Declaration of Independence

Mike Scarcella

Corporate Counsel

2012-10-01 00:00:00.0

Federal administrative law judges workmostly out of the limelight, only occasionally attracting the attention that their district and appellate court counterparts do. One case now in the U.S. Court of Appeals for the D.C. Circuit is shining a light on these neglected jurists—and raising questions about the scope of their judicial independence.

J. Jeremiah Mahoney, the acting chief administrative law judge at the U.S. Department of Housing and Urban Development (HUD), alleged in a suit that the agency interfered with his independence by selectively assigning cases and failing to provide legal research resources. A federal trial judge in November dismissed the case, setting up a closely watched appeal that the U.S. Department of Justice is trying to stop in its tracks.

Mahoney's attorneys from Kirkland & Ellis, who are representing the judge pro bono, say the case presents a novel issue that goes to the core of the administrative judiciary: the ability of judges to serve independently within federal agencies. "Administrative law judges are on the front lines of administering justice in tens of thousands of cases every year," says Michael Williams, a Kirkland litigation partner in Washington. "The system depends on their fairness and their impartiality."

On the flip side, Justice Department lawyers, including Assistant U.S. Attorney Addy Schmitt in Washington, have urged the appeals court to shut down the litigation, saying that there's nothing exceptional about the claims. Mahoney, according to the government, doesn't have standing to sue.

Central to Mahoney's suit are allegations that department officials assigned cases on the basis of political considerations, not through a rotation system; engaged in secret communication with parties; and informed some litigants that Mahoney lacked authority to hear certain matters.

Mahoney said his supervisor, David Anderson, who retired last August as the head of the department's Office of Hearings and Appeals, steered the assignment of cases, giving Mahoney only certain types, like Indian housing matters, which he objected to only because of how they were assigned. The judge sued in part for an order requiring the Office of Personnel Management to designate a senior official to be responsible for investigating complaints about interference. He also sought $300,000 in compensatory damages to be donated to a charity of his choice.

"Although this matter has been a burden upon me, I am not bitter, and have no animosity toward the agency officials with whom I work," Mahoney said in an email.

Two judicial groups, the Federal Administrative Law Judges Conference, represented by White & Case, and the Forum of Administrative Law Judges, represented by Sidley Austin, are supporting Mahoney and plan to file friend-of-the-court briefs.

At HUD, administrative law judges hear disputes about, among other things, fair housing issues and claims of fraud in agency-administered programs. Hearings are open to the public. The chief administrative law judge, who heads the agency's Office of Hearings and Appeals, is appointed by the department secretary. Mahoney has served as an administrative judge at HUD for nearly four years.

Mahoney's supervisor says he never abused his authority. "Making sure management doesn't intrude on judicial decisions is important to me," says Anderson. "I have stayed out of that arena." Nor did he bypass the rotation system, he adds. The complexity of a case, a judge's experience, and the docket load all affect case assignments, he notes.

Last year U.S. District Judge James Boasberg said Mahoney did not allege that the supposed interference was done to influence how he decided cases. "In other words, his judicial independence was not compromised by, for example, a requirement that he rule a particular way in certain cases," the judge said in dismissing Mahoney's complaint.

Mahoney's allegations against the department, Boasberg ruled, could result in an unfair outcome for the parties. But Mahoney did not sue on the behalf of any litigant. "The court is not unsympathetic to Judge Mahoney's concerns; if his allegations are true, the court is inclined to agree that all is not well at HUD's" hearing office, Boasberg wrote.

Mahoney's lawyers contend that the judge has a right to judicial independence and that any attempt to undermine it causes him injury and, as such, gives him the right to sue. Litigants are not in a position to know whether senior officials at an agency are running interference, Williams adds. Though the D.C. Circuit has not assessed an administrative law judge's right to sue over such claims, the U.S. Court of Appeals for the Second Circuit has said that the Administrative Procedures Act gives such judges a qualified right to "decisional independence."

Schmitt and the Justice team, in urging the D.C. Circuit to uphold Boasberg's decision, argued that the New York appellate case is distinguishable because of the severity of the agency misconduct there. Justice lawyers said in court papers that despite Mahoney's "dramatic protestations" that his case is of exceptional importance, Boasberg's decision "correctly resolved straightforward and commonplace legal issues of standing, exhaustion, and the standards for retaliation and hostile work environment claims, and therefore the decision should be summarily affirmed."

A question for the D.C. Circuit, then, is whether there should be a line delineating the point at which an administrative law judge can challenge an agency in an action in federal district court.

White & Case partner Francis Vasquez Jr., representing the Federal Administrative Law Judges Conference, says there was "gross interference" in Mahoney's case. "The opinion below seemed to indicate there was no remedy for an administrative law judge in this situation," Vasquez notes.

The ability of an administrative law judge to use a federal trial court to sue over alleged interference, says Administrative Law Judge James Gilbert of the U.S. Postal Service, a vice president of the law judges conference, goes to the heart of an independent administrative judiciary.

"When an ALJ is subject to either political or other interference," he says, "the ALJ should have the right to assert that interference as a cause of action and seek an appropriate order from the district court to instruct the agency to cease the interference."

A version of this article first appeared in The National Law Journal, a sibling publication of Corporate Counsel.