COMMERCE.GOV, http://hr.commerce.gov/Employees/Compensation/PROD01_010302 (last visited July 27,
2017). We were unable to calculate the remaining 87 non-ALJs’ salaries for whom their agencies reported
were paid under “other” pay plans. Accordingly, we were able to calculate salaries for 9507 non-ALJs (9,239
+ 268 = 9,507).
87

22

base salaries for each category in the figures below (without accounting for any locality-pay
or other adjustments). Agencies reported the remaining 87 non-ALJs’ salaries as using
various “other” pay scales for which we were unable to make specific calculations.
Frye and Limon asked agencies to report pay scales or grades that they used, but they did
not ask agencies to report how many of their non-ALJs were paid under each grade.88 To have
a better idea of how much non-ALJs cost their agencies in salaries, we asked agencies to
identify how many non-ALJs were paid under each grade.
For comparative purposes, ALJs’ base salaries begin at $108,100 and, with the sixth and
highest step, top out at $149,600 (the pay scale known as AL-3).89 Almost all ALJs are paid
under AL-3 (1,888 of 1,931).90 The remaining (43) ALJs with substantial administrative
duties earn base salaries of either $157,900 or $161,900.91
a. Non-ALJs on General-Service Pay Scales
Figure 4 demonstrates that more than 90% (8,797) of the 9,507 non-ALJs (for whom we could
calculate base salaries) are paid under the General Schedule (GS) pay scale, which generally
governs federal executive white-collar employees,92 while the remaining are paid under
special pay scales. Nearly 90% (7,856) of these non-ALJs under the GS pay scale are patent
examiners for the PTO.

88 See Frye, supra note 31, at app. B, 349–53; LIMON, supra note 43, at app. C.
89 See Pay & Leave: Salaries & Wages, Salary Table No. 2017-ALJ, OPM.GOV, https://www.opm.gov/policy-

data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2017/ALJ.pdf [hereinafter 2017-ALJ Table].
Even with locality pay, no ALJ may earn more than $172,100. See Pay & Leave, Salaries & Wages, 2017
Locality Rates of Pay, OPM.GOV, https://www.opm.gov/policy-data-oversight/pay-leave/salarieswages/salary-tables/pdf/2017/ALJ_LOC.pdf. Because many ALJs may have prior federal service or “superior
qualifications,” many ALJs’ base pay will exceed the entry-level ALJ pay. See Pay & Leave, Pay
Administration, Fact Sheet: Administrative Law Judge Pay System, OPM.GOV, https://www.opm.gov/policydata-oversight/pay-leave/pay-administration/fact-sheets/administrative-law-judge-pay-system/
[hereinafter ALJ Pay Fact Sheet]. Moreover, it takes only seven years of creditable service to reach the
highest pay base rate even if one starts at the entry-level base salary. See id.
90 See ALJs by Agency, https://www.opm.gov/services-for-agencies/administrative-law-judges/#url=ALJs-by-

Agency.
91 See ALJ Pay Fact Sheet; see also 2017-ALJ Table, supra note 89 (AL-2 and AL-1 entries); see also ALJs

by Agency, https://www.opm.gov/services-for-agencies/administrative-law-judges/#url=ALJs-by-Agency
(reporting that 37 ALJs are paid at AL-2 and 5 are paid at AL-1, the highest-paying level).
See Pay & Leave: Pay Systems, OPM.GOV, https://www.opm.gov/policy-data-oversight/pay-leave/paysystems/general-schedule.
92

23

Pay Scales for Non-ALJs
7%

93%

General Service

Special Scales

Figure 4 – Pay Scales for Non-ALJs (GS vs. Special Scales), incl. Patent Examiners (n=9507)

Because the patent examiners’ disproportionate numbers may obscure non-ALJs’ salaries
throughout the federal government, we exclude patent examiners where indicated. If they
are excluded, Figure 5 indicates that 57% (941) of the remaining 1,651 non-ALJs are paid
under the GS pay scale.

Pay Scales for Non-ALJs

43%
57%

General Service

Special Scales

Figure 5 – Pay Scales for Non-ALJs (GS vs. Special Scales), excl. Patent Examiners (n=1651)

The GS pay scale has 15 grades (starting with the lowest salaries at GS-1 and the highest at
GS-15). Each grade has 10 “steps,” beginning with Step 1, where elevation provides a higher

24

salary within a grade.93 Agencies reported non-ALJs’ salaries at GS-9, 11, 12, 13, 14, and
15.94
Figure 6 details the number of non-ALJs (including patent examiners), the highest and
lowest base annual salaries for the reported steps, and the range of total base salaries paid
(based on the highest and lowest steps) for the number of non-ALJs reported. Figure 7 does
the same but excludes patent examiners.
GS
No. of
Grade Non-ALJs
(n=8797)
9
354

2017 Lowest
Step Salary

2017 Highest
Step Salary

Base Salary Range
(in millions)

$43,251

$56,229

$15.3 – $19.9

11

507

$52,329

$68,025

$26.5 – $34.5

12

1,192

$62,722

$81,541

$74.8 – $97.2

13

2,039

$74,584

$96,958

$152.1 – $197.7

14

4,516

$88,136

$114,578

$398.0 – $517.4

15

189

$103,672

$134,776

$19.5 – $25.4

(total) $686.2 – $892.1
Figure 6 – Non-ALJs on GS Pay Scale, incl. Patent Examiners

Figure 6 indicates the following number of non-ALJs paid under the GS grades: 354 for GS9, 507 for GS-11, 1,192 for GS-12, 2,039 for GS-13, 4,516 for GS-14, and 189 for GS-15.
Aside from the much larger number of reported patent examiners since the 2002 Limon Study
(our 7,856 to Limon’s 1,000),95 a notable difference arises in their salaries. The Limon Survey
reported that all patent examiners were paid at GS-15, the highest GS grade.96 But the PTO
reports in our survey that only 75 of the patent examiners are paid at GS-15. More than half
of the patent examiners (4,225 of 7,856) are now paid at GS-14, and a large portion are paid
at GS-13 (1,731) and GS-12 (1,085), suggesting that the PTO may be providing lower salaries
to conserve resources as it hires substantially more patent examiners. But even with the

93 See Pay & Leave: Salaries & Wages, Salary Table 2017-GS, OPM.GOV, https://www.opm.gov/policy-data-

oversight/pay-leave/salaries-wages/salary-tables/pdf/2017/GS.pdf [hereinafter Salary Table 2017–GS].
Base salaries at higher steps within a grade can exceed the next higher-paying grade’s base salary at its
first step. For example, a GS-1 federal employee at Step 5 earns $20,991, while a GS-2 federal employee at
Step 1 earns only $20,829.
94 We did not request information about the steps under which non-ALJs were paid for each pay grade (i.e.,

GS-15, step 1 or step 2).
95 See LIMON, supra note 43, at app. C, 1.
96 See id.

25

PTO’s conservation, non-ALJs under the GS pay scale still cost the federal government a
range of approximately $686.2 to $892.1 million in base salaries.
Because the substantial number of patent examiners may obscure how agencies throughout
the administrative state pay non-ALJs, Figure 7 excludes patent examiners. None of the
remaining agencies reported any non-ALJs at GS-9. They reported 121 non-ALJs at GS-11,
107 at GS-12, 308 at GS-13, 291 at GS-14, and 114 at GS-15. Agencies pay a range of base
salaries to the reported non-ALJs from $73.3 to $95.4 million.
GS
No. of
Grade Non-ALJs
(n=941)
9
0

2017 Lowest
Step Salary

2017 Highest
Step Salary

Base Salary Range
(in millions)

$43,251

$56,229

$0

11

121

$52,329

$68,025

$6.3 – $8.2

12

107

$62,722

$81,541

$6.7 – $8.7

13

308

$74,584

$96,958

$23.0 – $30.0

14

291

$88,136

$114,578

$25.6 – $33.3

15

114

$103,672

$134,776

$11.8 – $15.3

(total) $73.4 – $95.5
Figure 7 – Non-ALJs on GS Pay Scale, excl. Patent Examiners

Figure 8 disaggregates the GS grades by agency (excluding patent examiners), rendering it
easier to see how agencies pay their non-ALJs. It becomes clear that the Treasury
Department primarily uses the lower grades (GS-11, GS-12, and GS-13) for its more than 700
non-ALJs. Indeed, only Treasury and the FLRA use these lower grades. All other agencies
that pay non-ALJs under the GS grades use GS-14 and GS-15, whose pay can overlap with
ALJ base salaries.97
GS
Agency
Grade

Agency Office
Subcomponent

11

IRS
IRS
Office of Gen. Counsel
IRS
IRS
Office of Gen. Counsel
IRS

12

13

Treasury
Treasury
FLRA
Treasury
Treasury
FLRA
Treasury

or Non-ALJ Title
Settlement Officers
Appeals Officers
Hearing Officer
Settlement Officers
Appeals Officers
Hearing Officer
Settlement Officers

No. of NonALJs (n=941)
72
44
5
45
57
5
132

97 At Step 8 of GS-14 and Step 3 of GS-15, the base salaries ($108,702 and $100,584, respectively) exceed

the entry-level ALJ base salary of $108,100. Compare Salary Table 2017–GS, supra note 93, with 2017-ALJ
Table, supra note 89.

26

14

15

Treasury
FLRA
USDA
Treasury
Treasury
EEOC
FMC
FLRA
MSPB
RRB
USDA
DOE
DHS
Treasury
EPA

IRS
Office of Gen. Counsel
Agric. Mktg. Serv.
IRS
IRS

EPA
FMC
MSPB
MSPB

Off. of Admin. & Res.

PBGC

Office of Gen. Counsel
Reg. & Field Offices
Bureau of Hearings
Agric. Mktg. Serv.
Coast Guard
IRS
Region Offices

Reg. & Field Offices
Reg. & Field Offices

Appeals Officers
Hearing Officer
Presiding Officer
Settlement Officers
Appeals Officers
Administrative Judges
Small Claims Officer
Hearing Officer
Administrative Judges
Hearing Officers
Presiding Officer
Administrative Judges
Hearing Officer
Appeals Officers
Regional
Judicial
Officer
Attorney-Examiner
Hearing Officer
Administrative Judges
Chief Administrative
Judges
Appeals Board Member

166
10
2
8
156
92
1
20
6
6
1
1
1
34
10
2
1
56
2
6

Figure 8 – Non-ALJs on GS Pay Scale, by Agency, excl. Patent Examiners

When excluding patent examiners, 25% of non-ALJs whose salaries are calculable receive
pay at GS-14 or GS-15 grades (405 out of 1,651). When including patent examiners, 50% of
all non-ALJs whose pay is calculable receive pay at these two grades (4,705 out of 9,507).
b. Non-ALJs on Special Pay Scales
The remaining 710 non-ALJs are paid under special pay scales. They account for 7% of all
9,507 non-ALJs for whom agencies provided specific salary information or 43% of non-ALJs
who provided specific salary information and are not patent examiners (1,651).
These percentages for all non-ALJs (including patent examiners) are similar to findings in
the 1992 Frye Study. It indicated that approximately 7% (165 out of 2,455) of all reported
non-ALJs were paid on special scales or “supergrades.”98 But if, like our exclusion of patent
examiners from our findings, one excludes the largest reported group of non-ALJs from the
Frye Study (1,692 VA non-ALJs), 22% (165 of 763) of non-ALJs were paid on special pay
scales. (The Limon Study did not provide similar data.) Notably, when excluding the largest
group of non-ALJs, a comparison of our data to the Frye Study suggests that special pay
scales are becoming more common for non-ALJs.

See Frye, supra note 31, app. B. Of the 2,692 non-ALJs for whom agencies reported some salary
information, 237 of them were not government employees. 165 of the remaining 2,455 non-ALJs were paid
under supergrades or other special pay scales. See id.
98

27

The 710 non-ALJs not on the GS scale are paid under one of five other scales (see Figure 9),
which are further defined and discussed below. All of these scales have salary ranges that
overlap with (or are the same as) ALJs’ salary ranges.

Special Pay Scales for Non-ALJs
64

22

268

310
46

AA

CA

IJ

SES or SL/ST

AD

Figure 9 – Special pay Scales for Non-ALJs (n=710)

Some non-ALJs are paid under analogues to the ALJ pay scales. For instance, Administrative
Appeals Judges (AAJs) have their own pay scale (AA-1 through AA-6), and it tracks the six
steps of ALJ pay grades AL-3.99 Only the SSA’s Office of Appellate Operations reported
paying its AAJs on the AA scale. Save three AAJs who were paid under the ALJ pay scales
(AL-2 and AL-1) because of their administrative duties, all of the SSA’s AAJs were paid on
the AA pay scale. Figure 10 provides data on their base salaries:

99 See Pay & Leave: Salaries & Wages, Salary Table 2017-AAJ, OPM.GOV, https://www.opm.gov/policy-data-

oversight/pay-leave/salaries-wages/salary-tables/pdf/2017/AAJ.pdf.

28

Pay Scale

No. of SSA AAJs (n=64) 2017 Base Salaries

AA-1
AA-2
AA-3
AA-4
AA-5
AA-6
AL-2
AL-1

11
0
0
9
20
21
2
1

$108,100
$116,300
$124,700
$133,000
$141,500
$149,600
$157,900
$161,900

Total Salary
(in millions)

$1.9
$0
$0
$1.2
$2.8
$3.1
$0.3
$0.2
(total) $9.5

Figure 10 – AAJ Pay Scale (n=64)

Likewise, as indicated in Figure 11 the Armed Services Board of Contract Appeals uses a
special pay scale for its Board of Contracts Appeals Judges. As required and determined by
statute,100 the BCA Judges receive pay according to a special pay scale (the CA-1 through CA3 pay scale).101 Their base salaries share some similarities with ALJs’ base salaries. Although
the two highest grades are the same or nearly identical to ALJs’ pay grades, the entry base
salary is substantially higher (approximately $152,000 for BCA Judges and $108,100 for
ALJs).
Pay
Scale

No. of DoD BCA Judges 2017 Base Salaries or Range
(n=22)

CA-3
CA-2
CA-1

19
2
1

$152,186
$157,043
$161,900

Total Salary
(in millions)

$2.9
$0.3
$0.2
(total) $3.4

Figure 11 – BCA Judges' Pay Scale (n=22)

The 310 Immigration Judges (IJs) in the DOJ’s Executive Office for Immigration Review are
paid under a special pay scale (IJ-1 through IJ-4) that is similar to the ALJ pay scale.102
Figure 12 indicates that the IJ pay scale has four grades, some of which are higher and some
of which are lower than similar AL-3 steps:

100 See 41 U.S.C. § 7105(2), 5 U.S.C. § 5372a(b).

For the CA pay scale, see https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salarytables/pdf/2017/BCA.pdf
101

See EOIR 2014 Immigration Judge Pay Rates (eff. Jan. 12. 2014),
https://www.justice.gov/sites/default/files/eoir/legacy/2014/05/28/2014IJPayTable.pdf.
102

JUSTICE.GOV,

29

Pay Scale

No. of IJs
(n=310)

2017
Base Salaries

IJ-1
IJ-2
IJ-3
IJ-4

46
39
13
212

$109,970
$125,680
$141,390
$144,532

Total Salary
(in millions)

$5.1
$4.9
$1.8
$30.6
(total) $42.4

Figure 12 – IJs' Pay Scale (n=310)

The remaining 314 non-ALJs (for whom we have calculable salary information) are paid on
special pay scales for which only salary ranges are readily available.103 Forty-six non-ALJs
are paid under the Senior Executive Service (SES) or the Senior-Level and Scientific or
Professional Positions (SL/ST) pay scales. Notably, under these scales, non-ALJs can obtain
pay that exceeds ALJs’. The ranges for both pay scales are the same.104 Two hundred sixtyeight Appellate Patent Judges for the Patent Trial and Appeal Board receive pay under an
agency-determined pay scale (AD).105
Figure 13 provides additional detail, including agencies using the SES pay scale, the number
of non-ALJs paid under these scales, and the salary ranges:

103 Although we received data on special salary grades for 15 CFTC Hearing Officers, two Coast Guard

Hearing Officers, 40 GAO Senior Attorneys, and 30 NRC AJs, we were not readily able to determine the
base salaries or salary ranges for these non-ALJs.
104 See Pay & Leave: Salaries & Wages, Salary Table 2017-SL/ST, OPM.GOV, https://www.opm.gov/policy-

data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2017/SLST.pdf; Pay & Leave: Salaries & Wages,
Salary Table 2017-ES (SES), OPM.GOV, https://www.opm.gov/policy-data-oversight/pay-leave/salarieswages/salary-tables/pdf/2017/ES.pdf.
105 See USPTO 2014 AD Pay Plan: Salary Table Administrative Patent Judges & Administrative Trademark

Judges, COMMERCE.GOV, http://hr.commerce.gov/Employees/Compensation/PROD01_010302.

30

Pay
Scale
SES
or
SL/ST

Agency

Agency Office
or
Subcomponent
Commerce PTAB

No.
of
Non-ALJs
(n=314)
7

DOE

1

HHS
DOJ

Office
of 5
Secretary, DAB
EOIR, BIA
16

DOL

BRB

5

GOA

5

MSPB

Reg. & Field Off. 6

NASA

Ombudsman

AD
Commerce PTAB
(APJs)

2017
Total Salary
Base Salary (in millions)
Ranges
$124,406 to $5.7 to $8.6
$187,000

1
268

$135,845 to $36.4 to $44.8
$167,000
(total) $42.1 to $53.4

Figure 13 – SES, SL/ST, AD Pay Scales for Non-ALJs (n=313)

Of all 9,507 non-ALJs for whom we had calculable base-salary information, 5,415 or 57% of
those non-ALJs are paid within pay scales or grades that overlap with ALJs’ paygrades (GS14, GS-15, and all special pay scales). But if one excludes GS-14 because of its very limited
overlap with ALJ salary ranges, then only 8% of the non-ALJs (829) have pay ranges that
overlap with ALJs’. For the same figures based on the 1,651 non-ALJs for whom we have
calculable base-salary information (when excluding patent examiners), 68% have
overlapping base-salary ranges with ALJs (when including GS-14) or 50% (when excluding
GS-14).106
B. Types of Non-ALJ Oral Hearings
Agencies reported 47 types of Non-ALJ Hearings because some agencies have more than one
type of Non-ALJ Hearing. For instance, the CFTC has wage-garnishment, statutorydisqualification, and reparation-award proceedings. We report here our findings as to the
nature of the 47 reported Non-ALJ Hearing types, whether the non-ALJs’ agency is a party
to the hearing, whether the non-ALJs’ decision is final and the nature of any administrative
appeal, and whether the agency imposes case-processing goals on the non-ALJ for the
particular type of Non-ALJ Hearing.
1. Nature of Hearings
Our questionnaire asked respondents to assign the hearings over which their non-ALJs
preside to one or more of six general subject matter categories and an “other” category. Figure
14 indicates the distribution of the 47 types of Non-ALJ Hearings reported by the responding
officials, (with some kinds of hearings fitting into more than one category): government
benefits (11), enforcement (ten), disputes between private parties (nine), federal employment
disputes (six), miscellaneous/other (six), licensing (five), and government contracts (four). (No
106 710 non-ALJs have special pay scales, 291 are paid at GS-14, and 114 are paid at GS-15.

31

agencies included disputes for one of our listed subject-matter categories: disputes between
different governmental agencies.) The numbers in Figure 14’s chart total 51, not 47, because
a few agencies identified more than one subject matter for a hearing. For example, the EPA’s
Office of Administration and Resources reported that it conducted hearings that involved
both government benefits and government contracts.
Subject Matter of Non-ALJ Hearings
4

11

5
6

10
6
9
government benefits

enforcement

disputes between private parties

federal employment disputes

miscellaneous/other

licensing

government contracts
Figure 14 – Subject Matter of Non-ALJ Hearings (n=47)

No category commanded even 25% of the reported hearing types, revealing the variety of
Non-ALJ Hearings across the federal government.107
Below is a short description of each category:
•

Government-Benefits Hearings. The reported government-benefits hearings concerned
HHS grants, PBGC benefits, and disability benefits for veterans, railroad employees,
and social-security beneficiaries.

•

Enforcement Hearings. The enforcement hearings concerned wage garnishments and
disqualifications by the CFTC for commodities brokers; penalties, fines, or other
enforcement remedies by the Coast Guard, DHS, DOE, EPA, HHS, or NRC;
immigration-removal proceedings in DOJ; and license-revocation proceedings by the
Federal Maritime Commission.

Unlike earlier studies, we did not collect responses concerning the caseloads for different Non-ALJ
Hearings because our study focuses more on the non-ALJs themselves and because of what we perceived as
the difficulty in obtaining reliable data from agencies. See Frye, supra note 31, at 264 (reporting estimated
caseloads and noting lack of consistent agency reporting).
107

32

•

Hearings for Private Parties. Non-ALJs resolve disputes between private parties in
the context of commodities trading, specialty agricultural products, intellectual
property, benefits, labor relations, maritime, and sexual-harassment claims.

•

Federal Employment and Government-Contract Hearings. Some categories are selfexplanatory and share similar contexts, but it may be helpful to know of the agencies
with these kinds of hearings. Non-ALJ Hearings concerning federal employment
disputes occur within the Administrative Office of the U.S. Courts, Treasury, EEOC,
FLRA, GAO, and MSPB. The DOD, EPA, and the GAO have Non-ALJ Hearings
concerning governmental contracts.

•

Licensing Hearings. Licensing hearings concern patents and nuclear power for the
Department of Commerce and the NRC, respectively.

•

Miscellaneous Hearings. As for the “other” proceedings that do not fit within our
established categories, Treasury has hearings for tax-assessment disputes, the FDIC
and the NRC have hearings on “miscellaneous” subject matter (without further
description), and NASA has hearings on public-private partnerships.

We are limited in our ability to compare these results with prior studies. The 2002 Limon
Study did not report Non-ALJ Hearing types. The earlier 1992 Frye Study did report case
types, but it reported them in different categories than ours.108
2. Agency as Party
Concerns over non-ALJ independence are at their apex when the non-ALJ’s employing
agency is a party at the Non-ALJ Hearing. To be sure, agencies may have reasons to influence
non-ALJs as to the agency’s policy preferences in hearings in which the agency does not
appear as a party. But the agency as a party is more problematic because it implicates the
due process principle of nemo iudex in sua causa, i.e., no one should judge his or her own
case.109 The Supreme Court has held that notions of impartiality under the Due Process
Clause apply to agency adjudication,110 but it has given agencies a wide berth in the context
of informal adjudication.111 A party’s “significant and disproportionate influence” on a judge’s
selection, the party’s ability to remove the judge, and the party’s (or the litigation’s) ability

Frye organized the types of hearings in five key categories (enforcement, entitlements, economic,
employer-employee, and health and safety) and then, with his key focus on the kinds of non-ALJ
proceedings, described the cases heard under each category in detail. See id. at 261–62.
108

109 See Adrian Vermeule, Contra Nemo Iudex in Sua Causa: The Limits of Impartiality, 122 YALE L.J. 384

(2012).
110 See Schweiker v. McClure, 456 U.S. 188, 196 (1982); Withrow v. Larkin, 421 U.S. 35, 54 (1975) (holding

that combination of functions for agency or its members will usually not violate due process); see id. at 48
(noting “presumption of honesty and integrity in those serving as adjudicators”); see id. at 51 n.16 (noting
lower-court decisions finding due process violations for lesser officials within agencies that had combined
functions).
111 See, e.g., id.; Marcello v. Bonds, 349 U.S. 302, 311 (1955) (rejecting due process challenge to non-ALJs

based on their reporting relationship with investigative and prosecutorial functions because of “the longstanding practice in deportation proceedings, judicially approved in numerous decisions in the federal
courts, and against the special considerations applicable to deportation which the Congress may take into
account in exercising its particularly broad discretion in immigration matters”). The Department of Justice
is no longer a party to immigrant removal proceedings before DOJ’s immigration judges.

33

to benefit the judge financially are relevant as to whether the adjudicator has sufficient
impartiality under the Due Process Clause.112
Notably, ALJs have a largely OPM-led appointment process, prohibitions on their at-will
removal, a pay scale set by OPM regulations, and prohibitions on agencies paying them
bonuses. These conditions contribute to ALJ impartiality.113 The statutes that promote ALJ
impartiality do not apply to non-ALJs. One of the goals of this project was to determine to
what extent non-ALJs have similar protections from statutes or other sources.
We thus began by asking whether agencies were parties in the identified Non-ALJ Hearings.
As indicated below in Figure 15, agencies reported that they were parties to 47% of the NonALJ Hearing types (22 of 47). Of these hearings, nine concern administrative enforcement,
four concern governmental benefits, four concern licensing, two concern government
contracts, one concerns federal employment matters, and six concern “other” kinds of
hearings (such as tax-assessment disputes or public/private partnerships).114 (Our results for
the other independence criteria follow in Parts IV.C and IV.D. In later subsections, we crosstabulate other findings with the agency’s status as a party.)

Percentage

Agency a Party to Non-ALJ Hearing
100
90
80
70
60
50
40
30
20
10
0

47%

Yes

53%

No

Figure 15 – Whether Agency is a Party in Non-ALJ Hearing Types (n=47)

112 See Barnett, supra note 10, at 1674–78.
113 Cf. Butz v. Economou, 438 U.S. 478, 513 (1978) (providing ALJs absolute immunity based on their quasi-

judicial function and “more importantly” the statutory structures that “assure that the [ALJ] exercises his
independent judgment on the evidence before him”).
114 Agencies identified some Non-ALJ Hearings as fitting into more than one category (say, government

benefits and government contracts), meaning that more than 22 responses apply to 22 types of Non-ALJ
Hearings in which the non-ALJ’s agency is a party.

34

3. Appeals and Finality
The non-ALJs’ decisions often serve as the agency’s final decision in the adjudication, both
with and without further agency review. First, as indicated in Figure 16, in two-thirds of the
Non-ALJ Hearing types (66%, or 31 of 47), the non-ALJs’ decisions either are final agency
actions without any administrative appeal or can be final agency actions if no party takes a
permissive administrative appeal. Accordingly, in the majority of Non-ALJ Hearing types,
non-ALJs do not issue tentative or recommended decisions for the agency to render binding
with a separate order. In the remaining 34% of Non-ALJ Hearing types, agencies indicated
that a final agency action could not occur until after mandatory administrative appeal occurs
(at the Administrative Office of the U.S. Courts, and the PTO), a higher ranking official issues
an order (at the USDA, FDIC, FLRA, Library of Congress, NLRB, and Peace Corps), or
another kind of required action occurs.
Is the non-ALJ's decision final?

No, 34%

Yes, 66%

Figure 16 – Finality of Non-ALJ Decision by Non-ALJ Hearing Type (n=47)

Relatedly, further administrative appeals are available in over slightly half (53%, or 25 of 47)
of Non-ALJ Hearing types. If we exclude from consideration what we perceive to be the 15
Non-ALJ Hearing types that are entirely or mostly appellate proceedings (because those
proceedings serve as appellate proceedings for the particular adjudicatory regime), 41% (13
of 32 Non-ALJ Hearing types) permit no administrative appeal at all.
The matters in which the non-ALJ could issue a final decision without the possibility of any
appellate review were limited to what appear to be extremely low-volume adjudications:
CFTC wage-garnishment proceedings, labor arbitrations within the Alcohol and Tobacco Tax
and Trade Bureau of Treasury, public/private partnerships with NASA, and certain licensetransfer agreements before the NRC.
When agencies permit administrative appellate review, we asked the agencies to describe the
nature of the review. We asked them to choose all of the following that apply: automatic
administrative appellate review, discretionary review, review by an appellate panel (whose
members do not comprise the head(s) of the agency), review by the head(s) of the agency,
35

review by another agency official, or review by another agency or a component of another
agency. Some of the results from responding agencies are provided in Figure 17.
Nature of Administrative Appellate Proceedings
13

Review by head(s) of agency

Review by agency official

4

Review by agency panel

4

0

Review by another agency
0

2

4

6

8

10

12

14

Figure 17 – Nature of Administrative Appellate Proceedings (n=25)115

For either mandatory or discretionary administrative appeals, four Non-ALJ Hearing types
have review by an appellate panel, four by another agency official, and a substantial 13 by
the head of the agency itself. (No agency reported Non-ALJ Hearings whose appeals went to
a different agency.)116 We were initially surprised at the relatively large number of
proceedings that the heads of agencies reviewed. But when we reviewed those kinds of
hearings, they either appeared to be relatively rare proceedings or appeals to agencies that
mainly or solely use adjudication. For instance, appeals from the Administrative Office of the
U.S. Courts’ fair-employment-practices hearings, the DOE’s proceedings concerning
improper actions surrounding student financial aid, and the NRC’s various nuclear-power
hearings are likely not substantial in number. And several of the agencies—such as the
Federal Maritime Commission, the MSPB, the NLRB, and the Railroad Benefits Board—that
permit or mandate appeals to the head(s) of the agency act largely or solely through
adjudication, rather than rulemaking.
Agencies reported only three Non-ALJ Hearing types as having mandatory appellate
proceedings: patent applications, certain veterans-benefits decisions, and certain decisions

Despite having the 25 agencies report having appellate proceedings, not all of their responses are
indicated on the graph. Some, such as the EEOC, simply reported discretionary appeals, while others, such
as DOL/BRB only reported “other” (parties could choose to appeal).
115

116 We did not ask agencies about the availability or nature of judicial review from the non-ALJ or agency’s

decision.

36

concerning nuclear energy. (The responses as to the number of discretionary proceedings
were very likely incomplete.117)
4. Case-Processing Goals
Quantitative case-processing goals and qualitative evaluations have a lengthy and
contentious history. The Frye Study indicated that quantitative case-processing goals were
widespread by 1992 (although Frye’s presentation of the data renders them difficult to
compare with ours).118 As the Conference has previously recognized, case-processing goals
can improve productivity and accountability.119 These values appear most salient when the
agency seeks efficient disposal of high-volume caseloads. Nevertheless, some adjudicators
(most famously, ALJs at SSA) have criticized them for interfering with their decisional
independence.120 The federal courts of appeals have not been receptive to ALJs’ criticism.121

117 Although all 25 types of Non-ALJ Hearings with appellate proceedings must either be mandatory or

discretionary, we received only 17 responses to these binary variables (three for mandatory and 14 for
discretionary). We suspect that the reported mandatory appellate processes are accurate because of their
rarity.
118 See Frye, supra note 31, at 270.
119 See Admin. Conference of the U.S., Recommendation 86–7, “Case Management as a Tool for Improving

Agency Adjudication,” at 1 (1986)).
120 See Ass’n of Admin. Law Judges v. Colvin, 777 F.3d 402, 405–06 (7th Cir. 2015) (holding that ALJs had

to seek relief under Civil Service Reform Act, not the APA, to challenge the SSA’s current 500-decision “goal”
and rejecting the ALJ union’s argument that the quota had improper effects on ALJs’ decisional
independence); Nash v. Bowen, 869 F.2d 675, 680 (2d Cir. 1989) (upholding SSA’s implementation of
“reasonable production goals”). For criticism of the ALJs’ position, see Richard J. Pierce, Jr., Political
Control Versus Impermissible Bias in Agency Decisionmaking: Lessons from Chevron and Mistretta, 57 U.
CHI. L. REV. 481 (1990).
121 See id.

37

Case-Processing Goals?

Yes, 36%
No, 64%

Yes

No

Figure 18 – Case-Processing Goals (n=47)

As Figure 18 indicates, agencies impose quantitative case processing goals for 17 of 47 NonALJ Hearing types (36%). Agencies use those goals mostly in what are likely high-volume
proceedings. Although we did not survey agencies about their specific caseloads, we can
obtain a proxy by considering the number of reported adjudicators. The following proceedings
have case-processing goals (with the number of non-ALJs presiding over the types of
proceeding at issue in parentheses): patent applications (8,300 non-ALJs), laborrepresentative disputes (600), immigrant-removal proceedings (310), tax-assessment
disputes (at least more than 250 for each kind of tax-assessment proceeding), veteransbenefits hearings (535) and appeals (95), employment or labor hearings for employees in
agencies throughout the government (62 full-time non-ALJs for MSPB and 40 for FLSA), and
social-security matters (60). The only large groups of non-ALJs without case-processing goals
were Appellate Patent Judges (268) in appellate patent matters and EEOC AJs (92) in certain
employment matters. In other words, the vast majority of non-ALJs are subject to caseprocessing goals, even if the majority of Non-ALJ Hearing types are not.
C. Non-ALJ Selection
Agencies reported that applicants for 31 of the 37 identified types of non-ALJs must meet
minimum qualifications. We asked about qualifications for (1) outside candidates whom
agencies consider hiring initially as non-ALJs and (2) agency employees whom agencies move
from another position within the agency to serve as non-ALJs (whether or not through a
formalized application or selection process). Of the 31 non-ALJ types for which agencies
responded with qualifications information, 23 of those types are hired both initially from
outside the agency and from within, while four are hired only from within and four are hired
only from outside.
Agencies did not report any minimum qualifications for six of the non-ALJ types. Most of
those agencies—such as the Administrative Office of the Courts or the Treasury (for Labor
38

Arbitrators), the FDIC, or the Peace Corps—likely did not report any information because of
the short-term contractual (or temporary and rare) nature of the individual’s adjudication
duties. These agencies likely do not have formalized requirements. The responding official
for the FMC’s two types of non-ALJs did not know what the qualifications were, if any.
Agencies reported hiring persons outside the agency as non-ALJs for 27 of the reported 37
non-ALJ types. We specifically asked agencies about certain potential qualifications and
asked them to mark all qualifications that applied: a law degree; years of government service,
legal practice, litigation experience, and legal practice concerning regulatory issues relevant
to the Non-ALJ Hearings; military service; adequate written work product; subject-matter
expertise; demeanor; and references. We also provided space for them to identify other
qualifications. As indicated in Figure 19, they reported the following minimum qualifications
for initial hires:

Minimum Qualifications (Initial Hires)
18

17

16

Non-ALJ Types

14

12

12

9

10
8

8

7

7

6
4

1

2
0
Law Degree

Demeanor

References

Sub.-Matter Yrs. of Leg.
Written
Yrs. of Gov't
Expertise
Practice
Exam/Review
Serv.

Figure 19 – Minimum Qualifications (Initial Hires) (n=27)

Agencies require that nearly two-thirds of the 27 initially-hired non-ALJ types (63%) have a
law degree,122 and some impose related requirements, such as expertise in general
administrative law (CFTC), bar membership (EEOC), a mix of litigation and/or subjectmatter expertise (EPA and Library of Congress), or dispute-resolution experience (NASA).
Applicants could meet agencies’ years-of-legal-practice requirements with between five and
ten years’ experience. Only two other qualifications were common to more than one-third of
the types: consideration of demeanor and references. Agencies reported “other” qualifications,
such as scientific degrees (PTO) and certain military rank (Coast Guard).
Perhaps the most interesting takeaway is that agencies reported only considering subjectmatter expertise when initially hiring non-ALJs for eight non-ALJ types (or 12 types, if
122 The NLRB noted that it hires some Hearing Officers with a law degree and others without.

39

including an expansive understanding of the qualifications with the “other” answers)—not
even half of the 27 types initially hired. Agencies often criticize OPM for the difficulty in
hiring ALJs and for OPM’s refusal to consider subject-matter expertise.123 But our findings
suggest that agencies themselves do not always, or even usually, consider such expertise.
That said, agencies consider, without exception, expertise when hiring non-ALJs who will
work in scientific areas.124
Agencies reported moving existing employees into non-ALJ roles for, coincidentally, 27 nonALJ types (and thus indicating that some agencies select non-ALJs from inside and outside
of the agency). Similar to initial hires, agencies require a law degree for 59% of the non-ALJ
types hired from within the agency. And agencies that require years of legal practice impose
from seven to ten years’ experience. Interestingly, as indicated in Figure 20, they reported
more types of minimum qualifications for internal hires. With these internal hires, agencies
were more likely than with outside hires to consider subject-matter expertise, writing ability,
demeanor, and—perhaps most surprising—references. Indeed, agencies considered law
degrees, expertise, and demeanor for slightly more than half of the non-ALJ types. (Agencies
reported similar qualifications under “other” as they did for initial hires.)

Minimum Qualifications (Existing Employees)
18

Non-ALJ Types

16
14

16

15

14

12
10

12
10

8

7

6
4
2

5
1

1

0

Figure 20 – Minimum Qualifications (Existing Employees) (n=27)

Agencies place 17 (46%) of the 37 identified types of newly hired non-ALJs on probation.
Agencies relied upon probationary periods for 81% of non-ALJ types that hear benefits
claims, 67% for those that hear enforcement matters, 50% for those that hear licensing or
private-party disputes, 39% for those who hear federal employment disputes, and none for

123 See Barnett, supra note 10, at 1704.
124 PTO and NRC require expertise or scientific degrees.

40

those who hear government-contract disputes. Only four (11%) are hired for a term of years,
and none of those four are subject to performance appraisals.
D. Non-ALJ Oversight and Independence
For each of the 37 reported types of non-ALJs, we asked agencies numerous questions that
concern non-ALJs’ independence and impartiality. Specifically, we asked about (1) any
limitations on the non-ALJs’ duties and their reporting relationships within the agency,
(2) any limitations on non-ALJs having ex parte communications, (3) any physical separation
from others in the agency, (4) any requirements for recusal, (5) any performance appraisals
and eligibility for pay bonuses, and (6) any protections from at-will removal. Throughout, we
provide comparisons to ALJs’ protections and prohibitions.
1. Separation of Functions
ALJs are prohibited by statute from performing investigative or prosecutorial functions or
reporting to an employee with those functions.125 This separation of functions—prosecution
from adjudication—provides ALJs independence from the agencies who are often parties in
ALJ Hearings. We asked agencies about non-ALJs’ functions and limitations on their
functions, as well as their reporting relationships.
a. Non-ALJ Functions
We asked whether any authority prohibited non-ALJs from performing duties aside from
adjudication and, if so, the nature of that authority. Figure 21 reports our results. Agencies
indicated that 16 (or 43%) of the 37 non-ALJ types had no required separation of functions.
This comprised the largest group. In addition, three types worked for agencies that only
adjudicate and thus have no competing functions to separate. And three other types could
perform only adjudicative duties and thus had complete separation of functions.
For the remaining 15 non-ALJ types, eight were prohibited from engaging in investigative or
prosecutorial functions (like ALJs). The seven other types reported “other” limits. For
instance, Treasury’s Settlement Officers cannot prosecute or investigate the cases that they
decide, Copyright Royalty Judges are limited by general ethics and conflicts rules, and
Presiding Officers for the CFTC cannot report to an employee who prosecutes or investigates.

125 See 5 U.S.C. §§ 554(d)(2), 3105.

41

Required Separation of Functions?
N/A, 3

Yes,
other
limits, 7

Yes, can't
prosecute, 8
No

Yes, complete

No, 16

Yes, Complete
3
Yes, can't prosecute

Yes, other limits

N/A

Figure 21 – Required Separation of Functions (n=37)

Many observers might regard the lack of separation of functions especially troubling for
certain hearings, such as enforcement proceedings and those in which the agency is a party.
Because of the agency’s competing roles and interests, it is in these hearings where internal
separation within the agency is particularly useful in providing the proceeding and the nonALJ an appearance of impartiality. As Figure 22 indicates, more than one-third (6) of the 17
non-ALJ types that preside over hearings in which their agencies are parties have no
separation of functions. The same number (6) of those non-ALJ types that preside over
hearings in which the agency is a party are prohibited from performing investigative or
prosecutorial functions. The remaining non-ALJ types either are prohibited from performing
any function other than adjudication (3), or have some other limitation (2). Agencies appear
more sensitive to the need for separation of functions in enforcement proceedings specifically.
For non-ALJ types that hear enforcement matters, only 22% of them have no separation of
functions, while all other types (except one) have similar separation as ALJs.126

126 For enforcement matters, 22% of non-ALJ types have no separation-of-functions requirements, 67% have

the same separation as ALJs, and 1 had some “other” kind of separation.

42

Separation of Functions for Enforcement
Proceedings and Proceedings With Agency-Party
2
6
3

6

None
Nothing other than adjud.

No Invest. Or Prosec.
Other Limitations

Figure 22 – Separation of Functions for Certain Hearings (n=17)

We asked agencies to identify the source for separation of functions for each non-ALJ type,
and agencies did so for 10 types (regardless of the nature of the hearings). Selecting as many
sources as applicable, agencies reported, as indicated in Figure 23,127 that the requirement
arose from statute (for five non-ALJ types), substantive rule (four), procedural rule (five),
internal guidance (four), custom (six), or other norm or limitation (such as conflict-of-interest
principles, etc.) (three).

127 We did not include responses for non-ALJ types that responded “none” in calculating the number of

responses or that did not answer at all.

43

Source(s) for Separation-of-Functions
Requirements
7
6

6

5

5

5
4

4

4
3

3
2
1
0

Custom

Statute

Proc. Rule

Sub. Rule

Internal
Guidance

Other

Figure 23 – Source(s) for Separation-of-Functions Requirements (n=10)

Most of the responding agencies identified more than one source for separation-of-functions
requirements. For instance, DOD indicated that its non-ALJs had separated functions via
statute and substantive rule. Treasury identified four sources (statute, procedural rule,
guidance, and custom), and DOJ/EOIR—despite having DHS, not DOJ or EIOR, as a party
in its adjudications128—also identified four (statute, substantive rule, guidance, and custom).
b.

Reporting Relationships

Under the APA, ALJs may not report to those who investigate or prosecute. We were
interested in non-ALJs’ reporting relationships and asked agencies to identify to whom the
non-ALJs directly report. As Figure 24 reveals, they indicated as follows (with the number of
types who report to the indicated official in parentheses): agency head(s) (two), agency
officials who supervise investigation/prosecution (three), chief non-ALJs (eight), and other
officials (24).

128 See supra note 111.

44

Non-ALJs' Direct Supervisors
2

3

8
24

Agency Heads

Agency Prosecutor/Investigator

Chief Non-ALJ

Other

Figure 24 – Non-ALJs' Direct Supervisors (n=37)

Three types of non-ALJs who report to agency prosecutors or investigators and lack the ALJs’
separation of functions are the NLRB’s Hearing Officers, the FLRA’s Hearing Officers, and
EPA’s Regional Judicial Officers (and the EPA is a party to the Regional Judicial Officers’
hearings). As for the non-ALJs who report directly to the head of their agency, the Copyright
Royalty Judges report to the Librarian of Congress and the NASA ombudsman reports to the
NASA Administrator.
We also asked to whom the chief non-ALJ reports in order to ascertain whether the
separation of functions ends one level up from the “line” non-ALJs. For the eight non-ALJ
types (22%) that report to chief non-ALJs,129 agencies for four maintain separation for the
chief non-ALJs. For instance, the DOD’s Board of Contracts Appeals Judge Chairman does
not directly report to anyone, the DOE’s Chief Administrative Judge reports to the Director
of the Office of Hearings and Appeals, and the SSA’s Chief AAJ reports to the Director of the
Office of Appellate Affairs.130 Other non-ALJ types do not maintain similar separation. For
instance, the Coast Guard’s Chief Hearing Officer reports to the Deputy Chief Counsel/Judge
Advocate General, the Peace Corps Chief Hearing Panelist reports to an agency prosecutor
or investigator, and the NRC’s Chief Administrative Judge reports to the Commissioners.
Notably, 65% of non-ALJ types (24 out of 37) reported having direct supervisors other than
the categories that we provided in the survey. Respondents told us that these other
supervisors ran the gamut from, among other things, the “Director of Proceedings” at the
CFTC, Manager of the Appeals Division at the PBGC; chairpersons of appellate boards at

129 Our tally of non-ALJs who report to chief non-ALJs does not include the MSPB’s AJs, who can report to

other Chief AJs or Regional Directors.
130 The HHS’s Chief Departmental Appeals Board Member reports to the Deputy Secretary of the DHS. The

GAO did not respond to this question for its Chief AJ.

45

DOJ/EOIR;131 supervisory non-ALJs (but not “chief non-ALJs”) or Chief ALJs (not chief nonALJs) at EEOC, PTAB, PTO, and FMC; and various attorneys and directors. These reporting
relationships provide at least some segregation from any agency-enforcement functions.
We also asked agencies whether there were specific limitations on who could supervise nonALJs, similar to how the APA addresses supervision for ALJs. Slightly fewer than half of the
non-ALJ types have no limitations (18 out of 37).132 The others’ limitations varied. The CFTC
prohibits its non-ALJs from reporting to an agency prosecutor or investigator (as the APA
does for ALJs). The USDA’s Agriculture Marketing Service requires that its non-ALJs report
to an independent entity within the USDA, the Office of General Counsel. But most others
reported lesser limitations, such as that the supervisor for certain non-ALJs (for example,
PTO’s patent examiners, Treasury’s Settlement Officers, MSPB’s non-ALJs, and SSA’s AAJs)
had to have certain qualifications or had to be a specific individual per statute or regulation
(for example, Armed Forces Board of Contract Appeals, Peace Corps’ Hearing Panelists, and
EPA’s Regional Judicial Officers).
2. Ex Parte Communications
One indicium of a fair proceeding and an independent adjudicator is freedom from pressure
from the agency or a party. One way to limit such pressure or interference is to prohibit or
limit the adjudicator’s ex parte contacts with parties. Likewise, ex parte third-party
communications can be unfair to parties who cannot participate in those communications.
Thus, limiting third-party communications can increase the fairness and accuracy of the
hearing.
Several APA provisions prohibit certain ex parte communications during ALJ Hearings. For
instance, unless otherwise permitted by law or excluded by the APA, ALJs may not have ex
parte communications with anyone concerning facts at issue. ALJs may, however, discuss
legal issues with others inside the agency, unless they are employees who investigate or
prosecute the case at issue or one factually related.133 The APA permits official notice of
material facts under certain conditions134 and other ex parte contacts as permitted by law.135
We surveyed agencies to ascertain whether non-ALJs had similar prohibitions on their ex
parte communications. We asked them whether ex parte communications were permitted,
and, if so, which communications were permitted. And we asked what source of law, if any,
prohibited or limited ex parte communications.
Figure 25 indicates that agencies have no ex parte communications prohibitions for five (or
14%) non-ALJ types, and prohibit some ex parte communications for 11 types (30%). Agencies
131 Contrary to the questionnaire response, we think Immigration Judges’ direct supervisors are Assistant

Chief Immigration Judges, not the Board of Immigration
https://www.justice.gov/eoir/office-of-the-chief-immigration-judge-bios

Appeals

chairperson.

See

132 We included in the calculation answers that indicated the only limitation was that the supervisor must

have supervisory rank (for the EEOC) or no “conflict of interest” (for the DOE).
133 5 U.S.C. § 554(d).
134 Id. § 556(e).
135 Id. § 554(d).

46

prohibit all ex parte communications for 21 of the 37 non-ALJ types (or 57%). Notably, the
prohibition on all ex parte communications (as to both matters of fact and law) is stricter
than even the APA standard for ALJs, which permits ALJs to discuss legal matters with
certain agency officials.136 This stricter prohibition is consistent with ACUS’ 1993 Model
Adjudication Rule on prohibiting ex parte communications.137

Prohibitions on Ex Parte Communications

14%

30%

All Prohibited

57%

Some Prohibited

None Prohibited

Figure 25 – Prohibitions on Ex Parte Communications (n=37)

This strong prohibition against any ex parte communications applies to eight of the nine
types of non-ALJs hearing enforcement matters, three of the four in licensing matters, and
five of the eight in matters between private parties.138 The widespread prohibition of ex parte
contacts in enforcement proceedings is encouraging because the non-ALJ’s agency is usually
a party to these proceedings.139 The widespread prohibitions of ex parte contacts in licensing
matters (at least with our small number of observations) is also encouraging because the
agency may well have interests in licensing matters even if not formally a party. But the
prohibition’s common use is surprising because licensing matters are excepted from some of
the APA’s ex parte prohibitions.140

136 See id. § 554(d)(2).

See ACUS MAR 120(A) (“Except to the extent required or the disposition of ex parte matters as
authorized by law, the Adjudicator may not consult a person or party on any matter relevant to the merits
of the adjudication . . . .”).
137

138 All ex parte communications are prohibited for 67% of the non-ALJ types deciding government-contract

disputes, 46% of those deciding federal employment disputes, and only 18% if those deciding benefits
matters.
139 For immigration-removal hearings, DHS is the prosecuting agency in the DOJ/EOIR’s hearing.
140 See 5 U.S.C. § 554(d)(2)(A).

47

We also considered how agencies did or did not insulate non-ALJs when the agency was a
party to Non-ALJ Hearings. The agency’s status as a party likely places the most strain on
the non-ALJs’ independence because of concerns that the non-ALJ will communicate with
those in the agency who seek to advance the agency’s litigating position. As discussed earlier,
the APA limits certain, but not all, ex parte communications with certain adjudicators; we
sought to understand whether agencies with ex parte prohibitions have similar prohibitions
for non-ALJs. Agencies reported that no ex parte communications are permitted for 10 (59%)
of the 17 proceedings in which the agency is a party (a standard that is stronger than the
APA’s). Some ex parte communications are permitted for four (24%) of those proceedings (a
standard that would be similar to the APA’s). And all ex parte communications are permitted
for three (18%) of them. Overall, these findings are reassuring because 82% of Non-ALJ
Hearings with the agency as a party have ex parte prohibitions that are at least similar to
the APA’s prohibitions for ALJ Hearings.
As indicated in Figure 26, agencies identified the sources of these prohibitions on ex parte
communications—whether in statute, substantive rule (such as a notice-and-comment rule),
procedural rule, internal agency guidance, or custom—for 12 non-ALJ types (with some
having more than one source).

Source of Limits on Ex Parte Communications
9
8

8

8

7
6
5
4

3

3

2

2
1

0

0
Internal Guidance

Custom

Proc. Rule

Statute

Sub. Rule

Figure 26 – Sources of Limitations on Ex Parte Communications (n=12)

Notably, 67% of the agencies that responded to this question indicated that the prohibition
comes only in the least accessible and transparent forms: internal guidance or custom or both.
Agencies’ substantial reliance on custom is problematic because it is likely to be unwritten,
opaque, and open to varied construction by different non-ALJs.
For those non-ALJ types for which agencies limit ex parte contacts, we asked agencies about
the nature of those limitations. None of the agencies that limit (as opposed to prohibit all) ex
parte communications prohibited either all communications related to fact or all
48

communications related to law. Instead, agencies prohibit six non-ALJ types from discussing
facts only with certain agency officials (as opposed to prohibiting discussion with anyone),
and agencies prohibit seven types from discussing legal issues with certain agency officials.
(The six types in the former group—two non-ALJ types for Treasury, three kinds for MSPB,
and PBGC—are also six of the types for the latter group.) Agencies prohibit five types of nonALJs from discussing both facts and legal issues with persons outside the agency (Peace
Corps, NASA, RRB, and Treasury for two types).
3. Physical Separation
A related question asked agencies whether their non-ALJs were physically separated from
other agency employees. Paul Verkuil reported in 1976 that the Department of Interior’s
physical separation and new titles for its non-ALJs led some to assert that the “resulting
decisions on informal appeals are less institutionally oriented, more objective and ultimately
more fair.”141 He lauded the agency for its “internal agency reform that . . . substantially
increased the impartiality of the informal decision making at a low cost to the system.” 142
Indeed, physical separation would likely encourage an agency culture that views the nonALJs as being separate from the rest of the agency in function. Moreover, fewer casual
“water-cooler interactions” between non-ALJs and agency employees should also create some
psychological separation from agency employees who shape agency litigation or policy
positions. That said, Verkuil did not detail the specific or optimal nature of the physical
separation, whether as to space or personnel.
Figure 27 reports our results. Of the 37 types of non-ALJs, almost half (18) are physically
separated from other agency employees. One type (Hearing Officers for the FMC) are
sometimes physically separated, while the remaining 18 are not. Agencies were most likely
to provide physical separation for non-ALJ types that heard federal employment disputes (for
69% of the types that heard these claims), government benefits (64%), and enforcement
(56%). Agencies were less likely to do so for non-ALJ types that preside over licensing matters
(25%), government contracts (33%), and private disputes (13%).

141 Verkuil, supra note 30, at 787.
142 Id.

49

Physical Separation?

No, 18

Yes, 18

Sometimes, 1
Yes

Sometimes

No

Figure 27 – Physical Separation (n=37)

We also considered the relationship between non-ALJs’ separation of functions and their
physical separation within the agency. Agencies physically separate all non-ALJ types who
are permitted only to adjudicate. And agencies do so for 75% of the non-ALJ types who are
prohibited from investigating or prosecuting. Agencies always physically separate only 19%
of non-ALJs types who may perform other duties (and they sometimes physically separate
6% of those non-ALJ types).
Although our data provide some insight into how agencies do or do not physically separate
non-ALJs from other agency officials, the utility, optimal form, and costs of effecting physical
separation is an area ripe for future research and consideration.
4. Recusal Requirements
Agencies require 31 (84%) of the 37 non-ALJ types to recuse themselves if they cannot serve
as an unbiased adjudicator in a case. For those with recusal requirements, as indicated in
Figure 28, agencies identified the sources that require recusal (selecting all that apply). More
than half of the 31 agencies with limitations rely on regulations to do so, providing
meaningful transparency and clarity to those requirements. In contrast, more than a third
(11 of 31) of the non-ALJ types’ limitations arise, at least in part, from custom. Seven of those
11 non-ALJ types had limitations that arose only from custom.

50

Sources for Recusal Obligation
18
16

16

14

11

12
10

8

8

5

6
4

4

2
0

Regulation

Custom

Guidance

Other

Statute

Figure 28 – Sources of Recusal Obligation (n=31)

As for the responses that marked “other,” the limitations arose from contractual provisions
(non-ALJs hired on an ad-hoc basis, such as for the Administrative Office of the Courts),
“general government ethics requirements” or “ethical considerations” (for DOE, Commerce,
EPA, and DHS), or “certification” (required for certain EPA actions). Agency reliance
generally on seemingly vague “ethical considerations” likely leave substantial discretion to
non-ALJs.
No recusal requirement exists for the following six non-ALJ types: CFTC’s Presiding Officers,
the Treasury’s Alcohol and Tobacco Tax and Trade Bureau, both non-ALJ types within the
VA, the FLRA’s Hearing Officers, and NASA’s Ombudsman.
5. Performance Appraisals and Bonuses
To promote ALJ independence from their agencies, ALJs are exempt from civil-service
performance appraisals and cannot receive bonuses from their agencies.143 We sought to
ascertain whether non-ALJs had similar protections from agency oversight.
First, we asked agencies whether their non-ALJ types were subject to performance
appraisals. If so, we asked about the nature of the appraisals. Second, we asked whether the
agency awarded bonuses to non-ALJs (based on performance appraisals). If so, we asked for
the amounts or ranges of bonuses awarded in 2016. Finally, we asked whether the agency
had set up any means of preventing the appraisals from affecting the non-ALJs’ impartiality.

143 See Barnett, supra note 10, at 1655–56.

51

a. Subject to Performance Appraisals
A large proportion of non-ALJs by type and by number are subject to performance appraisals.
28 of the 37 types of non-ALJs (76%) are subject to performance appraisals (Figure 29),144
and all but 68 of the 10,831 total non-ALJs are subject to performance appraisals.145 In other
words, an overwhelming 99% of all non-ALJs are subject to performance appraisals (Figure
30). Of the ten agencies (excluding the Department of Commerce) with more than 25 nonALJs (see Figure 2, supra), nine administer performance appraisals for their non-ALJs. Of
the 2,608 non-ALJs that these ten agencies employ, almost all (2,573) have performance
appraisals.146

Non-ALJ Types Subject to
Performance Appraisals?
9
28

Yes

No

Figure 29 – Types Subject to Performance Appraisals (n=37)

144 The nine non-ALJ types without performance appraisals are the Administrative Office of the Courts,

DOD, Treasury (Labor Arbitrators), FDIC, GAO (five Personnel Appeals Board Members), the Library of
Congress, NASA, NRC, and the Peace Corps.
The agencies and the number of non-ALJs not subject to performance appraisals are as follows:
Administrative Office of the Courts (1), DOD (22), GAO (five Personnel Appeals Board Members), the
Library of Congress (three), NASA (one), NRC (30), and the Peace Corps (six). The FDIC and Treasury
Labor Arbitrators are hired only on an ad hoc basis.
145

146 Of the ten listed agencies with more than 25 non-ALJs (excluding Commerce), only the NRC did not use

performance appraisals for any of its (30) non-ALJs. The GAO reported that it used performance appraisals
for its 40 Senior Attorneys, but not its five Administrative Judges.

52

Number of Non-ALJs Subject to Performance
Appraisals?
68

10,763

Subject

Not Subject

Figure 30 – Number of Non-ALJs & Performance Appraisals (n=10,831)

The percentage of non-ALJs subject to performance appraisals has increased based on figures
reported in the 2002 Limon Study. Limon reported that 83% of non-ALJs were subject to
performance appraisals.147 The increase to more than 99% likely arises primarily from the
substantial increase in the number of patent examiners, the largest group of non-ALJs.
As with several other factors that concern non-ALJ independence, we considered how many
agencies conducted annual performance appraisals for the different types of non-ALJs who
preside over hearings in which the agency is a party. The appraisals could serve as a subtle
(or not so subtle) method of influencing non-ALJ decision making. Given the significant
percentage of non-ALJ types and total number of non-ALJs who are subject to performance
appraisals, we were not surprised to find that agencies conduct appraisals on 71% of nonALJ types that hear proceedings in which agencies are a party (and for 89% of non-ALJ types
that hear enforcement matters).148 This percentage, slightly smaller than the overall
percentage of non-ALJ types subject to appraisals (76%), suggests some agency sensitivity to
Non-ALJ Hearings in which the agency is a party. But the percentage is still substantial and
indicates that agencies are using what the APA regards as a suspect tool on judges who
conduct proceedings for which concerns over impartiality are most sensitive.
b. Nature of Performance Appraisals
To understand the nature of the non-ALJs’ performance appraisals, we asked agencies that
subject non-ALJs to performance appraisals to identify whether the appraisals included
consideration of (1) quantitative case-processing goals, (2) input from litigants, (3) peer
review, (4) qualitative review of the non-ALJs’ decisions themselves, (5) reversal rates of the
147 See LIMON, supra note 43, at 4. Limon also reported that 30 of 55 agencies (approximately 55%) that

reported using non-ALJs also subjected their non-ALJs to performance appraisals. See id.
Agencies conduct appraisals for 100% of non-ALJ types that hear benefits matters, 77% for federal
employment disputes, 75% for licensing and for disputes between private parties, 71% for enforcement, and
67% for government contracts.
148

53

non-ALJs’ decisions, or (6) other factors. We asked them to identify all that apply, and
agencies reported information on the performance appraisals for 26 of the 28 non-ALJ types
that are subject to performance appraisals.149

Nature of Performance Appraisals
25

21
20

18

15

11
10

5

5

3

2

0

Case-Process.
Goals

Review
Decisions

Other

Reversal
Rates

Litgant Input Peer Review

Figure 31 – Nature of Performance Appraisals (n=26)

As Figure 31 indicates, the two most used factors in non-ALJs’ performance appraisals are
case-processing goals (for 81% of non-ALJ types for which we received responses) and review
of non-ALJs’ decisions (69%). Litigant input, peer review, and reversal rates are relatively
rare.150
The 11 “other” responses provided more detail. For example, agencies for certain non-ALJ
types—such as the DOE’s AJs and HHS’s Departmental Appeals Board Members—also
consider non-ALJs’ administrative responsibilities. The MSPB considered government-wide
performance standards for the Senior Executive Service when reviewing its Regional
Directors.
Some of these “other” responses suggested that certain appraisal criteria, if not properly
cabined, could implicate decisional outcomes. The Coast Guard, for instance, considers its
non-ALJs’ adherence to agency guidance on impartiality, fairness, and achieving remedial
goals of the civil-penalty process. Other agencies, such as the VA, echoed the Coast Guard by
indicating that they consider compliance with statutes and regulations or “job knowledge.”
SSA and Treasury reported considering vague (and potentially troubling) “business results.”

149 The FMC did not report information for its two non-ALJ types.
150 Only two responses—for GAO’s Senior Attorneys and DOL’s Benefits Review Board—identified a single

factor for their performance reviews. The others provided more than one factor.

54

c. Bonus Eligibility
In contrast to the uniform prohibition against agencies’ paying bonuses to their ALJs,
agencies can generally pay them to non-ALJs. We sought to determine how widespread the
paying of bonuses was to non-ALJs, and the size of these bonuses.
Figure 32 indicates that of the 28 non-ALJ types that are subject to performance appraisals,
20 (71%) of them are eligible for bonuses, six types are not, and the responding official for
two non-ALJ types for the FMC was unsure. Of the 10,831 reported non-ALJs, 9,799 (90%)
are eligible for bonuses (see Figure 33).151 At least some non-ALJs in all non-ALJ types whose
incumbents are eligible for bonuses received bonuses in 2016 (even if not every non-ALJ
within a type received a bonus).

Eligible for Bonuses (by non-ALJ type)?
6

2
20

Yes

No

Not Sure

Figure 32 – Bonus Eligibility, by Types of Non-ALJs Subject to Performance Appraisals (n=28)

151 The following non-ALJs are eligible for bonuses (totaling 9,799): CFTC (15), PTAB (275), PTO (7,856),

DOE (two), HHS (five), DOL/BRB (five), Treasury (714), EEOC (92), EPA (12), FLRA (40), FAO (40 Senior
Attorneys), MSPB (70), NLRB (600), PBGC (six), RRB (six), and SSA (61). The largest groups of non-ALJs
who are not eligible for bonuses are those who work for the VA (630) and DOJ/EOIR (326).

55

Eligible for Bonuses (by number of non-ALJs)?
1,030 2

9,799

Yes

No

Not Sure

Figure 33 – Bonus Eligibility, by No. of Non-ALJs (n=10,831)

Of the 17 non-ALJ types that preside over matters in which their agencies are parties, 12 of
those types are subject to performance appraisals, and 10 of the 12 are eligible for bonuses.
Although not all of these non-ALJ types are eligible to receive bonuses, more than a majority
of the non-ALJ types who preside over matters in which their agencies are parties have
annual performance appraisals that can affect their income.
In response to our question asking how many non-ALJs received bonuses, some of the
agencies reported how many of their non-ALJs within each type received bonuses in 2016.
Figure 34 below indicates the percentage of non-ALJs who received bonuses for each of the
15 types that reported the information:

Percent of Non-ALJs Receiving Bonuses in 2016
(by non-ALJ type)
100
90
80
70
60
50
40
30
20
10
0

100

100

100

100

100

100
90

90

87

83

78
55

50
33
7

Figure 34 – Percentage of Non-ALJs Who Received Bonuses in 2017, by non-ALJ type (n=15)

56

Despite the relatively large percentage of non-ALJs who are subject to performance
appraisals, the reported amounts of the bonuses are usually within a relatively narrow range.
Of the 20 non-ALJ types that are eligible for bonuses, agencies reported information on the
range of the bonuses for 10 of them. Figure 35 reports the bonuses ranges, which defy easy
categorization:
Agency

Subcomponent

Commerce

PTAB

HHS
DOL

Treasury

EPA
MSPB

NLRB
PBGC

Title

Type of
Hearing

APJs

Licensing
disputes
between
private parties
Departmental
Departmental Enforcement
Appeals Bd.
Appeals Bd.
Members
BRB
AAJs
Benefits,
dispute
between
private parties
IRS
Settlement
TaxOfficers
assessment
disputes
Appeals
Officers
Office of Grants AttorneyGov’t
and Disbarments Examiners
Contracts
Regional
and AJs
Federal
Field Officers
Employment
Chief AJs
Disputes
Regional
Directors
Hearing
LaborOfficers
Representation
Disputes
Appeals Bd. Gov’t Benefits
Members

%
Receiving
Bonuses
55%

Bonus
Range
$2K
$36K

to

100%

$10K
max.

100%

$6,775 to
$14,476

78%

90%
100%
83%

$898
to
$1,669
$1,010 to
$2,245
$1,000 to
$2,000
$600
4%
0% to 6%

approx.
50%

$713
to
$2,325

100%

1% to 2%
of
base
pay
($1036 to
$2694
under GS15)
2.5%
to
3%
of
annual
salary
$500
to
$2500

87%
100%

RRB

Bureau
Hearings
Appeals

of Hearings
and Officers

Gov’t Benefits

33%

SSA

Office
Appellate
Operations

of AAJs

Gov’t Benefits

90%

Figure 35 – Bonus Ranges (n=10)

57

Some of the reported bonus ranges seem substantial. For instance, the BRB’s bonuses of
$6,775 to $14,476 are 5% to 8% of the AAJs’ base salaries of $124,406 to $187,000,
respectively. Likewise, the high end of bonuses for PTAB APJs ($36,000) are more than 20%
of their highest permissible base salary of $167,000. Others are relatively modest, such as
the $600 bonuses for MSPB AJs (less than 1% for even the lowest paid MSPB AJ with a base
salary of $88,136).
d. Precautions with Performance Appraisals and Bonuses
We concluded our inquiry on performance appraisals and bonuses by asking whether
agencies that used performance appraisals took any precautions to ensure that the appraisals
did not interfere with non-ALJs’ impartiality. Agencies reported, as indicated in Figure 36,
precautions for 17 non-ALJ types:152
Agency
Commerce
Education
HHS

DHS

DOJ

Subcomponent
PTAB

Precaution
APJs
No relationship with any
particular hearing
Office
of AJs
No relationship with any
Hearings
and
outcome and some level
Appeals
of separation of functions
Departmental
Departmental
Chair of Board solely
Appeals Board
Appeals
Board responsible
for
Members
assessments and appeals
to Deputy Secretary are
available
Coast Guard
Hearing Officers
Agency
directive
prohibits
tracking
amount
of
assessed
penalties, the number of
penalties, or the number
of
agency
positions
upheld
EOIR
Immigration
Pass/Fail Appraisal
Judges

DOL

BRB

Treasury

IRS

Title

Board
of
Immigration
Appeals Members
AAJs
Assessments
do
not
consider
how
AAJs
decide cases
Settlement
Assessments
cannot
Officers
consider amount of tax

Category
Not related
to outcomes
Not related
to outcomes
Separation
of
Functions
Not related
to outcomes

Nature of
Standards
or Scoring

Not related
to outcomes
Not related
to outcomes

152 Some others responded that they had no precautions or other information that did not indicate general

or specific limitations. For instance, FLRA indicated that its non-ALJs do not issue decisions; they simply
take evidence. The PTO reported that Patent Examiners’ appraisals have “quality reviews.”

58

Appeals Officers

GAO
MSPB

NLRB

PBGC

RRB

SSA

Senior Attorneys
Regional
and AJs
Field Offices
Chief AJs
Regional
Directors
Hearing Officers

collection,
and
supervisors must certify
that amounts don’t affect
evaluation
Required disclosure of Conflict-of
conflicts of interest
Interests
Limitations
Qualitative
and Nature of
quantifiable standards; Standards
internal
agency or Scoring
grievance procedure or
review by other officials

Appraisals consider only
the thoroughness of the
Hearing
Officer’s
development
of
the
evidentiary record
Appeals
Bd. Rated on quality and
Members
quantity of decisions, as
well as being impartial;
expected to follow law,
regulations, and policies
Hearings Officers Not based on outcomes,
but instead timeliness,
hearings held, number of
decisions issued, and
accuracy of citations and
regulations
used
in
decisions
AAJs
Not related to decisional
outcomes

Not related
to outcomes

Nature of
Standards
or Scoring
Not related
to outcomes

Not related
to outcomes

Figure 36 – Precautions to Protect Impartiality (n=17)

Contrary to the bonus ranges, we were able to categorize agency efforts to mitigate
performance appraisals’ effects on non-ALJ impartiality. We categorized the reported
precautions in Figure 37 as (1) ignoring case outcomes, (2) crafting review standards or
scoring to protect impartiality (likely very similar to “ignoring case outcomes”), (3) using some
form of separation of functions and reporting relationships to insulate non-ALJs, and
(4) relying upon conflict-of-interest principles.

59

Nature of Precautions, Categorized
1

1
9

6

Ignore Outcome

Standards or Scoring

Separtion of Functions

Confict-of-Interest Principles

Figure 37 – Nature of Precautions, Categorized (n=17)

As indicated, approximately half (9 of 17) of the reported precautions are in the form of a
policy or custom that appraisers should ignore case outcomes as part of the performance
appraisal, while approximately 35% (6 of 17) consider the standards or scoring to limit
discretion. Only one non-ALJ type has separation-of-functions-based protections, and only
one has conflicts-of-interest principles to mitigate concerns.
6. Non-ALJ Removal
ALJs can be removed under the APA only for “good cause established and determined by the
[MSPB]” after a formal administrative hearing.153 Although we were aware of a handful of
non-ALJs with similar statutory protection from at-will removal,154 we surveyed agencies to
see if other non-ALJs had similar protections, whether pursuant to statute, regulation, or
other source of law. Agencies responded for 36 of the 37 non-ALJ types.

153 5 U.S.C. § 7521(a) (2012).
154 See Barnett, supra note 10, at 1648 n.21 (discussing protections for certain Board of Contracts Appeals

Judges).

60

Protected from at-will removal?
3

33

No

Yes

Figure 38 – Protection from At-Will Removal (n=36)

Of the 36 non-ALJ types for which we received responses, only three have reported
protections from at-will removal (Figure 38). EEOC Administrative Judges and NLRB
Hearing Officers have protection from removal under their collective-bargaining agreement.
(The EEOC also indicated that these protections come from statute, regulation, guidance,
and custom.) By statute, the GAO’s AJs, as members of the GAO’s Personnel Appeals Board,
can be removed only for good cause by a majority of the board (not including the member
subject to removal).155 Despite the lack of specific protection from at-will removal, non-ALJs
typically have civil-service protections that provide insulation from possible improper agency
retaliation in the performance-appraisal process.156
V. Suggested Alternative Practices
Here we describe alternative practices that agencies might consider for protecting non-ALJs’
impartiality. As we asserted in Part I, agencies benefit from ensuring that non-ALJs not only
are impartial but also appear impartial. This appearance comes in part from structural
protections regarding non-ALJs’ selection, oversight, and removal. What follows is general
commentary on how agencies might promote and protect non-ALJ independence. Many of
these suggestions derive from related APA provisions or, as our data indicate, existing agency
practice for non-ALJs. We recognize, however, that agencies must account for numerous
variables—such as budget limitations, personnel issues, statutory mandates, and various
forms of adjudication—that render absolute rules or detailed suggestions impractical and
unhelpful. And to be clear, we do not contend here that any or all of these suggestions are
required by the Due Process Clause, even if they touch on matters that the Supreme Court
155 See 31 U.S.C. § 751(d).

See
Kellie
Lunney,
Wielding
the
http://www.govexec.com/magazine/briefing/2012/07/wielding-ax/56558/.
156

Ax,

GOVEXEC.GOV,

61

has identified as relevant to adjudicator bias. But implementation of these suggestions, or
other alternatives that promote impartiality, may have the beneficial side effect of insulating
non-ALJ Hearings from any constitutional concern.
Likewise, we suspect that many of the alternatives offered here will be subject to debate
either because of their actual or perceived costs or their specific application to particular
adjudicatory programs. Because of this anticipated debate, we offer these alternatives as a
suggested guide for agencies to recognize key indicia of impartiality and discuss these indicia
within their agencies and with other agencies. We suspect that, because non-ALJs are not
subject to uniform statutory provisions, their protections have likely grown organically—
perhaps without systemic contemplation—as each agency has established its non-ALJ
program or particular Non-ALJ Hearings. Our goal with these observations is to help
agencies think more systemically about their Non-ALJ Hearings and their non-ALJs’
appearance of impartiality.
A. Non-ALJ Selection
Agencies should consider using a panel-based process to select their non-ALJs.
While our survey did not explore the mechanisms that each agency uses to hire non-ALJ
adjudicators,157 we know that non-ALJ hiring processes—whether external or internal—vary
significantly across agencies and that some are more transparent than others..158 Agencies
might consider a process, where permissible and feasible,159 for selecting non-ALJ
adjudicators similar to those in place for selecting federal magistrate and bankruptcy
judges,160 as well as for at least some judges in 29 states and the District of Columbia. 161
Sometimes called “merit selection,” this process, despite variations, is generally one in which
157 See supra Part II.A. With this report’s more comprehensive and updated data on non-ALJs across the

administrative state, ACUS may wish to consider a future project that seeks interviews with agencies to
report their appointment mechanisms. Regardless of current appointment mechanisms, our
recommendations are instructive.
158 See Memorandum from Amber Williams and Megan Gibson to Matt Weiner et al., Selection, Performance

Appraisal, and Removal Processes of non-Administrative Law Judge Adjudicators (undated) (on file with
authors).
Because of various OPM regulatory requirements concerning hiring for different kinds of federal
employees, agencies should coordinate with OPM when setting up panel-based hiring process to ensure that
the panel complies with any relevant law. For instance, OPM permits agencies to identify “selective factors”
in hiring GS employees and to request, in rare instances, additional qualification standards. See
Classification
&
Qualifications:
General
Schedule
Qualification
Policies,
OPM.GOV,
https://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualificationpolicies/#url=estb. OPM already has a Qualifications Review Board for SES hires. See Senior Executive
Service: Selection Process, OPM.GOV, https://www.opm.gov/policy-data-oversight/senior-executiveservice/selection-process/#url=Qualifications-Review-Board.
159

160 See generally MAGISTRATE JUDGES DIVISION, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, THE

SELECTION, APPOINTMENT, AND REAPPOINTMENT OF UNITED STATES MAGISTRATE JUDGES (2002); MALIA
REDDICK & NATALIE KNOWLTON, INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., A CREDIT TO THE
COURTS: THE SELECTION, APPOINTMENT, AND REAPPOINTMENT PROCESS FOR BANKRUPTCY JUDGES (2013),
http://iaals.du.edu/sites/default/files/documents/publications/a_credit_to_the_courts.pdf.
161 JUDICIAL NOMINATING COMMISSIONS IN THE STATES, INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS.,

http://iaals.du.edu/quality-judges/judicial-nominating-commissions-states.

62

a panel screens and interviews applicants and recommends one or more to the appointing
authority. Panel composition varies among the different processes, but usually includes
various types of attorneys and some laypersons, and may include judges. The appointing
authority usually must select a candidate from the panel’s list, though in some systems the
appointing authority may request a second list.
We emphasize that agencies must account for the nature of their adjudications to determine
whether this alternative hiring mechanism is appropriate for their adjudicator types. We
present this as but one way for agencies to promote adjudicator independence and
impartiality as part of the hiring process. Moreover, one single kind of panel-based system
will not apply to all non-ALJs. Instead, we present a description of prototypical process to
help agencies consider whether and how to set up a panel-based system that is optimal for
their non-ALJs.
Selection panels for non-ALJs could include sitting non-ALJs (from within or outside the
agency) with varying degrees of seniority, agency officials, and representatives of regulated
parties, with a high-level agency official making the ultimate appointment. Agency
regulations could clarify how such panels will be assembled, identify any categories of
persons who must and must not be panel members, and who will select the members. Set,
staggered terms for panel members promote continuity and stability, and they provide the
benefits of more senior members’ experience.
Panel-based selection systems embrace clear qualifications for hiring, such as education and
practice requirements, age, independence from appointers, and personal attributes such as
moral character, judicial temperament and commitment to equal justice.162
Our survey provided little evidence of comprehensive criteria for non-ALJs. At least where
non-ALJs will be performing similar functions, we recommend that they possess, and be hired
based upon, the same baseline qualifications across agencies for similarly situated non-ALJs,
a goal that ACUS and OPM might wish to cultivate. For fewer than half of the non-ALJ types
in our study do agencies look to merit-based characteristics beyond simply having a law
degree. In other words, agencies do not formally consider criteria that are virtually
boilerplate in other judicial hiring contexts, such as personal and professional references,
demeanor, and quality of writing. In some agencies and for some non-ALJ roles, subjectmatter expertise may also be desirable, or even essential, to performing the non-ALJ’s
duties.163
To ascertain whether applicants meet the prescribed qualifications, a panel-based process
typically calls for completion of an application form, evidence of legal scholarship, names and
contact information for personal and professional references, and at least one round of
interviews. Announcements of vacant positions and instructions for applying are usually
widely circulated in local newspapers, bar journals and/or newsletters, and websites of bar
associations and the hiring entity. Similar practices for agencies that use non-ALJs would
ensure at least some consistency in the levels of competence and experience that applicants
must meet and would undoubtedly expand the professional and demographic diversity of
162 See, e.g., requirements for federal magistrate judges in 28 U.S.C. § 631(b).
163 REDDICK & KNOWLTON, supra note 154, at 15.

63

applicants. (Common hiring qualifications and applications will also better facilitate the
sharing of non-ALJs, as discussed in a subsequent recommendation.)
A panel-based process may offer benefits, but it also likely has significant costs. First,
supporters believe it promotes a fair, thorough, and transparent hiring process that
encourages highly qualified applicants to apply. Second, supporters believe it helps ensure
the selection of highly qualified adjudicators. And finally, it may inspire confidence in the
quality and impartiality of administrative adjudicators, especially among those who will
interact with the adjudicators. This final point is especially relevant for agencies that hire
both from within and outside the agency because panel-based hiring can help ensure that a
pro-agency culture does not form within the agency’s non-ALJs corps. But, of course, it also
has costs, especially start-up costs. Agencies must expend time and money to establish
relevant hiring criteria and decide on how to compose the panels, how the panels will process
the applicants, and how quickly the panels can interview and hire applicants. Once an agency
makes those decisions, it faces the time and expense of administering the system. The use of
panels may slow hiring, which may delay agency adjudications.
As a final matter, a panel process is not alien to agency adjudication and probably gives
agencies more control over hiring than in other contexts. A non-ALJ panel-selection process
is extremely similar to the ALJ-selection process through OPM (and already used for hiring
one kind of non-ALJ, Civilian Board of Contract Appeals Members164). For ALJs, OPM, per
statute, controls the hiring criteria and timing for administering the ALJ written
examination. Because OPM would not oversee the non-ALJ selection process, agencies would
have more authority over the initiation and timing of the process, as well as the ability to
determine the characteristics for non-ALJs, such as subject-matter expertise, which is not
currently a permissible factor in ALJ hiring. In short, a panel-based process for non-ALJs
would share many of the benefits of ALJ hiring without suffering from what agencies have
frequently argued are the demerits of the ALJ-hiring process.
B. Non-ALJ Oversight and Independence
Agencies should consider implementing separation of functions for non-ALJs and
providing them physical separation from others in the agency.
By limiting non-ALJs’ functions and their interactions with certain agency officials, agencies
may enhance non-ALJs’ appearance of impartiality and perhaps limit subconscious sympathy
to agency missions and positions. The presence of purportedly unprofessional hearing
examiners who were overly integrated within the agency was one of the most significant
criticisms of administrative adjudication before the APA.165 In response, the drafters of the
APA recognized the benefits of internally separating adjudicators from those who handle
other phases of the adjudication process.166 Physical separation can enhance the separation
of functions by providing the non-ALJ with psychological separation from the agency’s
mission and enforcement or other priorities.

164 See, e.g., 41 U.S.C. § 7105(b).
165 See supra note 14 and accompanying text.
166 ADMINISTRATIVE PROCEDURE ACT LEGISLATIVE HISTORY 24–25 (1947). The drafters noted that a minority

of the Attorney General’s Committee advocated for an entity separate from the agency (or a court) to preside.

64

Separation is most salient when the agency is a party to “accusatory” proceedings, as the
drafters of the APA noted when protecting ALJs.167 Agencies have, in fact, provided
separation of functions when they are parties to Non-ALJ Hearings for most non-ALJ types.
For 53% of the non-ALJ types who preside over matters in which the agency is a party,
agencies provide complete separation of functions, or provide at least separation from
prosecutorial or investigative functions, or find it unnecessary because the agency engages
in only adjudication. But even with these efforts, agencies have provided lesser protections
for approximately 12% of non-ALJs types or failed to provide separation at all for nearly 36%
of them. There is longstanding and widespread acceptance of separation of functions.168 And
its use for more than a majority of non-ALJ types that preside over hearings in which the
agency is a party indicates that separation is feasible for most if not all agencies.
But even when the agency is not a party to proceedings and does more than adjudicate, the
agency may still have objectives that non-ALJs may internalize as shared goals. Non-ALJs
may come to internalize these goals either by participating in other agency activities or being
a part of the “water-cooler” culture within the agency. Separation of functions, although not
as pressing as in the agency-party context, still appears likely to promote a non-ALJ culture
that is shielded from excessive identification with the agency’s mission.
Aside from prohibiting non-ALJs from engaging in certain agency activities, agencies may
want to ensure that, as with ALJs, non-ALJs do not report directly to agency officials who
prosecute, investigate, or oversee those who do and consider other potentially problematic
reporting relationships that may be particular to their agency and Non-ALJ Hearings. The
substantial number of non-ALJ types who respond to various agency officials renders it
difficult for us to evaluate particular responses based on the diversity of forms of agency
adjudication and agency organization. But the guiding principle for agencies should be to
ensure that their non-ALJs are insulated from agency officials who are responsible for
formulating and executing agency policy preferences, especially those related to enforcement
or other matters in which the agency is a party.
Separation of functions, similar to other protections concerning non-ALJ independence, may
prove trickier for agencies that rarely hold Non-ALJ Hearings or that have a longstanding
culture of having agency officials adjudicate and handle numerous other agency tasks.
Agencies that rarely have Non-ALJ Hearings might consider funneling existing hearings
from several regional offices into one office (such as the one that routinely has the most
hearings) and sharing a non-ALJ with other agencies who rarely hold Non-ALJ Hearings
(similar to agencies that rarely hold ALJ Hearings and borrow ALJs from other agencies).
For agencies that have a longstanding culture of having non-ALJs with adjudication and
other duties, they might consolidate the hearing responsibilities to a group of fulltime nonALJs. Agencies will certainly incur upfront costs in reorganizing their offices to accommodate
non-ALJ independence. But given the growing formality of Non-ALJ Hearings and the
recognized relationship between separated functions and independence, these largely upfront

167 Id. at 24.
168 See ASIMOW, supra note 27, at 19–20 (recommending separation of functions similar to those provided in

the APA).

65

costs are likely not unreasonable, especially considering that increased fairness of Non-ALJ
Hearings inures to agencies’ benefit by giving these hearings more legitimacy.
Agencies should consider limiting non-ALJs’ ex parte communications concerning
the merits of any agency adjudication over which they are presiding.
Limiting non-ALJs’ ex parte communications is perhaps the easiest change that agencies can
make. Indeed, agencies have prohibited all ex parte communications for more than half (57%)
of the non-ALJ types and limited some ex parte communications for nearly 30% more. Only
about 14% of the non-ALJ types have no limitations on ex parte communications. Agencies,
however, often rely only upon internal guidance or custom (or both) for implementing
prohibitions. Agencies should consider making these prohibitions more transparent and
binding by reducing them to writing, preferably in a rule.
Although the APA prohibits ALJs from ex parte communications with those within the
agency only as to factual matters,169 prohibiting ex parte communications as to both fact and
law for non-ALJs, except as required for the disposition of ex parte matters as permitted by
law,170 is consistent with ACUS’s Model Adjudication Rules (for ALJ and Non-ALJ
Hearings).171 Agencies have widely implemented this total prohibition in Non-ALJ Hearings
(for 57% of non-ALJ types). Despite a broad ex parte prohibition, non-ALJs can seek legal
input from agency officials via amicus briefs or testimony—to which the parties can respond.
Limiting non-ALJs’ ex parte communications does not interfere with the agency’s
prerogative. Even if non-ALJs are prohibited from communicating ex parte on factual and
legal matters, agency heads (or their delegates) may still decide legal matters de novo on
administrative appeal (to the extent permitted by law). The APA permits the agency to do so
in ALJ Hearings.172 Moreover, the agency may still respond to non-ALJ decisions by issuing
clarifying rules or other guidance.173 To be sure, drafting amicus briefs and issuing guidance
are usually more costly in time and money than oral communications between agency officials
and adjudicators. But the efficiency of ex parte oral or written communications has its own
costs. That efficiency limits the transparency and participatory values that adjudication
seeks to further. Our recommended ex parte prohibition furthers the appearance of non-ALJs’
impartiality by prohibiting backroom conversations and eliminating the suggestion of
hearings with preordained outcomes. In short, fair proceedings (in fact and in appearance)
are not free, and the cost that our recommendation imposes is one that numerous agencies
have already accepted.
We recognize, however, that our suggestion, the noted agency practice, and the current MAR
are inconsistent with a 2016 ACUS recommendation concerning ex parte communications in
informal adjudications. That recommendation, in brief, would permit some factual and legal
discussions between adjudicators and certain agency officials, although not those directly
169 See 5 U.S.C. § 554(d)(1).
170 See ASIMOW, supra note 27, at 18–19 (recommending similar limitation on ex parte contacts).
171 See ACUS Model Adjudication Rule 120(A).
172 See 5 U.S.C. § 557(b).
173 See, e.g., Warder v. Shalala, 149 F.3d 73 (1st Cir. 1998).

66

involved in investigative or prosecutorial roles in the pending or related adjudication.174 For
the reasons stated, we recommend a stronger standard, which our data demonstrate is
feasible for many agencies.
Agencies should consider memorializing recusal requirements for non-ALJs.
As with prohibitions on ex parte communications, agencies generally require non-ALJs to
recuse themselves if they are unable to serve as unbiased adjudicators (for approximately
84% of non-ALJ types). It seems sensible for agencies to do the same for all non-ALJ types.
Non-ALJs need clear statements of the grounds for recusal (e.g., actual bias or that the nonALJ’s impartiality can be reasonably questioned, aside from the fact that she works for the
agency). Agencies should also consider how parties may go about seeking a non-ALJ’s recusal,
including the procedure for the decision itself and any appeal from it.175 As with prohibitions
on ex parte communications, agencies often rely on custom. But custom lacks clarity,
transparency, salience, and binding effect. The widespread use of recusal requirements
indicates that this change should be easy to implement.176
Agencies should consider promulgating clear criteria that are unrelated to case
outcomes for non-ALJs’ performance appraisals and bonus eligibility.
The APA drafters were keenly aware of the relationship among performance appraisals,
bonuses, and raises and their real or perceived effect on adjudicator independence. To
mitigate these concerns, the drafters precluded agencies from affecting ALJs’ pay with
performance appraisals.177 We recognize the nearly universal practice of subjecting non-ALJs
to performance appraisals and the significant benefits such appraisals can provide in
furthering efficiency and accountability,178and offer comments on how agencies might better
ensure that performance appraisals for non-ALJs do not impinge upon their independence
and create as little due-process concern as possible.
Providing clear factors for non-ALJs’ appraisals (and each factor’s individual weight in the
overall assessment) seems likely to encourage transparency and impartial appraisals. Many
factors that agencies already consider are not problematic. For instance, obtaining litigant
input is helpful in assessing non-ALJs’ demeanor and case-management abilities. One
effective and efficient way of garnering that input is the administration of surveys to
nonagency parties to the hearings. Non-ALJ peer review can also be an effective tool in
helping assess non-ALJs’ fulfilment of administrative duties and identifying issues related
to docket management. For sample surveys of litigants (including attorneys) and peer judges,
agencies could look to those used in evaluating magistrate and bankruptcy judges in the pilot
174 See Admin. Conference of the U.S., Recommendation 2016-4 at 2–3 (2016).

See ASIMOW, supra note 27, at 18 (recommending that agencies require recusal for bias, clarify the
grounds for recusal, and consider procedural matters surrounding recusal).
175

176 See, e.g., RUSSELL WHEELER & MALIA REDDICK, INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS.,

JUDICIAL RECUSAL PROCEDURES: A REPORT ON THE IAALS CONVENING (2017) http://iaals.du.edu/qualityjudges/publications/judicial-recusal-procedures. Many of the suggestions regarding recusal procedures and
templates provided for both litigants and judges in this report are relevant in the administrative context.
177 See, e.g., supra note 166, at 280–81 (House Judiciary Cmte. Rpt.); VERKUIL, supra note 27, at 2.
178 See Part IV.5.a.

67

and voluntary programs that the Federal Judicial Center has developed,179 as well as the
surveys used in the 18 states with official programs for evaluating the performance of statecourt judges.180 As another example, case-processing goals can help agencies assess nonALJs’ efficiency, a key value for agencies with large dockets.
But it is obviously important that the peer and litigant feedback and goals do not influence
case outcomes. For instance, disappointed litigants may unfairly complain about non-ALJs
and their work product. The survey response rate from litigants can inform how to take those
responses into account as part of a non-ALJ’s appraisal. Permitting the non-ALJ an
opportunity to respond to the review can help ensure that the performance appraisal is fair
and based on correct underlying facts. Likewise, poorly designed quantitative case-processing
goals may unwittingly incentivize the adjudicator to favor one party over another if the ease
in ruling for that party allows the adjudicator to decide more cases. (For instance, approving
a claimant’s request for benefits may require more or less work from the adjudicator,
depending on the nature of the agency’s internal review and decision-making requirements.)
Other factors may directly or indirectly require the appraiser to consider the substance of
non-ALJs’ decisions. For instance, agencies reported often reviewing non-ALJs’ decisions
and, to a lesser extent, reversal rates. Relatedly, some agencies reported that they consider
factors that encourage the reviewer, directly or indirectly, to consider the outcome and the
non-ALJs’ reasoning—such as “achieving remedial goals of civil-penalty process,” compliance
with statutes and regulations, and “business results.” Although agencies have an interest in
having non-ALJs rule impartially, correctly, and consistently, agency review of these
qualities may result in non-ALJs favoring agency positions, despite governing law. Indeed,
many agencies reported that they do not consider outcomes and some even have policies or
customs to prevent such consideration (see Figure 36). Agencies that use clear assessment
criteria help ensure that outcomes are not part of the assessment.
Some agencies, indeed, already seek to protect non-ALJ impartiality from the appraisal
processes. For instance, the Coast Guard reported that it prohibits data collection on, among
other things, the number of agency positions upheld or number of penalties assessed in
enforcement proceedings. The IRS requires supervisors to certify that outcomes did not affect
the appraisal. Other agencies have assigned non-ALJ assessment to other agency
adjudicators, and they permit review of those assessments (although review has proved
unnecessary to date).
If agencies have concerns over non-ALJs’ decision-making, agencies can implement
programs, in lieu of appraisals, to mitigate partiality concerns. State agencies have reported
success in collaborative, peer-review assessment of decisions in which agency officials discuss

179 See DARLENE R. DAVIS, JUDICIAL EVALUATION PILOT PROJECT OF THE JUDICIAL CONFERENCE COMMITTEE

ON THE JUDICIAL BRANCH 2 (1991); FED. JUDICIAL CTR. 2003 ANNUAL REPORT 11, 2005 ANNUAL REPORT 9.
180 JUDICIAL PERFORMANCE EVALUATION IN THE STATES, INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS.,

http://iaals.du.edu/quality-judges/judicial-performance-evaluation-states.

68

how others may have decided similar matters.181 The key is that the non-ALJs can receive
feedback in a less adversarial posture than a performance appraisal.
Non-ALJ performance appraisals that do not consider outcomes and the decisionmaking
process also mitigate concerns over paying non-ALJs bonuses.
Agencies responded to our question on the existence of precautions in the performanceappraisal process for fewer than half of non-ALJ types. Examining the de facto and de jure
nature of the performance appraisals can help ensure that appraisers do not consider
decisional outcomes and are clear and transparent for non-ALJs and the public alike.
Agencies will want to ensure that the appraising official has no interest in the non-ALJs’
decisional outcomes. For instance, an agency official who administers the appraisals and also
supervises the agency’s investigative or prosecutorial functions would likely have a potential
conflict of interest.
C. Non-ALJ Removal
Agencies should consider promulgating clear grounds for non-ALJs’ removal from
their adjudicatory roles or other adverse action against them.
The threat of at-will removal (or other adverse action) is a potent stick for ensuring that a
subordinate does the bidding of the removing official. As the Supreme Court stated in the
context of the president’s and principal officers’ power to remove other officials, “one who
holds his office only during the pleasure of another, cannot be depended upon to maintain an
attitude of independence against the latter’s will.”182 Whether or not the agency will actually
threaten to remove non-ALJs who rule against agency positions is not the only concern.
Instead, agencies must not create the impression (for non-ALJs or outsiders) that a non-ALJ’s
employment or position as a judge is dependent on the caprice of the agency. When the agency
is also a party, the impression is magnified because the agency-party appears to have
“[chosen] the judge in [its] own case.”183 Providing that non-ALJs may not be removed or
disciplined except for specified causes is likely to ensure both the appearance and reality of
impartiality. Yet, our findings indicate that agencies provide for-cause removal for only three
types of non-ALJs.184
Providing for-cause discipline or removal via regulation is not unprecedented. The
Department of Justice has done so in the context of protecting special counsel from the

181 See Daniel E. Ho, Does Peer Review Work? An Experiment of Experimentalism, 69 STAN. L. REV. 1 (2017),

available at https://www.stanfordlawreview.org/print/article/does-peer-review-work-an-experiment-ofexperimentalism/ (discussing positive effects on efficiency and consistency that peer-review had in foodsafety inspections in King County, Washington).
182 Free Enter. Fund v. PCAOB, 561 U.S. 477, 493 (2010) (quoting Humphrey’s Ex’r v. United States, 295

U.S. 602, 629 (1935)).
183 Id. at 886.
184 See Part IV.D.6. Some non-ALJs who were not reported as part of our survey have statutory protection

from removal. See supra note 28 (discussing boards of contract appeals).

69

attorney general’s at-will removal.185 Protecting adjudicators from at-will removal or
discipline can “help create legitimacy” for executive decision making.186
To be meaningful, the protection for non-ALJs should provide clear guidance on the suitable
grounds for good-cause removal. An agency can remove ALJs only for “good cause” as the
MSPB determines.187 For ALJs’, the MSPB decides for itself whether good cause exists for an
ALJ’s removal. But for most of the civil service,188 an agency makes the initial determination
of whether removal or discipline is appropriate either to “promote the efficiency of the
service”189 or respond to “unacceptable performance,”190 subject to deferential administrative
appellate review by the MSPB.191 Merely establishing a “good cause” standard would have no
effect on MSPB’s role in the review, and it would provide little to no clarity as to the
appropriate grounds for adverse actions.
Instead, agencies’ efforts may be better spent providing guidance on how to understand these
statutory terms (i.e., “efficiency of the service” and “unacceptable performance”) in the
context of agency adjudicators. Moreover, agencies might also consider providing guidance
on when non-ALJs may be legitimately reassigned (an action which is generally not covered
under the other statutory regimes)192 to mitigate concerns that reassignment is a guise for
moving a non-ALJ to another role if the agency is unhappy with his or her decisions.
Providing clear grounds for adverse action need not serve as a straightjacket for agencies.
For instance, some agencies take account of quantitative case-processing goals.193 They could
also account for other criteria on non-ALJs’ performance appraisals, as long as they clarify
how scoring on those appraisals affects the standard for removal or discipline. The criteria
for good-cause removal and for performance appraisals can together provide clear guidance
to non-ALJs and their supervisors. We do not attempt here to instruct agencies on the
appropriate grounds for their non-ALJs’ removal or discipline. The key is to provide sufficient
guidance in the regulation to mitigate any concerns that the substance of the non-ALJs’
decisions influences disciplinary decisions.

See 28 C.F.R. § 600.7(d) (“The Attorney General may remove a Special Counsel for misconduct,
dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of
Departmental policies.”).
185

186 Free Enter. Fund v. PCAOB, 561 U.S. 477, 522 (2010) (Breyer, J., dissenting).
187 5 U.S.C. § 7521(a).
188 Slightly different procedures apply to the SES. See 5 U.S.C. § 3592 (requiring a hearing before an official

whom the MSPB designates but not permitting appeal to the MSPB itself).
189 See 5 U.S.C. § 7513(a).
190 See 5 U.S.C. § 7521(a).
191 See 5 U.S.C. § 7701(c)(1) (reviewing under substantial evidence standard for “unacceptable performance”

adverse actions and for “preponderance of the evidence” for efficiency-based actions).
192 See OPM.GOV.,WORKFORCE RESTRUCTURING, SUMMARY OF REASSIGNMENT, at https://www.opm.gov/policy-

data-oversight/workforce-restructuring/Summary-of-Reassignment/ (last visited Feb. 9, 2018) (noting
agency’s broad discretion to reassign employees).
193 See Nash v. Bowen, 869 F.2d 675, 680 (2d Cir. 1989) (upholding SSA’s implementation of “reasonable

production goals” for its ALJs).

70

Aside from defining the standard for removal, the regulation can clarify, to the extent
permitted by law,194 how the agency will decide whether to remove non-ALJs. Questions to
consider include who should make the removal decision, such as other non-ALJs within the
agency, non-ALJ supervisors, the head of the agency, a panel of individuals outside of the
agency (such as judges from other agencies, regulated parties, and agency officials), or some
combination of these possibilities. A panel format requires agreement from a majority of
participants who have different interests in administrative adjudication, such as a mix of
non-ALJs, regulated parties, and supervisors.195 But different agencies have different
resources, needs, and forms of adjudication that may make other options more suitable. Even
a panel of the agencies’ non-ALJs alone can provide internal monitoring and is common in
other adjudicatory contexts.196 Agencies will also want to consider how the non-ALJ can
respond to the threatened removal and the benefits of requiring specific findings and reasons
for removal to guard against impermissible factors affecting the removal decision.197
Agencies will want to consider how to protect non-ALJs who perform duties other than
adjudication. The types of other duties vary and thus present different concerns, but it may
behoove agencies to consider consolidating adjudication functions into as few agency officials
as possible to limit the reach of for-cause protections and, as discussed earlier, to limit the
duties that non-ALJs may perform. Agencies should also consider how to account for the nonALJs’ other duties when defining which actions provide grounds for removal or other adverse
action.
Because of the OPM’s regulations and the MSPB’s significant role in disciplinary actions, we
encourage agencies to work with OPM and MSPB officials for advice and to consult their
guidance materials to ensure that any action that agencies take to promote their non-ALJs’
impartiality does not inadvertently conflict with other statutory or regulatory law.
D. Agency Transparency and Assessment
To further transparency, salience, and efficacy, agencies should consider using
notice-and-comment rulemaking when promulgating provisions that concern nonALJ independence.
Promulgating notice-and-comment rules that concern non-ALJ hiring, oversight, and
discipline and removal can encourage transparency and binding effect for non-ALJs’
protections. Of course, agency rules concerning personnel policies are not subject to notice-

194 See, e.g., 5 U.S.C. §§ 7513(b) & (c), 4303(b)–(d), 7701(a). For guidance on the removal and discipline

process, see Adverse Actions, supra note 7, which describes the full process in detail with references to legal
authority.
195 To further separation of functions, we do not recommend including agency officials that prosecute or

investigate on behalf of the agency.
196 As ACUS has recognized, multi-judge peer-review panels, despite inherent concerns over self-interest or

peer-protection, are common for judicial discipline or removal in state judicial settings. See VERKUIL ET AL.,
supra note 27, at 1027. In state settings, disciplinary panels typically include both attorneys and
nonattorneys as well.
197 See, e.g., 28 C.F.R. § 600.7(d) (“The Attorney General shall inform the Special Counsel in writing of the

specific reason for his or her removal.”).

71

and-comment requirements under the APA,198 and thus agency personnel matters, like the
DOJ regulation concerning special counsel, are usually addressed in interpretative rules or
other less formal formats. In many instances, notice-and-comment would be of little value
because the public would have little information or expertise to provide thorough comments
and the personnel policies are not especially useful or important to those outside the agency.
But because non-ALJs’ independence may affect the public, voluntarily using notice-andcomment rulemaking—as agencies do in other contexts199—makes sense for personnel
matters related to non-ALJs’ independence. To be sure, the use of notice-and-comment
rulemaking has costs (both as to time and money), but it provides numerous benefits.
Rulemaking provides more awareness of non-ALJs’ status than less formal action. Relatedly,
because an agency must use notice-and-comment procedures to amend or repeal a rule,
notice-and-comment rulemaking facilitates public awareness of any amendment or repeal.
The public, including regulated parties who are directly affected by Non-ALJ Hearings, may
also be able to provide useful comments as part of the rulemaking process and thereby
improve the agency’s internal governance in the sensitive area of agency adjudication, where
agencies must balance fairness concerns with the agency’s ability to achieve its statutory
mission. The comment period may also give other agencies the opportunity to share insights
as to how it promotes non-ALJ impartiality, providing the agency the chance to learn from
other agencies. Finally, the rulemaking process requires agencies to produce a concise
explanation of the agency’s rules, providing transparency as to the agency’s reasoning.
All this said, ACUS has previously recommended that agencies use procedural regulations
that are published in the Federal Register and the Code of Federal Regulations but exempt
from notice and comment.200 Procedural regulations may be most appropriate when agencies
grant non-ALJs strong forms of independence, as we discuss here. The public is likely to agree
with the agency’s action, thereby diminishing the value of soliciting comments.
As a final matter, transparency and certainty over non-ALJs’ independence matters not only
to those outside the agency. The agency and the non-ALJs, too, can benefit from having
concrete protections, prohibitions, and guidance in place
Agencies’ posting their rules with their other adjudication materials on their websites can
provide additional and continuous transparency and awareness.201 Agencies, too, might
clearly title their rules or the website links to help the public review provisions designed to
protect non-ALJs’ independence. Moreover, providing a concise, easy-to-read summary of the
relevant provisions to parties early in the litigation can promote nonagency parties’
confidence in the Non-ALJ Hearings.

See, e.g., 5 U.S.C. § 553(a)(2), (b)(3)(A) (exempting “a matter relating to agency management or
personnel” from § 553).
198

199 See 1 RICHARD PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 7.10, p. 669 (5th ed. 2010) (noting that

agencies have often accepted ACUS recommendations to waive APA § 553(a)(2)’s exemption from noticeand-comment rulemaking).
200 Recommendation 92-1, The Procedural and Practice Rule Exemption from the APA Notice-and-Comment

Rulemaking Requirements, 57 Fed. Reg. 30102 (July 8, 1992).
201 See ADMIN. CONFERENCE OF THE U.S., ADJUDICATION MATERIALS ON AGENCY WEBSITES, RECOMMENDATION

2017–1 (2017).

72

73

APPENDIX A
Survey

Non-ALJ Adjudicators

The Administrative Conference of the United States commissioned the Institute for the
Advancement of the American Legal System (IAALS) at the University of Denver and
Professor Kent Barnett at the University of Georgia School of Law to (1) collect data on
agency adjudicators who are not "Administrative Law Judges" and (2) provide
recommendations to agencies for best practices concerning hiring, overseeing, and removing
these adjudicators.

Data on these adjudicators throughout the federal government are extremely limited. We are
asking for your help in answering the following questions about your agency's practices
concerning the relevant administrative adjudications and administrative officials, as defined
in Question 1. We are not seeking the respondent's personal experiences.

We ask that you complete the survey by March 3, 2017. Please direct any questions to
Professor Kent Barnett (706.542.5169 or khbarn@uga.edu).

Thank you for contributing your valuable time to this project.
74

Part A: Introduction

Q1 Please list the name of your agency in the first block. If your responses pertain to only
one subcomponent (e.g., an office, bureau, or division) of that agency, please list that
subcomponent in the second box.

(For instance, if you are responding for the Drug Enforcement Agency only, please list the
"Department of Justice" as your agency in the first box below and the DEA as its
subcomponent in the second box. Or, for example, if you are responding for the U.S. Postal
Service as a whole, please list "U.S. Postal Service" in the agency box and leave the
subcomponent box blank.
Agency:
Subcomponent (if applicable):

Q2 This survey concerns agency officials who preside over a certain subset of agency
adjudications that permit oral hearings. The relevant "oral hearings," as the term is used in
this survey, have the following characteristics:

•

One of the parties to the adjudication can—by statute, regulation, or other law—
obtain an oral hearing over which an agency official presides to present evidence,
even if most matters are handled through written submissions without an oral
hearing,
and
•

the presiding agency official is not a member or commissioner of the agency, and
is not an "Administrative Law Judge." Instead, the agency official goes by another
title, such as Administrative Judge, Administrative Appeals Judge, Administrative
Patent Judge, Board of Contract Appeals Judge, Veterans Law Judge, Immigration
Judge, Presiding Officer, Hearing Officer, etc. For ease of reference, this survey will
often refer to these presiding agency officials as "non-ALJs."

The relevant "oral hearings" do not include "public hearings" in which members of the public
are invited to make statements or an initial "front-line" agency decision when that initial
decision is followed by an evidentiary hearing before an agency or court.
75

Does your agency provide oral hearings as defined here?
 Yes
 No
If No, skip to end of survey.

Part B: Types of Oral Hearings

Q3 An agency may have different kinds of "oral hearings," for instance, to hear matters
related to different regulatory programs, different kinds of proceedings under an agency
program (e.g., enforcement vs. awarding benefits), different parties (e.g., claims between
private parties vs. claims between a private party and an agency), or different phases of
litigation (e.g., an initial oral hearing before non-ALJs and later appellate proceedings before
non-ALJs). A series of questions follows concerning each type of oral hearing identified.

If your agency provides more than one type of oral hearings, please identify the first type on
the next screen. Subsequent questions will ask you to identify additional types of oral
hearings, once you answer a series of questions related to the first type.

Please identify one type of oral hearings that your agency provides.

Q4 For [type of oral hearings] hearings, what is the title of the non-ALJs who preside? (Select
all that apply.)








Administrative Judge
Administrative Appeals Judge
Administrative Patent Judge
Board of Contract Appeals Judge
Veterans Law Judge
Immigration Judge
Presiding Officer
76

 Hearing Officer
 Hearing Examiner
 Other (Please identify.)
Q5 For [type of oral hearings] hearings, how many non-ALJs does your agency employ fulltime (whether or not duties include matters other than adjudication)?

Q6 For [type of oral hearings] hearings, if your agency borrows non-ALJs from another
agency (who are employed full-time by their agencies, whether or not their duties include
matters other than adjudication), how many non-ALJs does it borrow? From which agency or
agencies does it borrow?

Q7 For [type of oral hearings] hearings, are any of the non-ALJs not full-time agency
employees? (For instance, do any of the non-ALJs work part-time as contractors or work
directly for outside entities (such as hearing officers for insurance carriers under certain
benefit programs)?)
 Yes
 No
Q8 For [type of oral hearings] hearings, please indicate how many non-ALJs are not fulltime agency employees.

Q9 For [type of oral hearings] hearings, is the agency for which the non-ALJ works one of the
parties to the oral hearing?
 Yes
 No
Q10 For [type of oral hearings] hearings, is the non-ALJ's decision final within the agency
without any further action by agency officials (if no appellate proceedings within the agency
follow in a particular case)?
 Yes
77

 No
If Yes, skip to Q12.

Q11 For [type of oral hearings] hearings, please indicate what further action by agency
officials is required to produce a final agency decision. (Select all that apply.)
 Mandatory administrative appeal
 Execution of order by higher-ranking official or agency head(s)
 Other (Please identify.)
Q12 For [type of oral hearings] hearings, is there any appellate process within the agency
(whether a proceeding before a non-ALJ, an ALJ, or the head of the agency)?
 Yes
 No
If No, skip to Q14.

Q13 Please identify the appellate process available within the agency for [type of oral
hearings] hearings. (Select all that apply.)
 Automatic administrative appellate review
 Discretionary administrative appellate review
 Administrative appellate review is heard by an appellate panel (not the head(s) of the
agency)
 Administrative appellate review is heard by the head(s) of the agency
 Administrative appellate review is heard by another agency official
 Administrative appellate review is heard by an appellate panel within another agency
or by head(s) of another agency
 Other (Please identify.)
Q14 Does the agency apply any quantitative case-processing goals for [type of oral hearings]
hearings?
 Yes
 No

78

If No, skip to Q16.

Q15 Please describe case-processing goals for [type of oral hearings] hearings and how the
agency enforces those goals.

Q16 Does your agency provide a type of oral hearings in addition to [type of oral hearings]
hearings?
 Yes
 No
If Yes, skip to Q3.

Part C: Types of Non-ALJs

Q17 An agency may use different types of non-ALJs who go by different titles (e.g.,
Administrative Judge, Administrative Appeals Judge, Administrative Patent Judge, Board
of Contract Appeals Judge, Veterans Law Judge, Immigration Judge, Presiding Officer,
Hearing Officer, Hearing Examiner). A series of questions follows concerning each type of
non-ALJs.

If your agency uses more than one type of non-ALJs, please enter the first type on the next
screen. Subsequent questions will ask you to identify additional types of non-ALJs, once you
answer a series of questions related to the first type.

If two types of non-ALJs are treated differently by the agency but share the same title, please
list them separately and distinguish between them in your identification of the types of nonALJs.

79

Please identify one type of non-ALJs that your agency uses.

Q18 Please identify the nature of the hearings over which [type of non-ALJ](s) preside.
(Select all that apply.)








Governmental benefits
Licensing
Enforcement (imposing a fine, injunction, or other penalty)
Government contracts
Disputes between different governmental agencies
Disputes between private parties
Other (Please Identify.)

Q18 Which federal occupational series applies to your [type of non-ALJ](s)? (If more than one
series applies, please list it in a separate field below.)
Federal occupational series: _____
Federal occupational series: _____
Federal occupational series: _____

Q19 Please indicate the number of [type of non-ALJ](s) under each pay plan listed below.
AA-1: _____
AA-2: _____
AA-3: _____
AA-4: _____
AA-5: _____
AA-6: _____
AL-1: _____
AL-2: _____
AL-3: _____
APJ: _____
BCA: _____
CA-1: _____
CA-2: _____
80

CA-3: _____
EX-I: _____
EX-II: _____
EX-III: _____
EX-IV: _____
EX-V: _____
IJ-1: _____
IJ-2: _____
IJ-3: _____
IJ-4: _____
GS-9: _____
GS-10: _____
GS-11: _____
GS-12: _____
GS-13: _____
GS-14: _____
GS-15: _____
PCES: _____
SES-1: _____
SES-2: _____
SES-3: _____
SES-4: _____
SL/ST: _____
SR: _____
Other (Please identify the pay plan and number.) __________
Other (Please identify the pay plan and number.) __________
Other (Please identify the pay plan and number.) __________

Q20 Please identify any minimum qualifications for hiring an employee initially and directly
as [type of non-ALJ](s). (Select all that apply.)





Law degree
Years of government service (If so, enter number of years.) ____________________
Years of legal practice (If so, enter number of years.) ____________________
Years of litigation experience (If so, enter number of years.) ____________________
81

 Years of legal practice in regulatory issue in agency hearings (If so, enter number of
years.) ____________________
 Prior military service
 Examination or review of written work product
 Expertise in regulatory area at issue in agency hearings
 Professional demeanor
 References
 Other (Please identify.)
 Not applicable. The agency hires no employees initially and directly as [type of nonALJ](s).
Q21 Please identify any minimum qualifications for moving an existing agency employee into
a new position as [type of non-ALJ](s).














Law degree
Years of government service (If so, enter number of years.) ____________________
Years of legal practice (If so, enter number of years.) ____________________
Years of litigation experience (If so, enter number of years.) ____________________
Years of legal practice in regulatory issue in agency hearings (If so, enter number of
years.) ____________________
Prior military service
Examination or review of written work product
Expertise in regulatory area of issue in agency hearings
Professional demeanor
References
Seniority
Other (Please identify.)
Not applicable. The agency does not move existing employees into new positions as [type
of non-ALJ](s).

Q22 Are [type of non-ALJ](s) subject to a probationary period when they begin their
adjudicatory duties?
 Yes
 No
Q23 Are [type of non-ALJ](s) appointed for a term of years?
 Yes
 No

82

Q24 Are [type of non-ALJ](s) permitted to engage in ex parte communications as to factual
or legal matters with employees (aside from those who work directly for the non-ALJ) or
members of the agency?
 Yes, ex parte communications are permitted and are not limited
 Yes, ex parte communications are permitted, but are limited in certain ways
 No, ex parte communications are not permitted
If Yes, skip to Q27.

Q25 Please identify the source of any limitations on ex parte communications by [type of nonALJ](s). (Select all that apply.)







Statute
Substantive (notice and comment) rule
Procedural rule
Internal guidance
Custom
Other (Please identify.)

Q26 Please identify the nature of any limitations on ex parte communications by [type of
non-ALJ](s). (Select all that apply.)
 Prohibited from communicating with all agency officials (other than those who work
directly for the non-ALJ) as to disputed facts
 Prohibited from communicating with all agency officials (other than those who work
directly for the non-ALJ) as to disputed legal issues. Please identify the agency officials
with whom [type of non-ALJ](s) may not communicate. ____________________
 Prohibited from communicating with certain agency officials (other than those who
work directly for the non-ALJ) as to disputed facts. Please identify the agency officials
with whom [type of non-ALJ](s) may not communicate. ____________________
 Prohibited from communicating with certain agency officials (other than those who
work directly for the non-ALJ) as to disputed legal issues
 Prohibited from communicating with individuals outside the agency as to disputed facts
 Prohibited from communicating with individuals outside the agency as to disputed legal
issues
 Other (Please describe.)
Q27 Please identify any authority that precludes [type of non-ALJ](s) from performing duties
for the agency other than adjudicating disputes (or administering the adjudicatory process).
(Select all that apply.)
83









Statute
Substantive (notice and comment) rule
Procedural rule
Internal guidance
Custom
None
Other (Please identify.)

Q28 Please identify the nature of any limitations on the ability of [type of non-ALJ](s) to
perform other duties. (Select all that apply.)
Prohibited from performing any duties aside from adjudication
Prohibited from performing investigative or prosecutorial duties
Not prohibited from performing other duties
N/A (because the non-ALJ works for an agency that only adjudicates disputes and lacks
rule making, investigative, or enforcement authority)
 Other (Please identify.)





Q29 Are the offices of [type of non-ALJ](s) physically separated from others within the
agency?
 Yes
 No
Q30 To whom do [type of non-ALJ](s) directly report?
 Chief [type of non-ALJ]
 Agency official who also supervises investigation or enforcement proceedings
 Agency head(s)
 Other (Please identify.)
If Chief [type of non-ALJ], go to Q31; if not, skip to Q32.

Q31 To whom does the Chief [type of non-ALJ](s) directly report?
 Agency official who also supervises investigation or enforcement proceedings
 Agency head(s)
 Other (Please identify.)
84

Q32 What limitations, if any, exist as to who may supervise [type of non-ALJ](s)?

Q33 Are [type of non-ALJ](s) subject to performance appraisals?
 Yes
 No
If No, skip to Q39.

Q34 Please identify germane considerations for performance appraisals of [type of nonALJ](s). (Select all that apply.)







Case-processing goals
Input from parties/litigants
Peer review
Review of decisions
Reversal rates
Other (Please identify.)

Q35 Are [type of non-ALJ](s) eligible for pay bonuses?
 Yes
 No
If No, skip to Q39.

Q36 Did any [type of non-ALJ](s) receive a pay bonus in the last year in which bonuses were
awarded to employees within the agency?
 Yes
 No

85

Q37 Please indicate the number of [type of non-ALJ](s) who received bonuses and the amount
(or ranges) of those bonuses.
Number of [type of non-ALJ](s): _____
Amount (or range): __________

Q38 Please describe any specific precautions the agency takes to mitigate concerns over how
receiving performance appraisals and/or bonuses may impact the impartiality of [type of nonALJ](s).

Q39 Do [type of non-ALJ](s) have any protection from at-will removal from their positions,
aside from standard protections for federal employees? (For example, does any regulation or
statute provide that the agency can remove [type of non-ALJ](s) for only "good cause" or
similar grounds?)
 Yes
 No
If No, skip to Q42.

Q40 What is the source of the protection for [type of non-ALJ](s) from at-will removal? (Select
all that apply.)






Statute
Regulation
Internal guidance document
Custom
Other (Please identify.)

Q41 Please describe the nature of the protection for [type of non-ALJ](s) from at-will removal.

86

Q42 Does any requirement exist for [type of non-ALJ](s) to disqualify themselves if they
cannot serve as an unbiased adjudicator?
 Yes
 No
If No, skip to Q44.

Q43 Please identify the source of the disqualification requirement for [type of non-ALJ](s)
who cannot serve as an unbiased adjudicator. (Select all that apply.)






Statute
Regulation
Internal guidance document
Custom
Other (Please identify.)

Q44 Does your agency use a type of non-ALJs in addition to [type of non-ALJ](s)?
 Yes
 No
If Yes, skip to Q17.

Please provide the information requested below.
Name:
Title:
Phone:

Thank you for taking the time to complete this survey. Please click the SUBMIT button at
the bottom of this screen to record your responses.

87

APPENDIX B
Surveyed Agencies – Subcomponents and Responses
Agency

Subcomponent

Administrative Office of the
United States Courts
Agency
for
Development

Fair Employment
Office

Response as to
Oral Hearings

Practices

International

No
Board for Correction
Military Records

Air Force

for

Architectural
and
Transportation
Barriers
Compliance Board (Access
Board)

Army

Central Intelligence Agency

Yes

N/A

No

Board of Correction of Military
Records

N/A

Legal Services

No

Judge Advocate General

No

Office of Public Affairs

N/A

Chemical Safety and Hazard
Investigation Board

No

Civilian Board
Appeals (GSA)

N/A

of

Contract

Commission on Civil Rights
Commodity Futures Trading
Commission

No
Office of Proceedings

Yes

Consumer Financial Protection
Bureau

No

Consumer
Product
Commission

No

Safety
Agricultural
Marketing
Service, Specialty Crops

Yes

Grain Inspection/Packers
Stockyard Administration

No

Department of Agriculture
&

88

Agency

Department of Commerce

Department of Defense

Subcomponent

Response as to
Oral Hearings

Patent Trial and Appeal Board

Yes

U.S. Patent and Trademark
Office

Yes

Armed Services
Contract Appeals

Yes

Board

of

Legal Services Office, Civilian
Health

N/A

Office of Hearings and Appeals

N/A

Department of Education

Office of Hearings and Appeals

Yes

Department of Energy

Office of Hearings and Appeals

No

Office
of
Secretary,
Departmental Appeals

Yes

Food and Drug Administration

N/A

Coast Guard

Yes

Citizenship-Immigration
Services, U.S. Customs-Border
Protection, FEMA, ICE, TSA,
National Protection-Programs
Directorate, U.S. Secret Service

N/A

Department of Housing and
Urban Development

Federal
Administration

N/A

Department of the Interior

Office of Hearings and Appeals

N/A

Executive
Office
Immigration Review

Yes

Department of Health
Human Services

Department
Security

of

and

Homeland

Department of Justice

Department of Labor

Department of the Navy

Housing

for

Board of Immigration Appeals,
Drug
Enforcement
Administration, Immigration
and Naturalization Service

N/A

Benefits Review Board

Yes

Employee
Appeals Board

No

Compensation

N/A

89

Agency

Subcomponent

Response as to
Oral Hearings

Department of State

No

Department of Transportation

N/A

Department of the Treasury

Alcohol and Tobacco Tax and
Trade Bureau

Yes

Internal Revenue Service

Yes

Office of the Comptroller of the
Currency

No

Department of Veterans Affairs

Yes

Equal
Employment
Opportunity Commission

Yes

Environmental
Agency

Region 9

Yes

Office of Administration and
Resources

Yes

Protection

Farm Credit Administration

No

Federal
Commission

No

Communications

Federal Deposit
Corporation

Insurance

Yes

Federal Election Commission

No

Federal Energy
Commission

No

Federal
Agency

Regulatory

Housing

Federal
Labor
Authority

Finance
Relations

N/A
Office of the General Counsel

Yes

Federal Maritime Commission

Yes

Federal
Mediation
Conciliation Service

No

and

Federal Mine Safety and
Health Review Commission

No

90

Agency
Federal Reserve
Governors

Subcomponent
Board

of

Response as to
Oral Hearings
No

Federal Trade Commission

No

Government
Office

Yes

Accountability

Inter-American Foundation

No

International
Commission

No

Trade

Library of Congress
Merit
Board

Systems

Yes
Protection

National
Aeronautics
Space Administration

and

National Foundation on the
Arts and Humanities

National
Board

Labor

Regional and Field Offices

Relations

Yes
Yes

National Endowment for the
Arts

N/A

National Endowment for the
Humanities

No
Yes

National Science Foundation

N/A

National Transportation Safety
Board

No

Nuclear
Commission

Yes

Regulatory

Occupational
Safety
and
Health Review Commission

No

Overseas Private Investment
Corporation

No

Peace Corps

Yes

Pension Benefit
Corporation

Guaranty

Yes

91

Agency

Subcomponent

Response as to
Oral Hearings

Postal Regulatory Commission
Railroad Retirement Board
Securities
and
Commission

No
Bureau
Appeals

of

Hearings

and

Exchange

Yes
N/A

Selective Service System

No

Small Business Administration

N/A

Social Security Administration
Surface Transportation Board

Office of Appellate Operations

Yes
No

NOTE: N/A denotes that the agency or its subcomponent(s) did not respond.

92

APPENDIX C
Types of Hearings and Types of Non-ALJs
by Agency – Subcomponent
Agency – Subcomponent
Administrative Office of the
United States Courts – Fair
Employment Practices Office

Types of Hearings
Fair Employment
hearings

Practices

Types of Non-ALJs
Hearing Officer

Wage garnishment
Commodity Futures Trading
Commission
–
Office
of
Proceedings

Statutory disqualification

Judgment Officer

Reparations awards
Department of Agriculture –
Agricultural
Marketing
Service, Specialty Crops

Private
party
disputes
involving produce transactions

Presiding Officer

Claims between private parties
Department of Commerce –
Patent Trial and Appeal Board

Claims between a private party
and agency

Administrative Patent Judge

Department of Commerce –
U.S. Patent and Trademark
Office

Patent Examiner interviews
with patent applicants

Patent Examiner

Department of Defense –
Armed Services Board of
Contract Appeals

Oral hearings involving private
parties and the DoD, DoD
components, NASA, or CIA

Board of Contract Appeals
Judge, or Administrative Judge

Department of Education –
Office of Hearings and Appeals

Appeals of actions ordering the
return of funds, imposition of
fines, or the termination,
limitation,
suspension,
or
reduction of eligibility for
federal funds by Federal
Student
Aid
and
other
Department
of
Education
Program Offices, and show
cause hearings for related
emergency actions

Administrative Judge

Agency enforcement actions
against
individuals
or
corporations

Board Member

Department of Health and
Human Services – Office of

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Agency – Subcomponent
Secretary,
Appeals

Departmental

Types of Hearings
Grant
disallowances
terminations
civil

Types of Non-ALJs
and

Department
of
Homeland
Security – Coast Guard

Class
I
assessments

penalty

Department of Justice –
Executive
Office
for
Immigration Review

Removal proceedings

Department of Labor – Benefits
Review Board

Oral arguments for parties,
which may include employees,
employers, carriers, and/or the
Director

Administrative Appeals Judge

Department of the Treasury –
Alcohol and Tobacco Tax and
Trade Bureau

Labor arbitrations

Labor Arbitrator

Hearing Officer
Board Member
Immigration Judge

Collection due process
Department of the Treasury –
Internal Revenue Service

Settlement conferences
examination cases

for

Settlement Officer

Settlement conferences for nonCDP collection cases

Appeals Officer

Board of Veterans’ Appeals
hearings

Veterans Law Judge

Decision
hearings

Decision Review Officer

Department of Veterans Affairs
review

officer

Equal
Employment
Opportunity Commission

Federal employment disputes
re: unlawful discrimination

Administrative Judge

Environmental
Agency – Region 9

Enforcement hearings

Regional Judicial Officer

Presentation of matters in
opposition (PMIO) meetings

Attorney-Examiner
(Suspension and Disbarment
Hearing Officer who has a
collateral duty of Suspension
and Disbarment Fact-Finding
Official)

Protection

Environmental
Protection
Agency
–
Office
of
Administration and Resources

Federal Deposit
Corporation

Insurance

Federal Maritime Commission

Fact-finding hearings

Miscellaneous

Presiding Officer

Informal claims

Small Claims Officer

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Agency – Subcomponent

Federal
Labor
Relations
Authority – Office of the
General Counsel

Government
Office

Accountability

Types of Hearings

Types of Non-ALJs

License revocation proceedings

Hearing Officer

Agency program

Hearing Officer

Bid protest

Senior Attorney or Assistant
General Counsel

Personnel appeals board

Administrative Judge

Determination of royalty rates
and terms for statutory licenses
to use copyrighted works
Library of Congress

Copyright Royalty Judge
Distribution of royalties to
copyright owners of broadcast
television programs
Administrative Judge

Merit
Systems
Protection
Board – Regional and Field
Offices

Employment disputes

Chief Administrative Judge
Regional Director

National
Aeronautics
Space Administration

National
Board

Labor

and

Relations

Ombudsman
to
address
matters between agency and
private
parties
on
public/private partnerships

Ombudsman

Fact-finding
proceedings
regarding questions concerning
employee representation

Hearing Officer

Informal “Subpart L” hearings,
that
govern
all
NRC
adjudicatory proceedings, with
certain identified exceptions

Nuclear
Commission

Regulatory

Formal “Subpart G” hearings
associated
with
particular
proceedings

Administrative Judge

“Subpart M” hearings on
license transfer applications
“Subpart N” – simplified
procedures
for
legislative
hearings (when all parties
agree to use these procedures)

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Agency – Subcomponent

Sexual
panel

Peace Corps
Pension Benefit
Corporation

Types of Hearings

Guaranty

Railroad Retirement Board –
Bureau of Hearings and
Appeals

misconduct

Types of Non-ALJs

hearing

PBGC permits
Appeals from denial
disability benefit

Hearing Panelist
Appeals Board Member

of

a
Hearing Officer

Appeal of a finding of an
overpayment
Appearances related to request
for review of administrative
law judge decision

Social Security Administration
–
Office
of
Appellate
Operations

Requests
for
review
of
administrative
law
judge
decisions on representative
disqualifications

Administrative Appeals Judge

Requests for representative
reinstatement
after
disqualification

96