Jul 11, 2018

Lucia Used As Pretext For Unrelated ALJ Changes

     Yesterday the President ordered that in the future when Administrative Law Judges (ALJs) are hired they will be "excepted service" employees rather than "competitive service" employees. Current ALJs hired as competitive service employees will remain competitive service employees.
     Competitive service employees are hired through an examination process administered through the Office of Personnel Management (OPM). Agencies still have some discretion in whom they hire but they have to hire off registers, which are basically lists, provided by OPM. The examination process, which isn't necessarily a written test, is controlled by OPM rather than the agency. As soon as a competitive service employee is hired the agency has to go through a tedious process if it wants to remove the employee.
     Excepted service employees are hired through a process set up and administered by the employing agency. The agency isn't required to use an examination process. For the first two years after being hired, an excepted service employee can be fired rather easily and the employee has little if any recourse.
     This achieves some longstanding goals of the Social Security Administration. The agency has complained for decades about OPM's process for creating ALJ registers. They felt that the examination process was slow and didn't produce adequate registers when needed. They have felt that the examination process had little or nothing to do with the actual requirements of the job. The agency has also wanted a quicker process for getting rid of bad ALJs. Also, even though Social Security may never have stated it but it's always seemed like they wanted the ALJ position to be part of a career track for agency attorneys. Some of this may literally be agency attorneys coveting ALJ positions but not wanting to jump through OPM's competitive service hoops in order to get the job.
     The merits of moving ALJs to the excepted service are debatable. I'm not necessarily opposed. Social Security had legitimate complaints about OPM's administration of the ALJ exam. Some ALJs who were hired through the competitive service have been duds by any reasonable standard -- people with serious psychiatric problems or who were unproductive or unprofessional. It's been too difficult to get rid of these ALJs. On the other hand, going to the excepted service process may create an incestuous atmosphere in Social Security's Office of Hearings Operations. It's also not out of the question that the excepted service process will be used to select candidates for their ideological leanings. Imagine two candidates for an ALJ position. One candidate's resume lists leadership positions he or she has held in the American Civil Liberties Union. The other candidate's resume lists leadership positions in the Federalist Society. Which one do you think gets hired in this Administration? The relative ease of firing excepted service ALJs during the first two years of their employment may make it easy for the agency to get rid of ALJs who, in the agency's view approve too many disability claims. Even if the agency doesn't actually do that, newly hired ALJs may make their decisions conform to what they think the agency wants of them.
     What's not debatable, however is that the Supreme Court decision in Lucia v. SEC has been used as a pretext to achieve goals that don't address the issues presented by the Lucia decision. There's an obvious tell. Lucia held that ALJs are "inferior officers" and that under the Constitution "inferior officers" must be appointed by agency heads. If you were drafting a response to Lucia, wouldn't the very first thing you put in be a requirement that ALJs must be appointed by the head of their agency? There's not a word about that in this Executive Order. You don't need to move ALJs from the competitive service to the excepted service in order for them to be appointed by agency heads. The competitive service produced registers -- lists -- of ALJ candidates from which agencies made choices. Agency heads could then make the appointments of ALJs. That's already been done. It's discussed in Lucia! Changing ALJs to the excepted service doesn't address Lucia at all.
     I am concerned about how this was done. The President ordered immediate changes in OPM regulations. If you're familiar with the Administrative Procedure Act (APA) you know that's not the way things normally work. The APA requires that agencies publish proposed regulations in the Federal Register and allow the public to comment on them. There are some exceptions to the notice and comment procedure which may apply here. There is some precedent for a President ordering changes in OPM regulations without going through the notice and comment procedure. Still, this seems like an awfully substantive change to make without going through notice and comment procedure. I don't know if this is something that can be challenged.

23 comments:

Anonymous said...

I assume this means those individuals on the current ALJ register who have not yet been hired and those who have taken the exam and not received results are SOL?

Anonymous said...

Yes. OPM issued a statement that the current register is terminated and that they will be sending out a letter to that effect to those affected.

Anonymous said...

10:20,

Yes, OPM has terminated the register, and the most recent exam results are void.

Anonymous said...

Lucia also involved an adversarial proceeding. Disability hearings are non-adversarial. Seems like a pretty big distinction to me. This EO only makes sense when you realize it's a power grab, a fairly bold-faced one at that. Trump did not like those immigration judges forcing him to reunite babies with their mothers. Trump demands loyalty. Just ask Comey.

Anonymous said...

This also appears to open the door to nepotism, cronyism, patronage jobs, etc. With no requirement for experience as an attorney, TPTB (including the President, Cabinet members, Agency bigwigs) can put their favorite people in the job. So sad to see the death of merit-based civil service. I guess we've found out "What have you got to lose?"

Anonymous said...

Yes. It is possible the president could direct agencies to hire specific people but if you have the political pull to get favors from the president or an agency head, why you waste it to become a Social Security ALJ?
You can't influence policy like at many other agencies and there are no industry bigwigs looking to hire you as inside counsel nor is it common that big firms want to bring you over as a partner or on partner track to use your expertise. Unless your life goal is to be a well-paid Fed and live in Akron, you'd use your political chops to get a different job with superior post-Federal service potential.

New administrations struggle to fill all the appointee positions they have to fill as it is. Adding another 150 or so ALJ slots to fill every year is just an annoyance for the politicians.

Anonymous said...

I do not know how the new system for hiring ALJ's is going to turn out. I do know the prior system has failed miserably. Too many current ALJ's do not do their job well at all. The current cadre of ALJ's are, for the most part, lazy and incompetent.

Anonymous said...

@1:33

That distinction seemed to be left behind in the Lucia decision. Also, I am unaware why such a distinction would protect SSA's ALJs. If anything, the structure of a non-adversarial proceeding provides greater authority to the ALJ, which in turn makes them more at risk of exercising greater authority than appropriate under the appointments clause...unless I am missing something.

Anonymous said...

You need to recognize this for what it is and that's a huge right wing power grab. This is Bannon's demolition of the administrative state and is totally backed by those buying and selling our politicians. This is aimed at the American people who can't afford a politician. Wall Street will be above the law and our people will get hammered. Almost no corporate media coverage of something that can affect every American citizen I'm noticing also.

Anonymous said...

Patronage didn't work in the 19th century. Imagine an incoming president from a different party firing hundreds of SSA ALJs on Day 1, even though SSD is a job political program, the definition of which doesn't change depending on who's in charge....

Anonymous said...

I suppose I would be more upset if I thought that the old system was producing the creme de la creme of ALJs.

But given some of what we have now, I don't assume that the new crop would be worse.

Anonymous said...

Civil service standards were viewed as key to good government in the twentieth century based on vile creatures such as Tammany Hall and other corrupt political machines. Unbelievable that we are going in this direction in the twenty-first century and our ignorant, passive population isn't responding. If the political judges are told to deny more cases in a blue state, or deny cases of certain minority groups will this be challenged. Will all due process and standards be thrown out the window?

Anonymous said...

Merit based? Pretty much everyone knows that was not the case. Just look at the ones SSA hired. Some good ones, sure. But enough bad ones to put the lie to "merit based."

public servant said...

OPM has consistently ignored the needs of it's biggest customer for ALJ's by repeatedly using screening procedures focused on the skills needed to conduct adversarial hearings while ignoring the skills needed to conduct non-adversarial hearings in high volume. They set themselves up for this EO which is not a good solution to the problem. The EO addresses the critical shortcomings of OPM's process; but does so by opening up the selection process to the possibility of political interference.

Anonymous said...

The old OPM system favored folks with high level litigation experience, and most all of the high level litigators who wouldn't laugh at $170,000 a year in a job you actually have to show up and work on the line for are State and Federal prosecutors. They come to SSA and treat claimants like they did criminal defendants, bringing all the lovely biases and other problematic ways of thinking from the prosecuting side of the criminal justice world.

This new process could wind up only putting somewhat incompetent favored insiders in place, but I would probably still take them on the bench than a former prosecutor and I bet you a chorus of reps will chime in and agree with me.

Anonymous said...

@9:00 am Very good points. The prior OPM process for selection of ALJ's was pathetic. First, it was not agency specific which resulted in too much wasted time (and taxpayer money) getting ALJ's up to speed at the respective agency. And, it failed to recognize that litigation skills were not needed to hold non-adversarial hearings. Hence, a corps of ALJ's that are, for the most part, not very good at all at their jobs. So, why not try something new? How much worse could it possibly be compared to the current group of ALJ's at SSA with so many doing such a ridiculously poor job.

Anonymous said...

Really? The President of the United States upends a century of civil service reform, repeals whole sections of the Administrative Procedures Act via Executive Order, ignores sections of 5 U.S.C., makes SEC/EPA/NLRB ALJs subject to political cronyism, lies to the country by stating that this is all mandated by Lucia, etc. Yet the takeaway for many posters to this blog is that SSA ALJs sucked to begin with? Maybe America doesn't deserve a democracy, after all.

Anonymous said...

429 you make a good point however the fact remains that SSA begged for an Agency specific cert, and little known fact, they actually got one in the late 90s but it was pulled at the last minute thanks to political pressure.

Does anyone out there remember the Algics and Malgics fable? All these years later it has come true. We have many very good judges, insiders and outsiders. We also have many, shall we say less than stellar judges insiders and outsiders. However, focusing on litagator skills, which come with litagator personalities, causes problems not only on the bench but in the office as well.

Somewhere there is a happy medium. This EO is not it.

Nor is bashing our judges.

Although I no longer have a dog in this particular race, I well understand the glee with which some insider SA/AA are viewing this development. After all, the rally cry used to be "I do the damn job, I would just like to get paid for it".

My advice to those insiders is let that go, because when they tear down the judges, everyone gets torn down. If they don't need judges, why do they need attorneys. Anyone remember the AO project?

So much history and it appears we are doomed to repeat it.

There used to be hearing examiners and then there were judges.

If everyone doesn't hang together, they will certainly hang separately.

Then we will be saying, there used to be judges and now there are hearing examiners.

Remember, rising tides raise all ships, but the opposite is also true.

Anonymous said...

The mission statement of the Social Security Administration is to administer national Social Security programs as prescribed by legislation in an equitable, effective, efficient and caring manner. The emphasis politically for the past ten or so years has been not on fulfilling this mission but to find ways and justification for underfunding, undermining and eventually dismantling or privatizing this agency. The disabled and their representatives have been attacked by extremist politicians and the mainstream corporate media which now even includes NPR sadly. The next step will be to prevent representatives from being able to earn enough in this practice to keep their offices open leaving this vulnerable and often desperate population without adequate representation. This is part of the reason our once vibrant, prosperous middle class democracy is disappearing as we watch. Shame on those who can't get enough wealth, power, and influence to ever be satisfied who turn their backs on the disabled, the widows and the orphans of this society. There will be a special place in hell for them.

Anonymous said...

Found some interesting language in a US Supreme Court case entitled Butz v. Economou, 438 U>S> 478 (1978): "There can be little doubt that the role of the modern federal hearing examiner or administrative law judge within this framework is "functionally comparable" to that of a judge. His powers are often, if not generally, comparable to those of a trial judge...More importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgement on the evidence before him, free from pressures by the parties or other officials within the agency." Compromising the role of the fair and impartial decision maker in a democracy is playing with fire and starting down the road to ignoring the rule of law and to tyranny. How long will the people tolerate it if they come to learn that "the fix is in" when they appear before their federal government?

Anonymous said...

@10:50 Do you actually thinks ALJ's are impartial?

Anonymous said...

9:25 - Yes. I mean, there are differing grant rates based on reasons too complex to go into here, but they're certainly free of political pressure. Up until now. It's not like they get a bonus for holding a lot of hearings or disciplined if they pay too many or too few cases. That may start to change now that union protections are curtailed (within SSA) and excepted service employees are easier to hire based on political motivation and perhaps fire if there is a probationary period. So to the extent their pay is not tied to any particular outcome of the cases, they've been hired through a non-political process, there's no undue political influence from presidential appointees, then yes, they're as impartial as impartial as any group of 2000 or so individuals (government-wide) can be.

David Tucker said...

@3:36 PM : Too complex? For who an 8 year old? All you have to do is look at the political parties ALJ's belong to and see a clear bias. In my region 99.9 percent of those with high denial rates are republicans or libertarians. Those with normal 50/50 denial/approve are democrats.

In my region there is one ALJ who last year approved 45 cases and denied 350 cases. Another who approved 70 cases and denied 320 cases. Both are, shocker republicans.

I am welcome to this change. I can't wait for the influx of federal lawsuits of people who were denied. Their decisions are essentially null and void.