ALJ Eligibility

[min18]

Does anyone know if years as a federal law clerk counts to the necessary 7 yr experience requirement?  The most recent job posting did not explicitly exclude that experience

[71stretch]

I had thought I read somewhere, other than here in this forum that such service (at not just the federal level) would not count.

[Deleted]

That is what was stated. Use the search function on the main page and you should be able to retrieve the prior posts.

[ssaer]

Previously, the announcement expressly excluded experience as "law clerks and law professors;" the recent announcement has removed the express exclusion on law clerks, while still excluding experience as a law professor. I do not think the change was unintentional.

[71stretch]

Given the mess they've made of the initial application, I wonder how many seven year law clerks (around here, no one works as a law clerk for seven years) they let pass to part 2, over those with many many years of litigation experience that were turned down. As far as I'm concerned, if all someone has is seven years as a law clerk to a judge, that should not be qualifying.

[prescient]

The law clerk exclusion was removed. I know someone who more than 1/2 of their law experience has been as a law clerk, and was deemed qualified to take part 2 of the exam.

[sbr]

Just as there are many different types of federal judges, there are different types of law clerks. The most traditional type of law clerk, who is hired directly out of law school, and works for a judge for 1-2 years, and then moves on is different than a permament law clerk, who may stay with a judge for 7+ years. Many of these permanent law clerks attend hearings and therefore become very familiar with the inside of a courtroom, and draft decisions which the judge will often adopt with little modification. In my view, this can be some of the best experience before becoming a judge because you can really experience what its like to be a judge behind the scenes, and should be considered qualifying experience. Many permanent law clerks also have years of prior litigation experience, simply got tired of law firm hours, and wanted better quality of life.

[keepsake]

I don't see how permanent clerk experience as SBR describes is non-qualifying. What, if anything, separates folks with this law clerk experience from decision writer attorney-advisors at SSA - all of whose experience presumably counts as "qualifying"? Plus there are some permanent "law clerk" attorney-advisors at federal agencies with ALJs who have worked closely with the judge for possibly years, attend all the hearings, interface with the parties on procedural issues, draft opinions and orders (including rulings on proposed findings of fact and conclusions of law under the APA). That experience might, in OPM's opinion, not count perhaps. But that level of experience seems better suited as preparation for an ALJ gig than working at an Amlaw 200 or 300 or whatever firm as a junior - or even mid-level - "litigation" associate, who for years has done a lot of doc review, drafting motions/pleadings, etc under partner supervision and rarely if ever set foot in a courtroom for a substantive trial or hearing (other than prehearing, non-critical appearances or maybe for some pro bono "training"). The stand up, in court experience of many such associates at biglaw firms can be limited due to the "bet the company" types of cases those firms handle. Many of the people I knew were lucky, as a junior associate to get the chance to be part of a large trial team with duties limited to things like litigation support for the first and second chairs. This is not true for all biglaw firms and and personal experiences differ, but many firms have this model, and it is a recognized problem in the business regarding associate training. Nevertheless, one can readily paint any and all this litigation experience as qualifying under the ALJ announcement - whether it actually serves as a good basis for becoming an ALJ for SSA or any other agency. As for the announcement itself, the non-qualifying experience explicity included "Clerk of Court" - which is very different from the "clerking" experience in an Article III court or for a sitting ALJ who conducts adversarial proceedings. Not trying to get into OPM's framing the announcement the way it did and subsequent evaluation of applications, but clearly there were some problems on who got to pass on to the second stage for a variety of reasons. Nevertheless, these things are not black and white and the rather large wiggle room about what counts as "qualifying" vs. "non-qualifying" experience resides in the eye of the evaluator.

[71stretch]

There are law clerks, and there are law clerks. If those permanent clerks as described above described their experience carefully, I can see that it would pass, and a good chunk of it would be good experience in terms of serving as an ALJ. To find those people qualified and then find people with many years of additional, and broader, experience which is also supposed to be "qualifying" still makes no sense.

[hopefalj]

Jun 12, 2013 20:08:29 GMT -5 71stretch said:

There are law clerks, and there are law clerks. If those permanent clerks as described above described their experience carefully, I can see that it would pass, and a good chunk of it would be good experience in terms of serving as an ALJ. To find those people qualified and then find people with many years of additional, and broader, experience which is also supposed to be "qualifying" still makes no sense.

Without seeing the applications of those people with many years of additional experience, I'm not sure how you can say it makes no sense that a career clerk could pass while the more experienced folks couldn't. It's easy to post that someone has 20+ years of first-chair trial experience and have the rest of us lawyers shrug our shoulders on why they didn't get through, but there is no telling whether that person followed the instructions or whether all the necessary information was included in the application. There are undoubtedly horrible judgment calls and errors made by OPM that have improperly dinged those that sufficiently completed the application, and if those reviewers had been assigned mine, I'm sure I would have gotten a NOR. But after seeing stories of people that said "see resume" in the text boxes, simply said "I have been a litigator for 20 years" in those boxes, or did not include bar information as required, I can't say that OPM was unreasonable in denying some more qualified people without knowing how they completed their applications.

[71stretch]

Oh, I know there may be some who didn't qualify for some other reason, but there have been too many just on this board, never mind the thousands of applicants who don't come here, who appear to have done everything correctly and have been excluded. I don't mean to take this off topic, but OPM has a mess on their hands of their own making in how the first stage was handled.

[prescient]

Jun 13, 2013 0:29:29 GMT -5 71stretch said:

Oh, I know there may be some who didn't qualify for some other reason, but there have been too many just on this board, never mind the thousands of applicants who don't come here, who appear to have done everything correctly and have been excluded. I don't mean to take this off topic, but OPM has a mess on their hands of their own making in how the first stage was handled.

I agree.

I understand that OPM has to figure out some way to weed through 5000+ applications, but using the 7 year experience bar, at least in the way they seemed to have done, was a terrible idea as an initial cut down mechanism.

Been licensed for 10 years, but spent 7 of those years as a house painter?? sure cut those people. otherwise, they should have passed everyone along to part 2, and then started the culling. IMO

[hod]

The 7 years requirement has been a long term element even before the change in application processing. What has changed regularly is what constitutes 7 years of experience. Back in the 90's it was very difficult to get on if your only experience was as an SSA attorney. Then they seems to make that experience more "point worth" and now it looks as if they are trying to cut back a little. I don't know-but I do know that the 7 year deal has been around forever.

[chinook]

"What, if anything, separates folks with this law clerk experience from decision writer attorney-advisors at SSA - all of whose experience presumably counts as "qualifying"?"

I agree that nothing separates them but you must keep in mind that OPM only allowed SSA decision writing experience to count after significant pressure from SSA arguing they needed people with knowledge to work down the backlog. This year the Chief Judges of other agencies pushed to get that changed back so that SSA decision writing time does not count. While the Chief Judges were not successful, I have been told that OPM has made other non-litigation experience non-qualifying. However, it is not clear exactly how that has been implimented.

[keepsake]

Given the sheer numbers, it is not surprising that SSA pretty much has driven the boat on this as Chinook indicates. Other agencies might not like it but the idea of separate registers with different eligibility requirements never got any real traction from what I understand. I wish all those who made an appeal good luck but am not hopeful that "qualifying" vs. "non-qualifying" determinations will be radically altered on the back end. And here I am not talking about people who flubbed the instructions somehow by not putting their bar number in or specific date of admission or simply said "see resume" - but rather those who got dinged for not having what OPM (as filtered through SSA's needs/desires) considered the right experience despite what appeared to be very broad categories of qualifying litigation and administrative law experience in the announcement.

[keepsake]

Double post - computer issue. Sorry.

[westernalj1]

As Chinook and Keepsake say, SSA lobbied hard to expand the definition of qualifying litigation experience to include an SSA attorney-advisor's experience, and now other agencies find they have fewer ALJs who are well-suited to transition to their agencies. It would make absolutely no sense for OPM to accept attorney-advisor experience, but to disallow the experience of a permanent federal law clerk. Indeed, many career law clerks have outstanding experience outside of their clerk position, and I have known career law clerks who were selected as US Magistrate Judges -- and district court judges demand a much higher level of competence than does SSA. Hopefully, OPM has better judgment than does SSA and allows such experience, because the quality and caliber of permanent federal law clerks could only improve ODAR by diluting the "fast food" adjudication mentality of some of SSAs newer ALJs, provide a higher level of service to the public, and help restore a sense of professionalism to ODAR, not to mention provide a better crop of ALJ applicants to other federal agencies.

[hopefalj]

Jun 13, 2013 21:13:31 GMT -5 westernalj1 said:

As Chinook and Keepsake say, SSA lobbied hard to expand the definition of qualifying litigation experience to include an SSA attorney-advisor's experience, and now other agencies find they have fewer ALJs who are well-suited to transition to their agencies.

While technically true (although debatable given that most AAs have experience prior to their AA experience), this is an overblown complaint. What percentage of current ODAR ALJs are former insiders? 15%? Is it even that high? Seems like other agencies would be able to find plenty of qualified folks from the other 1000+ ODAR ALJs out there, and given that far less than half of all new hires are insiders, I think the potential candidate pool will remain rather deep for the other agencies. Besides, until you report that you have taken another job with another agency, we'll always know that there is at least one more well qualified former super-litigator.

Anecdotally, I can tell you that I haven't had any difficulty writing legally sufficient decisions for ALJs that were formerly SAAs or AAs. Generally speaking, their decisions always make sense and are supported by the record. I have yet to see them make some of the stupid mistakes by ALJs with extensive experience in litigation, prosecution, etc., although I readily acknowledge that all ALJs will miss something or make an occasional mistake because all ALJs are human.

[Deleted]

Jun 14, 2013 8:06:46 GMT -5 hopefalj said:

Jun 13, 2013 21:13:31 GMT -5 westernalj1 said:

As Chinook and Keepsake say, SSA lobbied hard to expand the definition of qualifying litigation experience to include an SSA attorney-advisor's experience, and now other agencies find they have fewer ALJs who are well-suited to transition to their agencies.

While technically true (although debatable given that most AAs have experience prior to their AA experience), this is an overblown complaint. What percentage of current ODAR ALJs are former insiders? 15%? Is it even that high? Seems like other agencies would be able to find plenty of qualified folks from the other 1000+ ODAR ALJs out there, and given that far less than half of all new hires are insiders, I think the potential candidate pool will remain rather deep for the other agencies. Besides, until you report that you have taken another job with another agency, we'll always know that there is at least one more well qualified former super-litigator.

Anecdotally, I can tell you that I haven't had any difficulty writing legally sufficient decisions for ALJs that were formerly SAAs or AAs. Generally speaking, their decisions always make sense and are supported by the record. I have yet to see them make some of the stupid mistakes by ALJs with extensive experience in litigation, prosecution, etc., although I readily acknowledge that all ALJs will miss something or make an occasional mistake because all ALJs are human.

I most emphatically concur with you.

[valkyrie]

Jun 13, 2013 21:13:31 GMT -5 westernalj1 said:

As Chinook and Keepsake say, SSA lobbied hard to expand the definition of qualifying litigation experience to include an SSA attorney-advisor's experience, and now other agencies find they have fewer ALJs who are well-suited to transition to their agencies. It would make absolutely no sense for OPM to accept attorney-advisor experience, but to disallow the experience of a permanent federal law clerk. Indeed, many career law clerks have outstanding experience outside of their clerk position, and I have known career law clerks who were selected as US Magistrate Judges -- and district court judges demand a much higher level of competence than does SSA. Hopefully, OPM has better judgment than does SSA and allows such experience, because the quality and caliber of permanent federal law clerks could only improve ODAR by diluting the "fast food" adjudication mentality of some of SSAs newer ALJs, provide a higher level of service to the public, and help restore a sense of professionalism to ODAR, not to mention provide a better crop of ALJ applicants to other federal agencies.

Here's a crazy question, why the hell would a permanent federal law clerk want to waste his or her time on an SSA ALJ position? Its a nice-paying federal job, but the pay compares poorly to private sector earnings, its a very unexciting, essentially dead area of law, which includes litigation only within a very generous reading of the definition. Based on experience within the agency, I am always very suspicious of any ALJs that come in with an extensive legal resume, particularly in litigation. Too many have just used the position to retire in place. Many of the others simply have people skills that are tolerated in a private legal firm, but are toxic in a fully unionized federal agency where political correctness is pretty rigidly enforced. Others simply can't come to terms with their inner litigator and end up being called out by name in a District Court opinion because of the way they grilled an unrepresented claimant with a 72 IQ. There are certainly a number of lawyers who come from private practice and make a nice transition to the job and my hat is off to them. I also note that there are many former private sector lawyers that try the job for a few years and then leave after deciding that its just not for them, some of whom have posted on this board. Kudos to them for making a difficult, but wise decision. What I can't stand is the private sector attorneys that come in, hit the wall, and blame everyone else but themselves for their vocational error. A conscientious attorney would diligently research such a major career change rather than making a mess of things for future claimants and coworkers. I would say one would even have an ethical duty to do so. If you bothered to talk to someone who worked here you would find out that production has been emphasized by management for well over ten years now, you have little enforceable control over “your” clerks, management abuses do justify an ALJ Union, and you will not get treated like a “real” judge no matter how much you spend on your robe. I’ll just ask you the same question I ask the claimants sometimes, “Did you talk to Voc Rehab before deciding on this course of action?”