Authority of Education Department Administrative Law Judges in Conducting Hearings
| Decision Date | 12 January 1990 |
| Docket Number | 90-1 |
| Citation | 14 Op. O.L.C. 1 |
| Parties | Authority of Education Department Administrative Law Judges in Conducting Hearings |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
WILLIAM P. BARR Assistant Attorney General Office of Legal Counse
Authority of Education Department Administrative Law Judges in Conducting Hearings
Administrative law judges within the Department of Education, being employees of the Department, do not have authority to conduct administrative hearings in a manner contrary to the Department's rules, to invalidate such rules, or to interpret such rules in a manner contrary to the Secretary's interpretation.
You have requested our opinion whether administrative law judges ("ALJs") within the Department of Education ("Department") who preside over agency hearings required by 20 U.S.C. § 1234 to be conducted in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 551-596 ("APA"), have independent authority to conduct those proceedings in a manner contrary to the Department's rules, to invalidate such rules, or to interpret such rules in a manner contrary to the Secretary's interpretation.[1] We conclude that ALJs, being employees of the Department, have no such authority. While ALJs have authority to regulate the conduct of administrative proceedings before them, such authority remains "[s]ubject to published rules of the agency, " id. § 556(c), and therefore may be exercised only in accordance with "such rules as the Secretary shall prescribe by regulation." 20 U.S.C. § 1234(f).
The questions posed here concerning the scope of a Department ALJ's power have arisen as a result of decisions by such ALJs asserting independent authority over procedural matters in administrative hearings. You have provided us with a copy of one such decision, the recent opinion of ALJ Daniel R Shell in In the Matter of Franklin-Northwest Supervisory Union, No. 89-4-R ("Order Denying Stay for Settlement Negotiations [and] Order Granting Stay for Mediation") (Dec. 11, 1989) ("Opinion"). In that matter, applicant Franklin-Northwest and the Department jointly requested a stay of administrative proceedings pending settlement negotiations. The applicable Department regulation provides that "[i]f the parties to a case file a joint motion requesting a stay of the proceedings for settlement negotiations or the approval of a settlement agreement, the ALJ grants the stay." 34 C.F.R. § 81.14(a) (1989). [ 2]
ALT Shell denied the motion. He concluded that administrative law judges have the duty under the APA and under their delegated judicial authority in the Department of Education to exercise the judicial function in an independent manner and to regulate the course of proceedings before them. ALJ Shell concluded that 34 C.F.R. § 81.14(a) interfered with his exercise of this judicial responsibility, and he ruled that "the Secretary cannot promulgate regulations that would deny the [administrative law] judge the opportunity to exercise the responsibilities of the judicial function of 5 U.S.C. 554, 556, 557 nor deny the [administrative law] judge judicial independence." Opinion at 9. Mr. Shell therefore rejected the authority of the Secretary's regulation and denied the joint stay application of the Department and Franklin-Northwest. In the alternative, Mr. Shell construed 34 C.F.R. § 81.14(a) as not requiring an ALJ to grant a joint stay motion for settlement.
Administrative law judges have no constitutionally based judicial power, see Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 132-33 (1953), but are employees of the executive branch department or agency employing them. See 20 U.S.C. § 1234(c) (). As such, ALJs are bound by all policy directives and rules promulgated by their agency, including the agency's interpretations of those policies and rules. See Nash v. Bowen, 869 F.2d 675, 680 (2d Cir.), cert, denied, 493 U.S. 813 (1989); Mullen v. Bowen, 800 F.2d 535, 540-41 n.5 (6th Cir. 1986); Brennan v. Department of Health and Human Services, 787 F.2d 1559 (Fed. Cir.), cert, denied, 479 U.S. 985 (1986); Goodman v. Svahn, 614 F.Supp. 726, 728 (D.D.C. 1985); Association of Administrative Law Judges, Inc. v. Heckler, 594 F.Supp. 1132, 1141 (D.D.C. 1984); cf. D'Amico v. Schweiker, 698 F.2d 903, 906 (7th Cir. 1983). Accord 34 C.F.R. § 81.5(b) (). ALJs thus do not exercise the broadly independent authority of an Article III judge, but rather operate as subordinate executive branch officials who perform quasi-judicial functions within their agencies. In that capacity, they owe the same allegiance to the Secretary's policies and regulations as any other Department employee.
The obligation of ALJs to adhere to their employer's policies and rules extends to matters of administrative procedure in the conduct of agency hearings. The APA explicitly provides that the power of employees presiding at agency hearings is subject to the rules prescribed by the employing agency: [ 3] Subject to published rules of the agency and within its powers, employees presiding at hearings may — ... (5) regulate the course of the hearing; ... (9) dispose of procedural requests or similar matters; ....
20 U.S.C. § 1234(f)(1).
That ALJs remain subject to the authority of the agency in all matters of policy, procedure, and interpretation of law is wholly consistent with the type of judicial independence mandated by the APA. The APA requires both a separation of functions within the agency, 5 U.S.C. § 554(d), and that ALJs have certain tenure protections. Id. § 7521. Thus, to maintain the integrity of agency adjudicative proceedings, an ALJ is prohibited from certain ex parte contacts with parties involved in the adjudication, may not be responsible to another employee engaged in investigative or prosecutorial functions, and may not participate in the decision of a case in which he has performed an investigative or prosecutorial function. These restrictions do not, however, establish that ALJs are free to ignore agency rules for the conduct of agency hearings. To draw the conclusion that ALJs are not bound by such agency rules would be to read § 554(d) as implicitly nullifying § 556(c). Such a construction would be contrary to well established principles of statutory interpretation disfavoring implied repeals. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017-18 (1984) (). Rather, an ALJ is "independent" within the meaning of § 554(d) only in that' he may not also perform another agency function with respect to a proceeding over which he presides as a hearing officer.
Similarly, 5 U.S.C. § 7521 provides ALJs with only a limited "independence" from agency officials by providing tenure protection from unjustified agency reprisal. Section 7521 provides that ALJs may be removed from their positions, or otherwise disciplined, only for cause and after notice and a hearing before the Merit Systems Protection Board. 5 U.S.C. §§ 5372, 7521. See generally 5 C.F.R. §§ 930.201-930.216 (1981). This measure of independence does not, however, mean that ALJs may disregard agency rules that are binding on them. Mullen, 800 F.2d at 540 n.5. To the contrary, failure to adhere to agency policies and procedures may constitute "good [ 4] cause" sufficient to warrant the discharge or discipline of an employee serving as an administrative law judge. 5 U.S.C. § 7521; see, e.g., Brennan v. Department of Health and Human Services, 787 F.2d 1559 (Fed. Cir.), cert, denied, 479 U.S. 985 (1986) ().
A 1977 published Attorney General opinion supports our conclusion. In describing the legislative history of the APA, that opinion notes that Congress rejected a minority recommendation for complete segregation of administrative law judges into independent agencies in favor of more limited independence for ALJs in terms of tenure and compensation. 43 Op. Att'y Gen. 64-67 (1977). The opinion does observe that, within the scope of powers granted ALJs under 5 U.S.C. § 556(c), those powers are to be exercised without agency interference. But this conclusion in no way implies that ALJs are not "[s]ubject to published rules of the agency, " 5 U.S.C. § 556(c), in the conduct of agency proceedings and the exercise of their other statutory powers. Such an implication would be contrary to the plain language of § 556(c).
ALJ Shell relied on Butz v. Economou, 438 U.S. 478, 513 (1978), as support for his theory that ALJs are not bound by agency rules. We believe, however, that the Butz case is fully consistent with our conclusion. In that case the Supreme Court described the role of an ALJ as being "functionally. comparable" to that of a judge. Read in context, however, that statement provides no support for the assertion that ALJs may conduct agency hearings or adjudications independently of agency regulations. The issue in Butz was whether ALJs and other investigative, prosecuting, and trial officials of the Department of Agriculture were...
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