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Post by true on Nov 9, 2013 13:00:12 GMT -5
I FOUND THE FOLLOWING ARTICLE, WHICH GIVES AN INTERESTING INSIGHT ON THE AGENCIES DESIRE FOR INDUSTRY INSIDERS AND OPM DESIRES FOR A DIVERSE INTELLECTUAL POOL OF APPLICANTS. I AM NOT ADVOCATING ANY POSITION. I SIMPLY WANT TO INFORM APPLICANTS OF THIS ONGOING BATTLE.
In 1941, prior to the enactment of the APA, the Attorney General's Committee on Administrative Procedure advocated specialization of hearing examiners, the predecessors to ALJs, for efficiency reasons. A 1954 report by the President's Conference on Administrative Procedure "criticized the system of appointments that purported to constrain agency discretion in appointing ALJs to the top three on the register, but that, in fact, permitted agencies to escape the full effects of this constraint, by agencies requesting selective certification, among other methods". The president's Conference wanted agencies to be able to choose from any candidate on the list of eligible hires. In 1962, a Civil Service Commission advisory committee on ALJs recommended "allowing individual agencies to require special qualification for appointment".
The same year, however, the Staff Director of the Administrative Conference wrote a report opposing selective certification "on the ground that general capabilities and intelligence were more important than skill in the law and politics of a particular agency." The report noted that selective certification led to "undesirable inbreeding" because agency ALJs who were selectively certified as having met the specific subject matter criteria were most likely to previously have been agency staff attorneys. Later 1 1969 report confirmed this: in a five-year span, 52 of 66 ALJs appointed by the agencies using selective certification had previously been employed on the staffs of those agencies.
From 1973-1984 ALJ examination announcement by OPM, eligible ALJs "with the types of special expertise recognized by the selectively certifying agencies were, in effect, asterisked on the registers, and those agencies were permitted to select from the asterisked eligible: Coast Guard, SEC, NLRB, FCC, Dept of Labor, and SSA(for Puerto Rico).
In 1984, OPM ended the selective certification procedure in Examination Announcement No. 318. Agencies were no longer allowed to formally require subject-matter expertise. The announcement did not explain the reason for the change, but stated: "Where agencies can justify by job analysis that special qualifications enhance performance on the job, agencies may give priority consideration in filling vacant positions to applicants with special qualifications" However, the announcement did not define the meaning of "priority consideration." Irrespective of the 1984 announcement, agencies must select from "the highest 3 eligibles available for appointment on the certificate, taking into consideration veteran preference rules.
Agencies such as the International Trade Commission have requested that OPM allow them to choose an ALJ candidate from the entire list of eligible hires, based on the candidate's agency experience and technical qualifications, rather than the candidate's placement as one of the top three candidates. The Social Security Administration and others have argued in favor of granting bonus points to candidates who have subject matter experience " to provide such candidates with a reasonable opportunity for selection." However, it does not appear that OPM is willing to allow this practice. additionally, the American Bar Association has opposed the ITC's proposal.
Lubbers, supra note 10 at 117. OPM, Examination Announcement 318 (May 1984) at 8. 5 C.F.R. Sect 332.404 see also 5 C.F.R. sec 302.201-Persons entitled to veteran preference.
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Post by bartleby on Nov 9, 2013 14:48:18 GMT -5
Craziness, "the Staff Director of the Administrative Conference wrote a report opposing selective certification "on the ground that general capabilities and intelligence were more important than skill in the law and politics of a particular agency."" Implying of course that staff attorneys would not have general capabilities and intelligence commensurate with those of attorneys off the street.. God knows Agency knowledge is of little to no benefit.. Experience should never be a consideration utilized for hiring. And idiocy rules again..
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Post by true on Nov 9, 2013 15:35:40 GMT -5
Craziness, "the Staff Director of the Administrative Conference wrote a report opposing selective certification "on the ground that general capabilities and intelligence were more important than skill in the law and politics of a particular agency."" Implying of course that staff attorneys would not have general capabilities and intelligence commensurate with those of attorneys off the street.. God knows Agency knowledge is of little to no benefit.. Experience should never be a consideration utilized for hiring. And idiocy rules again.. I agree that it sounds as if they are implying that. But, Look at SSA's argument for giving bonus points to insiders in last paragraph. Sadly, it is almost consistent with what the Director said.
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Post by futuressaalj on Nov 9, 2013 15:46:19 GMT -5
SSA did not really need this selective certification on the last register. By limiting the applicant pool who could apply they ensured an insider rich mix register from which they could pick insiders and they did just that.
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Post by privateatty on Nov 9, 2013 16:09:33 GMT -5
Craziness, "the Staff Director of the Administrative Conference wrote a report opposing selective certification "on the ground that general capabilities and intelligence were more important than skill in the law and politics of a particular agency."" Implying of course that staff attorneys would not have general capabilities and intelligence commensurate with those of attorneys off the street.. God knows Agency knowledge is of little to no benefit.. Experience should never be a consideration utilized for hiring. And idiocy rules again.. I'll give a shout out YES and a like to you, bartleby. Prof. Lubbers should remember two things: one, that is why OPM has the exam process it has--to find reasonably bright attorneys who want to be AlJs. Secondly, my agency, like all others requires specialized knowledge. At ODAR, you have a formal training class. The remainder of agencies don't have such training--you get OJT. And you know what, everyone learns the areas of law and does well. By some stange alchemy the motivation that got then into the Judge's chair serves them well in their new job. Frankly, I am sick of Prof. Lubbers and the folks (like ODAR) who think that having a "leg up" in knowing the law somehow entitles you to be an ALJ, or at least should give you preference. They are misinformed at best and IMO, just plain stupid. ITC or ODAR or SEC would love to have their prior attorneys that they like working for them. Good thing that they can't always get what they want.
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Post by deltajudge on Nov 9, 2013 17:46:35 GMT -5
8-)I got on the register in 1975, and was selected that year. At the time, no staff attorneys in the agency were eligible. However, those attorneys involved in litigation for different agencies within the beltway got higher scores than us off the street, and the register was top heavy with them. They were the insiders of the day.
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Post by true on Nov 9, 2013 18:51:12 GMT -5
I think that you are right Deltajudge. Staff attorneys instituted litigation on at least two occasions against OPM for 1. How they calculated Veteran's preference 2. Staff attorneys who did not have trial experience were not eligible at some point in the ALJ examination process. Their grievance was that they scored higher than some with trial experience. But, they were still ineligible.
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Post by true on Nov 9, 2013 20:22:47 GMT -5
Craziness, "the Staff Director of the Administrative Conference wrote a report opposing selective certification "on the ground that general capabilities and intelligence were more important than skill in the law and politics of a particular agency."" Implying of course that staff attorneys would not have general capabilities and intelligence commensurate with those of attorneys off the street.. God knows Agency knowledge is of little to no benefit.. Experience should never be a consideration utilized for hiring. And idiocy rules again.. Bartleby, I am assuming that you are being sarcastic, and really believe that experience should be a factor in hiring.
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Post by true on Nov 10, 2013 5:43:39 GMT -5
Craziness, "the Staff Director of the Administrative Conference wrote a report opposing selective certification "on the ground that general capabilities and intelligence were more important than skill in the law and politics of a particular agency."" Implying of course that staff attorneys would not have general capabilities and intelligence commensurate with those of attorneys off the street.. God knows Agency knowledge is of little to no benefit.. Experience should never be a consideration utilized for hiring. And idiocy rules again.. I'll give a shout out YES and a like to you, bartleby. Prof. Lubbers should remember two things: one, that is why OPM has the exam process it has--to find reasonably bright attorneys who want to be AlJs. Secondly, my agency, like all others requires specialized knowledge. At ODAR, you have a formal training class. The remainder of agencies don't have such training--you get OJT. And you know what, everyone learns the areas of law and does well. By some stange alchemy the motivation that got then into the Judge's chair serves them well in their new job. Frankly, I am sick of Prof. Lubbers and the folks (like ODAR) who think that having a "leg up" in knowing the law somehow entitles you to be an ALJ, or at least should give you preference. They are misinformed at best and IMO, just plain stupid. ITC or ODAR or SEC would love to have their prior attorneys that they like working for them. Good thing that they can't always get what they want. I am not sure about that. Pursuant to Congressional request, U.S. GAO determined 1 federal agencies progress towards appointing women as ALJs and 2 OPM and SSA progress towards making SSA staff attorneys more competitive for judicial appointments. GGD-89-5 Oct 19, 1988.
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Post by epic0ego on Nov 10, 2013 16:35:01 GMT -5
outsiders take longer to "come up to speed," than insiders. that stands to reason. but the wisdom of the wide open ALJ selection process beyond just insiders is borne out by the fact that after an intense period of formal training and a year of practice, outsiders tend to become just as productive as the long-time insiders. just as importantly, if the ALJ goes on to other agencies where adversarial proceedings are the norm, they are far more capable than ALJs who do not have experience with adversarial proceedings.
what SEC, FDIC, ITC, and other agencies have done to skirt the OPM ALJ selection process is to simply bring on more non-APA administrative judges. this is a trend that AALJ and others should address. it is not that ALJs are smarter or better than AJs, but APA protection of ALJs personnel rights affords an important measure of independence that is in the public interest.
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Post by epic0ego on Nov 10, 2013 16:39:20 GMT -5
I should say that those with adversarial experience are "far more capable, initially," than others. it takes alot of work to become a practiced trial judge apart from developing expertise in any substantive area of law.
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Post by yarddog on Nov 11, 2013 6:28:25 GMT -5
Thanks to all the Veterans, Spouses, supporters and friend of veterans. I appreciate your service! Good luck on Phase 3 and in the future. I appreciate the advice and perspective from the 5/10 pointers on this board. I know many others share my appreciation. Proud to be an American. Proud of the achievements of our veterans.
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Post by epic0ego on Nov 11, 2013 7:19:50 GMT -5
Thanks to all the Veterans, Spouses, supporters and friend of veterans. I appreciate your service! Good luck on Phase 3 and in the future. I appreciate the advice and perspective from the 5/10 pointers on this board. I know many others share my appreciation. Proud to be an American. Proud of the achievements of our veterans. many thanks, Yarddog. let me join in your gracious post and thank those who put their lives and careers on the line for this great country of ours. Happy Veterans Day to all, and God bless America!
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Post by true on Nov 11, 2013 10:32:37 GMT -5
Happy Veteran's Day! Crank up the Grill, catch a parade or just relax and enjoy your day!
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Post by robespierre on Nov 11, 2013 11:26:21 GMT -5
"what SEC, FDIC, ITC, and other agencies have done to skirt the OPM ALJ selection process is to simply bring on more non-APA administrative judges."
Epic, could you elaborate on this, please? I didn't know those agencies have non-ALJ "judges." I'd like to hear more, both because (a) it seeems like a naked evasion of the APA, and (b) I wonder if I could get one of those jobs, lol!
Thanks.
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Post by redryder on Nov 13, 2013 11:24:37 GMT -5
AJ jobs are advertised on USAjobs. Not too long ago, Patent was advertising for positions. In the past, there have been advertisements for similar jobs with AEC. Each required certain technical skills that were enumerated in the job announcement.
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Post by epic0ego on Nov 13, 2013 13:41:49 GMT -5
"what SEC, FDIC, ITC, and other agencies have done to skirt the OPM ALJ selection process is to simply bring on more non-APA administrative judges." Epic, could you elaborate on this, please? I didn't know those agencies have non-ALJ "judges." I'd like to hear more, both because (a) it seeems like a naked evasion of the APA, and (b) I wonder if I could get one of those jobs, lol! Thanks. as redryder points out, AJ positions are typically advertised on USAJOBS, as are some ALJ positions as well. The Veterans Affairs Dept. just closed hiring for 14 AJ positions known as "Veteran Law Judge" positions. However, many agencies have the equivalent of Administrative Judge positions. Many ALJs find the AJ positions to be less desirable because AJs are subject to "performance evaluation" scrutiny, whereas, under the Administrative Procedure Act, ALJs are not. ALJs also have Merit Systems Protection Board protection as all veterans and federal gov't supervisors do. there are also other "fairly minor" distinctions. Many AJs however, make as much money or more as ALJs. Some are on the GS scale but most have their own separate pay scale from the GS system. I know several central panel judges that had to take a pay cut when they started as federal ALJs. I can PM with more details but yes, ALJ candidates should consider AJ positions too, some of which are located in the outlying areas that many are interested in.
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Post by decadealj on Nov 13, 2013 14:36:49 GMT -5
All the ODAR Appeals Council judges are AJs. There are many agencies that utilize AJs, like the VA, Immigration, DOD, DOJ and many others.
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Post by epic0ego on Nov 13, 2013 16:21:32 GMT -5
All the ODAR Appeals Council judges are AJs. There are many agencies that utilize AJs, like the VA, Immigration, DOD, DOJ and many others. Immigration judges are something of a hybrid in that they are totally executive branch-created. in fact, their representatives are seeking Article I status under the U.S. Constitution, as most AJs already have under federal statutes. the Civilian Board of Contract Appeals employs ALJs and AJs interchangeably doing the same kind of work. Most ALJs do not do so-called adversarial hearings, whereas most AJs do. The FDIC, the Federal Reserve Bank, the Office of the Comptroller of the Currency, State Department, the Labor Department, the Merit Systems Protection Board, the EEOC, the Energy Dept., etc., all utilize some combination of AJs or ALJs.
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Post by chinook on Nov 13, 2013 16:53:43 GMT -5
With all due respect Epic, I am not sure you are totally accurate here. While your point on most ALJs doing non-adversarial cases is accurate, that is only because most ALJs are at SSA. Outside SSA, most, if not all ALJs do adversarial hearings. The Board of Contract Appeals uses "members" who are called "judge." They are neither ALJs nor AJ but frequently referred to as BCA judges. I don't think FDIC, the Federal Reserve Bank, the Office of the Comptroller of the Currency have any ALJs. The State Department occasionally borrows one from another agency as does MSPB. As far as I know Labor only has ALJs except for the appellate bodies (ARB and BRB). I don't think EEOC has ALJs, just AJs. I am not sure about energy.
There are also Hearing Officers in some agencies, as well as Veteran's Judges at VA
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