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Post by recoveringalj on Oct 28, 2020 22:41:23 GMT -5
“I don't think you are giving sufficient consideration to how Article III judges would respond to an abuse of this, including Trump-appointed Article III judges/justices. I predict that they would not afford much deference to agency determinations that amount to little more than forcing adjudicators to decide cases in the way the administration wants them decided, on pain of losing their jobs, which is, after all, what the concern is, at least insofar as it relates to this Internet forum.”
One can hope Article III courts would act as a firewall, but one reason for these administrative forums is to increase access to justice. Very few of the cases that come before these forums make it to US district or circuit courts (some types of cases bypass district courts altogether) because individuals do not have the means to litigate there. And a typical remedy (years later?) in a successful case is a remand . . . back to the same administrative forum.
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Post by jimmyjiggles on Oct 29, 2020 10:09:39 GMT -5
I’m usually not in the “sky is falling” camp. While I agree this would have little effect on OHO (and ALJs), I disagree about “most others in adjudicative agencies.” And what makes this different from the previous references to civil service rules not applying is that 5 USC 7511 actually says that “confidential, policy-determining, policy-making, or policy-advocating positions” are not subject to the Chapter—leaving them with no pre-decision due process rights or right of appeal to the MSPB. It says the the President, OPM, or the agency head make the determination as to whether to designate a position as such. To make matters worse, the EO gives vague guideposts to consider and then says that they are not determinative and that other (non-specified) factors may be considered. This all may be academic depending on the outcome of the election...but the threat of blowing a massive hole in the merit system is real. Keep in mind, a new administration could decide it likes the EO just fine. And if AJs at the MSPB or EEOC get put into this category, will anyone have confidence that they can enforce the rules for everyone else without fear or favor? I don't think you are giving sufficient consideration to how Article III judges would respond to an abuse of this, including Trump-appointed Article III judges/justices. I predict that they would not afford much deference to agency determinations that amount to little more than forcing adjudicators to decide cases in the way the administration wants them decided, on pain of losing their jobs, which is, after all, what the concern is, at least insofar as it relates to this Internet forum. If you are talking a court review of a denied ssa claim, then I agree. Beating up on SSA ALJs is a bipartisan pastime at the USDC and Ct of Appeals. If you are talking actions arising from internal SSA dynamics/employee, then I disagree. In one dissent in Lucia, 3 justices indicated that all federal employment should be effectively at will. Since then two more justices have been added that appear to embrace this view. So I actually think its more likely that parts of the APA and Pendleton act get struck down as being a violation of separation of powers than the Court siding with an ALJ. |
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Post by neufenland on Oct 29, 2020 10:34:08 GMT -5
I don't think you are giving sufficient consideration to how Article III judges would respond to an abuse of this, including Trump-appointed Article III judges/justices. I predict that they would not afford much deference to agency determinations that amount to little more than forcing adjudicators to decide cases in the way the administration wants them decided, on pain of losing their jobs, which is, after all, what the concern is, at least insofar as it relates to this Internet forum. If you are talking a court review of a denied ssa claim, then I agree. Beating up on SSA ALJs is a bipartisan pastime at the USDC and Ct of Appeals. If you are talking actions arising from internal SSA dynamics/employee, then I disagree. In one dissent in Lucia, 3 justices indicated that all federal employment should be effectively at will. Since then two more justices have been added that appear to embrace this view. So I actually think its more likely that parts of the APA and Pendleton act get struck down as being a violation of separation of powers than the Court siding with an ALJ. Do you mean concurrence? I think only Sotomayor and RBG dissented in Lucia. EDIT: I looked it up and Breyer partially dissented. He stated it was problematic to address the appointments issue without addressing the "for cause" protection ALJs receive (because it muddies the waters later on, I guess, regarding the constitutionality of removal protections), but did agree that the SEC Judges were not properly appointed as per statutory requirements. Sotomayor and RBG thought the Judges were not inferior officers. |
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Post by jimmyjiggles on Oct 29, 2020 11:54:09 GMT -5
If you are talking a court review of a denied ssa claim, then I agree. Beating up on SSA ALJs is a bipartisan pastime at the USDC and Ct of Appeals. If you are talking actions arising from internal SSA dynamics/employee, then I disagree. In one dissent in Lucia, 3 justices indicated that all federal employment should be effectively at will. Since then two more justices have been added that appear to embrace this view. So I actually think its more likely that parts of the APA and Pendleton act get struck down as being a violation of separation of powers than the Court siding with an ALJ. Do you mean concurrence? I think only Sotomayor and RBG dissented in Lucia. EDIT: I looked it up and Breyer partially dissented. He stated it was problematic to address the appointments issue without addressing the "for cause" protection ALJs receive (because it muddies the waters later on, I guess, regarding the constitutionality of removal protections), but did agree that the SEC Judges were not properly appointed as per statutory requirements. Sotomayor and RBG thought the Judges were not inferior officers. Thank you sir, I did mean concurrence. I was referencing Thomas' concurrence, but was incorrect about two others joining - only Gorsuch did. I assumed Alito joined, but he did not, so that's somewhat intriguing in terms of where exactly his views are on this issue. It is probably worth a reread of Seila too, as I recall the majprity seemed to think institutional knowledge was a worthy goal, so there are probably some tea leaves in there that may suggest where this is headed, assuming Kavanaugh and ACB are with Thomas on this issue. |
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Post by christina on Oct 29, 2020 12:28:40 GMT -5
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Post by neufenland on Oct 29, 2020 20:43:04 GMT -5
Do you mean concurrence? I think only Sotomayor and RBG dissented in Lucia. EDIT: I looked it up and Breyer partially dissented. He stated it was problematic to address the appointments issue without addressing the "for cause" protection ALJs receive (because it muddies the waters later on, I guess, regarding the constitutionality of removal protections), but did agree that the SEC Judges were not properly appointed as per statutory requirements. Sotomayor and RBG thought the Judges were not inferior officers. Thank you sir, I did mean concurrence. I was referencing Thomas' concurrence, but was incorrect about two others joining - only Gorsuch did. I assumed Alito joined, but he did not, so that's somewhat intriguing in terms of where exactly his views are on this issue. It is probably worth a reread of Seila too, as I recall the majprity seemed to think institutional knowledge was a worthy goal, so there are probably some tea leaves in there that may suggest where this is headed, assuming Kavanaugh and ACB are with Thomas on this issue. If you're talking Humphrey's Executor-Thomas doesn't care about precedent. Kavanaugh is a bit warmer to it, I think, and he's previously said that there'd have to be something "more" than just a feeling that a previous decision was wrongly decided (he also said that he really likes beer). But, who knows? Barrett-anyone's guess. |
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Post by redsox1 on Nov 7, 2020 14:40:18 GMT -5
Hopefully the end of this EO after today.
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Post by jimmy224 on Nov 7, 2020 15:48:47 GMT -5
I fully anticipate Biden to rescind the schedule f executive order. What happens if folks get moved into schedule f before the inauguration? Do they just go back to their old jobs and get their old job security back once Biden rescinds the eo?
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Post by redsox1 on Nov 8, 2020 7:38:08 GMT -5
I fully anticipate Biden to rescind the schedule f executive order. What happens if folks get moved into schedule f before the inauguration? Do they just go back to their old jobs and get their old job security back once Biden rescinds the eo? Good question. Practically speaking though the report of candidates is due the day before the election so would be a tight timeline unless agency files it early. Hopefully, this will be the last thing on the administration’s collective mind. |
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Post by ssaogc on Nov 8, 2020 8:44:31 GMT -5
I fully anticipate Biden to rescind the schedule f executive order. What happens if folks get moved into schedule f before the inauguration? Do they just go back to their old jobs and get their old job security back once Biden rescinds the eo? Good question. Practically speaking though the report of candidates is due the day before the election so would be a tight timeline unless agency files it early. Hopefully, this will be the last thing on the administration’s collective mind. We may have OPM ALJ Program Office back up and running nypost.com/2020/11/08/biden-planning-executive-orders-to-reverse-trumps-policies-report/ |
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Post by nappyloxs on Nov 8, 2020 20:52:36 GMT -5
Given the new regulation allowing AAJs to hold hearings, it may not matter for wannabe SSA ALJs. TPTB’s argument for hiring AAJs instead of ALJs to POTUS-elect would be somewhat persuasive. |
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Post by roymcavoy on Nov 9, 2020 8:09:29 GMT -5
Pixie has said on hundreds of occasions that SSA wanted the authority to hire who it wants outside of the OPM process—so she can correct me if she thinks this is way outside the realm of possibility. There is no dire need for ALJs at the moment so I wouldn’t be surprised if there was a hybrid process created that requires Opm initial testing and somehow gives SSA authority to hire more along the lines of who it wants. Those 150 or so ALJ hopefuls who went to DC in summer 2018 had been previously screened and passed OPMs process, but then had to submit resume and an application packet from which SSA selected interviewees. I’d imagine SSA is happy with this type of setup (although I think there will probably be some readapting of the points system for ex-military) |
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Post by lurkerbelow on Nov 9, 2020 11:30:24 GMT -5
I swear, OPM ALJ procedures are worse than a zombie boss in a video game.
THEY WILL NOT DIE. EVER.
(in all seriousness, SSA will probably jump into the open slot here with positions and get out of the ALJ business)
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Post by nylawyer on Nov 22, 2020 9:44:44 GMT -5
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Post by recoveringalj on Nov 22, 2020 15:32:15 GMT -5
Short version—Head of OMB just stripped 88% of its workforce of merit system protections. I think people forget that the point of these protections isn’t to protect the employee from accountability, but to protect the taxpayer from the eventual incompetence and corruption that will inevitably result. |
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Post by jimmy224 on Nov 22, 2020 16:34:20 GMT -5
Short version—Head of OMB just stripped 88% of its workforce of merit system protections. I think people forget that the point of these protections isn’t to protect the employee from accountability, but to protect the taxpayer from the eventual incompetence and corruption that will inevitably result. It’s only temporary, though. Once Joe Biden becomes president, he will rescind the executive order and no more schedule f. |
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Post by lurkerbelow on Nov 22, 2020 21:22:16 GMT -5
I'll worry about it when SSA starts emailing me about it.
Other than that, I have blinders on at work atm. I am very grateful to have a job right now, and hope to continue this arrangement for quite some time.
Also, fear of the unknown is far greater than fear of the known. There's currently a number of alligators in the swamp. Someone better warn Pixie...
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Post by Pixie on Nov 23, 2020 9:51:00 GMT -5
I'll worry about it when SSA starts emailing me about it. Other than that, I have blinders on at work atm. I am very grateful to have a job right now, and hope to continue this arrangement for quite some time. Also, fear of the unknown is far greater than fear of the known. There's currently a number of alligators in the swamp. Someone better warn Pixie... I have been watching those alligators for a while now. Pixie |
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Post by roggenbier on Nov 25, 2020 17:40:25 GMT -5
A man is reminded when hears of Schedule E & F and “AAJs” of Cersei preparing to defend King’s Landing against the Dragon. It did not go well for Cersei, 1st of her name, as a man thinks it will not go well for those of E, F, and AAJ faces.
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Post by neufenland on Nov 25, 2020 22:36:26 GMT -5
A man is reminded when hears of Schedule E & F and “AAJs” of Cersei preparing to defend King’s Landing against the Dragon. It did not go well for Cersei, 1st of her name, as a man thinks it will not go well for those of E, F, and AAJ faces. Are we sure we're in Season 8? Because if this is Season 6, then Cersei is about to blow the hell out of the Sept of Baelor, and I hope the ALJs are not chilling in there with the High Sparrow and the Tyrells. |
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