Post by alwayslearning on Oct 22, 2007 13:20:14 GMT -5
AALJ Newsletter
And
President's Report
October 22, 2007
Meeting With Commissioner Astrue
On October 10th we had a difficult and unpleasant meeting with
Commissioner Astrue and members of his staff in Baltimore. The agency was
represented at the meeting by Commissioner Astrue, David Foster,
Commissioners' Chief of Staff; Deputy Commissioner Lisa de Soto; Chief Judge
Frank Cristaudo; and Associate Commissioner LMR Milt Beever. The AALJ
was represented by Judges Randy Frye, Tom Snook, Joel Elliott and the
undersigned. To give you a sense of the mood of the meeting, when the
Commissioner arrived for the meeting he dispensed with the normal courtesy
of shaking our hands. The meeting was most noted for the hostility
displayed towards administrative law judges by the Commissioner. I have
not seen this level of bitterness expressed by top level management for
over 16 years.
We confronted Commissioner Astrue with what we considered to be an
anti-union action in staffing the new National Hearing Center (NHC) with
supervisory administrative law judges and thereby removing these judges
from the benefits of the collective bargaining agreement. This action
will exclude them from the benefits and protections of the transfer
article, Flexiplace, the grievance article, and all employee rights
contained in the contract. He denied that the agency had any legal or
contractual obligation to us relating to this change. The NHC also provides
for staff attorneys with 2 year temporary appointments and thereby
precludes them from membership in either NTEU or AFGE.
Commissioner Astrue said he needs a "match" between resources and
judges and he is doing this because he needs "flexibility". We
understand that flexibility is a code word for not wanting to be bound
by a collective bargaining agreement. When we asked him what he meant
by "flexibility" he could not explain his reasons, other than to say
that he can't expand current offices as quickly as he wants because
of the collective bargaining agreements (which seems to be a clear
anti-union motive) and he can't operate with the current OPM restrictions
(this ignores the fact that these judges will continue to be
administrative law judges regulated by OPM). He said the NHC will begin with 7
judges and if it is a success it will be expanded to offices in other
cities with a total of 25 to 30 judges (we have heard rumor that that
plan was to expand to 2000 employees). We have no doubt this so called
pilot will be declared a success. We believe that the agency will
"pour" money into the NHC, as it did in the first
"reconfiguration" office, and then declare it a success.
He said that the NHC will serve as a "swat team" to help offices
with backlogs. It was his opinion that the 7 judges will have a
"significant impact on the backlog". When we pointed out that if these
judges each rendered 50 decisions a month, their combined impact would be
about 3500 cases a years, he did not respond. When we told him that
most of our hearing offices now have the capacity to hear cases in other
cities by video equipment, he was not impressed. He said that the plan
was to eliminate most of the current remote hearing sites and to rely
on video hearings. If this is true, where will the video equipment in
the remote locations be located? It was our impression that the
Commissioner's vision for the NHC includes "Dial-a-Judge telephone
hearings" like the Medicare judges currently conduct. If so, are these
hearings consistent with both the Administrative Procedure Act and the
Social Security Act? He also mentioned that in the future the video
equipment may be in the offices of "high volume attorneys". This is
a strange twist of policy, when I started as an administrative law
judge the agency considered it a conflict of interest to conduct hearings
in a DO, now we plan to conduct video hearings from the office of the
claimant's attorney.
We raised the issue that the NHC system is designed to deny the
claimant an "in person" hearing and will deny the claimants from having
their cases heard by a local judge. He replied that he did not care, or
words to that effect, and said that as a "swat team", the NHC would
conduct video hearings from all over the nation.
The Commissioner also accused us of being against FIT. We said that we
did not oppose the concept, but that the current product looked more
like a college theme than a legal decision. He did not disagree with
this. He also said that we were against the e-file. We said that was
not correct. We said that we were attempting to alert the agency to the
fact that past experience, at each level, had shown that it had slowed
down the process and that it may cause an increase in the backlog. We
told him we had worked hard on the e-file in the e-DIB bargaining and
in the Joint Technology Committee and we understand this is the way of
the future. We stated that we where concerned with the slowness of the
servers and the inability to currently “electronically pull†the
file. He said that if we work hard enough these problems will be
overcome.
The Commissioner also said that many of our judges were not doing all
the work that they could. He accused us of wanting to be Art III
judges. We said that we understood our position and where we fit in the
government. He accused us of not wanting to be subject to any professional
standards. He then described allegations against judges, without
giving names, of abuse of government equipment and finance rules. We said
that without names we could not respond and that we were not defending
any judges on these types of charges. He implied that we should not be
representing judges in misconduct cases. (The membership must be
assured that we will always represent our judges as required by law and as
directed by the NEB.) We raised the issue of one judge, described by
the SSAB Chair at our Educational Conference, as producing over 2500
cases in a single year and paying 98% of the claims. He said this was of
concern to him.
The Commissioner had almost nothing good to say about administrative
law judges. He did not complement us for our work on the 1000 day old
cases or rendering over 550,000 dispositions during the past several
years, which places our productivity at historic levels. He said the
backlog was the biggest problem for the agency and he implied that the
judges were responsible for the backlog by not working hard enough. (It is
strange that no other group is accused of not working hard enough and
that there is no problem with any management decision. This position
ignores a long string of bad management decisions and many failed reform
efforts). It seemed that he either has an inherent dislike for
administrative law judges or that he is being misled by his staff. We hope
it is the latter. Neither Frank Cristaudo nor Lisa de Soto said
anything during the course of the meeting.
We told him that the backlog was the problem and that we should be
discussing resolution of the backlog and not a plan to "bust the
union". We said that he had scrapped DSI, the only plan existing to address
the backlog, and had only put previously failed programs in its place.
We said that we were using a dysfunctional system that had endured
numerous failed reform efforts for 20 years. He accused us of having no
plan for managing our work or staff. We countered that this was not
correct and that we had presented a complete plan to manage work and
staff during our discussions with the agency on DSI. We said that we long
advocated making the SSA hearing system more "structured" with
rules of practice and procedure, a code of judicial conduct, a government
representative or Social Security Counsel program (such as that
recommended by the Social Security Advisory Board) and direct appeal from the
administrative law judge hearing to the Federal district court. These
are all recommendations we have made in the past. Although we do give
considerable credit to Commissioner Astrue, a fellow trial attorney, for
adopting the five day evidence rule for all hearings and for
adopting some of the rules of procedure.
We explained that we must have a system that takes cases out of the
process before the administrative law judge hearing. We contended that we
can not continue to provide a full hearing for 90% of the requests for
Hearing and that any system would break under this enormous work load.
He accused us of not reading his 30 page paper on reducing the
backlog. We said that we had read it carefully and it contained little to
address the root causes of the backlog or to present permanent long term
cures instead it contained things like the "streamlined file" which
is a euphemism for "sloppy work" and transferring clerical work to
the judges.
At the end of the meeting, the Commissioner did say that he was
interested in our ideas and our objections to actions the agency has taken
against judges. We repeated that it has always been our intent to work
with him to address the problems facing the SSA hearing system. This
meeting was troubling to us because it is evident that no one in current
high level SSA management has taken time to read the written proposals
that we have presented in good faith. Nonetheless, we will again
submit our proposals to the agency. As judges we must continue to work hard
each day and issues as many decisions as we can for the American
people. The American people are entitled to a full and fair due process
hearing and it is our responsibility to work hard to meet this need and
help reduce the disability case backlog.
I requested one of our Officers to prepare an Addendum to this
newsletter containing some of the more important actions that the agency has or
has not taken to which we have concern. We will present Commissioner
Astrue with the complete list as he requested.
Thank you.
Ron Bernoski
Addendum to AALJ Newsletter and President's Report October 15, 2007
At our meeting on October 10, 2007, the Commissioner asked us to tell
him about actions brought against Judges that we found objectionable and
was open to other recommendations from us. This Addendum is a partial
list of some key objections we have where the Agency has taken action
and recommendations for the Agency to take action which we plan to
present to the Commissioner.
The Cleveland Litigation
High on our list is the oldest action brought by the Agency – the
Cleveland litigation. It is an example of what happens in this agency when
you act as a Judge and try to bring some order to the chaos of holding
a hearing with no procedural rules and just how compassionately this
agency treats its working Judges. The genesis of the litigation dates
from 2001, and the Dethloff litigation. However, a complaint was filed
by the Agency in August 2003 charging three Cleveland Judges; Isbell,
Round and White with insubordination and seeking 14-day suspensions
without pay for each for issuing a pre-hearing order requiring claimants’
attorneys to submit evidence to certain SSA employees in a timely
manner. In any other judicial system the Judges would have been lauded for
this initiative.
The agency could have presented to the Appeals Council the issue of the
right of management to control the contents of a Judge's pre-hearing
order. (It is our position that because the issuance of a pre-hearing
order is a judicial function, it is not subject to agency review,
except through the Appeals Counsel or by other appropriate appellate
action.) Instead it chose to charge the Judges with insubordination before
the MSPB. Four years later, the litigation is still pending despite the
fact the Agency has recently, by extending the five day rule for
submission of evidence to all cases, done exactly what the Cleveland Judges
were attempting to do four years ago -- address the then large backlog
of cases at the Cleveland hearing office. Both the backlog and
litigation continue.
During preliminary depositions, former Deputy Chief Judge Bisantz
testified that if she had had all the facts, she never would have allowed
the litigation to move forward. But the litigation continued.
The MSPB decision was appealed to the Federal Circuit based on a
summary judgment ruling by the MSBP Judge. The Department of Justice has
recently requested that the case be remanded back to the MSBP for a full
hearing conceding that the summary judgment remedy below was incorrect.
We have spent a substantial amount of money defending these Judges.
Rob Isbell died a few months ago and, solely due to his death, is no
longer a party
After our traditional meeting with Commissioner Barnhart during the
Jacksonville Educational Conference in 2005, she directed that efforts be
made to settle the litigation. In any other agency, if an agency head
directs that something should be done, it is done. Not in this agency
- the case was not settled. After Rob Isbell's cancer relapsed,
President Bernoski personally telephoned Lisa de Soto three times to
request that Rob be dismissed as a party. He was never dismissed. When Rob
died, we immediately emailed Lisa a notice of his death so she would
know Rob would finally be dismissed as a party.
When Tom Snook told Commissioner Astrue at our meeting that Rob Isbell
had telephoned Tom several months before he died and had told him that
he felt the stress of the Cleveland litigation had caused his cancer to
relapse, the Commissioner immediately retorted: "That judge is an
idiot - stress cannot cause cancer." Tom simply replied: "Well he is
dead" and felt there was no sense in trying to explain to the
Commissioner how inhumanely the Agency had treated Rob and his family by
never dismissing him from the litigation.
After the meeting we googled "stress and cancer" and got over
61 million hits. There is ongoing medical research on the impact
stress has on the immune system. There certainly is no consensus within the
scientific community that stress plays no role in a relapse of cancer.
As recently as November 29, 2005, a NY Times article stated: "As for
whether stress causes cancer, the question is still open."
Judge Kingrey
The newest action brought by the Agency also merits listing. Although
the agency ignored the Appeals Council in the Cleveland litigation, in
the Kingrey case, the Agency is seeking a seven day suspension before
the MSBP alleging that Judge Kingrey failed to obey an Appeals Council
order. The action involves a six year old decision by Judge Kingrey,
which was upheld by both the Appeals Council and the District Court and
appealed to the 9th Circuit, where the appeal was dismissed by the
Circuit court, after granting the appellant’s motion to dismiss, and
returning it to the District Court by its docket minutes.
On June 5, 2006, the Appeals Council issued a remand order based upon
an order from a different District Court Judge, issued three years after
the Circuit Court dismissal. On October 20, 2006, Judge Kingrey held
a hearing and requested claimant's attorney to address the
jurisdictional issue since she questioned whether she had jurisdiction over the
claim without a proper remand from the federal courts. The Agency on
September 19, 2007, brought an action against Judge Kingrey for failing
to comply with an Appeals Council remand order and is seeking
suspension "for 7 days without pay from her position as a SSA ALJ." The
Appeals Council Order required the judge to give the claimant "an
opportunity for a supplemental hearing" and to "take any further action
needed to complete the administrative record and issue a new
decision."
Harrisburg
On July 29, 2007 USA TODAY ran a front page article on the disability
backlog. "Disability Delays Can Lead to Havoc." They listed the
top ten best hearing offices and top ten worst offices in nation based on
the time necessary to hold a hearing from data supplied by the Agency
and the National Council of Social Security Management Associations.
The best hearing office in the nation was reported to be Harrisburg, PA,
with a wait time of only 276 days. The worst office had a wait time
of 932 days.
We started asking groups if they had disposition data on the Judges in
Harrisburg. (Although the law mandates a FOIA response in 30 days, from
experience we know a FOIA request to the Agency would not be answered
for years.) We were able to obtain the data on the hearing office and
understand why the Agency might not want to use Harrisburg as an
example for other offices to emulate. One judge in that office had 1537
dispositions (FY 2004); 2511 dispositions (FY2005); 2533 dispositions
(FY2006); 1600 estimated dispositions (FY2007) for a four year total of 8201
dispositions. His pay rate was 98%. Rounding down for the sake of
simplifying the math, he paid 8000 claims in four years.
At a generally agreed average cost of $250,000 for each pay case, he
obligated the Treasury and Trust Fund (we do not have data on the number
of SSI versus DIB cases) to a combined total of $2,000,000,000. Yes,
that is $2 Billion. Subtracting the statistical national average of 62%
of dispositions being pay cases from his 98% pay rate, it leaves 36%
statistically questionable pay cases or $720,000,000 ($720 million) in
four years for one judge. This judge is apparently the judge identified
by the Chair of the Social Security Advisory Board at our Educational
Conference in Providence last summer as having over 2500 dispositions.
We are concerned with this type of conduct and we believe it causes
more damage to the trust fund than the so-called “low producingâ€
judges.
The Fort Lauderdale IG Report
On September 10, 2007 the Office of Inspector General issued a report
(A-12-07-27091) involving the Fort Lauderdale hearing office and four
other Region IV offices to determine if the offices were adhering to the
rotational assignment of cases mandated by the Administrative Procedure
Act. The following is quoted from the report language: OIG "found
that over a 6-year period, the Fort Lauderdale HOCALJ . . . operated a
˜pilot" program . . . without approval or knowledge [of]
Headquarters or Region IV" contrary to ODAR policy on rotational assignment of
cases.
We must question the efficacy of all the confidential Management
Reports which must be filed with Headquarters and the Regions, if a HOCALJ
was able to conduct a secret pilot program in clear violate of the APA
for six years without Headquarters or the Region discovering the
violation. However, the most disturbing part of the report was the Agency's
response to the OIG recommendations. The Agency declared: "We will
determine whether the Pilot operation should continue and evaluate
whether it should be expanded to other offices. We expect to have a plan in
place by September 30, 2007, with full implementation no later than
March 31, 2008." Six months to determine whether to continue a program
which violates a core protection of the APA seems an excessive amount
of time. That the Agency would even consider expanding a secret illegal
activity is difficult to understand.
We are not reassured that the Agency felt it could remind other HOCALJs
not to violate the law "sooner than March 31, 2008." One would
think the Agency could have sent out a reminder not to violate the law
the day the OIG report was issued. Was it the fact that the Hearing
Office Chief Judge averaged 840 dispositions a year that caused the Agency
not to know what was going on in Fort Lauderdale for six years and
caused it to delay instructing other HOCALJs that they had to comply with
the law?
OIG Audit of AALJ Educational Account - Complain to Congress and you
are audited.
The Office of Inspector General is auditing the AALJ Educational
Conference and account from 2003 to the present. Deputy Commissioner de Soto
told us in Providence that the Commissioner ordered the audit after
receiving a letter from a Senator asking questions about the Agency's
support for the Educational Conference. We had several Senators
approached and had it pointed out that we thought it was unfair for the
Agency to pay full travel and allowance expenses plus registration fee for
100 management Judges to attend the AALJ Educational Conference over the
last two years and yet tell other Judges there might not be enough in
the budget to reimburse them the $350 registration fee. We were told
that at least one Senator did write to the Commissioner.
We estimate it cost the agency over $2000 to send each of the 100
management Judges to the Conference for a total cost of more than $200,000.
We are especially concerned about stable funding for the Conference
in light of the new OPM regulations requiring active state bar
membership and the CLE requirements that would entail. The Conference is the
largest provider of CLE for SSA Judges.
Although there is serious doubt whether OIG even has jurisdiction to
audit us, since we are not a governmental agency, we have fully
cooperated with the audit. Several of us, including the Conference Chair,
Treasurer, Executive Vice President and President met with the auditors in
Falls Church for a full day and answered all their questions. We have
sent them every document they have requested. An audit team is meeting
with our CPA in New York next month for two days to review every
financial record for the last five educational conferences.
Although we do not know if any action in the form of an audit is being
taken concerning the one judge in the Harrisburg office and the
possible improper payment of $720 million over four years, our Educational
Account only expended about $500,000 over four years, and most of that
money went to pay the hotel bills associated with the conference. Since
we have to pay our CPA for his time in meeting with the auditors and we
had to pay our own travel expenses to meet with the auditors, we
estimate the audit is costing us $5,000 - $6,000.
The Commissioner may not think directing an audit is "Union
Busting," but the time OIG is expending on this audit certainly makes us feel
like the Agency is treating us like "something went wrong". This
is especially true since Deputy Commissioner de Soto advised us before
the audit began that no reimbursement for the Providence Conference
registration fee would be made to line Judges and she would hold in
abeyance her already committed support for the Portland, OR conference until
the IG audit is complete.
End Secret Management Reports
It is our understanding that union Judges were instrumental in bringing
the violations of the law at the Fort Lauderdale ODAR to the attention
of OIG. All the secret agency management reports evidently did not
discover the secret pilot program during a six-year period in Fort
Lauderdale or expose the payment of over 8000 cases by one Judge in a
four-year period in Harrisburg.
When CPMS was first proposed by the agency, five management judges and
five regular judges were brought to Baltimore to “brain-storm†it.
It was the unanimous recommendation of the ten judges that CPMS be
transparent, i.e., that there be no secret management reports and that
everyone in the local office be able to know what everyone else in the
office was doing. The agency has never taken action on this
recommendation.
The Commissioner's staff should bring to his attention the August
2004 unanimous recommendation of the Joint Technology Advisory Committee:
"20. CPMS reports concerning productivity of Judges and staff in the
hearing office should be published and made available on a recurrent
basis in their local hearing office. (August 2004)
This has not been accomplished. The committee still feels this should
be a high priority. Historically, only the productivity of Judges has
been published. We feel all employee productivity should be published.
We are unaware of any legal prohibitions on implementing this
recommendation."
JTAC is composed of a Regional Chief Judge, a Hearing Office Chief
Judge and two union Judges. All the recommendations are unanimous. With
Recommendation 20, we are not asking to see the performance appraisal of
any employee, but secret management reports should have no place in
this agency. What does high level Agency Management have to hide from
its employees and the public? Their secret reporting failed to discover
the six years of violations in Fort Lauderdale and the four years of
potential violations in Harrisburg.
It was in spite of these secret reports, that the Fort Lauderdale
violations and the Harrisburg potential violations were uncovered. The
American public, Congress and the hard working employees of the Agency must
have confidence in the Disability System. Secret management reports do
not instill confidence. They simply allow managers to cover-up abuses,
and are another example of a failed management system, which should be
corrected by the Commissioner.
And
President's Report
October 22, 2007
Meeting With Commissioner Astrue
On October 10th we had a difficult and unpleasant meeting with
Commissioner Astrue and members of his staff in Baltimore. The agency was
represented at the meeting by Commissioner Astrue, David Foster,
Commissioners' Chief of Staff; Deputy Commissioner Lisa de Soto; Chief Judge
Frank Cristaudo; and Associate Commissioner LMR Milt Beever. The AALJ
was represented by Judges Randy Frye, Tom Snook, Joel Elliott and the
undersigned. To give you a sense of the mood of the meeting, when the
Commissioner arrived for the meeting he dispensed with the normal courtesy
of shaking our hands. The meeting was most noted for the hostility
displayed towards administrative law judges by the Commissioner. I have
not seen this level of bitterness expressed by top level management for
over 16 years.
We confronted Commissioner Astrue with what we considered to be an
anti-union action in staffing the new National Hearing Center (NHC) with
supervisory administrative law judges and thereby removing these judges
from the benefits of the collective bargaining agreement. This action
will exclude them from the benefits and protections of the transfer
article, Flexiplace, the grievance article, and all employee rights
contained in the contract. He denied that the agency had any legal or
contractual obligation to us relating to this change. The NHC also provides
for staff attorneys with 2 year temporary appointments and thereby
precludes them from membership in either NTEU or AFGE.
Commissioner Astrue said he needs a "match" between resources and
judges and he is doing this because he needs "flexibility". We
understand that flexibility is a code word for not wanting to be bound
by a collective bargaining agreement. When we asked him what he meant
by "flexibility" he could not explain his reasons, other than to say
that he can't expand current offices as quickly as he wants because
of the collective bargaining agreements (which seems to be a clear
anti-union motive) and he can't operate with the current OPM restrictions
(this ignores the fact that these judges will continue to be
administrative law judges regulated by OPM). He said the NHC will begin with 7
judges and if it is a success it will be expanded to offices in other
cities with a total of 25 to 30 judges (we have heard rumor that that
plan was to expand to 2000 employees). We have no doubt this so called
pilot will be declared a success. We believe that the agency will
"pour" money into the NHC, as it did in the first
"reconfiguration" office, and then declare it a success.
He said that the NHC will serve as a "swat team" to help offices
with backlogs. It was his opinion that the 7 judges will have a
"significant impact on the backlog". When we pointed out that if these
judges each rendered 50 decisions a month, their combined impact would be
about 3500 cases a years, he did not respond. When we told him that
most of our hearing offices now have the capacity to hear cases in other
cities by video equipment, he was not impressed. He said that the plan
was to eliminate most of the current remote hearing sites and to rely
on video hearings. If this is true, where will the video equipment in
the remote locations be located? It was our impression that the
Commissioner's vision for the NHC includes "Dial-a-Judge telephone
hearings" like the Medicare judges currently conduct. If so, are these
hearings consistent with both the Administrative Procedure Act and the
Social Security Act? He also mentioned that in the future the video
equipment may be in the offices of "high volume attorneys". This is
a strange twist of policy, when I started as an administrative law
judge the agency considered it a conflict of interest to conduct hearings
in a DO, now we plan to conduct video hearings from the office of the
claimant's attorney.
We raised the issue that the NHC system is designed to deny the
claimant an "in person" hearing and will deny the claimants from having
their cases heard by a local judge. He replied that he did not care, or
words to that effect, and said that as a "swat team", the NHC would
conduct video hearings from all over the nation.
The Commissioner also accused us of being against FIT. We said that we
did not oppose the concept, but that the current product looked more
like a college theme than a legal decision. He did not disagree with
this. He also said that we were against the e-file. We said that was
not correct. We said that we were attempting to alert the agency to the
fact that past experience, at each level, had shown that it had slowed
down the process and that it may cause an increase in the backlog. We
told him we had worked hard on the e-file in the e-DIB bargaining and
in the Joint Technology Committee and we understand this is the way of
the future. We stated that we where concerned with the slowness of the
servers and the inability to currently “electronically pull†the
file. He said that if we work hard enough these problems will be
overcome.
The Commissioner also said that many of our judges were not doing all
the work that they could. He accused us of wanting to be Art III
judges. We said that we understood our position and where we fit in the
government. He accused us of not wanting to be subject to any professional
standards. He then described allegations against judges, without
giving names, of abuse of government equipment and finance rules. We said
that without names we could not respond and that we were not defending
any judges on these types of charges. He implied that we should not be
representing judges in misconduct cases. (The membership must be
assured that we will always represent our judges as required by law and as
directed by the NEB.) We raised the issue of one judge, described by
the SSAB Chair at our Educational Conference, as producing over 2500
cases in a single year and paying 98% of the claims. He said this was of
concern to him.
The Commissioner had almost nothing good to say about administrative
law judges. He did not complement us for our work on the 1000 day old
cases or rendering over 550,000 dispositions during the past several
years, which places our productivity at historic levels. He said the
backlog was the biggest problem for the agency and he implied that the
judges were responsible for the backlog by not working hard enough. (It is
strange that no other group is accused of not working hard enough and
that there is no problem with any management decision. This position
ignores a long string of bad management decisions and many failed reform
efforts). It seemed that he either has an inherent dislike for
administrative law judges or that he is being misled by his staff. We hope
it is the latter. Neither Frank Cristaudo nor Lisa de Soto said
anything during the course of the meeting.
We told him that the backlog was the problem and that we should be
discussing resolution of the backlog and not a plan to "bust the
union". We said that he had scrapped DSI, the only plan existing to address
the backlog, and had only put previously failed programs in its place.
We said that we were using a dysfunctional system that had endured
numerous failed reform efforts for 20 years. He accused us of having no
plan for managing our work or staff. We countered that this was not
correct and that we had presented a complete plan to manage work and
staff during our discussions with the agency on DSI. We said that we long
advocated making the SSA hearing system more "structured" with
rules of practice and procedure, a code of judicial conduct, a government
representative or Social Security Counsel program (such as that
recommended by the Social Security Advisory Board) and direct appeal from the
administrative law judge hearing to the Federal district court. These
are all recommendations we have made in the past. Although we do give
considerable credit to Commissioner Astrue, a fellow trial attorney, for
adopting the five day evidence rule for all hearings and for
adopting some of the rules of procedure.
We explained that we must have a system that takes cases out of the
process before the administrative law judge hearing. We contended that we
can not continue to provide a full hearing for 90% of the requests for
Hearing and that any system would break under this enormous work load.
He accused us of not reading his 30 page paper on reducing the
backlog. We said that we had read it carefully and it contained little to
address the root causes of the backlog or to present permanent long term
cures instead it contained things like the "streamlined file" which
is a euphemism for "sloppy work" and transferring clerical work to
the judges.
At the end of the meeting, the Commissioner did say that he was
interested in our ideas and our objections to actions the agency has taken
against judges. We repeated that it has always been our intent to work
with him to address the problems facing the SSA hearing system. This
meeting was troubling to us because it is evident that no one in current
high level SSA management has taken time to read the written proposals
that we have presented in good faith. Nonetheless, we will again
submit our proposals to the agency. As judges we must continue to work hard
each day and issues as many decisions as we can for the American
people. The American people are entitled to a full and fair due process
hearing and it is our responsibility to work hard to meet this need and
help reduce the disability case backlog.
I requested one of our Officers to prepare an Addendum to this
newsletter containing some of the more important actions that the agency has or
has not taken to which we have concern. We will present Commissioner
Astrue with the complete list as he requested.
Thank you.
Ron Bernoski
Addendum to AALJ Newsletter and President's Report October 15, 2007
At our meeting on October 10, 2007, the Commissioner asked us to tell
him about actions brought against Judges that we found objectionable and
was open to other recommendations from us. This Addendum is a partial
list of some key objections we have where the Agency has taken action
and recommendations for the Agency to take action which we plan to
present to the Commissioner.
The Cleveland Litigation
High on our list is the oldest action brought by the Agency – the
Cleveland litigation. It is an example of what happens in this agency when
you act as a Judge and try to bring some order to the chaos of holding
a hearing with no procedural rules and just how compassionately this
agency treats its working Judges. The genesis of the litigation dates
from 2001, and the Dethloff litigation. However, a complaint was filed
by the Agency in August 2003 charging three Cleveland Judges; Isbell,
Round and White with insubordination and seeking 14-day suspensions
without pay for each for issuing a pre-hearing order requiring claimants’
attorneys to submit evidence to certain SSA employees in a timely
manner. In any other judicial system the Judges would have been lauded for
this initiative.
The agency could have presented to the Appeals Council the issue of the
right of management to control the contents of a Judge's pre-hearing
order. (It is our position that because the issuance of a pre-hearing
order is a judicial function, it is not subject to agency review,
except through the Appeals Counsel or by other appropriate appellate
action.) Instead it chose to charge the Judges with insubordination before
the MSPB. Four years later, the litigation is still pending despite the
fact the Agency has recently, by extending the five day rule for
submission of evidence to all cases, done exactly what the Cleveland Judges
were attempting to do four years ago -- address the then large backlog
of cases at the Cleveland hearing office. Both the backlog and
litigation continue.
During preliminary depositions, former Deputy Chief Judge Bisantz
testified that if she had had all the facts, she never would have allowed
the litigation to move forward. But the litigation continued.
The MSPB decision was appealed to the Federal Circuit based on a
summary judgment ruling by the MSBP Judge. The Department of Justice has
recently requested that the case be remanded back to the MSBP for a full
hearing conceding that the summary judgment remedy below was incorrect.
We have spent a substantial amount of money defending these Judges.
Rob Isbell died a few months ago and, solely due to his death, is no
longer a party
After our traditional meeting with Commissioner Barnhart during the
Jacksonville Educational Conference in 2005, she directed that efforts be
made to settle the litigation. In any other agency, if an agency head
directs that something should be done, it is done. Not in this agency
- the case was not settled. After Rob Isbell's cancer relapsed,
President Bernoski personally telephoned Lisa de Soto three times to
request that Rob be dismissed as a party. He was never dismissed. When Rob
died, we immediately emailed Lisa a notice of his death so she would
know Rob would finally be dismissed as a party.
When Tom Snook told Commissioner Astrue at our meeting that Rob Isbell
had telephoned Tom several months before he died and had told him that
he felt the stress of the Cleveland litigation had caused his cancer to
relapse, the Commissioner immediately retorted: "That judge is an
idiot - stress cannot cause cancer." Tom simply replied: "Well he is
dead" and felt there was no sense in trying to explain to the
Commissioner how inhumanely the Agency had treated Rob and his family by
never dismissing him from the litigation.
After the meeting we googled "stress and cancer" and got over
61 million hits. There is ongoing medical research on the impact
stress has on the immune system. There certainly is no consensus within the
scientific community that stress plays no role in a relapse of cancer.
As recently as November 29, 2005, a NY Times article stated: "As for
whether stress causes cancer, the question is still open."
Judge Kingrey
The newest action brought by the Agency also merits listing. Although
the agency ignored the Appeals Council in the Cleveland litigation, in
the Kingrey case, the Agency is seeking a seven day suspension before
the MSBP alleging that Judge Kingrey failed to obey an Appeals Council
order. The action involves a six year old decision by Judge Kingrey,
which was upheld by both the Appeals Council and the District Court and
appealed to the 9th Circuit, where the appeal was dismissed by the
Circuit court, after granting the appellant’s motion to dismiss, and
returning it to the District Court by its docket minutes.
On June 5, 2006, the Appeals Council issued a remand order based upon
an order from a different District Court Judge, issued three years after
the Circuit Court dismissal. On October 20, 2006, Judge Kingrey held
a hearing and requested claimant's attorney to address the
jurisdictional issue since she questioned whether she had jurisdiction over the
claim without a proper remand from the federal courts. The Agency on
September 19, 2007, brought an action against Judge Kingrey for failing
to comply with an Appeals Council remand order and is seeking
suspension "for 7 days without pay from her position as a SSA ALJ." The
Appeals Council Order required the judge to give the claimant "an
opportunity for a supplemental hearing" and to "take any further action
needed to complete the administrative record and issue a new
decision."
Harrisburg
On July 29, 2007 USA TODAY ran a front page article on the disability
backlog. "Disability Delays Can Lead to Havoc." They listed the
top ten best hearing offices and top ten worst offices in nation based on
the time necessary to hold a hearing from data supplied by the Agency
and the National Council of Social Security Management Associations.
The best hearing office in the nation was reported to be Harrisburg, PA,
with a wait time of only 276 days. The worst office had a wait time
of 932 days.
We started asking groups if they had disposition data on the Judges in
Harrisburg. (Although the law mandates a FOIA response in 30 days, from
experience we know a FOIA request to the Agency would not be answered
for years.) We were able to obtain the data on the hearing office and
understand why the Agency might not want to use Harrisburg as an
example for other offices to emulate. One judge in that office had 1537
dispositions (FY 2004); 2511 dispositions (FY2005); 2533 dispositions
(FY2006); 1600 estimated dispositions (FY2007) for a four year total of 8201
dispositions. His pay rate was 98%. Rounding down for the sake of
simplifying the math, he paid 8000 claims in four years.
At a generally agreed average cost of $250,000 for each pay case, he
obligated the Treasury and Trust Fund (we do not have data on the number
of SSI versus DIB cases) to a combined total of $2,000,000,000. Yes,
that is $2 Billion. Subtracting the statistical national average of 62%
of dispositions being pay cases from his 98% pay rate, it leaves 36%
statistically questionable pay cases or $720,000,000 ($720 million) in
four years for one judge. This judge is apparently the judge identified
by the Chair of the Social Security Advisory Board at our Educational
Conference in Providence last summer as having over 2500 dispositions.
We are concerned with this type of conduct and we believe it causes
more damage to the trust fund than the so-called “low producingâ€
judges.
The Fort Lauderdale IG Report
On September 10, 2007 the Office of Inspector General issued a report
(A-12-07-27091) involving the Fort Lauderdale hearing office and four
other Region IV offices to determine if the offices were adhering to the
rotational assignment of cases mandated by the Administrative Procedure
Act. The following is quoted from the report language: OIG "found
that over a 6-year period, the Fort Lauderdale HOCALJ . . . operated a
˜pilot" program . . . without approval or knowledge [of]
Headquarters or Region IV" contrary to ODAR policy on rotational assignment of
cases.
We must question the efficacy of all the confidential Management
Reports which must be filed with Headquarters and the Regions, if a HOCALJ
was able to conduct a secret pilot program in clear violate of the APA
for six years without Headquarters or the Region discovering the
violation. However, the most disturbing part of the report was the Agency's
response to the OIG recommendations. The Agency declared: "We will
determine whether the Pilot operation should continue and evaluate
whether it should be expanded to other offices. We expect to have a plan in
place by September 30, 2007, with full implementation no later than
March 31, 2008." Six months to determine whether to continue a program
which violates a core protection of the APA seems an excessive amount
of time. That the Agency would even consider expanding a secret illegal
activity is difficult to understand.
We are not reassured that the Agency felt it could remind other HOCALJs
not to violate the law "sooner than March 31, 2008." One would
think the Agency could have sent out a reminder not to violate the law
the day the OIG report was issued. Was it the fact that the Hearing
Office Chief Judge averaged 840 dispositions a year that caused the Agency
not to know what was going on in Fort Lauderdale for six years and
caused it to delay instructing other HOCALJs that they had to comply with
the law?
OIG Audit of AALJ Educational Account - Complain to Congress and you
are audited.
The Office of Inspector General is auditing the AALJ Educational
Conference and account from 2003 to the present. Deputy Commissioner de Soto
told us in Providence that the Commissioner ordered the audit after
receiving a letter from a Senator asking questions about the Agency's
support for the Educational Conference. We had several Senators
approached and had it pointed out that we thought it was unfair for the
Agency to pay full travel and allowance expenses plus registration fee for
100 management Judges to attend the AALJ Educational Conference over the
last two years and yet tell other Judges there might not be enough in
the budget to reimburse them the $350 registration fee. We were told
that at least one Senator did write to the Commissioner.
We estimate it cost the agency over $2000 to send each of the 100
management Judges to the Conference for a total cost of more than $200,000.
We are especially concerned about stable funding for the Conference
in light of the new OPM regulations requiring active state bar
membership and the CLE requirements that would entail. The Conference is the
largest provider of CLE for SSA Judges.
Although there is serious doubt whether OIG even has jurisdiction to
audit us, since we are not a governmental agency, we have fully
cooperated with the audit. Several of us, including the Conference Chair,
Treasurer, Executive Vice President and President met with the auditors in
Falls Church for a full day and answered all their questions. We have
sent them every document they have requested. An audit team is meeting
with our CPA in New York next month for two days to review every
financial record for the last five educational conferences.
Although we do not know if any action in the form of an audit is being
taken concerning the one judge in the Harrisburg office and the
possible improper payment of $720 million over four years, our Educational
Account only expended about $500,000 over four years, and most of that
money went to pay the hotel bills associated with the conference. Since
we have to pay our CPA for his time in meeting with the auditors and we
had to pay our own travel expenses to meet with the auditors, we
estimate the audit is costing us $5,000 - $6,000.
The Commissioner may not think directing an audit is "Union
Busting," but the time OIG is expending on this audit certainly makes us feel
like the Agency is treating us like "something went wrong". This
is especially true since Deputy Commissioner de Soto advised us before
the audit began that no reimbursement for the Providence Conference
registration fee would be made to line Judges and she would hold in
abeyance her already committed support for the Portland, OR conference until
the IG audit is complete.
End Secret Management Reports
It is our understanding that union Judges were instrumental in bringing
the violations of the law at the Fort Lauderdale ODAR to the attention
of OIG. All the secret agency management reports evidently did not
discover the secret pilot program during a six-year period in Fort
Lauderdale or expose the payment of over 8000 cases by one Judge in a
four-year period in Harrisburg.
When CPMS was first proposed by the agency, five management judges and
five regular judges were brought to Baltimore to “brain-storm†it.
It was the unanimous recommendation of the ten judges that CPMS be
transparent, i.e., that there be no secret management reports and that
everyone in the local office be able to know what everyone else in the
office was doing. The agency has never taken action on this
recommendation.
The Commissioner's staff should bring to his attention the August
2004 unanimous recommendation of the Joint Technology Advisory Committee:
"20. CPMS reports concerning productivity of Judges and staff in the
hearing office should be published and made available on a recurrent
basis in their local hearing office. (August 2004)
This has not been accomplished. The committee still feels this should
be a high priority. Historically, only the productivity of Judges has
been published. We feel all employee productivity should be published.
We are unaware of any legal prohibitions on implementing this
recommendation."
JTAC is composed of a Regional Chief Judge, a Hearing Office Chief
Judge and two union Judges. All the recommendations are unanimous. With
Recommendation 20, we are not asking to see the performance appraisal of
any employee, but secret management reports should have no place in
this agency. What does high level Agency Management have to hide from
its employees and the public? Their secret reporting failed to discover
the six years of violations in Fort Lauderdale and the four years of
potential violations in Harrisburg.
It was in spite of these secret reports, that the Fort Lauderdale
violations and the Harrisburg potential violations were uncovered. The
American public, Congress and the hard working employees of the Agency must
have confidence in the Disability System. Secret management reports do
not instill confidence. They simply allow managers to cover-up abuses,
and are another example of a failed management system, which should be
corrected by the Commissioner.
