Here is a beautifully written dissent to the AALJ lawsuit. I could not have said it better.
THE LAWSUIT: A DISSENTING OPINION
How I Got Here
I am a judge in the Bronx hearing office. Before this job, I was Chair
of the New York Workers Compensation Board where I learned a fair
amount about administering and designing government disability programs.
Until recently, I was a Designated Grievance Representative and Local
AALJ Representative for the Union (“LAR”). In that capacity, I had to
familiarize myself with the provisions of the Administrative Procedure Act
(“APA”) that apply to ALJs, the federal court and MSPB case law relating to
qualified judicial independence, and learned about how the Agency justifies
its production demands and imposes them on ALJs.
When I learned that the Union intended to file this lawsuit without
seeking meaningful member input, I resigned my positions. I no longer felt
that Union leadership and I were in the same place. I have drafted these
comments because my interest is in a Union that responsibly represents me
and makes careful and prudent decisions.
Even though I think that the Agency’s culture of numbers is quite
wrong-headed, I believe that Union leadership should have consulted the
membership and foregone the lawsuit had the majority opposed it. Further,
regardless of how one may feel about majority rule, one can make a strong
case that the lawsuit is a bad idea, that its risks outweigh any potential gains,
and that less risky alternatives are available. I believe there are many things
the Union could do to solve the problem of quotas short of a lawsuit,
including seeking to validate the number of decisions that the Agency should
reasonably expect from us.
It is for these two reasons that I dissent from the position of Union
leadership. This dissent is long, really long. The reason for the length is
that I thought it was important not to sloganeer but in an organized and
detailed fashion to discuss the Board’s decision to file suit. I will not hold it
against anyone should they choose to stop reading. I know that there were
times when I thought I should stop writing.
Union Solidarity
I would like to start by responding to a possible accusation: through
making these comments, I am undermining union solidarity at a time when
we need to stick together, and that by pointing out the risks in this litigation,
I am supplying the Agency with a roadmap about how to defend the lawsuit
and making settlement more difficult.
The Agency is not getting a road map here. I have taken much of this
material from government arguments made in other litigation and
grievances. Most of the information is quite public. Nothing I am saying is
in the least bit original. I have little doubt that Justice Department lawyers
will figure out all sorts of ingenious defenses that I can barely imagine.
It is hard for me to understand how one person uttering one opinion
will scuttle the destiny of this lawsuit. Union leadership (the “Board”)
should have nothing to fear from this analysis because presumably it has
already decided that there are highly persuasive reasons for believing these
risks are negligible. If it takes exception to my analysis, then nothing stops
it from publically responding and pointing out the flaws in it. As for union
solidarity, it would be ironic for the Board to insist on unquestioning loyalty
when it has shown very little solicitude toward its membership.
Because the Agency will gain no advantage, and the Board seemingly
refuses to disclose the risks of this lawsuit to the membership, I think the
balance tips in favor of presenting the membership with a contrary view,
which may assist it in arriving at their own conclusion about the wisdom of
filing this lawsuit.
The Production War
In the last six years, villains and cowards outnumbered heroes.
There is little question that pre-Astrue, judges could be remarkably
blasé about moving cases expeditiously. The Astrue administration’s highest
priority (some might say its only priority) was to increase production. It
decided to increase production through changing the norms of judges and
adding more judges. Then in a true Orwellian twist, it accused judges who
produced less than 500 of a lack of “productivity” which is something that
cannot be measured simply by production but needs to take in to account a
host of inputs and outputs.
Predictably, the Agency’s emphasis on production led to further
entrenching a culture of numbers where the mark of a good judge became
how much one produced rather than how well one decided. To that end, the
Agency has allowed management to bully judges into doing the numbers
while at the same time unpersuasively denying that the numbers were simply
a goal. I have little doubt that in some regions and offices these numbers
have crossed the line from aspiration into quota. Falls Church may not have
explicitly solicited or endorsed this bad behavior, but had reason to know
about it and did nothing to stop it.
The Agency has never validated its benchmarks and goals. It seems
as if the Agency chose them not because they validly represent the amount
of time it takes to decide a case correctly, but because the math worked for
reducing the backlog. A fly in the equation was that receipts started
increasing and when that happened the only way to continue to reduce the
backlog or even to stay even was for the Agency to adjust the lower end of
its 500-700 goal by about 15%. A high rate of remand and both internal and
external studies of case quality raise real questions about whether Agency
numbers have led to a significant sacrifice of quality for a large quantity.
Sadly, the Agency has not reacted to this information by rethinking its
numbers. It has ignored the trade-off and rather absurdly, urged judges to
increase both their numbers and their quality.
Under Astrue, the Agency pursued a highly expensive supply-side
backlog reduction program where it spent hundreds of millions of dollars to
hire new judges, but there was no attempt to grapple with the institutional
features that have produced the backlog and that have brought the system to
the precipice of bankruptcy. A student of public policy might think that
spending $165,000 a judge to reduce a backlog from the back-end is unlikely
to be the most effective and efficient way to solve the problem.
Under Astrue, we also saw a marked increase in Agency hostility
toward judges and the scapegoating of judges for a backlog that they did not
cause. Astrue’s lasting legacy may well be mistrust between management
and line ALJs that will take a great deal of time to heal.
Although extremely smart, a very adept political in-fighter, and
always good for a punchy sound bite, I think history will view Astrue as a
flawed leader who pursued the expedient path (emphasizing backlog
reduction) but lacked the courage and vision to try to take even baby steps
toward trying to reform an outmoded system.
Many judges have disposed of almost 600 cases a year or more, the
“high producers.” Many other judges have hovered in the 500 range, the
“middling producers.” Finally, there are the “low producers”—those below
400. This last group probably does not constitute a majority of union
membership.
I am sure that some high producers think that low producers are lazy
and unpatriotic, and that some low producers think that high producers have
made a mockery of what it means to be a judge. Equally as well, I am sure
that some judges in the middle look askance at those above and below them,
and think that getting to 500 is hard to do. At this point, because no one has
made a serious attempt to validate an acceptable level of production, there is
no rigorous evidence that vindicates one kind of producer over another.
These varying levels of production in the membership produced a
Union position that was quite incoherent (until recently when it appears that
the Union turned on the high producers and the middling producers in favor
of the low producers). On one hand, the Union watched as production rose
without taking any meaningful action. It refused to sit in judgment of the
high producers. Similarly, the Union refused to sit in judgment of the very
low producers. The Union took the position that the Agency was violating
their judicial independence. Yet, it did very little to protect these judges.
At the same time, Union leadership has steered clear of positing an
acceptable amount of production. By not offering a persuasive alternative to
the Agency goal, some feel it has allowed the Agency number to take on a
life of its own, a numerical Frankenstein that even its creator might now
regret having brought to life.
Now, after six years of folding hand after hand, Union leadership has
gone all in and filed a lawsuit in federal court. We have arrived at this
fateful juncture because of an Agency that cares only about numbers, judges
who have not stood together, and a Union that has vacillated and pursued
mixed and often contradictory objectives. There is more than enough blame
to go around.
Keeping the Lawsuit Under Wraps
From reading the Board minutes from 2012-2013, I would conjecture
that the decision to explore the lawsuit option began in earnest sometime in
the first quarter of 2012 and culminated in a decision to file sometime in the
second quarter of 2013. There are scattered references to some sort of
lawsuit in the published Board minutes. However, most of the important
discussions about the lawsuit occurred in the confidentiality of executive
session or possibly in informal meetings between Board members . It is only
with the benefit of hindsight that a reader could determine from the minutes
that the Board has been discussing filing this lawsuit for a year, expended
significant sums of our money on this project, and quite clearly did not
intend to inform the membership before the lawsuit was a fait accompli.
A Lack of Representation
When I discovered that the Board was seriously considering filing a
lawsuit against the Agency, I was in a quandary. This information was the
product of confidential communications, but at the same time, there had
been little, if no meaningful communication with the membership about the
wisdom of the lawsuit. Ultimately, I decided that from an ethical standpoint,
I simply could not widely publicize this information before the Board filed
the lawsuit. I forcefully shared my opinions with the Board, but the Board
never bothered to answer any of the questions and the concerns I raised.
I advised the Board to go to the membership before voting to
determine if the membership favored this highly confrontational course of
action, this dramatic escalation of the conflict between the Union and the
Agency. However, as we now know, the Board decided not to. It had made
up its mind. It believed that it knew better than the membership. No amount
of membership protest would change its mind.
Over the weekend of March 23-24, 2013, the Board accidentally
posted the minutes of their general sessions and executive sessions for
January, February and March of 2013, which the Board then promptly
retracted in favor of eliminating any detailed account of what the Board
discussed in these executive sessions. In reading those minutes, I learned
that at least one member of the Board had a firm belief that the Agency
believed litigation was in the offing. At this point, it was curious, if this was
true, that the Board should have been reluctant to inform the membership.
One thing the Board could say is that based on its productivity survey,
the membership approved taking action. I do not agree. First, only 307
people out of a membership of 1200 or so responded to this survey. Second,
Judge Zahm, rather than an expert, designed the survey questions, and
survey responses are very sensitive to wording. Third, in March 15, 2012
Board Meeting, Judge Zahm summarized the survey results by saying that
“the overall tone of the response was that those commenting wanted AALJ
to do something.” There is a large gap between wanting AALJ to do
something and thinking that something should be this lawsuit. Th ere is a
real possibility that had the survey contained a neutral description of the
costs, benefits and risks of a lawsuit, this would have impelled more ALJs to
respond and fewer ALJs to favor taking drastic action.
From some on the Board, I have heard the argument that polling the
membership before the lawsuit would somehow have tipped the Union’s
hand. Agency lawyers are well acquainted with the issues here. The facts
the Union are relying upon were not going to change. I have yet to hear of a
significant and concrete disadvantage that the Union would have suffered
from polling its membership beforehand.
I have also heard some on the Board say that people at the Conference
and in other unsolicited communications told Board members that they
wanted the Board to sue the Agency. Once again, since only those in favor
of action are likely to speak out, this is hardly a representative sample of the
membership. It is no substitute for having Regional Vice Presidents meet
either physically or by telephone with their members; explain the costs,
benefits and risk dispassionately; and take a straw poll. Despite what
members of the Board may say, I think the Board could have done this
easily.
Another conceivable reason to keep the membership out of the loop is
the view that the membership gave the Board carte blanche to exercise its
independent judgment without taking the pulse of the membership. In this
vain, the Board might cite Edmund Burke, the English conservative and
admirer of the aristocracy, who famously said, “Your representative owes
you, not his industry only, but his judgment; and he betrays instead of
serving you if he sacrifices it to your opinion.”
First, I think this position is elitist. By consulting the membership, I
might learn something that would force me to rethink my opinion. There are
many experienced litigators in the membership and I would be willing to bet
that many of them have litigated in the Northern District of Illinois and
argued in front of the Seventh Circuit Court of Appeals. I would feel remiss
in not trying to gather as much valuable informati on as I could when the
future is so difficult to predict.
Second, while this might be true for run of the mill decisions, I think it
not unreasonable to make an exception for decisions, like this lawsuit, that
are so costly and so risky they could have a dramatic effect on the
membership going forward. A decision this significant is one where I would
want my actions aligned closely with the will of the majority, or at a
minimum, I would want meaningful input from all of my membership.
Finally, although each member of the Board captured the most votes
in union elections, the sad reality is that because very few union members
vote in these elections, it is difficult to conclude that these results supply
much in the way of a mandate. The history of the Board in recent years has
been one of appointing people with the “right stuff” to fill unexpired terms, a
practice that provides an incumbent advantage and further serves to entrench
existing leadership. The Board that does not necessarily represent a true
diversity of opinion, but a group whose opinions simply mirror and reinforce
one another. One substitute for a shaky mandate and groupthink is to solicit
input from a diverse membership.
What makes this lack of disclosure all the more alarming is that Judge
Frye was recently reelected to a new term (pending an election protest), and
while he was running for office, told the membership nothing about his
interest in declaring war on the Agency. It is almost as if someone was
running for President of the United States and never told the electorate that a
key plank in the candidate’s platform was to start a war against China once
inaugurated. If Judge Frye had revealed what he had in mind, would as
many ALJs have voted for him or the rest of the Board? Would more people
have run against him? Is it too much in an election to expect that an above-board candidate will lay all of his cards on the table so the electorate can
make a meaningful choice?
Whatever one may think about the issue of whether the Board should
have disclosed this lawsuit before filing it, I am not confident that a majority
of the membership support this lawsuit. I can think of at least three offices
in my own region where the ALJs would be virtually unanimously opposed
to this course of action, and have talked to many ALJs across the nation who
believe the Board should have shown some basic respect for their opinions
by seeking out their input.
Representatives should care about hearing from the electorate, listen
to them carefully, and be open to changing their opinions. The problem
Union leadership now faces is that because it never consulted its
membership, it has lost a portion of its trust. Because the Board never
listened, it may have made a colossal blunder.
Legal Risk
I am quite sympathetic to the Board’s feelings of frustration and
even anger over the Agency’s heavy-handed and misguided attempts to
control and scapegoat ALJs throughout the Astrue administration, but I am
quite skeptical that our chances in this litigation are even 50% or more. I
use 50% because it is now public information, widely disseminated, that a
law firm only gave the Board a 50% chance of winning this lawsuit, odds no
better than a coin flip.
If this is true, I think the law firm was too optimistic. Here is where I
think the two sides will join the battle and why I think the odds are probably
lower than 50%:
First, the Agency will argue that the Civil Service Reform Act
(“CSRA”) blocks the AALJ from bringing APA claims directly to federal
court, and requires that in the first instance any claims of interference with
judicial independence go to the MSPB. There will be much too and fro
about whether Agency interference with ALJs judicial independence
constitutes an “adverse personnel action” or fits into the “mixed case”
exception under CSRA. I am not all that acquainted with the law in this
area, but my sense is that a quota violation is qualitatively different than an
adverse personnel action. Let us assume that the AALJ has an 80% chance
of prevailing on this issue.
Second, the Agency will argue that the AALJ lacks standing to bring
this claim. Here the decided cases go both ways. The Agency will argue
that the only claimants could suffer an actual injury from a de facto quota
and that the intent of the APA was never to protect ALJs but only to protect
the due process rights of claimants. Here, once again, both parties will
brandish numerous precedents, although it appears that more recently, the
decisions have favored claims of no standing. It just seems to me that the
real injury in this case is to the claimants who ALJs unfairly denied, and that
nothing stops them from bringing a class action against the Agency. If so,
why confer standing on ALJs? Indeed, I find it almost comical that the complaint criticizes high
producers for denying due process, and then turns around and in support of
standing, says that an association composed of many high producers has a
“special and close relationship” with the claimant victims. This seems a
little nutty to me. (You only hurt the ones you love, I guess.) Nonetheless,
once again, let us assume that the AALJ has an 80% chance of prevailing on
the standing issue
Third, the Agency will take issue with the claim that the Agency is
imposing a de facto quota. The first question will be whether the APA
precludes the Agency from setting reasonable production standards or
quotas. In the March 25, 2013, newsletter Judge Frye asserted that, “For
Federal Administrative law judges, quotas are patently unlawful.” Actually,
I think the legal evidence for this proposition is weak.
In Nash v. Bowen, 869 F.2d 675 (2nd Cir. 1989), the Second Circuit
found that reasonable production goals, as opposed to fixed quotas, are not
in themselves a violation of the APA, and that the district court did not abuse
its discretion in finding that the policies at issue were goals rather than
quotas. Since the Second Circuit never directly addressed the issue of
whether a quota violates the APA, the case (despite favorable dicta) does not
squarely rule out the imposition of quotas under the APA.
Compare, Nash v. Califano, 613 F.2d 10 (standing) with Goodman v. Svahn, 614 F.
Supp. 726 (D.D.C. 1985) (no standing); AALJ v. OPM, 640 F. Supp. 66 (D.D.C.
2009)(no standing); Fernandez v. Donovan, 760 F. Supp. 2d 31 (D.D.C. 2011)(no
standing); Mahoney v. Donovan, 824 F. Supp. 49 (D.D.C, 2011) (no standing); D’Amico
v. Schweiker, 698 F.2d 903 (7
th
Cir. 1983) (no standing).
In Assocation of Administrative Law Judges v. Heckler, 594 F. Supp.
1132 (D.D.C. 1984), the district court concluded as follows:
“In sum, the Court concludes, that defendants unremitting focus on
allowance rates in the individual ALJ portion of the Bellmon Review
Program created an untenable atmosphere of tension and unfairness
which violated the spirit of the APA, if no specific provision thereof.
Defendant’s insensitivity to that degree of decisional independence
the APA afforded could have tended to corrupt the ability of
administrative judges to exercise that independence in the vital cases
they decide. However, defendants appear to have shifted their focus,
obviating the need for injunctive relief or restructuring of the agency
at this time. While it is incumbent upon the agency to reexamine the
role and function of the Appeals Council and its relationship to the
ALJs in light of this litigation, it would be unsuitable for the Court to
order any affirmative relief under the current circumstances. Plaintiff
has achieved considerable success in its valid attempt to reveal and
change agency practice.”
The district court then entered judgment in favor of the Agency, and
dismissed the case. Once again, we have a situation where the court’s
comments about the reach of the APA are dicta because the Agency’s
change in practice mooted the controversy. The dicta in Heckler seem to
endorse two debatable propositions. First, a violation of the “spirit” of the
APA as opposed to a literal provision of the APA makes a quota illegal (a
sort of “penumbra” theory). Second, anything that “could tend to corrupt”
an ALJ’s independence of judgment as opposed to an actual corruption of
judgment is an APA violation. It is far from certain that a latter day court
would endorse these propositions.
Recently, the case law has not been favorable. In Abrams v. SSA,
No. 2011-3177 (December 28, 2012 ), the Federal Circuit approved the use
of directives to process cases as long as the directives allowed the judge to
explain why the case could not be moved and the directives did not dictate
the outcome of the case or impede a judge’s ability to render impartial and
complete decisions. This is a prime strategy used by many offices to
pressure judges.
We also have the regrettable MSPB ALJ decision in SSA v. Shapiro,
2012 MSPB Lexis 6123(2012). There the ALJ took his cue from an MSPB
case called Goodman that held the Agency could remove an ALJ for failing
to meet a statistically valid production standard. In Shapiro, the ALJ used a
statistical study of production in Region 2 to demonstrate that Judge Shapiro
was a poor performer. The ALJ evaluated Shapiro’s performance by
reference to the performance of judges in his hearing office, a flawed
statistical comparison. These judges, by in large, all produced more than
500 cases except for one, who produced in the range of 250-300 cases.
Because it was unlikely that Shapiro could produce more than 200 cases, “a
figure that was significantly lower” than ODAR “reasonably requires,” the
ALJ found warrant to remove Shapiro. Arguably, Shapiro (which is a
sloppy opinion whose reasoning is all over the lot) says a judge must do 200
cases a year or risk removal. One just might say that Shapiro is a case
where no production made bad law, and leave it at that.
It would be unfortunate if a federal judge used a loose validity test
such as the one used in the Shapiro case. I hope that the plaintiffs in this
lawsuit are outliers in their own offices when it comes to grants and denials
as well as production. Otherwise, they will be subject to the same line o f
attack used against Shapiro, i.e. that everyone in their offices is producing
more but granting and denying about the same percentage and that since
cases are assigned randomly the case loads contain the a mix of cases that
permits a valid comparison between judges.
(To my knowledge, the Union has yet to acquire the transcript in the
Shapiro case, and has yet to submit an amicus brief on appeal objecting to
the decision because of the judge’s poor reasoning. I hope my information
is out of date and that the AALJ has taken these actions. If the Union has a
transcript, I for one would be interested in reading it.)
Thus, we have Nash and Heckler in dicta supporting the AALJ’s
claims. We have Abrams, a case that allows the Agency to use directives to
pressure judges to move cases. We have Shapiro where the ALJ accepted
the 500-700 range then used it to evaluate a judge’s production, and
arguably set a lower bound of 200 cases as a production standard. From my
perspective, the law (such as it is) is not definitive but ill-defined. It is not
patent to me that quotas are illegal but far from clear.
If a quota is illegal is it per se illegal? Are quotas permissible if they
do not directly change the outcome of a specific case? Is it enough to render
a quota illegal for the quota creates a risk that overall systemic pressure may
change the outcome of some case that no one can specifically identify? I
toss out these possibilities to provide a sense of how thorny this legal issue
could become and how uncertain the result.
One of the Agency’s claims in all arbitrations is that the APA only
stops the Agency from telling judges the specific outcome of a case. If a
court accepted this crabbed interpretation of the APA, then it would not only
license the Agency to try to control the inputs that go into decision -making
but might very well be used to justify reasonable quotas. I think the last
thing we would want is for a court to say that 500-700 is a reasonable quota
because 70% of all the judges are meeting it or allow management to cancel
our development because it does not involve telling judges the specific
outcome of the case. Given how unsettled the law, I think there is real
litigation risk here.
The vice of an unreasonable quota is that it can compromise a judge’s
impartiality. If a court rejects the Heckler “could tend to corrupt” standard
and adopts an “actual corruption standard” then the AALJ will have a
heavier burden at trial. Just as with the law, the evidence on this subject is a
bit confused.
In the complaint, AALJ’s position is that the 500-700 cases goal has
caused judges to “pay down the backlog.” There is little support for the
claim. First, denial rates have increased over the last few years. Second, the
ACUS statistical report indicates that no significant association exists
between grants and production except as one moves to extreme levels of
production far, far above 500 cases a year (into the 800 range or so). Third,
the ACUS statistical report also analyzes “hurry up cases,” cases decided at
the end of the fiscal year where one’s intuition might lead one to expect that
grants would spike-up dramatically. Once again, there is no effect.
In addition, the Agency will make the common sense argument that
the goal of 500 cases, even if a quota, is reasonable because the majority of
ALJs are producing in excess of 500 cases. The Agency could very well
enlist high producing judges to testify that they do not feel pressured into
deciding cases incorrectly, and that making 500 cases is not difficult.
In the complaint, AALJ also claims that the variance between judges
in grants and denials is due to Agency pressure. I do not know whether
grant and denial spreads have widened or narrowed in the last five years, but
I am skeptical that the result is Agency pressure. My sense (because of the
Agency’s recent emphasis on demonizing outliers) is that they have
narrowed, which would cut against the Union claim. Further, as Judge
Hatfield pointed out in his recent Senate testimony, whenever judges have
the power to make unrestricted credibility determinations, the more likely
one is to get a lot of variance.
Our situation is no different than the situation the federal courts faced
pre-sentencing guidelines, where depending on the judge, the same set of
facts would lead to a wide range of sentencing outcomes. Every ALJ has a
different sense of what makes a person credible or not, and because
credibility analysis is an art not a science, a wide variance in outcomes is to
be expected. (In passing, I would say the remedy for this variance is not for
the Agency to rail against outliers and vilify them, but to change the law and
make it more rule-like. At this point, there is little reason to think the
outliers are any more wrong than the inliers. The majority is not always
right and history has shown that often it is quite wrong).
The final AALJ claim is what I would call the “skip the evidence and
skimp the legal analysis” hypothesis. Here the claim is that in many offices,
there are so many pages of evidence in an average file, and because the
Agency rules, regulations and policies require so many discrete mixed
judgments of law and fact to be made, many judges cannot produce 500
cases without cutting-corners and ball-parking outcomes.
I think that the Agency has been pitching short-cuts to us for some
time. Then when judges get caught taking them, the Agency acts as if it is
surprised that there is gambling in Casablanca. I well recall in training
instructors telling us that we should avoid using experts because as judges
we were the ones hired to decide the case, our instructions could be very
short in favorable cases, and the only thing we needed to read in a hospital
record was the admission and discharge summaries. Before Huntington, an
instructor even told us that we could get to 500 very easily through profiling
unpulled cases. In one Region, a ROCALJ has explicitly told ALJS the
decision to read the entire record is entirely within their discretion. I am
aware of a HOCALJ who suggested that a judge use short form denial
instructions to remedy a pile-up of ALPOs quickly, while acknowledging
that such instructions would not be policy compliant.
At least in my experience, nursing notes and the like can be
surprisingly valuable. Experts will sometimes surprise me and find a listing
when my reading of the file indicated otherwise. It is better for us to invest
our time in deciding the hard cases rather than trolling through unpulled
files to find easy ones. Detailed instructions can assist a judge in reaching a
just decision, making that decision all that more defensible and easier to
write.
Advocates of this “skip and skimp” hypothesis argue that if we
followed all the rules, regulations and HALLEX provisions somewhat
faithfully, we would produce less than 500 cases. A number of judges I
have talked to think a number somewhere between 225 to 475 cases
(depending upon factors endogenous to each hearing office) is what we
would produce by carefully reading all the pages in our files, actively
analyzing all the evidence, justifying our opinions carefully to survive
appeal, and not relying upon writers to do our reasoning for us. Once again,
until someone makes a professional attempt to validate a number, we will
never have any real idea.
According to this hypothesis, many judges are pattern matching not
law following. Judges are simply engaging in pattern recognition (rather
than doing an in-depth legal analysis) to decide cases. This is why the lack
of a correlation between grants and production is not surprising. This result
is entirely consistent with ALJs having a pattern in mind of a prototypical
grant or denial, and then applying this pattern to increasing numbers of cases
to meet Agency demands. Since embedded in the pattern is a fixed split
between grants and denials, the ratio of grants and denials never changes as
production changes. It would be very easy from one year to the next to
increase production by significant percentages. One simply skims and
skimps a little more and lets the pattern do the work.
We know that at least one Agency official subscribed to this
hypothesis. In a published interview, Judge Gerald Raye described the
Agency program for reviewing favorable hearing decisions, a program
finding a high number of decisions unsupported by substantial evidence. In
that interview, Judge Ray made the following statement, “Analysis suggests
that most ALJs…increased dispositional output in accordance with agency
production goals; however, both random and focused reviews of favorable
hearing decisions strongly suggest that some decision-makers rely on
heuristics that are not compliant with the current law, regulations, and
policies of the agency. Thus, we see that some decisions are not supported
by substantial evidence.”
“Heuristics that are not complaint with the
current law” looks to me like Agency speak for “skip and skimp.”
One problem with the “skip and skimp” hypothesis is that it pits union
members against one another. I think that it is entirely possible that at trial,
we will see a parade of judges taking the stand who say that they are quite
punctilious in deciding cases even though they do big numbers. It will be
very difficult for find ALJs who will concede that Agency pressure or
simply the huge backlog might have influenced them to cut corners. It is
entirely possible ALJs will now fear MSPB actions should they come
forward
This would be quite ironic. The Agency itself is to blame in some
measure because its managers have repeatedly told judges that it is entirely
within their legal discretion to take shortcuts, and accepted production from
judges producing thousands of cases a year without qualm. However, any
ALJ who takes the stand at trial and admits to cutting corners may have to
withstand fierce cross-examination about a failure to stand-up to, what some
might think, are modest Agency pressures, and risks getting labeled as
unethical.
The nature of trial is that it flattens the complexity of human behavior.
Too often, the rhetorical demands of a trial label people good or bad when in
the real world, people are simply fragile. In a large powerful bureaucracy,
people can find themselves without support and find it terribly difficult to
stand up to authority. When you have a backlog this large, people make
difficult choices.
I simply cannot see an ALJ testifying, “Yes, I chose to cut corners. I
did the best justice I could do under trying circumstance. I chose between
two evils: not following the rule of law to its letter (which would have
limited my production considerably), or denying hundreds of people a timely
day in court, many of whom are looking to me for money they need to
survive. I trusted that the good I would do in giving people timely decisions
far outweighed the bad I would do through erroneous legal and factual
OAO Executive Director’s Broadcast, Volume 3, Special Edition-Quality Review,
dated January 12, 2012.
judgments.”
Outside of a courtroom, this is a defensible moral position.
Lawsuits, however, do not always admit of such ethical nuance.
All this could make for an ugly spectacle and how a court will react is
anyone’s guess. Just imagine a cross-examination where Agency lawyers
ask each individual plaintiff whether they are testifying that many of their
colleagues have denied a huge swathe of due process to claimants. We
might then see a whale of nationwide class action that would make the one
in Queens a minnow.
The other problem with this hypothesis is that some fear that by
accepting it, the system will come to a halt. One of my colleagues
somewhat puckishly said that if we followed the regulations, the SSRs, and
HALLEX to the letter (as the Chief Judge recently instructed) we would
produce three cases a year. I have little doubt that if the system slowed
down, we would do a lot more justice. However, the backlog could double.
This hypothesis has both logical and factual appeal but lacks practical
appeal. As witness our press so far, it lacks public relations appeal. I
wonder whether when push comes to shove whether it would represent an
attractive option to a federal judge, especially a very pragmatic one who
understood the implications of embracing it.
I think it unlikely (but I could be wrong) that the AALJ will find
“smoking gun” documents that establish the Agency has a written policy of
imposing a de facto quota on its judges. My sense is that Agency pressure
can differ substantially from office to office and region to region (which
argues in favor of grieving on a case-by-case basis). The fact-finder will
then have to determine at what point Agency pressure to meet production
goals turns into a coercion—a delicate question—and whether if coercion
has occurred, it has occurred in more than isolated instances. It will be no
victory in this litigation should the three plaintiffs be vindicated, but no
overall pattern of imposing quotas is found.
I am aware of three sorts of directives that the Agency have given to
judges. First, the Agency has asked judges to justify cases lingering in status
well over the seven-day periods contained in the Benchmarks or move them.
(Actually, the real Benchmarks are somewhere between 30-60 days
depending on the office and the Region.) Second, the Agency has issued
absolute directives to move cases that are in a status longer than a particular
period, in my experience 30 days. Finally, the Agency has ordered at least
one judge both to move cases in a 30-day period, and to provide enough
hearing slots to accommodate all cases the Agency places in ARPR, and
then when that judge fought back, backed off. The third case looks very
much like a de facto quota, while the first and second cases are a bit fuzzier
because an ALJ can always respond by decreasing the number of hearing
slots provided and then bring cases within the benchmarks.
My sense is that we will find a great many Agency actions that are
instances of the first case, considerably fewer instances of the second case,
and only a handful that instance the third case. I wonder whether a federal
district judge will necessarily find agency actions that are designed to apply
a great deal of pressure to produce 500 cases but do not necessarily require a
judge to produce 500 cases tantamount to the imposition of a de facto quota.
The evidence is certainly there to make such a finding, but I can very much
see a fact-finder finding otherwise on purely formalistic grounds.
I am aware of no judge whom the Agency has disciplined for solely
failing to meet goal. Based on the complaint in this case, judges have been
hassled. Management has called judges to account for not making goal.
Management has asked judges what they intend to do to achieve goal.
The complaint mentions counseling and reprimands but I wonder
whether there was some other theory at work there such as a failure to
satisfactory explain why cases languished in ARPR and ALPO as in Abrams
as opposed to simply failure to meet goal. It appears that what the Union is
calling counseling in the complaint is in some instances oral counseling
sessions that would probably not count as actual discipline because nothing
goes into a personnel file. (I would note that the area of “directives” is
rather murky, the Union has not analyzed it very deeply, and is ripe for the
grievance process.)
Lastly, it does seem to me a bit of a stretch to argue as the complaint
does that taking resources for people is a form of discipline. In fact, by
doing this, the Agency gives an ALJ a defense to a charge of low
production.
Speaking of stretches, I should add that I was most amused that the
complaint (in an ill-advised excursion into social science) tacitly likened us
to characters in the television show “Girls Gone Wild,” judges doing
naughty things after drinking too much Agency production Kool-Aid. Of
course, the difference between a “stretch goal” (“an organizational goal with
an objective probability of attainment that may be unknown but is seemingly
impossible given current capabilities”) and the Agency goal is that a
majority of judges are meeting the Agency goal and many could so testify.
One again, let us assume for the sake of argument that the AALJ has
an 80% chance of winding its way successfully through this final legal and
factual thicket. Assuming that there is 80% chance of prevailing on each of
these issues and that the issues are unrelated to one another, then the overall
chance of prevailing in this lawsuit is 80% times 80% times 80% or a little
over 51%--little more than a coin flip, just like the law firm supposedly said.
I think many people would say that an estimate of an 80% chance on each
one of these issues is overly optimistic. Lowering the odds to 70% on each
issue reduces the Union’s chance of prevailing to a little over 34%.
If I had to use my own subjective probabilities, it would be 90%, 48%
and 65% when it came to prevailing on each issue, for an overall probability
of about 28%. My biggest uncertainties are that I am not all that familiar
with CSRA law, and that because it seems self-evident to me that pressure to
achieve a number can distort one’s judgment, I may be assigning too high a
probability to victory on the quota issue. I am comfortable calling the
standing issue a toss-up with a slight edge to the Agency.
It is an interesting question whether most people would find that a
28% to 34% chance of winning this litigation is worth the risk that the
litigation could produce bad law and embolden the Agency to tighten th e
screws even more. Would the membership even think that a coin-flip’s
chance was worth the money and the risk? Because this issue is so
important, this calculus is one that that many members, including myself,
feel the Board should have left to the membership.
This probability estimate ignores one crucial question. What is the
remedy? The forward-looking remedy the AALJ is looking for is an
injunction barring the Agency from using the Benchmarks and the 500 -700
numbers, seemingly for any purpose.
If the Agency cannot use the Benchmarks or any goals whatsoever to
manage ALJs, then what the AALJ is asking for is for ALJs be able to do
pretty much what they want. I can envision a court having a problem with a
completely independent ALJ Corps, especially in light of the fact that the
backlog is so severe and the Agency appears to have made progress through
a more “aggressive” (a euphemism to be sure) attempt to manage ALJs.
Similarly, if instead a court decides that the Agency cannot use benchmarks
and goals, then the remedy will have to be very specific. This leaves open
the possibility that the court will have to retain jurisdiction and there will be
continual battles over what constitutes proper management and what
constitutes the illicit use of quotas.
A court might think the first remedy gives ALJs too much freedom;
that the second remedy will lead too much micromanaging of the Agency
and involve the court in too much continuing supervision. In this situation, a
court might very well invite the parties to bargain over remedy, or submit
competing remedies and choose between them, or create some sort of hybrid
between the competing positions. Possibly, a court might simply punt and
declare that the Agency’s conduct had been illegal, and leave it to a future
lawsuit if this declaration of rights has no effect on the Agency’s conduct.
I think this is the most difficult portion of the lawsuit to handicap, but
I would not be surprised if the Union emerged with a less than resounding
remedy. I can very much see a court determining that ALJs left to their own
devices will not take the backlog seriously, and decide not to completely
strip the Agency of tools for managing them.
Unless this case settles quickly, then we could be looking forward to
two or three years or even more of legal uncertainty. The complaint asks for
a permanent injunction. It does not look as if the Union is asking for a
temporary restraining order or a temporary injunction. According to the
Board, the evidence and law is overwhelmingly in our favor. Then why not
litigate immediately and put a fast end to the problem? Or is the fact that
the Board has not made this request betray a lingering doubt as to whether
the Union has a “substantial likelihood of success on the merits or a clear
legal right to the requested relief?”
It appears the Board has chosen to litigate for the future. In the mean
time, does the Board have a concrete plan for dealing with pressure to
produce now? Does the Board think the pressure will stop? If not, how
does it intend to protect us while the lawsuit winds its way forward? One
would think that the Board would have a short-term solution to propose as
well. Does this lawsuit mean that for the foreseeable future it will not be
bringing any grievances alleging an APA violation, the lack of validity of
the benchmarks, or the illegality of issuing ALJs directives? If not, how
will it protect us?
Venue Risk
The Union’s choice of venue, the Northern District of Illinois, is
perplexing. I will crudely assume that liberal judges are more likely to look
with favor on the Union’s claim than conservative judges would. As I
handicap it, the District Court judges in Chicago are a mostly a liberal lot.
There are a great many Clinton and Obama appointees. At that level, the
Board might have some cause for optimism that one of those judges will
look favorably on our claims. For all I know, Judge Coleman fits this profile
and so far, we have been lucky.
On appeal to the Seventh Circuit, the picture changes quite a bit.
This is a very conservative court. You can rest assured that if the Agency
loses in the District Court, it will appeal to the Seventh Circuit. The Seventh
Circuit will then effectively be the court of last resort, because I wonder
whether by that time the Union if will have enough money to pursue this
case all the way up to the Supreme Court and even then, the Supreme Court
rarely grants review. Since I am originally from Chicago, I know a number
of lawyers who regularly litigate in both courts, and the uniform reaction has
been that we may fare well in the District Court but the Seventh Circuit is
not a place that a union ever wants to be. They ask me why instead, the
Board did not choose the Ninth Circuit, the Fourth Circuit, or the Second
Circuit (where the Nash case conferred standing).
The Board might argue that the Seventh Circuit has shown a great
deal of hostility toward the Agency because the Agency has repeatedly and
irrationally refused to concede that there is no basis for defending many of
the ALJ decisions on appeal. Somehow, this means that the judges on the
Seventh Circuit will be sympathetic to us because they dislike the Agency.
I am not exactly sure which way this cuts. The Seventh Circuit has not been
satisfied with our work, and has repeatedly found it sloppy and biased. One
would might think that they would have little sympathy for a corps of ALJs
whom they may think are intellectually lazy, especially since most of the
judges on the Seventh Circuit are workaholics who put in 70 hour weeks to
make sure they get their decisions right.
We should not also discount the play of other attitudes. I think it is
safe to assume that conservative judges have three attitudes that do not help
us. They are not huge fans of unions, especially public ones. They are not
fans of the administrative state and think that it places too much power in
quasi-independent entities that are unaccountable to the people. They
believe that resolution through private ordering (think of collective
bargaining agreement with a well spelled out grievance procedure) is
preferable to using scarce government judicial resources. These kinds of
attitudes do not augur much in the way of sympathy for our lawsuit.
The only good reason I can see for the Chicago venue is that Judge
Wenzel lives in Chicago, has been spearheading this effort and presumably
will be supervising it. I have a lot respect for Judge Wenzel’s commitment
and abilities (although we certainly disagree about the wisdom of this course
of action and how to read the legal tea leaves), but I am not sure that this is a
great reason to have filed in Chicago.
Financial Risk
According to one Regional Vice-President, the Board has already
spent at least $250,000 on this litigation and probably more. Certainly, the
tab is at least $150,000. Federal litigation is quite expensive, and I would
not be surprised if by the time this litigation concludes (especially if there is
extensive discovery) that the cost could exceed one million dollars or more.
The impact on the Union’s financial stability is anyone’s guess. I
would hope that the Union would provide a detailed financial analysis to its
membership to show this litigation is financially viable. We are not simply
talking about financing this case at the District Court level but the Circuit
Court level as well and potentially even in front of the Supreme Court—a
pretty conservative Supreme Court that has not hesitated to use standing
doctrine to avoid making substantive decisions. Has the Board drawn up a
litigation budget that it can show us?
I would hope that the Union has factored in the risk of any possibility
that the Union, in the event of an adverse result, would have to pay court
costs or attorney fees, and the need to assess the membership costs that
exceed the annual membership dues to fund any litigation deficits. After all,
Article VII, Section 1 of the Union Constitution permits the AALJ to make
membership assessments “as required” over and above dues
I also do not know whether as an association, the membership is on
the hook if the Union becomes goes bankrupt? If so, is it too late for the
membership to choose to quit the Union and opt out of liability? If so, then
another problem with the Board’s decision is that it not only is an unwise
one, but it may have committed hundreds upon hundreds of judges to paying
financial obligations that they would never have agreed to shoulder. I would
note that because the Board chose to file this lawsuit in April, anyone who
chooses to leave the Union is still on the hook for dues for almost a year.
I think the membership is entitled to have these questions answered.
The Board as a gesture of good faith should vote not to assess dues against
any member who chooses to leave the Union before March of next year.
Since the Board gave the membership no notice of this lawsuit, it would be
the gracious thing to do.
Political Risk
Another risk (one with huge consequences) is that we will lose in the
court of public opinion. Many perceive us as the problem rather than as
guarantors of due process. By filing a suit, that others can characterize as
whining by overpaid and underproductive civil servants, we risk thrusting
ourselves even more into the limelight, and provide even more fodder for
people to argue that the ALJ Corps should be eliminated or dramatically
reconstructed in ways that none of us would want.
I think this lawsuit will have little appeal to the world at large, a world
where we have it pretty easy in comparison to people who cannot get a job,
and where many workers function under tremendously stressful conditions
in the private sector and earn much less. We worry about flexi-place.
Today, many Americans worry about finding a place to work.
In this unstable political environment, I would be reluctant to take
even a tiny risk. Some academics believe the AALJ’s claims of judicial
independence are quite overblown. In the last few years, the press has been
publicizing the rising cost of the system, and singled out a number of judges
as prime culprits. The Agency has just finished settling a class action
alleging that ALJs in Queens were biased and hostile to claimants. The
federal courts continue to have little respect for our work product. Now is
not the time to give anyone an excuse to try to take action against us. Our
qualified judicial independence is rooted in statute not the Constitution, and
with the stroke of a pen, the government can eliminate it.
Negotiating a Favorable Settlement in the Shadow of the Lawsuit
Perhaps, the Union may be optimistic that the Obama administration
or a new COSS, will be more sympathetic to our issues, and will settle this
litigation on favorable terms, and think that someone like Nancy Altman
(whom the Union has endorsed) would be likely to look on us with favor.
In any event, filing a lawsuit seems an odd way to welcome a new
COSS. Would not it have been prudent to meet with a new COSS to
determine if the new COSS would less confrontational and more willing to
work with the Union than the last COSS?
Any settlement that has teeth will necessarily lower overall system
case production, and increase the backlog. A new COSS, who agrees to take
the foot off the production throttle, faces the prospect of antagonizing a
Congress and a host of disability rights groups who are quite rightly
concerned about the backlog. A new COSS when faced with the prospect of
balancing these constituencies’ political power against the puny political
power of the AALJ might not necessarily be as willing to settle this case as
willingly as the Board might suppose, even if privately sympathetic.
In fact, one could argue that the rational strategy in this case is not to
settle. After all, why capitulate to the threat of a lawsuit when the odds of
the Union prevailing are potentially so low? Is not the rational thing for the
government to do is see if it can get the suit booted on a motion to dismiss?
And if the outcome of the litigation will be pretty much the terms on which
the AALJ will insist be included in a settlement, would not litigating to
verdict and then taking appeals, if the result is adverse, be the best
alternative to a negotiated agreement? If I were a COSS, no matter how
liberal, I would much prefer to administer a coup de grace to the Union.
What I have said is abstract. Maybe the Board has faith in a more
specific scenario such as the following one. It files a lawsuit. Its parent
union, the AFL-CIO, agrees to go over to the White House and put political
pressure on the Obama Administration. The Obama Administration folds,
and orders Acting COSS Colvin to settle the lawsuit and give AALJ the
relief it has requested, the elimination of the Benchmarks and the “de facto
quota.”
Whether this scenario is magical thinking or the most likely path to
victory, I do not know. It makes a number of assumptions. First, it assumes
that the AFL-CIO will show more than solidarity and be willing to use
political capital on our account when it must have a host of issues that are
more important to its membership. Second, it assumes that the Obama
administration will give in to the political pressure.
I think one sign that settlement may not be in the offing is that
ACOSS Colvin has brushed the Board off so quickly and peremptorily, and
has vowed to defend vigorously against the lawsuit. Presumably, as a
placeholder, she would have consulted with the Obama administration
before taking this position.
Broken Windows and Cheap Talk
Over the course of five years, I think the Union has been passive in
terms of handling the 500-700 issue. To my way of thinking there has been
very little coordinated strategy to attack the Agency’s continuing chipping
away at the hearing office level of our qualified judicial independence.
There has been a lot of flowery rhetoric about due process and judicial
independence in the AALJ newsletter, but not much action on the ground.
When you get to a point that every month a HOD delivers a
spreadsheet showing how close a judge is to goal in comparison to the other
judges in the office and the Agency is saying that 80% of all judges are
meeting goal, then we have reached a point where the 500-700 has become a
normative baseline. When you get to the point that some judges are trying to
fly under the radar and produce enough cases to keep the Agency at bay,
then the Union has failed in its most important mission, keeping the
membership free of fear.
The Union has spouted a great deal of rhetoric, but it has lost the
hearts and minds of a great many judges in the hearing offices. The Agency
broke a whole lot of windows, and the Union let the neighborhood go to
seed. It all happened in six years.
I have seen virtually no Union action designed to make it difficult for
the Agency to advance its unprincipled agenda, to energize the membership,
and provide ALJs with real guidance. Union leadership has been
conspicuously absent in the hearing offices. A monthly newsletter is no
substitute for talking on a regular basis with the membership, even if you
only set up quarterly teleconferences.
Over the last two years, when I have talked to Union leadership, it has
seemed tired, frustrated, and disheartened. It has certainly suffered its share
of setbacks in the last six years, including an increasingly divided
membership, and a new collective bargaining agreement that contains some
unfortunate provisions and gives us little in return. I hope that this lawsuit is
not the outcome of an overly pessimistic view of the future.
In an effort to get some sense of how the Union has proceeded, I tried
(unfortunately about half the links on the AALJ website for the 2012
minutes did not work) to read the Board minutes and the President’s
newsletters from when Judge Cristaudo first announced the 500 to 700 goal,
on October 30, 2007, to the present day.
Hindsight is 20/20. I think, however, the minutes show that the Board
never developed a coordinated and coherent approach for dealing with the
Agency’ program for changing production norms at the hearing office
level—a program that we now know has been quite successful in inculcating
the 500 number and even inducing many judges to produce in the range of
600 or higher.
Here is a brief selection of Board’s failures to take much in the way of
concrete action:
(1) In late 2008, the Board discussed the need for a “uniform
approach” to deal with management discussions with ALJs about
meeting the 500-700 goal. One Board member provided a suggestion
of how ALJs should respond in email to these discussions. Another
presciently suggested that the Union should “put forth a minimum
number of cases that an ALJ should be in a position to handle with
current staffing numbers and abilities—otherwise the number is going
to be established by someone else.” Almost a year had passed since
the Cristaudo letter, and production was climbing, but the Board had
yet to formulate a uniform approach for how to deal with Agency
pressure in the hearing offices.
(2) In November of 2009, a Board member raised the following
concern: “Our failure to hit the Agency hard at the grassroots levels
allows these goals and benchmarks to become the norm and will lead
to the destruction of due process.” The Board agreed to provide
“input” to the Board member toward adopting an ALJ a position, but
once again, there is no indication that the Board adopted any position.
(3) In 2010, I can see very little that the AALJ did except to testify in
Congress and ask ALJs to continue forwarding instances where
management has been interfering with judicial independence. Of
course, instead of waiting for members to forward complaints, the
Board could have been proactive and visited the offices or held
teleconferences.
(4) In 2011, in an October Board meeting, the National Grievance
Chair, informed the Board that there appeared to be an increase in
case processing/benchmark actions which would begin with a
directive and end with a counseling letter or a reprimand. Instead of
using subsequent newsletters to warn ALJs about this disturbing trend
and advice ALJs how to protect themselves, Judge Frye continued to
grumble that the Agency’s goals were unrealistic and amounted to a
quota.
(5) Recently, Judge Bice circulated a memo that has made broad and
think inaccurate claims about the reach of HALLEX (which even
contradicts the position that OGC lawyers have been taking in
arbitration hearings), and the AALJ has not asked Judge Bice to
clarify what she meant in the memo or even responded to it—another
broken window ignored.
Less Drastic Means
There have to be strategies available that are much less risky than a
lawsuit. Off the top of my head, here are some of the things that the Union
could have done (and could still do) short of filing a lawsuit in order to
persuade the public and its members that the 500-700 number was simply
the product of political expediency:
Gather Information Less Expensively Than In a Lawsuit. Over
the last five years, nothing stopped the Board from filing a comprehensive
FRLA and FOIA request, and using grievances to collect information. In
2009, the Board voted to hire Dean Krent of Chicago-Kent Law School to
file a FOIA but it is unclear this was ever done.
Despite Judge Frye’s claim that this lawsuit is the result of a
comprehensive two-year investigation, we actually know comparatively
little. To this date, we have no idea, for example, whether the Agency has
any statistics that show any relationship between increased production and
bad outcomes, or how production relates to remand rates. There is
obviously a unit in OCALJ that reviews all aged cases across the nation. We
know very little about how it operates. We do not know how the Agency’s
use of the benchmarks has factored into its backlog reduction plans. We do
not know exactly how Agency created the Benchmarks (the rumor, which
may be an urban legend, is that someone from the Agency scrawled them on
a napkin in a bar). We only know anecdotally that the Benchmarks are
applied inconsistently form office to office and that there are few, if any,
offices in the nation that hold judges to the Benchmarks seven day limits.
There is no need to pay a law firm at this point to do expensive
discovery for us when we can do inexpensive discovery ourselves. This is
something the Board should have undertaken in a systematic way over the
last five years.
Show the 500-700 Goals Are Arbitrary and Invalid By Putting the
Agency to the Test. The Agency has reacted to the predictable low quality
of decisions by acting as if there is no trade-off between production and
quality. Judge Bice has written a memorandum in which she recounted the
result of a quality review of favorable cases, and requested ALJs to pay
more attention to the rules and regulations. Recently, in my Region we
received a memo suggesting that judges increase their use of VEs two-fold.
Finally, anyone who takes the rules and regulations seriously would have to
expend a great deal more time on cases than the Agency suggests.
Furthermore, it is plain as day that when Judge Cristaudo came up
with the 500 number, judges had access to easy cases for OTRs. In the wake
of increased use of Senior Attorneys to screen cases and the Huntington
debacle, easy cases are no longer available for the picking.
When you add these Agency pronouncements together, they cannot
help, but substantially undercut the Agency’s goals. Indeed, they make the
Agency’s continued insistence on 500-700 cases a year look a wee bit
disingenuous.
Yet, over the last five years, Judge Frye has been silent about how
these Agency initiatives must necessarily reduce the amount of cases
produced. Judge Frye could have pointed out that until Judge Bice
announces that Regional goals should be followed Agency wide, then 500 is
the number the Agency expects form its judges and any attempts to pressure
judges into a larger number are unjustified.
Judge Frye could have pointed that these Agency pronouncements
have to have eroded the 500-700 goal by at least 10%-15% and probably a
great deal more, but Judge Frye has never told the membership that the real
goal is now 425-450 cases.
With union support, one thing that judges could do is notify their
regions in writing that due to recent communications from Judge Bice, they
will have to schedule and produce fewer cases to meet her quality demands.
These letters could ask the region for specific suggestions on how to be more
efficient, reconcile these conflicting Agency priorities, and what discount the
Agency recommends off the goal to reduce remands and increase the rate of
sufficient decisions. I doubt that there would be much of a response, but the
silence would speak volumes about the Agency’s refusal to admit that there
is a trade-off between production and quality.
Finally, the Union could have insisted on a better way of counting.
There are numerous problems with how the Agency counts dispositions.
The list is endless but includes not adjusting for HOCALJs assigning
themselves dismissals, not subtracting out union time, not adjusting for
vacation and sick time, not adjusting for differences between offices in
dismissal rates, staffing ratios, type of case, ratio of represented to
unrepresented clients, and most importantly judicial style—use of experts,
length of hearings, amount of development.
One would think that the Union would be very concerned about this
issue and organize around it-- demanding ceaselessly that the Agency
develop a counting system that properly compared judges to one another.
While the Union has pointed this out, it has done very little to put the
Agency to the test or offered any method of its for adjusting the numbers so
judges could protect themselves and demonstrate that any attempt to judge
them through the absolute number of dispositions is misleading
Teach Judges How to Demonstrate That the 500-700 Goal Is
Arbitrary and Invalid. Most students of Agency production demands
think an ALJ will only really attract scrutiny if the judge produces less than
400 cases a year. In fact, that was the testimony of a HOCALJ and a
ROCAL in a recent arbitration. Indeed, Agency upper-level management
has told some judges that the Agency would settle for a firm 350 cases a
year from every judge. I suspect that the reason that 400 is a defensible
number is that the Agency on some level knows that 500 can be a bit of a
stretch for many judges. This information is important. Yet, the Board has
never gotten this message out. If it had, this information would have given
judges a greater opportunity to tailor their production to their conscience.
Another thing the Union could have done is drafted a form ethics
request from the Agency and given it to judges to write to the Agency for an
ethics opinion on the subject. In the letter, a judge could state that the rules
and regulations require us to read all the evidence in a case file (including in
many instances the evidence in all previously denied claims). That because
of the volume of pages in a case, faithfully reading the file will mean that the
judge will probably produce far fewer cases than 500-700.
The question the letter would pose is whether it is ethical for a judge
to selectively delve into a file and cut corners . I guarantee that the only
answer we will get is an acknowledgment of the inquiry and a brief
statement that we are required to follow all rules and regulations. The
reason, of course, for the silence would be that the Agency cannot justify its
own number. When you put the Agency’s goals to the test, its only refuge is
to simply repeat them or ignore you.
Finally, the Union could have designed protocols to enable the
membership to respond to Agency directives whose only purpose is to harass
judges and pressure them to do the 500. There are ways to respond to orders
that help make a much better record should the agency impose discipline,
but the Union has provided no concrete guidance to judges, many of whom
are quite scared in the wake of the Shapiro decision.
I think that if each ALJ took 500 of their cases and simply toted up the
number of pages in a file, he or she might be astounded at how much the
Agency expects them to read and process carefully. If an ALJ actually did a
self-time study, he or she might be surprised at how much longer it takes to
do a proper job than the two and half hours or so a case Judge Bice is
peddling. It can take much longer than that for a judge to review 500 pages
of medical records carefully and all the other sections of the case file not to
mention prior files. This not only would show the arbitrariness of the 500
number, every judge who self-timed would be able to show that in his or her
particular case, the current production standard cannot be validated, cannot
be attained, and cannot be used as a source for intimidation or discharge.
Challenge Agency Attempts to Enforce An Arbitrary and Invalid
Production Standard.
The Agency has done many things both big and
small to frighten ALJs and to take advantage of their goodwill. From the
very beginning, the Union and its LARs should have reacted aggressively
whenever this happened. The problem we face now is not a de facto quota
but that the Union allowed the production norm to change so dramatically
without fiercely resisting what it knew to be a lie.
For example, I am surprised that the Agency continues to ask all
applicants for ALJ positions whether they believe they can do between 500-700 cases a years. I am amazed the Union has never made this an issue both
because applicants do not really know the requirements of the job, and it
suggests that there is a condition of employment that is not part of our OPM
job description. Indeed, many HOCALJs and ROCALJs have used a “yes”
answer to this question as the basis for asserting that the ALJ in question has
“promised” to produce 500-700 cases. Once again, there has not been a
peep out of the Union objecting strenuously to this practice or informing the
membership of its inherent unfairness.
One area where the Agency has made a concerted effort to mold new
ALJS is the mentoring process. It really is not so much a mentoring process
as an attempt to brainwash new judges into producing goal. Nothing
stopped the Union from publishing its own “Mentoring Manual” and
handing it out to new ALJs. Simply write a mentoring manual for all new
judges that counters the propaganda in the Agency mentoring manual . In it,
the Union could point out why the Agency’s expectations are unrealistic and
how the shortcuts that Agency mentors urge new judges, such as not using
experts and using egg timers to review files, lead to injustice. For example,
the recent ACUS study shows that a judge using experts is more likely to
grant cases.
Arbitration.
To date, we have only litigated a handful of grievances
where Agency “directives” were at issue. Given the way “directives” have
been flying lately, we could file a ton of grievances. I am not sure that
Judge Cristaudo (if he were cross-examined at an arbitration) would
necessarily be such a firm supporter of what the Agency has done with his
500-700 figure and he would certainly have to admit that the figure was
arrived at in a time when judges could look forward to a high percentage of
OTRs. We should be able to get Judge Bice to admit under oath that she
would have had a hard time getting to 500 a year without getting so many
dismissals.
The aggressive use of grievance arbitration would give us the
opportunity to repeatedly put Agency higher-ups to the acid test and refine
our legal theories (many of which because they are rooted in the Collective
Bargaining Agreement go well beyond APA violations). Instead of
spending a million dollars or so on this lawsuit, we could probably hire 10
lawyers to pursue 10 arbitrations single-mindedly and aggressively. Since
the result of arbitration does not have a tremendous amount of precedential
weight, and the facts of each case will be slightly different, then losing will
not be as costly as a broad- brush lawsuit.
Better to litigate piecemeal, and win some and lose some than to bet
the house. This approach has not been so terrible. We have won some pure
judicial independence cases (and by this I mean ones that do not involve
judicial misbehavior) and we have lost some. As we learn more about the
Agency’s methods from arbitration to arbitration and invest more money in
arbitration, we will do better and likely have better outcomes.
Lobbying. To date, the Board itself has been doing most of the
lobbying, and based on the results, it is clear that it lacks the finesse and
political acumen to do an effective job. As near as I can see, the Union’s use
of its Board to lobby Congress has been a complete and an expensive waste
of time. At core, this is not a legal problem but a political one and we need
professionals to carry our standard not amateurs. Arguably, putting an
influential lobbyist on retainer at $100,000 a year for ten years might bear
much more fruit than spending one million dollars on this lawsuit.
Professionalism.
The Union could go beyond sporadic Agency
training and design a program to certify ALJs as disability law experts
through voluntarily passing a series of increasingly more difficult
examinations that test both legal and medical knowledge—a sort of Series 7
exam for administrative judges. One view of the high remand rate across the
nation is that it is beyond our control. Another view is that many of us do
not know the law as well as we should and that careful legal analysis could
halve it. If you know the rules and regulations better than those who are
setting the goals, then you are in the best position to determine what your
goals should be. Your competency is never in doubt.
Now many of these things are small things, but if we have learned
anything from the Agency about how to shake-up a culture it is that small
things count and collectively can create a cultural Tsunami. To do the small
things, you need to devote the time to training and persuading people to be
LARS. You need to be on top of what is occurring in each office. You need
to communicate person to person with your membership continually. You
need to work at creating group solidarity. This is much harder and requires
far more leadership and strategic imagination than preparing testimony for
Congress and spending a large amount of money so a law firm can fight in
court a battle that you should have fought in each hearing office for the last
five years.
I really cannot say with any degree of confidence what sort of tactics
will help put a stop to this pressure (and I recognize that many of these
suggestions may be at cross-purposes), but I have seen little in the way of
fresh ideas from the Board. I am not entirely sure that the situation is as dire
as the Board seems to think, especially with the advent of a new COSS. I
have faith that as a membership, if we put our collective minds to it, we
could come up with hundreds of ideas for making things better without
betting the house through expensive litigation.
The Board will not get the benefit of our collective wisdom unless it
makes a genuine effort to talk to each one of us. In the 3 ½ years that I have
been a judge, only after the lawsuit was filed and at my instigation, did my
Vice-President ever deign to come to my hearing office and listen to our
input. I have heard of similar experiences in other hearing offices.
The Radical View: Validation
I have heard some argue, even more radically, that the Union has
misread the politics here. Many key interest groups and many members of
Congress are, with few exceptions, concerned solely about the backlog.
Perhaps, we just have to accept that the backlog is the key issue here and it
trumps most everything else.
The radicals say that we need to brand ourselves anew rather than
fight old wars from the seventies. Perhaps, the time has come to validate a
sensible production number and hold judges to that standard. (Despite the
Union’s public position, I think this is pretty much what the Board did in the
Shapiro case. I do not believe the Board was entirely honest with the
membership about why it walked away from Shapiro. In this charged
political environment, I am convinced that the Board did not want anyone
see them as supporting such exceptionally low production. Understandably,
it did not want to touch the case with a ten-foot pole)
The radicals believe that the Union has painted itself into a corner, a
political Catch 22. If we produce without regard to quality to meet an
arbitrary Agency number, we do an injustice to claimants and the taxpayers
alike thus opening ourselves to criticism. If we care about quality and adjust
our production accordingly, we slow the process down and worthy claimants
are hurt thus opening ourselves to criticism. In this political environment, it
is simply untenable to complain (as we do in the lawsuit) that we need to
slow down without offering up a concrete and defensible number.
According to this view, the function of the Union should not be to
fight battles for one group of judges and demonize another group without
knowing where the truth lies. The way out is by persuasively validating a
number and taking production out of the equation. Otherwise, like a real life
version of the movie Highlander (where immortal warriors tried to cut off
each other’s heads for thousands of years), we will fight these production
wars endlessly, and continually become handy scapegoats for the backlog.
As events have shown, it is simply not persuasive nor politically viable when
asked, “What is your number?” for the union to remain silent or provide a
range that spans hundreds of cases.
The radical view holds that it is far better to tell the Congressman
Johnsons of the world that we have analyzed the situation carefully. After
painstaking analysis, here is the number. It is a number designed to optimize
the trade-off between production and quality, to comport with the rule of
law, and one the Union would urge our membership to work as hard as they
can to reach.
Now, I recognize that the validation study would have to permit us to
adjust the number based upon endogenous hearing office factors such as the
number of pages in a file and the ratio of represented to unrepresented
claimants. In this day an age, I would think that we could find a consultant
with the vocational and mathematical sophistication to help us discover the
number and deal with this wrinkle.
If anyone thinks it is the wrong number, then demonstrate what is
wrong with our analysis. Because at least the Union acted responsibly, paid
a million dollars to arrive at the truth, conducted an in-depth analysis, hired
the best consultants it could find in this area, laid bare its assumptions and
the data it relied upon, and is willing to defend its conclusion in detail.
Unlike the Agency, the Union did not pick a number out of a hat simply
because it was politically expedient. Unlike the Agency, the Union did not
play politics with claimants’ lives and fast and loose with taxpayer money
but tried to address the issue in a principled fashion. The Radical view
frames the key issue here as one of fact and a good faith determination of
where the truth lies.
The answer to the question of what the number should be could be in
the judge-by-judge remand statistics that the Agency has been so unwilling
to give to anyone. It may be in the average number of pages in a medical
file. It may be in a large number of judges timing themselves to see how
long it takes them to process a case responsibly at each stage. However, we
will not find the answer in litigation, which can all too often turn into the
enemy of truth.
The virtue of this strategy is that it takes spotlight off judges and turns
it back on a system that desperately needs to be reformed. If it turns out that
the number is lower than 500, the solution may be not to add more judges
but as Judge Hatfield said in his Senate testimony to change the rules. If it is
higher than 500, the judges need to produce the cases and stop complaining.
At least, we have reached an end state and can move on to other things. The
radical view encourages the Union to treat the Agency as a partner in
pursuing the truth. This is a partnership that the Agency will for political
reasons likely reject. Nonetheless, because it does not presuppose an answer
to the question of how many cases to produce and simply seeks to find out
the truth, this is a position that occupies the high ground.
This strategy also avoids throwing judges under the bus in this
lawsuit. Once we arrive at a number, judges who have been producing too
many cases or too few cases can safely move toward that number as a safe
harbor. Furthermore, if the Agency refuses to accept the number, we should
win a great many arbitrations because the Union will be the only one in
possession of a valid and reliable production standard.
Judge Zahm has wrapped herself in the Union Constitution when
others have made this suggestion, but in truth, nothing stops the membership
from amending the constitution (as was recently done) and nothing stops the
Union from endorsing a number but refraining from bargaining for its
inclusion in a Collective Bargaining Agreement.
We must realize that as I write, the Agency is already validating the
workplace. The agency is validating by simply turning to what other ALJs
do and saying, “See, it can be done consistently with law and regulation
because 70% make 500.” We all know that is a fallacy because it begs the
question, among other factors, of the size of the case file, and whether the
Agency gives judges time to apply law carefully or is trying to hustle them
and frighten them along. However, unless the Union offers up a legitimate
number, the Agency number is the only game in town. This is the radical
view.
Exit, Voice and Loyalty
As with any organization, the AALJ membership has three options:
loyalty, voice or exit. We can loyally choose to support the Board. We can
voice our dissent. We can exit the Union. However, unless the Board
agrees to provide us with a detailed account of the costs, benefits and risks
that it took into account in making this decision, just as it denied us the
ability to have input in the first place, it will deny us the opportunity to make
a fully informed decision about what to do next.
Now that the lawsuit is public, I think it is incumbent upon the Union
to circulate a document to the membership that candidly and in a de tailed
way addresses the questions we all might have, and release the minutes of
the executive sessions where the Board addressed these issues. This is no
substitute for the Board seeking member input before the fact. At least after
the fact, this information will allow the membership to determine how
diligent and careful the Board was in representing the membership’s
interests and to choose between loyalty, voice or exit. My hope is that the
membership will choose voice over exit.
All that leaving the Union will do is to make it less representative of
the membership and give that judge less control over his or her future.
Leaving the Union simply increases the risk that a small, cohesive and vocal
minority will end up calling all the shots in perpetuity. Since (as witness this
lawsuit) the Union has the power to transform our lives whether we are on
the inside or on the outside, if we stay in the Union, we can at least hope to
effectuate change and we can at least hope that our voices will be heard.
Conclusion
I can only hope that because as Yogi Berra is supposed to have said,
“Prediction is difficult, especially when it comes to the future.” that the
future proves me wrong. What I now know is that the Union does not
represent my view or the view of many other judges, and in order to find out
all the Union needed to do was to have the courtesy to ask. Even should
this litigation bear sweet rather than bitter fruit, there are substantial doubts
about the decision process that led to it, and a bad decision that has a good
result does not make the decision any better or cause one to trust the
decision-maker any more. A poor poker player can miscalculate the odds,
but still get a favorable but very unlikely draw.
Because posts have a tendency to get lost in the Member’s Forum, I
asked the Board to post these detailed comments, along with those of any
other ALJS, on the front page of the AALJ website, and the Board met me
again with silence.
Even though the Agency knows the arguments contained in this
document and in 2009, the Board voted down a motion to do union business
only through private emails, the current Board has a problem with using
office email to send “sensitive” union communications and has told me, in
the past that I should use private union emails. Since I do not have
everyone’s email and the Board has most of them, I asked the Board, as an
alternative to posting my statement, if they would forward this document to
the membership themselves by using the private email addresses in its
possession, one again to be met by silence.
The Board is apparently not interested in giving members who do not
agree with it equal footing when it comes to communicating with the
members on matters of critical importance. That is why I am sending this
document to the private member emails I have, and it will be for you to
determine whether it worth passing on.
Zach Weiss
Weiss.fam@verizon.net
Attachments:Dissent.pdf (326.02 KB)