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Post by aljsouth on Jul 22, 2009 11:05:53 GMT -5
This topic came up under the thread about the government paying bar dues. I think it warrants its own thread.
Some new ALJ's seem to think OPM settled the lawsuit by making its active status regulation apply only to "new" ALJ's coming on board after the date of the lawsuit. This is not my impression or that of AALJ.
I posted in that thread:
"I checked on this issue. OPM requires candidates be active or judicial as they define it and you must be when you accept the position.
OPM has dropped its regs requiring ALJ's to maintain that status. OPM is cagely implying you have to, but it never comes out in writing and tells new ALJ's they have to do so.
If anyone has a WRITTEN communication from OPM telling them that they have to remain in such status while serving as an ALJ please let me know. I very much want a copy and will see that it is sent to the right people.
I have spoken to new ALJ's here, and they had the same impression that somehow only the older ALJ's were Grandfathered in, and new ALJ's were under the new rule. I spoke to several people at AALJ and they say OPM suspended its regulation on this issue and have not set up a double standard.
AALJ also says under no circumstance lose your license. Many judges take a voluntary judicial status (which OPM does not think is "active") in order to pay a reduced bar dues bill or to be exempted from CLE. This is OK. You are still subject to dicipline by the bar. "
Also, I note in many states "inactive" status is available and only means you can't practice law in that state unless you declare yourself active again and attend CLE, etc. This varies from state to state. In some inactive status is a prelude to no license, after a certain number of years.
New ALJ's check your states of licensure carefully. All candidates must be active or judicial as defined by OPM and must be so at the time of your service date (first date on the job as ALJ).
Patriot's Fan is trying to get FALJC to ask OPM about this issue. I doubt OPM will reply to any request. If he gets one in writing I would love to have it. Thank you PF.
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Post by decadealj on Jul 22, 2009 11:31:40 GMT -5
I think it would be helpful if some of the newer folks understood the history behind this issue and maybe someone more competent than I can post a link to the discussion awile back. Bottom line is OCALJ instructed ALJs in wiriting that they didn't have to maintain their active bar association status and that opened the can of worms as to active status in various state bars. When OPM published the new requirement, many ALJs who relied on the OCALJ epistle were in a world of hurt- who wants to take the bar exam again? But PH has it right-under no circumstances let your bar license be suspended or revoked. I am not certain this issue is dead forever.
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Post by carjack on Jul 22, 2009 12:50:31 GMT -5
In some states (at least Colorado) you can maintain an "inactive" status which still requires dues of a lesser amount and no cle but that allows you to immediately reinstate your active status by paying the dues for the remainder of the present year. The inactive status is offered to attorneys who do not intend to actively practice in the state. I think this is much different than allowing your license to lapse because you "aren't currently practicing."
I'm not sure of any prohibition on maintaining an active status even though in your position you cannot "practice" law. Doesn't being an ALJ require that you not practice law? That is different, I think, than not being able to practice law. Couldn't you still maintain your active status? Not practicing is not the same as not being able to legally practice. Many jobs that require the person be a licensed attorney (govt attorneys in some positions) also contain a prohibition against the practice of law as such in any manner outside the office. If that job doesn't include filing pleadings or going to court, you may technically not be in the active practice of law and might be able to get away with going into an "inactive status."
Personally, I cannot imagine why anyone who has gone through the brain damage and expense of getting licensed anywhere would allow their license to lapse because they don't want to pay dues or attend cle and no longer practice in that jurisdiction, but maybe that's because I thought getting licensed was in fact a major accomplishment.
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Post by aljsouth on Jul 22, 2009 13:32:45 GMT -5
In some states (at least Colorado) you can maintain an "inactive" status which still requires dues of a lesser amount and no cle but that allows you to immediately reinstate your active status by paying the dues for the remainder of the present year. The inactive status is offered to attorneys who do not intend to actively practice in the state. I think this is much different than allowing your license to lapse because you "aren't currently practicing." I'm not sure of any prohibition on maintaining an active status even though in your position you cannot "practice" law. Doesn't being an ALJ require that you not practice law? That is different, I think, than not being able to practice law. Couldn't you still maintain your active status? Not practicing is not the same as not being able to legally practice. Many jobs that require the person be a licensed attorney (govt attorneys in some positions) also contain a prohibition against the practice of law as such in any manner outside the office. If that job doesn't include filing pleadings or going to court, you may technically not be in the active practice of law and might be able to get away with going into an "inactive status." Personally, I cannot imagine why anyone who has gone through the brain damage and expense of getting licensed anywhere would allow their license to lapse because they don't want to pay dues or attend cle and no longer practice in that jurisdiction, but maybe that's because I thought getting licensed was in fact a major accomplishment. I agree completely about letting any license lapse. I have heard of one judge who let a license lapse, but I think he had two states of licensure. I have a license in two states and I keep both. In one I am in mandatory judicial status that I think meets OPM's requirments. In the other I am in active status as are all judges. Both exempt judges from CLE, and have reduced dues for judges. No way am I going to let go of either state though I hope never to practice law for a living again. |
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Post by aljsouth on Jul 22, 2009 13:39:29 GMT -5
ruonthelist posted this on another thread but it is important to this issue so I am pasting it here. I received a private message from a member asking for the cite to the suspension of the bar membership rule. I've responded to that person, and if anyone else is interested here is the cite to the Federal Register page of July 18, 2008: edocket.access.gpo.gov/2008/pdf/E8-16487.pdfThis is the current CFR entry incorporating that change: edocket.access.gpo.gov/2008/pdf/E8-16487.pdfThanks, ruonthelist. |
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Post by ruonthelist on Jul 22, 2009 20:57:48 GMT -5
PF is correct. There is no one size fits all approach to this, and a big part of the problem is that OPM wrote the rule thinking that there was. They did not bother to acquaint themselves with the varieties of state practice before they issued the original rule, and they didn't want to hear it from any of the commenters during the comment period. After blowing off the comments that they received they discovered some of the problems with putting the rule into practice after the rule took effect.
I urge new judges:
1. Do what PF is doing: check with your state bar before taking any step. If you belong to FALJC or AALJ you might be able to check with them for background information, because some of their members have encountered the issue as it relates to a given state. But even though those organizations may be able to point you in the right direction, you are best off getting it from the state bar itself.
2. Don't take any irrevocable step with regard to your bar membership without being REALLY REALLY SURE that it is safe to do so. In some states an "associate" or "inactive" member can reactivate merely by paying the current year's dues. In others there are more onerous requirements. OPM characterized its action on July 18, 2008 as "suspending" the rule as to incumbent judges. They said that they intended to reopen it for comment. Just because a year has gone by without an attempt to rewrite the rule doesn't mean that they won't try to do it at some point.
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Post by privateatty on Jul 22, 2009 23:14:15 GMT -5
PF is correct. There is no one size fits all approach to this, and a big part of the problem is that OPM wrote the rule thinking that there was. They did not bother to acquaint themselves with the varieties of state practice before they issued the original rule, and they didn't want to hear it from any of the commenters during the comment period. After blowing off the comments that they received they discovered some of the problems with putting the rule into practice after the rule took effect. I urge new judges: 1. Do what PF is doing: check with your state bar before taking any step. If you belong to FALJC or AALJ you might be able to check with them for background information, because some of their members have encountered the issue as it relates to a given state. 2. Don't take any irrevocable step with regard to your bar membership without being REALLY REALLY SURE that it is safe to do so. In some states an "associate" or "inactive" member can reactivate merely by paying the current year's dues. In others there are more onerous requirements. OPM characterized its action on July 18, 2008 as "suspending" the rule as to incumbent judges. They said that they intended to reopen it for comment. Just because a year has gone by without an attempt to rewrite the rule doesn't mean that they won't try to do it. ruonthelist raises a more interesting point, along with pf's most recent comment. pf has been "advised" through pms not to query OPM directly. Sage advice, no doubt. And ruonthelist notes that OPM enacted the "active bar rule" without a whit of consideration for how it may impact the ALJ Corps. Was it a carefully crafted shot in the dark or revenge of the nerds? The OPM ALJ office is from what I hear but a mere shell of its former glory. Apparently the old adage is true, appearances can be deceiving. OPM has backed of its "active bar rule". Why, I ask? They are on a role, litigation wise. They can stall the appeals ad naseum with little fall-out as has been well documented. And this Board has never been able to determine just who scores us over there. Some say Judges, others say clerks. Reminds me of the old Neil Young song: "Everyone Knows This Is Nowhere." But I digress. So many questions, so few answers. |
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Post by decadealj on Jul 23, 2009 6:57:36 GMT -5
Delighted to see such healthy cynicism- just don't let it evolve into paranoia which unfortunately has become an SSA ALJ trademark!
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Post by privateatty on Jul 23, 2009 8:28:37 GMT -5
Delighted to see such healthy cynicism- just don't let it evolve into paranoia which unfortunately has become an SSA ALJ trademark! I will confess that there was a time that I was fearful of them. And angry, very very angry as I had a right to be. And rather than post why, let's just say that my feelings were well justified, not only in my opinion, but in the opinion of others. There was no reason for OPM to shut down the Register for soooo long during the Azdell litigation. However, the greatest crime was shutting down the Office of Administrative Law Judges. Early on in 2007 Judges who posted here bemoaned the fact that there really were no contact channels for them or anyone else over there. The active bar rule is INMO an out-growth of the cynical disolution of that Office. Who is more important, a bunch of OPM beauracrats or the Title 5 ALJ Corps? Well, we certainly know who is more powerful! I hope that this new group of Judges would take an active interest in strengthening the ALJ Corps and petitioning for a return of that office if for no other reason than to ensure that applicants are not treated like zero and arlene25. Judges should know that they have their "own" office seperate from Agency meddling and cynical beauracratic stone-walling and "professed ignorance" of the true state of affairs. |
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Post by decadealj on Jul 23, 2009 8:55:12 GMT -5
FALJC has petitioned the Obama administration to not only reinstate the office of ALJs in OPM but to establish an independent office for all ALJs. FALGC is a very professional organization unlike AALJ which INMHO is worthless. I recommend the new folks pay their dues to FALJC rather than AALJ.
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Post by privateatty on Jul 23, 2009 9:24:11 GMT -5
FALJC has petitioned the Obama administration to not only reinstate the office of ALJs in OPM but to establish an independent office for all ALJs. FALGC is a very professional organization unlike AALJ which INMHO is worthless. I recommend the new folks pay their dues to FALJC rather than AALJ. Wise counsel. |
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Post by aaa on Jul 23, 2009 13:35:06 GMT -5
It would be helpful if there was a national standard and definition for active, etc. My state has inactive, active but not practicing, and active. Although "real" judges are exempt from CLE in my state, federal ALJ's are not. I attempted an inquiry as to why I was not exempt from CLE as other judges are and was quickly shot down by a rather huffy CLE director and clerk of the supreme court so I let it be. At one point in my career years ago I did go inactive with the state bar; then there was a stir about attorney advisors needing to be "active" so at that point I went "active but not practicing" and then after being selected as an ALJ I went "active" with the CLE commission. Fortunately my CLE hours have been met (except for ethics) as a result of training and carryover hours. If I was diligent about requesting CLE for IVT training, I believe that could be done. I tried to explain to the CLE commission that because I was an ALJ for SSA I was precluded from the private practice of law effectively but that went no where. So for my own sanity I am active across the board in my state and pay the dues (which are very reasonable in comparison to some states) and don't have to worry.
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Post by deltajudge on Jul 23, 2009 20:31:36 GMT -5
8-)As far as I know, OPM has modified their rules as far as describing active bar membership. OPM is stupid. After I was appointed an ALJ, I could not practice law. I notified my bar, and was placed on inactive status, where I stayed for almost 30 years. Then OPM came up with this stupid rule that we had to be active members of our respective bars. Luckily, my state had passed a law giving me judicial status. But OPM wasn't satisfied with that, after I retired and applied for senior status, had to go through the hoops about that. Bunch of crap involving non-attorney bureaucrats.
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Post by decadealj on Jul 24, 2009 10:39:59 GMT -5
DJ- pray tell: How is OPM different than SSA? I submit your shoe fits both!
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Post by southerner on Jul 24, 2009 15:17:07 GMT -5
In my state, at least at present, federal judges and magistrates, including administrative law judges, are exempt from CLE, membership dues, and disciplinary assessments.
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Post by deltajudge on Jul 24, 2009 19:32:33 GMT -5
8-)Decadealj, think you have been around for a while. Your are correct, as far as dumbness goes, there is no difference between SSA, ODAR and OPM. It caused quite a problem when OPM came up with their brilliant idea that all ALJs had to have an active bar membership. Unfortunately a lot of ALJs acting on a memo from whoever the CALJ was at the time, saying you didn't have to belong to the bar if you were an alj. As I said before, I kept my bar membership, but a lot of aljs let theirs lapse, because of the memo. Then along comes OPM. I tell you, God forbid that the government takes over health care for this great country. Having been an ALJ for 30 years, I can tell you, it will be a mess.
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Post by carjack on Jul 25, 2009 19:19:07 GMT -5
government run health care is better than no health care
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Post by privateatty on Jul 25, 2009 20:50:11 GMT -5
Over 40 million people cannot afford or get health insurance, and many more are under insured to the point where they dread any illness as they would be bankrupt.
Those that decry government run health insurance do so from the comfort of their own generous policy.
One of the things that I have noticed in my travels to other countries is that people do not live in fear of getting sick or being homeless. I have had clients who got sick and were once middle class and are now homeless.
Finally how can we call ourselves the greatest country in the world when we refuse to take care of our own?
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Post by deltajudge on Jul 26, 2009 10:20:29 GMT -5
8-)Well privateatty you better include in those elite that can afford health insurance those working people out there earning a living, and sacrifice in order to pay those premiums. You might also include the president, representatives, and senators who will be exempt from it. If you want to include the deadbeats and immigrants on your tab, leave me out.
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knownuthin
Full Member
Out of all the things I've lost, I miss my mind the most.
Posts: 114
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Post by knownuthin on Jul 28, 2009 13:03:55 GMT -5
government run health care is better than no health care In my opinion, government run health care leads to no heath care. I lived in England for 3 years, where they have socialized medicine. I knew a man, who needed a hip replacement. He was in his early sixties and still working. He was placed on the waiting list and told it would be 2 years before he could get his surgery. Here in the good ol' USA, SSA law and policy states that the inability to afford medical treatment is equivalent to there being no effective treatment. Having to wait 2 years for a hip replacement is about the same as there being no such thing as a hip replacement. Luckily, the members of this fellow's church collected private donations and paid for the surgery, so he didn't have to wait. Our system of health care isn't perfect, but it sure beats any other system out there. Our elected officials should heed the Hippocratic oath and above all, do no harm. |
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