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May 15, 2012

You've Got To Be Kidding Me!

      I have heard from an attorney who submitted a Freedom of Information Act request for the identity of the Administrative Law Judge scheduled to hold a hearing. This is the response that came back:
I am responding to your request on behalf of your client, _____, for the name of the assigned Administrative Law Judge (ALJ) currently scheduled to conduct his hearing.  

 I am withholding the name of the ALJ assigned to hear this case under FOIA Exemption 2 (5 U.S.C. § 552(b)(2)). This exemption protects from disclosure records "related solely to the internal personnel rules and practices of an agency." The information you seek is the internal personnel assignment of an agency employee to a particular case. Therefore, you are not entitled to it under FOIA.

I am also withholding the ALJ's name under FOIA Exemption 7(E) (5 U.S.C. § 552(b)(7)(E)). Exemption 7(E) exempts from mandatory disclosure records or information compiled for law enforcement purposes when production of such records "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." Information may fall within this exemption even if it was originally compiled for non-law enforcement purposes, if it is later related to crime prevention or security measures. Milner v. Department ofNavy, 131 S. Ct. 1259, 1272-73 (2011) (Alito, J., concurring).
      I salute Social Security for not just stalling on these requests but I have to say that this response falls into the "You've got to be kidding me" category. The Attorney General has warned agencies not to expect the Department of Justice to automatically defend Freedom of Information Act denials. I have a hard time believing that the Department of Justice will choose to defend this. And quoting an Alito concurrence that has nothing to do with the issue at hand! That's waving a red flag at Eric Holder's Department of Justice!
     I guess we will find out soon if the Department of Justice will choose to defend Social Security on its "secret judge" policy. I hear that there is at least one civil action pending on this issue and the government's answer is due this month.

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  • 20 Comments:

    Anonymous Anonymous said...

    just a guess...but the "secret policy" is probably on its way to becoming law. This would trump any FOIA request.

    9:53 AM, May 15, 2012  
    Anonymous Anonymous said...

    I think the section 2 exemption is solid. However, the section 7 exemptions are meant solely for "law enforcement purposes." I think SSA will have a tough time winning that argument.

    However, I still don't understand the uproar of not knowing which ALJ will make the decision.

    9:56 AM, May 15, 2012  
    Anonymous Anonymous said...

    The uproar is all about reps gaming the system.

    11:36 AM, May 15, 2012  
    Anonymous Anonymous said...

    The Privacy Act does not provide the same exemptions for the Agency that can be claimed under the FOIA. Basically, the ability of a person to find any information maintained by the Agency on the individual is unfettered. The problem is the claimant, not the representative must request access, and the claimant must specifically identify the "system of records" that would contain the desired information. It used to be an HA04 query would identify the ALJ, but I have no idea if they even still use the HA04. Alternatively, somewhere in the ECF the ALJ would be identified.

    11:54 AM, May 15, 2012  
    Anonymous Anonymous said...

    The reason SSA started withholding the names of assigned ALJs is that Reps where declining Video Hearings if the judge assigned was a judge known to be less likely to give a favorable decision.

    Reps/claimants have a right to decline a video hearing. But, these reps were declining based on the assigned ALJ, not for any other reason. Thus they were gaming the system.

    There is no need for any Rep to know who the assigned ALJ is, until the day of the hearing.

    1:16 PM, May 15, 2012  
    Anonymous Anonymous said...

    Anon at 1:16 accurately states the problem. And it is in fact the only problem. There is no practical way to "judge shop" except under the circumstances described by Anon above.
    So, the very narrow problem is reps were refusing video hearings when they didn't like the ALJ assigned, in order to get the case out of the hands of the ALJ. In fact, reps can still refuse video hearings, and I'm going to guess the percentage of reps who routinely refuse video hearings has increased significantly since the "mystery judge" rule was adopted.
    So, the remedy is ridiculously overbroad (the equivalent of trying to kill a mosquito with a nuclear weapon), it created tremendous bad blood with the representative community, and it doesn't even "solve" the problem articulated above, because reps will just refuse all video hearings.
    If SSA wants to make video hearing mandatory, try it. Try issuing a rule, and if the NPRM violates the language of the Act, try to amend the Act. The method of SSA has chosen to deal with this very narrow problem is a complete waste of the Agency's resources. Let's see how much litigation and attorney fees come out of this policy.

    1:56 PM, May 15, 2012  
    Anonymous Anonymous said...

    The problem is that bad representatives were not merely objecting to video hearings; they were advising their clients to withdraw their requests for hearing, start the process over again, and endure another lengthy wait for a hearing. That was harming claimants. I suppose the bad representatives can still do this on the day of the hearing, but it might be more difficult.

    2:18 PM, May 15, 2012  
    Anonymous Anonymous said...

    I am thinking some ALJ's do not like this practice either. I know some ALJs who require a brief in every case and others who tell me to not request an on the record decision in a brief as she prefers to hold hearings in all cases. Some judges get upset if I bring in a spouse witness and others welcome it. I used to be able to prepare the client's case just the way the individual judge preferred but no longer. I think this irritates some of these judges now.

    2:36 PM, May 15, 2012  
    Anonymous Anonymous said...

    "it created tremendous bad blood with the representative community"

    I sincerely hope that SSA does not give ANY weight to those kinds of issues. Take your money (which is very easily earned) and stop complaining.

    2:54 PM, May 15, 2012  
    Anonymous Anonymous said...

    Any "smart" representative would prepare his or her cases as if every case was before the most demanding ALJ, because if you can please the ALJ who expects the most of you (and quite frankly, even the most demanding ALJ will not expect all that much from you), everyone else will be satisfied. If a particular ALJ does not like pre-hearing briefs, he or she does not have to give it much attention. If a particular ALJ does not like OTR requests, the ALJ can ignore it; this really should not be much of an issue anyway since the OTR request would usually occur before the case was assigned to an ALJ anyway. If the ALJ does not like witnesses, the witnesses can just sit outside and wait.

    4:53 PM, May 15, 2012  
    Anonymous Anonymous said...

    i do not understand the big deal here. prepare your cases. knowing the name of the alj should not be relevant. do you have any other reason for wanting to know the name of the alj other than to check his approval/denial rate prior to the hearing? when does this end? will claimants next be allowed to demand the name of the assigned claims representative before a reconsideration interview? this is nonsense. the alj's already side with the reps/claimants in most situations. how much easier do u want your job to be?

    6:12 PM, May 15, 2012  
    Anonymous Anonymous said...

    Hard to support the statement that ALJ's already side with the Reps/Claimants in most situations since the current National pay rate is less than 50%.

    7:08 AM, May 16, 2012  
    Anonymous Anonymous said...

    Re: Anonymous @ 7:08

    The "national pay rate" you quote includes initial and reconsideration level determinations. Once a claim reaches the hearing level, the allowance rate increases to significantly more than 50%.

    8:33 AM, May 16, 2012  
    Anonymous Anonymous said...

    "There is no need for any Rep to know who the assigned ALJ is, until the day of the hearing."

    Sure there is, and I'd like to see a response to the reasons.

    1) I have hearing scheduelled at 10:00 a.m. Should I later accept a hearing scheduelled at 11:00 a.m.? If it's with the same ALJ, fine. If not, and the first hearing lasts past 11:00 a.m., that is obviously a problem.

    2) Various ALJ's require different prehearing briefs and memos. Despite not knowing the ALJ's identity, we are still expected to file that particular ALJ's required brief or memo. In our office, hearings are delayed as the ALJ literally instructs reps to hand write out the memo in a particular format whiel he waits.

    3) If a subpoena is needed, the HALLEX instructs us to contact the assigned ALJ as soon as possible. Who does one contact? Who does one follow up with?

    4) Same with prehearing confrences.

    5) Without knowing the identity of the ALJ, how does a claimant prepare for issues of recusal?

    Further, I can say that Social Security is stalling on the FOIAs. The particular response was in request to the name of an ALJ on a particular case. I file a FOIA six months ago asking for a copy of the actual policy, along with other documents. I have received nothing in writing, but three calls from a FOIA officer that my request is being processed along with "hundreds of others" concerning this issue, and that they are still working on it.

    9:07 AM, May 16, 2012  
    Anonymous Anonymous said...

    Anonynous 8:33,

    According to: http://www.disabilityjudges.com/state,

    The national average for winning a disibility hearing is 49%.

    That appears to be at the Hearing level, ie, in front of an ALJ.

    This appears to fit into the numbers I have been seeing during the last year..

    9:40 AM, May 16, 2012  
    Anonymous Anonymous said...

    1) Sounds like an internal issue for SSA to handle with regard to scheduling.

    2) ALJ's can't "require" briefs of any sort. They can request.

    3) Talk to the hearing office staff, I'm sure that each HO can come up with a procedure to issue subpoenas (how about the HOCALJ).

    4) Pre-hearing conferences are a small portion of the cases and would obviously result in knowing the identity of the judge. However, in my office, we've had PHC's with one judge only to have another judge issue the decision.

    5) If you think you are going to need to recuse yourself in front of any judge, let the HO know, they won't schedule you with that judge.

    9:43 AM, May 16, 2012  
    Anonymous Anonymous said...

    @annon 8:33

    That includes dismissals...

    11:37 AM, May 16, 2012  
    Anonymous Anonymous said...

    @ 11:37
    the pay rate should not include dismissals. IE. If an ALJ "pays" 50%, denies 25%, and has 25% dismissals, assuming he has 500 claims, his actual pay rate is 67% pay, 33% denials

    for the math:
    250 pay
    125 denials
    125 dismissed
    500 total

    pay rate of cases actually decided: 250/(250+125) = 67%

    1:15 PM, May 16, 2012  
    Anonymous Anonymous said...

    Huh?? You must be using modern math. Out of 500 cases if an ALJ pays 250, he has a "pay" rate of 50%. That is how math was taught in the good old days. Of course that was before Title XVI, so what do I know??

    3:37 PM, May 16, 2012  
    Anonymous Anonymous said...

    @337. pay rate of cases actually decided. not showing up at the hearing shouldn't factor in to masking ALJ's pay rates.

    4:26 PM, May 16, 2012  

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