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43-435: The BPAI was primarily made up of an Appeals Division and a Trial Division. The Appeals Division, with over 100 Administrative Patent Judges , handled appeals of patent examiner rejections, with sections adjudicating different technology areas. The Trial Division, with 11 Administrative Patent Judges as of 2008, handled contested cases or interference proceedings . The BPAI was headed by a Chief Administrative Patent Judge with

86-546: A Vice Chief. As of mid-2013, the Chief Administrative Patent Judge was James Donald Smith. An applicant could appeal the examiner's decision to the BPAI. The appeal procedure was described in chapter 1200 of the U.S. Manual of Patent Examining Procedure (MPEP). Typically, appeals to the BPAI were conducted ex parte . Decisions of the BPAI were typically rendered as an opinion . Decisions of

129-680: A complaint filed by the agency with the Merit Systems Protection Board (MSPB) established and determined after an APA hearing on the record before an MSPB ALJ. Only ALJs receive these statutory protections; "hearing officers" or "trial examiners", with delegated hearing functions, are not similarly protected by the APA. In Lucia v. SEC , decided in June 2018, the Supreme Court held that ALJs are Inferior Officers within

172-645: A model for other states. By 2015, over half of states had created such panels. Most U.S. states have a statute modeled after the APA. In some states, such as New Jersey , the state law is also known as the Administrative Procedure Act. Unlike federal ALJs, whose powers are guaranteed by federal statute, state ALJs have widely varying power and prestige. In some state law contexts, ALJs have almost no power; their decisions are accorded practically no deference and become, in effect, recommendations. In some cities, ALJs are at-will employees of

215-409: A period of 373 days. Other federal agencies may request the U.S. Office of Personnel Management to lend them Administrative Law Judges from other federal agencies for a period of up to six months. Some states, such as California , follow the federal model of having a separate corps of ALJs attached to each agency that uses them. Others, such as New Jersey, have consolidated all ALJs together into

258-405: A selection from those candidates, generally giving preference to veterans. OPM is also responsible for federal employee retirement applications for FERS and CSRS employees. OPM makes decisions on federal employee regular and disability retirement cases. OPM also oversees FEHB and FEGLI, the health insurance and life insurance programs for Federal employees. However, it does not oversee TSP, which

301-413: A single agency that holds hearings on behalf of all other state agencies. This type of state adjudicatory agency is called a " central panel agency ". Many states have a central panel agency, but the agency does not handle all the hearings for every state agency. United States Office of Personnel Management The United States Office of Personnel Management ( OPM ) is an independent agency of

344-476: A sitting federal ALJ. In American administrative law , ALJs are Article I judges under the U.S. Constitution . As such, they do not exercise full judicial power, essentially, the power over life, liberty, and property. Article I (legislative) judges and courts are not constrained to rendering opinions for only a "case or controversy" before them and may render advisory opinions on a purely prospective basis, such as, e.g. , Congressional reference cases assigned to

387-493: A trial judge: an ALJ may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. ALJs are limited as they have no power to sanction unless a statute provides such a power. Instead, the ALJ may refer a matter to an Article III Court to seek enforcement or sanctions. The process of agency adjudication is currently structured so as to assure that ALJs exercise independent judgment on

430-677: A widely recognized patent law scholar, argued that, since 2000, the process of appointing judges to the BPAI has been unconstitutional, because the judges were appointed by the Director of the U.S. Patent and Trademark Office rather than by the Secretary of Commerce (a "Head of Department" under the Appointments clause of the Constitution). This problem has since been rectified and current Administrative Patent Judges are appointed by

473-687: Is the case with the Federal Energy Regulatory Commission , or simplified and less formal procedures, as is the case with the Social Security Administration . The Administrative Procedure Act of 1946 (APA) requires that federal ALJs be appointed based on scores achieved in a comprehensive testing procedure, including a four-hour written examination and an oral examination before a panel that includes an Office of Personnel Management representative, an American Bar Association representative, and

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516-769: The Court of Federal Claims . Agency ALJs do not have the power to offer such advisory opinions, as it would be in violation of the power afforded them under the Administrative Procedures Act, 5 U.S.C. §557. Unlike the agency, ALJs are not policy or rule makers. ALJs are generally considered to be part of the executive branch, not the judicial branch, but the APA is designed to guarantee the decisional independence of ALJs. They have absolute immunity from liability for their judicial acts and are triers of fact "insulated from political influence". Federal administrative law judges are not responsible to, or subject to,

559-718: The National Association of Hearing Officials . The constitutionality of the use of ALJs by executive branch administrative agencies has become the subject of frequent challenges in judicial branch courts during the early 21st century. In Lucia v. SEC (2018), the U.S. Supreme Court ruled that ALJs are officers of the United States and thus subject to the Appointments Clause of the Constitution—requiring their appointment to be made by

602-761: The National Labor Relations Board 's use of ALJs. At least one court has ruled that the challenges would "neuter" the National Labor Relations Act and are unlikely to succeed, and that the National Labor Relations Board 's use of ALJs is likely constitutional. The United States does not have administrative courts in the judicial branch. In contrast, in the United Kingdom the Tribunals, Courts and Enforcement Act 2007 recognises legally qualified members of

645-737: The President . The United States Civil Service Commission was created by the Pendleton Civil Service Reform Act of 1883. The commission was renamed as the Merit Systems Protection Board (MSPB), and most of commission's former functions—with the exception of the federal employees appellate function—were assigned to new agencies, with most being assigned to the newly created U.S. Office of Personnel Management (OPM) on January 1, 1979, and Reorganization Plan No. 2 of 1978. On January 1, 1979,

688-557: The United States Supreme Court has recognized that the role of a federal administrative law judge is "functionally comparable" to that of an Article III judge . An ALJ's powers are often, if not generally, comparable to those of a trial judge, as ALJs may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. Depending upon the agency's jurisdiction, proceedings may have complex multi-party adjudication, as

731-463: The United States government that manages the United States federal civil service . The agency provides federal human resources policy, oversight, and support, and tends to healthcare ( FEHB ), life insurance ( FEGLI ), and retirement benefits ( CSRS and FERS , but not TSP ) for federal government employees, retirees, and their dependents. OPM is headed by a director, who is nominated by

774-562: The ALJs with research, writing, drafting of opinions and orders, and assisting with the administration of hearings and other trial-like adjudications. Furthermore, Attorney Advisors usually have practiced as lawyers in the particular field which the ALJ possesses expertise in. The United States Supreme Court has recognized that the role of a federal administrative law judge is "functionally comparable" to that of an Article III judge. An ALJ's powers are often, if not generally, comparable to those of

817-593: The BPAI could be further appealed to the United States Court of Appeals for the Federal Circuit (CAFC) under 35 U.S.C.   § 141 . The decisions of the CAFC may also be reviewed on a discretionary basis by the United States Supreme Court . The U.S. Supreme Court is the ultimate authority on the judicial standards for patentability. The United States Congress , however, can change

860-723: The Chinese Ministry of State Security spy agency obtained access to 22.1 million SF-86 records of US federal employees, contractors, and their friends and family. Representing one of the largest breaches of government data in U.S. history, information that was obtained and exfiltrated in the breach included personally identifiable information such as Social Security numbers , as well as names, dates and places of birth, and addresses. New updates regarding this security breach came to light on September 24, 2015. The agency then indicated that additional evidence showed that 5.6 million people's fingerprints were stolen as part of

903-692: The Federal Administrative Law Judges Conference, the Association of Administrative Law Judges, which represents only Social Security ALJs, and the Forum of United States Administrative Law judges. Professional organizations that include both state and federal ALJs include the National Association of Administrative Law Judiciary , the ABA National Conference of Administrative Law Judiciary , and

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946-563: The Office of Personnel Management was established with the dissolution of the U.S. Civil Service Commission following the passage and signing of the Civil Service Reform Act of 1978 into law by then President Jimmy Carter (43 FR 36037 , 92  Stat.   3783 ). The United States Office of Government Ethics , responsible for directing executive branch policies relating to the prevention of conflicts of interest on

989-534: The President or an otherwise delegated officer—but they do not require Senate confirmation as they are merely considered "inferior" officers. In 2023, the case of SEC v. Jarkesy raised the issues of whether the use of ALJ factfinding as a replacement for a jury trial violates the Seventh Amendment and the nondelegation doctrine . In June 2024, the U.S. Supreme Court ruled by a 6-3 majority that

1032-584: The SEC's use of ALJs in administrative proceedings for regulatory violations analogous to securities fraud violates the Seventh Amendment because there was a right to a jury trial in fraud actions at common law, then refused to decide any other issues. While Lucia and Jarkesy were specifically focused on the SEC, there are other pending cases in lower-level courts (such as those brought by SpaceX and Trader Joe's ) which brought similar challenges to

1075-405: The Secretary of Commerce. Administrative law judge An administrative law judge ( ALJ ) in the United States is a judge and trier of fact who both presides over trials and adjudicates claims or disputes involving administrative law . ALJs can administer oaths , take testimony , rule on questions of evidence , and make factual and legal determinations. In the United States,

1118-605: The U.S. Constitution . In a 2013 majority opinion signed by Associate Justice Antonin Scalia , the U.S. Supreme Court explained: The dissent overstates when it claims that agencies exercise "legislative power" and "judicial power" ... The former is vested exclusively in Congress ... the latter in the "one supreme Court" and "such inferior Courts as the Congress may from time to time ordain and establish" ... Agencies make rules ... and conduct adjudications ... and have done so since

1161-871: The agency, making their decisional independence potentially questionable. In some agencies, ALJs dress like lawyers in business suits , share offices, and hold hearings in ordinary conference rooms. In other agencies (especially certain offices of the Division of Workers' Compensation of the California Department of Industrial Relations ), ALJs wear robes like Article III judges , are referred to as "Honorable" and "Your Honor", work in private chambers, hold hearings in special "hearing rooms" that look like small courtrooms , and have court clerks who swear in witnesses. State ALJs can be generalists or specialize in specific fields of law, such as tax law. Professional organizations that represent federal ALJs include

1204-463: The appearance of independence and neutrality in the administrative law system. While technically employees of the agencies they work for, administrative law judges (or ALJs) are hired exclusively by the OPM, effectively removing any discretionary employment procedures from the other agencies. The OPM uses a rigorous selection process which ranks the top three candidates for each ALJ vacancy, and then makes

1247-599: The beginning of the Republic. These activities take "legislative" and "judicial" forms, but they are exercises of—indeed, under our constitutional structure they must be exercises of—the "executive Power." Most of the agencies below have only a few dozen ALJs. In 2013, the Social Security Administration (SSA) had by far the largest number of ALJs at over 1,400, who adjudicate over 700,000 cases each year. The average SSA hearing process occurs over

1290-411: The bill as a response to accusations of fraud and concerns about security clearance background investigations. The bill would fund the expenses for investigations, oversight activities and audits from the revolving fund. The bill was in response to a find that between 2002 and 2012, OPM's revolving fund had tripled, totaling over $ 2 billion, or 90% of OPM's budget. In February 2014, President Obama signed

1333-497: The bill into law. The fund's history goes back to the early 1980s, where it was used for two main activities: training and background investigations for government personnel. Between 2018 and 2019, as part of a larger initiative to restructure the executive branch, President Donald Trump (R) submitted a proposal to congress to merge OPM into the General Services Administration (GSA) while returning

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1376-571: The completion of an "independent report" issued by the federally-chartered National Academy of Public Administration was added to the 1,120 page bill S-1790, a.k.a. the National Defense Authorization Act for Fiscal Year 2020 . According to its website, the mission of the OPM is "recruiting, retaining and honoring a world-class force to serve the American people." The OPM is partially responsible for maintaining

1419-399: The evidence before them, free from pressures by the parties or other officials within the agency. The procedure for reviewing an ALJ's decision varies depending upon the agency. Agencies generally have an internal appellate body, with some agencies having a Cabinet secretary decide the final internal appeals. Moreover, after the internal agency appeals have been exhausted, a party may have

1462-774: The federal personnel policy-making components under the direct authority of the Executive Office of the President of the United States to the Office of Management and Budget in the White House . House Rep. Gerry Connolly (D-VA), chairman of the Subcommittee on Government Operations under the House Committee on Oversight and Reform, was the fiercest critic of the proposal. During a congressional hearing, Connolly claimed: "The administration wants to take over

1505-425: The hacks, more than five times the 1.1 million originally estimated. The total number of individuals whose records were disclosed in whole or part, including Social Security numbers and addresses, remained at 21.5 million. In July 2013, Rep. Blake Farenthold (R-Texas) introduced the Office of Personnel Management Inspector General Act. The bill would increase oversight of OPM's revolving fund. Farenthold introduced

1548-498: The meaning of the Appointments Clause of the United States Constitution. This means that they must be appointed by the president or by heads of departments (but without also requiring Senate advice and consent , unless Congress amends the law to require that). ALJs usually hire Attorney Advisors, who serve a role similar to judicial law clerks of Article III judges . For example, Attorney Advisors assist

1591-462: The merit policy-making functions and put them into the highly politicized environment of the White House itself, away from direct congressional oversight and inspector general review." Political pressure against the proposal peaked when a provision barring the President from transferring any function, responsibility, authority, service, system or program that is assigned in law until 6 months after

1634-408: The national system of administrative law tribunals as members of the judiciary of the United Kingdom who are guaranteed judicial independence . ALJs cannot be recognized as members of the judicial branch of government (without first completely ejecting them from their home agencies in the executive branch), because to do so would violate the bedrock principle of separation of powers as embodied in

1677-437: The part of Federal executive branch officers and employees, was formerly a part of OPM, until being spun off as an independent agency in 1989. In 1996 the investigation branch of the OPM was privatized, and USIS was formed. In 2014, after several scandals, OPM declined to renew its contract with USIS and brought background investigations back in house under the short-lived National Background Investigations Bureau . In 2019,

1720-677: The patent laws and thus override a decision of the Supreme Court. An alternative path was a civil action against the Director of the United States Patent and Trademark Office in the U.S. District Court for the District of Columbia under 35 U.S.C.   § 145 . Any appeal arising from such a case would then be directed to the CAFC under 28 U.S.C.   § 1295 . In 2007, Professor John F. Duffy ,

1763-709: The responsibility for conducting federal background checks changed hands again when NBIB was dissolved and its functions given to the Defense Security Service, part of the Department of Defense , which was reorganized into the Defense Counterintelligence and Security Agency for the purpose. In April 2015, hackers working on behalf of the Jiangsu State Security Department , a provincial branch of

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1806-432: The right to file an appeal in the state or federal courts. Relevant statutes usually require a party to exhaust all administrative appeals before they are allowed to sue an agency in court. Administrative law judges may be employed by a "central panel" organization, which provides the judges with independence from agencies. The California Administrative Procedure Act created an early central panel in 1945, and it served as

1849-424: The supervision or direction of employees or agents of the federal agency engaged in the performance of investigative or prosecution functions for the agency. Ex parte communications are prohibited. ALJs are exempt from performance ratings, evaluation, and bonuses. 5 CFR 930.206. Agency officials may not interfere with their decision-making, and administrative law judges may be discharged only for good cause based upon

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