Agency exercise of legislative power and the role of ALJ independence in responsible agency policymaking.

• Author: Manry, Daniel
• Position: Administrative law judge

Dorothy drew the curtain away and opened the strange portal in print. The moment her eyelashes touched in evident wonder, Dorothy tumbled into the mystic Kingdom of Administrative Law. (1)

The parched, clay road was one of many in the Kingdom. Dorothy sat in the road unharmed, warmed by the winter sun.

No child sprawled beneath the sun. Dorothy was now a winsome young woman with the intellect and acuity to match her rare beauty. Dorothy drew her legs to her and rose from the red clay as though Aphrodite were rising from the sea.

"Digression is the sunshine of reading, (2) but there is sun a plenty, for now," Dorothy concluded. Dorothy knew she must learn the rules of the road to travel the Kingdom.

Dorothy learned much on her own. A sacred document divides the Kingdom into three estates with separate powers. (3) The legislative estate is the only estate empowered to enact laws. The judicial estate is where blindfolded jurists in a hierarchy hold court and decipher the laws. The executive estate administers the laws.

A fourth estate once flourished in the realm, "but that was once upon a time, very long ago." (4) Before Dorothy was a moonlight twinkle in her mother's eye, the fourth estate sacrificed independent journalism to a carnivore with three heads named Advertising, Profit, and Entertainment.

"Digression, get thee behind me," Dorothy commanded, and returned to her education. Creatures named Administrative Agencies administer laws for the executive estate, in part, by agency action that may be proposed, recommended, or final.

Proposed agency action becomes final if an inhabitant of the realm does not challenge agency action within a temporal point of entry prescribed by the agency. A timely challenge may precipitate a proceeding conducted pursuant to F.S. [section] 120.57(1)(a 120.57 proceeding) that results in recommended agency action, which becomes final if the agency adopts the recommendation in a final order. If the final order modifies the recommendation, the modified recommendation becomes final agency action. Other remedies are available in Ch. 120, the Administrative Procedure Act (APA), including rule challenges authorized in F.S. [section] 120.56 (a 120.56 proceeding).

Proposed agency action is often based on agency policy. The two are often intertwined. A challenge to proposed agency action often challenges agency policy.

Agencies utter statements of policy in two forms. The first satisfies the legislative estate's definition of a rule, and the second does not. The former is either an adopted rule (5) or an unadopted rule. (6) The latter, nonrule policy, does not meet the definition of a rule and need not be adopted as a rule. (7)

An inhabitant with standing may challenge agency policy in a 120.57 proceeding, a 120.56 proceeding, or both. However, Dorothy focused her education on 120.57 proceedings.

The role of creatures who conduct 120.57 proceedings mystified Dorothy. The creatures serve in the executive estate (8) but wear tattoos lettered "ALJ," for administrative law judge, and blindfolds, as if they served in the judicial estate. Her effort to solve the mystery felt Sisyphean, if not existential.

Dorothy drew near to the first ALJ she found.

"Hello. I'm Dorothy," she offered, wrapping her long fingers around his unextended hand. The blindfolded creature had no clue Dorothy wanted to shake hands until she naively put her hand in his.

"Hello, my name is Hermes." (9) A wry smile punctuated the portion of Hermes' face below his blindfold.

"Excuse me for asking," Dorothy said in a demure voice, "but exactly what is the role of an ALJ? I mean, how can you serve in the executive estate and still be a judge? I thought judges served in the judicial estate?"

"One question at a time, please," Hermes implored. "The title of judge describes quasi-judicial duties an ALJ must perform with administrative judicial independence and administrative judicial impartiality." (10)

Dorothy grumbled, "Quasi-judicial duties and administrative judicial independence is a mouthful when I read aloud to Ginger, my Norwich Terrier. Her last name is Snaps. I name my dogs in sentences. My previous dog was a Norfolk Terrier named Bitsy Bites. Before that, I owned a Cairn Terrier named Tot-...."

Dorothy paused. She felt the glare of his invisible eyes and rejoined the lesson at hand...