What Took You So Long?

Email from the Chief ALJ

Colleagues,

On June 21, the Supreme Court issued its decision in Lucia v. SEC, Case No. 

 17-130.  The holding in Lucia was narrowly tailored to SEC ALJs, and does not directly implicate SSA ALJs or our programs.  After analyzing the holding in Lucia and consulting with the Department of Justice, earlier today the Acting Commissioner ratified the original selection of incumbent SSA ALJs and approved their current appointments in the competitive service.  Moving forward, affirmation of the oath of office will be administered, and your e-OPF files will be updated accordingly to reflect these actions.

On July 10, 2018, President Trump issued an Executive Order 13843 (EO). This order addresses potential constitutional concerns with the ALJ appointment process without affecting ALJs  qualified decisional independence or altering the status of ALJ incumbents.  The EO provides prospective direction; therefore, the Acting Commissioner s actions to ratify the appointment of incumbent ALJs to their position in the competitive service is in accordance with the EO.

The Supreme Court once described our hearings operation as the largest adjudicatory system in the world.  At the heart of our massive and complex operation is each of you, who serve as the face of this agency for thousands of people every day.  Your dedication is a testament to public service and is critical to ensuring that our vital work for the American public continues uninterrupted.  Thank you for your service and dedication.

Patrick Nagle

Waiting In Atlanta

     From WGCL:

An Atlanta veteran who once served in the Navy is now living in and out of homeless shelters.

George Hocker reached out to CBS46 reporter Natalie Rubino after he'd been waiting two years for social security.

After his service, Hocker worked for decades as an executive assistant. But in 2009, he had his first heart attack.

"Recovered from that, went back to shortly after I went back to work I had a second heart attack," said Hocker.

He recovered from that too but he had a third heart attack. So in 2013, Hocker applied for disability with social security. At 55 years old he was denied.and couldn't find a job in his field.

Hocker then worked retail for three years until it became too painful to stand for long periods of time.

"I went to the doctor and found out I had peripheral artery disease on top of my coronary artery disease," he said.

His VA doctor told the SSA that Hocker couldn't work. Still he was once again denied disability benefits. So he went to the VA to for help.

"They said you have to actually become homeless before we can do anything for you," said Hocker.

But the head of the Social Services Department for the VA tells CBS46 they did provide Hocker with other resources.

"We provided all of those resources but it's the veterans choice whether they follow up or go with a or b."

Hocker says after he became homeless the VA placed him at the Salvation Army's shelter. Now he's desperately waiting for an appeal date with social security. ...

A spokesperson for social security also tells Natalie Rubino after hearing about Hocker's case, they've requested that his appeal court date be scheduled immediately.

Social Security Wants Software Purchasing Advice

     From Nextgov:

The Social Security Administration wants to spend less on tech and is looking for a vendor to help do its homework.

The agency issued a request for information last week for small businesses able to conduct market research on current software services and pricing, or what it calls “fair market value benchmark and optimization services.”

Citing cost-savings mandates in the Federal Information Technology Acquisition Reform Act, or FITARA, and the Making Electronic Government Accountable By Yielding Tangible Efficiencies, or MEGABYTE, Act, the agency wants to have a better understanding of the software marketplace at any given time to inform buying decisions, including whether to renew existing licenses or purchase new ones.

As part of its duties, the winning vendor would be asked to produce a fair market value report on demand for a particular software or company. ...

Complaint About Tattered Flag Leads To Arrest At Social Security Office

     From an Arizona television station:

A disabled veteran was roughly kicked out of a Social Security office in Mesa after informing a security guard that the American flag flying outside the office was tattered. ...

"The flag means to me more than it does to a lot of people," said [Richard] Moriarty.

So when he saw a tattered flag hanging outside the Mesa Social Security office near Baseline and Country Club Drive, he was devastated.

"Each stripe was torn. It was in tatters," he described.

Moriarty felt like he had to say something. ...

Moriarty said he walked into the office and approached a security guard.

"I said, 'Do you know you need to take that flag down? It's desecrated,'" he said.

Moriarty offered to take it down for them and asked the security guard if he was a veteran. That's when the situation escalated and within seconds, the guard pushed Moriarty out of the office.

"I can't breathe!" yelled Moriarty in a video captured by a witness, Shivani Dallas.
Mesa Police arrived on scene. According to their report, the security guard claimed Moriarty initiated the conflict by pushing him in the chest. The 63-year-old is now charged with disorderly conduct and trespassing. ...

"Court-Packing" Coming?

     From Joe Davidson writing for the Washington Post: 

President Trump’s latest action upsetting the established order of the federal workforce has spawned a bevy of accusations that his move could politicize the administrative judiciary.

A Trump executive order says administrative law judges, who primarily work for the Social Security Administration, will no longer be hired by the competitive civil service process that is a mainstay of an impartial bureaucracy. Instead, they will be selected by agency heads who could pick lawyers who do not need the experience previously required. ...

John Palguta, a civil service expert who previously worked for the Merit Systems Protection Board and the OPM, said the order should not pose a problem if agencies act “in a responsible manner.” ...

Calling the order “a court-packing plan” and “the equivalent of placing a thumb on the scale of justice,” Marilyn Zahm, president of the Association of Administrative Law Judges, said “they are removing hiring based on merit and replacing it with a system that could lead to abuse and biased decisions.” ...

Who Knew A Law Review Article Could Have An Effect In The Real World?

     From Reuters (and note the text I bolded which shows who came up with the Appointments Clause argument to begin with, Kent Barrett of the University of Georgia Law School):

In an executive order issued Tuesday, the Trump administration abruptly ended the longtime bureaucratic process by which federal agencies select administrative law judges – the judicial officers who preside over millions of administrative proceedings a year, from the smallest of Social Security claims [actually Social Security disability claims are worth hundreds of thousands of dollars] to multimillion-dollar enforcement cases. ...

The executive order said the change will give agency heads more freedom, flexibility and responsibility to hire ALJs without compromising the judges’ independence.

Skeptics aren’t so sure. Two administrative law experts told me Wednesday that the order will allow the Trump administration to reshape administrative courts to reflect its policies – and could presage even more aggressive attempts to get rid of ALJs who don’t toe the line. 

“I’m growing more concerned,” said University of Georgia law professor Kent Barnett. “This feels like a movement to burn down the entire administrative state.”  ...

On its face, said Barnett and Loyola Marymount law professor Adam Zimmerman, the executive order doesn’t pose an immediate threat to ALJ independence. ...

Right away, the profs said, the order seems to empower agency heads to hire new judges based on only their assessment of candidates’ “temperament, legal acumen, impartiality and judgment.” Replacing OPM’s objective hiring criteria with subjective standards, Zimmerman said, “opens the door” to politicization of the ALJ system. ...

That means, according to Barnett and Zimmerman, that Trump officials can stack administrative courts with new judges they’ve hand-selected. “I’m concerned that this packing is going to lead to a one-sided culture within the ALJ corps” and criticism that ALJs are biased and unprofessional, Zimmerman said in an email. ...

[A]ccording to Barnett (who pioneering the Appointments Clause theory in a 2013 law review article), the executive order didn’t actually address the problem the Supreme Court identified in Lucia, since the order changed the process for new ALJs and the Lucia case raised questions about ALJs already serving in the government. The new order, Barnett said, uses a sword to solve a problem that was better suited to a scalpel.

“This came out of the blue - the Supreme Court said nothing about the OPM process,” he said. “The order is based on a feigned argument. Why this change? Why was it done so quickly?” Barnett elaborated on his email to other administrative law profs: “The EO looks like an attempt to undermine ALJ impartiality in fact and certainly appearance, not improve the hiring process itself.”...

The New Combative Attitude Toward Employee Unions

     From Government Executive:

Officials with the National Treasury Employees Union said Tuesday that two agencies have begun efforts to implement President Trump’s recent workforce executive orders governing union use of agency property.

Last week, the Office of Personnel Management issued guidance on policy changes in light of the Trump administration’s effort to make it easier to fire federal workers, streamline the collective bargaining negotiation process, and curb union employees’ use of official time. While OPM Director Jeff Pon said the executive orders, which are subject to multiple legal challenges, do not “abrogate” existing bargaining agreements, he insisted that agencies move to change them at the “earliest date permitted by law,” and to change policies unilaterally once an agreement expires.

NTEU National President Tony Reardon said that last week, the Social Security Administration’s Office of Hearing Operations informed the union that it plans to strip it of rent-free office space unilaterally. NTEU represents around 1,700 employees at the office.

The OHO-NTEU collective bargaining agreement had expired, but labor and management had already established ground rules for negotiations of a new contract.

Reardon said the union plans to argue against this action as part of the lawsuit it has filed along with 14 other federal sector unions against the Trump administration. The suit argues the executive orders conflict with the 1978 Civil Service Reform Act and exceed Trump’s authority as president.

“We do not believe that the agency can unilaterally implement these anti-employee provisions without bargaining, as required by the current statute governing labor relations in the federal government,” Reardon said. “We look forward to arguing our case in federal court at the end of this month to preserve the workforce rights for the men and women of OHO.” ...

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.