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Post by jagvet on Jul 24, 2018 12:38:15 GMT -5
There are two legal challenges possible. I was only talking above about claimants challenging unfavorable determinations alleging that the ALJ was not properly appointed. As to ALJ candidates filing suit, I don't see it. You have Lucia saying that the appointments are bad. How could an applicant under the old system have a ripe claim? "I was hoping to be selected" is a bit speculative. I was there 25 years ago when the process was shut down then. My application was put on hold for a couple of years and then rejected. I think current applicants are in the same position now.
By the way, I am in a hurry, so I haven't checked everything on the board, but we were told yesterday there will no new ALJ hires for a year because of a problem between SSA and OPM. But, you all probably heard the same.
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Post by Thomas fka Lance on Jul 24, 2018 21:00:59 GMT -5
There are two legal challenges possible. I was only talking above about claimants challenging unfavorable determinations alleging that the ALJ was not properly appointed. As to ALJ candidates filing suit, I don't see it. You have Lucia saying that the appointments are bad. How could an applicant under the old system have a ripe claim? "I was hoping to be selected" is a bit speculative. I was there 25 years ago when the process was shut down then. My application was put on hold for a couple of years and then rejected. I think current applicants are in the same position now. By the way, I am in a hurry, so I haven't checked everything on the board, but we were told yesterday there will no new ALJ hires for a year because of a problem between SSA and OPM. But, you all probably heard the same.I had not heard this, which isn't unusual due to hearings/work/edit/lather/rinse/repeat. Thanks for sharing |
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Post by Pixie on Jul 24, 2018 21:56:47 GMT -5
There are two legal challenges possible. I was only talking above about claimants challenging unfavorable determinations alleging that the ALJ was not properly appointed. As to ALJ candidates filing suit, I don't see it. You have Lucia saying that the appointments are bad. How could an applicant under the old system have a ripe claim? "I was hoping to be selected" is a bit speculative. I was there 25 years ago when the process was shut down then. My application was put on hold for a couple of years and then rejected. I think current applicants are in the same position now. By the way, I am in a hurry, so I haven't checked everything on the board, but we were told yesterday there will no new ALJ hires for a year because of a problem between SSA and OPM. But, you all probably heard the same. Oh, there will be no hiring alright, but it will be for longer than a year. And it isn't just due to a problem between SSA and OPM. Pixie |
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Post by nylawyer on Jul 24, 2018 22:10:15 GMT -5
There are two legal challenges possible. I was only talking above about claimants challenging unfavorable determinations alleging that the ALJ was not properly appointed. As to ALJ candidates filing suit, I don't see it. You have Lucia saying that the appointments are bad. How could an applicant under the old system have a ripe claim? "I was hoping to be selected" is a bit speculative. I was there 25 years ago when the process was shut down then. My application was put on hold for a couple of years and then rejected. I think current applicants are in the same position now. By the way, I am in a hurry, so I haven't checked everything on the board, but we were told yesterday there will no new ALJ hires for a year because of a problem between SSA and OPM. But, you all probably heard the same. Oh, there will be no hiring alright, but it will be for longer than a year. And it isn't just due to a problem between SSA and OPM. Pixie That’s ominous. Anyone else hear a couple of organ chords at the end, maybe thunder and lightening? Can I assume you are referring to the likelihood of litigation and an injunction, as opposed to OHO going out of business? Is my ID going to work tomorrow? |
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Post by Pixie on Jul 24, 2018 22:19:56 GMT -5
Oh, there will be no hiring alright, but it will be for longer than a year. And it isn't just due to a problem between SSA and OPM. Pixie That’s ominous. Anyone else hear a couple of organ chords at the end, maybe thunder and lightening? Can I assume you are referring to the likelihood of litigation and an injunction, as opposed to OHO going out of business? Is my ID going to work tomorrow? Yes. |
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Post by anotherfed on Jul 24, 2018 23:14:06 GMT -5
In Memphis, TN, Interstate 40 ends at a certain point and picks up 20 miles later near the Mississippi River! Why, the Supreme Court ruled that the Agency (DOT) did not comply with the APA. Yes, you can change the rules and EO are fine too, but at the Agency level, the APA controls, but who knows!  And THAT's why people get their kicks on Rte 66 ... |
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Post by jimmyjiggles on Jul 24, 2018 23:25:00 GMT -5
Neither SSA nor OPM authored the EO. Nor did they issue the decision in Lucia that was the condition precedent for the EO. Nor did they flip positions after cert was granted by the USSC.
This is a clusterF of epic proportions and will take many years to resolve. Honestly I wish the USSC did allow all the removal and selection arguments raised by the SG to be decided, because then there would be some clarity. Instead the more measured approach- a limited holding- has unleashed a torrent of uncertainty and fertilized the ground for things like the recent EO (remember in the Lucia decision they said they wanted to encourage appointment clause challenges).
But hey in three, or five, or seven years when this finally gets hashed out, maybe OHO will finally want to hire a decent amount of judges again.
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Post by jimmyjiggles on Jul 24, 2018 23:40:43 GMT -5
Maybe OHO should just abandon ALJs. Hear me out.
Lucia can be read (and the SG is arguing in the most recent memo) that not only ALJs, but all administrative judges, are inferior officers. Rather than try to hire ALJs through their own process, OHO should instead do a notice of rulemaking, following the APA requirements, and change all the ssa/OHO regs to include administrative judges with ALJs. That would take less time than waiting for the avalanche of litigation to resolve. They could then hire administrative judges like EEOC or the the VA does.
After all, all of this litigation deals with hiring/retaining ALJs. And just think of the many issues that must be decided, and probably not in the same case or even class of cases: 1. Are OHO ALJs inferior officers. 2. Are the selection procedures of the APA constitutional. 3. Are the removal procedures of the APA constitutional. 4. What of the other statues commanding OPM to administer a test?
That could be a decade of litigation. And what would the end result be? Probably allowing some process of hiring and retention that is similar to what the EO has attempted to do. Of course what the EO attempts to do is to make ALJs almost exactly like administrative judges anyway, so why not just say screw it, we’ll use administrative judges instead and have that going in 2 years rather than waiting a decade for the same result?
Or if they really want to get crafty do this: there’s already a reg allowing AALJs to hear cases. That just got a whole lot more kosher looking in light of Lucia. Make sure AALJs are properly appointed and just start hiring AALJs to do hearings. I don’t see anything to stop SSA from doing that tomorrow if they wanted.
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Post by ba on Jul 25, 2018 7:03:47 GMT -5
I distinctly recall an AAJ saying in an open forum, "The agency told us that they would like to see more improper use of opinion remands, so suddenly there were more improper use of opinion remands."
That told me everything I needed to know about having AJs holding hearings.
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Post by uboat on Jul 25, 2018 19:45:10 GMT -5
....By the way, I am in a hurry, so I haven't checked everything on the board, but we were told yesterday there will no new ALJ hires for a year because of a problem between SSA and OPM. But, you all probably heard the same.No inside information here. However, based on an analysis of events since Lucia was issued, it would not surprise me all that much to see a small number of new hires (35?) through direct appointment (i.e. not even a published job announcement) this FY. This looks a lot like blitzkrieg to me, so further unexpected and "lightning-like" moves should not be ruled out. |
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Post by rockey on Jul 26, 2018 1:22:51 GMT -5
Neither SSA nor OPM authored the EO. Nor did they issue the decision in Lucia that was the condition precedent for the EO. Nor did they flip positions after cert was granted by the USSC. This is a clusterF of epic proportions and will take many years to resolve. Honestly I wish the USSC did allow all the removal and selection arguments raised by the SG to be decided, because then there would be some clarity. Instead the more measured approach- a limited holding- has unleashed a torrent of uncertainty and fertilized the ground for things like the recent EO (remember in the Lucia decision they said they wanted to encourage appointment clause challenges). But hey in three, or five, or seven years when this finally gets hashed out, maybe OHO will finally want to hire a decent amount of judges again. Lucia could have been dealt with merely by having the Acting Commissioner appoint new ALJs, same as was done for all ALJs currently working at SSA. Instead, in a blatant power grab, Trump issued his EO, which created the clusterF of epic proportions we have today. Lucia was a very narrow ruling. Trump is solely responsible for what happened after. |
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Post by jimmyjiggles on Jul 26, 2018 3:27:03 GMT -5
....By the way, I am in a hurry, so I haven't checked everything on the board, but we were told yesterday there will no new ALJ hires for a year because of a problem between SSA and OPM. But, you all probably heard the same.No inside information here. However, based on an analysis of events since Lucia was issued, it would not surprise me all that much to see a small number of new hires (35?) through direct appointment (i.e. not even a published job announcement) this FY. This looks a lot like blitzkrieg to me, so further unexpected and "lightning-like" moves should not be ruled out. U-boat. Blitzkrieg. I find these metaphors unsettling. |
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Post by JudgeKnot on Jul 26, 2018 7:18:36 GMT -5
www.judges.org/aljs-decry-executive-order-ending-merit-based-appointment-process/?utm_source=Judicial+Edge&utm_campaign=9adc5c947f-EMAIL_CAMPAIGN_2017_01_23_COPY_01&utm_medium=email&utm_term=0_245b20c264-9adc5c947f-253811209"Writing in the Washington Post, Marilyn Zahm, president of the Association of Administrative Law Judges, explained that the new system eliminates the test, the ranking and the experience requirement. “Now, as a result of the president’s executive order, an agency that wants to employ an ALJ can recruit any attorney regardless of skill or experience. Competence and impartiality apparently are no longer essential; cronyism and political interference will no longer be taboo.” I guess I'm a contrarian to the general sentiment I'm reading on this board and in the linked article. Immigration judges haven't been hired through the old selection process. Administrative judges haven't been hired through the old selection process. Was there ever a demand that IJs and AJs must be hired through that process? Not that I saw. Are the AJs and IJs as a whole seen as unqualified or biased because of the way they're hired? I doubt it. I had no idea how many AJs work in the fed system, so I looked it up this morning. "The federal government employed nearly 2,000 administrative law judges and more than 10,000 administrative judges and other non-ALJ adjudicators as of 2017. Unlike administrative law judges, who are recruited and examined by the U.S. Office of Personnel Management, administrative judges are hired directly by agencies. As such, administrative judges do not share in the statutory protections from removal, discipline, and performance reviews that ALJs receive under the Administrative Procedure Act. According to Paul Verkuil, former chairman of the Administrative Conference of the United States, administrative judges generally have less independence than administrative law judges, are compensated at a lower rate, and have less job security." I'm not saying that ALJs should lose the protections that they have. I would instead suggest that AJs and IJs should have more protection. My bigger point is that until we see what process is adopted for selecting ALJs, and see the quality of ALJs selected by the new process, we don't have any evidence to show that the undetermined new process is somehow fatally flawed and inherently corrupt. Facts provide better evidence than opinion and speculation, right?
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Post by anotherfed on Jul 26, 2018 12:27:14 GMT -5
"In interviews with reporters, James Sherk, special assistant to the president for domestic policy, said the president’s order was issued to eliminate the possibility that federal ALJ’s decisions could be set aside based on how a judge was hired, as happened in Lucia." This makes little sense. If the concern is that competitively appointed ALJs' decisions are at risk, the change to excepted service ALJs only addresses the problem as to new ALJs. The majority of decisions for the next generation are going to be issued by competitively appointed ALJs, anyway, because the EO purports to keep existing ALJs in the competitive service. And even if the EO had purported to move existing ALJs to the excepted service, they were initially hired via the competitive service, so the problem Sherk claims the EO is designed to address ("how a judge was hired") has not been addressed. FFS, maybe some of these administration officials need to take the LBMT.Actually, this whole situation kinda feels like the LBMT. When will we wake up?? |
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Post by ba on Jul 27, 2018 6:19:51 GMT -5
"In interviews with reporters, James Sherk, special assistant to the president for domestic policy, said the president’s order was issued to eliminate the possibility that federal ALJ’s decisions could be set aside based on how a judge was hired, as happened in Lucia." This makes little sense. If the concern is that competitively appointed ALJs' decisions are at risk, the change to excepted service ALJs only addresses the problem as to new ALJs. The majority of decisions for the next generation are going to be issued by competitively appointed ALJs, anyway, because the EO purports to keep existing ALJs in the competitive service. And even if the EO had purported to move existing ALJs to the excepted service, they were initially hired via the competitive service, so the problem Sherk claims the EO is designed to address ("how a judge was hired") has not been addressed. FFS, maybe some of these administration officials need to take the LBMT. Pretextual reasons rarely do make sense. |
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Post by truebeliever on Jul 27, 2018 9:38:27 GMT -5
I realize that we don't know how the new selection process for SSA ALJd will occur, but if you want to worry about whether the selection will be partisan, there is a precedent to worry. Under the last Bush administration there was a period where Immigration Judge picks were based mostly on ties to the GOP. I know of one Immigration Judge who was the former state chair for the GOP and then without any immigration experience was selected to be an IJ. I think this real life example concerns us all. Though as I recall, once this was revealed it was widely condemned, though all the appointed GOP judges were able to retain there positions and many continue to serve today. www.washingtonpost.com/wp-dyn/content/article/2007/06/10/AR2007061001229.htmllinkFWIW |
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Post by Thru Hiker on Jul 31, 2018 6:47:51 GMT -5
There are two legal challenges possible. . . . By the way, I am in a hurry, so I haven't checked everything on the board, but we were told yesterday there will no new ALJ hires for a year because of a problem between SSA and OPM. But, you all probably heard the same. Oh, there will be no hiring alright, but it will be for longer than a year. And it isn't just due to a problem between SSA and OPM. Pixie I think a lawsuit on the expectancy of a job offer is a very thin reed on which to base standing in these federal times. For some reason, the following resonated with me as I drove some twisting mountain roads the other day (be sure to put the windows down and crank the volume): Acourse, there is really NO PROBLEM here for those who do not care as to the rightness of outcome or quality of work. this situation is only a problem for those weak enough to have a higher loyalty. for those in the corps who continue to labor and soldier on despite working conditions headed, like an interstate, ramrod straight toward 600... no, 700... decisions per year.... to you i tip my morning coffee with quiet respect, urging you to hold fast.... |
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Post by rockey on Jul 31, 2018 14:27:14 GMT -5
Oh, there will be no hiring alright, but it will be for longer than a year. And it isn't just due to a problem between SSA and OPM. Pixie I think a lawsuit on the expectancy of a job offer is a very thin reed on which to base standing in these federal times. For some reason, the following resonated with me as I drove some twisting mountain roads the other day (be sure to put the windows down and crank the volume): Acourse, there is really NO PROBLEM here for those who do not care as to the rightness of outcome or quality of work. this situation is only a problem for those weak enough to have a higher loyalty. for those in the corps who continue to labor and soldier on despite working conditions headed, like an interstate, ramrod straight toward 600... no, 700... decisions per year.... to you i tip my morning coffee with quiet respect, urging you to hold fast.... Given the amount of litigation in the past over ALJ hiring where standing wasn't an issue, it is difficult to believe alleging standing this time around would suddenly become problematic. |
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Post by Deleted on Jul 31, 2018 16:42:03 GMT -5
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Post by Thru Hiker on Jul 31, 2018 23:24:19 GMT -5
Any reduced chance of getting hired is usually enough in the employment law context. A race-discrimination plaintiff under Title VII doesn't have to show he or she would have been hired if the hiring authority hadn't considered race. Essentially, showing an unlawful employment practice is tantamount to showing prejudice (and standing). On the other hand, there could be circumstances where there is no standing. If challenging a particular hiring (say 30 by OHO), I think you might have to at least show you would have been "reachable" under the old system based on NOR and GAL of you and others on the register, otherwise it is certain you (not to say others) were not prejudiced by the change. gosh i stand (or sit) corrected. with my NOR I certainly was "reachable" given the polls in here, and my GAL was wide open. I do like to roam, after all. here are the links again, for those following this conversation: I count those like me who believe this country is better served by a merit-based civil service system as "not dead yet." have edited my post, and my cynicism, accordingly. |
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