Non-ALJ Adjudicators in Federal Agencies: Status, Selection, Oversight, and Removal

This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal.

We first present our reported data on these matters, which are the most comprehensive data to date on the non-ALJs’ indicia of impartiality. We then provide suggested practices for agencies to promote non-ALJs’ actual and apparent impartiality in presiding over agency hearings.