|
Post by christina on Dec 30, 2013 7:32:51 GMT -5
pubdef, I am still wading my way through this article!!! Great read and thanks for helping me with my self-study CLE this year! The article is raising issues I had not thought about. Hoping everyone gets a good word from OPM this week
|
|
Deleted
Deleted Member
Posts: 0
|
Post by Deleted on Dec 30, 2013 12:02:01 GMT -5
I think what has me most confused about this is the way the Position Description was just sort of abruptly announced. Why would the Agency write this thing and then make it effective without consulting the ALJs or bargaining with the Union? It seems irrational. They had to know the Union would file a grievance. They had to know that a significant number of the ALJ's would object. Why pick this fight, in this way? Someone correct me if I am off base. Is there a viable argument that changing the position description would not be a change in condition of employment that would trigger a duty to negotiate? I did a quick search but could not find a case that specifically says one way or the other that a change in job description is a condition of employment that triggers a duty to negotiate. I'll keep looking. I did find this: www.flra.gov/webfm_send/323Changes in Conditions of Employment The Authority has held that, prior to implementing a change in conditions of employment of bargaining unit employees, an agency is required to provide the exclusive representative with notice and an opportunity to bargain over those aspects of the change that are within the duty to bargain. U.S. Army Corps of Eng’rs, Memphis Dist., Memphis, Tenn., 53 FLRA 79, 81 (1997). A management-initiated change may trigger a duty to bargain when there will be a resulting change in unit employees’ conditions of employment and the change has actual or reasonably foreseeable impact which is more than de minimis. U.S. Dep't of the Air Force, 355th MSG/CC, Davis-Monthan AFB, Ariz., 64 FLRA 85, 89 (2009).
|
|
|
Post by bartleby on Dec 30, 2013 12:51:49 GMT -5
What is amazing is that this was in the works for a year if you look at the dating of the signatures on it. AALJ has requested the Commissioner to revoke the PD and she has refused. The Agency demands that the Judges follow their Rules, Reg's, Policies, etc., but blatantly violate whatever Rules, Reg's, Policies, Laws, etc. This is the problem when you have a judicial corps managed by people that have no training in the law and think they can do whatever they want, right, wrong, or indifferent. We will either win this or become hearing officers. Without judicial independence one cannot remain a Judge. I know of one Judge that has taken unexpected retirement since this came out. Many are tired of the seemingly unending battle with the Agency. I think this action reflects the disdain the Agency has for both the Judges and Attorneys that work for SSA.
|
|
|
Post by mcb on Dec 30, 2013 17:19:53 GMT -5
I know of one Judge that has taken unexpected retirement since this came out. A week ago, an SSA ALJ I know accepted an ALJ position with a different federal agency. He wasn't too happy as an SSA ALJ, but he informed me that he'd been offered another ALJ position at a different agency 18 months ago (and turned it down), but the new PD was the final straw.
|
|
|
Post by christina on Dec 31, 2013 8:40:00 GMT -5
more later but robg, yes the abruptness hit me too as what the heck? and yes, Bartleby, the agency seems to have regained its disdain for judges and attorneys. Seemed to be improving for awhile but those days are gone.
|
|
|
Post by deltajudge on Dec 31, 2013 21:31:12 GMT -5
8-)Bartleby, this has been a long time comeing. As I have stated here here before, it had it roots with the "grid" back in 1978. "reconfiguration" om the early 80s with ALJs losing their units, ad infinitum. It's now coming home to roost.
|
|
|
Post by alj on Jan 1, 2014 12:52:39 GMT -5
I'm out of the office for a week and so won't be able to provide the full name of the individual from OGC who proclaims, "there is no such thing as a United States Administrative Law Judge." She speaks at all of the new ALJ trainings and I believe her first name is Angela. I will find her full name and post here. Truth is I don't care if I am referred to as US ALJ, ALJ, Judge or Hey you. I just find it interesting that someone is so concerned with putting us all in our place that she harps on this every chance she gets. Her last name is White.
|
|
|
Post by decadealj on Jan 1, 2014 14:53:11 GMT -5
And she wants you to cite SSA policy in your decisions, not the law. Any coincidence with new PD- Nah!
|
|
|
Post by deltajudge on Jan 1, 2014 21:35:27 GMT -5
8-)I guess everybody is catching on. It looks as if those that be are trying to reduce ALJs to hearing examiners, which they have been trying to do for years. If true, it is a sad thing. I, and I am sure bartleby, decade are glad we fought the good fight. I started way back, with the "grid," "reconfiguration." "HPI," and other management initiatives, all failures. Now, the gloves are off. I sincerely hope the AALJ really gets some backbone and fights this. Good Luck, and Happy New Year.
|
|
|
Post by chessparent on Jan 2, 2014 23:56:39 GMT -5
Agree. I give significant weight to this opinion.
|
|
|
Post by usnrcwo on Jan 3, 2014 7:38:22 GMT -5
|
|
|
Post by privateatty on Jan 3, 2014 12:12:02 GMT -5
I read the article. My first thought: "garbage in, garbage out." The italics of the two prior denials by DDS and then a reversal by an ALJ sorta says it all. Do you think that the very Policy that SSA is ramming down y'all's throats is as much to blame--yet its being touted as a cureall to rein in those dang liberal ALJs. No mention of your grids, the reversals by the AC or the changing landscape of the law. The way I see it is that this type of editorializing should be Exhibit "A" in a federal court action to declare the Position Description a violation of the APA. Further, if not (i.e., its precluded), then another thread noted that the Union has a potential action in the failure of the CALJ to negotiate with them regarding same. Either way, the issue of chipping away at the independence of the ALJ Corps is not going away and I would hope that we can all agree that it has nothing to do with SSDI fraud and everything to do with short term political gamesmanship and preening for a budget.
|
|
|
Post by deltajudge on Jan 3, 2014 13:37:48 GMT -5
8-)Guess this kinda removes all doubt.
|
|
|
Post by mr406bfee on Jan 3, 2014 13:57:35 GMT -5
The representatives in congress fail to consider the other reasons someone could get denied twice but then win in front of an ALJ. It is because unrepresented claimants get attorneys who get all the medical records the DDS never received or obtained. So lots of the time, the ALJ is the first evaluator to see a complete record with treating source opinions. I would say this is much more the case then the congressman's politial position which lacks actual insight as to what an ALJ job really entails. Just my experience and I am not saying there is not some fraud but the APA is not responsible.
|
|
|
Post by pubdef on Jan 3, 2014 13:58:07 GMT -5
8-)Guess this kinda removes all doubt. It certainly removes any reasonable doubt. What is scary is that it makes clear that the powers that be want it to get worse. On the second page of the editorial it states: "This doesn’t mean further reform is not needed. Lankford notes the latest changes are just 'a small step of many steps that have to be made.'" A change is 'a coming. Let's just hope that the change comes from people fighting against independence being taken away. I'm assuming aljs are either not allowed or discouraged from engaging in public discourse. This would be unfortunate because politicians and newspapers can make all the slights against judges they want without telling the full story. People need to understand the importance of independence, how there are already procedures to control ALJs who do not follow the law, and the facts that came out in the referenced hearing (someone posted it on here when the hearing took place). Those facts articulated by the OIG rep and judicial rep showed that the amount of fraud is extremely low. Non-issue low. But when politics gets involved things become issues if it might get extra votes. Unfortunately, that comes at the expense of the public getting fair hearings with agencies. I do feel bad for all the current ALJs having to deal with this and the public who is losing an impartial alj system. Even if you don't think the change will affect you it seems pretty absurd that it has to happen. If the change has no effect why would it be made? It's going to change something and I doubt for the better.
|
|
|
Post by bartleby on Jan 3, 2014 15:12:30 GMT -5
My pay rate is a little less than 50%. I request a lot of amended onset dates. Most illnesses or injuries are progressive. Injuries become degenerations. The Baby Boomers are aging. Some of my claimants are 55-60 years old. I am constrained to pay them due to the Reg's/GRIDS. If you are over 55 and have no past work, and limited to light or less work, you GRID (welfare). If you are illiterate, 45, unskilled and limited to sedentary work, you GRID. If you are illiterate, 50, unskilled and limited to light work, you GRID. I love the cases of Taxi drivers that have been in country 20 years and are illiterate. I had a claimant that was 50 and claimed illiteracy with all mental problems. Upon investigation, she and her husband owned and operated an adult daycare center and she reportedly earned over $60,000 per year. I have reported a few suspicious cases to CID for fraud investigation and so far been right in all of them. The Agency does not encourage us to refer fraud cases and we often have suspicious cases involving earned income credit which the Agency tells us we can't refer to the IRS. There is more fraud than discussed. The Reg's are a mess, we are totally non-adversarial, we are supposed to develop the record and in training we were told that a tie goes to the claimant. Taking away our judicial independence, the little amount we still have is not going to straighten out the problem, only intensify it. We should be a totally separate ALJ Corps telling ODAR what we need to properly hear properly prepared cases and not moving Widgets down a line and being compared to hourly employees at the lower level. We are here to protect the public from exactly what this Agency is attempting to do.
|
|
|
Post by pubdef on Jan 3, 2014 17:21:27 GMT -5
We should be a totally separate ALJ Corps telling ODAR what we need to properly hear properly prepared cases and not moving Widgets down a line and being compared to hourly employees at the lower level. We are here to protect the public from exactly what this Agency is attempting to do. I used to wonder if your complaints and warnings were much ado about nothing. I've come around to being on board with you. I was trying to do some quick research on the issue of independence from the agency and whether it's starting to get violated. I found an interesting case involving NASA-OIG from the US Supreme Court (Nasa v. Fed. Labor Rels. Auth., 527 U.S. 229, 1999) where they make it clear that supervision of OIG by NASA is nominal at most: "To be sure, NASA's OIG is a subcomponent of NASA and the Inspector General is subject to the "general supervision," § 3(a), of NASA's administrator (or of the "officer next in rank below" the Administrator, ibid.). 6 But, as the Fourth Circuit has observed, it is hard to see how this "general supervision" amounts to much more than "nominal" supervision. See NRC v. FLRA, 25 F.3d 229, 235 (1994)." This is because, much like the APA, the OIG has their own act called the Investigator General Act. The Court footnotes the strong protection an OIG investigator has if complaints are made by an agency: "The Court, ante, at 10, does not report the full story with respect to Inspector General supervision. We were told at oral argument that Executive Order 12993, 3 CFR 171 (1996), governs the procedures to be followed in those instances where the Inspector General and NASA's Administrator are in conflict. Tr. of Oral Arg. 51-52. Complaints against an Inspector General are referred to a body known as the "Integrity Committee," which is composed "of at least the following members": an official of the FBI, who serves as Chair of the Integrity Committee; the Special Counsel of the Office of Special Counsel; the Director of the Office of Government Ethics; and three or more Inspectors General, representing both the President's Council on Integrity and Efficiency and the Executive Council on Integrity and Efficiency. The Chief of the Public Integrity Section of the Criminal Division of the Department of Justice, or his designee, serves as an advisor to the Integrity Committee with respect to its responsibilities and functions under the Executive Order." I know the APA isn't the Investigator General Act but judges should get as much protection as an investigator is able to get because like an investigator there are going to be plenty of times when doing their job is not what makes the agency happy. When an agency, like SSA, starts to try to "reign in" ALJs there should be more to protect the ALJ, who is supposed to be acting independent of the agency, than what is currently in place. I know it's difficult to be fired if you are an ALJ but pretty soon if you aren't doing what makes the agency happy it might be less difficult to be fired because you aren't performing to their new position description.
|
|
|
Post by privateatty on Jan 3, 2014 17:47:57 GMT -5
The Hatch Act precludes me from speaking my mind--including letters to the Editor. Which goes a long way to explain why I love this forum. That is why we have AALJ, FALJC and the ABA Judicial Division. If you are going to work this hard to get the job, please, when you get it, work equally hard to defend the ALJ Corps.
|
|
|
Post by bettrlatethannevr on Jan 3, 2014 18:15:19 GMT -5
This position description presents the clearest argument I've seen yet for the need for a centralized office of ALJs - in OPM or wherever.
|
|
|
Post by deltajudge on Jan 3, 2014 21:24:30 GMT -5
8-)The main problem with ODAR is the sheer volume of the workload. It's mass justice. The solution has always been there, but never addressed by any level of management at SSA or DDS. Simply improve the quality and efficiency of the initial disability determinations at the DDS level. That would greatly decrease the appeals to ODAR.
|
|