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Post by fedatty on May 6, 2022 1:34:36 GMT -5
It seems like there may be a growing push in the ABA for a federal central panel. There was a webinar earlier in the week (https://www.americanbar.org/events-cle/mtg/web/421857433/), and the National Conference of the Administrative Law Judiciary (NCALJ) has been circulating and seeking cosponsorship for a proposed resolution urging the use of a “federal benefits tribunal” supervised by three Chief ALJs.
I don’t know if this issue has been discussed here before but thought it worth mentioning…
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Post by carrickfergus on May 6, 2022 11:58:42 GMT -5
It makes a lot of sense. Pretty sure a central panel proposal was on the current AALJ leadership platform.
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Post by nylawyer on May 6, 2022 12:10:33 GMT -5
It makes a lot of sense. Pretty sure a central panel proposal was on the current AALJ leadership platform. Any idea what the details of the proposal would be? I'd be curious how they would handle the specialization. While it would make sense to have an entire panel that knew how to handle SSA claims, it would be a waste to have to train all the ALJs on the complexities of some of the other agencies that utilize ALJs- such as the FAA, or SEC. |
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Post by neufenland on May 6, 2022 12:14:03 GMT -5
It makes a lot of sense. Pretty sure a central panel proposal was on the current AALJ leadership platform. The idea being that the panel would be in charge of selecting ALJs for the other departments? Would that not violate Lucia? I guess a way to avoid it is for the agencies to consent to using such a panel to recommend hires to them, and for the heads of the department to select them should they so choose. That said, why would the agencies want to give up that power of selection even in the "recommendation" stage? Seems an unnecessary restriction similar to the OPM process (although distinct in the sense that it wouldn't be mandatory). Or is the idea that all benefits adjudications would leave their current agencies and go towards a centralized Executive Department solely charged with adjudication of all federal benefits (a la several state "Office of Hearings and Benefits," etc.)? Because that would be a mess...at least at first. |
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Post by recoveringalj on May 6, 2022 12:26:29 GMT -5
It could avoid the Lucia issue by having it work much like the OPM loaner program—the borrowing agency head ratified the appointment (or something like that). Or the central panel could be independent and have it’s own agency head to do the appointments.
But do agencies really want to give up control? Not sure if this has legs.
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Post by ba on May 6, 2022 13:33:40 GMT -5
It makes a lot of sense. Pretty sure a central panel proposal was on the current AALJ leadership platform. The idea being that the panel would be in charge of selecting ALJs for the other departments? Would that not violate Lucia? I guess a way to avoid it is for the agencies to consent to using such a panel to recommend hires to them, and for the heads of the department to select them should they so choose. That said, why would the agencies want to give up that power of selection even in the "recommendation" stage? Seems an unnecessary restriction similar to the OPM process (although distinct in the sense that it wouldn't be mandatory). Or is the idea that all benefits adjudications would leave their current agencies and go towards a centralized Executive Department solely charged with adjudication of all federal benefits (a la several state "Office of Hearings and Benefits," etc.)? Because that would be a mess...at least at first. No, it would not present a Lucia problem. The agencies would retain final decision making authority and the ALJs appointment would still be by a department head (the Senate confirmed head of the central panel that administers the ALJ agency). There are states that have this type of system. Under this system, all ALJs work for the adjudicating agency (a “Administrative Hearing Agency” for example) and, when another agency seeks an ALJ adjudication, the case moves to that “AHA” for the adjudication, is decided, and returns to the referring agency for acceptance, rejection, or revision (or denial of review), resulting in what is then the decision of the agency. The ALJ never works “for” the referring agency, so it’s not like the central panel is picking the agency’s ALJ. The ALJ agency (the “AHA”) is making adjudication decisions on referral from all agencies. |
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Post by foghorn on May 6, 2022 14:17:33 GMT -5
Does anyone have a link to the proposal(s)? Has there been any discussion at the Administrative Conference or other bodies?
The link to the NCALJ got me to a portal where viewing the discussion cost $150! (I know, ABA materials are priceless).
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Post by neufenland on May 6, 2022 14:35:44 GMT -5
The idea being that the panel would be in charge of selecting ALJs for the other departments? Would that not violate Lucia? I guess a way to avoid it is for the agencies to consent to using such a panel to recommend hires to them, and for the heads of the department to select them should they so choose. That said, why would the agencies want to give up that power of selection even in the "recommendation" stage? Seems an unnecessary restriction similar to the OPM process (although distinct in the sense that it wouldn't be mandatory). Or is the idea that all benefits adjudications would leave their current agencies and go towards a centralized Executive Department solely charged with adjudication of all federal benefits (a la several state "Office of Hearings and Benefits," etc.)? Because that would be a mess...at least at first. No, it would not present a Lucia problem. The agencies would retain final decision making authority and the ALJs appointment would still be by a department head (the Senate confirmed head of the central panel that administers the ALJ agency). There are states that have this type of system. Under this system, all ALJs work for the adjudicating agency (a “Administrative Hearing Agency” for example) and, when another agency seeks an ALJ adjudication, the case moves to that “AHA” for the adjudication, is decided, and returns to the referring agency for acceptance, rejection, or revision (or denial of review), resulting in what is then the decision of the agency. The ALJ never works “for” the referring agency, so it’s not like the central panel is picking the agency’s ALJ. The ALJ agency (the “AHA”) is making adjudication decisions on referral from all agencies. Ok. This is under the idea that all ALJs would fall under a single Executive Department (what I noted in my second paragraph). Agree that under that model, there would be no Lucia issue. As a personal opinion, I know that many states use the "generalist" model, but I think it might undercut the purpose of why the position was federally created by the APA (and engender even more resentment from the vocal anti "administrative state" folks who think you ought to get a federal jury trial in USDC for an SSA claim...hyperbole intended). Agency adjudication is meant to be specialist, no? I think so, and in so doing, the point is to have ALJs who have the institutional knowledge by specializing in a specific regulatory scheme (which, be necessity, would be within a certain agency responsible for that scheme). If it's going to be any sort of generalized federal benefits tribunal, then the proper place, in my view, is under the US Courts. Given that a claim for benefits is a monetary claim against the US, I would think a good fit would be either a separate "US Benefit Court," or a very big expansion of the US Court of Federal Claims (adding nationwide locations/divisions), which currently exists to entertain monetary claims against the government. An Art. 1 tribunal, in other words, and outside of the Executive Branch. But, what do I know? Just a thought. |
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Post by fedatty on May 6, 2022 15:00:53 GMT -5
It makes a lot of sense. Pretty sure a central panel proposal was on the current AALJ leadership platform. Any idea what the details of the proposal would be? I'd be curious how they would handle the specialization. While it would make sense to have an entire panel that knew how to handle SSA claims, it would be a waste to have to train all the ALJs on the complexities of some of the other agencies that utilize ALJs- such as the FAA, or SEC. I’ve got the ABA proposal in a word document but don’t know how to link it here and I haven’t been able to find a copy online so as to provide a link. I could copy and paste it though… |
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Post by foghorn on May 6, 2022 15:35:46 GMT -5
whichever way works. Can you make your word doc a pdf?
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Post by meglos on May 6, 2022 16:07:03 GMT -5
I am a state ALJ on a central panel. When the state created the central panel several decades ago, it received heavy pushback from many agencies at first. That has since subsided. Whether we issue final or proposed decisions in contested cases depends on the agency delegation. We also hear contested cases on behalf of state boards and commissions per delegation. Not all agencies, boards and commissions delegate cases to us, but most do. The Chief ALJ appoints all the rank and file ALJs and we are generalists, meaning we can hear all cases delegated. Some types we hear a couple times a month. Others we might hear once every couple of years.
The federal government is obviously many many times larger than my state government (or any state government for that matter). I imagine creating a federal central panel would be like trying to herd cats. It is a good idea in theory, but executing it would be a heroic undertaking. I agree with the poster above that the generalist model (as used by my central panel) would probably not be feasible with the federal government.
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Post by barkley on May 6, 2022 16:18:22 GMT -5
A centralized agency for ALJs could still provide for specialization. Seems like there would be alot of benefit to having this quasi judicial process out from under the control and management of non-attorneys. Further, it would be interesting to see how this change would impact the further process of appeals. For OHO, would this eliminate the nonsensical AC?
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Post by aljnoobie on May 6, 2022 16:38:06 GMT -5
FWIW this was discussed extensively last year at various FALJC meetings and the common wisdom was that while it is being pushed by a group of "ivory tower" law professors and policy wonks the agencies and their various Secretaries/Leadership would have zero interest in this type of model.
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Post by fedatty on May 6, 2022 17:35:17 GMT -5
whichever way works. Can you make your word doc a pdf? I can convert it to a pdf but is there a way to attach that here? (Sorry for being such a noob!) |
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