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The
intermediate report or the preliminary decision is that of the ALJ in most cases. Sometimes
the agency will request that the ALJ forward the record without decision in some state systems.
In practice, the ALJ decision may be the last decision because the parties are unable to get the
agency head to review or because the party has exhausted their time, patience, or money. |
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The
ALJ has full authority to run all aspects of the prehearing conference and the subsequent
formal adjudication hearing. The ALJ has the responsibility to make a full record, to rule on
all
motions, and usually had the duty to make the first level decision based upon that record. |
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Central
panel procedures involve an effort to attempt to eliminate possible bias and to promote
efficiency. In this system, the ALJ is employed by an ALJ "agency" that assigns the
ALJ to the
particular agencies as they may be needed. This contrasts with systems where the ALJ is an
employee of the agency that makes the final decision and where the ALJ may be subject to the
same pressures as any other employee. Several states use one form or another of the central
panel process but most do not. Central panel systems seek to minimize the type of agency
intrusion into ALJ decisionmaking that may have been present in the "Belmon" review of social
security ALJs. |
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The
ALJ may be disqualified for reasons similar to those disqualifying a judicial judge. The
motion must be raised at the hearing and the ALJ will rule on it. The ALJ decision does not
disqualify him or her and often will not be immediately subject to appeal and the hearing will go
on. The agency head will review the ruling later. Prior involvement as in the same matter or
bias will often be the basis for a motion to disqualify. |
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Legislation
usually seeks to limit or prevent ex parte communication with the ALJ.
Communication with the ALJ should take place after notice to the other parties so all parties
have a chance to be present. |
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The
ALJ may be under a statutory or judicial obligation to provide a full and fair hearing. This
obligation may be at its maximum when the nongovernmental party is not represented by a
lawyer. The goal is to bring forth every issue necessary for a complete record on all issues.
The ALJ may have to question witnesses and urge the introduction of necessary evidence if the
unrepresented, nongovernmental party does not seem capable. There is rarely a right to
appointed counsel in agency proceedings. Federal social security benefits hearings are an
example of situations which may invoke the full and fair hearing requirement. |
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The
ALJ will be primarily responsible for the conduct of the prehearing conference in the
adjudication context. Often agency rules will prescribe in detail the nature of the prehearing
conference. |
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The
ALJ decision is likely to be sent to the agency head for final decisionmaking, although
some agency rules may provide that the agency grant permission before it will be considered.
On review, the agency head has the full power to substitute his or her judgment for that of the
ALJ on all issues of law, fact, and credibility. The only exception will be that since the agency
did not see the witnesses, the agency is not in a position to make demeanor credibility
determinations. |
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1. Adjudication, Formal
