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Post by privateatty on Apr 13, 2010 17:57:03 GMT -5
Ok, at the risk of seeming absurd, I ask: how do you start a new thread? I thought only the administrators of the site could do this? I realize this post may also get lost in the shuffle, but if someone would answer, I'd appreciate it. And thank you for the information on referenences. Shanti. Bottom right: "General page" and then go to new thread which is top right.
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Post by privateatty on Apr 13, 2010 18:36:46 GMT -5
Carrick, Thanks for the information, but please clarify. We put references on the application. If we do get an interview with an agency, are we asked to provide nine more references, or is this just an opportunity to update contact information for the references on the application? The USAJobs website already has a mechanism by which we can update contact information for references. As I recall you can use the same references with the Agency. I mean even the Cowboys limit the number of cheerleaders.
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Post by carrickfergus on Apr 13, 2010 18:55:20 GMT -5
Tricia: I'm sure you can use references that you put on the app, but they will ask for more - around 9, I believe - if you get on the cert
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Post by Propmaster on Apr 14, 2010 10:10:17 GMT -5
The follow-up point, in my view, is that SSA ALJs and other ALJs should not be different. They are established under the same statutory authority and given the same mandate for independence. I believe that your first two hats (impartial adjudicator and presenter of agency position) are in conflict. Now if you define the agency position as the statutes and regulations, i.e. the law governing the proceeding, then I can accept your position. If, however, it includes, policies, memos and other non-promulgated (through rulemaking) positions that can be changes at the caprice of a bureaucrat (and I am one of those) that becomes a threat to judicial independence. To fix this would require major changes and I understand it is not going to happen, but as a pure legalistic approach, I think SSA ALJs have lost a significant portion of their statutory independence. As a practical matter, if I were ever to be hired as an ALJ at SSA I would not buck the system (at least too often). How interesting. I actually agree with every point you made. There is another thread about POMS (which died, most likely because the two sides stated their positions and had no movement to make in terms of discussion), which is agency policy that did not go through notice and comment, and whether SSA ALJs are bound by or even can rely on it. That thread addresses in a specific sense some of the dichotomy between these hats, and your summary of the problem that arises, although I have never seen it expressed thusly before, seems accurate. [Edit: when I reread my posts, I sometimes wonder if anyone ever understands what I mean in a decision. I don't get any complaints from judges, but, heck, maybe I deserve a low WD score. What kind of run-on sentence was that? To clarify, I meant to say something more like: "... There is another thread about POMS, which is agency policy that did not have to go through notice and comment. The thread asks and briefly discusses whether SSA ALJs are bound by, or even can rely on, POMS. That thread addresses in a specific sense some of the dichotomy between these hats. Your summary of the problem that arises from this dichotomy, which I have never before seen expressed like you expressed it, seems accurate."
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Post by decadealj on Apr 14, 2010 12:10:39 GMT -5
propmaster- I think that policy thread kind of got hijacked but I would like to think there was no additional comment because the reasoning was so compelling. Probably wrong but to me it is the ultimate issue confronting an ALJ and the agency can accept ot reject it. As I indicated on this Board earlier, it was my rejection of a POM and regulation which caused the agency to revise the reg to limit the effect of state intestacy laws on child paternity cases. I would like nothing more than to see the same thing happen with SSA policy on "equity and good conscience".
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Post by privateatty on Apr 14, 2010 16:45:52 GMT -5
This from one of the experts in Administrative Law, a well respected law school professor and Adlaw textbook author, to my inquiry on this question. "ALJs have the clear statutory right and obligation to interpret and apply the statutes that govern the agency. Inherent in that right is the ability to conclude that a particular regulation, either on its face or as applied, is invalid under or contrary to the applicable statute." He mentions a few obvious examples that might help. I am paraphrasing here. Agency promulgates a regulation that prevents a claimant from getting benefits when the statute clearly makes the claimant eligible for these benefits. Statute trumps regulation, ALJ applies statute, finds for claimant, decides regulation is contrary to statute. He argued that doing so is "part and parcel" of what ALJs do. That being said, its pretty hard to ignore a facially valid regulation, and the agency, as you know, has generally broad authority to promulgate/interpret based upon most statutes. But the above example could occur, in that one could see an agency wishing to limit a benefit that Congress never sought to be limited, and an ALJ is entirely within her statutory responsibility and duty to make such a finding, whether at ODAR or anywhere else. Given my excessive recent post, I bet you know I would like more info. Some academics make discussions in "ideal" worlds - textbook writers, for sure, are concerned with overarching principles, not nitty-gritty. Some of my classes in law school covered uniform codes, but not every state has them. Thus, in practice, the "clear statutory right" may not be so clear in every context. So, did your friend, by any chance, give any sort of source or reference to his opinion? I ask because your example is not at all clear to me. The aggrieved party can challenge the regulation in "real" court - district courts, courts of appeals, and the Supreme Court are fairly experienced at making these calls and have existing bodies of law and procedure to deal with the issue. An employee of the agency simply does not "clearly" have the ability to unilaterally change the agency's properly-promulgated (rule and comment) regulation. I remain open (surprisingly) to being further educated in this regard. An employee of the Agency? You're an ALJ for crying out loud. Yes, you give it proper Chevron deference and follow it unless in your opinion it runs contrary to Statute. And in the vast majority of cases you will follow the Reg as applicable. However, I look at the Statute. I look at the Reg. Like pf says, Statute trumps Reg. I read the Statutes before I read the Regs in my little area of the law. ALJD says that there has been litigation that has fine-tuned the Reg, therefore it is all but sacrosanct. Maybe in your neck of the woods, I dunno. And I will follow the precedent if on point of the Supremes, the Circuit and District Courts as we were all taught to do in law school. But Regs are not Statutes and I think it is mis-leading to infer that they have that power. Granted, many a time they are your best source of guidance, but this trooper is not in lock step.
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Post by Propmaster on Apr 14, 2010 18:04:34 GMT -5
PA:
My response actually gives me some pause as well. But I think it comes down to REALLY vast differences in the agencies.
For example, I do not have access to an electronic case reporting service. If I want to look up precedent, I would either need to subscribe on my own dime (if that's even allowed) or read every case published by the Circuit Court of Appeals (which i don't have time to do), save a copy, and index them myself. Since I was a practitioner before joinging the agency, I know of many important cases; and I have friends who can look things up - but I don't generally do so. It is beyond the scope of preparing a decision in SSA. (Possibly, I have missed something huge in my available resources, but it wasn't covered in orientation or training, and I have not run across it during the times I have been using our resources)
(The 2nd Circuit is an exception to the following)
From the Hearing office manual of SSA (HALLEX):
"[Acquiescence Rulings] explain how SSA will apply United States Court of Appeals (circuit court) holdings which conflict with SSA's interpretation of a provision of the Social Security Act or regulations. SSA will apply the circuit court holding as explained in the AR to other cases in the same circuit where the issues involved are the same."
In the absence of an AR, ALJs are not to do their own research into case law, and except for some small exceptions (HALLEX summaries; the occasional regional attorney newsletter; NOSSCR memberships), ALJs are not given access to do any of this kind of independent research.
(Note: it is possible ALJs have more resources than I am aware of, but if so, I have still never seen an ALJ except one or two who are also adjunct law professors do any such research).
Without access to court cases, I fail to see how ALJs can reliably decide whether their independent interpretation of a statute has already been adopted or rebuked by a court.
DecadeALJ (I believe) pointed out some good points about explicitly inconsistent statute and regulations. I recall this happening when the 1/2 support rule for step-parents was changed in statute and it took (or has taken) years for the regulation to catch up. The same is true of the 36 month EPE (which was (or still is) 15 months in the regulations for years).
The fact is, I can sqaure this with my position by simply acknowledging that sometimes exceptions apply. I agree that ALJs should not divorce their faculties for thought when taking an ALJ job. But SSA ALJs do not have time to research Congressional Intent, regulatory history, case law in various jurisdictions, etc. They simply cannot be "up" on the consistency between a statute and a regulation except the well-known exceptions that are overt.
My very first example on this topic was an ALJ who thumbed his nose at the AC while choosing to use the DAA statutory changes instead of the existing regulations.
The existing regulations have been kept, have been applied by Courts of Appeals, and were present at the time Congress invoked them in the new statutory scheme by using the same "terms of art" in the prior regulations. I did and still do maintain that the ALJ was wrong about the regulation being inconsistent with the statute, and my point was proven (my case is the leading case on point in my Circuit, I am still proud to say).
When the interpretation could go either way (i.e. not when the statute says 36 and the regulation says 15; not when the statute says blue and the regulation says red), a SOCIAL SECURITY (I limit it thusly due to my familiarity therewith) ALJ is not provided with the tools to make decisions of statutory interpretation challenging agency regulations, does not have the time to use them if he or she gets them on his or her own, and frankly, given the load of cases, accomplishes very little with his or her non-precedential decision affecting a single person, and that is still going to be able to be reviewed by the Appeals Council.
Obviously, an ALJ has to sleep at night, and I don't encourage anyone to meekly roll over in the face of injustice; but tilting at windmills will cause bitterness VERY quickly, and an over-inflated idea of what the potential research and writing opportunities are at SSA ODAR will serve no applicants well.
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Post by Well on Apr 14, 2010 22:08:50 GMT -5
The typical SSA ALJ hears more cases a year than an ALJ in any other agency and there are more SSA ALJs than any number of agencies combined. Most decisions not favorable to the applicant are appealed to the AC and many of those taken to court. This a very narrow area of law with a lot of case law and most of it fact specific related to weight given evidence or use (or non-use) of an expert.
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Post by valkyrie on Apr 15, 2010 5:55:54 GMT -5
The reason why I don't have a problem with taking the regs as I find them is that the concerned party, the claimant, has both the AC and the district court to address these matters. Their caseloads and levels of logistical support are far more suited to taking such a dramatic step as invalidating a reg.
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Post by decadealj on Apr 15, 2010 7:58:29 GMT -5
Val- if the claimant has a rep, I would agree. But if you noticed the two subjects I have focused upon, paternity cases and overpayments, the claimant is rarely represented because there is no cash to be tapped by a rep! Perhaps because I have spent the vast majority of my time over the last two decades hearing "big box" Medicare cases, I am used to researching non-disability issues, (like what if the random sample wasn't kosher?), I am not stuck in the disability rut, when it comes to issue spotting. I very much regret the lack of diversity in issues at hearings now that I am just another ODAR adjudicator which is why it is time to leave.
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Post by Propmaster on Apr 15, 2010 13:13:00 GMT -5
PA: My response actually gives me some pause as well. But I think it comes down to REALLY vast differences in the agencies. For example, I do not have access to an electronic case reporting service. If I want to look up precedent, I would either need to subscribe on my own dime (if that's even allowed) or read every case published by the Circuit Court of Appeals (which i don't have time to do), save a copy, and index them myself. Since I was a practitioner before joinging the agency, I know of many important cases; and I have friends who can look things up - but I don't generally do so. It is beyond the scope of preparing a decision in SSA. (Possibly, I have missed something huge in my available resources, but it wasn't covered in orientation or training, and I have not run across it during the times I have been using our resources) (The 2nd Circuit is an exception to the following) From the Hearing office manual of SSA (HALLEX): "[Acquiescence Rulings] explain how SSA will apply United States Court of Appeals (circuit court) holdings which conflict with SSA's interpretation of a provision of the Social Security Act or regulations. SSA will apply the circuit court holding as explained in the AR to other cases in the same circuit where the issues involved are the same." In the absence of an AR, ALJs are not to do their own research into case law, and except for some small exceptions (HALLEX summaries; the occasional regional attorney newsletter; NOSSCR memberships), ALJs are not given access to do any of this kind of independent research. (Note: it is possible ALJs have more resources than I am aware of, but if so, I have still never seen an ALJ except one or two who are also adjunct law professors do any such research). Without access to court cases, I fail to see how ALJs can reliably decide whether their independent interpretation of a statute has already been adopted or rebuked by a court. DecadeALJ (I believe) pointed out some good points about explicitly inconsistent statute and regulations. I recall this happening when the 1/2 support rule for step-parents was changed in statute and it took (or has taken) years for the regulation to catch up. The same is true of the 36 month EPE (which was (or still is) 15 months in the regulations for years). The fact is, I can sqaure this with my position by simply acknowledging that sometimes exceptions apply. I agree that ALJs should not divorce their faculties for thought when taking an ALJ job. But SSA ALJs do not have time to research Congressional Intent, regulatory history, case law in various jurisdictions, etc. They simply cannot be "up" on the consistency between a statute and a regulation except the well-known exceptions that are overt. ... [snip] As is common. my first impulse is wrong. I like to think that issuing corrections is helpful; but I know it probably doesn't absolve me. Note to self: think then talk/write. Oh well: After checking around, I have found out that we can get Westlaw and Lexi passwords. Not everyone seems to know this, and there are very few people in my office who have them or use them, but I am off to apply for one now. I wonder how much more dangerous and ineffecient I will be made by exposure to more law? (And oddly, it comes at a time when I actually need to research case law for an issue of policy application outside the context of specific disabilit cases! So I was a day ahead of the game.)
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Post by valkyrie on Apr 15, 2010 22:24:38 GMT -5
Val- if the claimant has a rep, I would agree. But if you noticed the two subjects I have focused upon, paternity cases and overpayments, the claimant is rarely represented because there is no cash to be tapped by a rep! Perhaps because I have spent the vast majority of my time over the last two decades hearing "big box" Medicare cases, I am used to researching non-disability issues, (like what if the random sample wasn't kosher?), I am not stuck in the disability rut, when it comes to issue spotting. I very much regret the lack of diversity in issues at hearings now that I am just another ODAR adjudicator which is why it is time to leave. Point taken. Of course nothing says that you can't tell the unrepped claimant that he seems to have a great appeal.
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Post by chinook on Apr 16, 2010 10:31:50 GMT -5
If you are a judge, that, in my view, is an ethical breech. But we don't worry about impartiality.
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Post by Propmaster on Apr 16, 2010 12:31:00 GMT -5
If you are a judge, that, in my view, is an ethical breech. But we don't worry about impartiality. I believe I have seen a number (or at least a few) Court of Appeals cases (and maybe district court, too) that identify the outcome of the case as required by precedent, but encourage the higher court to change the rule on appeal (effectively encouraging appeal). I think it is a violation to help the person make the appeal, but I don't think it is a violation to say that the decision-maker is bound by governing statues, regulations, case-law, etc., but that it could potentially be changed on appeal so go for it. Although, again, I just realized this is probably a difference between adversarial and non-adversarial. Telling one side to appeal the others' victory is much more like bias, I guess, than I would consider a judge telling a claimant who lost (but a case in which no one "wins" by that loss) to continue to pursue his or her rights. Why is the law so complicated.
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Post by tricia on Apr 23, 2010 18:22:39 GMT -5
Lurker, you said: "Oh, and who wouldn't want someone who could turn a phrase as nicely as "peeing in the judicial gene pool" writing their decisions? " Right. Lurker, I have been wondering for two years what is in that picture. Are you a potter? Is that pottery you have made? Or is that a kitchen scene?
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