May 23, 2020

Is This A Win For The ALJ Union? Seriously, I'm Not Sure

     From Government Executive:
The Federal Labor Relations Authority on Thursday announced that it would stay implementation of a new union contract set to be imposed between the Social Security Administration and the Association of Administrative Law Judges, reversing a previous ruling allowing it to proceed.
The judges union is one of several labor groups challenging the constitutionality of how members of the Federal Service Impasses Panel, which settles intractable disputes that come up during collective bargaining negotiations, are appointed.
In March, the FLRA denied a request from the judges’ union to block the Federal Service Impasses Panel from issuing an imminent decision imposing a new collective bargaining agreement between the union and the Social Security Administration, finding that the request did not fall under the narrow circumstances under which the FLRA can halt the impasses panel’s proceedings. ...
In April, the impasses panel issued a mostly pro-management decision, prompting the union to file a federal lawsuit in U.S. District Court for the District of Columbia, seeking to declare the panel’s decisions null and void. The union argued that because the impasses panel’s decisions cannot be directly appealed and panel members are supervised only by the president, they are principal officers and must receive Senate confirmation.
Although the Social Security Administration has said it would delay implementation of the new union contract due to the lawsuit, on Thursday the FLRA issued a new decision formally staying the panel’s decision from taking effect. In its ruling, the agency said the lawsuit constitutes a new “differentiating circumstance” necessitating this action. ...


Anonymous said...

Can AFGE get a similar ruling? I would like my previous telework agreement reinstated. Under the new contract, AFGE lost the telework battle.

Anonymous said...

The "impasses panel" is composed of a bunch of right wingers. They were the ones who gave Saul and Grace Kim the power to terminate telework. The panel should not have such authority. Hopefully they will be constrained in the future.

Anonymous said...

It's only a matter of time before the ALJ job is eliminated. It seems quite clear that the agency wants the ALJ jobs gone and replaced with something like hearing officers. Whether that will make things better or worse is subject to debate.

Anonymous said...

Anon 6:23 Why exactly do they want to replace ALJs? Is it a matter of too much money or they want to hire people they can control more?

Anonymous said...


Both. ALJs (in theory, as it has never actually been legally established) exercise decisional independence as judges under the APA with the agency having the right to review some ALJ decisions.

By getting rid of all the so called "judges", they get rid of all of those "pesky" APA rules. Re-titling the decision maker position as something like "administrative hearing officer" would allow them to save money by paying a lot less (you don't need pay a lawyer to be a policy puppet), and the so called "hearing officers" could be ordered (with little recourse) to give deference to all prior administrative decisions made by the agency. The agency could also institute 100% review of all decisions to ensure that those decisions meet the political policy of the President (whomever ends up in charge at any particular time).

Since the agency considers that pretty much every denial decision through the initial and reconsideration levels is absolutely and totally correct (despite how defective and absolutely legally indefensible a large number of those decisions actually are), the hearing appeal level would become a huge rubber stamp on the way to the Federal court system.

Whether it would work or not depends upon how the Federal courts deal with the absolute blizzard of Social Security litigation that would result (i.e. you'd be literally dumping all the cases that the ALJs would have otherwise approved into the Federal court system on top of the current number of denials). If the federal courts absolutely slap them down in retribution, the agency hasn't lost anything. On the other hand, if the courts just take it without comment (which they probably would, excepting certain judges), the agency wins.

All in all, it is just politics as usual.

Anonymous said...

I did see a trend a few years back in the hiring of ALJs. Believe it was right before Astrue left so that would have been around 2013. Most of the new ALJs were trained to deny. I knew 1 of them who was a writer. And his decisions were much stricter right off the bat. But eventually settled down to what his normal grant would be.

This was in direct contrast when I first started out in 2006. Most new ALJs would start off over granting. Then, they would feel they got duped on a borderline case and started granting less. But eventually they settled into their normal grant rate.

The SSA can try to control the ALJs all they want. But as it stands, they do not have as much control either way on how they decide.