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1
Administrative Procedure Act, 5 U.S.C. §§ 551-559, 701-
706, 1305, 1306, 3105, 3344, 5372, and 7521 (1994 and Supp. V
1999), originally enacted as ch. 324, 60 Stat. 237 (1946). The
APA is printed in an Appendix to this Manual.
The source of the federal Administrative Law Judge’s
authority and independence have been succinctly described at the
website of the Federal Administrative Law Judges Conference,
http://www.faljc.org/faljc1.html
Administrative Law Judge powers and decisional independence
come directly from the Administrative Procedure Act "without
the necessity of express agency delegation," and "an agency
is without the power to withhold such powers" from its
Administrative Law Judges. ATTORNEY GENERAL'S MANUAL ON THE
ADMINISTRATIVE PROCEDURE ACT 74 (1947), reprinted in
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, FEDERAL
ADMINISTRATIVE PROCEDURE SOURCEBOOK 140 (2d ed. 1992); In the
Matter of Bilello [Current Transfer Binder] Comm. Fut. L.
Rep.(CCH) 26,032 (Mar. 25, 1994) (citing S. REP. NO. 752,
79th Cong., 1st Sess. 21 (1945)); Tourist Enterprises
Corporation"ORBIS", CAB Docket No. 27914, Recommended
Decision served October 7, 1977, p. 11, n.9, adopted by CAB
Order 78-5-11, dated May 8, 1978, p. 2; "Judicial Response to
Misconduct," p. 114 (ABA Center for Professional
Responsibility 1995).
2
A list of citations to the procedural rules of many
federal agencies that conduct adjudicative hearings is set forth
in Appendix IV.
3See, e.g., Butz v. Economou, 438 U.S. 478 (1978); Ramspeck
v. Federal Trial Examiners Conference, 345 U.S.128 (1953); Riss &
Co. v. United States, 341 U.S. 907 (1951); Universal Camera Corp.
v. NLRB, 340 U.S. 474 (1951); Wong Yang Sung v. McGrath, 339 U.S.
33 (1950); Benton v. United States, 488 F. 2d 1017 (Ct. Cl.
1973).
1
I. INTRODUCTION
Today, the powers and responsibilities of federal
Administrative Law Judges (ALJ or Administrative Law Judge) are
defined in the Administrative Procedure Act1 (APA) and in the
enabling acts and procedural rules of the various agencies2.
Their powers, duties, and status have been considered on several
occasions by the federal courts.3
Historically, however, the need for administrative hearing
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4
See Morgan v. United States, 298 U.S. 468 (1936). For an
article summarizing the historical background of administrative
adjudication and ALJs in the United States, see Michael Asimow,
The Administrative Judiciary: ALJs in Historical Perspective, 19
J. NAALJ 25 (1999). For another historical account, which
unfortunately is no longer widely available, see The Federal
Administrative Judiciary, 1992 ACUS 771, 798-303. This is a
report prepared by the Administrative Conference of the United
States, a government organization which is not longer in
operation.
See supra, Preface to 2001 Interim (Internet) edition
of this Manual.
5
See Ramspeck v. Federal Trial Examiners Conference, 345
U.S. 128 (1953).
6
The original section 11 has, of course, been amended and
its successor provisions are now found mainly in 5 U.S.C. §§ 3105
(1994), 5372 (1994 and Supp. V 1999), and 7521 (1994).
7
The title was changed to Administrative Law Judge by
United States Civil Service Commission regulation on Aug. 19,
1972, 37 Fed. Reg. 16787, and by statute on March 27, 1978, 5
U.S.C. § 3105 (1994).
8
See Ramspeck v. Federal Trial Examiners Conf., 345 U.S.
128, 132 ("a special class of semi-independent subordinate
hearing officers"). See also, Local 134, IBEW v. NLRB, 486 F.2d
863, 867 (7th Cir. 1973).
2
officers was recognized well before the APA4. The large number
of cases where an agency was required, statutorily or
constitutionally, to afford a hearing impelled federal agency
heads to delegate responsibility for conducting those hearings to
subordinates5. However, these subordinates were subject to the
direction and control of the agency, and thus perceived as being
prone to make findings favorable to the agency. Considerations
of fairness led to granting these hearing officers increasing
degrees of independence, culminating in the provisions of section
11 of the APA,6 which accords the Administrative Law Judge (ALJ)7
a unique status.8
Although an employee of the agency, the ALJ is responsible
for conducting formal proceedings, interpreting the law, applying
agency regulations, and carrying out the policies of the agency
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9The discussion in this Manual assumes that the
Administrative Law Judge is an employee of an agency charged with
enforcement and policy making responsibilities for a substantive
program. However, a few Administrative Law Judges are employed
by agencies which adjudicate cases originating in the enforcement
programs of other agencies. For example, the Occupational Safety
and Health Review Commission (OSHRC) (29 U.S.C. § 661 (1994)) and
the Mine Safety and Health Review Commission (MSHRC) (30 U.S.C. §
823 (1994) are independent agencies which conduct hearings in
enforcement cases brought by the Department of Labor. Therefore,
some of the discussion in the text dealing with the relationship
of the Judge to his agency is not directly applicable to OSHRC,
MSHRC, or similar agencies.
10See 5 U.S.C. § 4301(2)(D) (1994)(exempting ALJs from the
definition of “employee” in context of performance appraisals )
Basic grades and pay levels of ALJs are addressed in 5 U.S.C. §
5372(1994 and Supp. V 1999), which also provides that OPM shall
determine levels of ALJ positions by regulation. For an article
summarizing many aspects of performance evaluation of ALJs and
proposals to modify the current system, see James P. Timony,
Performance Evaluation of Federal Administrative Law Judges, 7
ADMIN. L.J. AM. U. 629 (1994). An earlier student note on the
topic also provides background on this topic. L. Hope O'Keeffe,
Note, Administrative Law Judges, Performance Evaluation, and
Production Standards: Judicial Independence Versus Employee
Accountability, 54 GEO. WASH. L. REV. 591(1986). For an article
which also deals with state ALJs, see Ann Marshall Young,
Evaluation of Administrative Law Judges, 17 J. NAALJ 1 (1997).
11
5 U.S.C. § 7521 (1994). An important early decision of a
Merit Systems Protection Board (MPSB) ALJ stated that discipline
or discharge for good cause should not normally be based on the
content of an ALJ’s opinions or the ALJ’s conduct of his/her
3
in the course of administrative adjudications9. To insure
independent exercise of these functions, the ALJ's appointment is
absolute. The ALJ is not subject to most of the managerial
controls which can be applied to other employees of a federal
agency. For example, ALJ’s are not subject to performance
appraisals, and compensation is established by the Office of
Personnel Management, independent of agency recommendations.10
Furthermore, the agency can take disciplinary action against the
Judge only when good cause is established in proceedings before
the Merit Systems Protection Board.11
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cases, unless there were “serious improprieties, flagrant abuses,
or repeated breaches of acceptable standards of judicial
behavior.” In re Chocallo, 1 M.S.P.R. 605, 632 (1980), aff’d, 2
M.S.P.B. 20, aff’d w/o opinion, 716 F. 2d 889 (3d Cir. 1983),
cert. den. 464 U.S. 983 (1983). Another significant, relatively
early decision was Social Security Adm. v Burris (11/3/88, MSPB)
Docket No. HQ752186100023, 39 MSPR 51, aff’d w/o opinion, 878
F.2d 1445 (Fed. Cir. 1989)(stating that good cause was shown by
proof of insubordination, but as to another charge, agency did
not establish good cause for disciplining ALJ for ALJ’s including
in his decisions statements that the agency was attempting to
influence his decisions) Some other significant cases
interpreting or applying this provision are Benton v. U.S., 203
Ct. Cl. 263, 488 F.2d 1017 (Ct. Cl. 1973); Association of
Administrative Law Judges v. Heckler, 594 F. Supp. 1132 (D. D.C.
1984); Goodman v. Svahn, 614 F. Supp. 726 (D. D.C. 1985); Brennan
v. Department of Health & Human Services, 787 F.2d 1559, 1563
(Fed. Cir. 1986)(stating that charges based on reasons which
constitute improper interference with administrative law judge's
performance of quasi-judicial functions cannot constitute "good
cause."), cert. den. 479 U.S. 985 (1986); McEachern v. Macy, 233
F. Supp. 516 (D. S.C. 1964), aff'd, 341 F.2d 895 (4th Cir.
1965)(involving failure to pay financial obligations).
There also have been several relevant cases decided since
the 3rd edition of this Manual was published. SSA v Dantoni, 77
MSPR 516 (1998), aff’d 173 F. 3d 435 (Fed. Cir. 1998) (decision
without published opinion, full text available at 1998 U.S. App.
LEXIS 24902)(MPSB opinion recounting discharged ALJ’s conduct
harassing and embarrassing Deputy Chief ALJ by, among other
things, forging Deputy Chief ALJ’s signature on order forms and
other documents, resulting in Deputy Chief ALJ’s receiving 1547
pieces of mail, including solicitations for a book entitled “How
to Get the Women You Desire into Bed”); Carr v SSA 185 F3d 1318
(Fed. Cir. 1999)(stating that agency had carried its burden of
establishing charges against whistle-blowing ALJ whom it sought
to remove for, inter alia, reckless disregard for personal safety
of others; even if ALJ had also engaged in protected activity,
agency would have sought to remove her even in absence of that
activity; noting also that there were charges which ALJ did not
contest, such as persistent use of vulgar and profane language,
demeaning comments, sexual harassment and ridicule, and
interference with efficient and effective agency operations);
Office of Hearings & Appeals, Social Sec. Admin. v. Whittlesley,
59 MSPR 684 (1993), aff’d w/o op, 39 F3d 1197 (Fed. Cir. 1994),
4
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cert den 514 U.S. 1063(1995)(stating that good cause to remove
ALJ was shown by evidence that he violated agency rules and
settlement agreement by engaging in unauthorized practice of
law).
For some relevant articles, see Rosenblum, Contexts and
Contents of "For Good Cause" as the Criterion for Removal of
Administrative Law Judges: Legal and Policy Factors, 6 W. NEW ENG.
L. REV. 593 (1984); Timony, Disciplinary Proceedings Against
Federal Administrative Law Judges, 6 W. NEW ENG. L. REV. 807
(1984).
12
5 U.S.C. § 556(b)(1994)(emphasis added).
5
A. General Overview
Before considering some specific APA-recognized powers of
the Administrative Law Judge, a general overview may be helpful.
To begin with, the Administrative Law Judge is a common feature
in formal agency adjudications. Whenever the APA applies to a
matter which must be determined on the record of a trial-type
hearing, the proceedings with some exceptions are likely to
be conducted by an Administrative Law Judge. In fact, the APA is
quite explicit. For proceedings required by statute to be
determined on the record after notice and opportunity for an
evidentiary hearing:
(b) There shall preside at the taking of
evidence --
(1) the agency;
(2) one or more members of the body
which comprises the agency; or
(3) one or more administrative law
judges appointed under section 3105 of this
title.
This subchapter does not supersede the
conduct of specified classes of proceedings
. . . before boards or other employees
specially provided for . . . under statute.12
Boards, Commissions or Administrators heading a federal agency do
not routinely preside over hearings. However, as the language
quoted above indicates, an Administrative Law Judge is not
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13Id.
14
Frye, Survey of Non-ALJ Hearing Programs in the Federal
Government, 44 AD. L. REV. 261, 264 (1992).
15Id. at 341-43.
16Id. at 343. For another article describing the non-ALJ
federal agency adjudicators, as of 1992, see Paul R. Verkuil,
Reflections Upon the Federal Administrative Judiciary, in
Symposium: Contemporary Issues in Administrative Adjudication, 39
UCLA L. REV. 1341 (1992).
175 U.S.C. § 557(b) (1994). In cases involving rulemaking or
initial licenses, the agency may direct that the Judge's decision
be omitted and the formal record be certified directly to the
agency for decision. Id.
18See, e.g., Northeastern Broadcasting, Inc. v. FCC, 400
F.2d 749 (D.C. Cir. 1968)(FCC Review Board); McDaniel v.
Celebrezze, 331 F.2d 426 (4th Cir. 1964) (Social Security &
Appeals Council); 9 CFR § 317.369 (2000) (Department of
Agriculture nutrition labeling; hearing before an ALJ with appeal
6
required if some statute specifically provides otherwise.13
An important study in the 1990's established that there are
a significant number of proceedings where the hearing officer is
not an Administrative Law Judge14. Still, the Administrative Law
Judge seems to provide a "model," even in such cases. Especially
noteworthy, this study pointed out that: (1) such hearing
officers often are -- like Administrative Law Judges --
administratively "housed" in "independent" organizations separate
from the rest of the agency;15 and (2) agencies apparently are
willing "to accord these presiding officers a fair degree of
independence."16 Moreover, whether the term ALJ or “hearing
officer” is used, the essential function of conducting an
adjudicative proceeding is basically the same. Most of this
Manual, therefore, should be relevant to non-Administrative Law
Judge hearing officers.
Several other general points regarding Administrative Law
Judges should be made at this juncture. In most types of cases
the ALJ issues either an initial or a recommended decision,
orally or in writing17. The ALJ's decision is subject to review
by the agency (a function sometimes delegated to an agency
official or to a review board),18 and the agency's decision is in
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to the Department’s “Judicial Officer”; 43 CFR § 4.1
(2000)(various Department of the Interior appeals boards, e.g.,
Board of Indian Appeals, Board of Land Appeals; 40 CFR §
1.25(e)(2000)(Environmental Appeals Board)).
195 U.S.C. §§ 701-706 (1994). However, judicial review can
be statutorily precluded, at least in certain kinds of cases.
Lindahl v. OPM, 470 U.S. 768 (1985); Webster v. Doe, 486 U.S. 592
(1988).
20
5 U.S.C. § 557(b)(1994)(“When the presiding employee
makes an initial decision, that decision then becomes the
decision of the agency without further proceedings unless there
is an appeal to, or review on motion of, the agency within the
time provided by rule.”) For examples of implementing
regulations, see 24 CFR § 1720.605 (2000)(HUD); 29 CFR § 580.13
(2000) (civil penalties for violations of federal child labor
laws).
7
turn usually subject to review by the courts19. The ALJ's
decision can become final agency action if review is not directed
by the head of the agency or other official designated to
entertain appeals from the ALJ's decision.20
The Administrative Law Judge is the person primarily
responsible for developing an accurate and complete record and a
fair and equitable decision in a formal administrative
proceeding. The parties to the proceeding, including agency
staff, are all subject to pressures and preconceptions which may
inhibit objective presentation of facts and policies. The
reviewing agencies and the courts, though independent and
objective, have heavy work loads and other obligations. They
simply do not have the time and the facilities to investigate all
aspects of each formal proceeding. This function has come to be
the responsibility of the Administrative Law Judge.
Consequently, an Administrative Law Judge has a strong
affirmative duty not only to try a case fairly and to write a
sound decision but to insure that an accurate and complete record
is developed.
In Scenic Hudson Preservation Conference v. Federal Power
Commission, the Second Circuit stated:
[T]he Commission has claimed to be the
representative of the public interest. This role
does not permit it to act as an umpire blandly
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21
354 F.2d, 608, 620 (2d Cir. 1965),later quoted in
Confederated Tribes and Bands of the Yakima Indian Nation v.
FERC, 746 F.2d 466, 472 (9th Cir. 1984) (as amended)
22See Marsh v. Harris, 632 F.2d 296 (4th Cir. 1980).
23See, e.g., Beck v. Mathews, 601 F.2d 376 (9th Cir. 1979);
Holland Furnace Co. v. FTC, 295 F.2d 302 (7th Cir. 1961); NLRB v.
International Brotherhood of Electrical Workers, 432 F.2d 965
(8th Cir. 1970).
24
Examples of this necessary zeal in developing a complete
record may be found in the opinions of Judge Seymour Wenner in
The Permian Basin Rate Case, 34 FPC 159 (1965), and Judge Stephen
Gross in the Continental-Western Merger Case, CAB Docket 33465
(served April 16, 1979), in calling their own witnesses when they
found the record inadequate. For examples of cases recognizing a
hearing officer's authority, zeal or no zeal, to protect and
develop the record in a fair manner, see also, e.g., NLRB v.
Staten Island Hotel, 103 F. 3d 858, 860 (2d Cir. 1996)(ALJ’s
authority to reopen a record sua sponte judicially reviewed under
8
calling balls and strikes for adversaries
appearing before it; the right of the public must
receive active and affirmative protection at the
hands of the Commission. . ..
The Commission must see to it that the record
is complete. The Commission has an affirmative
duty to inquire into and consider all relevant
facts.21
Although the court was referring to an administrative agency and
not directly to Administrative Law Judges, the net result is the
same. Because the agency itself does not preside over the taking
of evidence, the ALJ, as presiding officer on behalf of an
agency, has the initial responsibility for developing an accurate
and complete record22. This may require affirmative measures at
several stages of a proceeding. The ALJ certainly should call
the attention of the parties to gaps in the record and insist
that they be filled. The ALJ also may need to question or cross-
examine a party's witnesses,23 and may even call witnesses or
raise issues sua sponte upon essential matters not covered
adequately by the parties24. The ALJ may direct the parties to
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an abuse of discretion standard); Freeman United Coal Mining Co.
v. Director, OWCP, 94 F. 3d 384, 388 n.2 (7th Cir. 1996)(ALJ sua
sponte inquiry into earlier application necessary in order to
determine which regulations applied to claim); Poulin v. Bowen,
817 F.2d 865 (D.C. Cir. 1987); Fernandez v. Schweiker, 650 F.2d 5
(2d Cir. 1981); Busey v. St. Hilaire, 1990 NTSB Lexis 20, Order
EA-3073, Docket SE-8606 (1990) (recognizing that ALJs may
address, sua sponte, relevant matters which the parties may have
overlooked, or deliberately ignored).
For a recent ALJ decision recognizing this duty and power,
see In the Matter of Pepperell Associates, Respondent, 1999 EPA
ALJ LEXIS 16 (February 26, 1999).
For recent article related to this topic, see Allen E.
Schoenberger, The Active Administrative Law Judge: Is There Harm
in an ALJ Asking?, 18 J. NAALJ 399 (1998); Jeffrey Wolfe Jeffrey
and Lisa B. Proszek, Interaction Dynamics in Federal
Administrative Decision Making: The Role of the Inquisitorial
Judge and the Adversarial Lawyer, 33 Tulsa L. J. 293 (1997).
25Form 8-a in Appendix I is a sample order directing the
parties to research a question of law.
26
See, Marsh v. Harris, 632 F.2d 296 (4th Cir. 1980).
27
However, § 556(c) is not limited expressly to
Administrative Law Judges. By its own terms, § 556(c) extends to
"employees presiding at hearings" which are subject to § 556 of
the APA. For examples of implementing procedural regulations, see
9
discuss in oral argument, in brief, or in special memoranda, any
issues or points which are germane, and he may direct counsel to
research a question of law and policy at any time.25
If the agency or a court finds omissions in the record,
inappropriate procedures, insufficient evidence, or other
inadequacies, frequently the case must be returned to the
Administrative Law Judge for correction or supplemental action26.
This, of course, involves additional work, expense and further
delay.
B. Specific APA Powers of the Administrative Law Judge
Section 556(c) of the APA furnishes a convenient point of
departure by listing some of the powers and functions which an
agency may be authorized to delegate to Administrative Law
Judges27. Specifically, and in the order listed in § 556(c)
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24 CFR § 26.1, et seq.(2000) (HUD)(24 CFR § 26.2 specifically
sets out the powers of administrative law judges and hearing
officers); for another set of implementing procedural
regulations, which are apparently limited to proceedings under
one federal statute, see 24 CFR § 1720.105, et seq. (2000)
(HUD)(hearings under Interstate Land Sales Full Disclosure Act).
28
Administrative Dispute Resolution Act, Pub. L. No. 101-
552, 104 Stat. 2736 (1990) (with changes to section numbering in
Title 5 made by the Administrative Procedure Technical Amendments
Act, Pub. L. No. 102-354, 106 Stat. 944 (1992)) (codified mainly
at 5 U.S.C. §§ 571-83, with codification of miscellaneous
provisions in various sections of titles 9, 28, 29, and 41).
Further amendments were made by the Administrative Dispute
10
itself, an Administrative Law Judge may: (1) administer oaths and
affirmations; (2) issue subpoenas authorized by law; (3) rule on
offers of proof and receive relevant evidence; (4) take
depositions or have depositions taken when the ends of justice
would be served; (5) regulate the course of the hearing; (6) hold
conferences for the settlement or simplification of the issues by
the consent of the parties, or by the use of alternative means of
dispute resolution as provided in subchapter IV of this chapter;
(7) inform the parties about the availability of one or more
alternative means of dispute resolution, and encourage use of
such methods; (8) require the attendance at any conference held
pursuant to paragraph (6) of at least one representative of each
party who has authority to negotiate concerning resolution of
issues in controversy; (9) dispose of procedural requests or
similar matters; (10) make or recommend decisions in accordance
with section 557 of the APA; and (11) take other action
authorized by agency rule consistent with the APA.
Two important points should be emphasized with respect to
this list. First, the Administrative Law Judge obviously is in
many ways the functional equivalent of a trial judge in federal
or state court. Receiving relevant evidence, ruling on offers of
proof, holding conferences, disposing of procedural matters, and
regulating the course of hearings obviously involve the very
essence of the judicial function. (Equally obvious, many of the
functions enumerated in § 556(c) require Administrative Law
Judges to exercise judicial-type discretion and judgment.)
Second, the underlined passages in the list above emphasize
a less obvious, but important, aspect of the administrative Law
Judge's role. Recent changes in federal law,28 and § 556(c) in
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Resolution Act of 1996, Act Oct. 1996, P.L. 104-320, 110 Stat.
3870 (amending, inter alia, 5 U.S.C. §§ 569, 571, 571 note, 573,
574, 575, 580, and 28 U.S.C. § 1491, and 41 U.S. § 605).
29
5 U.S.C. § 556(c) was amended by §4 of the Administrative
Dispute Resolution Act, Pub. L. No. 101-552, 104 Stat. 2736, 2737
(1990).
30
Administrative Conference of the U.S., THE ADMINISTRATIVE
DISPUTE RESOLUTION ACT: GUIDANCE FOR AGENCY DISPUTE RESOLUTION SPECIALISTS 3
(1992) (hereafter, GUIDANCE FOR AGENCY DISPUTE RESOLUTION SPECIALISTS).
31
See L. Ray, Emerging Options in Dispute Resolution, 75
A.B.A. JOURNAL 66 (June, 1989). Among the standard publications
on ADR in the 1990's, there are ALI-ABA, ALTERNATIVE DISPUTE
RESOLUTION: HOW TO USE IT TO YOUR ADVANTAGE: ALI-ABA COURSE OF STUDY MATERIALS
(1996); Jay Grenig, Alternative Dispute Resolution with Forms (2d
ed 1997).
11
particular,29 remove any doubt that Administrative Law Judges can
be authorized to go beyond a narrow or rigid version of the
judicial role. In a phrase, the changes involve "alternative
dispute resolution," a topic which warrants separate treatment
in this Manual.
C. Alternative Dispute Resolution and Administrative Law
1. General Background
One of the most significant legal developments during the
past three decades has been a strong movement toward using
alternatives to formal adjudication in the resolution of
disputes. A term frequently employed to describe this movement
is "alternative dispute resolution" (ADR or dispute resolution).
The term itself, ADR, actually is a short-hand label which covers
a lot of territory. It denotes an open-ended, evolving set of
techniques and concepts. It is an "inclusive"30 and elastic
term, which embraces not only established concepts such as
negotiation, arbitration and mediation, but also a growing
variety of innovations and hybrids31. As the words themselves
imply, perhaps the most important common denominator linking
various ADR techniques is their nature as alternatives --
alternatives to formal litigation as a means of resolving
disputes.
The term "ADR" eludes precise definition. A wide assortment
of procedural devices -- some of which have not yet been invented
-- could fairly be classified as ADR. As a concept, ADR is still
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32
See Ray, supra note 31, at 67, and GUIDANCE FOR AGENCY DISPUTE
RESOLUTION Specialists, supra note 30 at 4-7.
33
See text supra accompanying note 28, and infra
accompanying notes 70-76.
12
evolving. The main qualification for being classified as ADR
seems to be that the technique or process offers a substitute for
formal adjudication.
Despite the open-ended quality of ADR as a concept, ADR
still is susceptible to classification and organizing principles
of one kind or another. One of the typical ways of classifying
ADR techniques is to conceive of them in terms of a spectrum or
continuum of methods, arranged according to the degree of control
remaining in the hands of the parties32. At one end of the
spectrum are procedures where the parties retain virtually
complete control, with no input from neutrals or non-parties.
Here, we would find the very traditional concept of voluntary,
unstructured negotiation between (or among) the parties. At the
other end of the spectrum are procedures where the parties
surrender control over resolution of the dispute to some third
party. There, we would find another traditional concept, binding
arbitration. With binding arbitration, the result of the
arbitrator's decision is indistinguishable, as a practical
matter, from adjudication by a court. Between the extremes is a
wide range of techniques and devices which, for the most part,
share one feature -- the intervention of some third party who
plays variations on the theme of mediation.
2. Relevance of ADR to Administrative Law Judges.
Familiarity with ADR, as a concept and process, is likely to
become an important part of the competent ALJ’s professional
qualifications. Even without the Administrative Dispute
Resolution Act,33 ADR would be a topic of considerable
significance to Administrative Law Judges. If nothing else,
familiarity with ADR techniques and concepts can help avoid time-
consuming litigation by enhancing the judge's ability to foster
negotiations and settlements between parties. Many ADR
approaches are quite adaptable and fully consistent with agency
rules and the organic acts governing particular agencies.
Certainly, almost all agencies have a policy of favoring
appropriate settlements as an alternative to formal
adjudications.
An ALJ therefore may be able to borrow ideas from ADR, adapt
them to pending cases, and encourage resolution of disputed
matters without formal adjudication. In a sense, ADR is not just
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34
Ray, supra note 31 at 67.
35Cf., Administrative Conference of the United States,
Recommendation 86-7, Case Management as a Tool for Improving
Agency Adjudication, 1 C.F.R. § 305.86-7 (1993). (As discussed in
the Preface and elsewhere in this Manual, the termination of the
Administrative Conference (ACUS) was statutorily recognized under
Public Law 104-52, title IV, 109 Stat. 480 (Nov. 19, 1995). The
last CFR to reproduce the ACUS Recommendations in full appears to
be the 1993 edition. After ACUS was dismantled, the chapter of
the CFR relevant to ACUS recommendations was removed pursuant to
61 Fed. Reg. 3539 (Feb. 1, 1996).
13
an important and evolving assortment of techniques for avoiding
formal litigation. It is a state of mind -- a willingness to
entertain alternatives and to re-examine assumptions about formal
litigation.
In any event, ADR has become a part of administrative law
and a fact of life for administrative law judges. However,
before discussing the extension of ADR into administrative law,
it is advisable to discuss some ADR techniques and devices.
Although the following list is far from complete, and does not
purport to be exhaustive, it summarizes a number of ADR
techniques and devices which should be relevant to Judges.
(1). Informal, unstructured settlement negotiations34.
Negotiated agreements always have been, and probably always will
be, an alternative to formal adjudication. No citation is needed
to support the fact that most cases (upwards of 90% or more) are
settled without going to trial.
(2). Structured case management devices.35 Although not
commonly included in ADR taxonomies, and although an extremely
broad concept, structured case management devices can be used as
ADR tools. Within the concept of structured case management are
such devices as court or agency rules which systematically
regulate the parties' pre-trial preparation. As one study has
indicated, negotiations and settlements can be facilitated (and
formal litigation therefore avoided) if the parties are forced,
by rule or judge's order, to evaluate their own cases.
[S]ome lawyers . . . seem to find it
difficult to squarely face their own
situations early in the life of a lawsuit.
Sometimes counsel have difficulty developing
at the outset a coherent theory of their own
case . . . . Sometimes [they] are so pressed
MANUAL FOR ADMINISTRATIVE LAW JUDGES
36
Brazil, Kahn, Newman, & Gold, Early Neutral Evaluation:
An Experimental Effort to Expedite Dispute Resolution, 69
JUDICATURE 279 (1986) (emphasis added).
37
Mullins, Alternative Dispute Resolution and the
Occupational Safety and Health Review Commission, 5 AD. L. J.
555, 568-69 (1991). (The Occupational Safety and Health Review
Commission, however, amended its rules to eliminate fact-pleading
in 1992. 57 FR 41676 (Sept. 11, 1992). However, with respect to
the FCC, see 63 FR 690, at 1002, 1007, 10022 (January 7, 1998)
(referring to requirement imposed for fact-pleading in formal
complaints against common carriers.)
38
GUIDANCE FOR AGENCY DISPUTE RESOLUTION SPECIALISTS, supra note 36
at 5, and Ray, supra note 31 at 67; Administrative Conference of
the United States, RECOMMENDATION 86-3: AGENCIES' USE OF ALTERNATIVE
MEANS OF DISPUTE RESOLUTION, 1 CFR § 305.86-3 (1993) (at Appendix--
Lexicon of Alternative Means of Dispute Resolution)[hereafter,
AGENCIES' USE OF ALTERNATIVE MEANS OF DISPUTE RESOLUTION], reprinted in
ADMINISTRATIVE CONFERENCE, SOURCEBOOK: FEDERAL AGENCY USE OF ALTERNATIVE MEANS
14
by other responsibilities that they . . .
systematically analyze their own cause only
when some external event forces them to do
so.36
As one example of ways to force parties to analyze their
cases early on, rules governing pleadings might require the
parties to be specific about the factual bases of the allegations
contained in the complaint and answer. The parties, or at least
their lawyers, would then need to examine the case more closely,
instead of making broad, general assertions in their pleadings
which could cover almost any conceivable state of facts. In other
words, an agency might impose a kind of hybrid fact-pleading on
the parties37. Or, by rule or a judge's order, parties may be
required to file a report with the judge summarizing their
settlement efforts. These types of techniques differ from
various types of mediation because no judge or third party has
personally intervened in an effort to mediate directly between
the parties. The rules or orders themselves impel the parties to
focus on their cases, and may even force the parties to begin
negotiating because they must report to the judge.
(3). Mediation. Mediation generically is the use of a
neutral to help the parties reconcile their differences38. Put
MANUAL FOR ADMINISTRATIVE LAW JUDGES
OF DISPUTE RESOLUTION 113, 117-8 (1987).
39Standards of Conduct for Mediators, #I, adopted in 1994 by
the American Arbitration Association and the Society for
Professionals in Dispute Resolution, reprinted in Sara A. Cole,
Nancy H. Rogers, and Craig A. McCain, 2 MEDIATION: LAW POLICY AND
PRACTICE, Appendix D, p. 2 (1994). (Emphasis added.) Another Code
for mediators states: "It is the mediator's responsibility to
assist the disputants in reaching a settlement. At no time should
a mediator coerce a party into agreement." Code of Professional
Conduct developed by the Center for Dispute Resolution, Denver,
Colorado, #1, reprinted in Edward A. Dauer, et al., 2 Manual of
Dispute Resolution: ADR Law & Practice, Appendix G-1, Art. 1
(1996)(noting that the code was drafted by Christopher Moore,
PhD, CDR Associates).
40See generally, Sara A. Cole, Nancy H. Rogers, and Craig A.
McCain, MEDIATION: LAW POLICY AND PRACTICE (1994).
15
colloquially, the mediator is a neutral go-between, ideally the
proverbial "honest broker." The classic mediator has no power at
all to impose an outcome or render a decision. In fact, one set
of standards for professional conduct of mediators expressly
states, “Self-determination is the fundamental principle of
mediation. It requires that the mediation process rely upon the
ability of the parties to reach a voluntary, uncoerced
agreement.”39 Nor is the mediator ordinarily bound to follow any
set procedures, rules of evidence, agenda, or approach. Indeed,
an important advantage of mediation is its inherent flexibility
of form and approach. Unless there are constraints to the
contrary, a mediator can meet with all parties together, or
separately, or at some times together and at other times
separately. Techniques and tactics can vary40. The mediator in
one dispute may engage in the equivalent of shuttle diplomacy,
going back and forth between the parties, communicating offers
and counter-offers and the mediator's own views. In another
dispute, the same mediator may insist that all parties sit down
together with the mediator and engage in some genuine
communication with each other. Whatever the procedures and
tactics may be, the mediator's goal is to help the parties reach
an agreement acceptable to all of them.
(4). Conciliation. The distinctions between
conciliation and mediation may be fuzzy, but at least one lexicon
of ADR terminology implies that there is a difference in degree
between the two concepts. The word "conciliation" is used to
MANUAL FOR ADMINISTRATIVE LAW JUDGES
41
Ad Hoc Panel on Dispute Resolution and Public Policy,
National Institute for Dispute Resolution, Paths to Justice:
Major Public Policy Issues of Dispute Resolution 36-37 (1983),
reprinted in Administrative Conference of the U.S., SOURCEBOOK:
FEDERAL AGENCY USE OF ALTERNATIVE MEANS OF DISPUTE RESOLUTION 44-45 (1987).
42
See AGENCIES' USE OF ALTERNATIVE DISPUTE RESOLUTION, supra note
38, in Appendix; Paths to Justice, supra note 41 at 37, reprint
at 45.
43
See GUIDANCE FOR AGENCY DISPUTE RESOLUTION EXPERTS, supra note 30
at 6, and Brazil, Kahn, Newman, & Gold, supra note 31. Two
federal regulations expressly referring to early neutral
evaluation are 14 CFR § 17.17 and 17.31 (2000) (FAA, Procedures
for Protests and Contract Disputes). Reference to “neutral
evaluation” in the ADR context are found at 45 CFR § 74.91 (2000)
(Department of Health & Human Services, Awards and Subawards to
Institutions of Higher Education, Hospitals, etc.) and 45 CFR §
2540.230 (2000) (Department of Health & Human Services, grievance
procedures re: Corporation for National and Community Service).
16
refer to situations where the neutral must reduce tensions and
improve communication among the parties "in volatile conflicts
where the parties are unable, unwilling, or unprepared to come to
the table to negotiate their differences."41
(5). Facilitating. Another first cousin to mediation,
facilitating (or facilitation) seems to refer to neutrals who
intervene procedurally (e.g., to conduct meetings and coordinate
discussions), but who avoid becoming involved in resolving
disputed substantive issues. In other words, a facilitator
concentrates on promoting negotiation and settlement by using
procedural devices to bring the parties together, but does not
intervene actively in the substance of the parties' positions or
negotiations.42
(6). Neutral evaluation, or early neutral evaluation.
This process, often employed early in the course of a dispute,
generally entails a neutral factfinder, possessed of substantive
expertise if needed, who evaluates the merits of the parties'
cases. The evaluation, often in writing, is non-binding, but it
gives the parties an idea of how an objective decision maker
might perceive the strengths and weaknesses of their respective
positions. Several courts and the Departmental Appeals Board of
the U.S. Department of Health and Human Services have established
early neutral evaluation programs of one sort or another.43
(7). Factfinding. This process involves a neutral or a
MANUAL FOR ADMINISTRATIVE LAW JUDGES
44
See GUIDANCE FOR AGENCY DISPUTE RESOLUTION SPECIALISTS, supra note
30 at 6; AGENCIES' USE OF ALTERNATIVE DISPUTE RESOLUTION, supra note 38,
in Appendix. Rules of the National Credit Union Administration
expressly refer to possible authorization of early neutral
factfinding. 12 CFR § 709.8(c)(2) (2000).
45
See Dauer, supra note 39 at 5.01, p. 5-5.
46
Federal Rules of Evidence, Rule 706 (a)(2000).
47
GUIDANCE FOR AGENCY DISPUTE RESOLUTION SPECIALISTS, supra note 36
at 6-7.
48Id. See also Administrative Conference of the U.S., AGENCY
USE OF SETTLEMENT JUDGES, RECOMMENDATION 88-5, 1 C.F.R. § 305.88-5
(1993).
49
Joseph & Gilbert, Breaking the Settlement Ice: The Use of
Settlement Judges in Administrative Proceedings, 3 ADMIN. L. J.
571, 573 (1989-90).
17
panel of neutrals, typically with relevant technical expertise,
who make advisory findings of facts on disputed matters.
Factfinding often involves informal presentation by each party of
its case to the factfinder(s). After the factfinder(s) render
their findings, the parties can continue to negotiate44. As one
textbook on dispute resolution has noted, factfinding by neutral
experts has the potential to become particularly important in
cases where the disputes orbit around complex technological,
scientific, or other data from specialized fields45. Rule 706 of
the Federal Rules of Evidence already allows a federal court to
appoint expert witnesses on its own motion or on the motion of a
party.46
(8). Settlement Judge. The settlement judge is a
fairly recent hybrid of special interest to administrative law
judges. The settlement judge basically is a mediator or neutral
evaluator47. What distinguishes the settlement judge from other
types of mediators and neutrals is the fact that the settlement
judge is typically an administrative law judge from the agency
which is adjudicating the dispute48. The settlement judge,
simply put, is (usually) an agency administrative law judge who
is specially assigned to undertake mediation-type efforts in an
appropriate case, but who is not assigned to decide that case.
The settlement judge has been described as "an ingenious
device,"49 because it preserves the very real advantages of
MANUAL FOR ADMINISTRATIVE LAW JUDGES
50
See Mullins, supra note 37 at 560.
51
5 U.S.C. §§ 554(d), 557(d)(1994). See also, Joseph &
Gilbert, supra note 49 at 582-84.
52See, Joseph & Gilbert, supra note 49 at 585-86; Mullins,
supra note 37 at 560-61, 591-99.
53
5 CFR § 2423.25 (2000) (FLRA); 18 CFR § 385.603 (2000)
(FERC); 24 CFR § 180.620 (2000) (HUD); 29 CFR § 18.9
(2000)(Department of Labor, general rules of practice and
procedure); 29 CFR § 2200.101 (2000) (Occupational Safety &
Health Review Commission); 47 CFR § 1.244 (2000) (FCC); 48 CFR §
6302.30 (1991)(DOT Board of Contract Appeals).
For an interesting critique of a proposal that the NLRB use
settlement judges, see Erin Parkin Huss, Note: Response to the
Experimental Role of Settlement Judges in Unfair Labor Practice
Proceedings, 37 ARIZ. L. REV. 895 (1995).
18
having a judge actively involved in the settlement process, while
simultaneously avoiding the problems which could arise if the
judge who is to decide the case becomes too actively involved in
settlement negotiations50. Among other advantages, an agency
administrative law judge appointed to serve as a settlement
judge: (1) is free of constraints such as the APA's prohibitions
on ex parte contacts;51 (2) brings to the negotiation process
authority which stems from being a judge; (3) has a familiarity
with the subject-matter which is born of experience in presiding
over the agency's cases; and (4) has the flexibility of a
mediator as to the tactics and strategies which can be
employed52. Among the agencies using settlement judges are the
Federal Labor Relations Authority (FLRA), Department of Housing
and Urban Development (HUD), the Federal Energy Regulatory
Commission (FERC), the U.S. Department of Labor, the Occupational
Safety and Health Review Commission (OSHRC), and the Federal
Communications Commission (FCC).53
(9). Minitrial. The word "minitrial" is somewhat
misleading. A minitrial does involve presentations by each party
in a hearing-type setting. However, the presentations are given
before senior officials, of each party, who are authorized to
settle the case. Thus, a minitrial actually is a structured
settlement process. Each side, after agreeing on details of the
procedure, presents a highly abbreviated version of its case to
the senior officials, who are sometimes aided by a neutral.
These senior officials, authorized to settle the dispute, can see
MANUAL FOR ADMINISTRATIVE LAW JUDGES
54
See e.g., AGENCIES' USE OF ALTERNATIVE DISPUTE RESOLUTION, supra
note 38 in Appendix -- Lexicon of Alternative Means of Dispute
Resolution; GUIDANCE FOR AGENCY DISPUTE RESOLUTION SPECIALISTS, supra note
30 at 7.
55
GUIDANCE FOR AGENCY DISPUTE RESOLUTION SPECIALISTS, supra note 36
at 7. Agency regulations expressly referring to minitrials in the
ADR context include the FAA, 14 CFR § 17.31 (2000); the Federal
Energy Regulatory Commission (FERC), 18 CFR § 385.604 (2000); and
the Department of Justice, 28 CFR § 35.176 (2000)
(nondiscrimination on the basis of disability in state and local
government services).
56
5 U.S.C. § 556(c)(1994).
57
See for example, 16 C.F.R. § 3.42(c)(7) (2000)(Federal
Trade Commission, Rules of Practice for Adjudicative
Proceedings); 29 C.F.R. § 417.6 (2000) (Procedures for Removal of
Local Labor Organization Officers); 49 C.F.R. § 386.54
(2000)(Motor Carrier Safety Regulations).
58
For example, 14 C.F.R. § 1264.117(b)(3) (2000)(NASA,
Implementation of the Program Fraud Civil Penalties Act of 1986,
Authority of the presiding officer); 18 C.F.R. § 157.205
19
for themselves how their case and that of the other party (or
parties) could be perceived at a full-fledged trial, thus
providing a basis for more realistic negotiations54. Agencies
which have used minitrials include the Army Corps of Engineers
(contract and environmental disputes), NASA; the Department of
the Interior; the Department of Energy, and FERC.55
(10). Conference. Although omitted from some lists of
ADR techniques, the good old-fashioned pre-hearing or other
conference, presided over by a Judge (or other hearing official),
has substantial ADR potential and should not be ignored. Unless
there are some very good reasons to the contrary, a Judge holding
a conference with the parties should, almost as a matter of
routine, explore the possibilities for settlement. The APA
expressly authorizes conferences for the settlement or
simplification of issues,56 and agency procedural rules typically
contain virtual boiler-plate language authorizing ALJs and other
hearing officers to hold conferences for the settlement or
simplification of issues57. Moreover, several agencies have
regulations explicitly providing, in various contexts, for
settlement conferences.58
MANUAL FOR ADMINISTRATIVE LAW JUDGES
(2000)(FERC, Interstate Pipeline Blanket Certificates, Notice
Procedure); 33 CFR § 20.202(e) (2000) (Coast Guard, powers of
administrative law judges).
59
For one example of cases which enforce such
contractual agreements, see Grigson v. Creative Artists
Agency, LLC, 210 F. 3d 524 (5th Cir. 2000) (applying
equitable estoppel against production company and actor
alleging tortious interference with a distribution
agreement).
60
See, 7 U.S.C. § 136a(c)(2)(B)(iii) (1994) (regarding
arbitration to determine compensation for development of
government-required data); 29 U.S.C. § 1401 (1994)
(arbitrating amount of liability for withdrawal from certain
kinds of pension plans).
61
See Ray, supra note 31 at 67.
20
(11) Arbitration. In terms of its practical effect,
arbitration is only a step or so removed from adjudication. The
arbitrator, like a judge, is a neutral (supposedly) who is
authorized to resolve a dispute between or among parties.
Generally, the parties will make some kind of presentation to the
arbitrator, in the equivalent of a hearing. (Also, there may be
a panel of arbitrators, rather than a single arbitrator.)
However, the arbitrator is not necessarily required to follow the
lawbooks, either substantively or procedurally. The parties
themselves may select the arbitrator, agree on the procedures to
be followed, and even determine the criteria for the arbitrator's
decision -- although much depends on the kind of arbitration
being conducted. For example, at one extreme, the original
negotiation of a commercial transaction between two parties may
result in contractual provisions under which the parties agree to
submit all (or certain) disputes arising under the contract59.
At the other extreme, but quite rarely, one may find examples of
mandatory arbitration being imposed by law on the parties60. In
between, there are any number of possible variations on the theme
of arbitration, but one key variable is whether the arbitration
will result in a binding decision or have merely an advisory
effect.61
3. Confidentiality.
There is one crucial aspect to mediation, variations on
mediation, and ADR in general which must be emphasized, even in a
summary treatment of the subject -- confidentiality. Mediators
MANUAL FOR ADMINISTRATIVE LAW JUDGES
21
and other ADR neutrals often communicate ex parte and obtain
information on a confidential basis. The neutral or mediator may
be told, in confidence, that a party's bargaining position is
substantially different from what the party regards as an
acceptable compromise. Without the possibility for
confidentiality, the effectiveness of neutrals in ADR would be
seriously jeopardized. The Administrative Conference has
summarized this need for confidentiality in a way which hardly
can be improved upon:
Most ADR techniques, including
mediation, non-binding arbitration,
factfinding and minitrials, involve a neutral
third party who aids the parties in reaching
agreement. . . . A skillful mediator can
speed negotiations and increase chances for
agreement by holding separate confidential
meetings with the parties, where each party
may give the mediator a relatively full and
candid account of its own interests (rather
than its litigating position), discuss what
it is willing to accept, and consider
alternative approaches. The mediator, armed
with this information but avoiding premature
disclosure of its details, can then help to
shape the negotiations in such a way that
they will proceed most directly to their
goal. The mediator may also carry messages
between the parties, launch 'trial balloons,'
and act as an agent of reality to reduce the
likelihood of miscalculation. This structure
can make it safe for the parties to talk
candidly and to raise sensitive issues and
creative ideas. . . .
With all of these neutrals, many of the
benefits of ADR can be achieved only if the
proceedings are held confidential.
Confidentiality assures the parties that what
is said in the discussions will be limited to
the negotiations alone so they can be free to
be forthcoming. This need extends to the
neutral's materials, such as notes and
reports, which are produced solely to assist
the neutral in the negotiation process and
which others could misconstrue as indicating
MANUAL FOR ADMINISTRATIVE LAW JUDGES
62
Administrative Conference of the U.S., ENCOURAGING
SETTLEMENTS BY PROTECTING MEDIATOR CONFIDENTIALITY, RECOMMENDATION NO.
88-11, 1 C.F.R. § 305.88-11 (1993) (emphasis added)
[hereinafter PROTECTING MEDIATOR CONFIDENTIALITY]. As noted
elsewhere in this Manual, after ACUS was abolished, this
C.F.R. chapter was removed, pursuant to 61 Fed. Reg. 3539
(1996)
63See, e.g., 5 U.S.C. § 574 (1994 & Supp. V 1999),
formerly numbered as 5 U.S.C. § 584, but renumbered pursuant
to the Administrative Procedure Technical Correction Act,
Pub. L. No. 102-354, 106 Stat. 944 (August 26, 1992). See
generally, Administrative Conference, MEDIATION: A PRIMER FOR
FEDERAL AGENCIES (1993).
22
a bias against some party or interest. This
is why many mediators routinely destroy their
personal notes and drafts and return all
other materials to the parties. . . .62
However, absolute confidentiality cannot be guaranteed, and
there are situations where disclosure could be required. Of
particular significance to federal agencies and ALJs are certain
provisions of the Administrative Dispute Resolution Act which on
the one hand prohibit disclosure of any “dispute resolution
communication,” but then allow disclosure under several
exceptions contained that Act, including disclosures which are
judicially determined to be necessary to prevent manifest
injustice or public harm.63
Nevertheless, it is especially important, in this Manual for
Administrative Law Judges, to emphasize the confidentiality
aspects of much ADR. An ALJ accustomed to presiding over formal
evidentiary hearings is likely to have developed a strong mind-
set favoring placing everything on the record and avoiding even
the appearance of secretive dealings. For formal adjudications
this is highly appropriate. However, if appointed to serve as a
settlement judge or as some other kind of neutral, the Judge must
adapt -- sometimes quickly -- to the need for confidential, even
ex parte, communications.
4. The Extension of ADR into Administrative Law
Although impetus for the ADR movement originally stemmed
MANUAL FOR ADMINISTRATIVE LAW JUDGES
64
See, Edwards, Alternative Dispute Resolution:
Panacea or Anathema, 99 HARVARD L. REV. 668 (1986); Ray,
Emerging Options in Dispute Resolution, 75 A.B.A.J. 66
(June, 1989); Riggs & Dorminey, Federal Agencies' Use of
Alternative Means of Dispute Resolution, 1 ADMIN. L. J. 125,
126 (1987); Sander, The Variety of Dispute Resolution, 70
F.R.D. 111 (1976).
65
For example, see the APA's provisions for formal
adjudications: §§ 554, 556, 557 (1994).
66
For example, see Bernard Schwartz, ADMINISTRATIVE
LAW: A CASEBOOK 62-65(4th ed. 1994).
67
Harter, Dispute Resolution and Administrative Law,
29 VILL. L. REV. 1393, 1403, n. 46 (1983-84). See generally,
AGENCIES' USE OF ALTERNATIVE MEANS OF DISPUTE RESOLUTION, supra note
38.
68
Crowell & Pou, Appealing Government Contract
Decisions: Reducing the Cost and Delay of Procurement
Litigation with Alternative Dispute Resolution Techniques,
1987 RECOMMENDATIONS AND REPORTS OF THE ADMINISTRATIVE CONFERENCE 1139;
Crowell & Pou, Appealing Government Contract Decisions:
Reducing the Cost and Delay of Procurement Litigation with
Alternative Dispute Resolution Techniques, 49 MD. L. REV. 183
(1990).
23
from discontent with the judicial system,64 extension of ADR into
administrative law was both predictable and natural. For one
thing, agency adjudications involving the right to a full
evidentiary hearing are all but indistinguishable, functionally,
from full evidentiary hearings before a state or federal court65.
For another, such formal agency adjudications far outnumber the
federal court caseload66. Quantitatively and qualitatively the
net result has been considerable judicialization of our
administrative law system67. As ADR gained momentum in state and
federal court systems, it was almost inevitable that ADR would be
transplanted into the federal agencies.
The extension of ADR to administrative law during the past
twenty years or so can be summarized with three key words:
experimentation, implementation, and legislation. During the
1980's various federal agencies experimented with ADR techniques
and procedures. For example, one early development was the
application of ADR to government contracting disputes68. Other
MANUAL FOR ADMINISTRATIVE LAW JUDGES
69E.g., Edelman, Carr, & Simon, ADR at the U.S. Army
Corps of Engineers, Pou, Federal Agency Use of ADR: The
Experience to Date, and Robinson, ADR in Enforcement Actions
at the U.S. Environmental Protection Agency, in CONTAINING
LEGAL COSTS: ADR STRATEGIES FOR CORPORATIONS, LAW FIRMS, AND GOVERNMENT
(Fein, ed. 1987); A Colloquium on Improving Dispute
Resolution: Options for the Federal Government, 1 ADMIN. L.
REV. 399 (1987) (entire issue devoted to this colloquium);
Mullins, supra note 37, at 558-59.
70
Administrative Dispute Resolution Act, Pub. L. No.
101-552, 104 Stat. 2736 (1990) (with changes to section
numbering in Title 5 made by the Administrative Procedure
Technical Amendments Act, Pub. L. No. 102-354, 106 Stat. 944
(1992)) (codified mainly at 5 U.S.C. §§ 571-83, with
codification of miscellaneous provisions in various sections
of titles 9, 28, 29, and 41). Further amendments were made
by the Administrative Dispute Resolution Act of 1996, Act
Oct. 1996, P.L. 104-320, 110 Stat. 3870. These amendments
modified several provisions of the 1990 Act, among them 5
U.S.C. §§ 571, 574 (confidentiality provisions), 580, and
583.
To convey a somewhat more precise picture of the scope
of the original 1990 Act, it should be noted that its
provisions adding to or amending the U.S. Code will be found
at 5 U.S.C. §§ 571-83 (1994 & Supp. V 1999) (general
provisions, definitions, confidentiality, arbitration); 5
U.S.C. § 556(c)(1994) (ALJ authority); 9 U.S.C. § 10
(arbitration, judicial review)(1994); 41 U.S.C. § 605
(public contract disputes)(1994); 29 U.S.C. § 173 (1994 &
Supp IV 1998)(Federal Mediation & Conciliation Service
authority); 28 U.S.C. § 2672 (1994) (tort claims); and 31
U.S.C. § 3711(a)(2) (1994) (government claims). Pub. L. No.
101-552, 104 Stat. 2736, as amended by Administrative
Procedure Technical Amendments Act of 1991, Pub. L. No. 102-
354, 106 Stat. 944 (1992).
71
In addition to the 1996 amendments mentioned supra
note 70, federal statutes dealing specifically today with
24
agencies and kinds of agency actions followed suit, experimenting
and implementing69. Then came the legislation, starting in 1990.
In a sense, the first Administrative Dispute Resolution Act
(ADR Act)70 was a culmination of earlier experimentation and
implementation, and a forerunner of more legislation71. The 1990
MANUAL FOR ADMINISTRATIVE LAW JUDGES
ADR and federal agencies include 12 U.S.C. §
4806(e)(1994)(requiring pilot program of ADR by federal
agencies regulating banks and credit unions); 20 U.S.C. §
1415(e)(1994 & Supp. IV 1998)(expressly listing mediation of
disputes involving children with disabilities in educational
institutions receiving federal funding); and 26 U.S.C. §
7123 (1994 & Supp. IV 1998) (directing IRS to establish ADR
procedures, added in 1998 by P.L. 105-206).
72
Pub. L. No. 101-552, § 3(a).
73Id. at § 3(b)(see 5 U.S.C. § 581 note (1994).
74Id. at § 4 (see 5 U.S.C. § 581 note).
75Id. at § 4(a), codified at 5 U.S.C. § 556(c)(1994).
76Id. at § 4(b).
77
5 U.S.C. § 572(b)(1994).
78
5 U.S.C. § 572(c)(1994).
79
5 U.S.C. § 574 (1994 & Supp. V 1999).
25
ADR Act still remains the most significant piece of federal
legislation because, among other things, it required each federal
agency to: (1) review its programs and adopt policies addressing
the use of ADR;72 and (2) designate a senior official as the
agency's dispute resolution specialist, to be responsible for
implementing the ADR Act and relevant agency policies73. The ADR
Act also removed any doubt concerning a federal agency's
authority to use ADR where the parties agree74. It also
authorized administrative law judges to use or encourage the use
of ADR and to require at settlement conferences the attendance of
parties' representatives who are authorized to negotiate
concerning disputed issues75. The ADR Act also added a new
subchapter to Chapter 5 of title 5 of the U.S. Code entitled
"ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE
PROCESS."76 Among other things, this new subchapter: (1)
provided criteria for an agency's use in evaluating the
appropriateness of ADR;77 (2) stated that ADR procedures
authorized under the ADR Act are voluntary and supplemental in
nature;78 (3) went into considerable detail regarding
confidentiality and communications which are made during the
course of ADR processes;79 and (4) contained, again in
arbitration procedures.80
For the foreseeable future, administrative law judges and
other agency hearing officers will encounter more -- not less --
emphasis on ADR. Familiarity with ADR, as a concept and a
process, is likely to become as much a part of the competent
administrative law judge's professional qualifications as the
ability to write a decision or substantive knowledge of the
applicable law.
