Maxwell Weiss ·
84 Geo. Wash. L. Rev. 1407 ·
There has recently been a series of challenges to the U.S. Securities and Exchange Commission’s (“SEC”) use of Administrative Law Judges (“ALJs”) to preside over enforcement actions. In one of those challenges, Hill v. SEC, Judge Leigh Martin May of the Northern District of Georgia ruled that SEC ALJs are inferior officers of the United States, and therefore their appointments must comply with the Appointments Clause of the U.S. Constitution, which they currently do not. The Eleventh Circuit reversed, ruling that the district court lacked subject matter jurisdiction to adjudicate the challenge. This Essay compares the district and appellate decisions, ultimately agreeing with Judge May’s conclusions. The court of appeals failed to recognize that precluding collateral challenges to ALJ appointments renders most plaintiffs unable to ever challenge the appointments process, as their challenge will be moot by the time direct judicial review is available. However, some plaintiffs’ cases may be saved by the “capable of repetition yet evading review” exception. If that occurs, and a plaintiff is heard on the merits of an Appointments Clause challenge, the entire administrative adjudicative system could come crashing down. Therefore, Congress should amend the ALJ appointments process to cure the constitutional defect.
Read the Full Essay Here.
The ALJ Option
By Margaret Graham Tebo
Often the most frustrating part of being a lawyer is that you make the arguments and someone else makes the decisions.
But the quasi-judicial position of administrative law judge can be just the niche for those who want to call the shots. And for the busy solo practitioner, the ability to bypass the politics of elections and appointments only sweetens the appeal.
ALJs (also known in some states as hearing officers, referees, commissioners or trustees) are not members of the judicial branch. But for all practical purposes, the decisions they make have the same effect as those of a judge for the parties whose disputes they hear.
Nicholas Cobbs of Washington, D.C., applied to be an ALJ after 15 years as a solo practitioner. The idea of trying something new appealed to him, and he was ready to trade the independence of solo practice for a steady paycheck. Plus he’s looking forward to the luxury of focusing entirely on the law. “I don’t like the administrative stuff of solo practice–the billing, the rainmaking, etc.,” he says.
There are only about 1,500 federal ALJs nationwide, and about 1,200 of them hear Social Security disability cases. The rest are assigned to various government organizations, including the Securities & Exchange Commission, the National Labor Relations Board, the U.S. Postal Service, the Food and Drug Administration and 25 other agencies, commissions, offices, departments, boards and administrations.
Other than the Social Security jobs, most ALJs are based in or near Washington, D.C. According to the application information provided by the Office of Personnel Management, typical duties include hearing cases involving claims for government benefits, public license grants and revocations, violations of public laws or regulations, and approval of regulatory rates, wages and prices. In addition, ALJs are empowered to administer oaths, issue subpoenas and order depositions. Pay is currently at the GS-15-16-17 rate, or $89,200 to $134,000 a year.
These jobs aren’t just for anyone who’s simply become disenchanted with solo life. Applicants must have at least several years of formal litigation experience and have other significant practice experience. They must be U.S. citizens and must provide a list of 10 significant cases in which they were directly involved, including names and contact information for the parties, opposing counsel and judge. (Other requirements can be found on the Office of Personnel Management Web site at www.opm.gov.)
Cobbs has practiced insurance, transportation and administrative law during his career–all factors he hopes will help him gain points in the hiring process. And then there’s the test: ALJ hopefuls must take the Civil Service Exam; Cobbs sat for his in February.
Although requirements vary, the experience factor is also important for ALJs operating at the state level, deciding state law issues. In California, for example, ALJs are full-time state employees who must have significant legal experience before they are hired, according to Cristina Phillips, who has been an ALJ in California for about 20 years. Phillips hears health- and welfare-related cases and is based in Escondido, near San Diego.
Phillips says the job is particularly attractive to women who are tired of the long hours that solo practice can demand.
“We have a lot of women because they’re often the ones juggling a lot in terms of family,” says Phillips, who raised three daughters while working as an ALJ. “This job provides more regular hours, steady pay and good state benefits.”
In some states, hearing officers work part time, and some states allow ALJs to practice law on the side. But their practice area must be different from the area in which they hear administrative cases, says Edwin L. Felter Jr., a senior administrative law judge in Colorado and a former chairman of the National Council of Administrative Law Judges.
While pay at the state level is rarely as high as what federal ALJs enjoy, Felter has found the position offers other, more important rewards. “There’s a lot of variety in the cases we hear,” he says. “It’s a good career.”