Sinclair/Tribune HDO Deadlines New for FCC, Common Elsewhere

The FCC attaching deadlines to the Sinclair/Tribune hearing designation order to help speed the proceeding was a relative novelty for the agency, but other federal agencies frequently use deadlines for administrative law proceedings, administrative law judges and other experts told us. Brooke Ericson, chief of staff for Commissioner Mike O'Rielly, who spearheaded the HDO deadlines language, said O'Reilly has about 50 other agency process changes he hopes to pitch to Chairman Ajit Pai. She said it includes others dealing with the ALJ process like eliminating such hearings.

"There are other ways you conduct a hearing ... without invoking the ALJ," such as paper hearings at the bureau level, the aide said. O'Rielly has been critical of the ALJ process (see 1806220011). The FCC didn't comment.

Whether deadlines lead to quicker results is tough to say, emailed Richard Goodwin, Federal ALJ Conference president. Deadlines can vary widely even within agencies, due to rules and U.S. code, with guidance sometimes conflicting, he said. "After 20+ years on the bench with four (4) different agencies ... no two cases are identical."

The Sinclair/Tribune HDO includes a requirement the FCC ALJ announce an end date for the hearing process after it begins and issue a scheduling order with a set date for resolution within 15 days of when written appearances from the parties are due (see 1807190060). FCC ALJ Richard Sippel didn't comment.

The precedent set in the HDO means all future referrals to the FCC ALJ would come with deadlines, Ericson said. She said it's not clear if the deadlines language will speed the process, but at the least it will give parties more certainty. If the parties challenge the FCC through an ALJ hearing, "it will be informative to us" to see what deadlines Sippel sets, she said. If those deadlines are missed, "we'll have to cross that bridge," she said.

Nothing in the Administrative Procedure Act specifically speaks to speed, said administrative law scholar Kent Barnett, associate professor, University of Georgia School of Law. An agency can fill any gaps in the statute through rules or procedural guidance, including setting deadlines, he said.

An agency can put a time limit on an ALJ's handling of a case -- especially if it's not an enforcement case where a respondent asked for the hearing, emailed American University professor of practice in administrative law Jeffrey Lubbers. In a deal like Sinclair/Tribune, where the FCC itself is charged with approval, a hearing is probably optional, so if the agency decides to ask for ALJ consideration first, it could ask the judge to do it within a certain time, he said. He noted differing complexity of cases before ALJs throughout the government, so it's hard to compare one agency to another in its hearings' judges.

An ALJ told us deadlines sometimes can be critical, such as a case involving, for example, an individual seeking disability benefits, and even without a deadline the judge will try to move cases along because no jurist wants a case lingering. He said a chief ALJ often sets time standards, telling judges certain cases should be out in a specific time frame. But litigation can be unpredictable and discovery sometimes can be complicated and take months or longer, the judge said. Parties often are the ones pushing to extend deadlines as they try to ensure everything they might need in an appeal is in the record, the ALJ said. It's only when the opinion is ready to write that the judge has 100 percent control over the time frame, he noted. A discovery period deadline isn't uncommon since it keeps the parties and a case moving along, but typically, such deadlines also are aspirational and don't carry consequences if missed, the judge said.

For complex cases at agencies like the FCC, deadlines are constraints more on the parties than on the ALJ, said Peter Strauss, Columbia Law School Betts professor of law emeritus. With parties likely to push hard for procedures that will extend hearings, ALJs -- concerned about reversal for constraining them -- may end up practicing "defensive medicine," he said. But the FCC by instituting deadlines might be giving its ALJ “a certain amount of spine or ammunition," Strauss said.

ALJs, like federal district judges, sometimes get criticized for both moving too slow and moving too fast, Barnett said. ALJ proceedings typically move faster than at district court because of limited or no discovery and no jury, he said. Some agencies operate under federal rules of evidence, meaning proceedings there take longer, he said.

With President Donald Trump issuing an executive order this month allowing agency heads to directly appoint ALJs instead of getting them through the traditional competitive hiring process, there's concern of big turnover among ALJ ranks at agencies and about covert political or ideological hiring, Barnett said. Most agencies hire their ALJs from the Social Security Administration, which has close to 1,700, and they already went through Office of Personnel Management hiring procedures, he said. It's not clear if ALJs can be removed other than going through the Merit Systems Protection Board complaint process, as the White House argued in Lucia vs. SEC decided by the Supreme Court earlier this year, and litigation is likely over the issue in the near future, Barnett said. The FCC had said with commissioners having hired Sippel, the executive order doesn't apply (see 1807110047).