I just received an e-mail.. Make of it what you want. I especially enjoy how we treat impaired Judges..
No one would gainsay that the Commissioner sets agency policy. Former Commissioner Astrue in testimony before Congress on July 11, 2011 declared three separate agency policies in one short paragraph:
We have taken affirmative steps to address egregiously underperforming ALJs.
With the promulgation of our “time and place” regulation, we have eliminated
arguable ambiguities regarding our authority to manage scheduling, and we have
taken steps to ensure that judges are deciding neither too few nor too many cases.
By management instruction, we are limiting assignment of new cases to no more
than 1,200 cases annually.
Just like the “arguable ambiguities” regarding the authority to manage scheduling, there has been confusion over whether the 500 – 700 annual dispositions for each judge is a goal or quota. Commissioner Colvin set the record straight in her sworn written statement and testimony before the full House Committee on Oversight and Government Reform exactly one week ago on June 12, 2014:
Timeliness is an element of quality. We have set an expectation that ALJs issue 500-700
decisions a year, a range that is consistent with the actual number of cases performed by a
majority of judges. However, we have never required an ALJ to do 500-700 cases per year. Our
ALJs know that, when they accept an appointment to serve the American public, they must
provide timely and quality service, and the public has every right to expect them to work hard.
At the same time, judges should not decide too many cases because quality could suffer as a
result. Therefore, we limit the assignment of new cases to no more than 840 cases annually.
Commissioner Colvin needs to speak to her management team to insure they are compliant with her, that is, agency policy since some of those in ODAR leadership, to use a military expression, “have not gotten the word.” I will give three examples:
HOCALJ Cerulli (South Jersey)
Below is a quote from a prior email I sent involving Judge Tolland who was born with one hand:
“This is an agency which evaluates claimants with impairments every day. The grievance below is therefore instructive because it describes how agency management, under CALJ Bice’s and DC Sklar’s leadership, treated a judge with an impairment. Judge Tolland was born without a left hand. She was initially hired by the agency under the Schedule A Handicapped special hiring authority as a Decision Writer in 1990. She was appointed an Administrative Law Judge in June 2012 and assigned to the Akron ODAR office which did provide some reasonable accommodation.
However, when she transferred to South Jersey in April 2013 her requests for reasonable accommodation were denied by HOCALJ Cerulli. In addition, HOCALJ Cerulli advised her he “expected’ her to “get on pace” to issue 500 to 700 dispositions annually and be compliant with EBP. See Para. 37. He warned her about cases that remained in SIGN status too long (Para. 60) and told her he needed to have a “docket management discussion” with her (Id.). On April 8, 2014 he advised her she was “off pace” and she would receive a letter for being “seriously delinquent” and she would lose work at home if she did not move cases. He warned her she was not scheduling or producing enough cases (Id.)”
Compare Commissioner Colvin’s declaration of agency policy above and paragraphs 37 and 60 of the Tolland Grievance which contain threats of discipline from HOCALJ Cerulli for non-compliance with issuing 500-700 dispositions (attached in full).
CALJ Bice
Chief Judge Bice will apparently have to rewrite the Telework instruction because as it is presently worded it is not compliant with agency policy.
While we believe that scheduling an average of fifty (50) cases for hearing per month is an appropriate guideline for the purposes of this contractual provision, we recognize that time may be needed for some judges to establish that they have scheduled a reasonably attainable number of cases for hearing. Therefore, subject to the preceding paragraphs, please note the following guidance:
Telework Period Guidelines for average number of hearings scheduled over last 12 months
April 2014 – September 2014 Start-up period
October 2014 – March 2015 40 or more scheduled hearings
April 2015 – September 2015 45 or more scheduled hearings
October 2015 and continuing 50 or more scheduled hearings
Section 7.L.3 Scheduling a reasonably attainable number of cases for hearing, (New Telework Provisions Memorandum, February 18, 2014)
Requiring the scheduling of fifty (50) hearing a month or 600 a year is no longer compliant with agency policy as set forth by Commissioner Colvin. However, what is also noteworthy about the Telework instruction is that it appears CALJ Bice would not have been eligible for Telework under her own instruction.
Although she was a former regional attorney in Kansas City, CALJ Bice did not exactly “hit the deck running” as a judge. She was sworn in as a judge on June 22, 2008, but based on available agency data had no reported dispositions for FY 2008 which ended on September 30, 2008. She was initially assigned as a judge in Wes Des Moines. However, everyone in WDM “knew” it would be a short stay and assumed she would be named the region 7 RCALJ. They were correct about her stay as a line judge in WDM, she was named acting HOCALJ in Kansas City within six months of arriving in Wes Des Moines. After being named HOCALJ, DC Sklar made a special trip to Kansas City to recruit her to be CALJ. She was named acting CALJ in January 2011. She had only been a judge in the field for two and one-half years and had been a line judge for no more than six months.
Based on available agency data it is almost certain that CALJ Bice did not average 50 hearings a month as a line judge (Aug-Dec 2008). It is also probable that she never averaged 50 hearings a month as a judge in the field (Aug 2008-Dec 2010). She averaged 32 decisions a month for FY2009-10. One would have to assume 18 “No Show” dismissals a month to average 50 hearings a month. In fact, it is questionable whether she ever scheduled 50 hearings in any month she was in the field. She only made goal in FY2009-10 because she received 935 dismissals. In 2009, she had the highest number of dismissals in Region 7 and was one of the top 10 dismissers in the nation. Without dismissals she would not have made goal at any time in the field. (Note how the inordinate number of dismissals awarded HOCALJs skews the approval rate.)
Judge ALJ No H or R Decisions Dismissals Dispositions Total ALJ Disp Per Cent Dismissals Fully Favorable Partially Favorable Approval Rate w/o Dismissals Approval Rate w/Dismissals Awards Denials REGION ODAR Assignment
Bice, Debra 2703 H 382 660 1,042 1042 63.34% 176 34 54.97% 20.15% 210 172 2009
Bice, Debra 2703 H 387 275 662 662 41.54% 159 45 52.71% 30.82% 204 183 7 KANSAS CITY, MO 2010
Bice, Debra 2703 H 206 65 271 271 23.99% 80 19 48.06% 36.53% 99 107 7 KANSAS CITY 2011
Deputy Commissioner Sklar
DC Sklar visited Miami ODAR last fall. His visit lead directly to the removal of our HOCALJ.
When he met with the line judges he refused to talk to us about how production goals were established because of the “pending AALJ lawsuit.” However, an hour later when he met privately with the management team he told the HOCALJ he (the HOCALJ) was the “boss” and he had the authority to “direct” line judges to comply with agency production expectations. As soon as DC Sklar left, the HOCALJ served a judge with a counselling letter concerning production, which included headquarters mandated language that non-compliance could result in disciplinary action. When the judge requested my presence as LAR the HOCALJ slammed the door in my face which resulted in his removal.
DC Sklar ordering the HOCALJ to “direct” a line judge to comply with agency production expectations or be subject to disciplinary action is clearly no longer compliant with agency policy as declared by Commissioner Colvin.