Insiders in New Class

[privateatty]

Jun 29, 2009 9:42:54 GMT -5 @peejay said:

PF et al.: Bravo. If there is in fact evidence of wrongdoing, then by all means follow it up. If you say such evidence exists, but are not posting it out of prudence, I believe you, for outspoken or not , you are credible. My main point in posting what I have is that the evidence that has been posted isn't sufficient for those of us who don't have it to reach the conclusion that something is improper. Again, if it exists, then any agency that it shows to have made unlawful hires needs to be held accountable.

Yes indeed. But as you said earlier, there is smoke and surely there is fire.

Hopefully, an aggrieved party will grieve against ODAR in an appropriate forum.

[oldtimer]

I realize this is academic, since you're all speaking hypothetically, but let me point out two things:

• first, the so-called "insider" judge in Hartford is married to a contractor, NOT an employee;
  
• second, even if he were married to an employee, I would be astonished if this fact alone had somehow made him more attractive to the Office of the Chief ALJ in Falls Church; by this reasoning, would OCALJ therefore be contacting hearing office management to determine whether the employee was held in high regard and whether the relationship was sound? What if they were married but separated? Would the candidate lose his "favored" status?
  
  And, I can tell you from personal experience, the ALJ was highly qualified, with a vast amount of litigation and management experience; any negative background allegations should probably be attributed to the highly political nature of his experience.
  
  Sorry for the experience of PatriotsFan and others, but I'm not persuaded by the assertions.
  
  

[valkyrie]

"There is nothing wrong with being diligent in our efforts to hold this particular agency's feet to the fire, both here, and through the courts. The brave folks who have sued and are appealing this process are doing so at great personal risk and expense, and deserve our praise and encouragement, not your derision, as there efforts are evocative of the finest ideals we have spent our careers defending.

So, even if you disagree with the premise, and that is your right, how about a round of applause to the Board members who have taken the risk, and made the sacrifice, to question authority and demand an open process for these important positions?"



I have stated several times before that I do not hold anyone's choice of litigation against them, but on the other hand I feel no obligation to laud their choice.

I think those of us on the inside are truly at a loss as to understand your emphasis on the whole nepotism thing. The hearing office management teams have no influence on ALJ hiring, to the extent that they have not found out if their own office is hiring until the list of locations is posted with a new certificate. I was politely asked by my own HOD and HOCALJ to share the cert location list when I received it so that they could see if our office was getting a new ALJ! I think the ALJs from the 2008 class will support me on this. Therefore, even if your nemesis candidate's spouse were the HOD of his/her office, the spouse would have no influence on the hiring. As an employee of the agency in question, I have never had any reason to believe that my regional or national management teams care about what my local management team thinks about its ALJs. The idea that a local hearing office level employee could have any influence on an ALJ hiring decision is frankly laughable.

As for your friend's concern for ALJ "independence," the word can mean many things. I think for most of us the primary concern is that ALJs have the independence to reach their own ultimate determinations of the cases before them without any influence from anything other than the evidence, laws, and regulations. Unfortunately, some ALJs find it an affront to their "independence" if they are told that GSA will not allow them to have their own coffemaker in their individual office. Others find it beneath their august selves to be required to track their own cases in the database. Again, I don't think you will find anyone in ODAR who feels that management is pushing anything other than speed and volume, goals which Congress left little doubt about in its hearings. Please don't mistake this as an endorsement of every aspect of ODAR management's system. The ALJs are not alone in their disagreement with many of the systems proposed or in place. However, these tend to be methodogical disagreements over the most efficient way to skin the cat, not attempts to eliminate "independence," or influence decisionmaking. Don't mistake incompetence for the diabolical. The old lament regarding "independence of the ALJ," is more often than not a histrionic diva's outrage at being asked to do more with less along with the rest of the staff.

[jagghagg]

Jun 27, 2009 12:12:36 GMT -5 @nutsorter said:

Jun 26, 2009 20:39:08 GMT -5 @jagghagg said:

Look, the issue, with "us" - be it Val or me, or PM or PF - is not and never has been the quals of the hires. They are qualified. The issue is the process and its adherence to merit principles.

Actually, that's not what you and many others on the board imply. There is a running theme that if you are an insider, you are almost automatically deficient in some respect.

No, no, no, no, no, NO. That is not what we have ever said OR implied. The same way PF took umbrage at PM stating that those who weren't selected probably failed at the SSA interview is the same way those who are selected are taking umbrage at the suggestion that the process may be a bit flawed. EVERYONE on the certs are qualified - EVERYONE. And if anyone - ANYONE - thinks I or anyone else who questions the process is questioning the quals of the hires, let me state very clearly here and now: we do not.

Jun 27, 2009 12:12:36 GMT -5 @nutsorter said:

..... he was also placed against probably the most qualified insider SSA could offer. Not some gs-13 senior attorney, but as you say you know, a person with over 20 years of experience that was involved in just about every major policy change or initiave by the agency for almost a decade.

Which just proves that having incredible insider qualifications does not make you a better candidate under the merit principles adopted by the federal government. The selectee is, I am quite sure, more than qualified, but OPM did not agree that individual was more than qualified than PF.

Jun 29, 2009 11:38:16 GMT -5 @nutsorter said:

FTR, no one seems to dispute that this alleged nepotism hire in hartford managed to score high enough by OPM to end up in the top 3 for hartford despite all this speculation about deficient qualifications. This person did not work for SSA. And then, even after this pick, another outsider was selected for hartford.

Aaaaaaac-choo-alli, no. The assumption in your statement is that the The "Rule of Three" means that the selection comes the top three candidates [as determined by OPM] for a slot. But if the agency holds that slot back from fill until it can arrange who it wants to be in that group of three candidates....say it held Hartford back until fill 28 or fill 32, ....when it can finally reach your described "person with over 20 years of experience that was involved in just about every major policy change or initiave by the agency for almost a decade" but whose score would not have placed them in that group of three candidates if Hartford had been filled right off the bat, then the argument that because they were IN the Rule of Three sorta has less weight.

[jagghagg]

Jun 29, 2009 12:30:44 GMT -5 @nutsorter said:

and sometimes you try your best and still lose

Again, "sometimes you're the windshield; sometimes you're the bug."

[decadealj]

1990: Average age of AL:J selectees was mid 50s with the vast majority selected having prior experimnce as state judges, state administrative law judges or federal appeals judges; the rest had 7 or more years of true litigation experience i.e. trial lawyers.

2009: I onl;y know 3 of the selectees and all three are in their 30s; none of them have tried a
case in a court of record. From the number of vacancies being filled by ODAR after the selections, it is obvious that most, if not all were HODs or GS's, ready to march to management's tune. Most wouldn't regognize due process if it srceamed at them.

RES IPSA LOQUITUR!

[valkyrie]

"AALJ begs to differ on your analysis, and its from them that the bulk of the complaints come regarding ALJ independence and SSA issues with ALJs, and they are the recognized collective bargaining agent. Also, within FALJC these issues have been raised and discussed, so I would respectfully suggest it is a bit more than a few prima donnas complaining about the air conditioning."

You know, a small minority of doctors are responsible for the large majority of medical malpractice.

And the most frequent complaints within the membership of the AALJ are their priorities, objectivity, and competence, recognized collective bargaining agent or not. Lets just say that the AALJ is not one big happy family. I have said before that the ALJs have some legitimate issues of policy and procedure, but the current suit over the hiring has really killed off their credibility. As an SAA with adjudicatory authority, I would immediately report any attempt to influence my decisionmaking to management and my state bar. Similarly, if I felt that the ALJs, whom I also support in the adjudication of the same claims process, were having their independence infringed upon, I would report it. I would like to think that the attorney claimant representatives would be even more likely to report any such attempts at influence or infringement upon ALJ independence. Interestingly, I don't believe I have heard of a single ODAR attorney, or claimant representative report anything of the sort.

My office actually had an ALJ threaten a lawsuit over the setting of the thermostat. If you want to start a thread recounting fanciful ALJ complaints, you may not like what you find...

[Legal Beagle]

Jun 29, 2009 12:39:49 GMT -5 decadealj said:

2009: I onl;y know 3 of the selectees and all three are in their 30s; none of them have tried a
case in a court of record. From the number of vacancies being filled by ODAR after the selections, it is obvious that most, if not all were HODs or GS's, ready to march to management's tune. Most wouldn't regognize due process if it srceamed at them.

RES IPSA LOQUITUR!

I am in my very early 50s with 26 years of litigation experience as a private attorney, and the same as a claimant's attorney.

[oldtimer]

2009: I onl;y know 3 of the selectees and all three are in their 30s; none of them have tried a
case in a court of record. From the number of vacancies being filled by ODAR after the selections, it is obvious that most, if not all were HODs or GS's, ready to march to management's tune. Most wouldn't regognize due process if it srceamed at them.

With all due respect, Decadealj, I'm a little skeptical of the reasoning ability of anyone who would jump from "I only know 3" to they're "all...ready to march to management's tune...wouldn't recognize due process if it screamed at them."

Now that you're done insulting many of your new colleagues, perhaps you're helping to "educate" the 3 whom you know?

[jagghagg]

Jun 29, 2009 12:40:13 GMT -5 @nutsorter said:

. Nothing prohibits the agency from selecting the order the cities are considered.

Unless, of course, the manipulation is done in a manner which violates merit principles.

[valkyrie]

Jun 29, 2009 12:39:49 GMT -5 decadealj said:

1990: Average age of AL:J selectees was mid 50s with the vast majority selected having prior experimnce as state judges, state administrative law judges or federal appeals judges; the rest had 7 or more years of true litigation experience i.e. trial lawyers.

2009: I onl;y know 3 of the selectees and all three are in their 30s; none of them have tried a
case in a court of record. From the number of vacancies being filled by ODAR after the selections, it is obvious that most, if not all were HODs or GS's, ready to march to management's tune. Most wouldn't regognize due process if it srceamed at them.

RES IPSA LOQUITUR!

What is management's tune? Here's a riddle, who presides over a non-adversarial, structured hearing without any rules of evidence, procedure, or realistically, case law, in a setting that bears only fleeting aesthetic resemblances to actual trial law?

[valkyrie]

Jun 29, 2009 13:09:26 GMT -5 @patriotsfan said:

This is fun!

Food-fight!

[oldtimer]

But since Val offered a hypothetical, I have one, too, because hypotheticals are fun, and sometimes they can turn out to be true.

Let's just say for example that I am at a rather high rank of two digits on the certificate - we'll go with Candidate "XX" here, and my wife works for SSA in the Hartford CT office, just to make up an office, any old office. But let's use Hartford, because I like Hartford, and it’s such an interesting office, and it has interesting people who work there, and some of whom are even married to each other, just like my hypothetical example here.

And let's say that as #XX I am placed against, oh for fun we will say the #1 scorer on the certificate. Now, all things being equal, if candidate #XX is more qualified than candidate #1, he gets the job, right?

But let's say that in the course of candidate #XX's background check, it is revealed at least one employer had negative things to say about him, and let's even say candidate #XX didn't come through the SSA structured interview with flying colors. Conversely, given that candidate #1 has a clean background check, and a recommendation from the interview panel as an acceptable candidate, which candidate, in your opinion, should get the position?

Should it be the candidate with highest score, the clean background check, and the OK from the interviewers, .... and no relatives at the Hartford office, or should it be candidate #XX, with the clouded background check, and the not-so-good recommendation from the SSA interview, but with the wife who works in the exact same SSA office for which he is being considered?

If you picked applicant #XX, then you win, because that is what SSA did.

PatriotsFan:
Forgive me if I'm being a little obtuse, but are you talking hypothetical, or do you actually possess (or know of someone who possesses) such information? If the latter, how exactly was this information obtained? FOIA request?

Also, I realize that this is primarily a board for ALJ candidates, but I'll ask anyway: isn't it just possible that some of you are confusing the ALJ selection process with a civil service exam? That is, the candidate with the highest score must be selected?

I'm far from an expert on OPM's byzantine scoring process and ODAR's selection process, but isn't one of the purposes of the Rule of 3 to ensure that the agency only picks from among the highest scores, but then has some discretion within those 3 candidates? And, if ODAR has concluded that qualified candidates with ODAR experience make productive ALJ's, is it therefore unreasonable (or illegal) for them to prefer such "insiders"? Unless ODAR somehow manages to select a candidate whose score doesn't rank in the top 3 for an office, I fail to see why it should be expected to function any differently than any private corporation in preferring "inside" candidates.

[valkyrie]

Jun 29, 2009 13:07:42 GMT -5 @patriotsfan said:

Jun 29, 2009 13:02:25 GMT -5 valkyrie said:

"AALJ begs to differ on your analysis, and its from them that the bulk of the complaints come regarding ALJ independence and SSA issues with ALJs, and they are the recognized collective bargaining agent. Also, within FALJC these issues have been raised and discussed, so I would respectfully suggest it is a bit more than a few prima donnas complaining about the air conditioning."

You know, a small minority of doctors are responsible for the large majority of medical malpractice.

And the most frequent complaints within the membership of the AALJ are their priorities, objectivity, and competence, recognized collective bargaining agent or not. Lets just say that the AALJ is not one big happy family. I have said before that the ALJs have some legitimate issues of policy and procedure, but the current suit over the hiring has really killed off their credibility. As an SAA with adjudicatory authority, I would immediately report any attempt to influence my decisionmaking to management and my state bar. Similarly, if I felt that the ALJs, whom I also support in the adjudication of the same claims process, were having their independence infringed upon, I would report it. I would like to think that the attorney claimant representatives would be even more likely to report any such attempts at influence or infringement upon ALJ independence. Interestingly, I don't believe I have heard of a single ODAR attorney, or claimant representative report anything of the sort.

My office actually had an ALJ threaten a lawsuit over the setting of the thermostat. If you want to start a thread recounting fanciful ALJ complaints, you may not like what you find...

I believe my point was that you are letting the exception prove the rule. AALJ should not be condemned so broadly. The AALJ lawsuit was perceicved by SSA attorneys as offensive, so of course they have it in for AALJ. I'm not talking about that.

There are also a lot of members of the AALJ that are not former SSA attorneys that found the lawsuit more ridiculous than offensive from the perspective of important issues affecting sitting ALJs. Most SSA ALJs are a lot more concerned about centralized scheduling than the background and hiring process of the new ALj down the hall.

When the exception is the leadership, it becomes the rule. As in most govt unions, the number of people seeking to join union leadership is not particularly large, or representative of the majority.

[decadealj]

Oldtimer just pointing out the facts; different folks will draw different inferences/conclusions. Many of us were instructed by the Secretary fo H&HS to be absolute "boat rockers" at the time of our oath .

Mangements tune; take away any authority of the ALJ to properly develop the case prior to scheduling, i.e. HPI, centeralized scheduling. Continue to allow reps to subit hundreds of pages of evidence including brand new impairments the morning of the hearing. Refuse to ennforce a subpona to the treating source who refuses to submit the only relevant evidence in the case. Instruct the writers to ignore the ALJs citation to case law, and give him a minimal FIT decision filled with boiler plate language, whether relevant or not; if the ALJ doesn't like it he can rewrite it.

Badger the ALJ every month with plans to ensure he gets out 500 cases during the year.
Create a climate of fear in the workspace that the staff is afraid to answer a cellphone call from a school or ill family member and is encuraged by others to document in writing every management effort to ignore workplace rules to ensure they get the "body count" up and altering CPMS data every month (such as moving to ALPO) cases heard by videoconference that day even though the record and notes won't be received for days later. This course starts the 7 day clock the ALJ has to get the case into wiriting so some other management dink in the RO can send the office an e-mail of cases in ALPO over 7 days even though the ALJ is on 2 weeks leave. I could go on but what's the point. Deltajudge has documented the degradation from OHA to ODAR. You don't have to liker it- just admit it.

Management has accomplished what it wanted after hearing examinerts became ALJs- absolute control of the hearing process, relegating the ALJ to an adjudicator of fact rather that the protector of rights to our citizens provided by the APA.

[decadealj]

PF- my point exactly; either AALJ or Congress starts some real oversight or a RIF is right around the corner!

[valkyrie]

Jun 29, 2009 13:59:01 GMT -5 decadealj said:

Oldtimer just pointing out the facts; different folks will draw different inferences/conclusions. Many of us were instructed by the Secretary fo H&HS to be absolute "boat rockers" at the time of our oath .

Mangements tune; take away any authority of the ALJ to properly develop the case prior to scheduling, i.e. HPI, centeralized scheduling. Continue to allow reps to subit hundreds of pages of evidence including brand new impairments the morning of the hearing. Refuse to ennforce a subpona to the treating source who refuses to submit the only relevant evidence in the case. Instruct the writers to ignore the ALJs citation to case law, and give him a minimal FIT decision filled with boiler plate language, whether relevant or not; if the ALJ doesn't like it he can rewrite it.

Badger the ALJ every month with plans to ensure he gets out 500 cases during the year.
Create a climate of fear in the workspace that the staff is afraid to answer a cellphone call from a school or ill family member and is encuraged by others to document in writing every management effort to ignore workplace rules to ensure they get the "body count" up and altering CPMS data every month (such as moving to ALPO) cases heard by videoconference that day even though the record and notes won't be received for days later. This course starts the 7 day clock the ALJ has to get the case into wiriting so some other management dink in the RO can send the office an e-mail of cases in ALPO over 7 days even though the ALJ is on 2 weeks leave. I could go on but what's the point. Deltajudge has documented the degradation from OHA to ODAR. You don't have to liker it- just admit it.

Management has accomplished what it wanted after hearing examinerts became ALJs- absolute control of the hearing process, relegating the ALJ to an adjudicator of fact rather that the protector of rights to our citizens provided by the APA.

There is a lot in this that appears to be local and/or regional management issues that I do not see in my own office or many others, which of course does not mean that they do not exist. CPMS can be abused/manipulated, centralized scheduling is scary, individual managers can be tyrants, representatives should be sanctioned more often, and the ALJ/writer fight is a two-way street. But, I think the position retains its integrity and effectiveness, in spite of the increased pressure.

[oldtimer]

PF:
I don't know if you're replying to my post specifically, but as was noted elsewhere, we're talking about non-adversarial hearings, without rules of evidence applying, in the context of an agency which regards "production" as a priority. Under the circumstances, is it so unreasonable for this employer to favor applicants with subject-specific experience and known productivity, albeit with less significant trial experience?

Re: some of your other points, you may well be correct that ODAR has engaged in some "manipulation" in order to hire some of those with agency-specific experience. Obviously, any sort of discrimination in favor of some discriminates against others. Again, though, where/how is it unreasonable, let alone "illegal"?

[valkyrie]

Jun 29, 2009 14:50:20 GMT -5 decadealj said:

PF- my point exactly; either AALJ or Congress starts some real oversight or a RIF is right around the corner!

Lets not forget that Congress is pushing the whole thing. Congress doesn't care about anything other than getting the decisions out quickly enough to get rid of the backlog.

[jagghagg]

Jun 29, 2009 15:01:07 GMT -5 oldtimer said:

.... Under the circumstances, is it so unreasonable for this employer to favor applicants with subject-specific experience and known productivity, albeit with less significant trial experience?

Re: some of your other points, you may well be correct that ODAR has engaged in some "manipulation" in order to hire some of those with agency-specific experience. Obviously, any sort of discrimination in favor of some discriminates against others. Again, though, where/how is it unreasonable, let alone "illegal"?

It is not a question of whether it is reasonable for the agency to prefer/want agency-specific experience; one would likely think "of course! They already understand the agency and its functions, so they are steps ahead in the game." The question, however, is whether they are allowed to discriminate among candidates on that basis. The regulations say they cannot.....(well, that they are not supposed to.)