Labor & Employment Law

Administrative procedure - the authority of a successor Administrative Law Judge

Here is an interesting item from E.L. Lipman on his Within the Scope blog: "Practice Point: A New ALJ Could Mean a Whole New Schedule". Opening paragraph:

As part of an opinion issued today, a panel of the U.S. Court of Appeals for the District of Columbia Circuit held that a federal Administrative Law Judge?s power to regulate the course of proceedings (under the Securities and Exchange Commission?s rules), included the power to revisit and revise the earlier orders of a predecessor ALJ.

It's a point sometimes forgotten. If an administrative law judge is granted a power, then that power is held by whomever is the ALJ now. If, in the matter discussed in the post to which I have linked above, the original ALJ could change her earlier orders, then so can a successor ALJ unless some authority says otherwise.

EMM

NYPPL comment: G&G Shops, Inc. v NYC Loft Board, [New York State Supreme Court?s decision not officially reported] is a case in which the substitution of a hearing officer during an administrative proceeding was considered.

The initial hearing officer conducting a hearing involving G&G resigned during the course of the hearing. A second hearing officer was appointed and continued the hearing, eventually issuing a determination on a record that included the testimony heard only by the original hearing officer. G&G attempted to have the second hearing officer's determination overturned. The basic argument advanced by G&G was that in the event a hearing officer resigns during the course of the hearing:

1. The entire hearing should be recommenced before the second hearing officer; and

2. It was improper for the second hearing officer to have made decisions based on matters heard before the first hearing officer.

The court ruled that there was nothing illegal with the second hearing officer continuing rather recommencing the hearing "so long as the officer who makes the decision reviews all the evidence." The decision points out that "since staff turnover is to be expected, the rule suggested by [G&G] could result in days of wasted time on each case previously considered by the [first] hearing officer...."

The court observed that "so long as an adequate record is kept, there is no logical reason why a second hearing officer cannot take over the cases of his or her departing colleague."

Full post as published by New York Public Personnel Law on November 24, 2008 (boomark / email).