OPM backs off active status reg.

[globalpanda]

Jul 17, 2008 12:17:14 GMT -5 nylawyer said:

out of curiousity- what is the logic for NOT requiring ALJ's to have active bar status? I understand that for current ALJ's, changing the rules midstream creates a problem, but assuming you grandfathered in everyone who is currently already an ALJ, what would be the problem with requiring ALJ's to maintain an active bar status?

Because behavior like that described would be logical, efficient, and oh so un Social Security.

[deltajudge]

8-)Well, common sense reigns. When I became an ALJ, I applied to my state bar to become inactive, because simply, I could no longer practice law ethically or legally. I was granted that status. Then OPM in its great wisdom along with the those that be in OHA decided you needed to have an active license, even though the CALJ in a memo in years past said it was not necessary. So basically what you have, is a bunch of idiots with no legal experience, trying to manage professionals. Apparently OPM has come around and realized that.

[judicature]

Expect OPM to come up with another rule that more precisely defines what is required - active, inactive, judicial, whatever. You can bet that it will more closely evaluate how the federal bench and state benches manage this issue.

[pm]

I haven't seen anyone anywhere arguing that they should be allowed to let their licenses lapse. I haven't seen any post nor any new article that says that ALJs are not holding onto their law licenses. It appears you are making the same incorrect assumption that others have - that being inactive is the same as losing your license. In every state of which I am aware, if you are inactive, you ARE a member of the bar. MANY state court judges are inactive in various states.

[pm]

Jul 17, 2008 21:50:02 GMT -5 morgullord said:

I may break down and weep for the poor ALJs who are so financially strapped that they cannot pay active bar dues or CLE.

I haven't seen anyone say that they couldn't pay the dues. I have seen people say they would rather not pay the dues, which is a different issue. You may want to work on issue spotting before your next WD or SI.

And if $500 plus another $1000 or so for CLE means nothing to you, why not send a check for that amount to Pediatric AIDs and another to the American Indian College Fund, both worthwhile charities. Let us know when the checks go out, or are you too financially strapped to support those worthwhile causes?

Part of the problem people have with paying $1500 to maintain active bar membership is that it is like throwing money down a rathole. If we all had to pay that sum to a worthwhile cause, it would be a different issue. Your attitude in this respect probably depends on the Bars you belong to. California for example has an adversarial relationship with its members while Washington state and Missouri apparently try to serve their members, a concept completely foreign to those who run the Cal Bar.

[extang]

Somebody who has been around longer than I have or has a better memory may be able to correct the following, which I believe to be a more or less accurate historical version:

Years ago somebody suggested that since OHA required bar membership, maybe SSA should pay the bar dues. OHA management could have said, e.g., no, we're not going to do that because we don't feel like it and you can't make us, a perfectly reasonable response . In typical muddleheaded OHA management fashion, however, the then Chief ALJ issued a memo saying that ALJs were not required to be active dues paying members. Relying on guidance from the very highest level of OHA management, many ALJs gave up active bar membership. That is the real origin of the problem. If OHA or OPM or whoever had been clear all along that active membership was required, there would have been no problem.

I am more than willing and am even eager to have my version of the history of this issue corrected by anybody who knows better.

[hooligan]

Jul 20, 2008 13:50:09 GMT -5 pm said:

California for example has an adversarial relationship with its members while Washington state and Missouri apparently try to serve their members, a concept completely foreign to those who run the Cal Bar.

I believe you are wrong about California. The California Bar allows Federal Administrative Law Judges to hold either Active or Inactive status. Both are considered to be in good standing. Members can request to move between either status without any additional exam. Both categories allow an exemption from CLE requirements. The key difference is the label and the annual fee. It costs roughly $300 per year more to be designated as Active. To be Inactive, you can not practice law, which we are precluded from doing by our job description anyway. There is no substantive difference between the two classifications as it relates to being a federal administrative law judge.

[morgullord]

PM, if it is not a money issue, then what is it? Is it the hardship of travel? Delta is ready when you are. My JAG friends in Iraq and Afghanistan manage to keep active status and complete CLE requirements.

OPM is trying to bring ALJs under the same professional standards as other attorneys employed by Uncle Sam. That does not interfere with "judicial independence". Or is it that ALJs are "special"? BTW, I have heard that argument before, usually in regard to time and attendance abuse.

[batboy]

Morgullord,

You have a basic misunderstanding. ALJs are not government attorneys. They are judges and are categorized as such, so they are in a different category. In my state (California), attorneys who practice law (private or government attorneys) must be active. Judical officers, including federal ALJs, are not required to be active. We are permitted to be "inactive" members in good standing. All we have to do to go active is to pay the active fee for the year. It makes no sense to say that we have to be active when the state allows us and all other judges to be inactive.

[ruonthelist]

Jul 21, 2008 7:10:23 GMT -5 morgullord said:

PM, if it is not a money issue, then what is it? Is it the hardship of travel? Delta is ready when you are. My JAG friends in Iraq and Afghanistan manage to keep active status and complete CLE requirements.

Morgullord: I agree with you up to a point. When I became an ALJ it was explained to me that the agency would not let me use duty time to attend CLE to maintain my license because SSA policy was that ALJs did not have to be active, and that if I didn't want to attend the CLE required to maintain my active status I could go inactive with my state bar. I chose to maintain my bar status and use credit hours or leave to go to the CLE that my state requires. For me it was a self-respect issue. I worked hard to achieve the status of full-fledged member of the bar and I was not willing to give it up.

However, I am glad that OPM has re-opened comment on the rule, because it was an inartfully drafted rule that will hopefully be improved the second time around.

For example, you cite the situation of your JAG friends. OPM was not so solicitous of that community, at least not without outside pressure. The draft rule in the original NPRM would have excluded service as a counsel or military judge in courts-martial from the qualifying experience to be an ALJ. During the comment period the judge advocates general of the five services sent a joint letter to OPM requesting that it be changed. That is one of the few comments that OPM adopted in the final rule. If not for a sharp-eyed staff officer in the Office of the Judge Advocate General OPM would have excluded your JAG friends (and mine) from consideration for appointment as ALJs.

The final rule did not exclude JAG service, but it may have excluded state court judges. The rule allows judicial status to substitute for active status if the state does not allow judges to be active members. How many states fall into that category? I don't know and more to the point, neither does OPM. They outsourced one aspect of defining the qualifications to the states without knowing or caring about the variety of actual state practices. It is clear from their impatient responses to comments that they did not want to be told about the problems that would arise from the application of their rule to membership categories as they exist in the various states.

There are at least four possible categories of state membership status for judges:
1. no separate status, judges remain active bar members
2. separate judicial status, nothing in the rules about whether judges can opt to be active members
3. separate judicial status, the rules specifically prohibit judges from being active members
4. no separate judicial status, but judges are listed by some adjective other than either "active" or "judicial"

Under OPM's rule sitting state court judges who apply to be ALJs will be considered if their states have rules 1 or 3, and rejected if they have 2 or 4. I don't have personal knowledge of any sitting judge being rejected when the register was reopened, but the way that the final rule was drafted certainly allowed for it.

Excluding sitting judges from consideration, and doing so on as arbitrary a basis as the wording of the bar membership rules of individual states, was presumably not OPM's intention, any more than excluding military trial experience. Both were unintended consequences of not being aware of all the implications of the draft rule. Except for the comment from the service JAGs, OPM disregarded almost all of the comments in the first comment period. I hope that they will pay more attention during this second comment period, and that a better rule will result.

[deltajudge]

8-)I never let my license lapse, although a lot of ALJs did. I paid inactive duess, and all I had to do was update my CLE to become active again. Went through that when we were given judicial exemption. OPM couldn't get a handle on that, because they didn't have a clue what they were dealing with.

[Propmaster]

PM is on fire in this topic. Your posts are really good here, PM, and brought up a lot of important points. I think the problem may be a perception that some ALJ's don't in fact, have any kind of bar status - that they have let it "lapse" altogether.

It is certainly arguable that ALJ's are not "lawyers," and should not even need licenses, but it sits poorly with me nonetheless.

I also understand that ODAR does its own training - can that ever count as CLE credit work? Is it possible that ALJ's are being adequately trained?

[southerner]

In New Orleans and Metairie (Louisiana), the ODAR instructional tapes or IVT's could be utilized for CLE purposes. The State Bar had approved of that at least 8 years ago.