The headline is actually slightly unfair, at least as to the constitutional rights part, but it's still funny.
Category Archives: Administrative Law
There I was getting all excited by this teaser link at Brian Leiter's blog, “How the APA Stole Christmas”.
Someone writing about the Administrative Procedure Act? In the holidays? What fun!
But no, it's about the American Philosophical Association job fair. Which, incidentally, sounds much worse than the AALS's version.
Further to my musings on constitutional limits on “acting” officials, a self-professed “Very Unimportant Government Lawyer With Nothing Better To Do” draws my attention to 5 USC 3346, which imposes a statutory limit of 210 days or so in which an official can be “acting” in the absence of a nomination to a post.
The statute doesn't explain who takes over if the 210+ day period lapses — I presume it's the next in line for the job, (unless the President designates someone else).
(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office –
(1) for no longer than 210 days beginning on the date the vacancy occurs; or (2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.
(b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.
(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve –
(A) until the second nomination is confirmed; or (B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned.
(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.
Hard-core separation of powers dorks will want to take a look at Doolin Security Savings Bank v. Office of Thrift Supervision 139 F.3d 203 & 156 F.3d 190, wherein among other fascinating things, a diverse panel of the DC Circuit agrees unanimously that the head of the Office of Thrift Supervision is an “Officer of the United States” and that the 210 day clock starts when an acting person starts in on his job and not when the vacancy occurs.
(Adlaw mavens may be startled at the discussion of harmless error in a separation of powers case. I was.)
Say hello to the Administrative Law Prof Blog, edited by Drury Stevenson (South Texas) & Cynthia Quinn (Hawaii).
The perfect topic for a blog IMHO, but very very hard to pull off.
It's one of the great fetishes of US law that triers of fact, be they juries, judges, or administrative officials (including ALJs and Immigration Judges), deserve deference for their credibility determinations as they saw the live witness and the reviewer of the cold record did not. We don't question jury determinations — they're a black box, and juries are not called upon to give reasons for their decisions as to who to believe. The same is not true, however, of either judges or administrators. We expect them to issue reasoned opinions, and call foul when they fail to and when the reasons they give fail to hold water.
Indeed, one of the puzzles of administrative law is the so-called Universal Camera problem — suppose that an initial trier of fact reached one decision on the evidence but that the higher-ups in the agency appeals process reached an opposite conclusion. When the matter goes to the court of appeals, what weight should the court put on the trier's views? The issue implicates two competing values in administrative law: on the one hand the great deference to the front-line assessment of credibility, on the other hand the command in the Administrative Procedure Act that the agency, in deciding a matter, has full power to determine it (i.e. that its hands are not tied by lower-level officials). It's very hard for both of these to be true at once: if we give weight to demeanor then the front-line official has de facto power to limit the decisions of his/her bosses. If on the other hand we don't give any extra credence to the factual findings of the person who actually received the evidence, we've undermined an ancient principle of Anglo-American jurisprudence. We square that circle by saying that the trier's decision is part of the record that binds the agency. So it's free to make any decision, but its decision must be based on the record. The trier, we say only somewhat convincingly, hasn't bound the agency, he's just made part of the record.
Comes now Judge Posner in Apouviepseakoda to ask a really good question about credibility determinations by administrative agencies (and implicitly also by judges, although not juries):
The fact that she was testifying through an interpreter has a significance that my colleagues do not appreciate when they say that “The IJ spent 6 hours in a hearingroom, face to face, with Ms. Apouviepseakoda. We have never met her.” I take this to be an allusion to the common though not necessarily correct belief that being present when a witness testifies greatly assists a judge or juror in determining whether the witness is telling the truth. Even if so in general, it cannot be so when the witness is a foreigner testifying through an interpreter, especially if the judge cannot even hear the foreigner, but only the interpreter. Reading the facial expressions or body language of a foreigner for signs of lying is not a skill that either we or Judge Brahos possess.
We understand the dilemma facing immigration judges in asylum cases. The applicant for asylum normally bases his claim almost entirely on his own testimony, and it is extremely difficult for the judge to determine whether the testimony is accurate. Often it is given through a translator, and even if the applicant testifies in English, as a foreigner his demeanor will be difficult for the immigration judge to “read” as an aid to determining the applicant's credibility. Unfortunately, the Department of Homeland Security and the Justice Department, which share responsibility for processing asylum claims, have, so far as appears, failed to provide the immigration judges and the members of the Board of Immigration Appeals with any systematic guidance on the resolution of credibility issues in these cases. The departments have not conducted studies of patterns of true and false representations made by such applicants, of sources of corroboration and refutation, or of the actual consequences to asylum applicants who are denied asylum and removed to the country that they claim will persecute them. Without such systematic evidence (which the State Department's country reports on human rights violations, though useful, do not provide), immigration judges are likely to continue grasping at straws—minor contradictions that prove nothing, absence of documents that may in fact be unavailable in the applicant's country or to an asylum applicant, and patterns of behavior that would indeed be anomalous in the conditions prevailing in the United States but may not be in Third World countries—in an effort to avoid giving all asylum applicants a free pass. The departments seem committed to case by case adjudication in circumstances in which a lack of background knowledge denies the adjudicators the cultural competence required to make reliable determinations of credibility.
As a series of court decisions from around the country have made clear, our immigration courts — the administrative bodies that, among other things, hear asylum applications — are a disgrace. The major cause is underfunding, requiring the Immigration Judges to shoulder huge caseloads and make decisions at a speed that probably makes quality work next to impossible.
But even the pressures of the job don't excuse the conduct documented in Apouviepseakoda v. Gonzales, 05-3752 (7th Cir., Feb. 2, 2007). Nor, given that the Seventh Circuit has all the time it wants to reach a decision, does it excuse the majority decision to defer to an arbitrary and capricious decision. Judge Posner's dissent is far more persuasive than Judge Evans for the majority — although Posner here fails to persuade Judge Easterbrook, who is the third vote.
Posner points up errors of logic, and notes a judicial demeanor from hell, which together suggest that this was not a fair hearing. The best the majority can say is that the decision, although “odd” is not “so deeply flawed” as to be reversible. If we take it at face value, this looks like the rare case which turned on how deferential a reviewing court should be. But one could be forgiven for reading it as showing a great reluctance on the part of some judges to admit just how bad things are in some IJ's hearing rooms, for to do so would be to open the floodgates to immigration petitions and reversals.