APPENDIX K
ASSOCIATION OF ADMINISTRATIVE LAW JUDGES
Henry
Reuss Federal Plaza, Suite 300
310 W.
Wisconsin Avenue
Milwaukee,
WI 53203
(414-297-3141
X 3009)
December 10, 2004
The Honorable Martin Gerry
Deputy Commissioner
ODISP
6401 Security Boulevard
100 Altmeyer Building
Baltimore, MD 21235
Dear Deputy Commissioner Gerry:
I am writing to express our deep concern with the
administrative law judge quota memorandum we received from Associate
Commissioner Thurmond on November 19, 2004. When we met with the
Commissioner in October, we expressed our concern with the relentless pressure
from Associate Commissioner Thurmond for increased administrative law
judge case production. We expressed our concern with its long term
corrosive impact on both the due process hearing and the Social Security
disability trust fund. In his last memorandum, Associate Commissioner
Thurmond stated that "our disposition per ALJ rate needs to average at
least 2.45 dispositions per ALJ - at least 52 dispositions per month (624
dispositions per year)". Mr. Thurmond's quota is actually closer to
62 dispositions per month since his annual disposition of 624 is based on
working the entire month of each and every month of a 12-month year. With
holidays, annual leave and sick leave no judge or agency employee actually
works the entire month of each and every month in a year.
We are extremely disappointed with the administrative law
judge production quotas issued by Associate Commissioner Thurmond because they
are in violation of law, a settlement agreement with the agency and our
collective bargaining agreement. This egregious action must be corrected
forthwith.
Production quotas for administrative law judges are
contrary to the law. In 1946 the Congress adopted the Administrative
Procedure Act creating the hearing examiner system [now administrative law
judges] to protect the public from undue agency influence in administrative
hearings. The United States Supreme Court first addressed the question of
the status of Federal administrative law judges in 1951. The Court stated
that the legislative history of the Administrative Procedure Act indicated that
enhancement of the status and function of the trial examiner was one of the
important purposes of that administrative reform. [Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474
(1951)] The Administrative Procedure Act was enacted to address
frequent complaints that agency hearing examiners were "mere tools
of the agency concerned and subservient to the agency heads in making their
proposed findings of fact and recommendations". Congress
reformed the system by making hearing examiners "a special class of
semi-independent subordinate hearing officers" by vesting control of their
compensation, promotion and tenure in the Civil Service Commission to a much
greater extent than in the case of other Federal employees. [Ramspeck
v. Federal Trial Examiners Conference, 345 U.S. 128 (1953)] The
Supreme Court again reviewed the process of administrative adjudications
in 1978. The Court said that prior to the Administrative Procedure Act,
there was considerable concern that persons hearing cases at the administrative
trial level could not exercise independent judgment. The Court stated
that the agency administrative adjudication system "is currently
structured so as to assure that the hearing examiner exercises his independent
judgment on the evidence before him free from pressure by the parties or other
officials within the agency." The Court stated that there can be
little doubt that the role of the modern Federal hearing examiner or administrative
law judge is "functionally comparable" to that of a trial
judge. [Butz v. Economou, 438 U.S. 478 (1978)] The
Court affirmed this role of the Federal administrative law judge in
2002. [Federal Maritime Comm'n v. South Carolina State Ports
Authority, 535 U.S. 743 (2002)]
Litigation by judges against the Social Security
Administration over production quotas has a long history. A declaratory
action brought by ALJ Simon Nash, the HOCALJ in Buffalo, to determine whether
an agency policy directive issued to judges to produce 26 dispositions per
month was an illegal quota in violation of the Administrative Procedure Act
lasted over ten years and resulted in two federal circuit court decisions. [Nash
v. Califano, 613 F.2d 10 (2d Cir. 1980) ("Nash I") and Nash
v. Bowen, 869 F.2d 675 (2d Cir. 1989) (Nash II)] Nash
II stands for the proposition that administrative hearings shall be
conducted in an impartial manner and that fixed case production quotas are a
violation of the Administrative Procedure Act. After a fact-finding
hearing the district court found the directive not to be a quota. The Court of
Appeals stated:
[W]e agree with the district
court that reasonable efforts to increase the production levels of ALJs are not
an infringement of decisional independence. In [the] memorandum . . . then
Director Trachtenberg indicated that while he was opposed to the fixing of quotas,
he was recommending a goal of 26 dispositions per four-week
period. Id. at 680 (emphasis in original).
Associate Commissioner Thurmond dispensed with all
pretenses that his directive was recommending a goal of 52 dispositions
by stating "our disposition per ALJ rate needs to average - at
least 52 dispositions per month (624 dispositions per year)." In Nash
II the court was sympathetic to the agency argument that something had to
be done since "the Social Security Administration (the "agency")
was faced with an administrative crisis due to a backlog of over 100,000
cases." Id. at 676 and 681. Today the backlog is over 500,000
cases. We assert this five-fold increase in the backlog is not the fault
of the judges and setting quotas that require judges to more than double their
production will not solve the problem. The cause of this
"administrative crisis" brought on by the five-fold increase in the
backlog has multiple roots which include a sustained economic
"down-turn", an aging population and the agency reorganization known
as "HPI".
The judicial independence for Federal administrative
law judges, which is provided for in the Administrative Procedure Act, was
codified by excluding them from the Federal employee agency appraisal
systems. [5 U.S.C. sec. 4301] It is well established that Congress
created judicial independence for administrative law judges for the protection of
the claimants and not for the protection of the judge. It
should also be noted that SSA administrative law judges have the sole
authority to set the time and place for the hearing of a case. [20 CFR
404.936] With regard to travel dockets, a former SSA chief judge
issued a memorandum setting forth suggested numbers of cases to be scheduled on
hearing trips. In litigation involving the interpretation of this
memorandum, an administrative law judge for the Merit Systems Protection Board
held that this memorandum sets forth "guidelines" and
"goals" for scheduling cases and other factors, such as the probable
duration of the hearings, determined the size of the docket. In fact, SSA
Chief Judge Charles Boyer testified that the numbers set forth in the
memorandum were not quotas and there could be variances. [SSA, v.
Stephens, MSPB Case No. CB-7521-97-0048-T-1 (1998)] It is clear
that the law prohibits the agency from imposing case production quotas on
administrative law judges to protect the judges from undue agency influence and
from the conditions existing prior to the Administrative Procedure Act.
Production quotas for administrative law judges are
contrary to a settlement agreement that the agency entered into with
administrative law judges who were involved in litigation with the
agency. During the 1970's these administrative law judges commenced an
action against the agency for interfering with their judicial
independence. In 1979 the litigation ended when the agency entered into a
settlement contract with the judges. The settlement contract provided, in
part, that "OHA will not issue directives or memoranda setting any
specific number of dispositions by ALJs as quotas or goals." The
agreement further provided that it could not be changed without good faith
consultation with both the Association of Administration Law Judges and the ALJ
Corps. [Bono v. United States of America Social Security
Administration, Civil No. 77-0819-CV-W-4 (W.D. Mo. 1979)]
Within a month after the Bono settlement, the General Counsel of
the Social Security Administration issued a memorandum to all agency
administrative law judges, with reference to the settlement, that stated,
"it is understood that OHA will not issue directives or memoranda which
set any specific number of dispositions by ALJs as quotas or goals. These
prohibitions apply to both the headquarters staff and to management officials
in the regional and hearing offices as well." [SSA General Counsel,
Mr. Donald A. Gonya, Memorandum, dated July 28, 1979] No subsequent
General Counsel has rescinded this memorandum.
Production quotas for administrative law judges are
contrary to the AALJ collective bargaining agreement with the agency. The
contract clearly provides that the work function of an administrative law judge
is professional, varied and complex and does not lend itself to standardized
production in given periods of time. The collective bargaining agreement
contains the following language:
The Parties recognize that the Judges covered by the terms
of this agreement are administrative law judges appointed pursuant to 5 U.S.C.
sec. 3105, and are engaged in the performance of duties which require the
consistent exercise of discretion, knowledge, and judgment in conducting
hearings. These duties are complex and varied as set forth in 5 U.S.C.
sec. 7103 (15)(A)(iv) and are of such a character that the output produced or
the results accomplished by such work cannot be standardized in relation to a
given period of time. [Article 5, Section 1]
Administrative law judges, like other professional
persons, are subject to performance standards that are prescribed by the code
of professional conduct that governs their particular profession. The
American Bar Association Model Code of Judicial Conduct for Federal Administrative
Law Judges sets forth performance standards in some detail for
administrative law judges. For example, administrative law judges should
be faithful to the law and maintain professional competence in it.
Administrative law judges should be patient, dignified and courteous to
litigants, witnesses and lawyers and should accord to all persons who are
legally interested in the proceeding, or their lawyers, full right to be heard
according to law. The judge should promptly dispose of the business before
the court and devote adequate time to his or her duties, be punctual in
attending hearings and expeditious in determining matters under submission, and
insist that other subordinate officials, litigants and their lawyers cooperate
with the judge to that end. [Canon 3] We have long advocated that
the agency work with the Office of Personnel Management and/or the Office of
Government Ethics to have this code of professional conduct adopted as part of
the governing regulations for all administrative law judges. It should
also be noted that the Merit Systems Protections Board has stated that it looks
to the America Bar Association codes of professional conduct for guidance in
disciplinary cases.
It is very troubling to us to have the Associate Commissioner
of OHA issue a memorandum that is clearly in violation of the law, a settlement
agreement with the agency, and the AALJ collective bargaining agreement.
It is the core mission of OHA to administer justice to the American public by
providing full and fair due process hearings. This is a right that the
American people are entitled to under our Constitution. The quota
memorandum is clearly improper and it infringes on this basic right of the
American people. It will also have an adverse effect on the Social
Security disability trust fund by having the result of "paying down the
backlog".
As part of the Redesign Reform Plan for the Social
Security disability system, the SSA Office of Workforce Analysis built a
computer model to study the time needed to perform the work functions on a
disability claim at each step of the process from the initial level to the
Appeals Council. Based on this study, it was determined that the time
line for performing the administrative law judge function provided for a range
of 25 to 55 cases per month. [Plan For a New Disability Claim
Process, Social Security Administration, September 1994] Based
on this study, administrative law judge case production at any point within
this range would be reasonable. According to recent information that we
have seen, each disability case is worth about $150,000 to $200,000 dollars,
plus an undetermined amount of medical costs. If a judge would produce
dispositions according to the Thurmond quota schedule, the judge would be devoting
less than three hours time to each case. If one hour is devoted to the
hearing, less than two hours would remain for all of the pre-hearing and
post-hearing work on the case. We suggest that it is not reasonable to
expect a judge to "churn" out cases in this manner. The
Thurmond quota scheme is no more than a plan to "pay down the
backlog" that will have a devastating effect on both the Social Security
disability trust fund and administrative due process. Moreover, such a
plan to "pay down the backlog" may attract unfavorable attention from
both the political arena and the press. We have had this experience
in the past and we do not want to have it occur again.
The action by the Associate Commissioner of OHA is a
serious encroachment on the Administrative Procedure Act and the
Constitutionally protected right of a due process hearing. This egregious
act is injurious to the American people and it must be corrected
immediately. We respectfully request an early meeting with you to discuss
this very serious affront to our long established system of justice and due
process.
There are other serious and significant issues which
negatively impact the administrative judiciary at SSA and should be discussed
and resolved at this meeting. One of these issues involves the absence of
any settlements in any of our pending grievances, arbitrations or litigation,
or worse, even a scheduled meeting to discuss settlement. As a result,
the clear direction of the Commissioner in Orlando to resolve as many issues as
possible will not be honored. Another serious issue which threatens the
efficient and effective functioning of the administrative judiciary at SSA, is
the absence of full authority in the chief administrative law judge.
Associate Commissioner Thurmond is not a judge and cannot perform the duties of
the chief judge. Finally, other issues that must be addressed at the
meeting include: the absence of a positive labor relations environment at
OHA; the agency's apparent refusal to bargain over certain critical
aspects of the electronic folder initiative; elimination of no-cost travel
orders; ALJ annual leave parity with the SES; administration of the transfer
and Flexiplace articles in the contract; staffing; no apparent attempt by
management to address the horribly written draft decisions we face daily and
other issues which have been accumulating.
All of the above issues are important to the AALJ and
we want very much to maintain the positive working relationship we have with
the Commissioner, as well as with you and your staff. Because of this
outstanding relationship, we respectively request that you share a copy of this
letter with Commissioner Barnhart.
Sincerely,
Ronald G. Bernoski
President
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