Shapiro is now law

[privateatty]

www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-3113.Opinion.8-28-2015.1.PDF

Of course, this ruling is not limited to ODAR. Other Agencies have production expectations of their ALJs. Being at the bottom of the Totem Pole will have new meaning. At some Agencies, the Totem Pole is not very high.

[Propmaster]

Thanks for the heads up. I guess the ultimate holding is that, if you intend to stay an ALJ for more than 7-12 years, make sure that in many of those years you perform somewhere near the other ALJs. Some notable passages in my opinion:

------

We agree with
Goodman to the extent that it requires a proper foundation
for the type of comparative statistics employed here.
But to the extent Goodman requires some type of heightened
evidentiary proof before an agency can rely upon
comparative production statistics to prove good cause for
removal, we decline to follow it. When an agency establishes
that an individual ALJ’s case disposition rate is so
significantly lower than the rate of similarly situated
ALJs in his own region, that evidence, absent some contradictory
showing that the statistics do not present a
valid comparison, can support a finding of good cause.


----

But in
extreme cases like this, where Mr. Shapiro’s production is,
at best, roughly a quarter of that performed by the rest of
the ALJs in his region, that standing alone is highly
relevant and potentially preponderant evidence that he
failed to manage his cases acceptably. Absent some
suggestion that the character of an individual ALJ’s
docket dramatically differs from that of his colleagues, or
any other factors that might undermine the reliability of
the comparative statistics, the Board is free to give such
statistics appropriate weight when determining whether
the Agency has met its burden to prove the charges alleged
by a preponderance of the evidence.

----

Moreover, even if Mr. Shapiro were correct that support
staff played a role in his inability to manage his docket,
there is no evidence in the record to support an assumption
that his support staff was so far below the norm as to
account for a disparity of over 400 cases from the average
for three straight years. Indeed, as the Board recognized,
Mr. Shapiro conceded that “because of his techniques and
approach to case processing, he might be able to produce
only 200 cases per year, far below the [Agency’s] goal of
500-700 dispositions per administrative law judge per
year.”

-----

That final quote is quite damning because it seems to admit that he couldn't do the job as well as others because of his approach, which he can't or wouldn't change.

[minny]

Just reading the decision, too. Interesting.

[phoenixrakkasan]

Good result for the taxpayer and all those ALJs that perform their duties.

[hopefalj]

I suppose the question is to what extent this can be applied to "low-producing" judges. Shapiro is such an extreme outlier that it's hard to know whether the holding is really significant. To give you an idea of just how absurd his production was, I've issued more dispositions this year than he did in all of 2010, and I've only had five months of hearings while on a forced learning curve that has limited the number of hearings I can hold a month. 10 dispositions per month at a maxed ALJ salary is, IMO, stealing taxpayer money.

I guess the question is what is the floor before SSA can use production as a means to get rid of a judge? 150? 250? 350? 400? More? My guess is that 300+ is a safe zone, particularly in offices where the files are enormous with lower average numbers, but I guess we won't know until the new regime goes after someone (assuming they ever do). But if you're under 200 per year, you're definitely in the wrong profession.

[Propmaster]

An interesting thing that was not in the decision, but seems to have clearly been covered by SSA's apparently stellar and comprehensive (albeit glacial) accumulation of evidence to use is not only the average, but the standard deviation.

As an example, a judge got in trouble some years ago for making, I think 2000+ dispositions (HOCALJ taking all the dismissals, if I recall correctly). Assume a ridiculous (but illustrative) hypothetical office where, for some reason, out of 10 ALJs receiving the same general types and difficulty of cases, 3 dispose of 1100 cases each, and 7 dispose of 100 cases each. This gives an average for the office of 400 cases per ALJ, with 70% of the office producing at 25% of the average. This would never happen, but I'm just trying to point out that SSA had the proof available that not only was the ALJ below "average," but that he was unusually below average for his workload.

Of note for NTEU folks, this is a thing that is missing from the DWPI, according to the recent impasse arbitrator's decision. It turns out SSA knows how to do it after all, if motivated to do so.

[Deleted]

Hired in 1997 and by 1998, the Agency knew they had a problem and just a short 17 years later, his dismissal is upheld in District Court. My oh my, I need a backup plan in case I cannot do this job!

Oh, I already have one...retire in 14 years! His job performance, for whatever reason, should be unacceptable to any ALJ that took their oath seriously. I completed 107 cases in July and August, just 4 shy of his entire production for 2010 and I just went over the one year mark August 24th. There can be no defense to this type of low performance.

There are over a million claims pending, he's getting paid almost $170K a year, and 111 cases in 12 months. Go sell crazy somewhere else.

[Pixie]

Sept 4, 2015 15:12:06 GMT -5 @tigerlaw said:

There are over a million claims pending, he's getting paid almost $170K a year, and 111 cases in 12 months. Go sell crazy somewhere else.

Getting paid over $170,000 when agency matching is factored in. And I can't imagine any judge not getting the agency matching. Pix.