New Standards For ALJs

The Office of Personnel Management has posted new standards for Administrative Law Judges (ALJs), reproduced below. I have no idea whether this moves us closer to a new ALJ register.

Qualification Standard For Administrative Law Judge Positions

I. BACKGROUND

The Administrative Law Judge (ALJ) function was created by the Administrative Procedure Act (APA) in 1946 to ensure fairness in administrative proceedings before Federal Government agencies.

ALJs serve as independent impartial triers of fact in formal proceedings requiring a decision on the record after the opportunity for a hearing. In general, ALJs prepare for and preside at formal proceedings required by statute to be held under or in accordance with provisions of the APA, codified, in relevant part, in sections 553 through 559 of title 5, United States Code (U.S.C.). ALJs rule on preliminary motions, conduct pre-hearing conferences, issue subpoenas, conduct hearings (which may include written and/or oral testimony and cross-examination), review briefs, and prepare and issue decisions, along with written findings of fact and conclusions of law.

The Federal Government employs ALJs in a number of agencies throughout the United States. Cases may involve Federal laws and regulations in such areas as admiralty, advertising, antitrust, banking, communications, energy, environmental protection, food and drugs, health and safety, housing, immigration, interstate commerce, international trade, labor management relations, securities and commodities markets, social security disability and other benefits claims, and transportation.

II. QUALIFICATION REQUIREMENTS

An applicant must meet both the licensure and experience requirements and pass the OPM administrative law judge competitive examination to qualify for an ALJ position.

A. Licensure

Applicants must be licensed and authorized to practice law under the laws of a State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution throughout the selection process, including any period on the standing register of eligibles. Judicial status is acceptable in lieu of "active" status in States that prohibit sitting judges from maintaining "active" status to practice law. Being in "good standing" is acceptable in lieu of "active" status in States where the licensing authority considers "good standing" as having a current license to practice law.

B. Experience

Qualifying Experience

Applicants must have a full seven (7) years of experience as a licensed attorney preparing for, participating in, and/or reviewing formal hearings or trials involving litigation and/or administrative law at the Federal, State or local level.

Cases must have been conducted on the record under procedures at least as formal as those prescribed by sections 553 through 559 of title 5, U.S.C.

Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document (e.g., indictment or information) was issued by a court, a grand jury, or appropriate military authority, and includes:

• participating in settlement or plea negotiations in advance of trial;
• preparing for trial and/or trial of cases;
• preparing opinions;
• hearing cases;
• participating in or conducting arbitration, mediation, or other alternative dispute resolution approved
  by the court; or
• participating in appeals related to the types of cases above.

Qualifying administrative law experience involves cases in which a formal procedure was initiated by a governmental administrative body and includes:

• participating in settlement negotiations in advance of hearing cases;
• preparing for hearing and/or trial of cases;
• preparing opinions;
• hearing cases;
• participating in or conducting arbitration, mediation, or other alternative dispute resolution approved by the
  administrative body; or
• participating in appeals related to the types of cases above.

Non-qualifying Experience

Experience involving cases with no formal hearing procedure and uncontested cases involving misdemeanors, probate, domestic relations, or tort matters is not qualifying.

C. Examination

Applicants are required to pass an examination, the purpose of which is to evaluate the competencies/knowledge, skills, and abilities (KSAs) essential to performing the work of an Administrative Law Judge.

III. CONDITION OF EMPLOYMENT

ALJs must be held to a high standard of conduct to maintain the integrity and independence of the administrative judiciary. As a condition of employment, all ALJs must meet the licensure requirement stated in Part II Qualification Requirements. Incumbent ALJs must continue to meet this condition throughout the duration of their employment. This requirement also applies to former ALJs who are reinstated or reemployed as Senior ALJs. Judicial status is acceptable in lieu of "active" status in States that prohibit sitting judges from maintaining "active" status to practice law. Being in "good standing" is acceptable in lieu of "active" status in States where the licensing authority considers "good standing"

Commissioner At Press Briefing On Monday

From a Treasury Department press release:

Treasury Secretary Paulson to Host Press Briefing on the Social Security and Medicare Trustees Reports

Treasury Secretary and Managing Trustee Henry M. Paulson, Jr. will be joined by members of the Social Security and Medicare Trustees Board for a press briefing to discuss the release of the annual trustees reports on Monday.

Who
Secretary of Treasury and Managing Trustee Henry M. Paulson, Jr.
Secretary of Labor and Trustee Elaine L. Chao
Secretary of Health and Human Services and Trustee Michael Leavitt
Commissioner of Social Security and Trustee Michael J. Astrue
Public Trustee John Palmer
Public Trustee Thomas Saving

What
Press Conference to discuss Social Security and Medicare Trustees Reports

When
Monday, April 23, 2007, 3:15 p.m. EDT

Where
Treasury Department
Media Room (Room 4121)
1500 Pennsylvania Ave., NW
Washington, DC

Something Not Mentioned At NOSSCR Conference

I do not want to make too much of this, but there was no mention today by any of the speakers at the National Organization of Social Security Claimants Representatives (NOSSCR) conference of any pending increase in the Social Security attorney fee cap which has been stuck at $5,300 for several years. I expect that Commissioner Astrue is aware of this issue, but has been focusing on other, more pressing matters.

Some Highlights From NOSSCR Conference

The National Organization of Social Security Claimants Representatives (NOSSCR) conference got under way in earnest this morning. I will have much more detail later, but here are a few highlights - and do read to the end:

• Nancy Shor, NOSSCR Executive Director said that she understood that 5% of Administrative Law Judges (ALJs) would be detailed to Falls Church, where Social Security's Office of Disability Adjudication and Review (ODAR) is based to work on clearing Social Security's hearing backlog, with cases pending over 1,000 days targeted first. Lisa DeSoto, who is in charge of ODAR essentially confirmed this later saying that there had been over 26,000 of these cases and that number had been reduced to less than 19,000. She hoped to get all of these eliminated by the end of the fiscal year, September 30, 2007.
• I had posted earlier about plans to offer positions to retired ALJs to help work off the backlogs. The plan is that these retired ALJs would only work out of Falls Church, which dramatically reduces what may be possible.
• The Federal Reviewing Officer (FedRO) allowance rate is 25%.
• Michael Astrue told Nancy Shor in a recent meeting that many stalled regulations would be moving forward in the near future. When asked if this included the proposed regulations that would increase the age categories of Social Security's grid regulations by two years, Astrue gave a concise answer: "No."
• Nancy Shor said that her meeting with Astrue was mostly a monologue by Astrue.
• Marty Ford of the Association for Retarded Citizens (ARC) and the Coalition for Citizens with Disabilities (CCD) said that it was her impression that Commissioner Astrue wanted major changes in Social Security's Office of Medical and Vocational Experts (OMVE).
• Ford said that she thought that Astrue was looking at proposals to close the record earlier.
• Glenn Sklar said that proposed regulations to change the mental impairment Listings were coming and that the changes were significant.
• Lisa DeSoto indicated that she favored a change in the name of ODAR.
• DeSoto said that Commissioner Astrue is interested in an increase in the number of Listings.
• DeSoto said that the backlog at ODAR of cases awaiting a hearing is 750,000. She believes that 400,000 cases is what is needed just to keep work in the pipeline. ODAR is currently disposing of about 550,000 hearing cases per year.
• DeSoto did not use the term re-recon, but indicated that this was very much under consideration.
• DeSoto proudly claimed credit for promoting the idea of a computer program that will "pull" exhibits. I predict that she will regret this.
• DeSoto said that the Office of Personnel Management (OPM) is going "full steam ahead" with a new ALJ register and expected to have this by the end of this calendar year. The tone of DeSoto's voice expressed clear skepticism about this.
• DeSoto said that re-activating the senior attorney program was under consideration and that, although she could not speak for her boss, Michael Astrue, that she thought that "everyone views it favorably."
• DeSoto said that Social Security may go to 75 day notice of ALJ hearings.
  

SSAB Meeting Agenda

The Social Security Advisory Board (SSAB) has announced the following agenda for its meeting on April 19:

Social Security Advisory Board
Meeting Agenda
Thursday April 19, 2007

9:30 a.m. - 11:00 a.m. Thomas Hughes, Chief Information Officer
Social Security Administration

Astrue Not Scheduled To Speak At NOSSCR Conference

The National Organization of Social Security Claimants Representatives (NOSSCR) conference is underway in Baltimore. Michael Astrue, the Commissioner of Social Security, is not scheduled to speak. Glenn Sklar, Associate Commissioner for the Office of Disability Programs is scheduled to give a "Medical Policy Update" on Thursday morning.

AFGE Criticizes Biggs Recess Appointment

The American Federation of Government Employees (AFGE), which represents 28,000 Social Security employees, has issued a press release criticizing President Bush's recess appointment of Andrew Biggs as Deputy Commissioner of Social Security.

Disabled Population Grows

I had not noticed this previously. Social Security's budget proposal for fiscal year (FY) 2008 includes figures for the projected growth in the number of people receiving Social Security benefits in FY 2008. The expected growth in the number of disability beneficiaries is 327,000, which compares to a projected growth of only 575,000 in old age and survivors benefits. The people now going on old age and survivor benefits are primarily from the baby bust generation, born during the Great Depression and World War II, while the people going on disability benefits are primarily from the baby boom generation. This demographic difference shows up in these numbers may be even more dramatically expressed in the SSI projections, which actually show a tiny decline in the number of people expected to draw SSI benefits on account of age, while showing a big increase in those drawing SSI benefits on account of disability.