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Post by lurker on Apr 7, 2010 21:46:45 GMT -5
I've been watching this thread off and on for the last few days, wondering whether to weigh in. I think yogibear and my good buddy wilddog's last posts are pretty much in line with my sentiments. But I keep coming back to wilddog's earlier post: "No disrespect intended, PA, but given the relatively small numbers of ALJs at other agencies, and the fact that those other agencies can request certs of their own from OPM if they're not happy with the ALJs that SSA has hired, I don't believe the commissioners of those other agencies are going to lose a whole lot of sleep over this question."
As an outsider who was picked up by SSA and trained with the best damn class of ALJ's ever - what I learned is that we all brought something valuable to the table and we all had what it takes to be good, if not great judges. Every member of my class, daily, provides "public service with honor."
I am one of those ALJ's hired by SSA who subsequently got picked up by another agency, which has turned out to be a good move for me both personally and professionally. While I can't answer the question about whether commissioners of any agencies lose any sleep over any questions, I do know that ALJs in other agencies do worry about what is going on with SSA and their selection process - because if pf is right (and I have no reason to think that he is not very, very right), what SSA is doing with respect to manipulating the register does have implications for the ALJ Corps as a whole. I don't for one second believe that if we on this board are arguing about whether SSA ALJs are just "hearing examiners" and not "judges" - that this argument/discussion is not going on elsewhere where people may even have the ability, with a swipe of a pen, to convert SSA ALJs into hearing examiners.
Personally, I think we all should be more invested in making sure that the process is allowed to work as it is designed, and less invested in denigrating each other. And once selected, we need to remember yogibear's words of wisdom - this job is about public service with honor.
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Post by lurker on Apr 7, 2010 22:22:53 GMT -5
I'm somewhat at a loss to explain the AALJ leadership's actions, except that they evidently feel that letting OHA and ODAR staff attorneys become ALJs is akin to peeing in the judicial gene pool, as it were, unfairly painting all such candidates with the same brush. Oh, and who wouldn't want someone who could turn a phrase as nicely as "peeing in the judicial gene pool" writing their decisions? ;D
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Post by ALJD on Apr 7, 2010 22:48:28 GMT -5
Folks, I'm all for passionate arguments, but let's not start hurling insults on SSA ALJs, most of whom are hard working and already operating under tremendous amount of pressure. Next ALJ to stray out of bound on this one is going to get muzzled decisively. After all, I don't appreciate being called a hearing examiner after all the years of dedicated service I put in as an ALJ.
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Post by wilddog on Apr 8, 2010 4:54:38 GMT -5
I'm somewhat at a loss to explain the AALJ leadership's actions, except that they evidently feel that letting OHA and ODAR staff attorneys become ALJs is akin to peeing in the judicial gene pool, as it were, unfairly painting all such candidates with the same brush. Oh, and who wouldn't want someone who could turn a phrase as nicely as "peeing in the judicial gene pool" writing their decisions? ;D -------- You do have to admit that while not a phrase you'd be likely read in one of Learned Hand's decisions, it does have a certain je ne sais quoi, non?
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Post by valkyrie on Apr 8, 2010 5:44:04 GMT -5
Just get that guy on the stand and the jury's reaction will be entirely predictable!
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Post by privateatty on Apr 8, 2010 7:05:06 GMT -5
I've been watching this thread off and on for the last few days, wondering whether to weigh in. I think yogibear and my good buddy wilddog's last posts are pretty much in line with my sentiments. But I keep coming back to wilddog's earlier post: "No disrespect intended, PA, but given the relatively small numbers of ALJs at other agencies, and the fact that those other agencies can request certs of their own from OPM if they're not happy with the ALJs that SSA has hired, I don't believe the commissioners of those other agencies are going to lose a whole lot of sleep over this question." As an outsider who was picked up by SSA and trained with the best d**n class of ALJ's ever - what I learned is that we all brought something valuable to the table and we all had what it takes to be good, if not great judges. Every member of my class, daily, provides "public service with honor." I am one of those ALJ's hired by SSA who subsequently got picked up by another agency, which has turned out to be a good move for me both personally and professionally. While I can't answer the question about whether commissioners of any agencies lose any sleep over any questions, I do know that ALJs in other agencies do worry about what is going on with SSA and their selection process - because if pf is right (and I have no reason to think that he is not very, very right), what SSA is doing with respect to manipulating the register does have implications for the ALJ Corps as a whole. I don't for one second believe that if we on this board are arguing about whether SSA ALJs are just "hearing examiners" and not "judges" - that this argument/discussion is not going on elsewhere where people may even have the ability, with a swipe of a pen, to convert SSA ALJs into hearing examiners. Personally, I think we all should be more invested in making sure that the process is allowed to work as it is designed, and less invested in denigrating each other. And once selected, we need to remember yogibear's words of wisdom - this job is about public service with honor. Wowser. Now this is the thread I wish I wrote. A long, long time ago and in a far away land we had a new USDC Judge. He had never been a trial lawyer and didn't know the Rules of Evidence. Any objection other than leading and he would call a recess while he conferred with his law clerk in chambers on how to rule. He was like a goldfish in a bowl. Boo! He eventually became a mediocre Judge but watching him become one was almost painful. All folks picked up by SSA deserve to be Judges. Lurker obviously feels comfortable doing her job. We all can tell she's good at it. Its really that simple.
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Post by decadealj on Apr 8, 2010 7:20:36 GMT -5
ALJD- maybe I am the last to know but I was stunned by your comment about your service as an ALJ. I would have sworn (and have confided to PF and others in PMs) that you were the head of the AC or some other SESer in the "palace". I apologize for the "flame bait" comments you have chosen to edit because you have earned the right to do so. However, I will not back off from the position that this job is no longer "the best job in government" because I challenge you to suggest what this agency has done since HPI to asist us in rendering the public service we swore to provide.
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Post by southerner on Apr 8, 2010 7:23:53 GMT -5
My classmates, wilddog and lurker, have been very eloquent in their comments on this matter. Personally, though I think the gene pool phrase and that slight touch of French were artful, I would not have expected the French from WD--maybe some of la Louisiane is rubbing off!
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Post by Well on Apr 8, 2010 7:41:53 GMT -5
Folks, I'm all for passionate arguments, but let's not start hurling insults on SSA ALJs, most of whom are hard working and already operating under tremendous amount of pressure. Next ALJ to stray out of bound on this one is going to get muzzled decisively. After all, I don't appreciate being called a hearing examiner after all the years of dedicated service I put in as an ALJ. I think the what angers/frustrates/triggers jealousy is the same thing that drives the public's frustration etc., with government employees in general; the ones doing a lousy job and that paint brush tends to be large. ALJ is a sweet job and obviously a lot of people want it and it is maddening to when you draw the one out of eight in an office who after 5 years still doesn't understand the law and regs that apply or is tired of the job and needs to go home sit on the deck and drink mint juleps and contemplate spring. A veteran ALJ's pay is about 3X the median national income. The taxpayer doesn't give a rat's hiney that an ALJ may be making far less than many law school peers, they just know they are making a lot more than they are. The sad part is few people remember the experiences with the well prepared outstanding ALJ and few if any call their friends to tell of their great experience. That's not true of a bad experience.
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Post by workdrone on Apr 10, 2010 9:48:39 GMT -5
Folks, this union did not form out of some accident. I was around when it happened, so I understand. And AALJ, although lead by quite a few short-sighted leaders in the past, does have a purpose in the grand scheme of things. Now if only they'll do something useful for current ALJs instead of grandstanding all the time, they'll probably have more fans. Judicial independence is something I exercise every day, multiple times, in the decisions I make. I never had anyone from management direct me which way to rule on my cases, nor would I tolerate that. Tying up judicial independence with ALJ hiring as you do below is a bit tenuous. But if you're concerned that the agency has an insidious goal to replace freedom loving litigators with Stepford agency clones, I can sort of see your linkage there even though I disagree with the logic. I don't think the agency's MAIN issue is with the decisional independence of the ALJs. Rather, it's with their lack of ability to control the amount of production generated. I'd hazard to guess that so long as sufficient quantity is produced, the agency doesn't give a ^%^& about quality or the way the ALJ rules. There is no other explanation for the ALJs who are disposing 100 cases a month and paying almost all of them. You certainly don't, since you're not a SSA ALJ. And sitting from the inside, I really don't see the sky falling. I decide my 500+ cases a year in a timely fashion, consider each claimant's case fairly, and make my decisions based on the facts and the law. And management leaves me alone to do what I do. And even if they come and harass me, I doubt they can do anything as long as I put in an honest day's work. I think each office is different, but at least in my corner of the world, it seems like the only thing that matters to the local management is a reasonable amount of cases decided in a timely manner. Since I also believe I have an obligation to the American people to be productive, I have no problem with that. I agree with this statement. However, your attempt to connect my judicial independent to agency hiring practices really do feel forced. The agency's hiring practice may or may not be kosher under the applicable laws and regulations, and that's for the federal courts to sort out. Try to make it out to be something bigger than it is merely diminishes your credibility. But my dear PF, the agency HAS the right to impose its policies on our decision making. Pray tell who the heck drafted the CFRs on Social Security? Certainly not Congress. And I seriously doubt even you can say with a straight face that an ALJ is not bound by the CFR in the Social Security context. Rather, are you suggesting that the agency shouldn't have the right to manage ALJs? But then again, they do have certain rights, as shown by all the MSPB decisions people have mentioned around here. Years ago, an ALJ who was my mentor told me that the title and the trapping of the office are empty if one cannot fulfill its role. And that with great honor comes great responsibility. Everyday I put on my robe, I think about that. I work hard not because of management or whatever, but because of my belief that a person in a position of authority has to do be an example to those around them and not abuse the trust of the office. I will be the first to call management bullnuts when I see it, like that HPI crap in the not so distant past and the disdainful name change from OHA. However, to ignore weaknesses in our own rank because of the bad actions of a few lazy ALJ is sheer folly. If the agency doesn't have those bad apples to point to, it would have no excuse to cook up the silly policy proposals you mentioned. I do every day, do you? I call it the way I see it, and an ALJ's greatest obligation is to the American people to decide cases fairly, judiciously and expeditiously. There is no conflict between being productive while maintaining one's judicial independence. To suggest otherwise is to say you're not capable of chewing bubblegum while walking. Anyway, your bone is with the agency's hiring practices, which I understand. Just try not to wrap it in the flag of judicial independence, since the last couple lazy ALJs who tried it really pissed on it and stinked it up.
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Post by privateatty on Apr 10, 2010 9:53:23 GMT -5
Another post I wish I had written.
Alot of things come to mind. My immediate thought is to heartily concur with what pf says about the importance of our independence and our duties to the Constitution and the rule of law. If any one you have followed what has happened at HUD, you would be sickened to see what some in the SES and even above think they can get away with in dictating to ALJs. Further, what pf says about what is happening at SSA where the later believes that the backlog gives them the right to schedule hearings is to me, a frontal assault at our independence as ALJs.
Having followed this Board since Sep. '07 I have always been AMAZED at the virulent defense of SSA. Some of the posters here are fixated on the concept of lazy, incompetent Judges. But it is as if they live in this bubble of loathing, unable to see the big picture or worse, not caring that they don't. Sure, there are such Judges. One of them in Houston is on his way out, much to the applause of all who rightly see the wreckage of disabled folks in his wake. pf is right on when he says that the independence of the ALJ Corps is of paramount concern. For without it, the "Abrams Standard" utilized by MSPB and the NLRB Judge will be diluted and watered down to the point where your head may be on the chopping block next.
Meeting Judges from other Agencies was a true revelation for me--and I suspect for pf too. We got to see the greater good of what this group represents and why our independence is a sacred trust with the American people whom we ultimately represent. Yes, many of you will become or have just become Judges and not give a gnat's behind about this, content to don your robe (or suit) and dispense good old fashioned justice to all who come before you for the rest of your working days. Will your indifference to these issues mean that you will not become as good a Judge as you might be? I don't know, you have to look within and answer that yourself. Everyone is on their own perch on the sliding scale of Agency loyalty and judicial independence. But I will tell you this; to the degree that enough of you ignore these issues and the AALJ becomes an empty rhetorical shell, then you will darn well wish that the big bad Bernowski days were back and you guys and gals could throw a little weight around when you meet with OCALJ.
So yeah, ignore and sadly, even ridicule these notions at your own peril. OCALJ would like nothing better. You don't owe them anything extra because Bob G gave you the call of your lifetime. You earned the position--now lets all go out and defend the honor, prestige and duties that have been bestowed upon us!
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Post by workdrone on Apr 10, 2010 10:16:55 GMT -5
If any one you have followed what has happened at HUD, you would be sickened to see what some in the SES and even above think they can get away with in dictating to ALJs. Well, HUD was and still is a total cluster. But because the ALJ office is so small (only about 4-5 ALJs total), I doubt anything would have changed even if they unionized. When you're dealing with something that small and invisible, it's very hard to stop the political train once it starts rolling. As an example, if someone suggests abolishing the SSA ALJ Corps today, all hell will break lose since NOSSCR and Congress will see it (whether true or not) as an insidious move by SSA to reduce the number of cases paid on appeal. On the other hand, if USPS abolishes its ALJ program as a part of its cost saving measures since it's billions in red, I doubt it will even make the 15th page of any newspaper since the public (and Congress) probably won't care. ALJ independence is critical and needs to be protected. But let's not cheapen it by crying wolf all the time.
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jrose
New Member
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Post by jrose on Apr 10, 2010 10:21:04 GMT -5
I am new to your forum. This thread is fortuitous b/c it has been on my mind, for completely different reasons. I generally agree with Lurker and Patriotsfan. I think I may bring a unique perspective. I was frozen for almost ten years by the COA Stay, having complete all parts of the old process but the score. At that time it never occurred to me I would go to SSA. I knew most ALJs were assigned to SSA but I had no real knowledge or interest in what they did. I assumed I was just chose otherwise. Ten years later, when the stay was lifted I was off to SSA, and happy to go. I love this job. Having litigated b4 other forums, I was surprised, and slammed, by the huge caselload at SSA. ALJs at other agencies had been professional and talented,(mostly) but their caseloads, such as they existed were a cake walk. I work best under pressure, so I jumped in.
Set aside the numbers of cases, the emotional intensitiy is huge. I have been discouraged by the SSAs internal favortism for their own employees. There is no question in my mind that those who come in from other agencies are considered as outsiders. Former SSA ALJs clearly know and understand their program and regulations. But writing decisiions for an ALJ is not the same as sitting in the courtroom and having to engage and decide a case. It is very different. We are all bright enough to pick up new regulations and litigate within a reasonable learning curve, or we wouldn't be here. And, yet even after that, the preference for former SSA ALJs continues without real reason or purpose. There will always be a group of slowpokes, and some of them will be former SSA and some will be from the outside. But former SSA ALJs bring the tendency to do everything the same. They knowingly or unknowingly support the production mentality.
Having come from the outside I have two conflicting views. We work very hard. I have never appeared b4 another agency ALJ, even in major complex litigation, who carried the load I carry, working to SSAs unrelenting expectations. And I do it not because they constantly pressure me to do so, but because I really care about the people waiting to see me, and conincidently I work better faster and harder. Most of my colleagues do the same in some form.
At the same time, I am under no allusion that there is incredible pressure to produce. SSA doesn't care about ALJs. I don't think they care for our claimants. I do think there is an element in "ingrown" pressure. It is easy for former SSA ALJs to continue, without question, what they have always seen. And having little or no experience in other agencies, they have no reason to question it. I don't think former SSA ALJs even remember the APA.
SSA will continue to pressure, I hope without success, OPM to take over the application process, so they can secure their own limited perspective. And, I will continue to be viewed as an outsider. And I will continue to fight with my HOCALJ and ROCALJ. I will also continue to respect and utilize the perspective and program knowledge of former SSA ALJs, when I need assistance.
I don't know if this has been helpful. But SSA ALJs will continue to work harder and under great pressure. Other talented ALJs at other agencies will continue to do important work. Their work, while complex and necessary will be performed at a somewhat leisurely pace (compared to SSA). The SSA ALJs with outside experience will need to work to keep the agency honest and to educate and encourage, without prejudice, former SSA ALJs to remember that when they took their oath, they took a step away from their former agency. Even though they continue to work within their agency and draw upon their years of experience, they joined the ALJ corps. It is a distinction with a very real difference.
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Post by lawmaker on Apr 10, 2010 10:28:19 GMT -5
From a source inside SSA: "There are now at least 29 new ALJs out of the ranks of SSA attorneys. I understand that 56 offers were accepted out of 57 made. The reporting date for the new ALJs is May 24th, with training starting in Falls Church on June 7th. " Roughly 50% of the new hires are SSA attorneys, which has been a fairly consistent number since 2007. When you toss in SSA practitioners, and the few hires with SSA connections (marriage, etc.) the number grows to the 60% level, more or less. Again, this seems fairly consistent. We will not know the exact amount until discovery in the litigation cases reveals that. Also, for those who have raised it, we also will not likely know the % of SSA attorneys on the register as a whole, unless that figure is released as part of discovery. These statitics are virtually meaningless unless compared to the percentages of individuals from other agencies and private practice who applied and then again, who received scores that allowed them to compete for the ssa jobs. Another valuable statistic: I suspect that a disproportionate amount of the other agency attorneys who were eligible with high scores generally checked off DC only or DC/Baltimore. Since those jobs were generally out of reach, that would have skewed the statistics towards those who were willing and able to go to other cities. In many instances, ssa is the only agency with field offices in those other locales. Another statistic: what scores did opm give. Your argument has hinged over the past year(s), on the assumption that opm did not give low scores to the other agency attorneys and private practitioners. They did. SSA had little control over that process. The other statistic that could be of value but not easily demonstrated: the proportion of attorneys in other agencies and private practice who did not compete. Not everyone wishes to fill out such an application, and not everyone wishes to leave a job they love or an income that exceeds that paid to the alj.
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Post by privateatty on Apr 10, 2010 11:04:49 GMT -5
If any one you have followed what has happened at HUD, you would be sickened to see what some in the SES and even above think they can get away with in dictating to ALJs. Well, HUD was and still is a total cluster. But because the ALJ office is so small (only about 4-5 ALJs total), I doubt anything would have changed even if they unionized. When you're dealing with something that small and invisible, it's very hard to stop the political train once it starts rolling. As an example, if someone suggests abolishing the SSA ALJ Corps today, all hell will break lose since NOSSCR and Congress will see it (whether true or not) as an insidious move by SSA to reduce the number of cases paid on appeal. On the other hand, if USPS abolishes its ALJ program as a part of its cost saving measures since it's billions in red, I doubt it will even make the 15th page of any newspaper since the public (and Congress) probably won't care. ALJ independence is critical and needs to be protected. But let's not cheapen it by crying wolf all the time. By way of background, all should know that workdrone has been a key poster here for almost three years. He, along with ALJD, Pixie, odarite and other long time SSA Judges have been a personal lifeline to me and were instrumental to me going to two Dance sets and becoming a Judge. So it pains me to say that I think 'drone is just plain wrong here. While he may think that any threat to ALJ independence is, at this point in time, with the present Agency/Union/FALJC configuration "crying wolf", raising the issue the way pf and I have done is hardly that. Sure, we are not threatened now, but the handwriting that we may be in the future is on the wall. That OCALJ/ODAR cares not one whit about it is enough to ring the "wolf bell" from time to time. I may even agree that the the threat is "crying wolf", but everyone needs to admit that the wolf exists and some don't.
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Post by masondixon on Apr 10, 2010 12:53:38 GMT -5
Here are the real facts from over 20 years on both sides of the coin:
SSA hired ALJs for many years for other agencies after colluding with other agency heads about viable candidates they wanted, especially Department of Labor attorneys.The idea that other agencies can't hire off the existing ALJ register is ludicrous. If the current process yields such highly rated and competent individuals, why do those other agencies still want SSA to hire their people for them?
OPM did not give SSA attorneys without VP points even a fighting chances to get hired as ALJs until the 6th SQS element was added in the mid 1990s. This held true even if they had outstanding experience with DOJ or an active plaintiff's firm. Their employment with SSA was a scarlet letter on their chest in OPM's eyes.
OPM still had a decent ALJ register with around 1200 attorneys on it in spring 2007 before political pressure forced them to dump it and start over. OPM did not want to trash the register it already add going into 2007.
The ALJ hiring practice since May 2007 has been goofy. Candidates have to race to submit their ARs within artificial time constraints. OPM, which used to be fairly transparent with detailed C.F.R. provisions and procedures covering its hiring process, now operates in a cloak of secrecy. No candidate knows what his or her AR, WD, or SI score is, nor does anyone truly know what percentages are assigned to the three elements of the rating process. The SQS counted around 50% under the old rating process. OPM has also failed miserably to provide a meaningful appeals process for the ratings assigned. No one knows why or ow they get scores increased or decreased when final ratings are changed on appeal.
SSA hired a total of 31 agency attorneys out of the last class of 56 recently selected. That is the highest level in history, at least that I am aware of. The ALJ classes hired in 2008 and 2009 typically consisted of 35 to 45% agency attorneys. A large proportion of the same people have private and administrative litigation experience both within (OGC) and outside of SSA. Several agency insiders recently hired have very limited SSA experience. They were recently hired by SSA over the last 18 months, but came in with extensive outside litigation experience within private practice or for other state or federal agencies.
No one knows currently how many agency attorney "insiders" and "outsiders" are on the existing ALJ register. Unless Patriots Fan has made a disclosure I have missed, no one knows how many people are even currently on the register. More importantly, no one knows how many "insiders" and "outsiders" were fully tested by OPM during the current cycle. Similarly, no one knows the average final ratings assigned by OPM to "insiders" versus "outsiders."
I have been around forever and have seen both sides of the arguments being made in this thread many times over. I have been on the ALJ register for the better part of 15 years. I have some inside knowledge from a few people who have sued OPM successfully in the past and won priority considerations on future certificates. I have no doubt someone who is currently litigating against SSA will also be victorious. Please keep an open mind and stay pragmatic about the process being used now by OPM regardless of your views.
SSA employs over 85% of all ALJs working for the federal government. They provide the vast majority of all funding for OPM's operation of what is left of its Office of ALJ. They do naturally have some political persuasion over OPM with respect to how their funds are used.
OPM is currently operating essentially without controlling C.F.R. authority in terms of its ALJ hiring process. OPM previously issued a variance from its own C.F.R. coverage in the late 1990s to justify the old transmuted scoring formula used for assigning ALJ ratings. That is what led to the Azdell litigation.
These are just a few practical observations from a grizzled veteran of the ALJ hiring war. Take them for what they are worth.
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Post by valkyrie on Apr 10, 2010 13:58:48 GMT -5
Well said Workdrone. I have been with ODAR since the early 90's and I have never seen or heard of any pressure as to decisional result. In fact, if anything, management's only response to ALJs failing to follow the laws and regs has been to tell the attorneys to make the ALJs happy and get the garbage out. Production has been the only issue that I have seen pushed by management, though more recently the "electronic environment" has also been a priority. Production has been a valid issue that goes to the very heart of public service, and the e-business model, for all its flaws, is a valid issue of govt accountability, specifically, budget savings.
Scheduling is not only a serious issue, but an issue of ALJ independence. This is an issue for which we can all thank AALJ. Rather than find some common ground regarding the issue of chronically low producing ALJs in SSA, AALJ did what they have always done back when they were an Association; protect the other members of the Country Club from any who would dare question them regardless of the legitimacy of the complaint. While I certainly agree with the need for union protection for the ALJ corps, AALJ unfortunately sold out its reputation years ago screaming "APA" and "judicial indpendence" whenever one of their members got caught with their hands in the cookie jar, or maybe just didn't like the color of the new carpet in their office.
The harsh reality at this point is that the greatest threat to ALJs becoming hearing officers is the backlog and ALJ behavior. SSA told Congress that ODAR was short on $ and ALJs. Congress came through on both, so neither SSA nor its ALJs have any excuses anymore. A combination of the usual ALJ behavioral stupidity and a failure to continue bringing down the backlog will lead to a Congressional redesign of of the process that will make HPI look like a holiday and include many more hearing officers than ALJs. This scenario does not involve an AALJ, district court lawsuits, the APA or ALJ hiring methods. If anyone likes this scenario, please support the ALJ divas in your office, along with the computer Luddites and retirees manifesting their ALJ independence through a 20 decision per month average. I'm sure Congress and the public agree with PF that public service and govt accountability should take a back seat to the Ultimate Goal of a perfect merit-based ALJ selection process.
PF, we are all very proud of how very much you have learned from your extensive govt and SSA experience. We SSA veterans are all shamed by your analytical prowess and deep insight, and we eagerly await the appearance of your name on the short list of potential replacements for Justice Stevens. Please don't concern yourself with our egos, as we checked those at the door when we became SSA staff attorneys.
By the way, who told you about how much we truly care what our HOCALJ's think? Mr. Poochkins is still laughing!
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Post by privateatty on Apr 10, 2010 17:38:14 GMT -5
Well said Workdrone. I have been with ODAR since the early 90's and I have never seen or heard of any pressure as to decisional result. In fact, if anything, management's only response to ALJs failing to follow the laws and regs has been to tell the attorneys to make the ALJs happy and get the garbage out. Production has been the only issue that I have seen pushed by management, though more recently the "electronic environment" has also been a priority. Production has been a valid issue that goes to the very heart of public service, and the e-business model, for all its flaws, is a valid issue of govt accountability, specifically, budget savings. Scheduling is not only a serious issue, but an issue of ALJ independence. This is an issue for which we can all thank AALJ. Rather than find some common ground regarding the issue of chronically low producing ALJs in SSA, AALJ did what they have always done back when they were an Association; protect the other members of the Country Club from any who would dare question them regardless of the legitimacy of the complaint. While I certainly agree with the need for union protection for the ALJ corps, AALJ unfortunately sold out its reputation years ago screaming "APA" and "judicial indpendence" whenever one of their members got caught with their hands in the cookie jar, or maybe just didn't like the color of the new carpet in their office. The harsh reality at this point is that the greatest threat to ALJs becoming hearing officers is the backlog and ALJ behavior. SSA told Congress that ODAR was short on $ and ALJs. Congress came through on both, so neither SSA nor its ALJs have any excuses anymore. A combination of the usual ALJ behavioral stupidity and a failure to continue bringing down the backlog will lead to a Congressional redesign of of the process that will make HPI look like a holiday and include many more hearing officers than ALJs. This scenario does not involve an AALJ, district court lawsuits, the APA or ALJ hiring methods. If anyone likes this scenario, please support the ALJ divas in your office, along with the computer Luddites and retirees manifesting their ALJ independence through a 20 decision per month average. I'm sure Congress and the public agree with PF that public service and govt accountability should take a back seat to the Ultimate Goal of a perfect merit-based ALJ selection process. PF, we are all very proud of how very much you have learned from your extensive govt and SSA experience. We SSA veterans are all shamed by your analytical prowess and deep insight, and we eagerly await the appearance of your name on the short list of potential replacements for Justice Stevens. Please don't concern yourself with our egos, as we checked those at the door when we became SSA staff attorneys. By the way, who told you about how much we truly care what our HOCALJ's think? Mr. Poochkins is still laughing! A "perfect merit-based selection process" is what Congress intended by enacting the APA and attempting to ensure that ALJs were chosen based upon a competitive examination process. Does this further shot across the bow attempt to explain recent hires?
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Post by workdrone on Apr 10, 2010 20:25:15 GMT -5
perfect merit-based selection process" is what Congress intended by enacting the APA and attempting to ensure that ALJs were chosen based upon a competitive examination process. Does this further shot across the bow attempt to explain recent hires? PA, I think if we ever have a beer together, we'd agree a lot more than we disagree. So no hard feelings. That being said, I do want to provide some background prospective on the APA, since many ALJs I had the pleasure of knowing over my years of service talk all day about the APA without ever reading it or understanding its historical evolution. The APA was signed into law in 1946, as an response to the growth of the executive branch during the New Deal period. It has been amended several times since, with 1978 being one of the last major amendments. Several provisions of the current APA deals with ALJ appointment: 5 U.S.C. Section 3105 is the APA section dealing with ALJ hiring. It provides: "Each agency shall appoint as many administrative law judges as are necessary for proceedings required to be conducted in accordance with sections 556 and 557 of this title. Administrative law judges shall be assigned to cases in rotation so far as practicable, and may not perform duties inconsistent with their duties and responsibilities as administrative law judges. " OPM's and MSPB's authority in dealing with ALJ issues come from 5 U.S.C. Sec. 1305. Administrative law judges: "For the purpose of sections 3105, 3344, 4301(2)(D), and 5372 of this title and the provisions of section 5335(a)(B) of this title that relate to administrative law judges, the Office of Personnel Management may, and for the purpose of section 7521 of this title, the Merit Systems Protection Board may investigate, prescribe regulations, appoint advisory committees as necessary, recommend legislation, subpena witnesses and records, and pay witness fees as established for the courts of the United States." 5 U.S.C. sec. 5372 (b)(2) further provides: "The Office of Personnel Management shall determine, in accordance with procedures which the Office shall by regulation prescribe, the level in which each administrative-law-judge position shall be placed and the qualifications to be required for appointment to each level." This is pretty much all the APA says with regards to ALJ hiring, which is actually very little. So I always had a hard time when I hear people say Congressional intend this, Congressional intend that. All I can divine from the above statutes is that Congress created a system and delegated it to OPM and the hiring agency. That's it. There is a whole body of regulations and case laws dealing with Civil Service hiring, but to claim any specific Congressional intent about merit based ALJ hiring based on the APA alone is a bit far fetched. For those of you who didn't read the history for APA, the APA did not start with ALJs. In fact, until the 1978 amendment, we were all "hearing examiners" in the APA language. Thus, while federal hearing examiners have been around even before the APA was created in '46, we were not called ALJs until 1978. In fact, there is an U.S. Supreme Court decision related to the case rotation and RIF of hearing examiners under the APA. See Ramspeck v. Federal Trial Examiners Conference, 345 U. S. 128 (1953). Read it, and you'll get a sense of deja vu out of our arguments here. While I don't always agree with Val, I'd have to concur with her point this time. What Congress giveth, it can easily take away. If anyone here thinks that the agency is the real threat, think again. Congress doesn't really give a #^#& about how OPM selects its ALJ candidates. If it cares, the Azdell case would not have frozen the ALJ Registry for 10 years. What keeps the SSA ALJ Corps alive is the fear that reverting back to the old hearing examiner process will turn adjudicators into denial machines like certain DDS. However, the backlog is paramount now in the minds of the Congress and the agency. So if the agency can point to a sufficient number of ALJs being non-productive and a hinderance to the reduction of backlog, what do you think is going to happen? There is no reference to ALJs in the Constitution. We are creatures of statute, created by Congress to provide Due Process and fairness in the application of federal agency regulations. As we were created by Congressional fiat, so can we be eliminated. Thus, while I have my reservations about how new ALJs are being selected, I am even more concerned about lazy ALJs who are abusing their offices. Because at the end of the day, if Congress views us as a hindrance to its goals, we'll be going the way of the dinosaurs and new ALJ hiring will no longer be an issue.
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Post by privateatty on Apr 11, 2010 8:07:57 GMT -5
I agree that lazy and uncaring ALJs are the larger threat insofar as Congress has the ultimate power to construct or destruct the ALJ Corps. But you, like val and a majority of this Board, tend to see things through the prism of ODAR and pf and I don't. After all, we aren't a part of ODAR and likely never will be.
I also agree with you that your statutory lesson is more valuable for what it doesn't contain.
Another point is that the backlog at ODAR is due to two reasons; failure to properly fund SSA during the Bush years and the Azdell litigation. OPM has to take alot of responsibility for that as there was no mandate that it had to freeze ALJ hiring for so long. OPM cared not one whit that hundreds of thousands of deserving folks were hung out to dry and suffered miseries that you and val and so many Board Members listen to every day. Some died waiting. In my mind, the move was cruel and unnecessary and no one in power really called them on it (as far as I know).
Congress is interested in self-promotion and election; always has been and always will be. Today the concern is Federal Mine Safety and Health Review Commission ("FMSHRC"). The front page of Friday's USA Today: they have 10 "Judges" and want to hire 8 more very soon. And you can bet that Congress is going to ask them how many more Judges are you going to need? 10, 20, 30? Should FMSHRC have to have this cumbersome system of adjudicating citations with ALJs? Should ODAR have this system of tackling the backlog with ALJs? Both Agencies have huge backlogs. And why can't FMSHRC limit their hiring to former Agency counsel?
ODAR may well want to revert back to having ALJs "hearing examiners" and start that process by convincing Congress that it could put a real dent in the backlog by statutorily creating another adjudicative level with same. Who knows? So could FMSHRC. Without question it is the backlog at ODAR that is driving the 3-striking and the last hire where a majority of those hired were either former Agency attorneys or had SSA experience on the Claimant side.
I will admit to having the "recent convert's zeal" insofar as I'm a new ALJ and deeply treasure and respect the ALJ Corps. And yes, there too many ALJs who abuse their office by not getting cases out--they exist in other Agencies too. My concern is that the baby will be thrown out with the bath water and some of our independence and freedoms will be curtailed to fight this abuse of power. Leap-frogging otherwise talented and high scoring attorneys on the Register to reach favorite sons and daughters is an attack on the ALJ Corps and a subversion of OPM's design. That you don't think this process is as bad as the underlying "cancer", fine, I may agree with you. But it is a slippery slope my friend.
So yes, we agree. But from different perspectives and with different amounts of concern.
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