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Post by aljwishhope on Jul 14, 2013 6:05:03 GMT -5
Congrats (first thanks for all the funny that has returned to board)
Congrats congrats to all who made it. There are flaws in the system but for the first time in a long time I felt like I had a real shot at competing based on merits. For example whether sjt reflects skills that make a great alj or not it was a level playing field. I got an opportunity to really put my credentials out there and thereby argue my greatness. I was beaten yes but at least I was not foreclosed. About 4000 folks really got to try.for this job. it will come up again. Volunteer doing outside litigation or whatever to be more competitive and try again. Actually probably have a better shot at this then the 1 attorney job that gets 500 apps and you never hear anything from agency
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Post by hamster on Jul 14, 2013 7:51:07 GMT -5
Exjag wrote: "What makes a great ALJ is subjective and hard to measure. Competitive testing will always leave good folks on the sidelines. OPM is supposed to test the core competencies of an ALJ regardless of SSA experience. If you are an ODAR Attorney and you make it on the register you would have an advantage over the outsider at the interview and in the hiring decision. It is by no means a perfect system and there will always be disappointed folks who thought they should have made the cut."
Comment: I wholeheartedly agree that "[c]ompetitive testing will always leave good folks on the sidelines." Because the selection process is imperfect, great folks are sometimes not promoted to the next stage. I congratulate those of you promoted, and I empathize with those of you who have not been. I know many sitting ALJs who took up to 16 years to be selected. The "16 year wait" ALJ I'm thinking of is one of the superstars of the SSA ALJ Corps, yet he languished for years because the vetting process is imperfect. He now frequently is one of the instructors of our "ALJ 101" course, and he has featured prominently in the periodic videos which focus on various aspects of how to be a better ALJ. Go figure!
I disagree, however, with Exjag's statement that ODAR attorneys "would have an advantage over the outsider at the interview and in the hiring decision." I am an SSA ALJ right now, and have been doing this job for 19 months. (I had zero veteran's preference when I was picked up, which took some time, with dashed hopes along the way). This is my second career--my first career was 20 years in the Air Force as a judge advocate. So, I was not an ODAR person and really had no clue what the job was about when I applied for it...a process that took almost 24 months from application to the telephone call telling me I was hired. I know LOTS of non-ODAR folks who've been hired as SSA ALJs, as well as some insiders. In my office, the outsiders outnumber the insiders by a considerable margin.
I think a non-ODAR background in many ways benefits an applicant. Although you don't know Social Security law at first, what's important is that an applicant has commonsense and knows how to conduct a hearing. I have not met a single "insider" who had experience conducting a hearing when they applied for an ALJ job. I have only met a few "insiders" with "boots on the ground" litigation experience. Insiders generally do not have much, or any, real experience in the courtroom. Yes, they may have drafted decisions or, if an SAA, made a decision; they will have reviewed many files before. But these people have no first-hand experience making, or ruling upon, objections, and have never had to handle, or object to the behavior of, an unruly attorney, or a dissembling or inarticulate witness. In my view, while an insider might "know the law" better (at first), it is the outsider who typically has--by far--the advantage with respect to knowing how to conduct a hearing and teasing out relevant information from a witness.
So, that's my two cents' worth: In my view, while an "insider" might have the contacts within the agency, it is the outsider who knows how to conduct a hearing and develop the record. (Of course, my opinion is supported by over 1000 statistical analyses, learned treatises, and anecdotes shared at training courses, so there is no reason to quibble therewith.)
YMMV. Best, Hamster
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Post by privateatty on Jul 14, 2013 8:14:12 GMT -5
The problem is that OPM doesn't want to update their archaic process but also doesn't want to give up one of their ever shrinking spheres of influence. OPM should simply provide separate registers for separate agencies and eliminate the whole certificate process, with testing geared to each agency's specifications. Of course if they did that, everyone would wonder what the point of a middleman is. VA, immigration, and other agencies not bound to the APA have set up their own administrative Judge systems, with much greater agency management control than can be exercised over ALJs. The conduct of SSA ALJs has been under the congressional microscope for a while now, and given the President's recent effort to highlight his push to make government more effective, efficient, responsive and accountable, taking SSA out of the APA and allowing them to have their own Administrative Judges (with the corresponding increase in SSA management authority) is not exactly a unlikely outcome or anything that could be argued with without sounding very self-serving to the general public, especially considering recent press coverage. I don't know whether there was an intentional effort on OPM's part to stick it to ODAR, but if SSA gets a huge class of people completely unsuited to be SSA ALJs for either experience or personality reasons, it likely would not be hard in the current political climate to convince the congress to alter the Statute to replace OPM selected ALJs with SSA selected AJs and the president would likely go along with such a change. Astrue was pushing for that type of change, and I doubt future commissioners would be averse to having greater control over the selection and management of the agency's judges. Oh please! For starters do you have any doubt that the whole hard fought (and still fighting) RIGHT and DUTY to ensure judicial independence and a fair and due process hearing to thousands of litigants across some 20 plus agencies is something to be frittered away? Most agencies want what they want and ALJs are oftentimes a burr in their saddle. And if I may say so since when is being an ODAR ALJ something so special in terms of personality and experience? OPM does a pretty good job finding lawyers who are smart enough and of sufficient judicial temperment to do the the job. Its rarely the newbies that the ALJ Hunters at OGC and the Puzzle Palace have set their sights on. How many ODAR ALJs on this Board can say that they had a classmate at training who was flummoxed? |
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Post by prescient on Jul 14, 2013 8:42:52 GMT -5
In my view, while an insider might "know the law" better (at first), it is the outsider who typically has--by far--the advantage with respect to knowing how to conduct a hearing and teasing out relevant information from a witness. This encapsulates my primary issue with outsiders. Many have a tendency to base their decisions primarily, if not solely, upon their opinion of the claimant's credibility, regardless of what the medical record demonstrates. Tying the decision to the record is a job duty, that for some bizarre reason, outsider ALjs just seem to have a difficult time doing. I can spin gold out of straw, but it gets tiring at times. |
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Post by privateatty on Jul 14, 2013 9:02:10 GMT -5
In my view, while an insider might "know the law" better (at first), it is the outsider who typically has--by far--the advantage with respect to knowing how to conduct a hearing and teasing out relevant information from a witness. This encapsulates my primary issue with outsiders. Many have a tendency to base their decisions primarily, if not solely, upon their opinion of the claimant's credibility, regardless of what the medical record demonstrates. Tying the decision to the record is a job duty, that for some bizarre reason, outsider ALjs just seem to have a difficult time doing. I can spin gold out of straw, but it gets tiring at times. I'm not in SSA so I will say that I would not attempt to dispute your generalization. And it does make sense that those with a medical legal background would have a leg up insofar as knowing that that leg's numbness IS related to a L4-L5 nerve impingment. So yes, really knowing the meds is a plus. However, to say that outsiders have a tendency to place credibility as a primary factor in their decision making to me sounds like they are lazy. And if that is so then I would posit that there are lazy insiders and outsiders. A party's credibility, whether it be in a labor, personal injury, work comp. or SSA forum can oftetimes trump (in a negative way) otherwise compelling factual and medical evidence. When you are of one mind regarding the case that can be maddening. It happened to me time and again in the private sector. I have successfully attacked this short-sighted approach by proving to the appellate authority that certain facts are indisputable--but I had to pick my battles. I have a feeling that if SSA Judges ignore indisputable medical facts that they will likely see that case again on remand from the AC. |
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Post by funkyodar on Jul 14, 2013 9:18:46 GMT -5
Ah. The neverending insider versus outsider debate. Here is my funked up view. ODAR is its own lil wonderland with crazy and counterintuitive methods. Insiders have a leg up as to getting through that maze. But it doesn't take that long to learn the path and the limited law and outsiders soon catch up. Insiders can be blinded by the trees and not see the forest. Outsiders can see the forest but misidentify the trees. That is why I think a good mix is best. Say 12 years doing complex medical related litigation followed by 2 years as an AA and 2 years as an SAA. Yeah. That would make SuperALJ. Sounds pretty FUNKY to me  |
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Post by privateatty on Jul 14, 2013 9:24:02 GMT -5
Operationalj, thank you for your comments. I agree. I too am from ODAR, have taught and been in management. I too have done signficant adjudication. I do not bring litigation to the table. However, I have many skills that would make me an excellent ALJ for SSA. I am on the current "cert." It is hard for some to process that the SSA hearing is a non-adverarial process with no agency representation and the AlJ has an obligation to develop the record. Motions and evidence rules play a very limited role in our hearings. I completely understand that the requirements for other agencies are very different. But I am sure there is a better way to test so that all agencies can get the candidates they need for the job without cutting ODAR attorneys "en masse." It is not only a sad day for attorneys within the agency, but a travesty to the public that well qualified attorneys who are ready to hit the ground running are being cut from the process based on what appears to be politics. I am not usually a cynic and in fact have been dubbed a "Polyanna" in the past, but I am just thinking politics is helping the public so much right now (sinister smile) and this is just another hit to those who really need a hand up. (I can almost smell the back log of cases beginning to pile.) And by the way, for those keeping track of such things, I have not yet received an email up or down and I have contacted the help desk with no response from there either. Oh, Please! If you have never seen the inside or a courtroom how do you TRULY know what the differnce is between evidence and argument? How about leading questions that testify the witness into the "right" answer? Do you have a gut feeling when you are lied to? Do you know when to attack, when to parry and when to sit down and shut up? These are but a few examples... Yes, yes, y'all say that ODAR's hearings sare "non-adversarial"--well try telling that to a Claimant who was denied benefits because despite the fact that the cynical rep dumped 475 pages of medical records on the ALJ (knowing that he or she had to consider them), the ALJ did read them and proceeded to shred the Claimant with a cross-examination based upon same while the rep tried to parry. Every day in thousdands of hearings ODAR ALJs engage in an adversarial process--its them, the Claimant and his/her rep and truth and justice. SSA DDS said no to benefits, the Claimant says yes. The ALJ must divine the right and justicable answer based oftentimes on a Socratic method that to the Claimant must oftentimes feel that "he doan like me." Finally, a seperate Register will irreparbly divide the ALJ Corps. I'm not going to sit still for that and neither is a whole lot of my brothers and sisters. Almost all of the other Agencies hire from the Corps. Are they now going to have to worry that the "pool" has no trial experience? In fact, excuse me, that's already happened I hear... Finally, if you have read this Board, I mean really read it, then you would know that posters have reported that ODAR attorney were VERY well represented in SSA ALJ classes--along with OGC and rep attorneys. And more than a few had no trial experience. |
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Post by 71stretch on Jul 14, 2013 10:17:16 GMT -5
In my view, while an insider might "know the law" better (at first), it is the outsider who typically has--by far--the advantage with respect to knowing how to conduct a hearing and teasing out relevant information from a witness. This encapsulates my primary issue with outsiders. Many have a tendency to base their decisions primarily, if not solely, upon their opinion of the claimant's credibility, regardless of what the medical record demonstrates. Tying the decision to the record is a job duty, that for some bizarre reason, outsider ALjs just seem to have a difficult time doing. I can spin gold out of straw, but it gets tiring at times. Please remember that not all outsiders are created equal. Rest assured that after almost 25 years as a state ALJ, 19 of them analyzing medical records daily, I know how to "tease out relevant information" from a witness (although I wouldn't describe it that way) and how to tie the decision to the record, citing the applicant's credibility as appropriate. |
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Post by goldenticket on Jul 14, 2013 14:07:44 GMT -5
. . . And thank you privateatty for making my exact point. Litigation experience creates a skill set. You are clearly a star in that regard and I respect your skill and position. As with all skill sets, they can be learned. And the skill set sometimes provides transferable skills to other jobs (no pun intended ODARites). SSA hearings are not court rooms where litigation takes place.
If the opportunity came to me individually, I would fight for judicial independence and the alj's at SSA continuing to be under the Administrative Procedure Act (APA) even at the loss of my own ability to compete for the honor of presiding over a hearing at SSA, because it is the right thing to do. However, there is a possibility that SSA was ahead of it's time with ODAR concept and process in that it takes several Alternative Dispute Resolution techniques and puts them at work in a hearing like setting, clearly not yet perfected (see many threads on this blog). Even in a dispute handled through the traditional methods, 90% or more are settled without going to trial, so I am sure we all recognize that ADR plays the majority role as a process to resolve a legal argument. The mindset required at ODAR is more akin to that of ". . . a willingness to entertain alternatives and to re-examine assumptions about formal litigation," than it is a mindset of strict adherence to rules of evidence with a winner/loser outcome. Thus, to any attorney and/or judge/adjudicator in another arena, if you enjoy the thrill of litigation, the argument with a winner/loser and powering your way through to the end result, ODAR at SSA may not be the best match for you.
ODAR attorneys were, yes, Privateatty, a fair part of the most recent alj classes. I do not need to "read the board" to know that. I live it. I think it has likely enhanced the alj corps. significantly. I know for a fact, that in my ODAR office it has. That is why it is sad to see the practice stalled to "life support" status at the OPM level based on political folly. My opinion is not based on my grief stricken response for being shut out. If you read, really read, my post, you know that 1) I competed during the last application process, made it on the register, and am still on the current cert to ODAR and 2) I have not yet received an up or down email for this most recent application.
My second thank you goes to FunkyODAR. I am a fan and if it can't be me (who knows), then let it be you and Sratty (hope I got the tag right.) I hope to see you all on the other side--even you with the gavel and blustering red-faced determined control (I am a sugar gets more than vinegar kinda smuck.) Music, grandkids, a dance with my spouse and a good nights sleep--made me ready for the next phase, no matter what it is!!! Cheers to us all.
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Post by operationalj on Jul 14, 2013 14:10:23 GMT -5
I can appreciate where ssaogc is coming from; however, as an AA almost 10 years ago I saw the writing on the wall two weeks into the AA job and got busy creating opportunities to maintain and build skills beyond writing decisions. There are SSA attorneys that meet the requirements for ALJ because they have not just sat in their office and write decisions - Ugh- I speak up for myself and those exceptional SSA attorneys.
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Post by goldenticket on Jul 14, 2013 14:16:52 GMT -5
LIKE button--to opeationalalj.
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Post by JudgeRatty on Jul 14, 2013 14:24:00 GMT -5
My second thank you goes to FunkyODAR. I am a fan and if it can't be me (who knows), then let it be you and Sratty (hope I got the tag right.) I hope to see you all on the other side--even you with the gavel and blustering red-faced determined control (I am a sugar gets more than vinegar kinda smuck.) Music, grandkids, a dance with my spouse and a good nights sleep--made me ready for the next phase, no matter what it is!!! Cheers to us all. Thanks goldenticket! We will all be there at some point. Cheers! |
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Post by JudgeRatty on Jul 14, 2013 14:43:06 GMT -5
All this talk of insider v. outsider makes me crazy sometimes. I have both sides so I do see both points quite well. I think what is happening is that there are many hurt feelings and many feel the need to defend why they are on the "chosen" side (moving forward).... very emotional to say the least! But here is the thing, this is a huge bureaucracy and there MUST be some method to choose people. Frankly, the new ALJs that I have seen in the past 9 years or so have been outstanding. So something must be working right. I think that in this very emotional and difficult process, some people will win, and some will just win later.  Clearly there are a lot of strong advocates out there! |
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Post by christina on Jul 14, 2013 14:45:40 GMT -5
Rest assured, interpersonal skills are more needed than u might think. and although OPM may not recognize it, I have a pretty good handle on judicial analysis, management, decisiveness, and temperment based on seeing what does and does not work among judges and years of interacting with judges on a daily basis. I am one of those who has inside and outside experience BTW. and most SAA's have been involved in decision making over the least several years directly and behind the scenes for years before that as they assist the judges with their most challenging cases before and after a decision is made. Some offices are h...bent on only having attorneys write decisions while others have their attorneys and some paralegals involved throughout the whole process. The issue may be that OPM has gone back to a one size fits all and does not recognize how valuable in house attorneys can be. however, as many in housers got through, that is not likely.
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Post by christina on Jul 14, 2013 14:54:41 GMT -5
and for the record, I am not saying that insiders should be hired over outsiders. the best candidates should be hired regardless of their background. but having seen insiders who got through and became ALJ's but with "low" scores and who are great ALJ's, the scoring system likely does not take into account what a good insider can bring to the table.
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Post by hopefalj on Jul 14, 2013 15:08:18 GMT -5
Operationalj, thank you for your comments. I agree. I too am from ODAR, have taught and been in management. I too have done signficant adjudication. I do not bring litigation to the table. However, I have many skills that would make me an excellent ALJ for SSA. I am on the current "cert." It is hard for some to process that the SSA hearing is a non-adverarial process with no agency representation and the AlJ has an obligation to develop the record. Motions and evidence rules play a very limited role in our hearings. I completely understand that the requirements for other agencies are very different. But I am sure there is a better way to test so that all agencies can get the candidates they need for the job without cutting ODAR attorneys "en masse." It is not only a sad day for attorneys within the agency, but a travesty to the public that well qualified attorneys who are ready to hit the ground running are being cut from the process based on what appears to be politics. I am not usually a cynic and in fact have been dubbed a "Polyanna" in the past, but I am just thinking politics is helping the public so much right now (sinister smile) and this is just another hit to those who really need a hand up. (I can almost smell the back log of cases beginning to pile.) And by the way, for those keeping track of such things, I have not yet received an email up or down and I have contacted the help desk with no response from there either. Oh, Please! If you have never seen the inside or a courtroom how do you TRULY know what the differnce is between evidence and argument? How about leading questions that testify the witness into the "right" answer? Do you have a gut feeling when you are lied to? Do you know when to attack, when to parry and when to sit down and shut up? These are but a few examples... Yes, yes, y'all say that ODAR's hearings sare "non-adversarial"--well try telling that to a Claimant who was denied benefits because despite the fact that the cynical rep dumped 475 pages of medical records on the ALJ (knowing that he or she had to consider them), the ALJ did read them and proceeded to shred the Claimant with a cross-examination based upon same while the rep tried to parry. Every day in thousdands of hearings ODAR ALJs engage in an adversarial process--its them, the Claimant and his/her rep and truth and justice. SSA DDS said no to benefits, the Claimant says yes. The ALJ must divine the right and justicable answer based oftentimes on a Socratic method that to the Claimant must oftentimes feel that "he doan like me." Finally, a seperate Register will irreparbly divide the ALJ Corps. I'm not going to sit still for that and neither is a whole lot of my brothers and sisters. Almost all of the other Agencies hire from the Corps. Are they now going to have to worry that the "pool" has no trial experience? In fact, excuse me, that's already happened I hear... Finally, if you have read this Board, I mean really read it, then you would know that posters have reported that ODAR attorney were VERY well represented in SSA ALJ classes--along with OGC and rep attorneys. And more than a few had no trial experience. Wow. I didn't realize running an ODAR hearing was so complicated! Your examples of why a trial background is necessary is bordering on the absurd. How would an ODAR attorney know if someone was lying to them without a trial background? Probably because they're all humans, have dealt with other humans, and presumably have been lied to at one point or another. Leading questions? For one thing, most ODAR attorneys have listened to enough hearings to understand the basic concept. It's not difficult to figure out. For another, who cares? This isn't a formal hearing and leading questions aren't disallowed. Evidence versus argument? This is just an educated guess, but I'm going to assume most ODAR attorneys have gone to law school. Further, I would also assume that most ODAR attorneys have drafted decisions that incorporate evidence, both from the medical record and from the hearing. It's bizarre that you seem to think the world of a disability hearing is some magical realm that requires super-special, secret knowledge that can only be attained through years and years of trials. It isn't rocket science. The strangest part is the supposed need to know "when to attack, when to parry and when to sit down and shut up." In my opinion, and in the apparent opinion of most of the ALJs in my office based upon the way they conduct their hearings, there is never a need to attack anyone outside of maybe a wayward rep. The only way a hearing becomes adversarial is if you make it so, and based on your post, that seems to be your style. Most of the judges in my office conduct their hearings like fact-finding missions. They are much more akin to depositions than trials, and considering that big, bad litigators tend to pawn those off on baby lawyers in private practice, I don't believe this is a skill that can't be quickly learned by an ODAR attorney. There is no need to scream "GOTCHA!!!!!" at a claimant when they misrepresent something in a hearing. There's no need to make them defensive or try to embarrass them. You can ask questions and glean information without putting them on the defensive or showing someone with a ninth-grade education how well you can out-smart them. You can run your hearings however you like, but just because you do it that way doesn't mean (a) it's the only way or(b) that that it's even the best way. And I say this as an ODAR attorney that has years of litigation experience and a year of clerking for a federal judge where I got to see all kinds of good stuff. |
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Post by funkyodar on Jul 14, 2013 15:16:16 GMT -5
Oh, Please! If you have never seen the inside or a courtroom how do you TRULY know what the differnce is between evidence and argument? How about leading questions that testify the witness into the "right" answer? Do you have a gut feeling when you are lied to? Do you know when to attack, when to parry and when to sit down and shut up? These are but a few examples... Yes, yes, y'all say that ODAR's hearings sare "non-adversarial"--well try telling that to a Claimant who was denied benefits because despite the fact that the cynical rep dumped 475 pages of medical records on the ALJ (knowing that he or she had to consider them), the ALJ did read them and proceeded to shred the Claimant with a cross-examination based upon same while the rep tried to parry. Every day in thousdands of hearings ODAR ALJs engage in an adversarial process--its them, the Claimant and his/her rep and truth and justice. SSA DDS said no to benefits, the Claimant says yes. The ALJ must divine the right and justicable answer based oftentimes on a Socratic method that to the Claimant must oftentimes feel that "he doan like me." Finally, a seperate Register will irreparbly divide the ALJ Corps. I'm not going to sit still for that and neither is a whole lot of my brothers and sisters. Almost all of the other Agencies hire from the Corps. Are they now going to have to worry that the "pool" has no trial experience? In fact, excuse me, that's already happened I hear... Finally, if you have read this Board, I mean really read it, then you would know that posters have reported that ODAR attorney were VERY well represented in SSA ALJ classes--along with OGC and rep attorneys. And more than a few had no trial experience. Wow. I didn't realize running an ODAR hearing was so complicated! Your examples of why a trial background is necessary is bordering on the absurd. How would an ODAR attorney know if someone was lying to them without a trial background? Probably because they're all humans, have dealt with other humans, and presumably have been lied to at one point or another. Leading questions? For one thing, most ODAR attorneys have listened to enough hearings to understand the basic concept. It's not difficult to figure out. For another, who cares? This isn't a formal hearing and leading questions aren't disallowed. Evidence versus argument? This is just an educated guess, but I'm going to assume most ODAR attorneys have gone to law school. Further, I would also assume that most ODAR attorneys have drafted decisions that incorporate evidence, both from the medical record and from the hearing. It's bizarre that you seem to think the world of a disability hearing is some magical realm that requires super-special, secret knowledge that can only be attained through years and years of trials. It isn't rocket science. The strangest part is the supposed need to know "when to attack, when to parry and when to sit down and shut up." In my opinion, and in the apparent opinion of most of the ALJs in my office based upon the way they conduct their hearings, there is never a need to attack anyone outside of maybe a wayward rep. The only way a hearing becomes adversarial is if you make it so, and based on your post, that seems to be your style. Most of the judges in my office conduct their hearings like fact-finding missions. They are much more akin to depositions than trials, and considering that big, bad litigators tend to pawn those off on baby lawyers in private practice, I don't believe this is a skill that can't be quickly learned by an ODAR attorney. There is no need to scream "GOTCHA!!!!!" at a claimant when they misrepresent something in a hearing. There's no need to make them defensive or try to embarrass them. You can ask questions and glean information without putting them on the defensive or showing someone with a ninth-grade education how well you can out-smart them. You can run your hearings however you like, but just because you do it that way doesn't mean (a) it's the only way or(b) that that it's even the best way. And I say this as an ODAR attorney that has years of litigation experience and a year of clerking for a federal judge where I got to see all kinds of good stuff. Hope has the funk. damn. |
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Post by funkyodar on Jul 14, 2013 15:18:16 GMT -5
. . . And thank you privateatty for making my exact point. Litigation experience creates a skill set. You are clearly a star in that regard and I respect your skill and position. As with all skill sets, they can be learned. And the skill set sometimes provides transferable skills to other jobs (no pun intended ODARites). SSA hearings are not court rooms where litigation takes place. If the opportunity came to me individually, I would fight for judicial independence and the alj's at SSA continuing to be under the Administrative Procedure Act (APA) even at the loss of my own ability to compete for the honor of presiding over a hearing at SSA, because it is the right thing to do. However, there is a possibility that SSA was ahead of it's time with ODAR concept and process in that it takes several Alternative Dispute Resolution techniques and puts them at work in a hearing like setting, clearly not yet perfected (see many threads on this blog). Even in a dispute handled through the traditional methods, 90% or more are settled without going to trial, so I am sure we all recognize that ADR plays the majority role as a process to resolve a legal argument. The mindset required at ODAR is more akin to that of ". . . a willingness to entertain alternatives and to re-examine assumptions about formal litigation," than it is a mindset of strict adherence to rules of evidence with a winner/loser outcome. Thus, to any attorney and/or judge/adjudicator in another arena, if you enjoy the thrill of litigation, the argument with a winner/loser and powering your way through to the end result, ODAR at SSA may not be the best match for you. ODAR attorneys were, yes, Privateatty, a fair part of the most recent alj classes. I do not need to "read the board" to know that. I live it. I think it has likely enhanced the alj corps. significantly. I know for a fact, that in my ODAR office it has. That is why it is sad to see the practice stalled to "life support" status at the OPM level based on political folly. My opinion is not based on my grief stricken response for being shut out. If you read, really read, my post, you know that 1) I competed during the last application process, made it on the register, and am still on the current cert to ODAR and 2) I have not yet received an up or down email for this most recent application. My second thank you goes to FunkyODAR. I am a fan and if it can't be me (who knows), then let it be you and Sratty (hope I got the tag right.) I hope to see you all on the other side--even you with the gavel and blustering red-faced determined control (I am a sugar gets more than vinegar kinda smuck.) Music, grandkids, a dance with my spouse and a good nights sleep--made me ready for the next phase, no matter what it is!!! Cheers to us all. Thanks GT. Best of luck on gettin that email snafu sorted out and joining us in DC. |
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Post by funkyodar on Jul 14, 2013 16:14:23 GMT -5
I've read through all the posts and have listened to 4 years of debate on the insider v outsider issues and, having more experience out than in and having worked with aljs from both backgrounds, I think it is bs. You just can't be that generalized. Who makes a good judge is subjective and the opm testing, though likley flawed and too general itself, is the way that we have to play.
As many of you know, I have many insider and outsider colleagues who applied and aren't going to DC. Most were cut at phase 1. I have encouraged all to appeal. 3 judges in my office got their jobs through appeal. But it will not be easy.
In the past, people were cut after submitting their resumes questionnaires and their accomplishment record. If cut they were essentially told they weren't qualified. Thus, their appeals were based on cuts like those we saw on phase 1. If you were cut at phase 1it was a go or no go decision. You were either found to have the 7 years or not. That seems easily appeallable and you may find success.
Phase 2 cuts aren't so easy. The sjt was about perfectly objective and if you tanked that how can you appeal. As for the wd and EA, unlessit is disclosed how they were scored and what weight they had, appeals will be equally tough.
I've seen some reference getting congressmen involved. Good luck with that. It was congress that directed opm to formulate new testing. Further, I personally know a US Senator well enough to make him blush from old childhood stories. He has told me his favors stopped at the IRS and OPM. No one wants to be caught helping someone avoid taxes or pulling strings to get a friend a gov job.
There has also been talk of lawsuits and as a former class action lawyer I am all for a good mutiplaintiff suit. I know there was past litigation. I don't think its likely to get much traction this time though. Phase 2 was too objective. Everyone had equal opportunity.
Some who were cut may have bombed the sjt (easy to do when all answers are technically right), may have had one too many typos on the wd or failed to give enough case cites on the EA. But all had the same opportunity to shine or $hit.
Even a suit against the alleged prejudices in the design of the tests is spurrious at best. opm has a right to determine what it wants in an alj and a right to design any non protected class prejudicial app process. They owe no one a job and promised no one a job. No one has any contractual or constitutional or statutory right to move to phase 3. It's akin to an at will employment state. You can be cut for any reason or no reason as long as it wasn't discriminatory against a protected class.
I'm really saddened by the fact that many of my friends and colleagues, both real and virtual, are out of contention and have a real "there but for the grace" mentality about it. The realization that I still have a lot of slip between the cup and the lip and could easily be cut in DC or sit on a reg indefinitely gives me no solace either.
If you truly feel aggreived or some new info comes out that supports a suit or have a congress friend, by all means do whatever you can. Personally, if I am cut or had been cut at phase 2, I'd drink myself silly and move on with a plan to take steps between now and the next time it opens to make myself into the candidate they obviously want. Why spend time money and energy on a high probability losing lawsuit with opm that will take years when I can spend the same on doing a few public defender appointments and legal aid litigations that will bolster my resume over the same period?
Or maybe I'm funked in my thinkin cause I am not yet in your shoes and if so would sue every single opm employee and congress and ssa and moopigsdad and ssaogc and this board and my mom and ...
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Post by privateatty on Jul 14, 2013 16:32:02 GMT -5
. . . And thank you privateatty for making my exact point. Litigation experience creates a skill set. You are clearly a star in that regard and I respect your skill and position. As with all skill sets, they can be learned. And the skill set sometimes provides transferable skills to other jobs (no pun intended ODARites). SSA hearings are not court rooms where litigation takes place. If the opportunity came to me individually, I would fight for judicial independence and the alj's at SSA continuing to be under the Administrative Procedure Act (APA) even at the loss of my own ability to compete for the honor of presiding over a hearing at SSA, because it is the right thing to do. However, there is a possibility that SSA was ahead of it's time with ODAR concept and process in that it takes several Alternative Dispute Resolution techniques and puts them at work in a hearing like setting, clearly not yet perfected (see many threads on this blog). Even in a dispute handled through the traditional methods, 90% or more are settled without going to trial, so I am sure we all recognize that ADR plays the majority role as a process to resolve a legal argument. The mindset required at ODAR is more akin to that of ". . . a willingness to entertain alternatives and to re-examine assumptions about formal litigation," than it is a mindset of strict adherence to rules of evidence with a winner/loser outcome. Thus, to any attorney and/or judge/adjudicator in another arena, if you enjoy the thrill of litigation, the argument with a winner/loser and powering your way through to the end result, ODAR at SSA may not be the best match for you. ODAR attorneys were, yes, Privateatty, a fair part of the most recent alj classes. I do not need to "read the board" to know that. I live it. I think it has likely enhanced the alj corps. significantly. I know for a fact, that in my ODAR office it has. That is why it is sad to see the practice stalled to "life support" status at the OPM level based on political folly. My opinion is not based on my grief stricken response for being shut out. If you read, really read, my post, you know that 1) I competed during the last application process, made it on the register, and am still on the current cert to ODAR and 2) I have not yet received an up or down email for this most recent application. My second thank you goes to FunkyODAR. I am a fan and if it can't be me (who knows), then let it be you and Sratty (hope I got the tag right.) I hope to see you all on the other side--even you with the gavel and blustering red-faced determined control (I am a sugar gets more than vinegar kinda smuck.) Music, grandkids, a dance with my spouse and a good nights sleep--made me ready for the next phase, no matter what it is!!! Cheers to us all. Thanks GT. Best of luck on gettin that email snafu sorted out and joining us in DC. Thanks for the kind words. What I was trying to say is that experience. IMHO, is essential. I was hardly describing what goes on in a ODAR Hearing--never been to one. I am more than sure there are ODAR ALJs without the experience I am talking about who are excellant Judges. I am not so sure they would get hired by another Agency. |
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Clearly there are a lot of strong advocates out there! 
