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Post by neufenland on Jul 19, 2018 16:34:22 GMT -5
Man those obstacles are going to be tough with robes on. Iām more of an American ninja warrior guy myself. Yes, well, add the robes on American Ninja Warrior, too - now that would be a show worth watching! ALJs scale the Salmon Ladder.
But I'm assuming that most ALJs don't have the upper body strength for ANW.Ā
But Wipeout was good for any kind of body, even those without upper body strength, as long as that body was willing to throw it all in I read about robes and fighting in the last few posts and my mind starts to think wizards. Maybe the ES/CS divide will have a Death Eater/Order of the Phoenix vibe... Or not...š |
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Post by Prrple on Jul 19, 2018 16:37:04 GMT -5
Man those obstacles are going to be tough with robes on. Iām more of an American ninja warrior guy myself. Yes, well, add the robes on American Ninja Warrior, too - now that would be a show worth watching! ALJs scale the Salmon Ladder.
But I'm assuming that most ALJs don't have the upper body strength for ANW.
But Wipeout was good for any kind of body, even those without upper body strength, as long as that body was willing to throw it all in Pretty sure that this is the old process for eliminating people from consideration for ALJ, but it may be the new one. Hard to say.
Either way this captures the feel of the process.
People on the poles at the end made it on the register.
Now the poles have been chopped down.
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Post by lurkerbelow on Jul 19, 2018 18:24:24 GMT -5
Iāve worked in some high drama offices where the workload did not preclude ALJs from bickering in front of staff, or coming into my office to vent about other ALJs (awkward!) As to the fact that they havenāt expressed distaste due to hiring circumstances, that sort of misses the point that the EO has now formally made two classes of ALJs, one of which is being viewed as being beholden to management. But yes they arenāt signing the checks, so really - who cares. I disagree that they are 'viewed' as being beholden to management. That implies a third person. We are apparently viewing them as being beholden to management. Because honestly, we're the main ones who have noticed or cared. Don't get me wrong, this is a very important issue for the country. But...well, some of the public might have cared for the 15 seconds to 20 minutes they took reading one of the aforementioned articles on this forum. Maybe. Then there was a cute turtle eating pancakes video or something else to draw their attention. I'm a bit cynical perhaps, but I don't exactly see a media blitz surrounding this issue. SCOTUS, while it has a turtle as a mascot, cannot compete with the real thing in terms of cuteness and distractability. As to reps, who are the other likely group affected by this...most reps won't argue the issue because there's no money in it. Seriously, think about it. If you're a claimant's rep, are you going to take a bad case to appeal, work your way through the DC court, get the judge removed, all to just get a new hearing? Oh, and it's on contingency fee. Might as well just grab another case from the pile. No, you'll save that kind of maneuver for that case with plenty of T2 benefits at stake, an absolutely incompetent ruling, and a blind stamp from the AC. Much easier, much more profitable, and you don't have to learn all of this constitutional law nonsense. So, let me ask a more direct question. How do we, as a group here, view these two categories of ALJs? This is actually kind of important, since this forum is many an attorney's introduction to the process. Personally, I view them as one group, because they do the same job for the same people at the same time with each other. They are identical except for the method of hiring. Now, if I start seeing only that type of judge be subject to more the strict requirements (good luck with that), I will change my tune. I do suggest to whatever management is listening that attempting to erode any independence or giving the perception of eroding independence is a really really really bad idea for everybody. This is addressed in most judicial canons for a reason. This concept can be learned by number-crunches either in the abstract (by thinking) or in the concrete (by not thinking). Regardless, it will be learned. In litigation like that, there are no winners. |
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Post by ok1956 on Jul 19, 2018 20:12:13 GMT -5
I canāt speak for any other ALJs but as far as Iām concerned, I donāt care how someone comes into the corps. What I do care about is whether she has good judicial temperament, good work ethic, pulls her weight, is collegial and does the job according to the applicable laws. Even in the competitive service there are those who donāt meet my standards. But Iām not going to assume that just because weāre dealing with someone who is in the excepted service she wonāt.
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Post by hopefalj on Jul 20, 2018 7:01:14 GMT -5
I canāt speak for any other ALJs but as far as Iām concerned, I donāt care how someone comes into the corps. What I do care about is whether she has good judicial temperament, good work ethic, pulls her weight, is collegial and does the job according to the applicable laws. Even in the competitive service there are those who donāt meet my standards. But Iām not going to assume that just because weāre dealing with someone who is in the excepted service she wonāt. Agreed. Any respect I have for others in the job doesn't come from their hiring circumstances or their background. It comes from how they treat other people, whether it's someone on staff, claimants, fellow ALJs, or even management. It comes from how seriously they take the job and how hard they work to learn the law. As a younger insider, I dealt with some of that disrespect from some older, more experienced judges when I came in. It's not fun, but it's not work prohibitive, either. It is unnecessary. I hope that I don't look down or have little respect ES hires, but if I do, it will have zero to do with their being ES and more to do with hearing them berate their SCT in front of everyone for failing to exhibit a medical expert resume or personally attacking management or their fellow judges. |
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Post by firehouse9 on Jul 20, 2018 15:06:22 GMT -5
Today, I feel like Clark Grizwald, only worse:
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Post by Deleted on Jul 20, 2018 16:00:41 GMT -5
Article Casts Doubt on the Legality of Trump's Administrative Law Judge EOAn attorney with the Congressional Research Service wrote Wednesday that court precedent and the Administrative Procedures Act may significantly limit the Trump administrationās legal authority as it implements the recent executive order removing administrative law judges from the competitive hiring process. In an article in CRSā Legal Sidebar series, legislative attorney Valerie Brannon wrote that there is a complex series of legal precedents governing executive orders that seek to change rules and regulations. Although the president is generally exempt from the Administrative Procedures Act, which prescribes a rulemaking process that requires advanced notice and a period for public comment before a rule can be enacted, the agencies tasked with implementing executive orders are not. āThese rulemaking procedures apply only to an āagency process,āā Brannon wrote. āThe APA defines āagencyā to include āeach authority of the government of the United States,ā but excludes Congress and the courts . . . [In Franklin v. Massachussetts, the Supreme Court] acknowledged that the APA definition of āagencyā does not expressly exclude the president, but noted that the president is not āexplicitly included,ā either.ā Earlier this month, President Trump issued an executive order that would allow agency heads to pick whomever they wish to be administrative law judges, provided they are active lawyers or judges. Previously, the Office of Personnel Management would independently vet candidates, and then submit to agencies a short list of potential names. Although the APA may not restrict Trumpās ability to change the hiring process for ALJs, the Civil Service Reform Act might. Brannon suggested that efforts to halt the executive order in court āwould likely depend on the nature of the suit and the particular statutory provision invoked.ā āThe statute invoked in [the executive order] provides that the president may create ānecessary exceptions of positions from the competitive service,ā as āconditions of good administrationā may warrant,ā she wrote. āThis language places substantive limitations on the presidentās authority: he may only create exceptions so long as they are ānecessaryā and warranted by āconditions of good administration.āā White House officials have argued that the Supreme Courtās recent decision in Lucia. v. Securities and Exchange Commission requires the administration to change the hiring process for ALJs to avoid legal challenges. But union representatives and observers dispute that, suggesting that the decision may not have any impact for the vast majority of the 1,900 ALJs employed by federal agencies. While the president likely did not need to abide by APA rulemaking procedures in issuing the executive order, agencies will have to heed the law going forward. Although the APA does not restrict the president from ordering changes to federal rules and regulations, it does govern how agencies work to implement those orders. In the case of the recently issued executive order moving the hiring of administrative law judges from the competitive to the excepted service, OPM would be required to follow rulemaking procedures required by the APA. āIt appears that the U.S. Office of Personnel Management will primarily be implementing the directiveāthe executive order directs OPM to adopt regulations and provide guidance as necessary to implement the order, and OPM has already issued a guidance memo āto address several issues that may arise as agenciesā begin to implement the order,ā Brannon wrote. ā[If] OPM does act to amend existing rules, federal law expressly requires the agency to follow APAās rulemaking procedures.ā m.govexec.com/oversight/2018/07/article-casts-doubt-legality-trumps-administrative-law-judge-eo/149919/?oref=m-ge-riverThe full CRS article is here: fas.org/sgp/crs/misc/LSB10172.pdf
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Post by SPN Lifer on Jul 20, 2018 16:09:00 GMT -5
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Post by arkstfan on Jul 22, 2018 13:53:39 GMT -5
Article Casts Doubt on the Legality of Trump's Administrative Law Judge EOAlthough the APA may not restrict Trumpās ability to change the hiring process for ALJs, the Civil Service Reform Act might. Brannon suggested that efforts to halt the executive order in court āwould likely depend on the nature of the suit and the particular statutory provision invoked.ā ...and the particular judge hearing the case. Some judges love nationwide injunctions. Only takes one case. With dozens of lawsuits, it's almost inconceivable there won't be an injunction. And, as we saw with Trump v. Hawaii, it will take over a year for SCOTUS to address it. The US District Court of Maryland issuing a injunction to prevent the commissioner or acting commissioner from appointing judges would be in effect a national injunction. Very possible there are no new ALJ's appointed for the next 2-3 years. |
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Post by Pixie on Jul 22, 2018 15:56:59 GMT -5
...and the particular judge hearing the case. Some judges love nationwide injunctions. Only takes one case. With dozens of lawsuits, it's almost inconceivable there won't be an injunction. And, as we saw with Trump v. Hawaii, it will take over a year for SCOTUS to address it. The US District Court of Maryland issuing a injunction to prevent the commissioner or acting commissioner from appointing judges would be in effect a national injunction. Very possible there are no new ALJ's appointed for the next 2-3 years. And that is exactly what I am afraid of. Pixie |
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Post by Prrple on Jul 22, 2018 23:06:23 GMT -5
The US District Court of Maryland issuing a injunction to prevent the commissioner or acting commissioner from appointing judges would be in effect a national injunction. Very possible there are no new ALJ's appointed for the next 2-3 years. And that is exactly what I am afraid of. Pixie Agency rule making process issues prevented DAPA from ever being implemented, if I recall correctly. That was a 2014 EO, I believe, and injunction prevented its implementation prior to it being rescinded in 2017. |
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Post by Burt Macklin on Jul 23, 2018 8:58:59 GMT -5
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Post by jagvet on Jul 23, 2018 9:04:41 GMT -5
I think the difficulties of standing will affect any ALJ legitimacy litigation. First, the plaintiff has to be a claimant. For exhaustion of remedies, he or she would have to be denied at the Appeals Council. If someone files a class action, it would have to be claimants denied by the Appeals Council, and the lead plaintiff certified to represent the class, which could turn on a number of factors. It's not as simple as, say, an asylum-seeker representing asylum seekers.
My guess is that Congress will patch this up somehow before a class action case could be certified. Despite all kinds of speculation above and conspiracy theories, I just don't see this as a partisan issue. No politician benefits from being seen as obstructing people with disabilities from getting their money over what is for over 99% of the public an obscure legal issue.
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Post by Prrple on Jul 23, 2018 9:36:52 GMT -5
Why would the plaintiff have to be a claimant?
Why wouldn't people on the OPM register of eligible candidates have standing to challenge this change in hiring process as people who have been adversely affected directly by this?
Rather than an asylum seeker representing asylum seekers, why not an ALJ candidate on the register of eligible candidates representing ALJ candidates on the register of eligible candidates?
People on the register expended tangible costs in gaining that status, and are directly, adversely affected if not by the EO, then by the OPM guidance issued almost immediately thereafter.
I'm sure I am missing something here...
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Post by phoenixrisingALJ on Jul 23, 2018 10:09:03 GMT -5
I think the difficulties of standing will affect any ALJ legitimacy litigation. First, the plaintiff has to be a claimant. For exhaustion of remedies, he or she would have to be denied at the Appeals Council. If someone files a class action, it would have to be claimants denied by the Appeals Council, and the lead plaintiff certified to represent the class, which could turn on a number of factors. It's not as simple as, say, an asylum-seeker representing asylum seekers. My guess is that Congress will patch this up somehow before a class action case could be certified. Despite all kinds of speculation above and conspiracy theories, I just don't see this as a partisan issue. No politician benefits from being seen as obstructing people with disabilities from getting their money over what is for over 99% of the public an obscure legal issue. The political aspect is that the current administration has stated that it wants to stack judicial appointments with conservative picks. Currently ALJs are pretty apolitical as there are no crony picks. However with the move away from the OPM testing and to excepted service - it will allow agency heads to pick those who lean their way. And while you may not see ALJ's as political - the overall conservative outlook leans one way as does the liberal view the other way. |
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Post by nylawyer on Jul 23, 2018 10:12:47 GMT -5
Why would the plaintiff have to be a claimant? Why wouldn't people on the OPM register of eligible candidates have standing to challenge this change in hiring process as people who have been adversely affected directly by this? Rather than an asylum seeker representing asylum seekers, why not an ALJ candidate on the register of eligible candidates representing ALJ candidates on the register of eligible candidates? People on the register expended tangible costs in gaining that status, and are directly, adversely affected if not by the EO, then by the OPM guidance issued almost immediately thereafter. I'm sure I am missing something here... Just musing a little here, but... Assuming that such a person would ever have standing, it would seem clear to me that they would have to wait until an ALJ was hired through a process other than the previous one. But- everyone on the register was (I believe) going to be expiring soon anyway- wasn't the plan to implement a new OPM testing method. So, might that standing be removed by simply not hiring anyone until after a certain date? Again, just thinking aloud as it were |
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Post by nylawyer on Jul 23, 2018 10:15:06 GMT -5
I think the difficulties of standing will affect any ALJ legitimacy litigation. First, the plaintiff has to be a claimant. For exhaustion of remedies, he or she would have to be denied at the Appeals Council. If someone files a class action, it would have to be claimants denied by the Appeals Council, and the lead plaintiff certified to represent the class, which could turn on a number of factors. It's not as simple as, say, an asylum-seeker representing asylum seekers. My guess is that Congress will patch this up somehow before a class action case could be certified. Despite all kinds of speculation above and conspiracy theories, I just don't see this as a partisan issue. No politician benefits from being seen as obstructing people with disabilities from getting their money over what is for over 99% of the public anĀ obscure legal issue. The political aspect is that the current administration has stated that it wants to stack judicial appointments with conservative picks.Ā Currently ALJs are pretty apolitical as there are no crony picks.Ā However with the move away from the OPM testing and to excepted service - it will allow agency heads to pick those who lean their way.Ā And while you may not see ALJ's as political - the overall conservative outlook leans one way as does the liberal view the other way.Ā Ā I think any discussion of the politics of this needs to keep in mind that the Administration may be much more concerned with the ALJ's at agencies other than SSA or OMHA, even though they are a small percentage of total federal ALJs. |
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Post by Prrple on Jul 23, 2018 11:11:09 GMT -5
Why would the plaintiff have to be a claimant? Why wouldn't people on the OPM register of eligible candidates have standing to challenge this change in hiring process as people who have been adversely affected directly by this? Rather than an asylum seeker representing asylum seekers, why not an ALJ candidate on the register of eligible candidates representing ALJ candidates on the register of eligible candidates? People on the register expended tangible costs in gaining that status, and are directly, adversely affected if not by the EO, then by the OPM guidance issued almost immediately thereafter. I'm sure I am missing something here... Just musing a little here, but... Assuming that such a person would ever have standing, it would seem clear to me that they would have to wait until an ALJ was hired through a process other than the previous one. But- everyone on the register was (I believe) going to be expiring soon anyway- wasn't the plan to implement a new OPM testing method. So, might that standing be removed by simply not hiring anyone until after a certain date? Again, just thinking aloud as it were If hiring someone through a different process would confer standing, then beginning a new process for hiring would confer sufficient standing to trigger an injunction. Most recent NORs that placed people on the register did not have an expiration date.
I don't know whether waiting to hire would accomplish much, in light of the lack of expiration date on the notice of eligibility.
When placed on the register, the notice says, "As stated on the NOR, your name will be placed on the current register in order based on your final numerical rating. This list will be used as a source of names to make referrals to agencies for employment consideration."
This process was changed without following the APA's rulemaking procedures.
There are ways it could be handled that would avoid triggering standing to those who received notice of being "placed on the register of eligible candidates used to make referrals to agencies for employment consideration."
Continuing to use the register of eligible candidates to make referrals for employment, for example, seems it would avoid it.
As with you, I'm just thinking out loud here.
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Post by ba on Jul 23, 2018 12:11:46 GMT -5
Then there's 5 USC 5372(2). Well, this just got awkward... |
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Post by Prrple on Jul 23, 2018 13:17:20 GMT -5
Then there's 5 USC 5372(2). Well, this just got awkward...
I guess this is the reason that OPM's website still says this:
Overview
By statute, the U.S. Office of Personnel Management has a non-delegable duty to administer the Administrative Law Judge examination, through which agencies make competitive service appointments of Administrative Law Judges (ALJ). The Administrative Law Judge Program Office (ALJPO) was established to carry out the agencyās responsibility for planning, operating and directing the recruitment, examination and employment of ALJs. ALJPO also provides approval of agency requests for ALJ personnel actions and the utilization of ALJs. Specifically, the office acts on requests for all ALJ non-competitive actions; requests for inter-agency details and assignments to non-ALJ duties; requests for increases in pay based on superior qualifications; classification issues; and administration of the ALJ priority referral program.
The ALJPO also is responsible for administering the ALJ Loan Program and the Senior ALJ Program. The ALJ Program is nationwide in scope and has a very high degree of sensitivity and importance to the Government and to the public.
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