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Post by ssaogc on Sept 5, 2020 7:24:28 GMT -5
We got briefed that we can Re start no show or untimely dismissals However now they go into a review status where manager can veto and overturn your decision to dismiss.
This is not in accordance with APA in my opinion. What is the remedy? Do not do dismissals?
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Post by lurkerbelow on Sept 5, 2020 8:32:53 GMT -5
I saw the same email and got similar training. My impression was that the QA critters were injected to verify that the dismissal had been done correctly. The goal appears to be to improve the quality of the dismissals. I did not see where management could tell SSA ALJs how to dismiss the case. Could you explain that one?
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Post by prescient on Sept 5, 2020 9:37:50 GMT -5
We got briefed that we can Re start no show or untimely dismissals However now they go into a review status where manager can veto and overturn your decision to dismiss. This is not in accordance with APA in my opinion. What is the remedy? Do not do dismissals? Obviously there is enormous concern that dismissing cases for failure to appear for a phone hearing that the claimant never agreed to is violating due process. The counter is the acknowledgement that continuing to reschedule cases where the claimant no shows is a waste of precious hearing slots. The only change is a requirement that address queries be checked and a NTSC in all cases. And waiting 30 days instead of 10 for a response. To help ensure these minor changes are followed all dismissals instead of a random sampling will be reviewed. Not seeing the big deal |
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Post by ssaogc on Sept 5, 2020 10:01:27 GMT -5
“If dismissal cannot be issued (my comment: this seems to be determined by QA), manager advises HOCALJ who discusses with ALJ, regarding taking other action, such as rescheduling, as appropriate”
Not a big deal in grand scheme of things but this is how it starts, a minor step and then a bigger step.
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Post by lurkerbelow on Sept 5, 2020 10:37:44 GMT -5
“If dismissal cannot be issued (my comment: this seems to be determined by QA), manager advises HOCALJ who discusses with ALJ, regarding taking other action, such as rescheduling, as appropriate” Not a big deal in grand scheme of things but this is how it starts, a minor step and then a bigger step. Perhaps, perhaps not. Nowhere in there does it state that the HOCALJ has to take a particular action. It may be they are trying to improve QC, or it may be that they are trying to erode independence. Given the current set of facts and taxes facing SSA, I don't think eroding SSA ALJ* independence in too high on their agenda. I guess I'm not saying it can't happen, but this may be chicken littling, like I did with the taxes. *But see this article for a possible way erosion of executive independence is occuring. |
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Post by bettrlatethannevr on Sept 5, 2020 11:43:10 GMT -5
I believe this is a very big concern. Extraordinary measures during a crisis tend to become bad lasting precedent around here. A dismissal may not be a big deal but it is a judicial decision. This seems like a gateway effort for management staffers to be able to prevent judges from issuing the merits decisions of their choice. Maybe the staffers could raise a “quality control” question and the ALJ would then do something different, fine. But ALJs, not management, have final authority over decision making.
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Post by hopefalj on Sept 5, 2020 11:48:43 GMT -5
We got briefed that we can Re start no show or untimely dismissals However now they go into a review status where manager can veto and overturn your decision to dismiss. This is not in accordance with APA in my opinion. What is the remedy? Do not do dismissals? I mean, I guess they can try to veto my decision to dismiss. Ultimately they can't do anything about it if I don't want them to. It's not hard to either ignore management's veto/suggestion or bypass the CPMS status where they pull them for review. If I sign a decision and dismissal and they pull it back unilaterally, I'll get to do my first grievance! Of course, the AC will probably do whatever management wants, but that's another matter altogether. |
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Post by ssaogc on Sept 5, 2020 12:15:49 GMT -5
We got briefed that we can Re start no show or untimely dismissals However now they go into a review status where manager can veto and overturn your decision to dismiss. This is not in accordance with APA in my opinion. What is the remedy? Do not do dismissals? I mean, I guess they can try to veto my decision to dismiss. Ultimately they can't do anything about it if I don't want them to. It's not hard to either ignore management's veto/suggestion or bypass the CPMS status where they pull them for review. If I sign a decision and dismissal and they pull it back unilaterally, I'll get to do my first grievance! Of course, the AC will probably do whatever management wants, but that's another matter altogether. The grievances are not going anywhere. If you have been getting the union emails you will see that the union is winning grievances and the agency just shrugs. the agency wants to remove all references to APA in our contract and it also wants to do away with out judicial independence article. A coincidence? Also, look at how they deal with out Union. They actually notify the representative organization and say nothing to the ALJ union about video hearings. They refuse to bargain on any changes to our work, including these new home video hearings so when you file a grievance there will be no APA or judicial independence in the contract to be violated. here is my concern if I dismiss after being “advised” I should take another action besides dismissal, will I then become a target for these focused reviews where they can pull samples of my prior hearings and nitpick them to portray me as being an unsatisfactory or underperforming ALJ? Call me an alarmist but I am concerned about the direction we are headed. |
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Post by hopefalj on Sept 5, 2020 13:04:49 GMT -5
I mean, I guess they can try to veto my decision to dismiss. Ultimately they can't do anything about it if I don't want them to. It's not hard to either ignore management's veto/suggestion or bypass the CPMS status where they pull them for review. If I sign a decision and dismissal and they pull it back unilaterally, I'll get to do my first grievance! Of course, the AC will probably do whatever management wants, but that's another matter altogether. The grievances are not going anywhere. If you have been getting the union emails you will see that the union is winning grievances and the agency just shrugs. the agency wants to remove all references to APA in our contract and it also wants to do away with out judicial independence article. A coincidence? Also, look at how they deal with out Union. They actually notify the representative organization and say nothing to the ALJ union about video hearings. They refuse to bargain on any changes to our work, including these new home video hearings so when you file a grievance there will be no APA or judicial independence in the contract to be violated. here is my concern if I dismiss after being “advised” I should take another action besides dismissal, will I then become a target for these focused reviews where they can pull samples of my prior hearings and nitpick them to portray me as being an unsatisfactory or underperforming ALJ? Call me an alarmist but I am concerned about the direction we are headed. There's nothing necessarily wrong with being an alarmist. The boy who cried wolf was eventually right.  I guess I'm indifferent about a focused review. I don't fudge time. I play well with others in the office. Pretty sure I'm in the top 25% in dispositions and affirmation rate nationally with no complaints or grievances filed against me by claimants or representatives, so good luck justifying whatever reason is generated to get rid of me. Besides, of they do take an adverse action against me or remove me, I'll continue drawing a full salary pending the outcome of my MSPB action, which should happen 4-5 years down the road if ever. My bigger concern might be a Lucia removal, I suppose. Not sure I want to be the guinea pig to see if the president can get rid of me without concern for the APA. |
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Post by nylawyer on Sept 5, 2020 22:58:31 GMT -5
“If dismissal cannot be issued (my comment: this seems to be determined by QA), manager advises HOCALJ who discusses with ALJ, regarding taking other action, such as rescheduling, as appropriate” Not a big deal in grand scheme of things but this is how it starts, a minor step and then a bigger step. Maybe I am being polly-anish about this, but I believe this is genuinely about protecting claimants and not about the ALJs. Then again, I also believe in Santa Claus. But that's a different thread. |
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Post by ssaogc on Sept 6, 2020 7:27:08 GMT -5
“If dismissal cannot be issued (my comment: this seems to be determined by QA), manager advises HOCALJ who discusses with ALJ, regarding taking other action, such as rescheduling, as appropriate” Not a big deal in grand scheme of things but this is how it starts, a minor step and then a bigger step. Maybe I am being polly-anish about this, but I believe this is genuinely about protecting claimants and not about the ALJs. Then again, I also believe in Santa Claus. But that's a different thread. Who are they protecting the claimants from? The ALJ that is required to protect their due process? Will this protection then also be instituted on unfavorable decisions ? Then perhaps a protection of the agency on favorables? I have got no issues with AC and court remands. I do make wrong decisions. But those decisions are made and the cases move on. They are not put into QC status and then my decision is “advised” to be re considered. Again this is a very small insignificant change in the grand scheme of things but as the old saying goes “give and inch and then they take a mile” |
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Post by lurkerbelow on Sept 6, 2020 9:46:27 GMT -5
Protection on favorable already occurs: QA and informal remand?
I'm confused, but this seems to be my default state of existence lately.
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Post by theadjudicator on Sept 6, 2020 18:50:46 GMT -5
Let's be honest, during the days of COVID-19 the "rocket dockets" no longer exist and it never hurts for someone to double check a dismissal to ensure it was done properly. It is just like it is a DW's responsibility to make sure a nonsensical decision is legally sufficient before it gets effectuated and sent to the payment center............... just saying.
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sta
Full Member
Posts: 82
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Post by sta on Sept 6, 2020 19:13:44 GMT -5
We got briefed that we can Re start no show or untimely dismissals However now they go into a review status where manager can veto and overturn your decision to dismiss. This is not in accordance with APA in my opinion. What is the remedy? Do not do dismissals? Obviously there is enormous concern that dismissing cases for failure to appear for a phone hearing that the claimant never agreed to is violating due process. The counter is the acknowledgement that continuing to reschedule cases where the claimant no shows is a waste of precious hearing slots. The only change is a requirement that address queries be checked and a NTSC in all cases. And waiting 30 days instead of 10 for a response. To help ensure these minor changes are followed all dismissals instead of a random sampling will be reviewed. Not seeing the big deal If the paragraph immediately above is accurate, in terms of how dismissals are being set up to be processed, it does not suggest that the ALJ's independence to decide cases is affected in a substantive way. A 2005 decision of the Court of Appeals for the Federal Circuit, which has jurisdiction over the MSPB and it's rules and regulations governing the removal of ALJs, specifically held that procedural steps in processing cases such as described above are not grounds for filing a charge of substantive removal, absent facts showing the ALJ was actually removed. This decision did away with a line of cases suggesting that constructive removal could be raised based on a claim of being disallowed judicial independence in how cases are procedurally processed. See casetext.com/case/tunik-v-merit-systems-protection-bd. The applicable discussion in Tunik v. MSPB, follows: "This leads us next to the question of whether the Board's new interpretation of section 7521 is permissible. Chevron, 467 U.S. at 843, 104 S.Ct. 2778; Mesa Verde, 861 F.2d at 1130-31. The Board justified its new interpretation on multiple grounds. Some of the Board's proffered justifications for adopting its new standard have been rejected supra, and there is no need to repeat them here. Because we conclude that the Board's interpretation of the plain language of section 7521 is reasonable based on the policy arguments it has advanced, we will focus on those arguments. The Board, in its Tunik decision, stated that 'if constructive removal means what the Board interpreted it to mean in Doyle, then an agency would have to first seek the Board's permission, with the opportunity for a full evidentiary hearing, every time it wants to take actions like the ones at issue here, which involve such things as case processing matters and training requirements. . . . We cannot believe that this sort of micromanagement, and the likely slowdown in the agency's work that it would cause, is what Congress intended when it used the word "removal" in 5 U.S.C. § 7521. Instead, the plain language of the statute shows that Congress intended to protect individuals from losing their positions as ALJs by requiring agencies to obtain the Board's permission before separating persons from ALJ positions. This gives ALJs greater protection than employees covered under section 7512 because an appeal from a section 7512 action may be brought only after the action has been taken. The additional protection afforded by section 7521 sufficiently safeguards the qualified judicial independence of an ALJ. Tunik, 93 M.S.P.R. at 492.' We agree with the Board that the plain language of section 7521 reasonably can be read to apply only to cases of actual separation from employment as an ALJ. As noted supra, both Sannier and Stephens recognized that the constructive removal doctrine went beyond the plain language of the statute. If anything, the more natural reading of section 7521 would preclude the constructive removal doctrine entirely. The Board's earlier contrary opinion in Doyle relied in part on the Court of Claims' decision in Benton v. United States, 203 Ct.Cl. 263, 488 F.2d 1017 (1973). Doyle, 29 M.S.P.R. at 174-75. In Benton, the Court of Claims held that subjecting a hearing examiner to involuntary retirement under the Civil Service Retirement Act constituted removal under section 11 of the APA. In its analysis, the court said, "We reach our conclusion in recognition of the fact that the APA was a sweeping piece of remedial legislation which was a long time in coming. For that reason, we think it should be given a broad and generous interpretation in light of the objectives sought to be accomplished." 488 F.2d at 1022. Benton, however, recognized that "removal" relates to an actual separation from employment and merely extended such removals to circumstances in which the reason for such separation was not disciplinary in nature. Id. at 1020-21. Similarly, this court's decision in Sannier cited Schultz v. United States Navy, 810 F.2d 1133 (Fed. Cir. 1987), as supporting a broad understanding of removal. However, Schultz held only that a voluntary resignation based on agency coercion constituted an adverse action. Id. at 1137. Thus, no decision of this court has construed section 7521 to cover anything other than actual separation from employment as an ALJ, except in the deferential context of Sannier and Stephens." |
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Post by lurkerbelow on Sept 8, 2020 13:34:54 GMT -5
Hearings where ALJs have to deal with a Lucia argument:  |
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Post by anderson on Sept 8, 2020 13:52:49 GMT -5
I believe this is a very big concern. Extraordinary measures during a crisis tend to become bad lasting precedent around here. A dismissal may not be a big deal but it is a judicial decision. This seems like a gateway effort for management staffers to be able to prevent judges from issuing the merits decisions of their choice. Maybe the staffers could raise a “quality control” question and the ALJ would then do something different, fine. But ALJs, not management, have final authority over decision making.I don't believe this to be true. SSA ALJs can make any decision they want, that brings about any outcome they want, and the Appeals Council (i.e. Management) can review any ALJ disposition/decision they want, and change the decision to bring about any outcome they want, and don't even have to remand it to the ALJ at all. The Appeal Council can change any ALJ decision they want to and override the ALJ's decision making. If I am wrong, please provide me a concrete example. It seems the reality of the APA is that not only does it lead the American public to believe they are getting an unbiased and fair administrative adjudication before federal agencies, but it also leads agency adjudicators (ALJs) to falsely believe that they can somehow force the agency they work for to comply with their decisions, made on it's behalf and without the agency being able to unilaterally change it. There's a regulatory-established process for appealing a dismissal to the Appeals Council, which is not the same as sending the dismissal to QA for their approval before it can be issued. |
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Post by bettrlatethannevr on Sept 8, 2020 14:10:59 GMT -5
My statement should have been clearer and said that judges have final authority over decision making at the hearing office. They do. Of course the decision can be changed by a subsequent action of the Appeals Council, District Court, etc.
The APA certainly allows an agency to reject an ALJ decision, but if the agency wishes to do so it must do so in daylight - in a manner where it explains to all relevant persons in writing specifically why it is rejecting the ALJ Decision. That seems to not be good enough for them anymore, as they now want to do so in darkness, in a manner in which no one will know that the ALJ believed the case should have been decided differently.
By analogy, an agency can pass whatever rule it wants, but can do so only after notice and invitation for public comment against the rule, so that interested persons (and reviewing courts) can be aware of the issues and how the agency reacted to the comments. In other words, in daylight. Here the agency not only wants to change the ALJ's decision, but also wants to do so secretly and require the judge to sign it as if it was his/her own decision, even if it was not.
I surely cannot (and would not want to) force the agency to comply with my decisions, but under law if they want to reject them they must do so in daylight and not darkness. The fact that they find this burden unacceptable is troubling.
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Post by theadjudicator on Sept 8, 2020 18:51:19 GMT -5
In recent years, SSA has appeared to approach these types of issues as if "one rotten apple spoils the barrel." Therefore, in order to keep things running smoothly with respect to properly issued dismissals and hearing slots (especially during COVID-19) members of (upper) management at OHO most likely want to ensure everything is done correctly the first time around w/o waiting for the AC to send it back months (possibly many months) later, if applicable.
In my experience, SSA tends to look at things from the standpoint of the lowest common denominator and assume everyone fits that description. So, in other words, the apple that may or may not have rotted has already ruined the barrel and everyone pays for that silly little apple 🍎 or 🍎s.
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Post by Loopstok on Sept 10, 2020 22:25:37 GMT -5
Hearings where ALJs have to deal with a Lucia argument: My dream response to the Lucia argument would be, if an attorney argues that ALJs are not Constitutionally authorized to hear or decide cases -- but it's the attorney who requested the ALJ hearing in the first place -- to ask if they're withdrawing the request for hearing (thus reinstating the State Agency determination). But internal guidance is that we just note the argument and not engage in any discussion. Like so many of my best ripostes, they have to remain in my imagination and not enter the record. |
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Post by nappyloxs on Sept 16, 2020 20:51:05 GMT -5
Hearings where ALJs have to deal with a Lucia argument: My dream response to the Lucia argument would be, if an attorney argues that ALJs are not Constitutionally authorized to hear or decide cases -- but it's the attorney who requested the ALJ hearing in the first place -- to ask if they're withdrawing the request for hearing (thus reinstating the State Agency determination). But internal guidance is that we just note the argument and not engage in any discussion. Like so many of my best ripostes, they have to remain in my imagination and not enter the record. 1) It is not attorney who is requesting a hearing before an ALJ, it is the claimant. Attorney may have filed on behalf of the claimant. 2) Lucia argument is not that ALJs are not constitutionality authorized to hear or decide cases. It is not all ALJs, just some ALJs. It is that you, as currently appointed, are not authorized to hear or decide cases while properly appointed ALJs can hear and decide the case. Shoot, even SAAs can adjudicate favorables. |
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