Secretary of Education Review of Administrative Law Judge Decisions

Secretary of Education Review of Administrative
Law Judge Decisions

S ectio n 2 2 o f th e D rug-F ree Schools and C om m unities Act A m endm ents o f 1989 provides that a
d ecisio n o f an adm inistrative law judge review ing the term ination o f federal assistance to
ed u catio n al in stitu tio n s or agencies “shall be considered to be a final agency action.” T his
p ro v isio n d o es n ot preclude the Secretary o f E ducation from review ing such adm inistrative
law ju d g e d ecisions.

B e cau se sectio n 22 m akes an adm inistrative law ju d g e decision a final agency action for pu r­
p o se s o f ju d icial review, it d ep riv es the S ecretary o f the pow er to require exhaustion o f
secre ta rial review procedures b e fo re an aggrieved party m ay seek ju d icial review.

January 31, 1991

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
D e p a r t m e n t o f E d u c a t io n

This memorandum is in response to your request for our opinion whether
section 22 of the Drug-Free Schools and Communities Act Amendments of
1989 precludes the Secretary of Education from reviewing decisions of ad­
ministrative law judges concerning the termination of federal assistance to
educational institutions or agencies. You have also requested that, if section
22 does not forbid such review, we further consider whether exhaustion of
the procedures for secretarial review may be made a prerequisite for seeking
judicial review.
We conclude that the Drug-Free Schools and Communities Act Amend­
ments do not preclude the Secretary of Education from reviewing decisions
of administrative law judges under section 22. Our conclusion is supported
not only by the text and structure of the Act, but also by familiar principles
o f administrative law. We further conclude that the Secretary may not re­
quire litigants to exhaust the procedures for secretarial review before seeking
judicial review.

I.

Section 22 of the Drug-Free Schools and Communities Act Amendments
o f 1989, Pub. L. No. 101-226, 103 Stat. 1928, 1938 (codified at 20 U.S.C.

8
 §§ 1145g, 3224a) (“the Act”), permits institutions of higher education and
local education agencies to appeal to an administrative law judge (“ALJ”)
when the Secretary of Education (“the Secretary”) decides to terminate fi­
nancial assistance because of a failure to comply with the Higher Education
Act of 1965, 20 U.S.C. §§ 1001-1146a, or the Drug-Free Schools and Com­
munities Act of 1986, 20 U.S.C. §§ 3171-3227. Section 22 states that “[t]he
decision of the [administrative law] judge with respect to such termination
shall be considered to be a final agency action.”
On April 24, 1990, the Secretary published proposed regulations under the
Act. 55 Fed. Reg. 17,384. Under the proposed regulations, the decision
of an ALJ in an appeal under section 22 would be “the final decision of
the agency unless the Secretary on his or her own initiative or on request
by either party reviews the decision.” 1 Id. at 17,393 (proposed 34 C.F.R.
§ 86.410(b)(1)). The proposed regulations would further provide that the
ALJ’s decision would not take effect until the Secretary completed any re­
view. Id. (proposed 34 C.F.R. § 86.410(d)).
In response to the notice of the proposed rulemaking, three Members of
Congress submitted joint comments disputing the Secretary’s authority to
review the decisions of ALJs under section 22. Letter from Congressmen
Augustus F. Hawkins, William F. Goodling, and William D. Ford, to the
Office of the Secretary, U.S. Department of Education (June 8, 1990). Cit­
ing the section 22 directive that “[t]he decision of the judge with respect to
such termination shall be considered to be a final agency action,” id. at 1,
and an analysis by the Congressional Research Service, the Congressmen main­
tained that the Act precluded the Secretary from reviewing ALJ decisions.
On August 16, 1990, the Secretary published the regulations in final form.
55 Fed. Reg. 33,580. The Secretary rejected the contention that section 22
precluded secretarial review of ALJ decisions. Such a conclusion, he stated,
“w ould produce a result that is not only unprecedented w ithin the
Department’s experience and inconsistent with the organic statutes that gov­
ern the operations of the Department, but would also be subject to serious
constitutional question under the Appointments Clause.” Id. at 33,600. The
Secretary did, however, make one “clarifying change” to the regulations
relating to secretarial review so that they would “conform more closely to
the language of the statute.” Id. The final version of 34 C.F.R. § 86.410(b)(1)
thus provides:

The ALJ’s decision is the final decision of the agency. How­
ever, the Secretary reviews the decision on request of either party,
and may review the decision on his or her own initiative.

' T h e p arties w o u ld be the local ed u catio n agency o r institution o f h ig her education and a “desig n ated
D epartm en t o fficial,” to w hom the S ecretary w ould delegate his authority to m ake the initial decisio n to
term inate assistan ce. 55 Fed Reg. at 17,392 (proposed 34 C.F.R . § 86.402(a)).

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55 Fed. Reg. at 33,586. The question presented here is whether this regula­
tion is a lawful implementation of section 22.

II.

Section 22 provides that the ALJ’s decision “shall be considered to be a
final agency action.” 20 U.S.C. §§ 1145g(d), 3224a(e) (emphasis added).
This phraseology on its face suggests that Congress intended the ALJ’s deci­
sion to be final agency action in some particularized sense, not that it be
final in the general sense that no further review would be possible. Con­
gress did not provide that the ALJ’s decision “shall be” final agency action;
it provided that it “shall be considered to be” final agency action.2 It did not
provide that the ALJ’s decision shall be considered to be the final agency
action; it provided merely that the ALJ’s decision shall be considered to be a
final agency action. Had Congress intended ALJ decisions to be final in the
sense that no further agency review would be available, it would have at
least provided so expressly.3
Congress’ deliberate decision to have the ALJ’s decision “considered to
be a final agency action” we believe represents a conscious effort to harmo­
nize section 22 with the general body of administrative law authorities —
particularly the judicial review procedures of the Administrative Procedure
Act (“APA”) — which refer to “final agency action” as that action after
which judicial review is available. Thus, when Congress chose the some­
what unusual language that it did, we believe it intended that the ALJ’s
decisions be final only in the sense that judicial review would thereafter be
available.
Under the APA, “final agency action” is generally understood to mean
that action which is necessary and sufficient for judicial review. Title 5,
section 704, for example, provides that, “final agency action for which there
is no other adequate remedy in a court [is] subject to judicial review.” (Em­
phasis added.) There is an extensive body of precedent on the question
whether an agency action is final and, therefore, reviewable under the APA.
See, e.g., FTC v. Standard O il Co. o f California, 449 U.S. 232 (1980); C arter/
M ondale Presidential Comm., Inc. v. FEC, 711 F.2d 279 (D.C. Cir. 1983).
Under these authorities, an agency’s decision need not be its last word on a
subject to be considered “final agency action.” Indeed, the APA expressly
provides that an agency action can be “final” for purposes of the APA, and

2 B ec a u se “ final agency action” is a te rm o f art, th ere is, in fact, no substantive difference betw een these
tw o lo c u tio n s T h e lo c u tio n chosen, how ever, p la in ly teleg raphs th a t the term “final agency action"
w h ic h fo llo w s is to be understood to h a v e sp ecialized m eaning
3 U n e q u iv o ca l lan g u ag e that the A L J ’s decision “ shall be the final agency a ction” w ould, at a m ini­
m u m , p re se n t a q u e stio n as to w h eth er C ongress in ten d ed for the A L J decision to be final in the sense
th at n o fu rth e r a g en cy review is a v ailab le , alth o u g h it is unlikely that we w ould construe even this
la n g u a g e to e x p re ss an in te n t to fo rec lo se secretarial review , absent affirm ative evidence that C ongress
so in te n d e d . See d isc u ssio n infra.

10
thus for purposes of judicial review, even though it is subject to reconsidera­
tion or appeal to a higher authority within the agency.4 “Final agency action”
therefore is a familiar and well-developed term of administrative law refer­
ring to the action after which judicial review may be available.
Where Congress employs a term of art with a well-established meaning,
it is generally presumed in the absence of evidence to the contrary to have
intended that meaning to apply. See Moskal v. United States , 498 U.S. 103,
114 (1990). See also id. at 121 (Scalia, J., dissenting) (“when a statute
employs a term with a specialized legal meaning relevant to the matter at
hand, that meaning governs”) (citing M orissette v. United States, 342 U.S.
246, 263 (1952)).3 Section 22 therefore is most naturally read as a signal to
the respective parties and a direction to the courts that an ALJ’s decision
shall be considered to be a final agency action for purposes of determining
the availability of judicial review under 5 U.S.C. § 704. As under the APA,
section 22 should not be read to preclude further review of an A LJ’s deci­
sion within the agency, and particularly by the Secretary. Indeed, we are not
aware of any statute in which Congress, in an effort to foreclose further
agency review, directed that an inferior employee’s decision shall be final.
Nothing in the legislative history of this particular Act suggests an inten­
tion on the part of Congress to depart from the accepted meaning of the
term “final agency action” as it is generally used in administrative law.
There is neither a House nor a Senate committee report on the Act. There is
no comment upon the relevant portions of the Act in the Conference Report,
H.R. Rep. No. 384, 101st Cong., 1st Sess. (1989), or in the floor debates.
We would be especially hesitant to infer from such silence a congressional
intent to depart from the well-settled understanding of “final agency action.”
See M orissette , 342 U.S. at 263 (“In such case, absence of contrary direction
[by Congress] may be taken as satisfaction with widely accepted definitions,
not as a departure from them.”).
The conclusion that Congress did not intend section 22 to foreclose sec­
retarial review is further supported by the structure of the Act. The Act
explicitly provides for an “appeal” of the Secretary’s decision to an ALJ,

4 The APA states that:
E xcept as otherwise expressly required by statute, agency action otherwise final is final for
the purposes o f this section whether or not there has been presented or determined an applica­
tion for a declaratory order, for any form of reconsideration, or, unless the agency otherwise
requires by rule and provides that the action meanwhile is inoperative, for an appeal to supe­
rior agency authority.
5 U.S.C. § 704.
5 In M orissette, Justice Jackson explained:
[WJhere Congress borrows terms of art in which are accumulated the legal tradition and
m eaning o f centuries of practice, it presumably knows and adopts the cluster o f ideas that
were attached to each borrowed word in the body of learning from which it was taken and the
m eaning its use will convey to the judicial mind unless otherwise instructed. In such case,
absence of contrary direction may be taken as satisfaction with widely accepted definitions,
not as a departure from them.
342 U.S. at 263.

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who is an employee, or subordinate officer, of the Department of Education.6
See 20 U.S.C. § 1234(c) (‘T h e [administrative law] judges shall be officers
or employees o f the Department.”). If an ALJ’s decisions were “final” in the
sense that they were not subject to review by the Secretary, a decision by the
head o f a department could be reversed by his subordinate.7 According
finality as a matter of law to a subordinate’s decision would conflict with
the statutory commands that the “Department [of Education] shall be admin­
istered . . . under the supervision and direction of a Secretary of Education,”
20 U.S.C. § 3411, and that “[t]he Secretary shall be responsible for the
administration o f the programs authorized” by the Act. Id. § 3222(a).8 As
the preamble to the Secretary’s proposed rule stated, insulation of ALJ deci­
sions from secretarial review would mean that “the Secretary could not ensure
consistent interpretation of the law, or even correct manifestly erroneous
interpretations.” 55 Fed. Reg. at 17,387. An intent to divest the Secretary of
such authority seems especially improbable as to decisions with the clear
potential to strain federal-state relations, such as those surrounding the ter­
m ination o f federal funds for a local education agency.9
Interpreting section 22 so as to permit secretarial review of ALJ decisions
also conforms proceedings under section 22 with the general administrative
procedures under the APA. Under that statute, an “agency” may itself pre­
side over a trial-type hearing, or it may assign the case for a hearing before
a “presiding employee[].” 5 U.S.C. § 556(b). Unless otherwise provided by
statute, the “presiding employee[s]” to which the APA refers are ALJs. 5
U.S.C. §§ 556(b)(3), 3105. Under the APA, “ [w]hen the presiding em­
ployee [at a trial-type hearing] makes an initial decision, that decision then
becomes the decision of the agency without further proceedings unless there

6 A lthough the statute refers to an initial “determination by the Secretary,” 20 U.S.C. §§ 1145g(d),
3224a(e), the first determination to en d financial assistance would be made not by the Secretary but by
a “designated D epartm ent official” 55 Fed Reg. at 33,585 (to be codified at 34 C.F.R. §§ 86.304(a),
86.400(a)). The regulations set out “procedures governing appeals o f decisions by [that] designated
D epartm ent official." Id. § 86.400(a).
’ We do not believe it is anomalous under our interpretation that the statute permits the Secretary to
review an appeal from a decision that in theory was itself an appeal from “the Secretary’s” decision.
Because the initial decision is made n ot by the Secretary, but rather by his designee, the Secretary will
likely be considering the matter for the first time in reviewing the A L J’s decision. We would not think
it odd even if the same individual w ere both to make the initial determination and review the ALJ’s
decision. It would not be unreasonable to create a system under which an official is perm itted to
reconsider his initial determination w ith the benefit o f a record generated during trial-type proceedings
before an ALJ
• T he analysis appended to the final rule observes that such insulation would be “inconsistent with the
organic statutes that govern the operations o f the Department.” 55 Fed. Reg. at 33,600.
9 We find unpersuasive the assertion in the Congressional Research Service (“CRS”) analysis that the
absence of an explicit right in the Secretary to review an ALJ’s decisions, see, e.g., 20 U.S.C. § 1234a
(explicitly providing for secretarial review of ALJ decisions), im plies an intent not to confer such au­
thority here. M em orandum to House Com mittee on Education and Labor, from Kevin B. Greely, Con­
gressional Research Service, at 5 (June 4, 1990). Both 20 U.S.C. § 1234a and a sim ilar statute not cited
by C R S, 20 U.S.C. § 1234d, unlike section 22, appear in the context o f elaborate statutorily-mandated
review procedures where specification o f the Secretary’s power o f review might be expected. Because
o f the vastly different context in which section 22 appears, any inference based upon the existence in 20
U.S.C. § 1234, but not in section 22, o f an explicit right o f secretarial review would be unwarranted.

12
is an appeal to, or review on motion of, the agency within time provided by
rule.” 5 U.S.C. § 557(b). The APA further states that “[o]n appeal from or
review of the initial decision [of the presiding employee], the agency has all
the powers which it would have in making the initial decision except as it
may limit the issues on notice or by rule.” Id. The APA therefore contem­
plates that decisions by ALJs will be reviewable in precisely the manner
allowed by the Secretary’s regulations here. Decisions will be final unless
the parties or the “agency” seeks review, but if there is further review the
agency may exercise all of its powers as if the agency had itself presided
over the hearing.10
Accordingly, we conclude on the strength of the textual, structural and
historical evidence that Congress, in mandating that ALJ decisions under
section 22 “shall be considered to be a final agency action,” did not intend
to preclude further review of an ALJ’s decision by the head of the agency in
which the ALJ is employed, but rather intended only that the A LJ’s decision
be considered a final agency action for purposes of judicial review.

III.

The conclusion that the Act does not preclude review by the Secretary is
reinforced by the fact that the contrary conclusion would render the Act
constitutionally infirm. It is an elementary canon of construction that stat­
utes should be interpreted to avoid constitutional difficulties, provided the
adopted interpretation is reasonable. Gomez v. United States, 490 U.S. 858,
864 (1989); Commodity Futures. Trading Comm'n v. Schor, 478 U.S. 833,
841 (1986). If the Act were construed to forbid the Secretary’s review of an
ALJ decision, there would be presented serious constitutional questions re­
lating to the ALJ’s appointments and the lack of presidential control over
their activities.

Under the Appointments Clause, the President

shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint . . . Officers of the United States . . .

10 For purposes of this opinion, we view 5 U.S.C. § 557(b) as providing a model for adm inistrative
adjudication; however, we do not address whether that section actually governs hearings under the Act.
We need not reach that question, given our conclusion that decisions o f ALJs under section 22 are
reviewable whether or not 5 U.S.C. § 557(b) applies to hearings under the Act.
It is reasonable to look for guidance to sections 556 and 557 of the APA, even though m ost trial-type
hearings are not conducted pursuant to those provisions because the governing statutes under which
agencies make their determinations do not require that decisions be made “on the record after opportu­
nity for an agency hearing." See, e.g.. United Slates v. Florida East Coast Ry. Co., 410 U.S. 224, 234-
38 (1973). Where a trial-type hearing before an A U is available under regulations rather than under
the command o f the APA, agencies typically provide for review by higher authority. See, e.g., 18 C.F.R.
§ 385.711 (Federal Energy Regulatory Commission); 47 C.F.R. § 1.276 (Federal Communications C om ­
mission); 49 C.F.R. § 1115.2 (Interstate Commerce Commission); 40 C.F.R. § 124.91 (certain proceed­
ings of the Environmental Protection Agency).

13
 but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone,
in the Courts of Law, or in the Heads of Departments.
U.S. Const, art. II, § 2, cl. 2. Because the Secretary, who is the head of the,
Department, appoints the Department’s ALJs, 5 U.S.C. § 3105; 20 U.S.C. §
1234(b), (who are not confirmed by the Senate), they are properly appointed
only if they serve as “inferior officers.”
An ALJ whose decision could not be reviewed by the Secretary, however,
would appear to be acting as a principal officer o f the United States. He
would be an “Officer of the United States” because he would be exercising
“significant authority pursuant to the laws of the United States,” including
“determinations of eligibility for funds.” Buckley v. Valeo, 424 U.S. 1, 126,
141 (1976). And applying the criteria enumerated in Morrison v. Olson, 487
U.S. 654 (1988), he most likely would be a principal, not an “inferior,”
officer. Unlike the independent counsel at issue in Morrison, whose juris­
diction was limited to a single case, an ALJ has jurisdiction under the Act
over various proceedings in a whole category of cases relating to the termi­
nation of funds. Id. at 672. An ALJ’s tenure, unlike that of the independent
counsel, is not limited in duration. Id." And although both an ALJ and an
independent counsel are bound to follow agency regulations, id., the ALJ
would have a much greater opportunity than the independent counsel to
effectively “formulate” policy. By deciding a series of cases, the ALJ pre­
sumably would develop interpretations of the statute and regulations and fill
statutory and regulatory interstices comprehensively with his own policy
judgm ents. Given these characteristics of the office, and that the ALJs are
appointed not by the President but by the department head, interpretation of
section 22 to insulate ALJ decisions from review by the Secretary would
raise serious questions under the Appointments Clause.
The foreclosure of secretarial review would also be constitutionally sus­
pect under Article II because all executive power (other than purely ministerial
authority)12 must ultimately be subject to Presidential control. Article II
provides that the executive power “shall be vested in a President of the
United States of America,” U.S. Const, art. II, § 1, cl. 1, who alone is
responsible to “take Care that the Laws be faithfully executed.” U.S. Const,
art. II, § 3, cl. 4 .13 These constitutional provisions generally require that the

" Like the independent counsel, an A LJ is removable by another official in the executive branch, 487
U.S. at 671, but, unlike the independent counsel, an ALJ has the additional tenure protection of a pre­
rem oval hearing. 5 U.S.C. § 7521.
12 See, e.g., K endall v. United States ex rel. Stokes. 37 U.S. (12 Pet.) 524, 610-11 (1838); M arbury v.
M adison, 5 U.S. (1 Cranch) 137 (1803).
13 A unitary executive branch was the considered and deliberate choice of the Framers of the Constitu­
tion. T his is evident in contemporaneous exposition of the Constitution during the ratification period,
e.g.. T he Federalist No. 70, at 354-61 (A. Hamilton) (G. W ills ed. 1982); 2 Elliot’s Debates 480 (2d ed.
1836) (statem ent o f Jam es Wilson at P ennsylvania ratifying convention), in the contrast between Article
II and A rticle III, in which the judicial power is vested “ in one Suprem e Court, and in such inferior
Courts a s the Congress may from time to time ordain and establish,” U.S. Const, art. Ill, § 1 (emphasis
added), and in the contrast between A rticle II and the A rticle I legislative bicameralism.

14
President, either personally or indirectly through other executive officers, be
able to direct and countermand actions of subordinate executive officials
that entail the exercise of significant executive power. M yers v. United
States, 272 U.S. 52, 163-64 (1926); cf. Bowsher v. Synar, 478 U.S. 714, 721-
34 (1986); see generally Morrison v. Olson, 487 U.S. 654, 691-93 (1988).
The duties of ALJs under section 22 are generally executive in nature,
because the ALJs determine, on a case-by-case basis, the policy of an execu­
tive branch agency for the administration of a federal program. See Bowsher
v. Synar, 478 U.S. 714, 732-33 (1986); Buckley v. Valeo, 424 U.S. 1, 138
(1976); M urray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18
How.) 272, 279, 284-85 (1855); cf. Heckler v. Chaney, 470 U.S. 821 (1985).14
If section 22 were construed so that these decisions were the conclusive
determinations of an executive branch department, serious constitutional ques­
tions would be presented, given the restrictions on ALJ removal. ALJs can
be removed by their agencies only after the Merit Systems Protection Board
holds a hearing and finds cause for removal. 5 U.S.C. § 7521. See gener­
ally 5 C.F.R. §§ 930.201-930.216. The members of the Merit Systems
Protection Board are in turn protected by removal restrictions during their
seven-year terms. 5 U.S.C. § 1202(a), (d). ALJs are thus doubly insulated
from meaningful executive control. C f Bowsher, 478 U.S. at 726. A con­
clusion that their exercise of executive power is not subject to review by any
other executive branch official would therefore clearly be problematic under
Article II.15
Although the Supreme Court upheld the statute at issue in M orrison v.
Olson, which granted significant executive authority to an executive branch
official protected by a “for cause” removal restriction, we do not believe that
the existence of “for cause” removal authority over ALJs granted unreview-
able discretion would be sufficient to save the statute from constitutional
infirmity. In Morrison, the Court embraced the principle that the President’s
constitutional duty to take care that the laws be faithfully executed requires
some power to control or supervise subordinates, generally including the
power to remove them from their posts. 487 U.S. at 689-93, 696. The Court
simply reasoned that this general principle was not violated by a “for cause”

14 T he fu n ctio n s o f A L Js under section 22 can also be un d ersto o d as “ q u asi-ju d icial” in n ature. Cf.
Wiener v. United States, 357 U .S. 349 (1958); Humphrey's Executor v. United States, 295 U .S. 602
(1935). B ut as Morrison m akes clear, the m ere ch aracterizatio n o f a pow er e xercised by ex ecu tiv e
bran ch o fficials as “q u asi-ju d icial” does not affect the prim ary issue o f w hether rem oval restrictio n s
in terfere w ith the P resid en t’s discharge o f his c o n stitu tio n al duly to take care that the law s be faith fu lly
ex ec u te d 487 U S at 689-90.
15 Butterworth v. United States ex rel. Hoe, 112 U .S 50 (1884), is not to the contrary. In Butterworth,
certa in decisio n s o f the C o m m issio n er o f Patents w ere held not to be review able by the S e c re ta ry o f the
Interior. H ow ever, the C o m m issio n er o f Patents w as, as a p ractical m atter, the head o f a sep a ra te
e x ecu tiv e d ep artm en t, w ith the Secretary o f In terio r m erely p erform ing a "m in iste ria l” act in sig n in g
p a tent reg istratio n s. T hus, Butterworth does not address squarely the question o f the P re s id e n t’s c o n sti­
tutio n al po w ers o v er su b o rd in ate ex ecu tiv e officers. T h ere is, m oreover, no suggestion in Butterworth
th a t the C o m m issio n er o f Patents w as not subject to p resid en tial control through rem oval.

15
removal restriction in the highly unusual circumstances of the “independent
counsel,” where Congress perceived an inherent conflict between an unlim­
ited power of removal and the independence necessary for the counsel to
investigate and prosecute high executive branch officials. Id. at 692-93.
There simply is no similar conflict between an ALJ’s discharge of his par­
ticular responsibilities and the existence of an “at will” removal authority.
Two factors relied on by the Court in M orrison to sustain the “indepen­
dent counsel” statute suggest that section 22, if interpreted to prevent review
of ALJ determinations by higher executive officers, might well unconstitu­
tionally intrude upon executive power. First, the Court in Morrison emphasized
that the Attorney General’s initial decision whether to apply for the appoint­
ment of an independent counsel was committed to his unreviewable discretion,
thus “giv[ing] the Executive a degree of control over the power to initiate an
investigation by the independent counsel.” Id. at 696. Here, by contrast,
ALJs are assigned to section 22 cases by operation of statute, at the behest of
local education agencies or institutions of higher education aggrieved by the
Secretary’s decision, and not by the Secretary.16
Second, the Court in Morrison emphasized both the limited tenure of an
independent counsel, whose appointment ends with the completion of the
particular investigation for which he is appointed, and the statutory require­
m ent that an independent counsel generally follow policy guidelines
established by the Department of Justice. 487 U.S. at 671-72. In contrast to
an independent counsel, ALJs are civil service employees who may continue
in their posts indefinitely, unless removed for cause. Furthermore, if ALJ
decisions with respect to section 22 claims are unreviewable, the aggregate
o f those decisions over time effectively will establish the policy of the De­
partment. The combined effect of tenure protection and the unreviewability
o f decisions substantially deprives the President of control over a particular
set o f policy decisions made by an executive branch Department, and thereby
impairs his ability to perform his constitutional duty to take care that the laws
be faithfully executed. Cf. Morrison, 487 U.S. at 691 (noting that independent
counsel “lack[s] policymaking or significant administrative authority”).
In sum, even if Congress’ intent were less clear than it is from the statu­
tory text, we would likely still adopt the interpretation of section 22 that we
do because of the two quite serious constitutional questions that would at­
tend the contrary interpretation of the section.

16 O fficers o f “independent agencies” m ay also be distinguished from ALJs empowered to make unre­
view able decisions, on the basis of the degree of control possessed by the President at the appointment
stage. A ction by an independent agency official may be reviewed by the head o f the agency or by
com m issioners acting collectively as the head of the agency, who, although they may possess tenure
protections, are appointed by the President with the advice and consent of the Senate. The appointment
pow er thus gives the President a measure o f control over the actions o f independent agencies.

16
 IV.

It follows from the conclusion that ALJ decisions are final under section
22 only for purposes of judicial review that an aggrieved party can seek
judicial review upon receipt of the ALJ’s decision, whether or not there are
further proceedings before the Secretary. Indeed, the fairest inference to be
drawn given the well-understood practice under the APA — where the exist­
ence of “final agency action” permits immediate judicial review — is that
Congress intended precisely this result when it mandated that decisions of
the ALJs “shall be considered to be a final agency action.” Thus, section 22
constitutes the express exception contemplated in 5 U.S.C. § 704 to the
general permissibility of a requirement of exhaustion of administrative rem­
edies. See supra note 4.
This reading gives meaning to the relevant language of section 22. It also
furthers an apparent purpose of the Act to assure speedy resolutions by the
agency, a purpose reflected, for example, in the requirement that a hearing
be held within 45 days of the filing of the appeal, unless the ALJ extends the
time on motion of the local education agency or institution of higher educa­
tion. 20 U.S.C. §§ 1145g(d), 3224a(e). The aggrieved party may proceed
immediately into court upon issuance of the ALJ’s decision even if the Sec­
retary intends to review the ALJ’s decision.

CONCLUSION

We conclude for the reasons stated that section 22 does not preclude the
Secretary from reviewing decisions by ALJs. The clear import of the lan­
guage in section 22 that an ALJ’s decision “shall be considered to be a final
agency action,” given the consistent practice under the APA, is that the ALJ’s
decision is final for the purposes of permitting judicial review. We further
conclude that section 22 deprives the Secretary of power to require exhaus­
tion of the secretarial review procedures before an aggrieved party may seek
judicial review.

J. MICHAEL LUTTIG
Assistant Attorney General
Office o f Legal Counsel

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