CHAPTER 12 ADMINISTRATIVE HEARINGS: EXECUTIVE POWER AND THE ADMINISTRATIVE STATE
| Jurisdiction | United States |
(Feb 2019)
ADMINISTRATIVE HEARINGS: EXECUTIVE POWER AND THE ADMINISTRATIVE STATE
Partner
Bracewell LLP
Austin, TX
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KEVIN D. COLLINS is a Partner with Bracewell LLP in Austin, TX. Kevin is a former Assistant U.S. Attorney from the Eastern District of Texas, and has expertise in managing the problems that arise during government investigations. His goal is to help clients avoid significant penalties or uncertain litigation by negotiating a favorable outcome. Kevin has focused on process safety since he assisted the Baker Panel investigate and issue its report on safety culture and corporate oversight of BP's North American refineries in 2005. This focus results in four main areas: (1) responding to government investigations after industrial accidents; (2) representing clients during OSHA (process safety management standard) and EPA (RMP) enforcement proceedings; (3) improving safety culture in refineries and chemical plants; and (4) preparing for industrial accidents by helping clients to develop useful business-continuity plans, legal resource handbooks, release-reporting guides, and meaningful tabletop exercises and emergency field drills. He is a member of the AIChE, speaks often on the criminalization of process safety, and is an adjunct faculty member of The University of Texas at Austin.
On October 24, 2018, Ryan Zinke, who, at the time, was the Secretary of the Interior, "ratified as his own, under the Constitution, the prior appointment of the following individuals . . . to the position of Administrative Law Judge, Administrative Judge, or Indian Probate Judge, as appropriate in the Office of Hearings and Appeals."1 Why did Mr. Zinke feel compelled to take such action? What is the Trump administration's position on administrative judges? And what, if anything, does that mean to you in the short run? Finally, what does such action mean for the oversight of these judges going forward?
To better understand Mr. Zinke's action and the broader implications, you need to understand (1) the distinction between administrative law judges and administrative judges, (2) the context and holding of a recent U.S. Supreme Court decision, and (3) the executive branch's reaction to the decision.
Administrative Law Judges vs. Administrative Judges
Many government agencies use administrative law judges ("ALJs") to preside over disputes and adjudications. These individuals are appointed under the Administrative Procedure Act, which allows each agency to appoint as many administrative law judges as necessary to perform the agency's business.2 But agencies also appoint other types of administrative judges ("AJs") too. AJs assume their positions based upon different authorities. Generally speaking, both sets of judges (ALJs and AJs) can preside over hearings, admit evidence, determine issues of witness credibility, create a record, and issue an initial opinion or recommendation.3 In some instances, both types of judges can also assess monetary penalties and interpret agency policies.4
Despite these apparent similarities in function and name, there are important distinctions between ALJs and AJs. For example, ALJ positions are clearly established by statute.5 Uniform hiring criteria apply to ALJs, and the Office of Personnel Management ("OPM") oversees the selection and hiring process. ALJs have some statutory protections from agency oversight and formal rules under the
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Administrative Procedures Act prevent ALJs from performing both investigatory and prosecutorial functions or having ex parte communications with the parties. Finally, ALJs have certain protections against removal.
Lucia v. SEC
Last term, in Lucia v. SEC, the U.S. Supreme Court reversed and remanded the D.C. Circuit and held that administrative law judges ("ALJs") are "officers of the United States" and thus subject to the "appointments clause" of the U.S. Constitution.6 In response to Lucia, President Trump issued an executive order that exempted all ALJs from civil-service hiring requirements and outlined steps for how agencies should hire ALJs. Separately, the U.S. Solicitor General issued guidance to agency general counsels in order to provide best practices for hiring and removing ALJs and other administrative judicial officers. In doing so, the Solicitor's advice likely went beyond the scope of the Lucia opinion and may have laid the groundwork for more executive control over the administrative-review functions in federal agencies.
In Lucia, the U.S. Supreme court addressed whether SEC Commission ALJs were "officers" of the United States within the meaning of the U.S. Constitution. Article II of the Constitution provides that Congress may vest the power to appoint certain officers within the executive branch in the President, the courts, or department heads:
[The President] . . . shall appoint . . . all other officers of the United States, whose appointment are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. 7
Mr...
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