Due Process and Mass Adjudication: Crisis and Reform.

• Author: Ames, David

Table of Contents Introduction 4 I. The Looming Crisis of Decisional Quality 9 A. Three Pivotal Agencies 9 1. Social Security disability benefits adjudication 12 2. Immigration adjudication 13 3. Veterans' benefits adjudication 14 B. The Caseload Crisis and the Quantity-Quality Tradeoff 16 II. Systemic Quality, Constitutional Obligation, and Internal Administrative Law 20 A. The Limits of External Law 20 1. Accuracy, constitutional obligation, and remedial 20 mismatch 2. Jurisdiction channeling 25 B. Internal Administrative Law and Quality Assurance 28 III. Quality Assurance in Historical Perspective 30 A. SSAs Decades of Experiments 31 1. Initial efforts 31 2. Bellmon Review 33 3. SSA's modern quality assurance system 36 B. EOIR's Inattention 40 C. BVA and Quality Review 42 IV. Empirical Case Study: BVA's Quality Review Program 48 A. A Critical Test Case 48 B. Results and Analysis 50 V. Implications 56 A. Theoretical Implications 56 1. Internal administrative law and the threat from 57 outside 2. Internal pressures and distortions 59 a. Resistance problems 60 b. Career and agency incentives 61 c. Conflicting goals 64 B. Improving Quality Assurance: Externally Influenced Internal Administrative Law 67 1. Mandating disclosure of methodology 69 2. Institutionalizing oversight 70 3. Improving design of quality assurance 71 4. Structural reform litigation 77 Conclusion Introduction

Federal administrative adjudication is in distress. When a veteran applies for benefits and loses, more than five years will typically pass before his appeal gets decided. (1) Judges handling these appeals must decide twenty-five to thirty cases per week lest the backlog worsen. (2) This pace is crushing. A judge often has no more than an hour to review thousands of pages in the record. (3) In 2017, about 100 agency attorneys issued a public "loss of confidence" statement, declaring that increased caseloads prevented them from reviewing appeals as closely as applicable law requires (de novo review). (4) "I could have integrity here or I could stay employed," one judge confided, describing the pressure to issue many decisions and the impact it has on the quality of his decisionmaking. (5)

Immigration judges likewise labor under immense backlogs, with caseloads quadrupling from 2001 to 2017. (6) The quality of decisions prompted scathing critique, including then-Judge Richard Posner's takedown of "the Immigration Court" as "the least competent federal agency," (7) and the American Bar Association's condemnation of immigration adjudication as "irredeemably dysfunctional and on the brink of collapse." (8) The Social Security disability benefits adjudication system similarly struggles, with long waits for hearings (9) and rushed, poor decisionmaking excoriated by federal judges. (10) In 2018, one federal judge lamented that "the Social Security system is broken." (11)

An onslaught of cases threatens the capacity of these agencies--the Social Security Administration (SSA), the Department of Veterans Affairs (VA), and the Department of Justice--to render accurate decisions. This crisis of decisional quality has major policy implications for the rights of immigrants to asylum, the rights of veterans to just compensation for their service, and disabled workers' access to the social safety net. But its significance extends across the administrative state. Goldberg v. Kelly demands procedures modeled on court-based litigation for a myriad of areas involving mass administrative decisionmaking. (12) For any of these systems, whether they involve welfare benefits, access to Medicaid, or applications for patent rights--that is, the vast terrain of quasi-adjudication in the administrative state--a crush of caseloads can undermine access to accurate decisionmaking.

The crisis of decisional quality in administrative adjudication seems to beg for a constitutional response. Under Mathews v. Eldridge's famed approach to due process, an individual's entitlement to enhanced process ostensibly increases as the risk of error rises. (13) But the Supreme Court's willingness to recognize new procedural rights for individuals caught in the Bleak House of agency adjudication quickly dissipated after Mathews. (14) Even if the Due Process Revolution of the 1970s had not long since crested, (15) there would be reason to doubt the remedial efficacy of enhanced procedural rights, as we spell out below. (16)

Another remedy may hold more promise. In 1974, the luminary Yale professor Jerry Mashaw famously criticized Goldberg and the Due Process Revolution precisely for their incapacity to ensure systemic accuracy in agency adjudication. (17) He suggested an alternative to individual procedural rights, arguing that agencies ought to have an obligation to develop standards for decisional quality, to evaluate decisionmaking against these standards, and to develop responsive managerial interventions to improve adjudicator performance agencywide. (18) Mashaw made a "quality assurance system" a key plank in the "internal law of administration" he described and defended in Bureaucratic Justice, (19) a book that remains the canonical account of justice in agency adjudication.

In recent years, "internal administrative law"--the corpus of rules, evaluative strategies, and management techniques agencies use to govern themselves--has risen to the top of many scholars' research agendas. (20) Despite this attention, and despite the dire policy need that crises of decisional quality pose, administrative law scholarship has ignored quality assurance initiatives for mass decisionmaking by agency adjudicators. Our Article fills this void. It is the first academic study in nearly forty years of the quality assurance initiatives that agencies have used to evaluate and improve decisional quality for systems of mass adjudication. (21)

We make three chief contributions. First, we use material generated by Freedom of Information Act (FOIA) requests, in-depth interviews with senior agency officials, historical records, and other sources to provide a rich history and account of the various initiatives that the major systems of federal administrative adjudication have used to evaluate and try to improve their judges' decisional quality. Promoted by institutions like the Administrative Conference of the United States and the U.S. Government Accountability Office (GAO), these initiatives are "internal administrative law" in that they can exist distinct from external legal oversight.

Second, we draw upon a rich internal database of over 500,000 decisions by VA judges to evaluate a prototypical initiative of internal administrative law. The Board of Veterans' Appeals (BVA) operated its "Quality Review Program" without formal change for fifteen years. It randomly selected cases for review, creating a unique natural experiment. The dataset, which the agency itself uses to manage its adjudicatory process, has never before been publicly studied. We use this dataset to examine whether the program, which an elite detail of four to six full-time attorneys implemented for over fifteen years, improved decisional quality. (22) Through in-depth investigation, we show that the program generated an all-but-meaningless measure of decisional quality. The program failed to identify errors in decisionmaking in any rigorous way, but it did generate an "accuracy rate" the agency used to defend its work. (23) Quality Review (QR), in essence, became public relations. Our findings reveal the extent of the crisis threatening the federal administrative state: Even an agency that claims success may in fact be hiding dramatic declines in decisional quality.

Third, we derive broad theoretical and policy implications from these findings. The important example of quality assurance challenges leading accounts of how internal administrative law can best develop and function. These accounts argue that agencies should be given more room to govern themselves than reviewing courts tend to allow, faulting judicial review for its disruptive effect on internal administrative law. We show that these accounts gloss over pressures that can distort internal administrative law's evolution, pressures that BVA's QR Program and other experiments with quality assurance highlight. We argue that a more nuanced relationship between external and internal sources of administrative governance can counteract these pressures. This relationship would allow internal administrative law to develop in ameliorative ways but keep it from drifting in pathological directions. We derive concrete policy prescriptions for how internal and external sources of agency governance can productively interact. We explain how legislators and courts can prompt agencies to design and administer successful quality assurance initiatives. Even agencies laboring under huge caseloads can take steps to protect decisional quality and thereby meet their constitutional obligations.

Our findings also challenge conventional wisdom in administrative law. First, formalism and functionalism matter for the standard of review. While BVA's standard of review remained formally the same, QR functionally morphed into a rubber stamp in light of the goals of reporting high accuracy rates. Second, institutional design matters for the standard of review. The fact that attorneys--not judges--were conducting QR likely accounts for much of its functional weakness. The specter of staff attorneys' removal, coupled with the lure of appointment and promotion, may influence the stringency of review as much as a standard's formal label. Third, while reviewing courts can correct erroneous decisions, appellate review appears ineffective at systematic error correction. By comparing errors flagged by the QR team and cases selected for further appeal, it does not appear that claimants are able to effectively select disputes likely to contain reversible error. Last, if we are to take internal...