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Post by aljsouth on Aug 22, 2008 15:46:51 GMT -5
From the AALJ board:
Attached please find a draft SSA legislative proposal, presented by Michael Astrue to Nancy Pelosi, that would amend the Civil Service Reform Act of 1978 to create authority for SSA to take IMMEDIATE disciplinary action against Administrative Law Judges (ALJs) who have committed crimes, been disbarred, or been found to have discriminated against or harassed individuals WITHOUT REQUIRING A "GOOD CAUSE" PRE-DISCIPLINE MSPB HEARING [ALJ to have the right to a post-discipline appeal to the MSPB; "discipline" undefined and therefore, by necessary inference, to include removals]!!!
OMB has sent this notice to all agencies employing ALJs for comment. Agency deadline to comment is August 26, 2008.
....
A BILL
To amend the Civil Service Reform Act of 1978 to enact changes related to actions against administrative law judges.
Be it enacted bytheSenate and House of
Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE.
Short Title.--This Act may be cited as the "Civil Service Reform Act Amendments of 2009".
TITLE X—PROVISIONS RELATING TO
ADMINISTRATIVE LAW JUDGES , SEC. 101 ACTIONS AGAINST ADMINISTRATIVE LAW JUDGES.
(a) Section 7521 of the Civil Service Reform Act (5 U.S.C. 7521) is amended—
(1) in subsection (a), by striking "An" and
inserting "Except as provided in subsection (c), an";
(2) in subsection(b), by striking "this
section" and inserting "subsection(a)"; and
(3) by adding at the end the following new
subsections:
"{c) To ensure the integrity and impartiality of the position of administrative law judge, an agency may immediately discipline any administrative law judge appointed under section 3105 of this title without prior good cause established by the Merit System Protection Board when an administrative law judge:
"(1) is indicted or convicted of a crime for which a sentence of imprisonment may be imposed under state or Federal law;
"(2) is disbarred or suspended from the practice of law by any State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution;
"{3} is found by a state or Federal court, or by an administrative tribunal charged with enforcing discrimination laws, to have discriminated against an individual in a protected class, showed disrespect to an individual in a protected class, committed discriminatory physical or verbal conduct against a protected class member, or committed sexual harassment; or
"(4) is indicted or convicted of a misdemeanor involving fraud, theft, assault, physical violence, prostitution, solicitation, sexual misconduct, or an offense involving narcotics or is found civilly liable for engaging in one or more of these activities. "(d) An administrative law judge disciplined under subsection(c) is entitled to the protections provided employees under section 7513 of this title.",
(b) Effective Date.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to agency actions filed on or after such date.
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Technically traffic offenses carry jail time, hardly ever given but carry possible time.
Also, unspecified administrative tribunals [no doubt one to be established by SSA] that can find ALJ guilty of discrimination against a claimant.
This already happened in one case rejected by MSPB, when the appeals council decided ALJ was guilty. ALJ was given no notice of any charge and no opportunity to be heard. Under Astrue's legislation ALJ would be fired with no opportunity of hearing until months later. GITMO here we come! Get ready for water boarding.
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Post by bettrlatethannevr on Aug 23, 2008 13:03:09 GMT -5
Agreed, wilddog and many others who have addressed APA issues here are on the mark in my view. Everyone who cares (which is certainly at least most people) wants to move the backlog. Let's allow some time for e-folders, new judges, OTR reviews and other productive-enhancement measures to take hold before even thinking about messing with any aspect of the APA. Underperforming ALJs can be addressed without changing APA tenure issues, holding more hearings can be addressed without giving ALJs time limits on hearings through agency scheduling, etc. Lose the bath water but keep the baby.
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Post by southerner on Aug 23, 2008 13:37:31 GMT -5
I concur with WD and BLTN. Mere indictment or an administrative tribunal finding as to discrimination falls well below the current threshold for institution of disciplinary action w/o meaningful prior MSPB review. The proposed language should concern all who value an independent judiciary and the legal meaning of due process.
If the PTB are concerned about production, I would suggest waiting till more of the newbie ALJ's are at full pace and are fully staffed. The proposed statutory language should not be a substitute for diminished production by a minority of individuals.
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Post by aljsouth on Aug 23, 2008 16:26:37 GMT -5
For most of the offenses the COSS lists in his plan, it would be easy to win a MSPB action. SSA is too lazy to do the work. Also, he simply want to do away with any protection for any employees and rule by fiat.
They are planning to outsource sending of notices and outsource scheduling. COSS is proposing new regs taking the authority to set the time and place of the hearing from the judges and give it to the managers in the agency (read outsourced). It is the ultimate republican dream, outsource all governement functions to the private sector.
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Post by deltajudge on Aug 23, 2008 22:22:18 GMT -5
8-)I really think the Baltimorons would really love to be shed of the APA and ALJs. This proposal will not remove APA protection of ALJs, but could be a foot in the door. If you read it carefully, there are some loopholes. Be sure you comment in the time you have.
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Post by lurker on Aug 24, 2008 7:48:56 GMT -5
For most of the offenses the COSS lists in his plan, it would be easy to win a MSPB action. SSA is too lazy to do the work. Also, he simply want to do away with any protection for any employees and rule by fiat. They are planning to outsource sending of notices and outsource scheduling. COSS is proposing new regs taking the authority to set the time and place of the hearing from the judges and give it to the managers in the agency (read outsourced). It is the ultimate republican dream, outsource all governement functions to the private sector. I think you are right about the fact that these offenses are ones where, if the process is followed, the agency would prevail at an MSPB hearing. This proposal, and the proposed reg change allowing SSA, rather than the ALJ, to set the time and the date of the hearing, are troubling. What do we do to oppose them? Does anyone know if the AALJ has responded or whether they are planning to respond? (This is where I want to see the union spending it's energy - as opposed to challenging the test on theories of advance notice). |
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Post by extang on Aug 24, 2008 7:56:47 GMT -5
A comment for those of us old enough to remember Johnny Mathis songs: "waiting till ... the newbie ALJ's .... are fully staffed" would be waiting until the twelfth of Never, and "that's a long, long time," as Johnny would say [or sing].
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mango
Full Member
Posts: 50 
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Post by mango on Aug 24, 2008 9:37:39 GMT -5
While I agree the language could be better, in my limited experience, jail does not equate to prison and I see nothing that refers to production or performance. That said, I certainly agree we should comment on this proposal and the proposed change to scheduling mentioned above. I think there is a comment period for any such changes and certainly a letter to the chairs of the respective committees would be in order. The question is how many of us will write and how many just sit back and complain.
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Post by aljsouth on Aug 24, 2008 10:05:56 GMT -5
For most of the offenses the COSS lists in his plan, it would be easy to win a MSPB action. SSA is too lazy to do the work. Also, he simply want to do away with any protection for any employees and rule by fiat. They are planning to outsource sending of notices and outsource scheduling. COSS is proposing new regs taking the authority to set the time and place of the hearing from the judges and give it to the managers in the agency (read outsourced). It is the ultimate republican dream, outsource all government functions to the private sector. I think you are right about the fact that these offenses are ones where, if the process is followed, the agency would prevail at an MSPB hearing. This proposal, and the proposed reg change allowing SSA, rather than the ALJ, to set the time and the date of the hearing, are troubling. What do we do to oppose them? Does anyone know if the AALJ has responded or whether they are planning to respond? (This is where I want to see the union spending it's energy - as opposed to challenging the test on theories of advance notice). I agree about use of union resources. Most of the membership supported the first part of the suit -- requiring ALJ's to retain active status as opposed to good standing-- but the rest of the suit was not circulated to local reps. I know my regional VP is aware and will support action. Failure of the union board to take some sort of action will doom the present leadership of the union. An action might lie since SSA has agreed in collective bargaining that the ALJ will set the time and place of the hearing. There is a signed agreement to this. |
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Post by happy on Aug 24, 2008 21:56:07 GMT -5
A few comments.
Would it be a dangerous presumption to think that the ALJ would still have the discretion to designate which cases are and are not ready to be heard? More dangerous still to think that an ALJ would have discretion to indicate when he/she would be available to go to a particular site?
As for the collective bargaining agreement, I don't see an abrogation here unless/until the Agency actually insists on scheduling an ALJ's case against his will. Even if the APA is modified, the Agency can still yield through negotiation those rights otherwise afforded to it under legislation.
That being said, I agree that the Union should comment and will be disappointed if I don't hear about some serious lobbying.
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Post by okeydokey on Aug 24, 2008 22:45:20 GMT -5
Notice that the COSS does not propose that he be given the ability to remove an ALJ if the ALJ is indicted, he is merely asking for the ability to take an adverse action against an ALJ. Anyone slightly familiar with MSPB practice would recognize that the COSS wants to be able to suspend indefinitely ALJ's if it would promote the efficiency of the service. That is what he can do to non-ALJ employees.
Some examples. If an ALJ is indicted for murder, perhaps we would want him or her not deciding cases until the conclusion of the criminal matter. Same for alleged child molestors (would you want an alleged child molestor in charge of your child's hearing?).
And, also notice that the COSS is not asking for the power to take action if he believes that the ALJ committed the crime. Rather, if a disinterested party decides that there is probable cause to believe an ALJ committed a crime, the COSS may take action.
IMHO, this is not an attack on the APA, it is an attempt to protect the system.
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Post by aljsouth on Aug 25, 2008 8:40:03 GMT -5
Notice that the COSS does not propose that he be given the ability to remove an ALJ if the ALJ is indicted, he is merely asking for the ability to take an adverse action against an ALJ. Anyone slightly familiar with MSPB practice would recognize that the COSS wants to be able to suspend indefinitely ALJ's if it would promote the efficiency of the service. That is what he can do to non-ALJ employees. Some examples. If an ALJ is indicted for murder, perhaps we would want him or her not deciding cases until the conclusion of the criminal matter. Same for alleged child molestors (would you want an alleged child molestor in charge of your child's hearing?). And, also notice that the COSS is not asking for the power to take action if he believes that the ALJ committed the crime. Rather, if a disinterested party decides that there is probable cause to believe an ALJ committed a crime, the COSS may take action. IMHO, this is not an attack on the APA, it is an attempt to protect the system. Since no one can remember any ALJ indicted for such offenses, why the urgent need to "protect" the system. If COSS wanted to proposed a method of suspension in performance of duties (as is done in most state systems) pending MSPB, why not say that. The proposal says nothing about that. Why the vague language about any adminstrative tribunal (which would include one established by SSA) that found an ALJ had shown disrespect (whatever that is) to anyone. No, this is not someone seeing urgent need to "protect" the system. There is no assualt upon the existing system. Only the COSS's attempted changes in the APA and in taking away the ALJ's right to schedule cases challenges the system. GAO found the problems at SSA flow from underfunding, understaffing and mismanagement by the agency. |
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Post by belgrade on Aug 25, 2008 9:57:11 GMT -5
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Post by oldjag on Aug 25, 2008 10:30:36 GMT -5
There have been several judges who have been on "administrative leave" with pay for shockingly long periods of time while the MSPB handled the complaint. Fortunately only one that I know of was indicted, but that judge received full pay for quite awhile while the criminal case went on and after until the MSPB ruled. One judge was on leave with pay for years and another dragged the matter out for months by not cooperating etc.
What the COSS is trying to do is allow SSA to remove the judge from pay status while the complaint is going through the long MSPB process. While some of the reasons in the NPR are rather vague and overly broad, the underlying principle is sound. I, for one, hate to see "bad" judges rewarded with months or even years of paid vacation for doing something that would justify their removal.
I do agree that some of the language is too vague and broad and needs to be tightened in the final rule. Anyone who wishes to make comments can do so.
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Post by workdrone on Aug 25, 2008 12:46:38 GMT -5
I do agree that some of the language is too vague and broad and needs to be tightened in the final rule. Anyone who wishes to make comments can do so. Agreed. I think no one would contend that an ALJ convicted of a felony or disbarred by his/her state bar should stay in pay status for a year or more while the MSPB disciplinary case goes through the pipeline after the conviction/disbarrment has already been issued. However, things get a bit more complicated when you start talking about the indictment stage. There should be a happy medium somewhere between the two ends by tightening up the statutory language. I would expect some version of this proposal to pass. The million dollar question is how draconian the final version going to be (the current version does have some vague languages that can be exploited by management). So for all interested parties, they should make comments and exercise whatever Congressional lobbying power they got if this is important to them.  |
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Post by lawandorder on Aug 25, 2008 13:15:50 GMT -5
From the AALJ board: TITLE X—PROVISIONS RELATING TO ADMINISTRATIVE LAW JUDGES , SEC. 101 ACTIONS AGAINST ADMINISTRATIVE LAW JUDGES. c) To ensure the integrity and impartiality of the position of administrative law judge, an agency may immediately discipline any administrative law judge appointed under section 3105 of this title without prior good cause established by the Merit System Protection Board when an administrative law judge: "(1) is indicted or convicted of a crime for which a sentence of imprisonment may be imposed under state or Federal law;[/b]
"(2) is disbarred or suspended from the practice of law by any State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution;
"{3} is found by a state or Federal court, or by an administrative tribunal charged with enforcing discrimination laws, to have discriminated against an individual in a protected class, showed disrespect to an individual in a protected class, committed discriminatory physical or verbal conduct against a protected class member, or committed sexual harassment; or
"(4) is indicted or convicted of a misdemeanor involving fraud, theft, assault, physical violence, prostitution, solicitation, sexual misconduct, or an offense involving narcotics or is found civilly liable for engaging in one or more of these activities. "(d) An administrative law judge disciplined under subsection(c) is entitled to the protections provided employees under section 7513 of this title.&[/b]quot;,
(b) Effective Date.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to agency actions filed on or after such date.
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I find the language here extremely vague. Particularly, items (1) and (4) most likely could not pass constitutional muster. There are a number of misdemeanors that carry prison time (.e., cigarette smoking in non-designated places, etc....). More specifics are needed. Also, item 4 is too vague. Every citizen, including ALJ's, have a constitutional presumption of innocence after being indicted. In the criminal field, you are innocent until proven guilty. A problem also arises with the part that says "or is found civilly liable for engaging in one or more of these activities". In a civil case, the quatum of proof is lesser than in a criminal case.  |
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Post by workdrone on Aug 25, 2008 16:48:20 GMT -5
In a civil case, the quatum of proof is lesser than in a criminal case. To be removed as an ALJ by the MSPB, the agency only has to establish good cause for removal by a preponderance of the evidence[/b]. So any standard of proof at the preponderance level or high will probably suffice. |
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Post by deltajudge on Aug 28, 2008 10:35:31 GMT -5
:(Pixie jumped on me, and I've straightened up. You ALJs go out there and try to give those claimants some due process. As I've said here before, ALJs are going out there hearing raw or unpulled cases. The denials go on the back bench until they are pulled. the pay cases go out the door. That's good and bad news for you SSA practioners, your appeal cases linger, but I guess you can hopefully live on the pay cases.
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Post by jagghagg on Sept 2, 2008 12:44:39 GMT -5
Y'all might be interested in the FALJC Letter on Proposed Discipline:
****
August 25, 2008
VIA E-MAIL AND U.S. MAIL
The Honorable Nancy Pelosi
Speaker of the House of Representatives
H-232, U.S. Capitol
Washington, D.C. 20515 The Honorable Harry Reid
Senate Majority Leader
528 Hart Senate Office Building
Washington, D.C. 20510
RE: SSA Commissioner Astrue’s Draft Bill on Civil Service Reform Act Amendments (LRM RCS-110-151)
Madam Speaker and Majority Leader Reid:
The Federal Administrative Law Judges Conference (FALJC), of which I am President, is a voluntary professional association, organized over 60 years ago for the purpose of improving the administrative judicial process, presenting educational programs to enhance the judicial skills of Administrative Law Judges, and representing the concerns of Federal Administrative Law Judges in matters affecting the administrative judiciary. The membership of the Conference includes Judges from almost every administrative agency which employs Administrative Law Judges.
It has come to the attention of FALJC that Michael J. Astrue, the Commissioner of Social Security, sent you a bill proposal that would allow all agencies in certain instances to immediately “discipline” ALJs who work for them without a prior finding of good cause established by the Merit Systems Protection Board. FALJC strongly opposes this proposal.
Under the current law, Administrative Law Judges are subject to agency discipline for most conduct and productivity problems just like any other government employee. However, an action against an Administrative Law Judge leading to removal, suspension, reduction in grade, reduction in pay, or furlough of 30 days or less, may be taken by his or her agency only for good cause established and determined by the Merit Systems Protection Board (MSPB) on the record after opportunity for hearing before the Board. The current law allows only three exceptions to the requirement that an agency show
good cause before the MSPB before firing or otherwise disciplining an ALJ: a suspension or removal in the interests of national security under 5 U.S.C. § 7532, a reduction-in-force action under 5 U.S.C. § 3502, or any action initiated by the Special Counsel under 5 U.S.C. § 1215 for (1) committing a prohibited personnel practice, (2) violating a law, rule or regulation, or engaging in other conduct that is within the jurisdiction of the Special Counsel under 5 U.S.C. § 1216, or (3) knowingly and willfully violating an MSPB order.
Commissioner Astrue proposes to upend this procedure by allowing any agency to “discipline” its ALJs without an MSPB finding of good cause whenever an ALJ (i) is indicted or convicted of an imprisonable crime; (ii) is disbarred or suspended from the practice of law; (iii) is found by a court or administrative tribunal “to have discriminated against an individual in a protected class, showed disrespect to an individual in a protected class, committed discriminatory physical or verbal conduct against a protected class member, or committed sexual harassment;” or (iv) “is indicted or convicted of a misdemeanor involving fraud, theft, assault, physical violence, prostitution, solicitation, sexual misconduct, or an offense involving narcotics or is found civilly liable for engaging in one or more of these activities.”
Commissioner Astrue’s proposal is ill-considered, unwise, irrational and unreasonably punitive. His explanatory letter offers absolutely no rational basis for it. “Reducing the disability backlog,” as the Commissioner recites, is certainly no reason for it. The Social Security Administration already disciplines its Administrative Law Judges for conduct and performance infractions by a variety of methods, several of which do not require an MSPB finding of good cause, including counseling and oral and written reprimands. Commissioner Astrue has offered no evidence that these methods do not work.
The proposal vaguely calls for “discipline” for certain types of offenses but does not explain what form that “discipline” may take. Presumably, that “discipline” would include the specific punishments that the current law prohibits without an MSPB finding of good cause. The proposal does not even indicate which should come first, the agency’s “discipline” or an MSPB determination of good cause.
Commissioner Astrue’s idea crosses the line not only by expanding what punishments may be meted out without showing good cause, but also by contracting the nature of offenses that otherwise call for due process. It calls for “discipline” without a showing of good cause upon an indictment for a crime, not just a conviction, even though indictments are not in and of themselves proof of anything. The proposal also allows for “discipline” without a showing of good cause in instances of civil liability, not just criminal liability, for which standards of proof are much lower and inappropriate for punishing egregious behavior.
As for “discipline” without a showing of good cause upon being found to have shown “disrespect” to someone or some class of individuals, Commissioner Astrue’s idea goes far beyond the boundaries of good sense. Administrative Law Judges are by the very nature of their jobs susceptible to accusations of this sort in many circumstances and should not be singled out for harsh agency punishment in such cases without due process. To give one example, in Social Security cases, claimants unhappy with their case outcomes sometimes make accusations of bias and mistreatment that may be unfounded. SSA hypothetically could use such complaints to get rid of ALJs for political, case outcome, or retaliatory reasons.
Commissioner Astrue’s proposal allows for “discipline” without a hearing or finding of good cause in a variety of circumstances that, if anything, should not lead to “discipline” unless there is proper notice, an opportunity for hearing, and a showing of good cause. The hallmark of “due process” is the right to a hearing on the record, which the subject proposal eliminates. Strangest of all, this proposal singles out Administrative Law Judges for a unique form of punishment from those whom the Administrative Procedure Act (APA) expressly forbids so acting—the very agencies for which ALJs are required to render independent, impartial initial decisions without regard to agency pressure or politics. The proposal attempts to destroy one of the most important features of the ALJs’ decisional independence in the APA: protection from agency discipline or dismissal without accountability to the MSPB.
Administrative Law Judges who are found guilty of committing the offenses that Commissioner Astrue lists in his proposal are subject to ample punishment under the laws of the United States, just as any recalcitrant public official would be. For such conduct, they are also subject to specific disciplinary actions by the Merit Systems Protection Board upon a finding of good cause. There is no need to impose a needless in terrorem provision on Administrative Law Judges beyond the more-than-adequate provisions of civil and criminal law.
For the foregoing reasons, FALJC respectfully opposes this measure.
Very truly yours,
Judge Steven A. Glazer
President
THE FEDERAL ADMINISTRATIVE
LAW JUDGES CONFERENCE
Cc: Ms. Rachel Shoemate
Executive Office of the President
Office of Management and Budget
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