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Post by Propmaster on Feb 12, 2016 14:46:13 GMT -5
While many of your ideas have merit in terms of the solvency of the program (not the SSI- or child-related ones, which money dos not come from the trust funds), most of your initiatives would have zero effect on the claimants' desires to appeal unfavorable determinations. You identify meritless cases with little development as a problem because they drag on and on. Cutting off the record would make a MINOR difference in APT, while devoting ODAR resources to ensuring development earlier of unrepresented cases (such as the titillating SAA pre-hearing rumors) would make a greater impact in a small universe of cases.
However, changing the child or grid regulations would have zero effect that I can understand on the number of cases appealed, fixing the DOT issue would make VE testimony more realistic, but have zero effect on the number of hearings.
If the program is being used and abused as a form of general welfare, arguendo, it is both with Congress' knowledge and apparent assent. If Congress had simply called it a welfare program, it would not change the legal standards.
I agree with maintaining quality of the staff.
I do not agree that the program itself mandates a backlog (except for the designed backlog needed to ensure work for everyone and result in a 270-day APT). ODAR was making progress until Huntington. Huntington shined a harsh light on what could, again, be called abuse of the system, arguendo, but the responses were devastating to the backlog without much of a nexus to the Huntington problem. What caused the resulting increase would, I think, more accurately be called upper management's seizure of the Huntington issue as an excuse to do lots of things they always wanted to do, but had no reason or support.
Now that anything can be done for quality purposes, bad idea after bad idea gums up the system - I guess we agree here as well, generally.
So, basically, did you get off track in your rant, which I can appreciate and have no problem with, or am I missing some way in which having stricter or different standards for child cases would reduce the number of appeals?
Unless you mean to eliminate it (which is an arguably valid position), which would obviously save administrative time all around.
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Post by jonsprag1 on Feb 12, 2016 20:31:41 GMT -5
It occurred to me that the chances of a class action lawsuit challenging the aaj plan to decide non dib cases probably won't happen. Almost all of the over payment cases involve pro se litigants only with no pot of gold at the end of the rainbow. As long as the agency only lets the aajs decide overpayment and other non dib cases the chances of a class action law suit are nil as the is no incentive
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Post by montyburns on Feb 12, 2016 21:22:12 GMT -5
It occurred to me that the chances of a class action lawsuit challenging the aaj plan to decide non dib cases probably won't happen. Almost all of the over payment cases involve pro se litigants only with no pot of gold at the end of the rainbow. As long as the agency only lets the aajs decide overpayment and other non dib cases the chances of a class action law suit are nil as the is no incentive That's ltrue, but according the most recent info, only 20% of the cases will be non-div/ops. The rest will be remands. I'm also not sure class certification would be necessary . Even one plaintiff showing a blatant violation of the APA could file for an injunction, and that would effectively gum up the works. However this train of thought is likely why ssa thinks it could get away with it. They know the rank and file of the ALJ core won't care, despite the unions objections
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Post by ba on Feb 12, 2016 21:56:37 GMT -5
It occurred to me that the chances of a class action lawsuit challenging the aaj plan to decide non dib cases probably won't happen. Almost all of the over payment cases involve pro se litigants only with no pot of gold at the end of the rainbow. As long as the agency only lets the aajs decide overpayment and other non dib cases the chances of a class action law suit are nil as the is no incentive Ah...but you forget that in a class action, the real party in interest is the class action attorney.
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Post by privateatty on Feb 13, 2016 9:22:08 GMT -5
While I'm not ODAR and cannot opine or comment on your machinations--I can tell you this. At all Agencies you have AJs or a Commission who stand in the role of being the final Agency review prior to the case going to an Art. III Court.
While they ALL deny it (except maybe the partisan Commission Members) they are the Agency Policy Wonks. Or "the right thing" wonks. We are the ALJs and it is our duty to give the appellant due process with logic and compassion. It is really that simple. And any dilution of that bulwark ensures a deficit of that very application of due process.
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Post by montyburns on Feb 13, 2016 10:23:58 GMT -5
Regarding funky and mag's suggestions at to dedicated writers: this the way it is done (or was) at the NHC. 2 attorneys per ALJ. We would review the cases 3 weeks before hearing, summarize the evidence, and propose a range of supportable RFCs. ALJ could obviously with them what he wanted. The case came back to the reviewing attorney, and it's easy to bang out. Efficiency and quality, no problem. I worked at another NHC that was similarly structured but without the prehearing review. Worked well, but less so. Still you learned what the judge wanted, he learned that you'll always botch from and form at least once per decision, and this synergy made exceeding 700 cases doable. More remands though. At a HO you at least work with the same group of judges, but there is another decline in efficiency and quality. NCAC, haven't done it, but pretty much the worst as their is almost no relationship between judges and writers. Attorneys there might see the same judge once or twice in a year or so. My experience anyway, would love to hear a NHC judges view.
From the day I stepped into odar, it has been evident that instructions are the weakest link, and a huge source of problems with efficiency and quality. In my view this is a natural byproduct of treating writers as stenographers instead of legal professionals. This is not how law clerks and judges interact in article III courts.
As to reps being our partners, there is an inherent tension between the non-adversarial nature of ODAR hearings and the contingency fee. It is ridiculous to expect a rep to help you deny a claim. My proposal for this would be to make becoming a rep much harder and salary or flat fee them. This seems to invoke some due process concerns until you realize public defenders work this way, without any due process problems.
As for serving the public. There is no distinction between the due process to be afforded to someone based on their tax paying history. While work history is a valid credibility issue, being title II or XVI is not. I know of nothing in the Act, the regs, or the APA that contains the phrase "guardian of the trust fund" although I hear that an awful lot, usually from the same judges whose instructions contain value judgements such as "this A hole just wants to take the taxpayers money," often referring not only to felons, addicts, or the poor, but also in regard to widows, industrial workers and veterans.
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Post by carrickfergus on Feb 14, 2016 10:46:24 GMT -5
Here's what worries me: suppose an appeal of an AAJ decision goes up the ladder, and the circuit court upholds the challenge of a non-APA judge holding SSA hearings. The nut will be cracked.
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Post by hopefalj on Feb 14, 2016 12:01:30 GMT -5
I thought Judge Zahm raised an interesting issue on the call. Why is it we had to reduce ALJ planned hiring from 300 to 250 due to budget, but apparently have the funds to hire 65 new AAJs? And, with a 1.1 million backlog, is hiring 65 AAJs and support staff to presumably handle 50k (or 4.5% of the back log) prudent? And, they plan to assign two attorneys to these AAJs to help them with the workload? Wow How about, you give me a paralegal to do a file review pre hearing, write my dismissals and fully favorables and an AA that can review my docket for OTRs and write my unfavorables. You don't have to make me their supervisor....just make them dedicated to my docket. Assign two such employees to each judge. Any other DWs in the office could then be available for writing overflow or for writing for other offices (sort of like a miniwriting unit). Do that, eliminate all the time I have to spend going thru all the records, give me a writer I can count on so my editing time is reduced....and I will give you at least 33% more cases disposed of. I'd be able to add a whole new hearing day per week. I do 6 a hearing day. Means 4 new hearing days a month. 24 new dispositions a month. 12 months is an additional 288 dispos a year. If all 1500 or so of us could add that many on average, that's an additional 432,000 cases in a year. Backlog attack full on. You missed an important qualifier for your requested paralegal or AA. You need to insert "good" or "quality" before either. I think the majority of either group is fine to excellent, but what if your dedicated paralegal and/or AA isn't? What do you do if your paralegal spends most of his/her time FB'ing or talking on their phone? What if you have an AA that can't analyze anything in a decision or believes that saying a treating source statement isn't supported by the record is enough to support disregarding it? If you're not their supervisor or hiring those folks, you could get stuck with someone (or some people) that makes your job harder. I already cringe when I get decisions back from certain writers. The thought of bad support governing my daily existence makes me a little nauseated. If we're talking about switching over to the NHC model, that's a different story, but then you do become a supervisor.
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Post by Pixie on Feb 14, 2016 12:10:13 GMT -5
Here's what worries me: suppose an appeal of an AAJ decision goes up the ladder, and the circuit court upholds the challenge of a non-APA judge holding SSA hearings. The nut will be cracked. Yes, but TPTB have carefully considered this issue, along with OGC. The reliance is on the CFR that provides for removal of a case by the AC. While there are several sections touching this subject, I believe the language being relied on is similar to what I have pasted below. I'm not saying this will withstand scrutiny, but just that is has been considered. Pixie. Removal of hearing to Appeals Council. The Appeals Council on its own motion may remove to itself any request for hearing pending before an Administrative Law Judge. The hearing on any matter so removed to the Appeals Council shall be conducted in accordance with the requirements of §§ 410.637 to 410.653, inclusive. Notice of such removal shall be mailed to the parties at their last known addresses.
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Post by montyburns on Feb 14, 2016 13:15:00 GMT -5
I thought Judge Zahm raised an interesting issue on the call. Why is it we had to reduce ALJ planned hiring from 300 to 250 due to budget, but apparently have the funds to hire 65 new AAJs? And, with a 1.1 million backlog, is hiring 65 AAJs and support staff to presumably handle 50k (or 4.5% of the back log) prudent? And, they plan to assign two attorneys to these AAJs to help them with the workload? Wow How about, you give me a paralegal to do a file review pre hearing, write my dismissals and fully favorables and an AA that can review my docket for OTRs and write my unfavorables. You don't have to make me their supervisor....just make them dedicated to my docket. Assign two such employees to each judge. Any other DWs in the office could then be available for writing overflow or for writing for other offices (sort of like a miniwriting unit). Do that, eliminate all the time I have to spend going thru all the records, give me a writer I can count on so my editing time is reduced....and I will give you at least 33% more cases disposed of. I'd be able to add a whole new hearing day per week. I do 6 a hearing day. Means 4 new hearing days a month. 24 new dispositions a month. 12 months is an additional 288 dispos a year. If all 1500 or so of us could add that many on average, that's an additional 432,000 cases in a year. Backlog attack full on. You missed an important qualifier for your requested paralegal or AA. You need to insert "good" or "quality" before either. I think the majority of either group is fine to excellent, but what if your dedicated paralegal and/or AA isn't? What do you do if your paralegal spends most of his/her time FB'ing or talking on their phone? What if you have an AA that can't analyze anything in a decision or believes that saying a treating source statement isn't supported by the record is enough to support disregarding it? If you're not their supervisor or hiring those folks, you could get stuck with someone (or some people) that makes your job harder. I already cringe when I get decisions back from certain writers. The thought of bad support governing my daily existence makes me a little nauseated. If we're talking about switching over to the NHC model, that's a different story, but then you do become a supervisor. At NHCs ALJs are the direct supervisors of the attys that write for them. While certainly some writers will be bad, I think that if they were writing for one ALJ, the ALJ would have a greater ability to train them (so to speak) and if the writer proves untrainable, you could at least launch a sustained campaign of letting management know the problems, and the performance reviews would at least reflect this better. As is, the diffusion of responsibility is such that bad writers can get by because no-one has the motivation to lob many complaints their way, or no-one notices they are on FB all day, and the ALJs who get their decisions just fix them just get past it and move on to the better drafter decisions.
I should note that all of this is true in the reverse, i.e. a few ALJs are terrible, and it would truly suck to be a writer stuck with one. "Training" a truly terrible ALJ is a lot harder, as most of the truly incompetent ones have contacted robe-itis and are immune to constructive criticism.
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Post by hopefalj on Feb 14, 2016 20:44:52 GMT -5
I should note that all of this is true in the reverse, i.e. a few ALJs are terrible, and it would truly suck to be a writer stuck with one. "Training" a truly terrible ALJ is a lot harder, as most of the truly incompetent ones have contacted robe-itis and are immune to constructive criticism.
No doubt about that. One of the biggest benefits of getting this job is avoiding having to justify someone else's unsupported decision and having that remanded decision possibly count against me. It's far easier to fix bad writing as a judge than it is to fix a bad decision as a writer, although it's not necessarily less time consuming.
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Post by ncatty007 on Feb 15, 2016 22:53:20 GMT -5
Here's what worries me: suppose an appeal of an AAJ decision goes up the ladder, and the circuit court upholds the challenge of a non-APA judge holding SSA hearings. The nut will be cracked. I think this is certainly the bigger picture issue to my understanding. If a circuit were to hold that a non-APA judge can hold the SSA hearing, then I doubt that would bode well for the longevity of the ODAR ALJ corp over the long term.
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Post by Propmaster on Feb 16, 2016 11:17:06 GMT -5
Here's what worries me: suppose an appeal of an AAJ decision goes up the ladder, and the circuit court upholds the challenge of a non-APA judge holding SSA hearings. The nut will be cracked. Yes, but TPTB have carefully considered this issue, along with OGC. The reliance is on the CFR that provides for removal of a case by the AC. While there are several sections touching this subject, I believe the language being relied on is similar to what I have pasted below. I'm not saying this will withstand scrutiny, but just that is has been considered. Pixie. Removal of hearing to Appeals Council. The Appeals Council on its own motion may remove to itself any request for hearing pending before an Administrative Law Judge. The hearing on any matter so removed to the Appeals Council shall be conducted in accordance with the requirements of §§ 410.637 to 410.653, inclusive. Notice of such removal shall be mailed to the parties at their last known addresses.
In this analysis (and I'm not meaning to imply it is 'your' analysis), is the AC equivalent to "the agency" or a "panel of the agency" as required in the APA if no ALJ is used? It seems to me that the agency is relying on a duly promulgated regulation that, if constitutional and a possible interpretation of the statute, would be given deference by courts evaluating the issue. I find it unlikely, however, that any court has examined the issue in this light, such that it could be said the regulation at issue has already passed court scrutiny. {edit: I know you (Pixie) said you were not speaking to scrutiny, I was making a general point regarding earlier posts in that regard. I only meant to seek your direct input on the first paragraph of this post, not to imply that I was still responding to you throughout} As far as someone making an appeal of this process - a lot of such appeals come out of legal aid organizations. I think Martinez was. Was Zebley, perhaps? Sometimes, it's not about the money, even when lawyers are involved.
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linky
Full Member
Posts: 88
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Post by linky on Feb 16, 2016 20:16:07 GMT -5
If ALJs have to compete for this work (competitive service) how can the work be given to employees who did not have to compete. Seems the MSPB May not uphold that issue.
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linky
Full Member
Posts: 88
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Post by linky on Feb 16, 2016 20:32:45 GMT -5
In order for a job to be classified as competitive service OPM has to approve the job description. Those job duties can't suddenly show up in the position description for noncompetitive service. Noncompetitive service could have a job description includes other duties as assigned but that can only be used in special circumstance. I don't know what all the rules are but maybe an employment lawyer would know more details
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Post by Pixie on Feb 17, 2016 10:18:51 GMT -5
I think the Administrative Procedure Act is broad enough to allow that which the agency seeks to accomplish. Section 556 speaks to who may preside at the hearings. Plus the agency has the removal section to bolster its position.
§ 556. Hearings; presiding employees; powers and duties; burden of proof; evidence; record as basis of decision
(a) This section applies, according to the provisions thereof, to hearings required by section 553 or 554 of this title to be conducted in accordance with this section.
(b) There shall preside at the taking of evidence -
(1) the agency;
(2) one or more members of the body which comprises the agency; or
(3) one or more administrative law judges appointed under section 3105 of this title.
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linky
Full Member
Posts: 88
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Post by linky on Feb 17, 2016 10:39:31 GMT -5
This is a different issue. Competitive service rules are part of 5 CFR Part 3 and those rules don't allow agencies to erode a competitive service employee's job description and give it to an individual who did not compete for the job. If holding hearings is part of an ALJ's job description you can't just give it to a noncompetitive employee.
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Post by privateatty on Feb 17, 2016 17:17:27 GMT -5
At the end of the day the question I have is who really has the ALJ Corps back? And the answer is, of course, AALJ (to the degree that they are front and center), FALJC, the ABA and to a certain extent, Congress. The Fed Circuit gave us Long and Shapiro. The DC Circuit gave us Mahoney. And don't get me started on MSPB who, as you all must know, are AJs.
Congress does care to the extent that some of the Senators and Members are lawyers and respect the ABA and "get" the rationale of the APA and the fact that it has been a good piece of legislation that they (and us) grew up with and studied in Admin Law in law school. Many of their constituency and (Amen) PACs, are impacted by us. But as has been posted here before what Congress giveth, it can take away. We don't have the Constitutional protection of the Art III Judges and that is why you get a bit of condensation like what was and is exhibited by the Circuit Court Justices. To them were are chicken de-boners. Judge Posner is not alone in his opinions.
Most of you really want this very important job and God bless. But please know that the fight to get the job, IMHO should also not be extinguished by complacency. We need to defend the Corps, continuously.
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Post by keepsake on Feb 17, 2016 18:06:29 GMT -5
Yes MSPB employs AJs for hearing its run of the mill cases; but for ALJ and SES discipline cases, OSC cases and Hatch Act cases - it gets ALJs from other agencies to hear and decide these cases. So - at least ALJ discipline cases are heard in the first instance by a 3105 ALJ for what it's worth.
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Post by privateatty on Feb 17, 2016 18:22:32 GMT -5
Yes MSPB employs AJs for hearing its run of the mill cases; but for ALJ and SES discipline cases, OSC cases and Hatch Act cases - it gets ALJs from other agencies to hear and decide these cases. So - at least ALJ discipline cases are heard in the first instance by a 3105 ALJ for what it's worth. Thank you for the correction. You are right--Long was decided by the CJ of the NLRB. He found a limited suspension. The Agency wanted dismissal and that stuck.
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