Because of a typographical error, an article yesterday contained an incorrect figure for the cost of the federal regulatory process of which administrative law judges are a part. The correct figure is $3 billion a year. A report by the General Accounting Office said that a mere week of delay in the normal process costs about $53 million on an annual basis.
Each year, thousands of persons and businesses seeking formal resolution of disputes with the government have to deal with a small, unique corps of officials almost unknown to the public.
These pivotal figures are administrative law judges. More than 1,000 of them serve in 28 agencies. They preside, as quasi-judicial officers, at administrative hearings on issues as diverse as whether a business should get an operating license or whether an old person has a rightful claim to a Scial Security benefit.
Do the judges move with the speed of hares or tortoise? Are they accountable? Can they be fired?
Such questions aren't trivial. The judges are part of a federal regulatory process that costs $53 million a year, not to mention such related factors as higher legal fees and costs of doing business, discouragement of investment and aviodable deaths and injuries attributable to health and safety violations.
The General Accounting Office, Congress' auditing arm, has looked into the situation at the request of Rep. John E. Moss (D-Calif.), chairman of the House Commerce oversight and investigations subcommittee.
In a 101-page report to do made available tomorrow on Capitol Hill, the GAO provides some dismaying findings. For example:
Although the judges usually need only one to five days to hear cases, they and the agencies they work for together take hundreds of days to decide them last July, the Senate Committee on Governmental Arrairs found that for 11 different types of cases in seven different agencies, the elapsed time from referrral to final decision was never less than 800 days; the maximum was 1,377.
Although the mission of the judges is to conduct hearings and make prompt decisions free of influence or interference, their agencies have many-layered review mechanisms. At the Labor Department, a decision in a labor-management case is reviewed by a division director, a GS-15 supervisor in the division, a staff member in the division, a seven-member agenda committee and, finally, a four-member case committee.
Although agency employes, the judges are free of normal evaluation: the Administrative Procedure Act specifically bars their employers from assessing their performance and assigns evaluation responsibility to no one else.
Although the chief judge at each of four agencies closely reviewed by the GAO has access to data on their subordinates' productivity, they "have not established objective performance standards in terms of either quantity or quality of work."
Although the judges might be assigned cases that create conflicts of interest, their financial-disclosure statements "are generally not being reviewed" by those who make the assignments.
Although the Civil Service Commission's normal federal personnel management responsibilities include issuing guidelines for agency use and evaluating compliance systems, the CSC "has been reluctant to perform its normal functions and has been of little help in assisting agencies to resolve administrative law judge personnel mangament problems."
As for being fired, the judges have "virtually guaranteed tenure until retirement," the GAO says in the report, a copy of which was obtained by The Washington Post.
The GAO suggests some reforms that Congress could make, including giving responsibility for evaluating the judges' performance to the CSC and establishing an initial three-year probationary period so as to "eliminate immediate, virtually guaranteed appointment and tenure."
But the GAO also agreed with the Senate committee that decisions in many disputes are needlessly delayed by reliance on formal proceedings rather than on time-saving mechanisms such as are in used in certain parts of the goverment.
For example, the U.S. Tax Court offers persons contesting Internal Revenue Service rulings of up to $1,500 the option of appearing informally before a special trial judge, whose decision is final and who acts in about half the time needed for a formal proceedings.
At the Veterans Administration, the Bureau of Veterans Appeals needs an average of only three months for informal processing of each of up to 30,000 appeals a year. The decisions are final.
To make its study, the GAO made a detailed review at four agencies that together have 244 ALJs: the Labor Department, National Labor Relations Board (NLRB), Occupational Health and Safety Review Commission (OHSRC) and Interstate Commerce Commission (ICC). The GAO also sent a questionaire to the 857 ALJS permanently employed in the 28 agencies and conducted numerous interviews.
Of the 692 judges replying to a question on delay, 67 percent said it sometimes occurs needlessly. Usually, the time take for a judge to make a decision is much shorter than the time taken by an agency to review the decision.
Agencies review decisions because they want to preserve policymaking authority or because they sometimes have little assurance that a judge has acted reasonably, the GAO said. Agency judgments are appealable in the courts.
At the OHSRC, whose 188 employes have the sole function of adjudicating disputes in the health and safety area, the GAO said, the "extremely cumbersome" review process consumes a median time of 511 days atop the 141-day median for the agency's judges. In fiscal 1976, OHSRC spent $1.38 million for review personnel and $2.1 million for judges.
The GAO found large variations in productivity within particular agencies. At the NLRB in fiscal 1975, for example, nine judges averaged 29 cases each, while 30 others averaged 19 and 23 averaged only 12. At the OHRC, six judges disposed of an average of 95 cases each, while 15 disposed of an everage of 66 each and 13 others disposed of an average of only 44 each.
Of a total of 1,025 judges as of April 1977, most - 416 permanent, 199 temporary - were at the Social Security Administration. In fiscal 1975 the ALJs there had 154,945 requests for hearings. The NLRB had 96 judges, the ICC 62 and the Labr Department and OHSRC 43 each.