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Post by carjack on Feb 9, 2009 17:27:18 GMT -5
I've seen some references to ALJs being removed or dismissed after it was discovered that they officially lied or exaggerated. I was wondering if anyone had any anecdotal evidence they could share as to the extent or circumstances of someone they knew or heard of getting sent packing before they had any right to an administrative hearing.
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Post by odarite on Feb 9, 2009 21:14:08 GMT -5
I don't think so. I can imagine scenarios where the ALJ may choose (or has chosen) to retire (or I suppose resign) before the case goes to the MSPB, but I cannot imagine any scenario where the ALJ does not have the right to pursue removal to the MSPB.
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mango
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Post by mango on Feb 9, 2009 21:24:21 GMT -5
Once appointed there is no simple way to dismiss an ALJ. It is a permanent non-probationary appointment.
I was told by a senior alj of a case where an new alj misrepresented a fact on the application and received a suspension without pay (30 days I think). My understanding was that it was an agreed upon disposition. Best advice is to be candid when answering all questions.
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Post by morgullord on Feb 10, 2009 8:29:32 GMT -5
An ALJ under investigation is usually placed on administrative leave, or if the case is particularly egregious, leave without pay, pending a hearing or other resolution. "Sent packing" was probably administrative leave. They take judge's key to the office and
give him a written order forbidding him from showing up without the prior express approval
of the HOCALJ.
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jcse
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Post by jcse on Feb 10, 2009 8:44:00 GMT -5
This has happened twice to my knowledge in the region where I practice. In both cases, the ALJ was dismissed by the OCALJ in Falls Church and left that day. Rumor has it that they received pay while their appeals were pending, which dragged on for years. One of the ALJs was removed because he allegedly lied on his application, either about his education, license, or some other material fact. The other was removed by misconduct. Both these incidents happened years ago, and neither ALJ has yet returned to work.
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Post by zero on Feb 10, 2009 10:58:11 GMT -5
That differs from my experience with the MSPB which allows back-pay if you win. Is that something in the union contract? That seems very generous, i.e. paying somebody while an MSPB appeal for removal is being litigated.
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jcse
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Post by jcse on Feb 10, 2009 11:56:57 GMT -5
It was just a rumor. An ALJ familiar with this process would have to confirm that.
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Post by aljsouth on Feb 10, 2009 12:03:38 GMT -5
That differs from my experience with the MSPB which allows back-pay if you win. Is that something in the union contract? That seems very generous, i.e. paying somebody while an MSPB appeal for removal is being litigated. Part of the APA. With few exceptions ALJ can be removed or disciplined (such as suspended without pay) only with approval of MSPB. The idea was to create an independent ALJ corps that could not easily be coerced by an agency. In seven years I have noticed, despite the moaning from the COSS, that if the agency has a case it prevails before MSPB; or gets the resignation/retirement of the ALJ; or settles with ALJ for lesser discipline, a plea agreement if you will. Understand that in most cases removal is not the discipline being sought. |
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Post by alj on Feb 10, 2009 12:34:59 GMT -5
Been a while since I looked at it, but removal without pay is not an option. The judge may be removed from the office, but he continues in pay status until the MSPB action is resolved.
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Post by zero on Feb 10, 2009 13:22:51 GMT -5
Does that create an incentive for ALJ's approaching retirement to begin acting up?
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Post by aljsouth on Feb 10, 2009 13:32:24 GMT -5
Does that create an incentive for ALJ's approaching retirement to begin acting up? No, they are too happy with approaching retirement and escape from the cloud cuckoo land of SSA/ODAR. |
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Post by aljwannabe on Feb 10, 2009 16:10:56 GMT -5
Right, alj. Unlike other civil servants who are removed from their positions first, get appeal rights to the MSPB, and then proceed to hearing to have their ultimate fate determined, because of the APA, ALJs are treated differently. ALJs receive notice of the agency's termination action, but are not actually removed until after the action has been affirmed following the MSPB hearing. As such, ALJs remain on the rolls and continue to be paid while their hearings are being conducted. I believe this is actually the case through their appeal of the MSPB AJ's decision to the full Board or to the Fed. Circuit.
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Post by carjack on Feb 11, 2009 11:29:03 GMT -5
I guess I'm a little unclear (and I offer a disclaimer that I'm not hiding anything from the powers that be) but why have we heard about newly minted ALJ who were sent packing? Did this occur sometime between offer and training or reporting to duty? Do you get these APA rights the minute you say "yes, I'd love to go to East Armpit"? Some of the new ALJs from last year were talking about how they had people conducting security checks while they were in Baltimore on training. If something were askew at that point would they get the APA rights, or have those who've left in the past simply been pressured to resign?
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Post by aljsouth on Feb 11, 2009 15:54:23 GMT -5
I guess I'm a little unclear (and I offer a disclaimer that I'm not hiding anything from the powers that be) but why have we heard about newly minted ALJ who were sent packing? Did this occur sometime between offer and training or reporting to duty? Do you get these APA rights the minute you say "yes, I'd love to go to East Armpit"? Some of the new ALJs from last year were talking about how they had people conducting security checks while they were in Baltimore on training. If something were askew at that point would they get the APA rights, or have those who've left in the past simply been pressured to resign? ALJ's in the initial training are ALJ's and have the APA protections discussed here. Certainly a material false statement would be grounds for removal (for example, having been disbarred and not revealing that). I don't know of any recent case of this. The two MSPB removals I know of since 2001 were for conduct. I know of one older ALJ convinced to retire by his fellows. The agency was supposedly on the brink of bringing an action for not performing his duties. It was best for all for him to retire. CAVEAT: I am not in a position to know of all disciplinary actions. I do know the agency is very public about a removal. |
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Post by civilserpent on Feb 12, 2009 10:48:09 GMT -5
I personally know of an individual who agreed to leave when the agency became aware that the person had been disbarred, and did not have a license. In this case, the agency would have had a slam dunk win, as it could prove falsification of application, and failure to meet basic job qualifications. The individual decided to quietly leave, rather than be subjected to public scrutiny through an appeal. The ALJ had held the position for less than a year, and had less to lose than old timers.
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Post by carjack on Feb 12, 2009 11:19:35 GMT -5
Geez, I'll bet the people who interviewed him/her must have really questioned their people skills not to have caught something like that before. It would seem verifying a license to practice law would be step one in the process of vetting the candidate.
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Post by traceb on Feb 12, 2009 12:29:55 GMT -5
Permanent non-probationary? I didn't know that. I heard that these positions are not permanent, i.e.; at will. Also, does the agency pay bar dues and for CLE?
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Post by alj on Feb 12, 2009 12:34:16 GMT -5
Permanent non-probationary? I didn't know that. I heard that these positions are not permanent, i.e.; at will. Also, does the agency pay bar dues and for CLE? These positions are very much permanent. Not only does the agency not pay bar dues and CLE expenses, but it can make it very difficult for a judge to get CLE without using his or her personal vacation time (annual leave). |
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Post by northwest on Feb 12, 2009 14:58:11 GMT -5
How about the 4-week new ALJ training itself? Usually in my state we get CLE credit for things like that if we submit the proper paperwork. Since we have a 3-year roll-over period, that would satisfy the CLE requirement for 3 years. Have any states given CLE credit for the new ALJ training that anyone knows of? Have the presenters done things to make CLE credits easier to approve (such as having evaluation forms at the end of the training)?
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Post by semipa on Feb 12, 2009 17:30:14 GMT -5
Many of us received CLE credit for last year's ALJ training. Although the agency does not apply for CLE credit, there is a published syllabus, training materials, instructor bios, and evaluation forms that allowed students to apply for CLE from various states.
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