Exposing the federal bureaucracy’s blurry courts

Many federal agencies prevent regular Americans from understanding what they are up to by obscuring the work being conducted by their little-known administrative law courts (ALCs). This is an injustice because administrative agencies are obligated to be transparent about their work for the people they serve.

There are at least 34 of these agency courts, submerged within various executive branch departments, independent agencies, and executive sub-agencies. Many of these courts are nested, employing a set of administrative law judges (ALJs) and administrative appeals judges, all of whom answer to the agency.

There is not a great deal of public information about these courts, and what is available is confusing. Many ALCs inconsistently list their annual caseloads, providing scant information for some years and not others. Six of these courts possess incomplete or missing data on annual case loads when looking to the past 10 years.

Seven ALCs omit any public information about their ALJ hearings or cases, while the websites of two agencies—Department of Transportation (DOT) and the Federal Aviation Administration—have been “under construction” for quite some time now.

The DOT instead outsources its limited case information to Regulations.gov, where its adjudicative history is mixed in with the thousands of other documented materials. This makes it incredibly difficult to distinguish the department’s adjudicatory functions from its rulemaking activities.

The Department of Interior’s ALC fails to catalogue cases by month or year, making it impossible to keep an accurate count of adjudication across time. And while most agencies feature an official page for hearings and staff, the International Trade Commission (ITC) provides the bare minimum by only listing individual bios of its ALJs. The ITC provides zero information regarding its administrative case history or what matters are currently being examined.

A similar issue exists for sub-agencies that house ALCs. While the Food and Drug Administration (FDA) possesses its own court system, all information on its cases is blended in with its parent agency, Health and Human Services (HHS). The FDA does not catalogue its own ALJ decisions. Instead, there are just over 800 HHS cases that simply mention “FDA”.

It is unclear how many of these were actually FDA matters or if the FDA was merely referenced in an HHS hearing. This raises an ID problem not just for the FDA’s ALCs but for sub-agencies as well.

Four federal agencies that house ALCs—the Federal Communications Commission, Office of Financial Institution Adjudication, and the Social Security Administration—have holes in their data. This is to say that these agencies feature online pages that list a limited number of cases across the last four or five years. This paints an incomplete picture of what types of cases and how many these agencies have overseen.

Then there are the confusing codenames. Some agencies, like the General Service Administration (GSA), operate an in-house tribunal by an alternatively specific name: “The Civilian Board of Contract Appeals (CBCA)”. (Where most ALCs manage cases entirely in-house, the CBCA serves as an independent legal arbiter, handling disputes between multiple executive branch agencies.) This disconnect between ALC and agency titles only helps to deter the likelihood of public scrutiny.

One oddity with ALCs like the Small Business Administration (SBA) is that there appear to be a fixed number of decisions listed in their caseload each year. For the last 10 years, the SBA’s court has managed exactly 100 cases a year, according to its database. The why of this oddly specific number is not publicly disclosed on the website.

Another form of bureaucratic secrecy can be found with how certain agencies “upgrade” their online databases. New transparency problems always seem to crop up. This can be seen with the Securities and Exchange Commission’s (SEC) recently revised website, where under the ALC’s “Opinions and Adjudicatory Orders” section, the agency has only complicated the search process for people to easily locate case-specific information.

Before the update, each case provided a parenthetical description of the form of document you would open if clicking on the case (i.e., “initial decision”, “Opinion of the Commission”, etc.). This made it easy to quickly identify the type of document.

After the update, this is no longer the case. According to Russ Ryan of New Civil Liberties Alliance, “all you see is a naked reverse-chronological list of case names and numbers. If you want to know what happened in those cases, you need to open up each linked .pdf, one at a time, just to see what it is.”

The SEC’s algorithmic manipulation has made it even more difficult for members of the public to ascertain what the agency is up to.

The cloak of secrecy surrounding administrative law courts is growing increasingly problematic. Many of these agencies have made it nearly impossible for outsiders to figure out what issues are being adjudicated behind closed doors. Other ALCs fail to catalogue cases by date, while various sub-agency courts even lack an identity separate from the parent agency.

This all raises a major public accountability dilemma for the federal bureaucracy. Congress should step in by directing agencies to provide accurate, up-to-date information regarding the adjudicatory history of every ALC. The Office of Management and Budget can facilitate this process by issuing a guidance to federal agencies, ensuring that ALC data is uniform and accurately reported.

Every American has the right to know what these administrative tribunals are up to. These courts are funded at taxpayer expense, subject to congressional appropriations, and often adjudicate substantial matters of public concern. For accountability, we need greater transparency from ALCs, not the current bureaucratic, blurry results.