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Post by Orly on Mar 20, 2011 18:53:13 GMT -5
I don't know the individual involved, nor do I know anyone who does, but I would be very surprised if the charged offense was the only blot on his copybook. Given the amount of trouble it takes to get a case through the MSPB, I imagine there was way more to this story than ever met the eye in print. As a result, I doubt that counseling would have been a viable option. Mr. Long's three year track record from '06 - '08: www.oregonlive.com/special/index.ssf/2008/12/social_security_database.html?appSession=010288360058409Res Ipsa Loquitur. And for those outside the SSA practice area, a SSA ALJ usually decides between 400 - 600 cases a year, with below 400 considered a really low producer and 600+ being a high producer. The agency is strongly recommending a 500 minimal annual goal per ALJ. Lesson learned- if you are a low producer, don't give management a pretext or reason to fire you. I'll bet that ALJ who does 1,000 cases a month might have fared better. Nah, no one does 1,000 cases per month, but there are a few who does go over 1,000 per year. I do agree with you that a high producer, with the same facts, probably wouldn't have ended up at this point. This is when a picture is worth a thousand words:
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Post by privateatty on Mar 20, 2011 20:35:29 GMT -5
Justice Dyk, in well-reasoned concurring opinion, is attempting to limit the power of a very activist MSPB. No one is condoning what former ALJ Long did. However, the Agency could not accept the finding of the ALJ and sought dismissal. The MSPB gave them what they wanted.
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Post by Orly on Mar 20, 2011 20:54:40 GMT -5
However, the Agency could not accept the finding of the ALJ and sought dismissal. The MSPB gave them what they wanted. Well, the Federal Circuit Court also gave the agency what it wanted. So I don't quite get your point. This is ultimately a fringe case of an extremely unproductive ALJ who also happen to be a spouse beater. The two principles he seems to embody appear to be sloth and rage, both of which are anathema to our ideal of what being a judge is about. If we want to be call judges, act accordingly. With higher office comes higher responsibility. This is a public trust position, not a license to be "above the law". I honestly think the initial ALJ decision of suspension was wrong and MSPB got it right. But then again, maybe this is just all one big conspiracy to get rid of unproductive judges?
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Post by Justice-Dude on Mar 21, 2011 7:22:05 GMT -5
Orly: I could not have said it any better.
The privilege of serving as an ALJ requires one to rise above others. ALJ's require not only sound legal reasoning and a respect for the rule of law, but must also compass the highest levels of personal integrity and moral judgment. If Long has no respect for his spouse, especially when that spouse is smaller, weaker, and not as literate and linguistically capable as Long, then MSPB is correct. Long will have no respect for those that come before him, which explains the low productivity, in that this ALJ could care less if claimants wait forever. I'm just saying . . . Long pollutes the ranks of hard-working and decent ALJ's. IMHO.
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oldschool
Full Member
Newbie FAQ Contributor
Posts: 101
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Post by oldschool on Mar 21, 2011 9:06:08 GMT -5
If this is how the AALJ uses members' dues, I won't give them the opportunity to waste mine.
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Post by 71stretch on Mar 21, 2011 10:33:01 GMT -5
If this is how the AALJ uses members' dues, I won't give them the opportunity to waste mine. I used to represent a union. You have to pick your battles in that situation, and this wasn't one to pick, just looking at what we have available to us.
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Post by factfinder on Mar 21, 2011 12:34:36 GMT -5
Maybe our union knew something we did not, but I would like to know what it is if this is so. If they had no more than what we know from the MSPB and the CAFC decisions, then they had bupkis and they should not have supported this character, who has others pointed out, besmirches the reputation of all ALJs.
I (perhaps all of us) would welcome an explanation. It could even prove to be sufficient.
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Post by 71stretch on Mar 21, 2011 14:13:27 GMT -5
He'd been an ALJ since 2001, and in the entire calendar year 2006 issued 42 decisions? If he was actually on duty that whole year, and not on medical leave or something, that speaks volumes.
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Post by arkstfan on Mar 21, 2011 14:20:43 GMT -5
Here is what bothers me about the case that is mostly undiscussed.
At no time did he take responsibility. His girlfriend recanted while he alleged some violent physical contact but denied striking her or the child.
His productivity is red herring.
The real question I believe is not productivity but rather his response to the incident. I see no attempt at mediating the effects. I don't see any acceptance of responsibility nor any affirmitive act to seek evaluation or treatment if warranted.
In the ALJ background check process you have to give permission for your physician to be contacted to possibly assess whether you are fit for duty.
If this were a case of an untreated mental disorder or abuse of alcohol or other substance and he was taking responsibility a suspension with release upon medical clearance would to me seem appropriate, that's not what this is. Instead it looks as if he bases his argument on the twin piers of "it wasn't really that bad" and "she recanted the statements to police and neighbors and is therefore an unreliable witness." Once it went into that realm, the physical evidence contradicted both legs of his argument.
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Post by 71stretch on Mar 21, 2011 15:08:15 GMT -5
His productivity is red herring. I don't think it is, entirely. It obviously wasn't a stated reason for the dismissal, but if he was a great producer/great coworker, etc. I think it might have been handled differently by the agency from the beginning. We're reading a lot between the lines, here, but I suspect there's a lot we don't know, and if there is, all the more reason to suggest that the union didn't pick a good battle here.
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Post by ruonthelist on Mar 21, 2011 16:46:07 GMT -5
FWIW, the Long case is one of three ALJ removal cases that the Federal Circuit has decided in the last year or so. There may have been others that I'm not aware of. Here are the two others that I know about: www.cafc.uscourts.gov/images/stories/opinions-orders/09-3287.pdfwww.cafc.uscourts.gov/images/stories/opinions-orders/09-3127.pdf In two of the three (Long and Steverson) the MSPB ALJ determined that a suspension was the appropriate penalty and SSA appealed the punishment to the MSPB. In Jennings the ALJ decision recommended removal. In all three cases the MSPB found removal to be the appropriate penalty and the Court of Appeals upheld the Board’s decision.
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Post by rodkneekingslayer on Mar 21, 2011 17:44:12 GMT -5
Hard cases make bad law. The domestic violence allegation smothered the rest of the case, so possibly it won't be of much benefit for future actions in other circumstance. The union was right to file an amicus brief with the Fed. Circuit otherwise the decision could have been much worse.
The judges have traditionally been a very conservative lot - 70% were military veterans, mostly officers at the time of the union vote, which was 81% positive of all eligible to vote, an unheard of ratio. Management pushed the judges to that decision. If you don't join the union, get into management to survive!
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Post by factfinder on Mar 22, 2011 6:08:17 GMT -5
One guy was inexcusably greedy. The other guy had the ethics and judgment of a gnat and lied about it. The surprise is that either thought they had a chance with the MSPB or the CAFC.
BTW, I remain convinced that SSA management forced the ALJs to create and join the union. Please note the most recent ULP sheet above the sign in sheets in the various ODAR offices as a continuing example. In most of the Federal Govt when someone creates a ULP they get in trouble. As near as I can figure out SSA promotes them.
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Post by Justice-Dude on Mar 22, 2011 7:34:55 GMT -5
... the most recent ULP sheet above the sign in sheets in the various ODAR offices .... ULP - What does that stand for? Do judges have to sign-in? Do SES officials at SSA have to sign-in?
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Post by factfinder on Mar 22, 2011 9:33:16 GMT -5
ULP - unfair labor practice Yes, ALJ's sign in and out - mostly for credit hours, etc. Rumor has it if you do work a straight 40 this does not happen. However, no one in our office works a straight 40 . First place I have ever had to sign in and out in 30+ years, but you do stop thinking about it.
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Post by judgegal on Mar 22, 2011 10:02:10 GMT -5
"Sraight 40" is not a rumor, it's a fact. I work a fixed tour and don't sign in or out . No credit hours, but I don't care. I come in , do my work and leave when I'm finished. Some days it's early, some days it's later. I'm a professional.
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Post by civilserpent on Mar 22, 2011 10:41:36 GMT -5
Though it is a bit late in the game to comment on the Danvers decision, I must note that MSPB rules require the agency to establish that removal is for the efficiency of the service, and that removal is warranted within application of the "Douglas factors". MSPB standards require the agency to establish that similar conduct merited removal; that other discipline would not be appropriate; that the conduct eroded confidence in employee's ability to perform. In addition, the factors allow consideration of the employee's position and past performance, and MSPB has consistently held investigators and upper level employees to a higher standard. I agree that this case goes a little further in that it involves conduct that did not result in a conviction (or even a prosecution).
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Post by fletch40 on Mar 22, 2011 12:51:10 GMT -5
Though it is a bit late in the game to comment on the Danvers decision, I must note that MSPB rules require the agency to establish that removal is for the efficiency of the service, and that removal is warranted within application of the "Douglas factors". MSPB standards require the agency to establish that similar conduct merited removal; that other discipline would not be appropriate; that the conduct eroded confidence in employee's ability to perform. In addition, the factors allow consideration of the employee's position and past performance, and MSPB has consistently held investigators and upper level employees to a higher standard. I agree that this case goes a little further in that it involves conduct that did not result in a conviction (or even a prosecution). The efficiency of the service standard under 5 USC 7513(a) does not apply to disciplinary actions against ALJs. Adverse actions taken against ALJs are evaluated under the good cause standard of 5 USC 7521(a). This is discussed in depth in the Long decision as well as other MSPB cases including Carr and Mills. This is an important distinction because under the efficiency of the service standard, a nexus must be established between the conduct and the agency's or ALJ's ability to perform their duties. This would have been difficult to establish under the circumstances of the Long case. However, there is no nexus requirement in the good cause standard. The good cause standard can be established by showing conduct that undermines public confidence in the administrative adjudicatory process, even if the conduct only relates to the character traits of the ALJ. You are correct about the Douglas factors, which need to be analyzed in both 7513(a) and 7521(a) actions.
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Post by decadealj on Mar 22, 2011 12:56:31 GMT -5
I think factfider's comment about SSA compelling the ALJs to form a union has merit. My recollection was management wouldn't even consider AALJs input into changes in the hearing process unless they formed a labor partnership (Clinton administration term I think). The ALJs in my shop who stayed in the now union almost felt ethically compelled to do something to have a voice in the madness. Of course Bush got elected, unions were not in favor and AALJ was now an adversary instead of a partner. I don't blame the guys who voted to become a union (two years earlier the vote was 80% not to form a union). I couldn't do it then because in 25 years of government service I couldn't think of anything positive to say about one (remember the air traffic controllers mistep). The one think I absolutely know for certain is that we really lost our influence in Congress which at one time was very significant. Paying lobbyists to beg for you is a far cry from the contact we once had with key congressional staffers. I well remmeber the day when Tom Capshaw (an ALJ cheerleader if there ever was one) was invited to talk to the SS subcommittee regarding the dismantling of the Chief Judge's office and staff; the response by management was almost instantaneous. I am afraid AALJ has burned the bridges behind them.
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Post by ruonthelist on Mar 22, 2011 15:30:11 GMT -5
Straight 40 work schedule is provided for in Article 14 of the AALJ collective bargaining agreement:
Section 2 – Fixed Tour
A. In order to account for the time worked by a Judge working a fixed tour, the Judges [sic] electing to work a fixed tour will advise his or her HOCALJ in writing that he or she is electing to work a fixed tour from the hours of 8:00 a.m. to 4:30 p.m.
B. Having informed his or her HOCALJ that he or she is working a fixed tour, a Judge will not be required to sign-in or sign-out using a SSA Form-30.
C. A Judge who elects to work a fixed tour cannot utilize flextime, a flexible work arrangement, or participate in the flexiplace program while using the fixed tour option.
D. A Judge who elects to work a fixed tour can elect to participate in flextime, a flexible work arrangement (i.e. 5-4/9 or 4-10), earn credit hours or participate in the flexiplace program only after two pay periods have elapsed by advising his or her HOCALJ in writing that he or she is reverting to flextime.
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If you read the Jennings decision you will see that this is one of the things that he got caught on. He had submitted the written election for fixed tour to his HOCALJ and then failed to work that fixed tour.
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