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Post by Dark Lord of the Sith on Feb 28, 2014 9:14:21 GMT -5
Not taking a side, but I just don't see how imposing a 500-700 case quota interferes with judicial independence.....make a decision, write the case, sign it....it's not rocket science....no one has said how the cases have to be decided. (Let the shit storm begin).
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Post by redryder on Feb 28, 2014 9:40:23 GMT -5
I read the union missives, the petition and now the dismissal. All of it makes me wonder about this legal team the union hired and the advice given. This is not the first time the union has spent members' dues filing a lawsuit that even a first year law student could tell was problematic. Remember the suit challenging the OPM testing process filed in 2007 or thereabouts? Wasn't it obvious that sitting judges have no standing to challenge the testing process?
Yes, there are frustrations in this job as in any other. There are deadlines and pressures. But there are also under-performing judges and outliers for affirmations and reversals. Where is the creative, proactive union that is putting forth positive suggestions for addressing these problems?
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Post by privateatty on Feb 28, 2014 12:43:22 GMT -5
I had posted the Mahoney decision--facts alleged that showed real infringement on judicial independence. A Petition for Cert has been filed, BTW-- we can all cross our fingers. After Mahoney came out this case that was on life support from the moment it got filed got the O2 pulled. I agree with redryer and sealaw. I think its always helpful to follow CBAs, statutes and case law. Is the Union in regards to the PD now going to waive its administrative remedy and allow ODAR to interpose that rock solid defense against it? I know what I would do.
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Post by redryder on Mar 5, 2014 21:00:34 GMT -5
Seems the union just cannot catch a break. Latest setback came from MSPB yesterday. Appeal denied in the Shapiro case; affirmed ALJ decision that SSA/ODAR had basis to terminate Shapiro for productivity issues. He was issuing 150 or fewer dispositions per year. MSPB decision is under nonprecedential decisions at www.mspb.gov.
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Post by workdrone on Mar 5, 2014 23:31:51 GMT -5
Seems the union just cannot catch a break. Latest setback came from MSPB yesterday. Appeal denied in the Shapiro case; affirmed ALJ decision that SSA/ODAR had basis to terminate Shapiro for productivity issues. He was issuing 150 or fewer dispositions per year. MSPB decision is under nonprecedential decisions at www.mspb.gov. I wouldn't chuck this one on the union. If I remember it correctly Shapiro had a professional liability insurance policy that paid for his attorney. The union was indirectly involved at most. As far as the underlying merit goes, Shapiro was only doing approximately 150 a year, got counseled, and then did even less in subsequent years. When questioned about why he does so little when other judges in his Region averages 500+, Shapiro claimed that he does his cases differently yet was unable to explain why his adjudication method was so labor intensive or time consuming. This was such an extreme case of non-performance I'm glad that the agency won it. If MSPB let Shapiro keeps his job, this would have become Exhibit #1 in the Agency's never ending quest to turn ALJs back into hearing officers. ALJs are statutory creatures. We exist at the pleasure of Congress, and if Congress ever becomes convinced that the current ALJ system is truly broken, the APA can be modified. Lastly, for those that may be concerned about a slippery slope, I wouldn't be too worried until we have a MSPB case where the agency successfully removes someone doing 400 dispos a year.
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Post by philliesfan on Mar 6, 2014 8:17:12 GMT -5
The suit against the testing process was filed in 1997 and not by the AALJ. It was filed by the Supervisory Attorney Adviser's Association. I was one of those who put up money ($100.00, if I remember correctly) to pursue it.
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Post by philliesfan on Mar 6, 2014 8:17:25 GMT -5
The suit against the testing process was filed in 1997 and not by the AALJ. It was filed by the Supervisory Attorney Adviser's Association. I was one of those who put up money ($100.00, if I remember correctly) to pursue it.
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Post by hopefalj on Mar 6, 2014 8:25:46 GMT -5
The suit against the testing process was filed in 1997 and not by the AALJ. It was filed by the Supervisory Attorney Adviser's Association. I was one of those who put up money ($100.00, if I remember correctly) to pursue it. And thank you for that.
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Post by redryder on Mar 6, 2014 9:05:32 GMT -5
Two quick points: In the Shapiro matter, the AALJ did not represent him in the hearing before the ALJ. However, if you read the MSPB report, AALJ was involved in the appeal. As for the AALJ suit, there was one filed after the 2007 testing for new judges. In part, AALJ challenged the suitability of anyone in the 2008 hire who had ODAR experience to be an ALJ and wanted their appointments rescinded.
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Post by sealaw90 on Mar 6, 2014 9:53:00 GMT -5
Seems the union just cannot catch a break. Latest setback came from MSPB yesterday. Appeal denied in the Shapiro case; affirmed ALJ decision that SSA/ODAR had basis to terminate Shapiro for productivity issues. He was issuing 150 or fewer dispositions per year. MSPB decision is under nonprecedential decisions at www.mspb.gov. I wouldn't chuck this one on the union. If I remember it correctly Shapiro had a professional liability insurance policy that paid for his attorney. The union was indirectly involved at most. As far as the underlying merit goes, Shapiro was only doing approximately 150 a year, got counseled, and then did even less in subsequent years. When questioned about why he does so little when other judges in his Region averages 500+, Shapiro claimed that he does his cases differently yet was unable to explain why his adjudication method was so labor intensive or time consuming. This was such an extreme case of non-performance I'm glad that the agency won it. If MSPB let Shapiro keeps his job, this would have become Exhibit #1 in the Agency's never ending quest to turn ALJs back into hearing officers. ALJs are statutory creatures. We exist at the pleasure of Congress, and if Congress ever becomes convinced that the current ALJ system is truly broken, the APA can be modified. Lastly, for those that may be concerned about a slippery slope, I wouldn't be too worried until we have a MSPB case where the agency successfully removes someone doing 400 dispos a year. I agree workdrone, and I remember reading the MSPB decision on this case a few months back. If your only reason for deciding an inordinately low number of cases is "I march to a different drummer" then you may not have the beat to be an ALJ. There is a range of performance that seems to be the norm (500 - 700), and if you are more than 2 standard deviations on either side of the norm, you should be questioned about why. Too many cases or not enough cases decided makes all ALJs look bad. We need to fear congressional action.
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Post by mcb on Mar 6, 2014 17:35:12 GMT -5
If your only reason for deciding an inordinately low number of cases is "I march to a different drummer" then you may not have the beat to be an ALJ. There is a range of performance that seems to be the norm (500 - 700), and if you are more than 2 standard deviations on either side of the norm, you should be questioned about why. Too many cases or not enough cases decided makes all ALJs look bad. We need to fear congressional action. I'd like to see what the norm was for the 4 or 5 years prior to CALJ Cristaudo's memo in which he decided - (based on what measuring stick, I wonder? ) - that 500, and later 500-700, was a reasonable amount of decisions. ALJs, in general, are honorable and do their best. So what was the average amount of decisions per ALJ from say FY 2006-2009?
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Post by decadealj on Mar 6, 2014 18:24:55 GMT -5
When Judge Christado was Region 3 RCJ, he announced to an ALJ conference, I think in 1998, that 40 per month was the optimal # of dispos per month.
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Post by jerseymom on Mar 6, 2014 19:30:24 GMT -5
Judge Cristado has stated many times that the majority of judges were closing approximately 480 cases a year. He rounded up to 500 and didn't think an ALJ could handle more than 700. So that's where the numbers come from-for the math-challenged 40 x12=480 so these expectations go back to 1998. The majority of ALJ's close 500 or more dispositions per year. It can be done AND that does not mean "paying down" the backlog. For several years now, the pay rate has declined.
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Post by notyet on Mar 6, 2014 19:35:25 GMT -5
When Judge Christado was Region 3 RCJ, he announced to an ALJ conference, I think in 1998, that 40 per month was the optimal # of dispos per month. Here's the catch, and, again, a little known secret. It seems clear that the size of the documentary record is by far the biggest factor in determining the time it takes to adjudicate the case from the ALJ and writer perspective. ODAR's own records show a large disparity in regards to the size of the average case in its 162 plus offices. The last I heard is that those offices with low productivity numbers have the largest average case file size. ODAR employees in offices where the mean files, if printed out, would be the size of the largest yellow pages book, are being held to produce at the same level as ODAR employees in offices where the mean files, if printed out, would be the size of a magazine. Forty dispositions a month in an ODAR office like the first described ODAR office (see post below) is reasonable. In comparison, and out of fairness/equity, ODAR, IMHO, should adjust its benchmarks for offices like the second described ODAR offices to a number higher than 40. Holding employees in offices like the first ODAR office to the same benchmarks used for offices like the second described ODAR office, IMHO, is poor management at the top. P.S. I am not saying I agree that 500 to 700 dispositions is a proper benchmark for ODAR employees in offices like the first described ODAR office. You cannot read/study a yellow page book size file in "2.5 hours" unless you hurriedly scan through it. I know there are ALJs in offices like the first described ODAR office who are meeting the "one size fits all" 500 disposition benchmark. Many others do not. I have never given it study but I expect there are large disparities in ALJ disposition rates in offices like the second below-described ODAR offices where the mean file size is the size of a magazine just like there are large disparities in ALJ disposition rates in offices like the first below-described ODAR offices where the mean file size is the size of the largest yellow pages book. The main reason for the disparities between employees in offices like the first described ODAR office is the same main reason for the disparities between employees in offices like the second described ODAR office. That is some choose to cut corners more than others. Another reason, not everyone can be a Michael Jordan.
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Post by notyet on Mar 6, 2014 19:42:07 GMT -5
Judge Cristado has stated many times that the majority of judges were closing approximately 480 cases a year. He rounded up to 500 and didn't think an ALJ could handle more than 700. So that's where the numbers come from-for the math-challenged 40 x12=480 so these expectations go back to 1998. The majority of ALJ's close 500 or more dispositions per year. It can be done AND that does not mean "paying down" the backlog. For several years now, the pay rate has declined. Again, here's the catch, and a little known secret that you are not acknowledging. ODAR employees in offices where the mean files, if printed out, would be the size of the largest yellow pages book, are being held to produce at the same level as ODAR employees in offices where the mean files, if printed out, would be the size of a magazine. Forty (why not fifty) dispositions a month in an ODAR office like the first described ODAR office is reasonable. In comparison, and out of fairness/equity, ODAR, IMHO, should adjust its benchmarks for offices like the second described ODAR offices to a number higher than the number used for ODAR employees in offices like the first described ODAR office. Holding employees in offices like the first ODAR office to the same benchmarks used for offices like the second described ODAR office, IMHO, is poor management at the top.
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Post by redryder on Mar 6, 2014 19:58:44 GMT -5
Not yet: I am not buying that theory at all. Where is there any proof of this big file/little file disparity? And if that is true, how do you explain the variations in performance in the same office? I just looked at the published production stats for the judges named in the AALJ lawsuit. Two are in the same office. In 2010, both did 500+ decisions. For the next two years, one stayed above 500 while the other dropped by 25 or so each year. Are you telling me the one who dropped from 506 in 2010 to 453 in 2012 was getting bigger files than the one who started at 513 and ended at 508? And how do you account for a rise in productivity? Between one year and the next, another of the plaintiffs went from 335 to 415 dispositions. 80 small cases?
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Post by notyet on Mar 6, 2014 20:05:12 GMT -5
Not yet: I am not buying that theory at all. Where is there any proof of this big file/little file disparity? And if that is true, how do you explain the variations in performance in the same office? I just looked at the published production stats for the judges named in the AALJ lawsuit. Two are in the same office. In 2010, both did 500+ decisions. For the next two years, one stayed above 500 while the other dropped by 25 or so each year. Are you telling me the one who dropped from 506 in 2010 to 453 in 2012 was getting bigger files than the one who started at 513 and ended at 508? And how do you account for a rise in productivity? Between one year and the next, another of the plaintiffs went from 335 to 415 dispositions. 80 small cases? See my earlier post. Also see the posts in the thread "ALJ Reality/Quotas, etc." The main reason for the disparity, some choose to cut corners more than others. Also, not everyone can be a Michael Jordan.
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Post by deltajudge on Mar 6, 2014 20:19:31 GMT -5
8-)One thing that has not been factored in here is staff. For most of the yeas I worked as an ALJ with OHA, we constantly complained to ALJICs, regional and and all who did not listen, we needed more staff. Management's solution? Hire more ALJs, no staff. I'm sure that is still a problem.
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Post by notyet on Mar 6, 2014 20:22:01 GMT -5
Not yet: I am not buying that theory at all. Where is there any proof of this big file/little file disparity? Ask your HOCALJ for it. ODAR has the mean page file size for all offices.
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Post by jerseymom on Mar 6, 2014 20:43:59 GMT -5
Not yet-NOT TRUE! Many of the ALJ's closing 500 or more cases a year come from large file offices. Also, some large files are large because the files contain duplicate exhibits. The page count suggests a large file but upon review it isn't. Don't assume that judges who do their jobs are cutting corners. You are right about not everyone being Michael Jordan, but if you are in the NBA, you should know how to play basketball.
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