ALJ With Second Federal Job

At the National Organization of Social Security Claimants Representatives (NOSSCR) conference a few months ago, Social Security Commissioner Astrue referred to a disciplinary action against an Administrative Law Judge (ALJ) who was holding down a second full time federal job. I had posted about this.

I have been contacted by the person whom Astrue must have been talking about, Kelly S. Jennings. Jennings has sent me the statement reproduced below. I have no personal knowledge of the situation. I think it is appropriate to post this statement here, since Astrue was publicly criticizing Jennings, even if Jennings' name was never mentioned.

In 1994 Kelly S. Jennings was appointed an Administrative Law Judge with the Social Security Administration and assigned to the Atlanta (GA) North ODAR.

From 2003 to 2005, official SSA statistics reveal ALJ Jennings was among the most productive ALJs in the Atlanta North ODAR with disability case dispositions of 249 in 2003, 395 in 2004, and 449 in 2005 for a 3 year disposition total of 1,093 cases. In addition, Judge Jennings heard 144 disability cases in 2003, 318 cases in 2004, and 309 cases in 2005 for a total of 771 disability cases heard from 2003 to 2005.

In 2003, Judge Jennings was also selected by SSA to serve as a Quality Assurance Review (“QAR”) ALJ. SSA placed Judge Jennings in a Flexi-place/Alternate Duty Station (“ADS”) status and sent him hundreds of disability cases and decisions issued by other SSA ALJs from SSA headquarters in Baltimore to review for legal sufficiency and quality purposes.

In January 2003 Judge Jennings, a Colonel in the Judge Advocate General’s Corps having served 25 years in the U.S. Army Reserve, was mobilized and deployed to Iraq in support of Operation Iraqi Freedom (“OIF”). For his service in Iraq, Colonel Jennings was nominated for the Bronze Star Medal.

From 2003 to 2005 Judge Jennings provided military orders and leave requests on a continuing basis to the ATL North Hearing Office Chief ALJ (“HOCALJ”) who knew of his mobilization and deployment in support of OIF.

The Regional Chief Administrative Law Judge (“RCALJ”) (“GARMON”) and the Associate Commissioner of the Office of Hearings and Appeals (“THURMOND”) were also aware Judge Jennings had been mobilized and deployed to Iraq.

SSA continued to send disability cases to Judge Jennings by email for review and decisions for editing even while he was deployed to Iraq and Kuwait.

When he redeployed from Iraq to the United States in order to attend and eventually graduate from the prestigious U.S. Army War College, Judge Jennings would at periodic times use a combination of accrued/carryover annual/military/advanced leave and while in a Flexi-place/ADS work status conduct Social Security disability hearings and issue decisions.

Using accrued/carry over annual, military, and advanced leave, together with being placed in a Flexi-place/ADA work status by SSA, Judge Jennings continued to receive his salary from Social Security for the hearings conducted and disability case dispositions accomplished.

In 2007, nearly two years after having been released from active duty with the USAR and mobilized in support of OIF, an anonymous complaint was submitted to the SSA OIG, alleging Judge Jennings had received “dual income” from both Social Security and the USAR from 2003-2005.

In August 2007, Chief Judge Frank Cristaudo and Deputy Commissioner-ODAR Lisa DeSoto determined Judge Jennings was really not working for SSA as an ALJ from 2003-2005 due to his military status with the USAR as a mobilized reservist.

In August 2007, Cristaudo ordered the Time/Attendance (“T/A”) records of Judge Jennings retroactively amended for the years 2003-2005 in order to place him in a Leave Without Pay (“LWOP”) status and to revoke previously authorized and SSA management approved use of annual/military leave.

In November, 2007 SSA sent Judge Jennings a certified letter demanding repayment of SSA salary from 2003-2005 in the sum of $309,662.04 plus interest within 30 days.

Subsequently, in November and December 2007, SSA without notice to Judge Jennings invaded and confiscated $43,804.20 from his Thrift Savings Plan (“TSP”) account and $21,954.85 from his Federal Employee Retirement System (“FERS”) account despite the fact Judge Jennings had protested the $309,662.04 debt determination and had requested a hearing.

In August, 2007 Cristaudo and DeSoto suspended Judge Jennings from his duties as an ALJ and instituted an action with the MSPB to remove him from his position as an SSA ALJ.

The MSPB proceeding against Judge Jennings is pending and an MSPB Administrative Law Judge recently raised the question to SSA to the effect that if Judge Jennings was really not working for SSA as an ALJ from 2003-2005 as SSA contends, how he could legally hold 771 hearings and issue 1,093 disability decisions. This issue remains unresolved.

SSA has notified Judge Jennings his T/A and leave records for 2003 are lost and only partial T/A and leave records are available for 2004 and 2005. An SSA OIG audit confirmed the 2003 T/A records for Atlanta North ALJs were missing and cannot be located.

The SSA action before the MSPB has been set for hearing in March, 2008 on the question of whether the facts support removal of Judge Jennings from his position as an SSA ALJ. Judge Jennings has been forced to spend thousands of dollars in attorney fees, costs, and other expenses to defend himself against the MSPB action.

Mean while, the number of disability cases pending for hearing in the Atlanta North ODAR has climbed above 13,000 as one of the worst pending in the Nation.