Documents Library

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2017 Providence FALJC Conference Materials Link

INSTRUCTIONS:  To access the conference materials for viewing online, simply click on the link below and you can view the materials on any mobile device with Internet access.  If you intend to bring your mobile device to the conference, you do not need to download the materials to view them during the sessions.

However, if you prefer to download the materials to your mobile device or computer, or you intend to print out the materials and bring them with you, you should open a FREE Dropbox account.  Once you have opened your Dropbox account and downloaded the app to your mobile device or computer, return here and you can follow this link to the Dropbox folder where you can download the materials.  Here are the conference materials in Dropbox.

If you prefer NOT to open a Dropbox account, you may download the materials onto your computer or device by clicking download after accessing the link or you can download the ZIP file below onto your device.

Conference materials are in a ZIP file here.

Please note that this ZIP file is complete only through September 12, 2017.  Any late materials submitted after that date will not be available in the ZIP file, but can be accessed after the conference when we update that file.

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2015 FALJC Conference Materials Link

INSTRUCTIONS:  To access the conference materials for viewing online, simply click on the link below and you can view the materials on any mobile device with Internet access.  If you intend to bring your mobile device to the conference, you do not need to download the materials to view them during the sessions.

However, if you prefer to download the materials to your mobile device or computer, or you intend to print out the materials and bring them with you, you should open a FREE Dropbox account.  Once you have opened your Dropbox account and downloaded the app to your mobile device or computer, return here and you can follow this link to the Dropbox folder where you can download the materials.

If you prefer NOT to open a Dropbox account, you may download the materials onto your computer or device by clicking download after accessing the link.

Faljc used Dropbox to share some files with you!Click here to view 2015 Annual Meeting in Charleston, SC Conference Materials.

FALJC Archived Documents

FALJC Newsletters

Newsletter – November/December 2011
Newsletter – September/October 2011
Newsletter – May/June 2011
Newsletter – March/April 2011
Newsletter – January/February 2011

FALJC News Alerts

FALJC News Alert 12-28-2011
FALJC News Alert 6-20-2011 (6/20/2011)
FALJC News Alert 4-13-2011 (6/1/2011)
FALJC News Alert 5-27-2011 (6/1/2011)
FALJC News Alert (3/14/2011)

FALC Briefing Book submitted to the President-Elect of the United States  (November 2008)

FALJC Briefing Book Attachments (November 2008)

ALJ Manual (NCALJ, 2004)

Previous ALJ Examination Sections:

Federal ALJ Application – “Overview” Section

Federal ALJ Application – “How to Apply” Section (NOTE: THESE SECTIONS HAVE SINCE BEEN MODIFIED)

Federal ALJ Application – “Qualifications & Evaluations” Section Form
FALJC Archives

2016

Letter Opposing OPM Proposal for Term Limited ALJs

February Executive Meeting: Agenda; November Minutes; Pay letter to OPM; ABA Pay letter; ALJ Pay Chart; ALJ history

January Meeting – Cancelled Due To Weather

2015

May Executive Committee Meeting: Agenda; April Minutes;

April Executive Committee Meeting: Agenda; March Minutes; Financial Report; Williamsburg Conference Income and Expense Report.

March Executive Committee Meeting: Agenda; February Minutes; Draft Office of ALJ Bill and section-by-section analysis.

February Executive Committee Meeting: Agenda; January Minutes.

January Executive Committee Meeting: Agenda; Treasurer Report; November Minutes.

2014

November Executive Committee Meeting: Agenda; October Minutes.

October Executive Committee Meeting: Agenda; May Minutes; Hotel Contract (September 2015 Conference)

Annual Meeting: AgendaMinutes; Program book; FALJC comments to DOL proposal for temporary use of ALJs as Immigration Judges

Congressional Research Service May 19, 2914 Report to House Oversight Committee on Ethics Regulations Applicable to ALJs

2013

FALJC_Amicus_Motion_Mahoney_v_HUD (June 2013)

Agency Chief Administrative Law Judges (and designees) as of March 20, 2013.

2012

Constitution and Bylaws Revision Committee Report and Committee Notes

ALJs by Agency

2011

Disability-Benefits System Faces Review (updated 12/16/11)
Wall Street Journal, December 15, 2011, By Damien Paletta
The Social Security Administration has commissioned an independent review of the federal disability system amid concerns it awards benefits to those who don’t deserve them and denies benefits to those who do. Click here to read the article.

NOAA and Coast Guard amend memorandum of agreement clarifying use of Administrative Law Judges for pending NOAA cases (updated 12/16/11)
NOAA Press Release – November 10, 2011

OSC investigating CFTC for allegedly taking RIF action against judge for retaliatory reasons (updated 12/13/11)
Judge Bruce Levine has filed a complaint with the U.S. Office of Special Counsel alleging that he has been subjected to a Reduction in Force (RIF) by the Commodities Futures Trading Commission in retaliation for engaging in protected activity and making protected disclosures. Based on the information provided by Judge Levine, the OSC has determined that further investigation is warranted to investigate possible violations of 5 U.S.C. § 2302(b)(9), which prohibits reprisal for engaging in protected activity, and 5 U.S.C. § 2302 (b)(8), which prohibits reprisal for making protected disclosures. The OSC granted Judge Levine’s request for a stay of the RIF, but did so for a brief period until December 12. At the time of this writing, it is unknown if the stay was extended. FALJC members interested in further information may contact Judge Levine at 703-786-8273 or bruceclevine@gmail.com.

The ITC’s newest judges join FALJC (updated 12/5/11)
FALJC’s two newest members are Judges Thomas Pender and David Shaw. Both started with the ITC on October 24. Judge Pender transfered from SSA’s Richmond Hearing Office; Judge Shaw, a former ITC attorney, initially served at SSA’s Fayetteville, NC hearing office before and, most recently, at the Baltimore National Hearing Center.

Doctor Revolt Shakes Disability Program (updated 11/25/11)
THE WALL STREET JOURNAL (November 21, 2011) By DAMIAN PALETTA
Earlier this year, senior managers at the Social Security Administration in Baltimore, frustrated by a growing backlog of applications for federal disability benefits, called meetings with 140 of the agency’s doctors. The message was blunt: . . . (click here to read article)

November 18 Executive Committee meeting to enable online participation (updated 11/18/11)
Today’s Executive Committee meeting will be the first to enable online participation as well as telephone participation. Attached is the agenda for the November 18, 2011 Executive Committee Meeting and Luncheon. Also attached are the financial report, Meeting minutes for the October Executive Committee meeting, and the legislative report.

For those attending the Executive Committee meeting (11:00 a.m.) by telephone, this month’s meeting will be hosted through WebEx as an online video conference. To join the meeting via telephone:
Dial 1-408-600-3600
Enter Access Code: 624 581 472
State your name if requested
You may also join the meeting online and utilize your webcam or microphone to appear, or you can just watch the proceedings online and participate through your telephone connection. This should work from your desktop or any mobile device. Here is how you join the meeting online.

To join this meeting (Now from mobile devices!)
1. Go to https://faljc.webex.com/faljc/j.php?J=624581472
2. If requested, enter your name and email address.
3. Click “Join”.
4. Follow the instructions that appear on your screen.

If you have any trouble connecting, please give Judge Gilbert a call on his cell phone at (978) 807-1615.

FALJC motion to send letter urging OPM to apply leave enhancement law benefits to ALJs passes (updated 11/12/11)
By a vote of 11 in favor and 5 opposed, the FALJC Executive Committee approved sending OPM’s General Counsel Elaine Kaplan a letter urging OPM implement the enhanced leave provisions of the Federal Workforce Flexibility Act of 2004 for ALJs.

Judge Chuck Bullock named Chief ALJ at the ITC (updated 11/9/11)
On August 4, 2011, Deanna Tanner Okun, Chairman of the U.S. International Trade Commission designated Judge Chuck Bullock to serve as Acting Chief Judge. We learned today that Judge Bullock’s appointment was made permanent on October 20, 2011.

HHS DAB Seeking One ALJ in DC (updated 11/8/11)
Washington, D.C. – November 7, 2011 – The Department of Health and Human Services, Department Appeals Board announced today that it seeks to fill one (1) ALJ position in its Washington, D.C. office. The announcement is here. Current and eligible former ALJs are encouraged to apply.

EPA job announcement open until November 28 (updated 11/8/11)
The Environmental Protection Agency has issued a job announcement for an ALJ position in its Washington, DC office. Applications are due by November 28.

Five NLRB judges retiring (updated 11/7/11)
National Labor Relations Board Chief Judge Robert Giannasi announced today that Judges Eleanor MacDonald (NYC), George Aleman (Philadelphia), Lana Parke (Los Angeles) and Mark Rubin (Detroit) will be retiring by the end of the year. Coupled with the recent retirement of Burton Litvack, the NLRB Judges Division will be down to 36 judges nationwide.

Judicial Use of Social Media (updated 11/7/11)
By Daniel J. Crothers, Justice, North Dakota Supreme Court
A Georgia judge recently resigned after that State’s Judicial Qualifications Commission investigated the judge’s Facebook messaging with a defendant appearing in a pending matter before him. Late last year, a New York judge was reassigned after allegations surfaced that . . . (click here to read article)

FALJC renews effort urging OPM to apply leave enhancement law benefits to ALJs (updated 11/4/11)
As discussed at the October Executive Committee Meeting, the proposed letter to OPM relating the enhanced leave provisions of the Federal Workforce Flexibility Act of 2004 was re-drafted and the new version is attached. On a Motion made by Judge PEARSON, seconded by Judge GILBERT on November 3, 2011, before the FALJC Executive Committee: In accordance with Article V, Section 4 of the FALJC Bylaws, members of the Executive Committee have been asked to submit their votes in favor or against sending the letter to OPM’s Director. Votes must be submitted to Judge Pearson at rpears@flra.gov by Wednesday, November 9, 2011 by 4:30 p.m.

Issaination of FERS (updated 10/26/11)
The Federal Times reports today in an article on House Government Oversight Committee Chairman Darrell Issa’s latest proposal to gut Federal employees’ benefits – the elimination of FERS and replacing it with a 401(k) fund.

Have you considered a Roth IRA? (updated 10/25/11)
Financial gemstone only available for CSRS participants: A participant can establish a “ voluntary contribution account” and contribute at anytime and in any amount monies up to a maximum of ten percent of your lifetime federal earnings. While in this account, interest is paid at a rate established yearly by the Treasury Department and is a reasonable return given the other alternatives today. However, the super benefit occurs at termination of this account, which can be done at any time before your retirement, as it can be rolled over into a Roth IRA. There, all current income and capital gains are not taxable. Moreover, all distributions are not taxable and, if over 60, can be in any amount so long as it is not in excess of your roll over contribution. In short, Congress has allowed us to establish an individual tax shelter where all income is tax-free. The Roth IRA can also be left to your spouse or your kids. If you have worked long enough, contributions of $200,000 to $300,000+ are possible.
Financial nugget for CSRS and FERS participants: ALJ’s cannot contribute yearly to a Roth IRA. However, it can be done. One can make a nondeductible contribution to a newly created traditional IRA even though one cannot make a deductible contribution. While this contribution is not taxable when distributions are made later (because you did not receive a tax deduction from the original contribution), a better move is to roll the traditional IRA over into Roth IRA immediately. There, all of the earnings are tax free and nontaxable upon their distribution. You can do this year after year so long as the income limitation on the roll over is not reinstated by Congress.

New ALJ exam a long way from being rolled out? (updated 10/25/11)
OPM is still working on putting together a new ALJ exam. At this stage, they are still performing the occupational analysis required before an examination announcement can issue. Earlier this year, OPM staff met with a subject matter expert panel consisting of ALJs to compile the tasks and competencies relevant to the ALJ position. Most recently, OPM staff met with a panel consisting of Chief ALJs and their designees to review the same information. Surveys from those discussions will be sent to the participants for additional input. Based on past experience, it is safe to say that a new exam is not likely to materialize until well into next year. Moreover, while OPM Director Berry previously announced that future exam announcements would request resumes, it is not clear that the SQS or assessment narratives will be eliminated. It may very well be that resumes will be reviewed at the outset in order to screen qualified applicants, while the narratives will be scored for those selected for full consideration. In other words, if you have friends who have prepared draft responses to the Accomplishment Record Section on Competencies (see FALJC Documents Library link – “How to Apply”), tell them not to discard them yet. By the same token, if you know of qualified persons interested in the next exam, it would be good advice to suggest they prepare draft responses in advance of the next exam announcement. Lastly, it has come to FALJC’s attention that some agencies have requested that OPM refresh the current register, which would mean reopening the current exam in order to add new candidates. That would indicate that the hiring agencies believe that the current register has been exhausted of all of the quality candidates and any utilization of the current register would produce candidates who were at or near the bottom when it was first compiled. History tells us that OPM will only do that if the agencies forecast a significant number of hires for next year. Time will tell.

FALJC October 21, 2011 Executive Committee Meeting documents (updated 10/25/11)
Just added, the Sept 1-Oct 18 treasurer’s report and the 2011 Seminar Financial Report. Previously posted were the agenda, May Executive Committee Meeting minutes, September Annual Meeting minutes, the Legislative Report, and a draft letter to OPM’s General Counsel Elaine Kaplan outlining FALJC’s position relative to OPM’s ongoing denial of Annual Leave to ALJs in accordance with Section 202(b) of the Federal Workforce Flexibility Act of 2004.

Federal Retirement Annuities to Increase (updated 10/20/11)
Federal retirees will receive a cost of living adjustment (COLA) to their civil service annuities beginning in January 2012. Retirees in the CSRS will receive a 3.6 percent increase to their annuities, while retirees in FERS will receive a 2.6 percent increase to their annuities.

SSA’s latest ALJ class (updated 10/19/11)
Click here for the list of 19 new ALJ judges, scheduled to start in January 2012.

FALJC October 21, 2011 Executive Committee Agenda (updated 10/19/11)
This month’s meeting will be held at the Holiday Inn in Rosslyn, VA. The agenda includes updates on pending legislation, increased membership, the 2012 seminar and recent discussions with the AALJ Executive Committee.

Competing proposals for deficit reduction (updated 10/18/11)
As the Congressional Deficit Committee winds down its deliberations and prepares to submit a proposal within the next several weeks, a graphic in today’s issue of the Washington Post illustrates the competing proposals under consideration.

Federal pension funds still underfunded (updated 10/18/11)
The Federal Times reports in an October 16 article that the Federal Employee Retirement System is now projected to eliminate its unfunded liability and end up with a surplus for 2011. The Civil Service Retirement System is still carrying a massive unfunded liability, however, of at least $663 billion.

House Committee proposes drastic reforms to federal employee pay and benefits (updated 10/17/11)
In a letter, dated October 14, 2011, Congressman Darrell Issa, Chairman of the House Oversight Committee, recommends to the Congressional Joint Deficit Reduction Committee several drastic changes to federal employee pay and benefits: a pay freeze through 2015; a 10 percent cut to the workforce; changing the pension formula from a high-three to a high-five calculation; increasing the FERS contribution by 6.2 percent and the CSRS contribution from 7 percent to 10 percent beginning in 2013; and eliminating FERS for new hires.

FRE 801(d)‘s Oxymoronic ― Not Hearsay Classification (updated 10/14/11)
Professor Sam Stonefield provides an excellent analysis of the hearsay rule in his May 2011 Federal Courts Law Review article. The article reviews FRE 801(d)’s classification of party admissions and prior statements of a witness as not hearsay. Many of our agency practice rules vaguely adhere to a longstanding APA principle permitting receipt into the record of hearsay evidence, but permitting judges to apply the Federal Rules of Evidence when deemed appropriate. By discussing an amdendment creating new subcategories under FRE 801(d), the author provides a useful review of the applicable rationales for the current exceptions.

Judge Beul’s son passes unexpectedly (updated 10/11/11)
Dear Colleagues:
Please keep Judge Toby Buel, Sr. (SSA – Charleston, WV) and his wife Tamara in your thoughts and prayers. The untimely death of their 26 year of son, Toby Buel, Jr., was recently reported in an obituary in a Charleston, WV newspaper.

SSA managers charged with slowing down decisions (updated 10/11/11)
Judge Frye has passed along a recent Wall Street article reporting on the efforts of SSA managers to slow down the issuance of ALJ decisions during the last week of the fiscal year, thereby enhancing the numbers for the next fiscal year.

The Administration advances plan to hike retirement contributions (updated 9/30/11)
The Federal Times reports in a September 26 article that the Administration’s push for a 1.2% increase in federal employees retirement contributions is less than the figures mentioned this summer by Congress and the Administration. The increase would be implemented through three annual increases of 0.4% beginning in 2013. Discussion among the members of the President’s Deficit Reduction Committee are being led by former Sen. Alan Simpson (R-WY) and former White House Chief of Staff Erskine Bowles, who continue to support, among other measures, changing pensions from the “high-three” to a “high-five” formula.

DOL Judge Krantz to perform at the Opera (updated 9/15/11)
Judge Ken Krantz will be in the chorus for the Virginia Opera production of Aida at George Mason University in Fairfax on Friday, October 14 and Sunday October 16. The production will also be performed in Norfolk on October 1, 5, 7, and 9 and in Richmond on October 21 and 22. Click here for ticket information.

DEA posts ALJ opening (updated 9/14/11)
Dear Colleagues:
The Drug Enforcement Administration (DEA) is in the process of hiring a new Administrative Law Judge at the AL-3 level. This position will be located at DEA Headquarters in Arlington, Virginia. The job vacancy announcement will be open until October 1, 2011 and will be posted shortly on USAJOBS.gov. Please pass this information along to anyone you feel is qualified and interested. Thank you in advance for your help in sharing this information.
Respectfully, Judge John J. Mulrooney, II, Chief Administrative Law Judge, Drug Enforcement Administration

FALJC Conference now underway (updated 9/12/11)
The Conference began last night with the cocktail reception. President Pearson opened the event prior to the buffet dinner with a moment of silence on the anniversary of September 11. The training portion of the seminar opened here to this morning with a vibrant discussion during the panel on “Adjudicating in an Age of Government Austerity.” The panel was moderated by USDA Chief Judge Peter Davenport. Participants included Chief Judges Robert Giannasi (NLRB), Nancy Griswold (OMHA) and Robert Lesnick (FMSHRC), AALJ President Randy Frye and DOT Judge Dick Goodwin.

FALJC 2011 Conference Agenda revised (updated 9/8/11)
The Conference program for the final prgram on the second day has been revised and is available here. Materials relating to the ethics presentation were previously made available here.

OMHA DCALJ vacancy announcement posted (updated 9/1/11)
Dear Colleagues,
The Office of Medicare Hearings and Appeals has received approval by the Office of Personnel Management to establish a Deputy Chief Administrative Law Judge (DCALJ) position at the AL-2 level. This position will be located in the Headquarters office in Arlington, Virginia and will serve in the Office of the Chief Judge.
The job vacancy announcement has been posted to USAJOBS.gov. This position opens Monday August 29, and closes on Monday September 12, 2011. Please share this information with the ALJs in your agency. Your assistance in helping us get this information to qualified candidates is appreciated. Thank you in advance.
Respectfully,
Nancy J. Griswold
Chief Administrative Law Judge
Office of Medicare Hearings and Appeals

Judge Solomon’s book on the history of US-Cuba relations published (updated 9/1/11)
Solomon, Daniel F. Breaking Up with Cuba: The Dissolution of Friendly Relations Between Washington and Havana, 1956–1961. McFarland. 2011. c.336p. photogs. bibliog. index. ISBN 9780786459728. pap. $45. HIST
Solomon (administrative law judge, U.S. Dept. of Labor) presents a lively history of the deterioration of Cuban-American relations begun under the Truman and Eisenhower administrations and culminating in the split under President Kennedy. The years from 1956 to 1961 marked a monumental change in America’s relationship with Cuba—now often forgotten as we study all that came after. Solomon’s assertion of friendly relations leading up to his era of study is a bit too strong, as American imperialistic practices left a sour taste among Cubans, but the two countries coexisted rather peacefully until Castro’s revolutionary movement inspired many Cubans to hold Yankees in complete contempt. The author’s strongest asset is placing the events within the context of international relations at the time, especially evident in his fifth chapter, detailing Vice President Nixon’s disastrous Latin American trip of 1958 and the broader perspective of world affairs. VERDICT Solomon’s keen insights into the evolution of America’s obsession with Cuba and Castro will appeal to both lay readers and specialists. His book is well documented with endnotes, as well as a bibliography, interesting illustrations, and index. (Synopsis by Boyd Childress, Auburn Univ. Libs., AL at LibraryJournal.com)

FALJC 2011 Conference Agenda and materials available (updated 8/31/11)
The FALJC September 11-13 Conference Agenda and materials will be distributed to those attending, but are also available here. Please note that the customary practice of holding the formal dinner on Sunday and the informal buffet dinner on Monday night has been reversed. The reception will begin as usual at 6:30 p.m. on Sunday, with the buffet dinner at 7:30 p.m. with an opening by President Pearson and a moment of silence for the 10th anniversary of the September 11 tragedy. Solicitor of Labor Patricia Smith will be the keynote speaker for the formal dinner on Monday.

FALJC September 11-13 Ocean City Conference going forward (updated 8/30/11)
Hurricane Update: The Dunes Manor Hotel and Ocean City have escaped serious damage from Hurricane Irene, and the FALJC Seminar will be held there, as scheduled, beginning Sunday, September 11. The Conference agenda will be posted shortly.

SSA Judge’s letter to Senator Orin Hatch (updated 8/30/11)
June 17, 2011
Senator Orrin G. Hatch
104 Hart Senate Office Building
Washington D.C. 20510

Dear Senator Hatch:

I understand that you are to undertake an examination of the functioning of Administrative Law Judges (ALJs) in the Social Security disability hearings and review process. I have some issues I wish to bring to your attention: . . . (click here to read letter)

ABA announces election of Judge Goodwin as Chair of its Judicial Division (updated 8/11/11)
Judge Richard C. Goodwin, an ALJ in the Office of Hearings, U.S. Department of Transportation (D.O.T.), Washington, D.C., was elevated to Chair of the Judicial Division, American Bar Association, during the recent Annual Meeting in Toronto, Ont., Canada, in August 2011. Judge Goodwin conducts hearings throughout the United States for D.O.T. Judge Goodwin was born and raised in Annapolis, MD and practiced law in Annapolis for almost twenty (20) years prior to becoming an A.L.J. He was the Hearing Office Chief Judge for the Fresno Office of Hearings and Appeals, Social Security Administration, prior to taking his current position with the Department of Transportation. Judge Goodwin retired from the U.S. Army Reserve, Judge Advocate General’s Corps in 2002 with the rank of Colonel. The A.B.A. is the largest voluntary professional association in the world. The Judicial Division, with almost 4,000 members – including federal and state judges – is the A.B.A.’s home for judges within the A.B.A. and is the judicial voice of the American Bar Association.

ALJ controversy at HUD gets media coverage (updated 7/29/11)
The still evolving ALJ controversy involving Judges Fernandez and Mahoney is discussed in detail in a recent Government Executive magazine article, “Jusitce Delayed – How a battle over the independence of HUD administrative law judges is tying the department in legal knots.”

Former OSHRC Chief Judge Irving Sommer has passed away (updated 7/19/11)
In a press release, the Occupational Safety and Health Review Commission announced that former Chief Judge Irving Sommer passed away on April 21, 2011. During his career, Judge Sommer was actively involved in numerous judicial organizations and was a past FALJC President.

ITC issues ALJ vacancy announcement (updated 7/14/11)
The International Trade Commission has issued an ALJ vacancy announcement. Applications are due by July 25, 2011. It is posted on USA Jobs as Job Announcement Number: EX-11-048-SJ. The agency contact is Shawn Johnson, (202)205-2660, Shawn.Johnson@usitc.gov.

Congressional Committee Hearing Held on on SSA ALJs (updated 7/14/11)
Washington, D.C. – July 11, 2011
The House Committee on Ways and Means Subcommittee on Social Security, and the House Committee on the Judiciary Subcommittee on Courts, Commercial and Administrative Law, held a joint oversight hearing on the role of Administrative Law Judges (ALJs) at the Social Security Administration (SSA). Only two witnesses were invited to appear and offer testimony. SSA Commissioner Michael J. Astrue and and OPM Deputy Director Christine Griffin. Click on the witnesses name for a copy of their testimony.
The Wall Street Journal, whose reporting raised some of the the issues addressed in the hearing, reported on the events. The Blog of the Legal Times gave its take on the hearing as well.
One current FALJC member who attended the hearing offered the following observations: . . . (click here to read entire post)

Chairman Johnson and Chairman Coble Announce Joint Oversight Hearing on the Role of Social Security Administrative Law Judges for Monday, July 11, 2011 (updated 7/5/11)
Congressman Sam Johnson (R-TX), Chairman of the House Committee on Ways and Means Subcommittee on Social Security, and Congressman Howard Coble (R-NC), Chairman of the House Committee on the Judiciary Subcommittee on Courts, Commercial and Administrative Law, announced today that the Subcommittees will hold a joint oversight hearing on the role of Administrative Law Judges at the Social Security Administration. The hearing will take place on Monday, July 11, 2011 in 2141 Rayburn House Office Building, beginning at 3:30 p.m.

The NLRB has an opening in the Western United States (updated 6/15/11)
The National Labor Relations Board’s Division of Judges has an opening for a judge to cover Western United States cases. Judges assigned to the San Francisco office generally cover cases in western and mountain time zone states. The job announcement states that applications must be received by July 13, 2011. More than one selection may be made as a result of this notice of vacancy.

SEC has two ALJ openings (updated 6/9/11)
The Securities and Exchange Commission has two ALJ openings.
Agency: Securities & Exchange Commission
Job Announcement Number: 11-478973-DW

WSJ: Top Social Security Judge Leaves Post Pending Internal Probe (updated 6/9/11)
By Damian Paletta
THE WALL STREET JOURNAL
8 June 2011
Dow Jones News Service
(c) 2011 Dow Jones & Company, Inc.
WASHINGTON–The chief Social Security Administration judge in Huntington, W. Va., has stepped down from his post, a top agency official told employees Wednesday, broadening the fallout from a recent page-one Wall Street Journal article about the office.
The decision by Charlie Andrus, who became Huntington’s chief judge in 1997, was voluntary, two people familiar with the matter said, adding that he wasn’t forced to step down. Debra Bice, the acting national chief judge, told employees in Huntington he would remain with the agency as a judge but no longer retain his leadership role, the people said.
(This story and related background material will be available on The Wall Street Journal website, WSJ.com.)
Mr. Andrus’s decision comes two weeks after the Social Security Administration placed another judge in Huntington, David B. Daugherty, on indefinite administrative leave pending an investigation into the office.
On May 19, The Wall Street Journal reported that Mr. Daugherty awarded federal disability benefits in each of the 729 decisions he reached in the first six months of fiscal 2011. The national average for judges is close to 60%. Mr. Daugherty’s numbers were high both in the percent of cases approved and the large number of cases decided. Several people in Huntington said Mr. Daugherty routinely took cases that were assigned to other judges.
In written responses to questions for that article, Mr. Andrus said he was notified on four occasions that Mr. Daugherty had either taken cases assigned to other judges or taken unassigned cases. He issued a written directive April 29 saying the practice must end.
Several people, including former Huntington Judge Dan Kemper, said Mr. Andrus and others failed to act earlier because Mr. Daugherty helped the office meet monthly goals. In the written response to questions, Mr. Andrus said “as a supervisor I don’t ask judges why they decide cases the way they do.” In Mr. Daugherty’s case, he said, “I believe the numbers speak for themselves.”
Many judges have said in interviews they are under pressure to move cases quickly to meet monthly targets and that little regard is given to the quality of their decisions. Social Security officials say they expect judges to act properly and protect the taxpayer money that funds the program. A person answering the phone at Mr. Andrus’s house Wednesday said the judge was out of town and not immediately available to comment. A Social Security Administration spokesman didn’t return a message seeking comment.
The Social Security Administration’s inspector general’s office is investigating why Mr. Daugherty awarded benefits in such a high number of cases and whether there was any improper connection between him and local disability attorneys. That investigation is ongoing. Mr. Daugherty has denied any wrongdoing. The situation in Huntington has triggered or expanded at least three congressional investigations.
There are close to 1,500 administrative law judges in the Social Security system who determine whether to award disability benefits for people who have been denied at least twice before. The Social Security Disability Insurance program is one of the country’s largest entitlement programs, paying out $124 billion in benefits to 10.2 million people in 2010.
In June 3, Ms. Bice sent a memorandum to all of the country’s chief judges reminding them that a judge “may not unilaterally hear and/or decide cases that have already been assigned to another” judge.

ITC has one ALJ opening (updated 6/2/11)
Vacancy Announcement – Administrative Law Judge, AL-0935-15 (EX-11-042-SJ)
Job Title: Administrative Law Judge Agency: U.S. International Trade Commission
Job Announcement Number: EX-11-042-SJ
SALARY RANGE: $129,065.00 – $165,300.00 /year
OPEN PERIOD: Wednesday, June 01, 2011 to Tuesday, June 14, 2011
SERIES & GRADE: AL-0935-03
POSITION INFORMATION: Full Time Excepted Service Permanent
DUTY LOCATIONS: 1 vacancy – Washington DC Metro Area, DC
WHO MAY BE CONSIDERED: United States Citizens
JOB SUMMARY:
The USITC is an independent Federal agency that adjudicates import injury cases and provides the President and Congress with high quality analysis and technical support on international trade, tariff, and competitiveness issues. Here, you will find a dynamic work environment, multi-disciplinary teams working on a variety of projects and products, a dedication to develop your technical skills, and a commitment to provide balance between your work and your personal life. The Commission seeks an Administrative Law Judge (ALJ) to prepare for and preside at hearings and formal proceedings within the jurisdiction of the U.S. International Trade Commission. QUALIFICATIONS REQUIRED:
To be eligible for this position, you must meet both the licensure and experience requirements. You must be a current Federal Administrative Law Judge or a reinstatement eligible as a Federal Administrative Law Judge, and meet applicable requirements under 5 CFR 930.201 et seq. You must be serving as a Federal Administrative Law Judge at the AL-3 Level or higher, or have served in the past as an Administrative Law Judge at the AL-3 Level or higher and be eligible for reinstatement as a Federal Administrative Law Judge. Applicants who are on the register for Administrative law Judges but have never served as a Federal Administrative Law Judge are not eligible to apply under this announcement. The Office of Personnel Management will separately provide a certificate of eligible persons from the register who can be considered for this position. The Commission may select a candidate from either this announcement or from the certificate of eligible persons in accordance with personnel rules.
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.
If selected, you will be required to undergo a single scope background investigation. You will also be required to complete OGE Form 278, Confidential Financial Disclosure Report, to determine if a conflict or an appearance of a conflict exists between your financial interest and your prospective position with USITC.
EVALUATION CRITERIA:
When describing your experience PLEASE PROVIDE IN YOUR RESUME several examples explaining the following:
1. Substantial trial experience, preferably involving intellectual property rights, scientific or technical subject matter, and/or unfair competition claims.
2. Ability to quickly absorb and understand technical, scientific, and/or other highly complex subject matter
3. Ability to produce clear and cogent written analyses of factual and legal issues, with supporting reasoning and case law, under significant time constraints.
4. Experience with rules and procedure governing federal court proceedings and/or federal agency proceedings conducted under the Administrative Procedure Act.
5. Ability to communicate orally in a manner that is clear, concise, and understandable, and to elicit facts by examining expert and lay witnesses.
6. Ability to listen attentively and deal courteously, tactfully, firmly, and impartially with others in an adversarial or similar setting and ability to establish effective work relationships with all levels of management, colleagues, and staff, and to achieve cooperation and consensus among colleagues engaged in joint or parallel efforts.

You can’t make this stuff up! (updated 6/2/11)
Huntington’s Chief ALJ Named in Federal Lawsuit Alleging Racial Discrimination and Whistleblower Retaliation
New Allegations And Information Surfacing in Huntington, WV Social Security Office Scandal by Sam Webber & Jack Swint
“Before Judge Al Tinsley retired in 2010, Chief Judge Charles Andrus brokered contract negotiations between Tinsley and Attorney Eric Conn for a sweetheart job. The contract reportedly details a three-year lucrative plan for $250,000 that includes Conn having the right to use Tinsley’s name, picture and former ALJ Judge Credentials to advertise for new clients. And, Tinsley is not required to work on a full- time basis or come into the office on any set schedule.” **Story Updated May 31, 2011**
Another Bombshell In The Making?
Since our first story (linked below) in December 2010, exposing possible collusion between Attorney Eric C. Conn and Judge David Daugherty in the Huntington Social Security Appeals Office, additonal information has surfaced, including federal lawsuits filed by retired ALJ Al Tinsley alleging racial, age discrimination and retaliation from Chief Judge Charles Andrus and other superiors for “fraud and conspiracy” problems inside the Huntington office that Tinsley went to the OIG about.
Before leaving SSA in 2010, Al Tinsley filed suit claiming that his superiors retaliated against him when he blew the whistle and reported Daugherty to higher ups, including the Inspector General’s Office in 2007-2008. And, that he was racially and age discriminated against because he was once suspended for 30 days for the exact same infractions (time and attendance) that ALJ Daugherty had also committed, but wasn’t reprimanded. Court documents support Tinsley insomuch as Chief Administrative Judge Andrus admitted on record that he was aware that Daugherty had falsified his time and attendance forms.
US District Court – Southern District Of WV, Huntington:
1) Algernon W. Tinsley – VS. – Michael J. Astrue. Docket Number 3:09-CV 600 (active)
2) Algernon W. Tinsley – VS. – Michael J. Astrue Docket Number 3:10-CV-1184 (active)
According to the federal court record…“Plaintiff, (Tinsley) acting pro se, filed a Complaint in this Court, alleging he was unlawfully discriminated against in his employment because of race, age, and retaliation for disclosure of fraud and conspiracy.” Both suits are filed under 42:2000(e) Job Discrimination. The court has dismissed the age discrimination claims but allowed the Whistleblower parts to move forward.
Why Did Chief Judge Andrus Broker A Job Betwen Eric Conn And Al Tinsley?
What possible motive or benefit would there be for Chief ALJ Charlie Andrus to be the middle man for contract negotiations between Tinsley and Attorney Eric C Conn? Especially, taking into account that Tinsley had lawsuit(s) pending alleging Andrus and higher ups retaliated against him for going to the IG, and that they also discriminated against him both racially and because of his age. Tinsley was still an ALJ during this time.
Here is one possibility; according to our source who was reportedly in the loop:
“Judge Tinsley had not sought out Eric Conn for a job; nor had Conn sought him out. Andrus approached Tinsley with this job offer to not only get Tinsley out of the office, but also in hopes that he (Tinsley) would also dismiss his pending lawsuit.” In the end, Tinsley refused to drop his complaint and Andrus agreed that he did not have to. The trio negotiated the contract deal that reportedly pays Tinsley $250,000 over three years. Tinsley doesn’t have to keep normal hours or be physically there unless needed. And in return, he gives Conn the right to use Tinsley’s name, picture and his former credentials as an ALJ Judge in advertisements including billboards, radio, TV, etc.
Al Tinsley stated in a recent telephone interview that he was “forced into retirement” by Andrus. And, that he firmly believed it was only because of his complaints to the Inspector General and law suits in federal court. He said that during the initial job offer discussions, he (Tinsley) couldn’t talk directly with attorney Conn about the position, he had to go through Andrus. “That was very strange.”
Tinsley did say that during this same time period, Eric Conn personally warned him that Andrus and higher ups were “going to take action against me, and fabricate evidence if they needed to.” He then said… “Eric said to retire.” Tinsley feels that Andrus should be accountable for the overall problems in the Huntington office because he knew about them and did nothing. Andrus is also the person who instigated and participated in the retaliation against him (outlined in his lawsuit) because he complained to the OIG.
When asked what he knew of the pending investigation, it is his understanding from people he had spoken to in the IG office, that, this is a criminal investigation and he understood they (IG) have found documents that link Daugherty and Conn to the allegations.
Sources also report that Judge Dan Kemper filed a complaint to his union against Daugherty for numerous incidents including one alleging Daugherty forged Kemper’s name to documents. Kemper is said to have included several years’ worth of statistics in his complaint that show the unusually high approval ratios of Daugherty and the questionable caseload between Daugherty and Eric Conn.
How early did Kemper know of Daugherty’s manipulating case files? Records we obtained show that in October 2004, Kemper complained directly to Andrus that Daugherty had taken a case file off the master docket in 2003 that he (Kemper) had already made decisions on. Daugherty overrode the decision and issued a fully favorable one in 2004 and dated it back to the onset date.
Details Are Becoming Clearer How Daugherty Could Manipulate The System
According to former Master Docket Clerk, Jennifer Griffith, her superiors knew since at least 2005 that Judge Daugherty was circumventing the system and assigning himself to disability cases that were being represented by Attorney Eric Conn. “He even re-assigned himself to cases that had been assigned to other Judges in rotation.” In fact, when the new electronic system came online, she helped train Daugherty and other staff, so she knew he was able to at least maneuver his way into the master docket and could assign cases to himself.
But, a red-flag surfaced each time Daugherty made changes because he only knew enough to switch the docket, not finish the process. “He learned enough about the new system to change the case to himself, but not to complete the necessary steps needed to close the file out.” This created a red-flag each time that alerted her superiors which made it appear she was not doing her job properly.
When asked by this author how confident she was that Daugherty intentionally assigned himself to Eric Conn’s cases? … “With 100% certainty, Judge Daugherty was intentionally assigning himself to cases belonging to Eric Conn. He learned the new electronic system and knew how to change the docket.”
Griffith says she began making verbal complaints to her superiors about the connection between Daugherty and Conn in 2005. When that fell on deaf ears, she filed grievances. She even went to her Union Steward, Sara Carver and complained. Carver wrote at least one e-mail in Griffith’s behalf to Hearing Office Director, Gregg Hall on August 29th, 2007, outlining her concerns that Daugherty would “assign himself Eric Conn cases outside of what is supposed to be done on rotational bases.”
She went on to write… “She brought it to your attention several times that he goes into CPMS and not only assigns himself cases, but also removes cases from other ALJ’s to his own initials. Carver concludes this e-mail by saying… “Jennifer has brought this to your attention so many times I have lost count.”
What was the outcome of Griffiths written complaints? Her performance reviews went from receiving awards for hard work to negative comments and no further raises in pay. She did not give up at the office level. “I also filed complaints in 2006 with Regional Judges Jasper J. Bede and Frank A. Cristaudo, but no one did anything.” Finally, she contacted US Congressman Nick Rahall who also “did nothing.”
According to Griffith, complaints were also made by other employees to the Inspector General’s Office in 2006. According to one current office staff member, “they would come down, look around and nothing would be done. This time, after the recent news media wrote about the problems, the IG got really serious and interviewed everyone in the office and even took staff computers.” This inside source also said that management seems really nervous and scared. “And they should be.”
Griffith summed it up…“It’s all about the numbers. The more cases that can be decided, the better the office looks on paper and some upper management make their bonuses. Daugherty was able to hear more cases than any other judge which brought the numbers inline with goals for their bonuses.” She left the Appeals Office in 2007 after work related health concerns forced her to resign. Griffith admits she had to leave a great job and great co-workers, but it came down to the stress of the problems effecting her health, marriage and kids.
Conning the System
Facts pretty much show that there is a connection between Judge David Daugherty, attorney Eric Conn and the 97% approval ratings. As case history is becoming available and a pattern is emerging, we identified the type of disability cases Conn wants to take on. He looks for the “Title II” claims because of the ability to obtain back-pay that dates back to the onset of the disability application. That equals more lawyer fees.
Example…If a Title II claimant was disabled say 5 years ago, then filed, is denied twice and goes on to appeals and finally awarded disability benefits, SSA will most likely go back to the onset date. They will deduct one year, then pay the 4-year balance which could be as high as $20 to $30 thousand dollars. Eric Conn receives 25% or up to $6,000 of that in addition to his office expenses. According to our source, Conn also has been known to file for “excessive expenses” for the work he alleges he had to do over and beyond normal appeal work and receive a total of $7,500 instead of the $6,000 cap.
In Closing…
Current and former office staff members feel it is important for the public to know that these problems did not just start overnight. And that, just as many employees have complained as were covering it all up. Since at least 2005, complaints have been filed by both office staff and judges that Daugherty was circumventing the system.
They say Daugherty was patted on the back because he was able to process and close out claims quickly. It wasn’t about the disabled person applying for and needing benefits, it is about the statistics and the monthly goals that have bonus money tied to them for upper management.
One of the people complaining, and retaliated against for doing so, is former Judge Al Tinsley. His complaints to the IG and federal lawsuits show he went to his superiors, instead of them dealing with the problems, he was discriminated and retaliated against for doing so. And in the end, he was forced to retire.
Then there is the question that needs to be asked and answered about why Chief Judge Charles Andrus would get directly involved in negotiating a job offer between Tinsley and Eric Conn? Sources say it was to get Tinsley out of the office and hopefully entice and or persuade him to drop any and all civil matters pending that he had filed involving Andrus and SSA.
Reportedly, the Inspector General is conducting a thorough investigation into the Huntington office. Senator Hatch says he, too, will be conducting a search for the answers as to what is going on in Huntington’s SSA Office.
It should be noted that the current investigation inside the alleged problems within the Huntington SSA office are not a reflection of any other office and or region.
End of Story…
Jack Swint – Publisher
West Virginia News 2011

SSA appointing 111 judges (updated 5/31/11)
The Social Security Administration is hiring 111 new judges. They are expected to be brought on in two groups, one in July and the other in August.

ACUS plenary session scheduled for June 16-17 (updated 5/24/11)
Dear Conference Members,
As you know, the 54th Plenary Session of the Administrative Conference is scheduled for June 16-17, 2011. Attached please find copies of the proposed recommendations that will be considered at the plenary session. There are four proposed recommendations, each of which was formulated by a committee of Conference members. The recommendations have been considered by the Council of the Administrative Conference, and each recommendation comes to the membership with the approval of the Council. Here is a very brief summary of the proposed recommendations:

1. Contractor Ethics. More and more of the federal government’s work is now being done by federal contractors, rather than by federal employees, but contractors’ employees are subject to much less ethics regulation than government employees. This recommendation suggests that the FAR Council (which oversees the Federal Acquisition Regulation) take steps toward assuring that federal contractor employees maintain high ethical standards, especially in the areas of personal conflicts of interest and disclosure of non-public information.

2. Video Hearings. Some agencies are making use of video technology in administrative hearings in ways that speed the processing of large case queues, save substantial amounts of money, and do not adversely affect the fairness of the proceedings. This recommendation invites agencies (especially agencies with high caseloads) to consider whether and how they could make increased use of video technology.

3. Legal Considerations in e-Rulemaking. Today, both the notice and the comments in a rulemaking proceeding may be electronic. This recommendation provides guidance to agencies on a variety of legal issues that arise from the advent of e-Rulemaking, such as how agencies may use software to determine that submitted comments are identical or nearly identical, and whether agencies can (and should) destroy paper copies of comments scanned to electronic form. Such innovations reduce costs and improve efficiency.

4. Rulemaking Comments. This recommendation considers a variety of issues regarding the “comment” phase of notice-and-comment rulemaking (issues that are independent of whether the comments are paper or electronic). The recommendation provides guidance on these issues, such as the length of comment periods, when comments should be made publicly available, the receipt of late comments, and the use of reply comment periods.

The research reports associated with these recommendations (as well as other useful documents) are posted on the plenary session web page: http://www.acus.gov/events/54th-plenary-session/
As requested by the membership at the December plenary, we are circulating the proposed recommendations well in advance of the plenary session. The purpose of this early circulation is to facilitate members’ review of the proposed recommendations and to allow amendments to be proposed in advance. Please remember that debate time at the plenary session is limited and that any proposed amendments received in advance in writing will receive preference in debate. ACUS staff counsels are available to answer questions about the recommendations and to advise members who have ideas for proposed amendments. Proposed amendments should be submitted in advance, in writing, to ACUS General Counsel Shawne McGibbon at smcgibbon@acus.gov no later than Monday, June 13, 2011. RSVP for the reception to be held the evening of June 16th. See attached for the reception to be held the evening of June 16.
Paul R. Verkuil | Chairman

You can’t make this stuff up! (updated 6/2/11)
Huntington’s Chief ALJ Named in Federal Lawsuit Alleging Racial Discrimination and Whistleblower Retaliation
New Allegations And Information Surfacing in Huntington, WV Social Security Office Scandal by Sam Webber & Jack Swint
“Before Judge Al Tinsley retired in 2010, Chief Judge Charles Andrus brokered contract negotiations between Tinsley and Attorney Eric Conn for a sweetheart job. The contract reportedly details a three-year lucrative plan for $250,000 that includes Conn having the right to use Tinsley’s name, picture and former ALJ Judge Credentials to advertise for new clients. And, Tinsley is not required to work on a full- time basis or come into the office on any set schedule.” **Story Updated May 31, 2011**
Another Bombshell In The Making?
Since our first story (linked below) in December 2010, exposing possible collusion between Attorney Eric C. Conn and Judge David Daugherty in the Huntington Social Security Appeals Office, additonal information has surfaced, including federal lawsuits filed by retired ALJ Al Tinsley alleging racial, age discrimination and retaliation from Chief Judge Charles Andrus and other superiors for “fraud and conspiracy” problems inside the Huntington office that Tinsley went to the OIG about. Before leaving SSA in 2010, Al Tinsley filed suit claiming that his superiors retaliated against him when he blew the whistle and reported Daugherty to higher ups, including the Inspector General’s Office in 2007-2008. And, that he was racially and age discriminated against because he was once suspended for 30 days for the exact same infractions (time and attendance) that ALJ Daugherty had also committed, but wasn’t reprimanded. Court documents support Tinsley insomuch as Chief Administrative Judge Andrus admitted on record that he was aware that Daugherty had falsified his time and attendance forms. US District Court – Southern District Of WV, Huntington: 1) Algernon W. Tinsley – VS. – Michael J. Astrue. Docket Number 3:09-CV 600 (active) 2) Algernon W. Tinsley – VS. – Michael J. Astrue Docket Number 3:10-CV-1184 (active) According to the federal court record…“Plaintiff, (Tinsley) acting pro se, filed a Complaint in this Court, alleging he was unlawfully discriminated against in his employment because of race, age, and retaliation for disclosure of fraud and conspiracy.” Both suits are filed under 42:2000(e) Job Discrimination. The court has dismissed the age discrimination claims but allowed the Whistleblower parts to move forward. Why Did Chief Judge Andrus Broker A Job Betwen Eric Conn And Al Tinsley? What possible motive or benefit would there be for Chief ALJ Charlie Andrus to be the middle man for contract negotiations between Tinsley and Attorney Eric C Conn? Especially, taking into account that Tinsley had lawsuit(s) pending alleging Andrus and higher ups retaliated against him for going to the IG, and that they also discriminated against him both racially and because of his age. Tinsley was still an ALJ during this time. Here is one possibility; according to our source who was reportedly in the loop: . “Judge Tinsley had not sought out Eric Conn for a job; nor had Conn sought him out. Andrus approached Tinsley with this job offer to not only get Tinsley out of the office, but also in hopes that he (Tinsley) would also dismiss his pending lawsuit.” In the end, Tinsley refused to drop his complaint and Andrus agreed that he did not have to. The trio negotiated the contract deal that reportedly pays Tinsley $250,000 over three years. Tinsley doesn’t have to keep normal hours or be physically there unless needed. And in return, he gives Conn the right to use Tinsley’s name, picture and his former credentials as an ALJ Judge in advertisements including billboards, radio, TV, etc. Al Tinsley stated in a recent telephone interview that he was “forced into retirement” by Andrus. And, that he firmly believed it was only because of his complaints to the Inspector General and law suits in federal court. He said that during the initial job offer discussions, he (Tinsley) couldn’t talk directly with attorney Conn about the position, he had to go through Andrus. “That was very strange.” Tinsley did say that during this same time period, Eric Conn personally warned him that Andrus and higher ups were “going to take action against me, and fabricate evidence if they needed to.” He then said… “Eric said to retire.” Tinsley feels that Andrus should be accountable for the overall problems in the Huntington office because he knew about them and did nothing. Andrus is also the person who instigated and participated in the retaliation against him (outlined in his lawsuit) because he complained to the OIG. When asked what he knew of the pending investigation, it is his understanding from people he had spoken to in the IG office, that, this is a criminal investigation and he understood they (IG) have found documents that link Daugherty and Conn to the allegations. Sources also report that Judge Dan Kemper filed a complaint to his union against Daugherty for numerous incidents including one alleging Daugherty forged Kemper’s name to documents. Kemper is said to have included several years’ worth of statistics in his complaint that show the unusually high approval ratios of Daugherty and the questionable caseload between Daugherty and Eric Conn. How early did Kemper know of Daugherty’s manipulating case files? Records we obtained show that in October 2004, Kemper complained directly to Andrus that Daugherty had taken a case file off the master docket in 2003 that he (Kemper) had already made decisions on. Daugherty overrode the decision and issued a fully favorable one in 2004 and dated it back to the onset date. Details Are Becoming Clearer How Daugherty Could Manipulate The System According to former Master Docket Clerk, Jennifer Griffith, her superiors knew since at least 2005 that Judge Daugherty was circumventing the system and assigning himself to disability cases that were being represented by Attorney Eric Conn. “He even re-assigned himself to cases that had been assigned to other Judges in rotation.” In fact, when the new electronic system came online, she helped train Daugherty and other staff, so she knew he was able to at least maneuver his way into the master docket and could assign cases to himself. But, a red-flag surfaced each time Daugherty made changes because he only knew enough to switch the docket, not finish the process. “He learned enough about the new system to change the case to himself, but not to complete the necessary steps needed to close the file out.” This created a red-flag each time that alerted her superiors which made it appear she was not doing her job properly. When asked by this author how confident she was that Daugherty intentionally assigned himself to Eric Conn’s cases? … “With 100% certainty, Judge Daugherty was intentionally assigning himself to cases belonging to Eric Conn. He learned the new electronic system and knew how to change the docket.” Griffith says she began making verbal complaints to her superiors about the connection between Daugherty and Conn in 2005. When that fell on deaf ears, she filed grievances. She even went to her Union Steward, Sara Carver and complained. Carver wrote at least one e-mail in Griffith’s behalf to Hearing Office Director, Gregg Hall on August 29th, 2007, outlining her concerns that Daugherty would “assign himself Eric Conn cases outside of what is supposed to be done on rotational bases.” She went on to write… “She brought it to your attention several times that he goes into CPMS and not only assigns himself cases, but also removes cases from other ALJ’s to his own initials. Carver concludes this e-mail by saying… “Jennifer has brought this to your attention so many times I have lost count.” What was the outcome of Griffiths written complaints? Her performance reviews went from receiving awards for hard work to negative comments and no further raises in pay. She did not give up at the office level. “I also filed complaints in 2006 with Regional Judges Jasper J. Bede and Frank A. Cristaudo, but no one did anything.” Finally, she contacted US Congressman Nick Rahall who also “did nothing.” According to Griffith, complaints were also made by other employees to the Inspector General’s Office in 2006. According to one current office staff member, “they would come down, look around and nothing would be done. This time, after the recent news media wrote about the problems, the IG got really serious and interviewed everyone in the office and even took staff computers.” This inside source also said that management seems really nervous and scared. “And they should be.” Griffith summed it up…“It’s all about the numbers. The more cases that can be decided, the better the office looks on paper and some upper management make their bonuses. Daugherty was able to hear more cases than any other judge which brought the numbers inline with goals for their bonuses.” She left the Appeals Office in 2007 after work related health concerns forced her to resign. Griffith admits she had to leave a great job and great co-workers, but it came down to the stress of the problems effecting her health, marriage and kids. . Conning the System Facts pretty much show that there is a connection between Judge David Daugherty, attorney Eric Conn and the 97% approval ratings. As case history is becoming available and a pattern is emerging, we identified the type of disability cases Conn wants to take on. He looks for the “Title II” claims because of the ability to obtain back-pay that dates back to the onset of the disability application. That equals more lawyer fees. Example…If a Title II claimant was disabled say 5 years ago, then filed, is denied twice and goes on to appeals and finally awarded disability benefits, SSA will most likely go back to the onset date. They will deduct one year, then pay the 4-year balance which could be as high as $20 to $30 thousand dollars. Eric Conn receives 25% or up to $6,000 of that in addition to his office expenses. According to our source, Conn also has been known to file for “excessive expenses” for the work he alleges he had to do over and beyond normal appeal work and receive a total of $7,500 instead of the $6,000 cap. In Closing… Current and former office staff members feel it is important for the public to know that these problems did not just start overnight. And that, just as many employees have complained as were covering it all up. Since at least 2005, complaints have been filed by both office staff and judges that Daugherty was circumventing the system. They say Daugherty was patted on the back because he was able to process and close out claims quickly. It wasn’t about the disabled person applying for and needing benefits, it is about the statistics and the monthly goals that have bonus money tied to them for upper management. One of the people complaining, and retaliated against for doing so, is former Judge Al Tinsley. His complaints to the IG and federal lawsuits show he went to his superiors, instead of them dealing with the problems, he was discriminated and retaliated against for doing so. And in the end, he was forced to retire. Then there is the question that needs to be asked and answered about why Chief Judge Charles Andrus would get directly involved in negotiating a job offer between Tinsley and Eric Conn? Sources say it was to get Tinsley out of the office and hopefully entice and or persuade him to drop any and all civil matters pending that he had filed involving Andrus and SSA. Reportedly, the Inspector General is conducting a thorough investigation into the Huntington office. Senator Hatch says he, too, will be conducting a search for the answers as to what is going on in Huntington’s SSA Office. It should be noted that the current investigation inside the alleged problems within the Huntington SSA office are not a reflection of any other office and or region. End of Story… Jack Swint – Publisher West Virginia News 2011

EPA job announcement for two ALJ positions open until June 3, 2011 (updated 5/9/11)
The Enivornmental Protection Agency’s job announcement details two openings at its Washington, D.C. office. The closing date for receipt of applications is June 3, 2011.

5th Circuit affirms dismissal of appeal against Coast Guard (updated 5/5/11)
The 5th Circuit has essentially affirmed the Distict Court’s (E.D. LA) dimissal of a mariner’s allegations that Coast Guard administrative law judges, clerks, and other staff conspired to “fix” administrative proceedings relating to an admonishment issued by the Coast Guard with respect to his license.

Solicitation of interest for ALJ opening at OMHA’s Irvine, CA office (updated 5/5/11)
HHS’s OMHA is soliciting applications for an ALJ opening at its Irvine, CA office. The closing date for receipt of applications is May 17, 2011.

OSHRC posts ALJ job announcement (updated 4/30/11)
The Occupational Safety and Health Review Commission has an ALJ opening. Applications will accepted until May 18, 2011.

Claimants initiate class suit against Queens, NY SSA judges. (updated 4/17/11)
Judges filed a suit against SSA judges in the Queens hearing office charging them with bias against Social Security and a systemaric failure to provide full and fair Social Security benefit hearings.

FALJC follows up meeting with recommendation to OPM regarding minimum ALJ qualifications (updated 4/12/11)
FALJC, AALJ and the ABA Judiciary Committee met with Juanita Love, OPM’s Director of the ALJ Office and Theodore Hayes, an OPM personnel psychologist for a briefing on the process unfolding for the creation of a new ALJ job description. An “occupational analysis” will not likely be finalized before Spring 2012. The process will include OPM meeting with focus groups of ALJs in 10 cities, observing current ALJs on the job and an online survey of current judges.
Following up on the meeting, President Solomon, in an April 11th email, responded to a question by Mr. Hayes regarding the minimum experience required of ALJ candidates. He also sent the following letter to Ms. Love and Mr. Hayes:
To: Juanita Love, ALJ Program Manager, Office of Personnel Management and
Theodore Hayes, Personnel Research Psychologist, ALJ Occupational Analysis Project Lead
Re: Administrative Law Judge Occupational Analysis Program
From: Daniel F. Solomon
President, Federal Administrative Law Judges’ Conference, Member, ABA House of Delegates, Chair; Judiciary Committee, Senior Lawyers’ Division, ABA ; Past Chair National Conference of the Administrative Judiciary, Judicial Division, ABA
Date: April 11, 2011
Thank you for permitting us to attend and participate as stakeholders in the process.
To reiterate the FALJC position, there is no substitute for seven years of active trial experience.
Attached please find a “Summary of Administrative Law Judge Responsibilities,” prepared for a FALJC program two years ago. This paper is in process of updating, and will be published in the National Association of Law Judges Journal, edited by Professor Gregory Ogden, Pepperdine School of Law, who I am copying. I have been trying to orchestrate this update for the past month or two and contemplate that it will soon be completed.
In Federal Maritime Comm’n v. South Carolina State Ports Authority, 535 U.S. 743 (2002), the court remarked that similarities between agency proceedings and civil litigation are “overwhelming.” Reference was made to the agency Rules of Practice and Procedure that also specifically provide that “the Federal Rules of Civil Procedure will be followed to the extent that they are consistent with sound administrative practice.” Other courts have examined administrative law judge proceedings and have determined that our positions are similar to those of other Federal trial judges. E. G. Administrative law judges share the same absolute immunity from suit as do Article III judges. Butz v. Economou, 438 U. S. 478 (1978). Also see Rhode Island Dept. of Environmental Management v. United States, 304 F.3d 31(1st Cir. 2002) (finding that Department of Labor administrative law judges are functionally equivalent to Federal District Judges).
Discrete sets of rules are discussed in the “Summary” and I refer you to my agency’s rules at 29 CFR Subpart 18. Moreover, at my agency, like many others, we have layers of rules. For example, the Longshore and Harbor Workers’ Act has an elaborate set of rules. These rules are extended to other statutes, especially the Defense Base Act, the War Hazards Act, and the Non-appropriated Funds Act cases, but also in part to the Black Lung Benefits Act, which has another set forth in 20 CFR. For example, rules at 20 CFR Section 725 and following set forth rules on such matters as the sequence of submissions of evidence and limitations on evidence and how they should be applied.
We have similar rules that must be coordinated with the general rules in our “traditional” labor cases, in our whistleblower, immigration and the many other varieties of cases that come before us.
Skills in effectively handling such matters are learned only at trial. Moreover, a trial, even if “non-adversarial,” includes conflict, social cognition and interaction and understanding that requires immeasurable experience. There is pressure on all sides that requires judicial demeanor. In that vein, in 2009, the ABA resolved that the Office of Personnel Management, as part of its mandate to select the best qualified candidates for federal administrative law judge positions, should consider judicial status in good standing as a satisfactory alternative to any requirement that candidates be active licensed attorneys in good standing.
As to qualifications and background checks, every one of the applicants can sign a waiver to release state bar records. If it is true that a couple of the applicants “certified” to the agencies had been suspended, an ounce of prevention would have saved the cost to find out.
I again remind you that as to potential focus groups, the purpose of the Administrative Procedure Act is to provide fair hearings and the public is involved. Perhaps public hearings would be appropriate under the Administrative Procedure Act. Moreover, respectfully, to a reasonable degree of certainty, the intended site, Covington , is not in Georgia , but in Louisiana . Sites in Akron and Livonia are relatively new and it is expected that there are few, if any, experienced judges at those sites. The Covington site is proximate to New Orleans , where there are other ALJs and sites such as Denver , would include a more representative population of ALJs than many of the sites listed.
We also are gratified that the “rule of three” will remain.If there are any questions, or anything we can do to aid you, please call me.

Agencies begin serving judges with MSPB complaints for authorization to furlough (updated 4/8/11)
The attached complaint filed by the NLRB with the MSPBB requests that the Board “institute expedited procedures for the handling of this matter so that a final decision authorizing petitioner to furlough Respondents is issued no later than April 11, 2011.” No indication as to whether answers will be filed by any of the respondents prior to April 11.

Pay for furloughed feds up in the air (updated 4/8/11)
From FedSmith today: One of the big questions on the minds of federal employees right now is whether or not they would get paid in the event of a shutdown. Granted, it would most likely come in the form of backpay, but that would be better than the alternative. The best answer one can ascertain right now is, “it depends on who you ask.” Rep. Jim Moran (D-VA) says no. He has already been on the record as saying that it is unlikely that federal employees will get paid in a government shutdown. John Boehner (R-OH) also says no. When asked by George Stephanopoulos on “Good Morning America” whether or not members of Congress should be paid during a shutdown, he said, “No they shouldn’t be getting paid just like federal employees shouldn’t be getting paid.” But in a press conference today, OMB Deputy Director Jeff Zients said that the White House supports the idea of reimbursing federal employees’ pay in a shutdown. When asked by a reporter whether or not the administration planned to reimburse furloughed employees, Zients said, “As you know, in 1995, indeed, furloughed employees were paid. It’s Congress’ decision, but the administration will support reimbursement.” Having the White House on your side in the reimbursement debate is probably a good thing, but there are still no guarantees, especially since we don’t even know if a shut down will occur at this point. Stay tuned to FedSmith.com as we will keep readers up to date with the latest news on the shutdown issue as it unfolds.

SSA Judges to work next week (updated 4/8/11)
A Message To All SSA And DDS Employees
Subject: Federal Government Shutdown
I realize that the continuing budget uncertainty is causing stress and anxiety, and I certainly understand the hardships that a shutdown would cause. You should know that all of the work you do matters. I am thankful to you for your dedication to the public even during these difficult times, and I am proud of all the progress you have made over the last few years. While the Administration continues to work to prevent a shutdown, I need to tell you what will happen if there is not an agreement by Monday.
Consistent with what the law allows us to do, if there is a Government shutdown, we will continue certain limited agency activities to pay benefits. Employees in our field offices, teleservice and program service centers, and State disability determination services will report to work to provide limited services. For example, we will take and process new claims, but we will not issue new or replacement Social Security cards. ALJs will also report to work. With the exception of small numbers of people required to maintain critical systems and other functions, Baltimore headquarters and regional offices will essentially be closed, as will the rest of the Office of Disability and Adjudication Review. Your managers are being briefed now and shortly will share specific details of what work is covered and who will report to work on Monday if there is a Government shutdown.
We will pay those of you who work once Congress gives us an appropriation or institutes another continuing resolution. However, media reports indicate that Congress may decide not to pay employees who are not authorized to work. I know you will have many questions about your particular situation. The Office of Personnel Management has established a website at www.opm.gov/furlough to provide information. We have also established a website at www.socialsecurity.gov/shutdown.
This situation is fluid. I cannot tell you if the shutdown will happen or how long a shutdown will last. Therefore, it is important that you check for status. We will post information to our website above, and we have established a special toll free number 1-866-909-6876 (TTY 1-800-325-0778) that will contain the most recent information about the status of the shutdown. Similar to weather related events, you should check this number to hear our status, changes to our shutdown plan, and whether you should report to work. Again, thank you for being the best employees in Government. Please hang in there and keep your fingers crossed that we’ll all be able to report to work on Monday.
Michael J. Astrue
Commissioner

Historical and other information relating the status ALJs in a furlough situation (updated 3/25/11)
Summary by Judge Donald Willy of issues presented by briefs filed with the Merit Systems Protection Board during the last furlough situation during the 1990’s (not intended as legal advice): Under the APA, each employing agency should provide an opportunity to be heard before filing an action before the MSPB. The 1996 MSPB decision shows that the ALJs acquiesced to MSPB jurisdiction, assuming that there would/might be a shutdown. Even then, I think the burden should have been on the agencies to show we were not “necessary” to the function of government based on evidence that is more than speculation about the political situation.
Concerning whether judges are appointed under Article 2, Section 2, unless this is interpreted as a presidential appointment (see below) it probably does not make any difference. However, since presidential appointees’ salaries are based on a yearly salary amount, they are exempt according to the AG. The other issue is whether judges are engaged in a Constitutional executive function and therefore exempt. This is a possibility, but these functions have never been defined, and the courts do not appear to agree with the argument very much. Since the executive department or branch makes the argument that such personnel (engaged in whatever constitutional function they desire to continue) are exempt, these same executives could just define ALJ’s or such other personnel as were performing the function as essential employees, and save the fuss. It is unclear whether ALJ’s could make this argument in an independent action. Whatever happens to us, there is no mechanism to exempt our staffs unless they too are declared essential. See article on federal courts.
Can ALJ’s be furloughed if they are engaged in the executive function of giving persons a forum to petition the government for redress of grievances? The first amendment says Congress shall make no law respecting … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The Fifth Amendment requires due process: No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Congress has protected both these rights with respect to Administrative Agency due process in Title 5 providing that hearings shall normally be conducted by the agency head or an ALJ. Art 2, Sect 2 vests authority to appoint inferior officers in heads of departments. ALJ’s are appointed under this provision. It could be argued that since agency heads do not have the capacity to hear all cases, and people are entitled to timely hearings, ALJ’s are engaged in an essential Constitutional function – giving people the right to address grievances to the government for redress.

Excerpt from informational paper distributed by OPM during the last furlough:

OPM GUIDANCE AND INFORMATION ON FURLOUGHS
14. Q. How do agencies effect adverse action furloughs of administrative law judges?
A. 5 U.S.C. 7521 provides that adverse action furloughs of 30 calendar days or less may be taken against administrative law judges, “only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.” Procedures for implementing such an action are described in 5 CFR 1201.137-141.
15. Q. Is it possible for the Office of Personnel Management (OPM) to issue one consolidated notice to the Merit Systems Protection Board (MSPB) regarding the furlough of all administrative law judges due to a lapse of appropriations?
A. In reviewing the requirements of the law at 5 U.S.C. 7521 and applicable regulations at 5 CFR 930.214 and 5 CFR 1201.137- 141, we believe that the authority to issue a notice to MSPB is vested solely in the respective employing agencies and, therefore, it is not appropriate for OPM to issue one consolidated notice to MSPB regarding the furlough of all administrative law judges due to a lapse of appropriations. When an agency determines that it is necessary to furlough administrative law judges, it should follow the procedures set out at 5 CFR Part 1201 to the extent permitted under a lapse of appropriations. We encourage agencies employing large numbers of administrative law judges to contact MSPB in an effort to streamline the process as much as is legally possible.
16. Q. Are individuals appointed by the President subject to furlough?
A. Individuals appointed by the President, with or without Senate confirmation, who otherwise are not subject to 5 U.S.C. 6301 and attendant regulations governing leave in the Federal service, are not subject to furlough. The salary of such a Presidential appointee is an obligation incurred by the year, without consideration of hours of duty required. Thus, the Presidential appointee cannot be placed in a nonduty, nonpay status. If a Presidential appointee, however, chooses to be in a nonpay status, he may return part of his salary to his employing agency, provided that the agency has authority to accept gifts, or to the Treasury. Regardless of the Presidential appointee’s choice, his entire salary is recorded for tax purposes. The following exception must be noted: former career Senior Executive Service (SES) appointees who took appointments at level V of the Executive Schedule or higher and elected to retain SES leave benefits under 5 U.S.C. 3392(c), are subject to furlough at the discretion of the agency.

August 16, 1995

MEMORANDUM FOR ALICE RIVLIN
DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET
This memorandum responds to your request to the Attorney General for advice regarding the permissible scope of government operations during a lapse in appropriations.(1)
The Constitution provides that “no money shall be drawn from the treasury, but in consequence of appropriations made by law.” U.S. Const. art. I, 9, cl. 7. The treasury is further protected through the Antideficiency Act, which among other things prohibits all officers and employees of the federal government from entering into obligations in advance of appropriations and prohibits employing federal personnel except in emergencies, unless otherwise authorized by law. See 31 U.S.C. 1341 et seq.(2)
In the early 1980s, Attorney General Civiletti issued two opinions with respect to the implications of the Antideficiency Act. See”Applicability of the Antideficiency Act Upon A Lapse in an Agency’s Appropriations,” 4A Op. O.L.C. 16 (1980); “Authority for the Continuance of Government Functions During a Temporary Lapse in Appropriations,” 5 Op. O.L.C. 1 (1981) (1981 Opinion). The 1981 Opinion has frequently been cited in the ensuing years. Since that opinion was written, the Antideficiency Act has been amended in one respect, and we analyze the effect of that amendment below. The amendment amplified on the emergencies exception for employing federal personnel by providing that “[a]s used in this section, the term ’emergencies involving the safety of human life or the protection of property’ does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.” 31 U.S.C. 1342.
With respect to the effects of this amendment, we continue to adhere to the view expressed to General Counsel Robert Damus of the Office of Management and Budget that “the 1990 amendment to 31 U.S.C. 1342 does not detract from the Attorney General’s earlier analyses; if anything, the amendment clarified that the Antideficiency Act’s exception for emergencies is narrow and must be applied only when a threat to life or property is imminent.” Letter from Walter Dellinger to Robert G. Damus, October 19, 1993. In order to ensure that the clarification of the 1990 amendment is not overlooked, we believe that one aspect of the 1981 Opinion’s description of emergency governmental functions should be modified. Otherwise, the 1981 Opinion continues to be a sound analysis of the legal authorities respecting government operations when Congress has failed to enact regular appropriations bills or a continuing resolution to cover a hiatus between regular appropriations.

I.

Since the issuance of the extensive 1981 Opinion, the prospect of a general appropriations lapse has arisen frequently. In 1981, 1982, 1983, 1984, 1986, 1987 and 1990, lapses of funding ranging from several hours to three days actually did occur. While several of these occurred entirely over weekends, others required the implementation of plans to bring government operations into compliance with the requirements of the Antideficiency Act. These prior responses to the threat of or actual lapsed appropriations have been so commonly referred to as cases of “shutting down the government” that this has become a nearly universal shorthand to describe the effect of a lapse in appropriations. It will assist in understanding the true extent of the Act’s requirements to realize that this is an entirely inaccurate description. Were the federal government actually to shut down, air traffic controllers would not staff FAA air control facilities, with the consequence that the nation’s airports would be closed and commercial air travel and transport would be brought to a standstill. Were the federal government to shut down, the FBI, DEA, ATF and Customs Service would stop interdicting and investigating criminal activities of great varieties, including drug smuggling, fraud, machine gun and explosives sales, and kidnapping. The country’s borders would not be patrolled by the border patrol, with an extraordinary increase in illegal immigration as a predictable result. In the absence of government supervision, the stock markets, commodities and futures exchanges would be unable to operate. Meat and poultry would go uninspected by federal meat inspectors, and therefore could not be marketed. Were the federal government to shut down, medicare payments for vital operations and medical services would cease. VA hospitals would abandon patients and close their doors. These are simply a few of the significant impacts of a federal government shut down. Cumulatively, these actions and the others required as part of a true shut down of the federal government would impose significant health and safety risks on millions of Americans, some of which would undoubtedly result in the loss of human life, and they would immediately result in massive dislocations of and losses to the private economy, as well as disruptions of many aspects of society in advance of appropriations or beyond appropriated levels, restrictions that will cause significant hardship should any lapse in appropriations extend much beyond those we have historically experienced. To be sure, even the short lapses that have occurred have caused serious dislocations in the provision of services, generated wasteful expenditures as agencies have closed down certain operations and then restarted them, and disrupted federal activities. Nevertheless, for any short-term lapse in appropriations, at least, the federal government will not be truly “shut down” to the degree just described, simply because Congress has itself provided that some activities of government should continue even when annual appropriations have not yet been enacted to fund current activities.
The most significant provisions of the Antideficiency Act codify three basic restrictions on the operation of government activities. First, the Act implements the constitutional requirement that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, 9, cl. 7. Second, when no current appropriations measure has been passed to fund contracts or obligations, it restricts entering into contracts or incurring obligations (except as to situations authorized by other law). Third, it restricts employing the services of employees to perform government functions beyond authorized levels to emergency situations, where the failure to perform those functions would result in an imminent threat to the safety of human life or the protection of property.(3) The 1981 Opinion elaborated on the various exceptions in the Antideficiency Act that permit some continuing government functions, and we will only summarize the major categories here:
• Multi-year appropriations and indefinite appropriations.
Not all government functions are funded with annual appropriations. Some operate under multi-year appropriations and others operate under indefinite appropriations provisions that do not require passage of annual appropriations legislation. Social security is a prominent example of a program that operates under an indefinite appropriation. In such cases, benefit checks continue to be honored by the treasury, because there is no lapse in the relevant appropriation.
• Express authorizations: contracting authority and borrowing authority.
Congress provides express authority for agencies to enter into contracts or to borrow funds to accomplish some of their functions. An example is the “food and forage” authority given to the Department of Defense, which authorizes contracting for necessary clothing, subsistence, forage, supplies, etc. without an appropriation. In such cases, obligating funds or contracting can continue, because the Antideficiency Act does not bar such activities when they are authorized by law. As the 1981 Opinion emphasized, the simple authorization or even direction to perform a certain action that standardly can be found in agencies’ enabling or organic legislation sufficient to support a finding of express authorization or necessary implication (the exception addressed next in the text), standing alone. There must be some additional indication of an evident intention to have the activity continue despite an appropriations lapse.
• Necessary implications: authority to obligate that is necessarily implied by statute.
The 1981 Opinion concluded that the Antideficiency Act contemplates that a limited number of government functions funded through annual appropriations must otherwise continue despite a lapse in their appropriations because the lawful continuation of other activities necessarily implies that these functions will continue as well. Examples include the check writing and distributing functions necessary to disburse the social security benefits that operate under indefinite appropriations. Further examples include contracting for the materials essential to the performance of the emergency services that continue under that separate exception. In addition, in a 1980 opinion, Attorney General Civiletti opined that agencies are by necessary implication authorized “to incur those minimal obligations necessary to closing [the] agency.” The 1981 opinion reiterated this conclusion and consistent practice since that time has provided for the orderly termination of those functions that may not continue during a period of lapsed appropriations.
• Obligations necessary to the discharge of the President’s constitutional duties and powers.
Efforts should be made to interpret a general statute such as the Antideficiency Act to avoid the significant constitutional questions that would arise were the Act read to critically impair the exercise of constitutional functions assigned to the executive. In this regard, the 1981 Opinion noted that when dealing with functions instrumental in the discharge of the President’s constitutional powers, the “President’s obligational authority . . . will be further buttressed in connection with any initiative that is consistent with statutes — and thus with the exercise of legislative power in an area of concurrent authority — that are more narrowly drawn than the Antideficiency Act and that would otherwise authorize the President to carry out his constitutionally assigned tasks in the manner he contemplates.” 1981 Opinion, at 6-7.(4) 4. The Attorneys General and this office have declined to catalog what actions might be undertaken this heading. In 1981, for example, Attorney General Civiletti quoted Attorney General (later Justice) Frank Murphy. “These constitutional powers have never been specifically defined, and in fact cannot be, since their extent and limitations are largely dependent upon conditions and circumstances. . . . The right to take specific action might not exist under one state of facts, while under another it might be the absolute duty of the Executive to take such action.” 5 Op. O.L.C. at 7 n.9 (quoting 39 Op. Att’y Gen. 343, 347-48 (1939)). This power should be called upon cautiously, as the courts have received such executive branch assertions skeptically. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); George v. Ishimaru, 849 F. Supp. 68 (D.D.C.), vacated as moot, No. 94-5111, 1994 WL 517746 (D.C. Cir., Aug. 25, 1994). But see Haig v. Agee. 453 U.S. 280 (1981); In re Neagle, 135 U.S. 1 (1890). The previous furlough was dealt with by MSPB in this Fed Register Notice:
MERIT SYSTEMS PROTECTION BOARD
Opportunity to File Amicus Briefs in Cases Involving Possible
Furlough of Administrative Law Judges
AGENCY: Merit Systems Protection Board.
ACTION: The Merit Systems Protection Board is providing an opportunity for interested parties to submit amicus briefs in a number of pending cases filed pursuant to 5 U.S.C. Sec. 7521 and 5 CFR 1201.131.

———————————————————————–
SUMMARY: The Merit Systems Protection Board currently has seven pending complaints filed by separate agencies pursuant to 5 U.S.C. Sec. 7521 and 5 CFR 1201.131. The basic premise of each complaint is that there is a possibility that Congress may not enact an appropriation or continuing resolution for fiscal year 1996 on or before October 1, 1995, and that the resulting lapse in funding would necessitate the furlough of all agency employees, including administrative law judges. Therefore, the agencies are requesting that the Board make a finding that there is good cause for the imposition of a furlough action against each agency’s administrative law judges. The Board also has a complaint filed by the National Labor Relations Board seeking permission to furlough its administrative law judges. The NLRB states in its filing that it anticipates its fiscal year 1996 budget will be insufficient to cover its present rate of spending, and that the furlough of its administrative law judges will thus be necessary to avoid deficit spending. The Board has issued orders in each of the eight cases noting that there is a question whether the procedure provided for by 5 U.S.C. Sec. 7521 is intended to cover the situations described in the agencies’ complaints. Specifically, the Board has determined that there is a question whether a furlough which seven agencies allege would be necessitated by a lapse in funding caused by the failure of Congress to enact an appropriation or continuing resolution is the type of personnel action to which the protections of 5 U.S.C. Sec. 7521 need by applied. In the case of the NLRB, the Board has determined that there is a question whether a furlough allegedly necessitated by a cut by Congress in the agency’s appropriation is an action to which the protections of 5 U.S.C. Sec. 7521 may be applied. In Horner v. Andrzjewski, 811 F.2d 571 (Fed. Cir. 1987), which involved furloughs under a similar statute, 5 U.S.C. Sec. 7513, the court recognized that not all furloughs are within the Board’s jurisdiction. The court stated that where a furlough action is taken “because an agency has no choice * * * it can reasonably be said that an agency did not `take an action’ covered by Chapter 75.” Id. at 576. In considering these questions, the Board is concerned with the possibility that the provisions of the Antideficiency Act (31 U.S.C. Secs. 1341, 1350) may be violated by any action the Board might take in declining to authorize an agency the right to furlough administrative law judges due to a lapse in funding caused by the failure to enact appropriation bills or a continuing resolution, or by Congress’ failure to fund an agency at current budget levels. The Board is inviting any interested party to submit amicus briefs addressing these jurisdictional issues.

DATES: All briefs submitted in response to this notice shall be filed with the Clerk of the Board on or before September 22, 1995.
ADDRESSES: All briefs shall be captioned “Administrative Law Judge Furlough Appeals” and entitled “Amicus Brief.” Only one copy of the brief need be submitted. Briefs should be filed with the Office of the Clerk, Merit Systems Protection Board, 1120 Vermont Avenue NW., Washington, DC 20419.

FOR FURTHER INFORMATION CONTACT:
Shannon McCarthy, Deputy Clerk of the Board, or Matthew Shannon, Counsel to the Clerk, (202) 653-7200.
Dated: September 13, 1995. Robert E. Taylor, Clerk of the Board. [FR Doc. 95-23067 Filed 9-15-95; 8:45 am] BILLING CODE 7400-1-M

Article on Federal Courts Staff:
Federal courts face shutdown under impasse Posted: 7:00 pm Tue, March 15, 2011
By Associated Press
WASHINGTON — The nation’s courts may be forced to close down if the current budget battle between Republicans and Democrats leads to a government shutdown, a federal judge said Tuesday. If the government shuts down, “litigation might be grinding to halt for a while,” said Chief Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit. Sentelle is also chairman of the Executive Committee of the Judicial Conference of the United States, the policy-making body for the federal courts. The judges have been meeting in Washington this week. Federal judges would still get paid because under the Constitution, judges’ pay cannot be decreased, Sentelle said. But no other federal employees in the courthouses, like clerks, stenographers, bailiffs and security guards, would get paychecks, making it difficult if not impossible to hear cases, he said. Also, jury trials would have to end because there would be no money to pay jurors to compensate for them missing work, he said. Congress is working on legislation that would temporarily avert a government shutdown on Saturday. The legislation is needed to prevent a partial government shutdown when a stopgap funding bill expires Friday at midnight. Democrats and Republicans remain deadlocked over legislation funding day-to-day agency operations, which have been mostly frozen at 2010 levels since October of last year. Because of that, court officials already are already deferring payment to some court-appointed lawyers, Sentelle said. If the government shuts down, Sentelle said they would ask essential personnel to work anyway and get their money after a budget is approved. “We’ve been there before and it’s not something you want to ask your employees to do,” Sentelle said. Without personnel to hear cases, some suspected criminals could be released from prison because their case was not heard before a judge within a required deadline.

OPM to meet on April 7 with FALJC and other organizations to start new ALJ examination process (updated 3/24/11)
OPM has invited FALJC and several bar assosications to meet on April 7 to discuss the occupational analysis it is conducting, which will be used to generate a new ALJ examination:
From: Love, Juanita Howard [mailto:Juanita.Love@opm.gov]
Sent: Thursday, March 24, 2011 11:18 AM
To: The Forum of United States Administrative Law Judges ; Administrative Conference of the United States; Administrative Conference of the United States; American Bar Association, Commission on Mental and Physical Disability Law ; American Bar Association, Judicial Division Standing Committee on Minorities in the Judiciary ; American Bar Association, National Conference of the Administrative Law Judiciary ; American Bar Association, Section of Administrative Law and Regulatory Practice; American Bar Association, Senior Lawyers Division; Association of Administrative Law Judges; Energy Bar Association; Solomon, Daniel – OALJ; Federal Bar Association; Hispanic National Bar Association ; International Federation of Professional and Ttechnical Engineers; National Asian Pacific American Bar Association ; National Bar Association ; National Conference of Women’s Bar Associations; National Native American Bar Association
Subject: ALJ Occupational Analysis
Dear ALJ Stakeholder:
The U.S. Office of Personnel Management (OPM) is in the process of conducting an occupational analysis of the Administrative Law Judge (ALJ) positions. This occupational analysis will be used as the basis for a revision of the ALJ examination process. Valid information is critical to revise or develop hiring assessments and a current review is needed at this time to account for changes in the occupation. The results will direct and provide support for the examination.
We are contacting you as a stakeholder in this process to request your participation in a meeting to be held on Thursday, April 7, 2011, from 2:00 p.m. – 4:00 p.m. In this meeting, you can share with us relevant information regarding the ALJ examination that was last administered in 2009. In addition, we will provide general information about the occupational analysis process. We also will gather your insights to get a better understanding of the ALJ job, that is, the duties for which ALJs are responsible and the competencies needed to perform those duties, both currently and in the foreseeable future. OPM will use information gathered to prepare for focus groups throughout the United States with incumbent ALJs. Those focus groups will address similar information, but at a more specific level of the tasks and duties performed.
We look forward to your participation at this meeting. However, if you are not able to attend this meeting personally, you may designate a representative to attend in your place. The meeting will take place at OPM, 1900 E Street, NW, Room 5A06A, Washington, DC. For building security, we will need confirmation of the name of the person attending. Please send your response or any questions to me via email at: juanita.love@opm.gov, by COB Tuesday, April 5, 2011.
Thank you very much in advance for your time and support.
Juanita H. Love
Manager
Administrative Law Judge Program Office
Human Resources Solutions
U.S. Office of Personnel Management
Ph: 202-606-3822 | F: 202-606-8359

HHS Chief Judge Nancy Griswold to speak at FALJC March 18 luncheon (updated 3/18/11)
FALJC LUNCHEON MEETING NOTICE
The agenda and February meeting minutes have been posted. Date: Friday, March 18, 2011
Place: Holiday Inn– Rosslyn at Key Bridge, 1900 Fort Meyer Drive, Arlington, VA (about one block from the Rosslyn Metro Station; Free Parking)
Time: 11:00 a.m. Executive Committee meeting, 12:00 p.m. Luncheon
Speaker: Nancy J. Griswold, Chief ALJ
US Department of Health and Human Services, Office of Medicare Hearings and Appeals
Cost: $25.00 covers a full lunch, including dessert and beverages. Please bring cash or a check payable to FALJC to the meeting
Menu: Please make your selection from Sauteed Beef Tips with Vegetables, Pan-Seared Peppered Salmon with Citrus Butter Sauce, Stir-Fry Vegetables with Pine Nuts and Basil. All entrees are served with a Tossed Salad, Rice, a Seasonal Vegetable, Dessert and Coffee
FOR THOSE ATTENDING THE EXECUTIVE MEETING BY TELEPHONE: • Call in Number: 1-800-371-9219 • Conference ID Number: 5854333
Reservations:
Active Judges– Contact your Agency Representative
Agency Representatives– Contact Judge Pearson or Judge Gilbert with a head count, names of attendees and menu selections no later than 4:00 p.m., Wednesday, March 10, 2011 Retired Judges– Contact Judge Gilbert directly
RSVP: FALJC First Vice President, Judge Richard Pearson– rpears@flra.gov or FALJC Secretary, Judge James G. Gilbert– james.g.gilbert@usps.gov

Federal Circuit affirms removal of ALJ (updated 3/15/11)
Washington, D.C. – March 14, 2011 – The United States Court of Appeals for the Federal Circuit today issued its opinion in the appeal of former SSA ALJ Danvers E. Long [Danvers E. Long v. Social Security Administration, No. 2010-3108 (Fed. Cir. March 14, 2011)]. FALJC has followed this case closely, as it involves certain standards applied by the MSPB in its determination of “good cause” under 5 U.S.C. § 7521. In affirming the finding of the MSPB, and its decision to remove Judge Long, the Federal Circuit discusses in detail the application of the “good cause” standard by MSPB in this case. As the case involves the behavior of an ALJ outside of the workplace, it is an important opinion for all ALJs to consider. Also of interest is the concurring opinion of Judge Dyk. Although Judge Dyk concurs in the removal of Judge Long, the concurring opinion expresses the concerns that many ALJs have also expressed about the use of private, non-workplace behavior as a vehicle for ALJ discipline. Acknowledging the seriousness of the offenses charged against Judge Long, Judge Dyk also warns that this case is not precedent for the Board to engage in investigations into the private behavior of ALJs. “However, the Board must engage in such proceedings only in the most unusual circumstances or risk reversal by this court.”

FW: Upcoming ACUS Committee Meetings (updated 3/10/11)
Notification of Federal Register Notice
March 7, 2011
The Administrative Conference published notification of public meetings in the Federal Register. Each committee will consider a research report and will prepare recommendations on the subject of the report for consideration by the full Conference. The following committee meetings have been announced:
March 16 (Previously Announced in 2/28 FR Notice): From 9 am – 12pm, the Committee on Administration and Management will meet regarding Government Contractor Ethics.
March 23: From 1 pm – 3:30pm, the Committee on Collaborative Governance will meet regarding FACA in the 21st Century.
March 24: From 2 pm – 5pm, the Committee on Regulation will meet regarding Rulemaking Comments.
March 25: From 9 am – 12pm, the Committee on Rulemaking will meet regarding Legal Issues in E-Rulemaking.
March 28: From 2 pm – 5 pm, the Committee on Judicial Review will meet regarding A Procedural Trap: 28 U.S.C. § 1500, a statute that regulates the jurisdiction of the United States Court of Federal Claims.
March 30: From 9 am – 12pm, the Committee on Adjudication will meet regarding Video Hearings.
Complete details regarding each committee’s meeting, related research reports, how to attend (including information about remote access and obtaining special accommodations for persons with disabilities), and how to submit comments to the committee can be found in the “Research” section of the ACUS Web site, http://www.acus.gov.

GOP targets salaries and step increases of federal workers (updated 3/10/11)
In an article published yesterday in The Hill, the majority members of the House government oversight committee indicated their intent to pursue changes to federal employees’ pay rates. One aspect of ALJ compensation to be targeted would include the step increases in our compensation. President Solomon has asked Lillian Gaskin, FALJC’s new legislative consultant, to monitor and report back on this situation.

DOT posts ALJ opening (updated 3/1/11)
The Department of Transportation has an ALJ opening. The job announcement states that applications are due by March 21.

FALJC in the news (updated 3/1/11)
The controversy involving HUD’s Office of Hearings and Appeals and interference by its administrator is discussed in a February 28 Government Executive Magazine article.

FALJC February 25 Executive Committee Meeting documents (updated 2/25/11)
The agenda, November meeting minutes, January meeting minutes, the report, and legislative report are attached.

Pay not guaranteed for furloughed employees (updated 2/23/11)
Yesterday’s Government Executive Magazine article discusses the potential ramifications for federal employees in the event of a government shutdown on March 4.

HUD ALJ litigation update (updated 2/23/11)
Judge Fernandez has filed a motion for reconsideration of the dismissal of the APA claims by the district judge in his case. The court has ordered mediation by a magistrate judge: Motion for Reconsideration, Memorandum of Law in Support of Reconsideration, Ruling on Motion to Dismiss. HUD and OPM have moved to dismiss the APA violations in Judge Mahoney’s case on several grounds. In addition, Judge Mahoney has moved to relate his case to that of Judge Fernandez, and assign both to the same district judge. DOJ opposes that motion: Memorandum Opinion, Defendants’ Motion to Dismuss, Opposition to Related Case Motion, Motion to Relate Cases.

SSA notifies AALJ’s parent union of intention to bargain over implementation of potential furloughs (updated 2/21/11)
SOCIAL SECURITY ADMINISTRATION BALTIMORE MD 21235-0001
February 17, 2011
NUC-2011-A01
Mr. James E. Marshall, Spokesperson
SSA/AFGE General Committee
P.O. Box 1698
Falls Church, VA 22041
Dear Mr. Marshall:
Pursuant to Article 4 of the National Agreement, this letter serves as notice to bargain over the impact and implementation of a furlough procedure in the event of an Agency furlough. It is important to note that the Commissioner has not decided to effectuate a furlough. However, given the potential of reduced Congressional appropriations for the remainder of the fiscal year, the Agency is issuing this notice at this time in the event that a furlough may become necessary. Following receipt of a request to bargain, management is prepared to bargain over negotiable proposals concerning procedures and arrangements related to the aforementioned issue. Any bargaining will be in accordance with the Statute and Article 4 of the SSA/AFGE National Agreement. Accordingly, since this notice is being provided electronically, any bargaining must commence no later than the first Tuesday following the twenty-eighth (28) calendar day period after the receipt of this notice. In accordance with Article 4, Section 1(B), failure to request to bargain within the timeframes set out for national level bargaining may result in unilateral implementation. Pursuant to Article 4, Section 3(C), please submit your reply to this notice by electronic correspondence to DCHR.OLMER.OAC@ssa.gov. Should you wish to discuss this matter please contact Eddie Taylor at (410) 965-7066. Sincerely,
Jay Clary
Acting Associate Commissioner
Office of Labor-Management

FALJC enters into legislative consulting contract with Lillian Gaskin (updated 2/10/11)
On behalf of the Executive Committee, AFALJC President Dan Solomon has entered into a legislative consulting contract with Lillian Gaskin. By electronic vote culminating on February 7, 12 Executive Committee members voted in favor and none opposed, the motion to approve a contract with Ms. Lillian Gaskin as FALJC Legislative Consultant was APPROVED. Ms. Gaskin, Senior Legislative Counsel in the ABA’s Governmental Affairs Office, retired in October after 33 years of service to that organization. She joined the ABA staff in 1977 after serving as a deputy attorney general for the Commonwealth of Pennsylvania for four and a half years. At retirement, Ms. Gaskin was representing ABA policy positions in the following areas: insurance law, tort law, the administrative judiciary, attorneys’ fees, elder law, health law, bioethics, selected litigation-related issues and the Social Security disability determination and appeals process. Many of her efforts contributed to enactment of legislation. During the past year, she worked on health care reform, and the new law enacted in March contains several ABA-supported provisions. Since 1991, Ms. Gaskin has worked on ABA efforts to improve the justice system, including production in 1992 of the ABA Blueprint for Improving the Civil Justice System and development of the civil justice portions of the 1996 ABA Agenda for Justice. Within the past few years, she worked with the Standing Committee on Medical Professional Liability to develop ABA policies to foster better communications between doctors and patients and to promote patient safety. She also has provided staffing for numerous ABA committees and task forces within GAO, including the Task Force on Federal Agency Preemption of State Tort Laws, which brought a policy recommendation to the House of Delegates in August that was approved on a strong voice vote.

Judge Leo McCormick, a FALJC pioneer, has died (updated 2/10/11)
Judge Solomon:
With a sad heart I must report that Leo “Pat” McCormick has passed away. Pat was a Navy pilot who flew flying boats. He loved those “boats” as he called them. He was always a little sad that the Navy had given up lying boats. After his flying days were over, he transferred to the Navy JAG Corps. Captain McCormick was my first Officer-in-Charge at NAS Moffett Field. He was one of the best mentors that I ever had in ever Navy. Without his guidance, I would have never have peen promoted above Lieutenant Commander. He was also a long serving and well respected Administrative Law Judge in San Jose. He served many years as the Hearing Office Chief Judge in San Jose. After he retired, he continued to serve Social Security as a senior judge. Pat was very proud of his son, Kevin, who is an Administrative Law Judge in Southern California. I am told that there will be a celebration of life ceremony later in the year towards summer. P.S. Pat McCormick bugged me for years to join FALJC. I finally relented. He is the only reason I initially joined.
Judge Timothy Hannon

ACUS Adjudicatory Committee members appointed (updated 2/3/11)
ACUS has appointed members to its several committees. For our purposes, the very important Adjudicatory Committee is chaired by retired DOL Chief Judge John Vittone and includes FALJC President Solomon, and Chief Judges Robert Lesnick (FMSHRC) and Charles Center(FLRA).

FALJC February Executive Committee meeting moved to February 25 (updated 2/3/11)
Due to scheduling conflicts on the part of several members, the February meeting has been rescheduled to February 25. The location (USDA) remains the same.

OMHA reissues job solicitations for Cleveland and Miami offices (updated 1/25/11)
This is is a reissuance of an earlier job solicitation, which was rescinded due to budgetary constraints. Applications are due by February 3.
Dear Colleagues,
The Office of Medicare Hearings and Appeals (OMHA) is seeking to fill multiple vacancies for our Supervisory Administrative Law Judge positions in our Midwestern Field Office (Cleveland, Ohio) and Southern Field Office (Miami, Florida). The attached Solicitation of Interest provides all relevant details regarding the available positions. Please share this solicitation with the ALJs in your organization. Information concerning how to apply is contained within the solicitation. Please contact me if you have any additional questions. I greatly appreciate your assistance in helping OMHA communicate this opportunity to the national ALJ community. With thanks and best regards,
Judge Nancy Griswold
Chief Administrative Law Judge
Office of Medicare Hearings and Appeals
1700 North Moore Street, Suite 1800
Arlington, VA 22209
Tel: 703-235-0635
Fax: 703-235-8001

Judge Purcell to be sworn in as DOL’s Chief Judge (updated 1/25/11)
Judge Stephen Purcell will be sworn in as Chief Judge of the US Department of Labor on February 2, 2011 at 11 a.m. The invitation indicates that the ceremony will be held at the DOL Office of Administrative Law Judges, 800 K Street, NW, Suite 400-North. R.S.V.P. Ms. Tanavage at 202-693-7542.

Commissioner Astrue to attend Chief Judge Cristaudo’s farewell remarks on January 21 (updated 1/20/11)
Judge Cristaudo has advised FALJC that Commissioner Astrue is scheduled to attend the luncheon following the Executive Committee meeeting. The agenda, legislative report, November meeting minutes, and the Legislative Consultant Search Committee report are attached.

Tape recording of the oral argument in Long v. SSA (updated 1/17/11)
The Federal Circuit heard oral argument in the appeal in Long v. SSA on January 13, 2011. Click on the link provided by the court clerk of the tape recording to hear the 40 minute argument. Judge Linda Stagno representing AALJ argued that this incident would have been perceived entirely different if the sex of the protagonists was changed. She asserted that if a female had been asleep babysitting and a male judge came home intoxicated and started to hit her, then absconded with the child and the female went down the street to try and retrieve her baby from the intoxicated male judge and a fight ensued, she asserted that neither the authorities, nor the Agency or the MSPB would have near the trouble with the conduct of the female as they had with Judge Long’s. It appears from the questioning that the judges hearing the case are grappling with the issues. An overriding, if not briefed, issue is the issue of domestic violence. The opinion of a FALJC member with extensive experience in appellate practice is that a remand is likely but an outright reversal is possible. In any event, the Federal Circuit’s decision will be precedential on the issue of ALJ discipline for conduct occurring outside of the hearing office for years to come.

Myth vs. Reality as to federal employees pay (updated 1/14/11)
As one of the organizations comprising the Coalition for Effective Change, FALJC received advanced copies of the fact sheets to be distributed to every legislator’s office. One is a Myth vs. Reality document about federal worker pay and benefits; the second refutes the cost savings of furloughs. Also to be distributed to members of Congress are lists broken down by district as to amounts of active and retired federal employees, by agency, to remind them that they have federal emloyees living in their districts. Here is a link to the updated map.

January 12, 2011 Washington Post Article: “Social Security judges no strangers to growing threat of violence” (updated 1/13/11)
Joe Davidson
Washington Post Staff Writer
Wednesday, January 12, 2011
Losing Social Security disability benefits can be devastating. Potentially hundreds of thousands of dollars in benefits can disappear if an administrative law judge rules against those fighting to get money they think they’re due. Most people who lose cases accept defeat. Some choose to fight dirty. After Larry Butler, an administrative law judge, ruled against a woman in Shreveport, La., last year, she wouldn’t take no for an answer. Latonya Kemp was on the short end of Butler’s ruling. She was accused of retaliating, according to a criminal complaint filed in Shreveport by a federal agent, by making profanity-laced phone calls to Butler’s home and sending harassing messages there through the mail. “Judges get threatened quite often,” Butler said. “What concerned me was when they started threatening my kids by name and my wife.” In one message, left on the office phone of Butler’s co-worker, Kemp said, “Me and you and Judge Butler, we have a date with death and we won’t be late,” according to the agent’s affidavit. She was arrested before she could keep that date. If only Jared Loughner could have been stopped before he allegedly kept a date with death. Loughner is accused in the shootings that left six dead, including a federal judge, and 14 wounded in Tucson on Saturday. Rep. Gabrielle Giffords (D-Ariz.) clings to life after being shot in the head. That orgy of violence has drawn attention to security issues surrounding federal employees. One group of workers for whom threats are an increasing problem are Social Security employees, especially the agency’s administrative law judges. “The Social Security Administration takes the security of its employees and the public very seriously,” said a statement issued by the agency’s press office. “Our security measures provide a high level of safety for our offices.” That’s not quite the way the Association of Administrative Law Judges sees it. The union says there were 50 reports of violent threats against judges and Social Security offices during the latest six-month reporting period. Compare that half-year figure with the total 106 threats recorded for the 31/2-year period ending in February 2005. “The numbers are increasing, and the threats are very serious,” said Randall Frye, president of the judges association. “I’ve been in government 37 years, and I have never seen the anger from the public, generally, that I see now.” He’s not the only one who sees a frightening trend.
A report by Social Security’s inspector general says the number of reported threats against Social Security Administration employees and property leapt from 897 in fiscal year 2007 to 2,336 in 2010. About 13 percent of more than 2,100 randomly selected employees who responded to an inspector general’s survey said they had been threatened at work in past three years, half of them more than once. Here’s a sampling of security threats from SSA incident reports provided by the union:
– A man who received an unfavorable ruling by a Greenville, S.C., judge in March “stated that he was a snipper with the military and he would go take care of the problem.”
– A woman at the Morristown, Tenn., Social Security office felt discriminated against and had an unfortunate way of expressing her feelings in June. “The claimant stated she felt like she had been ‘screwed over’ because she’s not Black or Mexican, and ‘no wonder people shoot people at these offices.'” If she knew where the judge lived, “she would hurt him so that he would understand her pain.”
– In an Albuquerque case in September, a caller unhappy with a ruling said he would cut off the head of the judge.
Action by the angry speaks more painfully than words. A security guard at an SSA office in Sacramento was shot dead by a person upset over a denial of benefits in 2000. The Grand Rapids (Mich.) Press says a man shot himself in a Social Security office hours after receiving a letter denying him benefits in 2001. Mark Brown, an administrative law judge in St. Louis since 1982, warns that increasingly vitriolic political rhetoric can fuel more than threats. “I’m afraid with some people it is enough to push them over the edge,” he said. “Some of them are grappling with enough demons that some of this rhetoric can help them convince themselves that what they are doing is justified. Clearly it is not.” Like other judges, Brown wanted it known that he was speaking in his capacity as union official and not as a government spokesman. That’s understandable, because the association is critical of Social Security’s approach to office security. One of the main things it wants is more than one guard in SSA hearing facilities. That one guard screens all members of the public entering the facility, while supposedly monitoring activity in the hearing rooms. Sometimes there are as many as 18 hearing rooms. The judges are particularly upset with a rule they said allows those whose cases are being decided to determine whether guards may be in the hearing room. The agency seems to have a different interpretation of the regulation, but adds, “we are clarifying our written policy.”

DOL selects new Chief ALJ (updated 1/13/11)
The Secretary of Labor has selected Judge Stephen L. Purcell as the Chief Judge for OALJ. This appointment was confirmed by OPM this week and will become effective this Sunday, January 16th. Information about the swearing in ceremony will be forthcoming.

SSA Chief Judge Frank Cristaudo to speak at January FALJC meeting/luncheon (updated 1/11/11)
Location: James Hoban’s Irish Restaurant, One Dupont Circle, Washington, DC (just south of Dupont Circle, where New Hampshire Avenue meets the Circle; about 50 yards from the south exit of the Dupont Circle Metro station). Speaker: Judge Frank A. Cristaudo, Chief Administrative Law Judge, Social Security Administration. Cost: $23.00. RSVP to Judge Richard Pearson, rpears@flra.gov by noon on Wednesday, January 19. No menu selections need to be made in advance; a choice of appetizers and entrees will be made at the lunch

OMHA rescinds job solicitations due to budgetary constraints (updated 1/7/10)
Dear Colleagues,
Due to budgetary constraints, we are rescinding the solicitation below. We apologize for any inconvenience and hope to reannounce the solicitation in the near future. Please share this message with the ALJs in your organization.
Thank you,
Judge Nancy Griswold

Dear Colleagues,
The Office of Medicare Hearings and Appeals (OMHA) is seeking to fill multiple vacancies for our Supervisory Administrative Law Judge positions in our Midwestern Field Office (Cleveland, Ohio) and Southern Field Office (Miami, Florida). The attached Solicitation of Interest provides all relevant details regarding the available positions. Please share this solicitation with the ALJs in your organization. Information concerning how to apply is contained within the solicitation. Please contact me if you have any additional questions. I greatly appreciate your assistance in helping OMHA communicate this opportunity to the national ALJ community. With thanks and best regards,
Judge Nancy Griswold
Chief Administrative Law Judge
Office of Medicare Hearings and Appeals
1700 North Moore Street, Suite 1800
Arlington, VA 22209
Tel: 703-235-0635
Fax: 703-235-8001

2010

2011 ALJ pay rates posted (updated 12/30/10)
The 2011 locality pay rates have been frozen at 2010 levels.

Judges Bullard and Montano transfer (updated 12/30/10)
Judge Jan Bullard has transferred from the Department of Labor’s Cherry Hill, New Jersey office to the Department of Agriculture in Washington, DC. Judge Al Montano has transferred from the HHS Medicare Fraud Office to the National Transportation Safety Board in Washington, DC.

Judge Fernandez’s files second complaint against HUD (updated 12/30/10)
Attached are Judge Alexander Fernandez’s second complaint against HUD, dated 10/19/10 and answer, dated 12/20/10. As to Judge Mahoney’s related complaint against HUD, over his objection, the judge granted a defense request for extension of time to answer until 1/14/11.

President extends locality payments for 2011 to ALJs (updated 12/19/10)
On December `3, 2010, OPM Director issued a Memorandum notifying agency heads of the Extension of Locality Payments to Non-General Schedule Employees. Attachment 1 indicates that ALJs are once again included.

SSA Chief Judge Cristaudo to be reassigned (updated 12/17/10)
SSA Chief Judge Frank Cristaudo will be stepping down as Chief Judge in mid-January and will be reassigned to a newly created position as a Associate Chief Judge for Administrative Management. Judge Cristaudo maintained his residency in South New Jersey while serving as Chief Judge in Falls Church and the new assignment would bring him closer to home. This is one of the new positions created in the Office of the Chief Judge as part of the ODAR Headquarters reorganization. The ODAR reorganization consists of various functions being transferred from the Chief Judge’s office to other ODAR divisions that report directly to the Deputy Commissioner. Two new divisions were created, each with two SES members in the leadership positions. Policy and judge dicipline will no longer be handled by the Chief Judge’s office.

Danvers Long v. SSA to be argued on January 13 (updated 12/17/10)
The Court of Appeals for the Federal Circuit will hear oral argument in the case of Danvers Long v SSA, (MSPB decision removing the ALJ for good cause based on off duty misconduct), Case No. 2010-3108. AALJ filed an amicus brief its recent motion to participate in oral argument was granted (seven minutes). The case will be heard on Thursday, January 13th at 10:00am.

Judge Levine Files Complaint Alleging Misconduct At The CFTC (updated 12/14/10)
Judge Files Complaint Alleging Misconduct At The CFTC
Dow Jones, December 10, 2010
By Sarah N. Lynch, Of DOW JONES NEWSWIRES
WASHINGTON -(Dow Jones)- An administrative law judge at the Commodity Futures Trading Commission on Friday accused the agency of misconduct and of mishandling investor complaints, including imposing a financial judgment on a dead man. In a 45-page complaint, submitted to the CFTC’s inspector general, Administrative Law Judge Bruce Levine, 61, accused officials who oversee the agency’s proceedings office of “deceit and misrepresentation,” “intimidation” and attempted defamation. His complaint is focused on staff in the proceedings office, which handles investor complaints against brokerage firms. Levine claims these people made procedural errors in financial recovery cases, created a hostile work environment, and wrongfully terminated a CFTC employee for communicating with his office. CFTC agency officials have been picking and choosing how to assign cases, a violation of rules on random case assignment which were designed to prevent bias, according to an affidavit by a former employee attached to Levine’s complaint. A spokesman for the CFTC and two commissioners declined to comment. Judge Levine’s letter is one of several recent controversies that have opened a window into the CFTC’s proceedings office, where a group of staff and officials have been launching verbal and written attacks on one another. The CFTC’s proceedings office, a small unit at the agency with a budget of about $3 million, allows investors and the agency’s enforcement staff to file fraud claims against brokerage firms. In the case of the dead man, Levine said the agency wrongfully awarded money to an investor who had sued the deceased man for fraud after he died in an auto accident. The dead man, Michael Chen, who worked as a broker soliciting investments, failed to respond and was “deemed to have admitted the allegations.” Levine said this case is an example of a systemic problem in how the CFTC handles “default” cases, or cases in which a company fails to respond to a complaint. Levine alleges the CFTC routinely violates rules on how these cases are assigned and passes them to another official who often rubber stamps them by finding the company guilty even if the investor has no case. Levine describes a dwindling caseload in the reparations office, which could make the CFTC’s financial recovery program a possible target of new federal cost-cutting. CFTC Commissioner Scott O’Malia, in a recent letter to the Washington Post, wrote that if the program has lost its value, then it should be eliminated. Levine said the financial recovery caseload has dropped an average of one new complaint a week. His complaint portrays agency leaders as trying to prop up the program to save it from extinction. He says CFTC officials have been trying to bring in different kinds of cases to justify the program without informing him and going around him when making decisions. In an interview, Levine declined to pass judgment on whether the program should continue to be funded, but he said he thinks it’s “clear that we are substantially overstaffed considering the few cases filed each year.” Levine was recently the target of an unusual public complaint of bias from fellow CFTC administrative law judge George Painter. In a retirement letter released in October, Painter claimed that Levine had promised former CFTC Chairman Wendy Gramm that he’d never rule in favor of an investor. Painter asked the agency to transfer his remaining pending cases to an outside judge, but the CFTC transferred them to Levine instead. Attorneys representing investors in cases against MF Global and Tri Global FX Inc. have since asked Judge Levine to recuse himself from hearing their cases, but Levine hasn’t issued any decisions yet. Judge Painter was hospitalized for mental health-related problems earlier this year, and was the subject of a recent guardianship battle between his wife and his son. Tensions in the CFTC between Levine and some other staffers have been brewing for years. Levine suggests some this tension may stem from the fact that he hasn’t hesitated to criticize the agency for what he sees as “sloppy” and ” inconsistent” case law. Levine said he decided to file a formal complaint because he can’t stand by idly anymore, especially after he said the CFTC wrongfully fired an employee who worked with his office. “I’m not going to be driven out” he said in an interview. “If I can make an impact by improving and correcting the flawed system at the CFTC, I can do something important.”

ALJ opening at FERC (updated 12/8/10)
The Federal Energy Regulatory Commission has an opening for an ALJ-3F position based at its offices in Washington, DC. The job announcement states that anyone interested contact Chief Judge Curtis Wagner at (202) 502-8500 or curtis.wagner@ferc.gov.

FALJC Responds to OPM Proposed Rule on Licensure of ALJS (updated 12/3/10)
FALJC president Dan Solomon submitted a letter on behalf of FALJC to OPM Director John Berry requesting changes to the proposed rule regarding ALJ licensure. While FALJC strongly supports the proposed rule, President Solomon pointed out to OPM that the proposed rule might inhibit the ability of sitting or retired state court judges to become ALJs. The letter to OPM proposed changes to the language in the regulation that would clarify that such judges would be eligible for selection as ALJs.

ACUS to convene at National Archives on December 9 and 10 (updated 12/1/2010)
The Administrative Conference of the United States will convene at the National Archives on December 9 and 10. Pertinent documents include the Guide for Members, the ACUS’s By-Laws, the Revised Draft Recommendations, Professor Elizabeth Sharkey’s Executive Summary, the Plenary Session Agenda, and the Reception invitation for ACUS members and invited guests. Members interested in attending the plenary session or reception, contact President Solomon.

Judges Turek and Birchman retiring (updated 12/1/10)
Judges Jeffrey Turek of DOL and Bruce Birchman of FERC, both former FALJC Legislative Chairmen, are retiring. A reception for Judge Turek will be held on December 8, 2010 from 3 to 5 pm at Clyde’s of Gallery Place (Next to Verizon Center), Piedmont Room, 707 Seventh Street, NW, Washington, DC 20001. The cost for current and former DOL staff is $30 and $42 for all others. If you plan to attend, please mail a check (made payable to William Colwell) to Brenda Smith at 3018 9th Street, S.E., Washington, DC 20032 to reach Brenda by December 3, 2010. Questions should be addressed to Brenda at (202) 693-7306 or smith.brenda@dol.gov. Judge Birchman’s retirement celebration will be held at FERC, Room 3M-2A/B on December 6, 2010 at 2:30 pm. Donations will be accepted for the celebration and gift. Send donation by December 1, 2010 to Judge Steven Glazer, steven.glazer@ferc.gov, Room 11F-7.

FALJC October meeting minutes and financial report approved (updated 11/21/10)
The attached minutes of the October 22, 2010 Executive Committee meeting and the November 19, 2010 legislative report were presented and approved at the November 19, 2010 Executive Committee meeting.

Telework bill passes House, headed to President (updated 11/21/10)
The House passed the Telework Enhancement Act (H.R. 1722) on November 18, 2010. The new law provides the mechanism for expanded telework opportunities for federal employees. A recent article in Federal News Radio explains the law’s mechanism and ramifications for expanding future telework opportunities for federal employees.

FALJC November Legislative Report (updated 11/18/10)
The latest report and its addendum ccover issues of interest to the federal ALJ community that may come up during the “lame duck” session of Congress.

November 19th FALJC meeting/luncheon moved (updated 11/16/10)
The new location is at the 14K Restaurant at the Crowne Plaza at 14th and K Streets, NW. The luncheon speaker will be James McPherson, Judge Advocate General of the Navy and Executive Director of the National Association of Attorneys General.

OPM and SSA beat back challenge to 2007-2008 ALJ selection process (updated 11/15/10)
OPM and SSA have sidestepped a challenge to the current ALJ selction process on procedural grounds – the lawsuit was filed late:
OZIER v. MERIT SYSTEMS PROTECTION BOARD
TELIN W. OZIER, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
No. 2010-3060.
United States Court of Appeals, Federal Circuit.
Decided: November 4, 2010.
TELIN W. OZIER, of Washington, DC, pro se.
JEFFREY A. GAUGER, Attorney, Office of the General Counsel, Merit Systems Protection Board for respondent. With him on the brief were JAMES M. EISENMANN, General Counsel and KEISHA DAWN BELL, Deputy General Counsel.
Before RADER, Chief Judge, LOURIE and MOORE, Circuit Judges.
This disposition is nonprecedential.
PER CURIAM.
Telin W. Ozier petitions for a review of a final order of the Merit Systems Protection Board (MSPB or Board) dismissing her appeal as untimely and for lack of jurisdiction. Because her appeal was untimely, we affirm.
Ms. Ozier, a Senior Trial Attorney for the Department of the Navy, applied in 2007 for the position of Administrative Law Judge (ALJ). During fiscal year 2008, the Social Security Administration (SSA) anticipated hiring a number of ALJs and requested from the Office of Personnel Management (OPM) a list of eligible candidates (“eligibles”). In response, OPM issued to the SSA a certified list of eligibles that included Ms. Ozier. The SSA considered her for three ALJ positions in early 2008, and on April 8, 2008, the SSA notified her that she had not been selected. On April 25, 2008, SSA notified Ms. Ozier that she was also on a second OPM list of eligibles for the ALJ positions. On August 8, 2008, the SSA notified Ms. Ozier that she had not been selected from the second list.
On March 9, 2009, Ms. Ozier appealed her August 8, 2008 nonselection to the MSPB, alleging that the SSA, “with the assistance and knowledge of the [OPM],” used unlawful employment practices from March 2007 to August 2008. Specifically, she alleged that OPM and SSA were “directly involved . . . in the drafting of the structured interview questions . . . designed to [elicit] information intended by SSA to be used to make ALJ selections based on non-merit factors, including but not limited to SSA-specific experience, in violation of 5 C.F.R. § 300.103(c).” Because her appeal was filed over 30 days after SSA notified her of her nonselection, the Board ordered her to file evidence and argument to show that her appeal was timely filed or that good cause existed for her delay. Ozier v. Soc. Sec. Admin, No. DC-300A-09-0367-I-1 (M.S.P.B. March 17, 2009) (Order to Show Cause). The Board also offered Ms. Ozier an opportunity to supplement the record with additional evidence and argument to show that the Board had jurisdiction over her appeal. Ozier v. Soc. Sec. Admin, No. DC-300A-09-0367-I-1 (M.S.P.B. March 27, 2009) (Order to Show Cause). After considering Ms. Ozier’s submissions, the Board dismissed her appeal as untimely and for lack of jurisdiction. Ozier v. Soc. Sec. Admin., No. DC-300A-09-0367-I-1, 2009 MSPB LEXIS 3442 (M.S.P.B. June 18, 2009) (initial decision); Ozier v. Soc. Sec. Admin., 12 M.S.P.R. 657 (2009) (final decision).
We must affirm a decision by the MSPB, including a refusal to waive a time limit, unless it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c); Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995); Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1581 (Fed. Cir. 1994). Under 5 C.F.R. § 1201.22, an appellant is required to file her appeal “no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision, whichever is later.” The Board found that because Ms. Ozier’s last appealable agency action was her nonselection, notice of which she received on August 8, 2008, her appeal filed March 9, 2009 was seven months late.
Ms. Ozier argues that the time period for filing an appeal alleging a continuing unlawful employment practice is not triggered by the effective date of the agency’s action or the receipt the agency’s decision, but instead has no defined period for filing. Ms. Ozier explains that the alleged unlawful employment practice is a process that spanned no less than 18 months and was continuing in nature. Ms. Ozier argues in the alternative that the 30-day period for an appeal for unlawful employment practices should start when the appellant knew or should have known that the unlawful employment practice existed.
We agree with the Board—the appealed agency action triggers the 30-day time period. By statute, Ms. Ozier “may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board.” 5 U.S.C. § 7701(a) (emphasis added). Ms. Ozier is required to file her appeal “no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision, whichever is later.” 5 C.F.R. § 1201.22(b)(1) (emphasis added). Thus, the 30-day time period for Ms. Ozier’s appeal begins on August 8, 2008, the date that she was notified of SSA’s decision not to select her. Because Ms. Ozier’s appeal was filed seven months later, it was not timely filed.
Ms. Ozier further argues that the Board abused its discretion by failing to find that she had demonstrated good cause for delay and not waiving the regulatory 30-day time period for filing her appeal.1 The Board will dismiss an appeal not filed within that time “as untimely filed unless a good reason for the delay is shown.” 5 C.F.R. § 1201.22(c). “[W]hether the regulatory time limit for an appeal should be waived based upon a showing of good cause is a matter committed to the Board’s discretion and this court will not substitute its own judgment for that of the Board.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992). To establish good cause, an appellant must show that she exercised due diligence and ordinary prudence in the circumstances of her case. Walls, 29 F.3d at 1582; Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180, 184 (1980). The Board considers such factors as
the length of the delay; whether appellant was notified of the time limit or was otherwise aware of it; the existence of circumstances beyond the control of the appellant which affected his ability to comply with the time limits; the degree to which negligence by the appellant has been shown to be present or absent; circumstances which show that any neglect involved is excusable neglect; a showing of unavoidable casualty or misfortune; and the extent and nature of the prejudice to the agency which would result from waiver of the time limit.
Walls, 29 F.3d at 1582 (quoting Alonzo, 4 M.S.P.R. at 184). The Board found that Ms. Ozier failed to show good reason for her untimely appeal. The Board reasoned that Ms. Ozier, a senior trial attorney for the government who had represented the military in numerous cases before the Board, is hardly the typical pro se appellant, and as such, was clearly aware of the regulatory time limits in her case. The Board also found that Ms. Ozier demonstrated that she was aware of the appeal process and the substance of her claim when she filed her complaint with the Department of Labor Veterans Employment and Training Services (“DOL VETS”) and appealed that decision to the Board on October 6, 2008. The Board further held that delays caused by attempts to discover a legal basis for an appeal or to find additional evidence do not constitute good reason for waiving a filing deadline. The Board also found that the length of the delay weighed against Ms. Ozier. As such, we see no abuse of discretion in the Board’s conclusion that she failed to establish good reason to be entitled to waiver of the regulatory time limit. Because we conclude that her appeal was not timely, we need not reach the other arguments in this case.
CONCLUSION
For the foregoing reasons, we affirm the decision of the Board in dismissing Ms. Ozier’s appeal.
AFFIRMED

Threats against SSA judges up by 18% (updated 11/15/10)
Social Security judges facing more violent threats
By SAM HANANEL, Associated Press Sam Hananel, Associated Press – Sun Nov 14, 11:03 am ET
WASHINGTON – Judges who hear Social Security disability cases are facing a growing number of violent threats from claimants angry over being denied benefits or frustrated at lengthy delays in processing claims. There were at least 80 threats to kill or harm administrative law judges or staff over the past year — an 18 percent increase over the previous reporting period, according to data collected by the agency. The data was released to the Association of Administrative Law Judges and made available to The Associated Press. One claimant in Albuquerque, N.M., called his congressman’s office to say he was going to “take his guns and shoot employees” in the Social Security hearing office. In Eugene, Ore., a man who was denied benefits said he is “ready to join the Taliban and hurt some people.” Another claimant denied benefits told a judge in Greenville, S.C., that he was a sniper in the military and “would go take care of the problem.” “I’m not sure the number is as significant as the kind of threats being made,” said Randall Frye, a judge based in Charlotte, N.C., and the president of the judges’ union. “There seem to be more threats of serious bodily harm, not only to the judge but to the judge’s family.” Fifty of the incidents came between March and August, including that of a Pittsburgh claimant who threatened to kill herself outside the hearing office or fly a plane into the building like a disgruntled tax protester did earlier this year at the Internal Revenue Service building in Austin, Texas. A Senate subcommittee is expected to hear testimony on Monday at a field hearing in Akron, Ohio, about the rising number of threats, as well as the status of the massive backlog in applications for disability benefits, which are available to people who can’t work because of medical problems. Nearly 2 million people are waiting to find out if they qualify for benefits, with many having to wait more than two years to see their first payment. Judges say some claimants become desperate after years of fighting for money to help make ends meet. “To many of them, we’re their last best hope for getting relief in the form of income and medical benefits,” said Judge Mark Brown, a vice president of the judge’s union and an administrative law judge hearing cases in St. Louis. While no judges were harmed this year, there have been past incidents: A judge in Los Angeles was hit over the head with a chair during a hearing and a judge in Newburgh, N.Y., was punched by a claimant when he showed up for work. In January, a gunman possibly upset about a reduction in his Social Security benefits killed a security guard during a furious gunbattle at a Nevada federal courthouse. About 1,400 administrative law judges handle appeals of Social Security disability claims at about 150 offices across the country. Many are in leased office space rather than government buildings. Brown said the agency provides a single private security guard for each office building that houses judges. Frye said he has sought more security and a review of the policy that keeps guards out of hearing rooms. He said Social Security Commissioner Michael J. Astrue has promised to look into it. Social Security Administration spokeswoman Trish Nicasio said the agency continually evaluates the level and effectiveness of office security and makes changes as needed. “We are taking appropriate steps to protect our employees and visitors while still providing the level of face-to-face service the public expects and deserves,” Nicasio said. Visitors and their belongings are screened before entering hearing offices and hearings room, she said, and reception desks are equipped with duress alarms to notify the guard immediately of any disturbance.

Recent Significant Cases Updated (updated 11/3/10)
The Recent Significant Cases section, accessible above, has been updated with the recent handouts from Professor Jerry Nelson at the September seminar and October luncheon.

OPM Hiring Reform, Elimination of Essay-Style Questions/Narrative Responses to Required Competencies (updated 11/3/10)
On May 11, 2010, President Obama signed a memorandum titled “Improving the Federal Recruitment and Hiring Process,” which, among other things, directed executive departments and agencies to reform civilian recruitment and hiring by November 1, 2010. The Presidential directive requires agencies to:
(1) Dramatically reduce the time between when a job is announced and filled;
(2) Use simple, plain language job announcements;
(3) Allow individuals to apply for Federal employment by submitting resumes and cover letters;
(4) Eliminate any requirement that applicants respond to essay-style questions when submitting their initial application materials for any Federal job;
(5) Assess applications using valid, reliable tools; and
(6) Provide for selection from among a larger number of qualified applicants by using the “category rating” approach rather than limiting the choices to just three candidates under the traditional “rule of 3” approach.
In order to comply with the President’s directive, effective November 1, 2010, agencies will be required to eliminate any current practice of requiring applicants to submit essay-style/separate narrative responses to required competencies for a job vacancy; or submit writing samples; or respond to automated occupational assessments with required essay-style questions during the initial application. Agencies will also implement the other noted requirements of the President’s directive to improve their recruitment and hiring processes. The new hiring reforms include the use of shorter, plain-language job announcements; accepting resumes from applicants, instead of having to submit complex applications; timely assessment of candidates’ qualifications; referring the best candidates for selection; and notifying applicants in a timely manner at key stages of the application process. This is intended to enable agencies to recruit and hire the best candidates consistent with best practices of the private sector. Accordingly, beginning November 1, 2010, federal agencies advertise job vacancies using the shorter, plain language job announcements along with implementing a new simplified application process.

Transit subsidy be pruned in January (updated 11/1/10)
In January, 2011, the American Recovery and Reinvestment Act provisions relating to the federal employee transit subsidy will expire. As a result, the transit will be reduced from $230 to $120 per month The benefit is applicable to federal employees in the Washington, DC metro area, as well as in several other designated areas around the country.

GSA posts opening for Board of Contract Appeals Judge (updated 10/29/10)
The General Services Administration has posted a Job Announcement for the position of Board Judge on the Civilian Board of Contract Appeals. This non-APA appointment is based in Washington, DC and pays $165,300.

CFTC denies request of judge to disqualify another (updated 10/26/10)
The Commodities Futures Trading Commission has denied the bizarre request of a retiring judge who announced his “unavailability to continue to preside over his docket” and essentially requested that the CFTC’s remaining judge be disqualified from hearing the cases.

October 22, 2010 Executive Committee Meeting (updated 10/20/10)
Attached are the agenda, the October legislative report, and the September 13, 2010 Executive Committee meeting minutes.

ACUS requests FALJC participation (updated 10/19/10)
On September 30, 2010, the American Conference of the United States (ACUS), reconstituted and funded after 15 dormant years, has requested that FALJC designate a represenative to particpate in the group’s study and recommendations for changes to the federal administrative law process.

Judge Mahoney filed suit against HUD (updated 10/15/10)
On October 5, 2010, Administrative Law Judge J. Jeremiah Mahoney filed a complaint in Federal District Court for the District of Washington D.C. against three Defendants: Shaun Donovan, Secretary of the United States Department of Housing and Urban Development (“HUD”); David T. Anderson, Director of the HUD Office of Hearings and Appeals (in his official capacity); and John Berry, Director of the United States Office of Personnel Management (“OPM”). The Complaint alleges acts of retaliation, reprisal, and harassment in violation of the Federal Rehabilitation Act and the Federal Civil Rights Act; and violations of the Federal Administrative Procedure Act, including Defendants Anderson’s and HUD’s interference with the judicial independence of administrative law judges employed by HUD. The Complaint also alleges that Defendant OPM has refused to carry out its statutory duty to ensure ALJ independence and “turning a blind eye to Judge Mahoney’s pleas.

OPM Proposes to Ditch Licensure Mandate For Incumbent Administrative Law Judges (updated 10/8/10)
Individuals who currently serve as administrative law judges would not be required to maintain a license to practice law under an Office of Personnel Management proposed rule published October 7 in the Federal Register (75 Fed. Reg. 61998).
OPM noted that a final rule published in March 2007 introduced the requirement that ALJs possess valid law licenses and be authorized to practice in one of the 50 states, the District of Columbia, or a United States territory.. That rule clarified that judicial status would qualify in states where sitting judges cannot maintain an “active” status to practice law, and “good standing” sufficed in states where it was the equivalent of an “active” license.

“At the time the final rule was published, OPM noted that under the Administrative Procedure Act, ALJs preside in formal proceedings requiring a decision on the record after an opportunity for a hearing, and consequently, ALJs must be held to a high standard of conduct so that the integrity and independence of the administrative judiciary is preserved,” OPM explained, noting that the rule was intended to ensure a “code of professional responsibility” for ALJs.

Interim Rule in 2008

However, OPM published an interim rule in July 2008 suspending the licensure requirement as applied to incumbent ALJs because it reconsidered some of the comments received before the initial rule was finalized. Among those comments were those speaking to the burdens on incumbents of the new requirement, the potential differences between ethical requirements for advocates and for adjudicators, and the variations in what states require for lawyers serving as ALJs.

“OPM recognizes that once an applicant is appointed as an ALJ, he or she becomes subject both to supervision appropriate to the position and to the standards of ethical conduct for employees of the Executive Branch,” OPM said. “Moreover, an ALJ who exhibits conduct that rises to the level of ‘good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing by the Board,’ … may be subject to an adverse action pursuant to statute,” it added, quoting 5 U.S.C. §7521.

Explaining its proposal to eliminate the licensure requirement, OPM said it “believes that the standards of ethical conduct that apply to ALJs as Federal employees, and agencies’ existing authority to supervise ALJs and take actions against them in appropriate circumstances, are sufficient to ensure that ALJs are held to a high standard of conduct.”

Rule Still Applies to Applicants

OPM stressed that it is not proposing to eliminate the licensure requirement for applicants to ALJ positions. “OPM remains convinced that active licensure at the time of application and appointment is vital as an indicator that the applicant presenting himself or herself for assessment and possible appointment has been subject to rigorous ethical requirements right up to the time of appointment,” it said.

Comments are due on or before Dec. 6 and may be submitted via the Federal eRulemaking Portal at http://www.regulations.gov, including the agency name and docket number or Regulation Identifier Number. Comments also may be submitted to Angela Bailey, Deputy Associate Director for Recruitment and Hiring, OPM, Room 6566, 1900 E St. N.W., Washington, D.C. 20415-9700; e-mail employ@opm.gov; or fax (202) 606-2329.

For more information, contact Linda Watson at (202) 606-0830, fax (202) 606-2329, TTY (202) 418-3134, or e-mail linda.watson@opm.gov.

ACUS announces members appointed to serve (updated 10/8/10)
The Administrative Conference of the United States (ACUS) announced on September 28, 2010 the appointment of 40 members to the “newly-revived independent federal agency providing authoritative, nonpartisan legal advice and expertise on administrative law and federal regulatory procedures.” ACUS expects that its efforts “will help improve agency performance and responsiveness by emphasizing the values of efficiency, fairness, and satisfaction. Over the years, the Conference has approved more than 200 recommendations for improved agency decision-making, enlightened judicial oversight of the administrative process and creative statutory proposals.”

Judge Cristaudo to speak at FALJC February luncheon (updated 10/6/10)
FALJC monthly luncheon speakers are falling into place. SSA Chief Judge Cristaudo will speak at the January 21, 2011 luncheon. More details shortly as to the topic. Other speakers lined up at this time are Professor Jerry Nelson for October 22 (Update on Administrative Law) and James E. McPherson, Executive Director, National Association of Attorneys General (Topic: Leadership), for November 19, 2010.

USDA to post ALJ opening (updated 10/5/10)
Today or tomorrow the USDA will post an ALJ opening based in Washington, DC. The opening, which will appear on www.usajobs.gov, will fill the opening created when Judge Davenport moved over to Chief Judge.

Know someone who wants to be a judge? (updated 10/5/10)
The Department of Justice has posted announcements on www.usajobs.gov for Immigration Judges for assignments to its Arlington, Denver, Texas-El Paso, Dallas, Kansas City, Los Angeles and Memphis. Applications are due by October 13. Openings for assigment to the New York City, Philadelphia, Omaha, Newark, Port Isabel (TX), and Pearsall (TX) hearing offices are due by October 21.

2011 Health Insurance Premiums rising (updated 10/5/10)
FEHBP premiums will rise an average of 7.2 percent in 2011 and co-payments will increase. Most feds are enrolled in a Blue Cross-Blue Sheld Plan. Next year premiums for individuals who are in the “standard” service benefit plan will go up $5.58 per pay period, or $14.14 if they are in the family option. Those in the Blue Cross basic self-only plan the biweekly increase will be $5.82 and the family premium will go up by $13.62. The employee share of GEHA premiums next year will go up $1.78 and $5.79 respectively for single and family high option, and the biweekly increase will be $2.97 for self-only coverage and $6.82 for family coverage.

HUD seeks dismissal of Judge Fernandez’s claims (updated 10/1/10)
The Department of Housing and Urban Development has filed a motion for summary judgment on several of the counts in Administrative Law Judge Alexander Fernandez’s complaint. In his complaint, filed February 2, 2010, Judge Fernandez pleads discrimination/retaliation claims relating to the denial of reasonable accomodations, harassment, hostile work environment and national origin discrimination, as well claims of interference with his judicial independence. The extensive motion and opposition papers are attached as Part 1 and Part 2.

FALJC May Executive Committee Minutes (updated 10/1/10)
The minutes for the May 2010 Executive Committee meeting are attached.

AALJ lawsuit remains stayed (updated 10/1/10)
U.S. District Court
District of Columbia
Notice of Electronic Filing
The following transaction was entered on 9/9/2010 at 10:51 AM and filed on 9/9/2010
Case Name:
ASSOCIATION OF ADMINISTRATIVE LAW JUDGES et al v. UNITED STATES OFFICE OF PERSONNEL MANAGEMENT et al
Case Number: 1:07-cv-00711-RMC
Filer:
Document Number: No document attached
Docket Text:
MINUTE ORDER discharging the order to show cause entered on July 28, 2010. At this juncture, the Court declines to dismiss the case as moot. This case remains stayed. Signed by Judge Rosemary M. Collyer on 9/9/10.(KD)

Bill to furlough federal civilian employees introduced (updated 10/1/10)
U.S. Federal News Radio
Rep. Mike Coffman (R-CO) introduced a bill this week that would require two weeks of furlough in 2011 for federal civilian employees. The furloughs would save taxpayers $5.5 billion, according to a release about the bill. “[Furloughs] provide slight problems but they provide large solutions to the budget trouble we face,” Coffman said. Coffman’s bill, H.R.6134 would make two weeks of unpaid non-consecutive furlough days mandatory, reduce appropriations for salaries and expenses for legislative branch offices, and provide a 10 percent reduction in pay for members of Congress. There are exceptions for national security or reasons related to public health or safety. In his introduction to the bill, Coffman pointed out that at least 24 states have instituted short-term furloughs, mentioning that Furlough Fridays are happening at the state and local levels. “I would like to make the U.S. Government as cost conscious as the states,” Coffman said. “My legislation is a start.”

DOL Chief Judge position posted (updated 9/30/10)
The Department of Labor has posted the Chief ALJ position. The announcement indicates that applications will be received up to October 4, 2010.

FALJC pushes retirement reform legislation (updated 9/30/10)
Thirty personalized letters were prepared for willing members at the recent FALJC Seminar in Ocean City and have been faxed to their respective Congressional represenatives. There is still time before the lame duck session in late November of December for interested FALJC members to send in letters. If you are interested in sending in one, contact Judge Michael Rosas at rosas730@aol.com and he will send you a prepared letter for your signature. FALJC will fax your signed letter to your Congesssman. We especially need help from members who live in the districts of any of the following members of the House Government Reform Committee: DEMOCRATS – Chairman, Edolphus Towns, New York; Rep. Paul E. Kanjorski, Pennsylvania; Rep. Carolyn B Maloney, New York; Rep. Elijah E. Cummings, Maryland; Rep. Dennis J. Kucinich, Ohio; Rep. John F. Tierney, Massachusetts; Rep. William Lacy Clay, Missouri; Rep. Diane E. Watson, California; Rep. Stephen F. Lynch, Massachusetts; Rep. Jim Cooper, Tennessee; Rep. Gerald E. Connolly, Virginia; Rep. Mike Quigley, Illinois; Rep. Marcy Kaptur, Ohio; Rep. Eleanor Holmes Norton, District of Columbia; Patrick Kennedy, Rhode Island; Rep. Danny Davis, Illinois; Rep. Chris Van Hollen, Maryland; Rep. Henry Cuellar, Texas; Rep. Paul W. Hodes, New Hampshire; Rep. Christopher S. Murphy, Connecticut; Rep. Peter Welch, Vermont; Rep. Bill Foster, Illinois; Rep Jackie Speier, California; Rep. Steve Driehaus, Ohio; Rep. Judy Chu, California. REPUBLICANS – Rep. Darrell Issa, California, Ranking Minority Member; Rep Dan Burton, Indiana; Rep. John L. Mica, Florida; Rep. Mark E. Souder, Indiana; Rep. John J. Duncan, Jr., Tennessee; Rep. Michael Turner, Ohio; Rep. Lynn A. Westmoreland, Georgia; Rep. Patrick T. McHenry, North Carolina; Rep. Brian Bilbray, California; Rep. Jim Jordan, Ohio; Rep. Jeff Flake, Arizona; Rep. Jeff Fortenberry, Nebraska; Rep. Jason Chaffetz, Utah; Rep. Aaron Schock, Illinois; Rep. Rep. Blaine Luetkemeyer, Missouri; Rep. Anh “Joseph” Cao, Louisiana; Rep. Bill Shuster, Pennsylvania.

Judge Gilbert appointed to Publications Committee (updated 9/30/10)
Judge Solomon has appointed Judge James Gilbert to the Publications Committee, where he will join Judges Rosas and Wood in improving FALJC’s publications and website functions. Any members with suggestions should email them.

Judges speak out about security problems in the courtroom (updated 9/8/10)
AALJ and the National Association of Immigration Judges issued the following release prior to their presentations at the National Press Club on August 30, 2010:
Federal Judges to Discuss Growing Personal Threats and Security Concerns at National Press Club Newsmaker Event, 10 a.m., Monday, August 30th
WASHINGTON – On Monday, two federal judges will detail threats and attacks on federal administrative law judges and describe lax security conditions as well as make recommendations on how to better protect judges.
Attacks on federal workers have increased over the past year, with high-profile incidents at the Pentagon, an IRS building in Texas and a federal building in Las Vegas. Threats on judicial employees have become so commonplace that the U.S. Marshals Service has opened a clearinghouse to deal with these threats. Between March and August of last year, 28 threats were recorded on Social Security offices that handle disability hearings and in the same period 10 individual judges who hear disability claims were threatened. Threats to the wives and children of judges also have been reported. In January, a gunman, possibly upset about a reduction in his Social Security benefits, killed a U.S. courthouse security guard and injured a deputy marshal in Las Vegas.
WHO: Hon. Randall Frye, Pres. Of the Assn. of Administrative Law Judges and a federal judge with the Social Security Administration based in Charlotte, N.C. and the Hon. Dana Leigh Marks, Pres. of the National Assn. of Immigration Judges and a federal immigration judge in the Department of Justice based in San Francisco
WHAT: National Press Club Newsmaker press conference and release of new data on threats and attacks directed at federal Social Security and Immigration administrative law judges
WHEN/WHERE: Monday, August 30, at 10 a.m., in the Zenger Room of the National Press Club, 13th Floor, National Press Building, 529 14th St., N.W., Washington, D.C.
Judges have reported chairs being thrown at them, their robes being grabbed while on the bench and one respondent in an Immigration hearing reportedly attempted suicide in front of the judge.
Complicating matters and increasing security risks is the fact that most Social Security and Immigration judges do not have a bailiff or a security guard in their courtrooms and many of these facilities are only protected by private security guards. A large number of these courtrooms are now located in leased office space rather than government buildings.
Claimants and respondents appearing before these judges face tremendous consequences from decisions rendered. The average lifetime payout of a Social Security disability claim is roughly $250,000; in contrast, many of those who are denied become impoverished or homeless. Immigration judges can banish long-term residents or remove people who fear persecution in their homelands. They routinely handle cases where an applicant has a criminal record, a history of mental or competency issues or has been the victim of domestic violence. Nationwide, the majority of the respondents in Immigration proceedings are not represented by counsel. The backlog for hearing dates in both courts can stretch two years or longer.
In addition to releasing new data and describing the working conditions in these courts at Monday’s Newsmaker, judges will make recommendations on how to improve security for administrative law judges.
SSA Housecleaning Continues (updated 8/27/10)
Two more openings for Hearing Office Chief Administrative Law Judge. Applications for SSA’s Tallahassee, Florida hearing office are due before September 8, 2010 and Jersey City, New Jersey hearing office are due before September 6, 2010.

State of FALJC – August 22 (updated 8/23/10)
I. Succession of first vice president on the passing of First Vice-President Robin Arzt.
The Constitution requires that In the event that an office becomes vacant, the Executive Committee shall fill any such vacancy by appointment for the balance of the unexpired term, it may arrange for a special election to elect a successor officer, or it may reassign the duties of that office to another officer for the balance of the unexpired term.
In the past, as a matter of practice, the officers have moved up a position. I previously asked for motions on how to proceed. Not hearing any, I propose to ask the Nominating Committee to nominate a successor Secretary.
Judges Peter Davenport, Michael Rosas and Pamela Lakes Wood will constitute the nominating committee. As President, I serve as an ex-officio member of all committees. Any applicant may submit a request to the committee before September 13. At the meeting on that date, the Nominating Committee will report.
After an election by the members present, by operation of the by-laws and based on past practice, I expect to ask the Executive Committee to approve:
a. Richard Pearson as First Vice President/ Chair Elect.
b. Philip Baten as Second Vice President
c. J.J. Mahoney as Treasurer.
Section 2 of the By-laws sets for a ballot procedure in case there is a contested election. Because of the exigent nature of this matter, I request that unless there are objections, the ballot, if necessary, be taken by the committee at the Conference meeting September 13. As a consequence I suggest that the mailing requirement be waived.

II. Committee Appointments.
The following appointments are made:
A. Ways and Means Committee.
Judge Baten is chair as set forth in the bylaws, however, Judge Mahoney may succeed him if the above election occurs, and in an abundance of caution, I appoint him. Judge Pearson is a member by operation of the by-laws. I also appoint Judge Bruce Levine to the committee.
B. Legislative Committee.
I appoint Judge David Coffman as Chair and also appoint Judges Robert Lesnick, Patrick B. Augustine and Judge Davenport to the Committee. Judge Pearson and I are members of the committee by operation of the bylaws, and I also appoint Judge Mahoney. ALJCC contacts will continue to be handled by Judge Coffman, Judge Davenport and me.
C. Publications and Archives.
I appoint Judge Michael Rosas as Chair. He is also Chair of the subcommittee on our web site and he and Judge Wood are also co-chairs of the newsletters committee. I also appoint Judges Jill Clifton and Judge John Choate to the committee.
D. Social Affairs Committee
I appoint Judge Pamela Lakes Wood Chair and Judges Paul Lang, Ellen Thomas and Roland Vaughn as co-chairs.
E. Program and Education Committee.
Although not reflected in the Constitution and By-laws, as a matter of practice, this committee has been merged. Judge Pearson will serve as Chair and Judges Susan Biro and Richard Goodwin will serve as members of the committee.
In 2009, a rump committee was appointed to address health care. I appoint Judge Bill Cowan as chair and Judges Barry Laboda and Priscilla Rae as members. They will also serve as members of the full joint Program/Education committee.
F. Membership.
Judge Bruce Rosenstein will continue to serve as Chair. I appoint Judges Charles Bullock, T. Patrick Hannon, Kurt Gronau and Martha Reeves to serve on the Committee.
G. Administrative Practice and Procedure Committee.
I appoint Judge James Gilbert Chair and Judges Ronnie A. Yoder and Pamela Lakes Wood to the Committee. I note that there has been a subcommittee on an ALJ Judicial Code that had been chaired by Judge Glazer, but at the Conference I will move that any action by that committee be laid on the table until a full report on “active status” is submitted to the membership, as that issue is closely related. I have tried to organize an entire program around this issue but so far, it is not ready.

III. Update on the Annual conference.
In my absence Judge Pearson has been handling most of the relations with the hotel and has submitted our reservations to them. He is thanked and congratulated for his hard work and success. As of today, there have been approximately 70 reservations for the conference submitted but I have received requests from a few stragglers. Therefore, I am asking the hotel to extend to us a few more rooms. As occurred last year, some agencies have been slow to designate some of the attendees, and as of today I do not have a list from several agencies that had told me that they would send some judges.
Judges Wood, Pearson, Baten and I have been extending expenses to cover the conference, and by the by laws I am authorized to extend up to $1500 for expenses. In an abundance of caution, we need to request additional authority to $2500. We have already transmitted $13,000 to the hotel under our contract and need to pay for copying, favors, etc. If there are objections to increase my authority, please indicate them to me.

IV. Letters to OPM. I have sent the letters on the leave issue.

V. Congressional Meetings.
The ABA has arranged meetings with staff for September 7. I have also been asked to attend a meeting on August 31. These were arranged to discuss the fact that OPM receives funds to investigate candidates for the OPM register, but does not perform a background check. After the fact, they certify a class and ask the agencies to perform the background investigation.
Since that time, the leave issue and now the retirement issues have arisen, and we expect to discuss these also. I have sent letters of support on HR 2850 to the House Govt. Reform Committee. We also want to know whether the Dodd-Frank Act will require a new cadre of ALJs.

VI. Membership.
We again ask you to request each of your colleagues to join us. Email attempts at Interior, OSHA, FTC, the new National Hearing Centers at SSA etc have been unsuccessful, but there is nothing like personal contact. In the recent past, we have split the CMS positions on the Executive Board pursuant to Article V, Section 2 of the Constitution awarded 2 seats to them given a membership of more than 20 members. Apparently, they no longer will have as many members. However, it is also possible that the SSA National Hearing Centers will provide additional members, and may qualify for seats of their own.
Daniel F. Solomon, President

Updated Seminar Agenda (updated 8/22/10)
The updated agenda is now available with all panelists and speakers named. They include FLRA Chairperson Carol Pope as keynote speaker, Professor Nelson with his usual outstanding update of federal admin law, and credibility experts Professor Clark Freshman and neuropsychologist Dr. Michael Chafetz and John Waterman, an expert in handling judicial stress.

FLRA Bias Decision (updated 8/22/10)
In a decision, filed July 19, 2010, the Federal Labor Relations Authority upheld an arbitrator’s decision sustaining grievances and awarding remedies that the Social Security Administration violated the judges’ collective bargaining agreement and its own regulations when it processed allegations of bias against judges without affording the judges notice and an opportunity to respond.

ALJ loses his job and his appeals (updated 8/22/10)
A Social Security Administration Administrative Law Judge has lost his job for, among other things, using government computers to store explicit photos. (Steverson v. Social Security Administration, C.A.F.C. No. 2009-3287 (nonprecedential), 6/17/10)., London Steverson worked for the Downey, California branch office of SSA. The agency filed a complaint with the Merit Systems Protection Board seeking to remove Steverson based on four charges. One charge was misuse of his official government computer. One specification was that Steverson has used his agency computer to view and store “sexually oriented material”—more than a thousand of them. Another specification related to his use of the computer for private business ventures, a violation of the agency’s policy. Steverson was also charged with misuse of official agency letterhead for personal matters, lack of candor during his investigatory interview, and use of his business address for receiving personal mail despite the explicit agency policy against this practice. Following the procedure for dismissing an AJ, the MSPB held a hearing. Eventually the full board found that the charges had been upheld and found there was good cause to remove Steverson. (Opinion pp. 2-4) The appeals court has now affirmed Steverson’s removal. In its decision, the court notes “Judge Steverson engaged in conduct unbecoming of an Administrative Law Judge, misused government property, displayed a lack of candor with an investigatory official, and failed to follow agency policy.” (p. 6) In short, the court found this added up to ample cause to remove Steverson.
Judge Dan Solomon

More SSA HOCALJ openings announced (updated 8/20/10)
Applications for Hearing Office Chief Administrative Law Judge at SSA’s Tacoma, Washington, Wilkes-Barre, Pennsylvania and Fresno, California hearing offices are due by September 1, 2010.

FALJC urges OPM Director to correct Enhanced Leave regulation (updated 8/17/10)
Following up on OPM Director Berry’s view that the former administration incorrectly excluded ALJs from the enhanced leave provisions resulting from the Flexibility in Hiring Act, in a letter, dated August 13, 2010, FALJC has asked him to simply change the previously issued regulation. Earlier, Director Berry stated his intention to seek to correct the problem through legislation.

Tidbits from SSA’s August training conference (updated 8/17/10)
Chief Judge Frank Cristaudo reported a goal of 1,450 judges by 2010-2011. 71% of the ALJs do 500 or more decisions per year. SSA has 16,000 more attorney advisor decisions. Judges will be asked to serve 500 claimants per year. Headquarters will initiate a case review process starting with about 100 decisions per month initially. Both favorable and unfavorable decisions will be reviewed. The goal is to review about 3,500 cases per year, both favorable and unfavorable. 120 new ALJs will be hired this year, plus possibly 15 additional. Glenn Sklar, Deputy Commisioner, praised the backlog reduction and estimated that SSA will bring in approximately 220 new judges in next fiscal year. There is currently a 4.5 to 1 support staff to ALJ ratio. The senior attorney program will be expanded by 50-60,000 cases. 25 new hearing offices will be added in the next two years.

Members urged to write Congressional reps in support of HR 2850 (updated 8/12/10)
In an extremely positive development, the Congressional Budget Office has completed the “scoring” process regarding the pension enhancement legislation and has determined that it is cost-neutral, that is, at no cost to the taxpayer. The increased contribution by ALJs will pay for increased pension benefit. More work lies ahead before the bill can be passed in committees and eventually through both houses of Congress. Accordingly, President Solomon urges members to write their Congressional representatives to urge support for this legislation. Congressional contact information can be accessed at www.theorator.com. A sample letter would read something like this:

August ___, 2010

The Honorable[Congress member] ________
[Address] HOB
Washington, DC 20515

RE: H.R. 2850 Administrative Law Judges Retirement Act of 2009

Dear Representative ______:
On behalf of the Federal Administrative Law Judge Conference (FALJC), organized in 1947 to improve the administrative judicial process, I ask you to support HR 2850. I do not speak in my official capacity as a federal officer.
This bill simply provides administrative law judges with a pension identical to your pension. However, judges will provide an additional 1% increase for future contributions and an additional 1% buy-in contribution for past years, with a cap of 20 years as service as an administrative law judge.
Recent scoring by the CBO shows that it is almost no cost due to the extra 1% future and buy-in contributions and actuarial factors. This bill may, over time, provide significant savings to the taxpayers.
Thank you for your consideration. For questions, contact me at _____, my cell [or home] phone.
Sincerely,

SSA Announces 5 HOCALJ Openings (updated 8/9/10)
The Social Security Administration now has 5 openings for the position of Hearing Office Chief Administrative Law Judge. The latest announcement is for the Brooklyn, New York hearing office, due by August 20, 2010. Previous announcements are still pending for the Fayetteville, North Carolina office (applications due by August 17, 2010), the Rochester, New York and Ponce, Puerto Rico hearing offices (applications due by August 11, 2010), and the Cleveland, Ohio hearing office (applications due by August 13, 2010).

OPM seeks senior and loaned judges to do FMSHRC hearings (updated 8/4/10)
OPM’s Juanita Love e-mailed Chief Judges on Ju;y 30, 2010 with the following loaner request:
Dear Chief Administrative Law Judge/Designee, we received a request from the Federal Mine Safety and Health Review Commission (FMSHRC) for the services of Senior Administrative Law Judges (ALJs) to assist with FMSHRC’s increase of cases arising under the Federal Mine Safety and Health Act of 1977 (“the Mine Act”). 30 U.S.C.§ 801 et seq. FMSHRC will need Senior ALJs in the following duty locations:
Washington, DC
Reading, PA
Denver, CO
Pittsburgh, PA
Before we can issue an agency a list of retired ALJs, our regulations require us to canvas incumbent ALJs regarding their availability to perform the work. Do you have any judges that would be available to perform this work on a loan basis? If you or any judge would be interested, please contact me by noon Wednesday, August 4, 2010. Thanks!

FLRA Chairman Carol Pope to speak at FALJC Seminar (updated 7/22/10)
Federal Labor Relations Authority Chairman Carol Pope has agreed to be keynote speaker at FALJC’s September 2010 Seminar. Chairman Pope was designated by President Obama on March 25, 2009 as as FLRA Chairman after having designated her to serve as Acting Chairman on February 19, 2009. Nominated by both President William J. Clinton and George W. Bush, she has served as a Member of the Authority since November 2000. She is the first FLRA career employee to serve as Chairman and Member. Chairman Pope began her federal career as an attorney with the Employee Benefits Division of the Office of the Solicitor, U.S. Department of Labor in 1979. She began her FLRA career in the FLRA’s Office of the General Counsel Boston Regional Office in February 1980. In 1994, she joined the Office of the General Counsel headquarters staff in Washington, DC, serving first as Executive Assistant to the General Counsel and then as the Assistant General Counsel. As Assistant General Counsel, she had responsibility for management of the administrative review process of over 400 unfair labor practice charge dismissals annually. A native of Pittsburgh, Pennsylvania, Chairman Pope earned a Bachelor of Arts degree from Simmons College, and a Juris Doctor degree from Northeastern University School of Law. Chairman Pope is admitted to practice before the Supreme Court of the United States, the United States Courts of Appeals for the First and Fifth Circuits, and the Commonwealth of Massachusetts. She is the recipient of distinguished achievement and leadership awards from the American Bar Association, Federal Labor and Employment Law Section, and Simmons College.

More On New Regs On Scheduling ALJ Hearings (updated 7/13/10)
From the Federal Register on July 8, 2010: We are amending our rules to state that our agency is responsible for setting the time and place for a hearing before an administrative law judge (ALJ). This change creates a 3-year pilot program that will allow us to test this new authority. … The ALJs [Administrative Law Judges] who conduct the [Social Security] hearings are dedicated, hard working professionals; they will play a central role in helping us reduce the backlog. However, some ALJs do not schedule or hold a minimally acceptable number of hearings, and our current rules are arguably unclear as to certain scheduling issues. … We anticipate using this pilot authority primarily in a very small number of situations where an ALJ is scheduling so few hearings that he or she is compromising our efforts to make timely and accurate decisions for people applying for benefits. One impetus for proposing these rules was a New England judge who scheduled no hearings for many years. Because we expect that virtually all ALJs will work with us to schedule hearings in a timely manner, administrative action under this regulation should be an exceptionally rare occurrence. … We will consult with the appropriate Hearing Office Chief Administrative Law Judge (HOCALJ) and the ALJ before we exercise the pilot authority provided in these rules to determine if there are any reasons why we should not set the time and place of the ALJ’s hearings, such as the ALJ being on leave for an extended period or insufficient staff support to prepare cases for hearings. If the HOCALJ does not state a reason that we believe justifies the limited number of hearings scheduled by an ALJ, we will then consult with the ALJ before deciding whether to exercise our authority to set the time and place for the ALJ’s hearings.

HHS issues Solicitation of Interest (updated 7/12/10)
Dear Colleagues,
The Office of Medicare Hearings and Appeals (OMHA) is seeking to fill multiple vacancies for our Supervisory Administrative Law Judge Position at the ALJ-03 level or higher in our Midwestern Field Office (Cleveland, Ohio). The attached solicitation of interest provides all relevant details regarding the available positions. Please share this solicitation with the ALJs in your organization. Information concerning how to apply is contained within the solicitation. Please contact me if you have any additional questions. I greatly appreciate your assistance in helping OMHA communicate this opportunity to the national ALJ community. With thanks and best regards,
Chief Administrative Law Judge Nancy Griswold
Office of Medicare Hearings and Appeals
1700 North Moore Street, Suite 1800
Arlington, VA 22209
Tel: 703-235-0635
Fax: 703-235-8001

OPM proposes to revise licensure requirement for incumbent ALJs (updated 7/3/10)
The Office of Personnel Management proposes to revise the licensure requirements for incumbent administrative law judges who are covered under the Administrative Law Judge Program. The proposed rule would permit incumbent administrative law judges to maintain the appropriate license or status requiring adherence to an ethical code, and issued by the appropriate licensing entity where their professional license was obtained, instead of requiring them to possess a current license to practice law and maintain an active bar membership. FALJC members are asked to share their comments on the proposed rule by close of business on July 9 before the organization determines its response. A topic for discussion on the FALJC Message Board will be set up for this purpose.

FALJC First Vice President Robin Arzt has passed away (updated 7/2/10)
FALJC sadly announces that Judge Arzt passed away early in the morning of June 30, 2010. Judge Arzt, the author of the original ALJ pension reform bill, was the instrumental force in getting a significant number of SSA judges to join FALJC in recent years. Funeral arrangements: Greenwich Village Funeral Home, 199 Bleecker Street (between 6th Avenue and MacDougal); Viewing Monday July 5th, 2PM until 5PM and 7PM until 9PM. The funeral will be Tuesday, July 6, 10:30 to 12. Burial will be at St. Gertrude’s, Colonial NJ. Condolences may be sent to: Isabella Natale, 35 W. 82nd St. Apt. 4C, New York, New York 10028.

Immediate past President appointed Chief Judge at USDA (updated 7/2/10)
Judge Peter Davenport, recently having served as Acting Chief Judge at the Department of Agriculture, has been formally appointed to the permanent position.

FALJC to meet with Congressional staff over ALJ hiring process (updated 7/2/10)
FALJC via the ALJ Coordinating Council will seek to meet during the week of July 19th with key staff of the House and Senate Governmental Affairs committees and the House Social Security Subcommittee to address the failure of OPM to verify ALJ competencies and qualifications.

HUD filed motion to dismiss Judge Fernandez’ complaint (updated 7/2/10)
HUD has filed a motion to dismuss Judge Alexander Fernandez’ complaint claiming discrimination based on disability and national origin, harassment, retaliation, and violations of the Administrative Procedure Act relating to the manner in which HUD assigns and administers cases in the Office of Hearings and Appeals.

FLRA upholds finding that SSA judges in “National Hearing Centers” are excluded from the bargaining unit of other SSA judges (updated 6/30/10)
By Order, dated June 22, 2010, at 64 FLRA No. 171, the Federal Labor Relations Authority has denied AALJ’s application for review of an FLRA Regional Director’s “conclusion that, because these ALJs are supervisors within the meaning of § 7103(a)(10) of the Federal Service Labor-Management Relations Statute, they should be excluded from the unit.” While the AALJ cannot represent them, these judges can join AALJ if the union will accept them.

Court of Appeals affirms MSPB removal of SSA ALJ (updated 6/18/10)
The U.S. Court of Appeals for the Federal Circuit has issued an opinion in Steverson v. Social Security, affirming a Merit Systems Protection Board decision removing London Steverson from his position as a SSA Administrative Law Judge. The allegations against Steverson, as summarized in the opinion:
(1) The agency alleged that Judge Steverson used official agency letterhead to send three letters to mortgage or loan companies relating to a personal home loan.
(2) Judge Steverson used official agency letterhead to lodge a complaint against a California state court commissioner he appeared before in a custody dispute.
(3) Judge Steverson used his work computer between 2001 and 2007 to view and store sexually oriented material.
(4) Judge Steverson displayed a lack of candor during his investigatory interview with Hearing Office Chief Administrative Law Judge Cynthia Minter . . . Judge Steverson maintained that he had no idea how the sexually graphic material got on his computer and that he thought his use of official stationery was acceptable under the circumstances.
(5) Judge Steverson used his business address to send and receive personal correspondence. In June 2004, the office director for Judge Steverson’s branch office informed all employees that the office mailing address was not to be used for personal correspondences.
(6) The ALJ assigned to hear the case at the MSPB found for Social Security on all but the lack of candor allegation and ordered that Steverson be suspended from his position for 35 days. Social Security appealed to the MSPB which agreed with Social Security and ordered Steverson removed from his position as an ALJ.

OPM to adopt selective certification for ALJs? (updated 6/8/10)
In a recent interview with FedSmith, OPM Director John Berry discusses his Memorandum to Heads of Executive Departments and Agencies, Subject: Improving the Federal Recruitment and Hiring Process. The Memorandum “directs” agencies to take the following actions: Eliminate the requirement that applicants submit KSA essays in their applications, allow for resume-applications or the completion of “simple, plain language applications,” assess applicants using valid, reliable tools, provide for “Category Rating” rather than the traditional “Rule of Three,” and more fully involve managers in the hiring process. “Category Rating” appears to be the same as selective certification, which FALJC has strenuously and continuously opposed as inimical to the merit selection of judges. President Solomon is aware of this development and is taking steps, including communicating this problem to and requesting support from the American Bar Association.

Looking like a 1.4% raise for 2011 (updated 6/3/10)
On May 28, 2010, the House rejected a Republican proposal to cut federal employees’ 2011 pay raise by a vote of 227 to 183. The administration has proposed a 1.4 percent pay raise for military and civilian employees in 2011. The House voted in favor of a 1.9 percent raise for the military Friday, while the Senate Armed Services Committee approved a 1.4 percent military raise. The Senate is expected to go along with the bigger raise for the military when the two bills are reconciled late this summer or fall. However, given the current political and economic climate, experts such as Henry Romero, a former OPM executive, say it is highly unlikely feds will get the same raise as the military. A raise of 1.4% would potentially raise the cap to $167,614.

Judge Fernandez’ complaint and HUD’s answer (updated 6/3/10)
HUD has answered Judge Alex Fernandez’ complaint alleging disability discrimination, harassment, discrimination on the basis of national origin, hostile work environment, and retaliation/reprisal for Judge Fernandez’ EEO activity. Judge Fernandez also alleges continued interference by HUD with his independence as an ALJ.

Judge Baten transfers to FERC (updated 6/2/10)
On May 24, 2010, Judge Philip Baten, FALJC’s Treasurer, transfered from the Department of Health and Human Services to the Federal Energy Regulatory Commission. The following day, pursuant to FERC tradition, Judge Baten was sworn in and formally received his robe from Deputy Chief Judge Bobbie McCartney.

HHS Solicitation of Interest (updated 5/26/10)
Health and Human Services’ Departmental Appeals Board seeks to fill a vacant ALJ position in Washington, DC. The ALJ will join a cadre of 5 other ALJs in the Civil Remedies Division. The solicitation has a deadline for submissions of resumes and expressions of interest by e-mail only by June 18, 2010.

Proposal to allow ALJs to select their tax domicile and voting residence (updated 5/24/10)
Judge Choate has moved that FALJC as an organization adopt the following Resolutions and include them as legislative priorities. Judge Baten has seconded the motion. As we will not meet until the September meeting, Judge Davenport proposes that the motion(s) be discussed on the FALJC Message Board and that an email vote be submitted by June 15, 2010:
Proposal for the Federal Administrative Law Judge Conference
Resolved: Administrative Law Judges should select their tax domicile and voting residence, irrespective of abode.
The Federal Administrative Law Judge is appointed by an agency or department from a roster prepared by the Office of Personnel Management. Like the military entering service, each Judge must move to the duty station according to the needs of the government. Further assignments may require additional moves and relocations. The vast majority of appointments are away from the previous residence or domicile of the Judge. These moves permit flexibility in appointments, but create substantial financial hardship. One hardship is unreimbursed moving expense.[1] Another is loss of in state tuition options for dependents. Another is loss of census and representation status. There are other hardships,[2] all unnecessary, which could be somewhat softened by permitting the Judges to select their own domicile for voting and residence for tax purposes without regard to official station or abode.
That domicile and residence are important and valuable, is demonstrated by the Servicemembers Civil Relief Act. The precedence for this is in the military (and Military Judges) who do not lose domicile for voting [3] or residence for tax purposes.[4]
Administrative Law Judges’ utility to their employer, the U.S. Government, is their flexibility to move as required without an Act of Congress. This distinguishes their needs from those of the District Judges [5] or United States Attorneys [6](except for the Northern Mariana Islands) who are required to keep an abode within their districts. These requirements recognize that most District Judges and U.S. Attorneys have pre existing affinity for the geographical locations in which they are appointed. Non retired Judges of the Court of Federal Claims must reside in or near the District of Columbia.[7]
At present, the place for filing tax returns for Judges comes under the general legal residence statute.[8]
The appointment and assignment of Judges is akin to that of the military. The proposed relief for Judges is a non revenue item, neither increasing nor changing the cost to the government.
The benefit is that it reduces hardship which increases flexibility for Judges to accept new assignments or vacancies without the consideration of loss or change of residence and domicile. Self selection of residence and domicile will benefit Judges without cost to the Government.
Resolved: Administrative Law Judges are authorized 90 days (720 hours) for the annual leave ceiling.
(Footnotes)
[1] Relocation reimbursement is an office by office, agency by agency, policy. For example, in 2005, an Administrative Law Judge moving to an appointment with an office incurred in excess of $75,000 in costs, uncompensated and unreimbursed. At that time, the office did not reimburse moving expenses for new Judges or Judges changing duty stations. Sometime in 2006 a change was made for partial moving expenses. An announcement in 2010 allows that “Relocation Expenses will be available up to $35,000 upon submission of appropriate documentation of expenses.”
[2] These are payment of local income taxes if any, loss of homestead exemption, differing domestic relation rules for marriage and diveorce, loss or imposition of community property, estate and trust laws, guardianship, insurance, drivers license, statutes of limitations, venue, vesting and other privileges associated with residence. To the extent that dependents’ residence is based on the Judges’ abode, issues of residence for appointments of cadets to academies will reflect the employment by the Government, rather than the affinity of the cadet for a hearth and home. See 10 USC 9347. For instance, not selecting the state of residence limits the estate and inheritance planning for the Judge, who might not be able to relocate prior to an unexpected demise, so as to protect the rights of dependents and heirs.
[3] 0 USC APPENDIX Sec. 595 01/02/2006 -EXPCITE- TITLE 50, APPENDIX – WAR AND NATIONAL DEFENSE SERVICEMEMBERS CIVIL RELIEF ACT OCT. 17, 1940, CH. 888, 54 STAT. 1178 TITLE VII – FURTHER RELIEF Sec. 595. Guarantee of residency for military personnel -STATUTE- For the purposes of voting for any Federal office (as defined insection 301 of the Federal Election Campaign Act of 1971 (2 U.S.C. 431)) or a State or local office, a person who is absent from a State in compliance with military or naval orders shall not, solely by reason of that absence – (1) be deemed to have lost a residence or domicile in that State, without regard to whether or not the person intends to return to that State; (2) be deemed to have acquired a residence or domicile in any other State; or (3) be deemed to have become a resident in or a resident of any other State. -SOURCE- (Oct. 17, 1940, ch. 888, title VII, Sec. 705, as added Pub. L. 108- 189, Sec. 1, Dec. 19, 2003, 117 Stat. 2865.)
[4] 50 USC APPENDIX Sec. 571 01/02/2006 TITLE 50, APPENDIX – WAR AND NATIONAL DEFENSE SERVICEMEMBERS CIVIL RELIEF ACT ACT OCT. 17, 1940, CH. 888, 54 STAT. 1178 TITLE V – TAXES AND PUBLIC LANDS – Sec. 571. Residence for tax purposes (a) Residence or domicile – A servicemember shall neither lose nor acquire a residence or domicile for purposes of taxation with respect to the person, personal property, or income of the servicemember by reason of being absent or present in any tax jurisdiction of the United States solely in compliance with military orders. (b) Military service compensation: Compensation of a servicemember for military service shall not be deemed to be income for services performed or from sources within a tax jurisdiction of the United States if the servicemember is not a resident or domiciliary of the jurisdiction in which the servicemember is serving in compliance with military orders. (c) Personal property (1) Relief from personal property taxes – The personal property of a servicemember shall not be deemed to be located or present in, or to have a situs for taxation in, the tax jurisdiction in which the servicemember is serving in compliance with military orders. (2) Exception for property within member’s domicile or residence – This subsection applies to personal property or its use within any tax jurisdiction other than the servicemember’s domicile or residence. (3) Exception for property used in trade or business – This section does not prevent taxation by a tax jurisdiction with respect to personal property used in or arising from a trade or business, if it has jurisdiction. (4) Relationship to law of State of domicile – Eligibility for relief from personal property taxes under this subsection is not contingent on whether or not such taxes are paid to the State of domicile. (d) Increase of tax liability – A tax jurisdiction may not use the military compensation of a nonresident servicemember to increase the tax liability imposed on other income earned by the nonresident servicemember or spouse subject to tax by the jurisdiction. (e) Federal Indian reservations – An Indian servicemember whose legal residence or domicile is a Federal Indian reservation shall be taxed by the laws applicable to Federal Indian reservations and not the State where the reservation is located. (f) Definitions – For purposes of this section: (1) Personal property – The term “personal property” means intangible and tangible property (including motor vehicles). (2) Taxation – The term “taxation” includes licenses, fees, or excises imposed with respect to motor vehicles and their use, if the license, fee, or excise is paid by the servicemember in the servicemember’s State of domicile or residence. (3) Tax jurisdiction – The term “tax jurisdiction” means a State or a political subdivision of a State. – SOURCE – (Oct. 17, 1940, ch. 888, title V, Sec. 511, as added Pub. L. 108- 189, Sec. 1, Dec. 19, 2003, 117 Stat. 2858.)
[5] 28 USC Sec. 134 01/03/2007 TITLE 28 – JUDICIARY AND JUDICIAL PROCEDURE PART I – ORGANIZATION OF COURTS CHAPTER 5 – DISTRICT COURTS Sec. 134. Tenure and residence of district judges (a) The district judges shall hold office during good behavior. (b) Each district judge, except in the District of Columbia, the Southern District of New York, and the Eastern District of New York, shall reside in the district or one of the districts for which he is appointed. Each district judge of the Southern District of New York and the Eastern District of New York may reside within 20 miles of the district to which he or she is appointed. (c) If the public interest and the nature of the business of a district court require that a district judge should maintain his abode at or near a particular place for holding court in the district or within a particular part of the district the judicial council of the circuit may so declare and may make an appropriate order. If the district judges of such a district are unable to agree as to which of them shall maintain his abode at or near the place or within the area specified in such an order the judicial council of the circuit may decide which of them shall do so.
[6] 28 USC Sec. 545 01/03/2007 TITLE 28 – JUDICIARY AND JUDICIAL PROCEDURE PART II – DEPARTMENT OF JUSTICE CHAPTER 35 – UNITED STATES ATTORNEYS Sec. 545. Residence (a) Each United States attorney shall reside in the district for which he is appointed, except that these officers of the District of Columbia, the Southern District of New York, and the Eastern District of New York may reside within 20 miles thereof. Each assistant United States attorney shall reside in the district for which he or she is appointed or within 25 miles thereof. The provisions of this subsection shall not apply to any United States attorney or assistant United States attorney appointed for the Northern Mariana Islands who at the same time is serving in the same capacity in another district. Pursuant to an order from the Attorney General or his designee, a United States attorney or an assistant United States attorney may be assigned dual or additional responsibilities that exempt such officer from the residency requirement in this subsection for a specific period as established by the order and subject to renewal. (b) The Attorney General may determine the official stations of United States attorneys and assistant United States attorneys within the districts for which they are appointed.
[7] 28 USC Sec. 175 01/03/2007 TITLE 28 – JUDICIARY AND JUDICIAL PROCEDURE PART I – ORGANIZATION OF COURTS CHAPTER 7 – UNITED STATES COURT OF FEDERAL CLAIMS Sec. 175. Official duty station; residence – (a) The official duty station of each judge of the United States Court of Federal Claims is the District of Columbia. (b) After appointment and while in active service, each judge shall reside within fifty miles of the District of Columbia. (c) Retired judges of the Court of Federal Claims are not subject to restrictions as to residence. The place where a retired judge maintains the actual abode in which such judge customarily lives shall be deemed to be the judge’s official duty station for the purposes of section 456 of this title. -SOURCE- (Added Pub. L. 89-425, Sec. 2, May 11, 1966, 80 Stat. 140; amended Pub. L. 97-164, title I, Sec. 105(a), Apr. 2, 1982, 96 Stat. 27; Pub. L. 102-572, title IX, Sec. 902(a)(1), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 106-518, title III, Sec. 307, Nov. 13, 2000, 114 Stat. 2419.)
[8] TITLE 26 – INTERNAL REVENUE CODE Subtitle F – Procedure and Administration CHAPTER 61 – INFORMATION AND RETURNS Subchapter A – Returns and Records PART VII – PLACE FOR FILING RETURNS OR OTHER DOCUMENTS Sec. 6091. Place for filing returns or other documents (a) General rule – When not otherwise provided for by this title, the Secretary shall by regulations prescribe the place for the filing of any return, declaration, statement, or other document, or copies thereof, required by this title or by regulations. (b) Tax returns – In the case of returns of tax required under authority of part II of this subchapter – (1) Persons other than corporations – (A) General rule – Except as provided in subparagraph (B), a return (other than a corporation return) shall be made to the Secretary – (i) in the internal revenue district in which is located the legal residence or principal place of business of the person making the return, or (ii) at a service center serving the internal revenue district referred to in clause (i), as the Secretary may by regulations designate. (B) Exception – Returns of – (i) persons who have no legal residence or principal place of business in any internal revenue district, (ii) citizens of the United States whose principal place of abode for the period with respect to which the return is filed is outside the United States, (iii) persons who claim the benefits of section 911 (relating to citizens or residents of the United States living abroad), section 931 (relating to income from sources within Guam, American Samoa, or the Northern Mariana Islands), or section 933 (relating to income from sources within Puerto Rico), (iv) nonresident alien persons, and (v) persons with respect to whom an assessment was made under section 6851(a) or 6852(a) (relating to termination assessments) with respect to the taxable year, shall be made at such place as the Secretary may by regulations designate. (2) Corporations – (A) General rule – Except as provided in subparagraph (B), a return of a corporation shall be made to the Secretary – (i) in the internal revenue district in which is located the principal place of business or principal office or agency of the corporation, or (ii) at a service center serving the internal revenue district referred to in clause (i), as the Secretary may by regulations designate. (B) Exception – Returns of – (i) corporations which have no principal place of business or principal office or agency in any internal revenue district, (ii) corporations which claim the benefits of section 936 (relating to possession tax credit), and (!1) (iii) foreign corporations, and (iv) corporations with respect to which an assessment was made under section 6851(a) (relating to termination assessments) with respect to the taxable year, shall be made at such place as the Secretary may by regulations designate. (3) Estate tax returns (A) General rule – Except as provided in subparagraph (B), returns of estate tax required under section 6018 shall be made to the Secretary – (i) in the internal revenue district in which was the domicile of the decedent at the time of his death, or (ii) at a service center serving the internal revenue district referred to in clause (i), as the Secretary may by regulations designate. (B) Exception – If the domicile of the decedent was not in an internal revenue district, or if he had no domicile, the estate tax return required under section 6018 shall be made at such place as the Secretary may by regulations designate. (4) Hand-carried returns – Notwithstanding paragraph (1), (2), or (3), a return to which paragraph (1)(A), (2)(A), or (3)(A) would apply, but for this paragraph, which is made to the Secretary by handcarrying shall, under regulations prescribed by the Secretary, be made in the internal revenue district referred to in paragraph (1)(A)(i), (2)(A)(i), or (3)(A)(i), as the case may be. (5) Exceptional cases – Notwithstanding paragraph (1), (2), (3), or (4) of this subsection, the Secretary may permit a return to be filed in any internal revenue district, and may require the return of any officer or employee of the Treasury Department to be filed in any internal revenue district selected by the Secretary. (6) Alcohol, tobacco, and firearms returns, etc. In the case of any return of tax imposed by section 4181 or subtitle E (relating to taxes on alcohol, tobacco, and firearms), subsection (a) shall apply (and this subsection shall not apply).

May 21, 2010 Executive Committee Meeting (updated 5/20/10)
Attached are the agenda (key items include proposed revisions to the Model Codel for Judicial Conduct, an update of the HUD controversy and the Abrams MSPB decision), the April 2010 minutes, the April 1 – May 18 Treasurer’s report, the May 2010 legislative report, and FALJC members’ comments on the Model Code of Judicial Conduct for administrative law judges.

Pension legislation developments expected this week (updated 5/19/10)
The Congressional Budget Office is expected to issues its cost assessment of the ALJ pension legislation. Presently, the bill has 26 Co-sponsors.

FALJC 2010 Seminar Agenda (updated 5/19/10)
The latest version of the FALJC 2010 Seminar Agenda.

HHS seeks to fill vacancies in Miami, Irvine and Cleveland (updated 5/18/10)
HHS’s Office of Medicare Hearings and Appeals (OMHA) seeks to fill multiple Supervisory Administrative Law Judge vacancies at the ALJ-03 level or higher in the Midwestern Field Office (Cleveland, Ohio), Western Field Office (Irvine, California), and Southern Field Office (Miami, Florida). The attached Solicitation of Interest provides all relevant details regarding the available positions. Contact Chief Administrative Law Judge Nancy Griswold if you have any questions.

AALJ election results (updated 5/18/10)
President: D. Randall Frye (329) defeated Thomas W. Snook (242)
Executive Vice-President: Marilyn J. Zahm – uncontested
Treasurer: Robert S. Habermann (224); Peter J. Valentino (209); Marilyn M. Faulkner (134) – runoff election required*
Secretary: Dale D. Glendenning (319) defeated Mark A. O’Hara (239)
Region I VP: Thomas P. Kennedy – uncontested
Region II VP: Linda A. Stagno – uncontested
Region III VP: Jon K. Johnson – uncontested
Region IV N VP: H. Scott Williams (49) defeated Joan Lawrence (16)
Region IV S VP: Patrick F. McLaughlin (78) defeated Michael Levinson (13)
Region V VP: William A. Wenzel – uncontested
Region VI VP: Donald J. Willy – uncontested
Region VII VP: Mark A. Brown – uncontested
Regions VIII & X VP: Cheri L. Filion (19) defeated Jessica H. Pugrud (15)
Region IX VP: David M. Ganley – uncontested
Region XI VP: Alfonso Montano – uncontested

FALJC President’s Message (updated 5/13/10)
FALJC President Davenport’s April 8, 2010 Message to the Membership is posted here.

ALJ Pension Reform Bill Advances in Congress (updated 5/7/10)
Based on an earlier request by Congressman Ed Towns (D-NY), the Congressional Budget Office reviewed the ALJ pension reform bill and concluded that the previous pension legislation would cost about $14 million over ten years. To address this issue, as well as the OPM opposition that the earlier legislation was more generous than that which Congress and its staff receive, the bill was modified so that the pension benefits would be identical to those of the Congress. The changes made should substantially reduce the cost of the bill. A letter has now been signed by Congressman Towns and Congressman Dennis Kucinich. Because of the involvement of CBO in the earlier legislation, we are led to believe that we should receive a fairly quick turnaround of the request, perhaps as soon as two weeks. Members are strongly urged to communicate with their districts’ Congressional offices, advise the staff that Congressmen Towns and Kucinich sent the bill to be scored, and that we expect a response within the next two weeks. Please urge them to sign on to the bill ASAP. We presently have 24 Co-sponsors so please keep up your communications. Once the CBO information is received, we must again renew our efforts by communicating this news to every member of Congress. Obviously, this will require that members give significant time to this effort. This means new letters as well as additional calls and visits. As soon as the information from the CBO is received, it will be posted here.

Sentator objects to rule allowing agencies to set time and place of hearings (updated 5/7/10)
Senator Johnny Isakson (R-GA) has notified the Office of Management and Budget that he objects to the Social Security Administration proposed rule that the agency rather than the judge set the time and place of the hearing. Senator’s Isakson’s objection as a member of the minority party will not, unlike preventing a nomination from going forward, in and of itself, prevent the rule from being promulgated. However, this is a positive development because he the first elected official to such a rule and may spur an objection from a Democratic senator or representative.

FALJC asks HUD Secretary to investigate instrusions into ALJ independence (updated 5/4/10)
FALJC President Davenport has sent a letter, dated April 22, 2010, requesting that Housing and Urban Development Secretary Shaun Donovan launch an investigation into allegations that the non-judicial Director of HUD’s Office of Hearings and Appeals has been encroaching upon the independence of its ALJs.

FMSHRC hires 4 new judges (updated 5/3/10)
Four judges have transferred to the Federal Mine Safety and Health Review Commission: William Moran of the EPA (Washington, DC), Thomas McCarthy of HHS-Miami, and Priscilla Rae and L. Zane Gill of SSA’s National Hearing Center in Falls, Church, VA.

ACUS Chairman to speak at September FALJC Seminar (updated 5/3/10)
Judge Robin Arzt reports that Paul Verkuil, the recently appointed Chairman for the newly constituted Administrative Conference of the United States (ACUS), has accepted our invitation to be the keynote speaker on 9/12/10 at the FALJC Seminar Banquet in Ocean City, MD. ACUS is an independent agency and advisory committee created in 1968. It was charged with studying U.S. administrative processes, including the APA and ALJ functions, and recommending improvements to Congress and agencies. From 1968 to 1995, ACUS issued approximately 200 recommendations, most of which have been at least partially implemented. Congressional funding for ACUS was terminated in 1995, but was restored in the last budget.

SSA announces opening at Falls Church, VA Hearing Center (updated 4/30/10)
SSA’s announcement states that applications are due by May 7.

AALJ President testifies before Congress (updated 4/29/10)
AALJ President Randy Frye recently testfied before a House Ways and Means Subcommittee regarding the disability backlog and problems with SSA’s proposals for dealing with it. Click here for a video of his testimony.

Congressional office issues an overview report on ALJs (updated 4/23/10)
The Congressional Research Service has issued an April 13, 2010 report entitled, “Administrative Law Judges: An Overview.” The summary of the report appears to indicate that it was commissioned because of several bills relating to ALJs that have been introduced in the 111th Congress, including H.R. 2850, S. 372, and S. 1228. The report is quite comprehensive and discusses the distinctions between ALJs and non-ALJ hearing examiners, selective certification requests by agencies, judicial independence and discipline. This report will serve as a critical resource for Congress as it proceeds with ALJ-related legislation.

More information on OPM’s current ALJ office (updated 4/23/10)
Subsequent to OPM General Counsel Elaine Kaplan’s comments to FALJC, we have obtained additional information about OPM’s ALJ Program Office (ALJPO). Juanita Love, known to many of us either through the application process or as participants in the panel interviews, is currently serving as the ALPO’s Acting Program Manager. She reports to Kay Ely, Associate Director for HR Solutions. The ALJPO administers the ALJ examination, certifies candidates to agencies for appointment consideration, acts on all ALJ noncompetitive actions, and administers the ALJ Loan and Senior ALJ Programs. It also acts on other personnel related matters pertaining to incumbent/former ALJs. In addition, the office works with OPM’s General Counsel and other OPM offices on policy related issues. Because matters related to the ALJPO can range from program to policy to litigation, OGC serves as the first contact regarding ALJ related matters. The Office of General Counsel’s contacts are Julie Ferguson Queen and Robert Girouard. They can be reached at 202-606-1700 and will disseminate any concerns to the appropriate party within OPM.
Judge Davenport

OPM General Counsel addresses ALJ issues (updated 4/22/10)
OPM General Counsel Elaine Kaplan attended the FALJC luncheon on April 16th and addressed several issues of concern to FALJC. Ms. Kaplan made a positive presentation, was engaging and candid. It was evident to those in attendance that there is a new attitude towards ALJs in the OPM hierarchy. She listens exceptionally well and took notes on a couple of items. Ms. Kaplan acknowledged a number of problems, including the fact that the new ALJ Office is still not a one stop entity and presently deals only with the examination and recruitment process. Ms. Kaplan discussed the structure of the examination process, but acknowledged problems with the quick opening and closing of the register. She explained that this is the only way that they can handle all the applications. There is a new exam in the making and she indicated that Director Berry suggested we be included in the design. Ms. Kaplan was not aware of the fact that OPM eliminated the litigation requirements for the ALJ examination, but noted that the examination components were developed by industrial psychologists to assure that no disparate treatment occurs. She reiterated that OPM continues to review the process and welcomed our continued input.
Judge Davenport

FALJC Nominating Committee Report (updated 4/20/10)
The Nominating Committee submitted its report at the FALJC April 16, 2010 meeting, essentially moving up all current officers and adding Judge J. Jeremiah Mahoney, Chief Judge at HUD, as Secretary.

FALJC 2010 Semnar Agenda (updated 4/20/10)
The revised seminar agenda is attached. If anyone has a suggestion for the remaining presentation slot, please let Judge Robin Arzt know at bubobubo@verizon.net.

FALJC Executive Committee Meeting Scheduled for April 16, 2010 (updated 4/15/10)
The agenda includes an update of the HUD situation and litigation, discussion of legislative priorities and and possible revisions to the Model Code. The minutes of the March 2010 meeting and April 2010 Treasuer’s Report are also attached.

FALJC April 16 Meeting and Luncheon to Honor Retired Judges (updated 4/8/10)
The FALJC luncheon meeting is scheduled for Friday, April 16, 2010 at at 10 a.m. at Maggiano’s in Washington, D.C. The lunch will start after complettion of the Executive Committee agenda at around noon. The guest speaker will be Elaine Kaplan, General Counsel of the Office of Personnel Management. Her topic: “Issues Affecting OPM and the Administration Law Judge Community.” Anyone interested in attending must let their agency representative know no later than noon on Tuesday, April 13, 2010.

SSA hires 56 Judges (updated 4/6/10)
Judge Goodwin has obtained the following information regarding the ALJs recently hired by SSA off the current certificate. The information is incomplete, but it appears that 56 offers were accepted out of 57 made, and that at least 29 of the new ALJs were SSA attorneys. The reporting date for the new ALJs is May 24th, with training starting in Falls Church on June 7th: Roxanne Kelsey – Attorney Advisor in Stockton, Ca. ODAR – ALJ in Orland Park, Ill. ODAR
James F. “Jim” Barter – Group Supervisory Attorney in Mobile ODAR – ALJ in Hattiesburg, Ms. ODAR
Patrick Cutter, Sr. – Senior Attorney Advisor in Harrisburg, Pa. ODAR – ALJ in the St. Louis ODAR National Hearing Center (NHC)
Lori J. Williams – Senior Attorney Advisor in Florence, Al. ODAR – ALJ in Hattiesburg, Ms. ODAR
Kyle C. Alexander – Senior Attorney in the Atlanta, Ga. Regional DWU – ALJ in Evansville, Ind. ODAR
Norman Bennett – Attorney Advisor in Las Vegas ODAR – ALJ in Evansville, Ind. ODAR
Nikki Flowers – Senior Attorney Advisor in Atlanta Regional Office – ALJ in Jackson, Ms. ODAR
Paul Johnson – Senior Attorney in Jacksonville ODAR & former HOD in Jackson, Ms. ODAR – ALJ in St. Louis ODAR NHC
Elizabeth Palacious – Administrative Appeals Judge on the Appeals Council, former Appeals Officer, & Attorney Advisor in Miami Florida – ALJ in Metairie, La. ODAR
Benjamin Barnett – HOD in Colorado Springs, Co. ODAR – ALJ in St. Louis ODAR NHC
John T. Molleur – Attorney Advisor in Charleston, S.C. ODAR – ALJ in Jackson, Ms. ODAR
Susan Leise – HOD in Portland, Ore. ODAR & former Senior Attorney in Denver ODAR – ALJ in the St. Louis ODAR NHC
Cynthia Rosa – Regional Attorney in the Seattle RO – ALJ in Fresno, Ca. ODAR
William Weir – Acting Regional Attorney in the Seattle RO – ALJ in Buffalo, N.Y. ODAR
Kim McClain-Leazure – Appeals Officer for the Appeals Council & former Attorney in Chattanooga ODAR – ALJ in the St. Louis ODAR NHC
Jerry Faust – Senior Attorney Advisor in Creve Coeur, Mo. ODAR – ALJ in the St. Louis ODAR NHC
Julia Terry – Appeals Officer for the Appeals Council – ALJ in the St. Louis ODAR NHC
Andrew Emerson – Appeals Officer for the Appeals Council & former FEDRO Supervisor & HOD in the Washington, D.C. ODAR – ALJ in Cleveland, Ohio ODAR
Michelle Wolfe – HOD & former Group Supervisory Attorney in Harrisburg, Pa. ODAR – ALJ in Charleston, W.V. ODAR
Bill Jones – Attorney Advisor in Fort Smith, Ark. ODAR – ALJ in Metairie, La. ODAR
Gitel Reich – Senior Attorney Advisor in Manhattan ODAR – ALJ in Manhattan ODAR
Kurt Ehrman – Appeals Officer for Appeals Council & former FEDRO – ALJ in the St. Louis ODAR NHC
Frances Williams – Senior Attorney Advisor in Columbia, S.C. ODAR – ALJ in Columbia, S.C. ODAR
Stephanie Martz – Assistant Regional Counsel Seattle Office of General Counsel (OGC) – ALJ in Seattle ODAR
Mark Clayton – Attorney Advisor in McAlester, Ok. ODAR – ALJ in the St. Louis ODAR NHC
Carol Buck – Group Supervisory Attorney in Sacramento, Ca. ODAR – ALJ in Oakland, Ca. ODAR
Kimberly Cromer – Assistant Regional Counsel Chicago OGC – ALJ in Oakbrook, Il. ODAR
Patricia Supergan – Attorney Advisor in Orland Park, Il. ODAR – ALJ in Milwaukee, Wis. ODAR
Howard Prinsloo – Attorney Advisor in Little Rock, Ark. ODAR – ALJ in the St. Louis ODAR NHC

Attorneys Hired Outside of SSA:
Valorie J. Stefanelli – A general civil practitioner in the New York City metro area – ALJ in Hattiesburg, Ms. ODAR
Donna M. LeFebvre – A long-time NOSSCR member & Social Security Disability Practitioner with Miller & LeFebvre in Knoxville, Tn. – ALJ in Fargo, N.D. ODAR
Ethan A. Chase – Former State Medicaid Hearing Officer & Regional Supervisor for the Ohio Bureau of State Hearings & currently an Administrative Appeals AJ/Hearing Officer for the State of South Carolina Department of Social Services – ALJ in Roanoke, Va. ODAR
Dale Pennington-Black – A general civil and criminal defense private practitioner, including Social Security disability cases, in Bellerose, N.Y. – ALJ in Albany
ODAR Mary P. Thorstenson – Rapid City, S.D. Attorney who is currently a State Circuit Court Judge and formerly an Attorney Advisor for the Department of Interior’s Officer of Hearings & Appeals and an Assistant U.S. Attorney – ALJ in Charleston, W.V. ODAR
Scott Anderson – Unknown background – ALJ in Charleston, W.V. ODAR
Mark M. Swayze – Currently an Administrative Manager for the State of Michigan Department of Civil Service in Lansing, Mi. & formerly a general civil and criminal law practitioner in Livonia, Mi. – ALJ in Morgantown, W.V. ODAR
Brian Ripple – Unknown background – ALJ in Morgantown, W.V. ODAR
XXXXX (unknown) Beers – Unknown background – ALJ in Huntington, W.V. ODAR
Elizabeth B. Dunlap – A NOSSCR member and Social Security Disability Practitioner since 1983 in Dallas, Texas who currently specializes in Federal District and Circuit Court appeals of Social Security cases – ALJ in Huntington, W.V. ODAR
Dana A. Rosen – A long-time Norfolk, Va. Attorney specializing in LHWCA defense work with the firm of Clark, Dolph, Rapaport, Hull, Brunick, & Garriott
Melinda J. Dula – a general practitioner in Snellville, Georgia – ALJ in Atlanta, Ga. ODAR
Donna Dawson – Unknown background – ALJ in Tupelo, Ms. ODAR
James T. Dixon – A private practitioner in Cleveland Ohio specializing in construction law and corporate litigation – ALJ in Cleveland, Ohio ODAR
Thomas M. Randazzo – An attorney employed by the NLRB Region 8 office in Cleveland Ohio – ALJ in Cleveland ODAR
Suzanne A. Littlefield – A solo practitioner in Austell, Georgia – ALJ in Cleveland, Ohio ODAR
Kathleen M. Mucerino – A private practitioner in Sun City, Az. specializing in adoptions & juvenile law – ALJ in Orland Park, Ill. ODAR
John Callahan – Unknown background – ALJ in Oak Park, Mich. ODAR
Eric W. Borda – A Baltimore, Md. Private practitioner specializing in workers’ compensation and bankruptcy litigation – ALJ in Milwaukee, Wis. ODAR
Katherine Brown – Unknown background – ALJ in San Antonio, Tex. ODAR
David Begley – Unknown background – ALJ in Ft. Worth, Tex. ODAR
Valenicia L. Jarvis – a Detroit, Michigan attorney currently employed as a Magistrate by the Michigan State Workers’ Compensation Board – ALJ in the St. Louis ODAR NHC
D’Lisa R. Simmons – Houston, Texas area private practitioner – ALJ in the St. Louis ODAR NHC
Lisa Groeneveld-Meijer – A Seattle based Administrative Law Judge working with the Washington State Office of Administrative Hearings – ALJ in the St. Louis ODAR NHC
Theodore Kennedy – Unknown background – ALJ in Fargo, N.D. ODAR
Jonathan Baird – Unknown background – ALJ in Anchorage, Alaska ODAR
Rudolph M. Murgo – Retired U.S. Army Lieutenant Colonel, former Oregon State Circuit Court Judge, & current private practitioner in Oregon – ALJ in Eugene, Oregon ODAR

MSPB Judge recommends removal of SSA Judge (updated 4/5/10)
Administrative Law Judge Margaret Brakebush, an NLRB judge assigned to determine an MSPB disciplinary case brought by SSA against ALJ Richard Abrams, has issued a decision recommending his removal for failing to comply with agency directives regarding the management of his caseload and the determination of old cases.

Update on the status of SSA hiring (updated 3/26/10)
FALJC has learned that SSA has a goal of hiring about 50 new ALJs from the current register. Selections will be made in mid-March. May 24 will be the report date to SSA hearing offices, with out-of-office training to take place beginning June 7 for four weeks. New Judges will report back to their home offices on July 6th. Another 183 judges will be hired from a new list in July. They will report to their assigned offices in August and receive training in October. Starting dates are dependent on OPM, which expects to have a register by April 17th. After this year, SSA anticipates only replacement hiring at the pace of about 70 ALJs per year.

More information on recent ALJCC meeting with OPM (updated 3/25/10)
OPM’s Alan Nelson, who is responsibile for administration of the ALJ examination, briefed the ALJCC regarding the current examination and appointment process. The ALJCC raised concerns about the lack of transparency of the process and some suggestions were made to improve the process: (1) that the notice of intent to issue a Vacancy Announcement include a definite date at which the Vacancy Announcement will be issued and provide adequate time for the public to respond in lieu of the present “race to the computer”; (2) that greater provision should be made for persons with disabilities who may require additional assistance; (3) regarding the Accomplishment Record (“AR”) portion of the exam, references should be checked at that stage and not merely by the agencies after an ALJ Register is provided; (4) that there appears to be an overreliance on the six competencies developed by OPM’s consulting psychologists and a need to provide a lengthier description for each competency; (5) that there is a need to verify information provided under each competency by contacting applicants’ references prior to determining which of the applicants is in the highest group eligible to take the remainder of the examination; (6) that the final score for the ALJ examination should accord greater weight to applicants’ responses to the hypothetical legal question in the Written Demonstration (“WR”) and to answers given in the Structured Interview (“SI”) portions of the examination; (7) that the three-person panel conducting the Structured Interview should have greater leeway in recommending adjustments upward or downward to an applicant’s final score; (8) that, as an alternative to the current process, the ALJ examination remains open indefinitely or for a period of months with applications processed on a rolling basis during the open period; (8) concerns were expressed about obtaining greater diversity in the applicant pool. Anecdotal evidence was noted that attorneys practicing before SSA are monopolizing the application process (i.e., because SSA circulates to its attorneys OPM’s notice of intent to issue a Vacancy Announcement which publicizes imminent opening of the ALJ examination, those attorneys can ready their applications and submit them quickly resulting in greater representation of SSA attorneys in the ALJ applicant pool due to the “race to the computer” process OPM currently employs); (9) that the Office of Administrative Law Judges should be reestablished.
OPM provided assurances that priority in appointment will be accorded to ALJs who are on the Priority Referral List. Some of these concerns may be realized when OPM establishes a new examination to replace the current process. At the conclusion of the meeting, OPM General Counsel Kaplan stated that she would get back to the ALJCC within the next two weeks with regard to a further meeting to discuss ALJ pay compression.

FALJC seeks members to serve on Nominating Committee and as Officers for 2010-2011 (updated 3/22/10)
To FALJC Members:
Article IV, Section 1 of the FALJC By-laws provides that this time each year, a Nominating Committee headed by the immediate past-president shall be appointed by the current president to nominate candidates for FALJC offices for the upcoming year. The Nominating Committee is to “consist of eight Conference members, not more than three of whom may be representatives or alternate representatives to the Executive Committee or Conference officers. . . . No more than one member of the Nominating Committee may be from or elected to represent a single agency. Any agency entitled to two or more Executive Committee representatives shall be represented by one member of the Nominating Committee.”
Accordingly, this is a call to all Conference members to volunteer for service on the Nominating Committee to help select at least one, but not more than two, candidates for each office – President, First Vice-president, Second Vice-president, Treasurer and Secretary. This is also a call to all Conference members who wish to serve as officers in FALJC to submit your names for consideration. Only one candidate may be nominated for office from any one agency, except that more than one candidate from the same agency may be nominated for the same office, so that in any year no more than one Conference member from any one agency shall be elected to office.
All current FALJC officers except the President are asked to respond by return e-mail by no later than Monday, March 29, 2010, to indicate whether they are willing to be nominated to the next highest office and to serve therein during 2010-2011. All FALJC members who wish to serve on the Nominating Committee are asked to respond by return-e-mail by no later than Tuesday, March 30, 2010, to indicate their willingness to serve. All FALJC members who wish to be considered for nomination as FALJC Officers for 2010-2011 shall indicate by return e-mail their willingness to stand for nomination, and the office they seek, by no later than Wednesday, April 1, 2010.
Judge Steven Glazer

SSA Judges challenge SSA’s establishment of an “Overpayment Cadre” (updated 3/22/10)
The Association of Adminisrative Law Judges (AALJ) has filed a Step Three Grievance challening SSA’s March 17 proposal to create a cadre of ALJs who will handle overpayment cases. These cases will no longer be rotated among the ALJs. Pursuant to past practice of at least 16 years and in accordance with the Administrative Procedure Act (APA) and SSA established procedure for handling claims, overpayment cases have been rotated among all ALJs in the Hearing Offices. The AALJ contends that there is no significant business reason for failing to rotate these cases and that these cases are no more complex than any other group of cases and, in most instances, are simpler than a disability case.

Proposed Changes to Model Code for ALJs (updated 3/19/10)
At its November 2009 meeting, the Executive Committee of FALJC voted to form a Model Code Committee to consider revisions to the Model Code of Judicial Conduct for Federal Administrative Law Judges, published by ABA/NCALJ in February 1989. The Model Code Committee has drafted a report of proposed amendments for consideration at the March 19 Executive Committee meeting.

FALJC March Legislative and Treasurer’s Report (updated 3/18/10)
Attached are the legislative and treasurer’s reports to be discussed at the March 19th Executive Committee meeting.

FALJC Executive Committee Meeting Scheduled for March 19, 2010 (updated 3/16/10)
The agenda includes an update of the HUD situation and litigation, a report of the recent meeting with OPM, discussion of legislative priorities and an update of webpage changes. The minutes of the February 19, 2010 meeting are attached.

OPM Director Berry reestablishing Office of ALJs at OPM (updated 3/15/10)
Judge Davenport reports breaking news at March 11 meeting between OPM Director Berry, FALJC, AALJ and the ABA. At the meeting, Director Berry announced that, as part of OPM’s current reorganization, he was reestablishing the Office of ALJs at OPM. Both the pension bill and the enhanced leave measure were discussed. He was most interested in the leave legislation and appeared concerned as to why OPM interpreted the 2004 legislation as being limited to only those positions subject to performance standards/appraisals. In addition, we have learned that the interview and written portion of the ALJ test are again underway. SSA is expected to expand the number of judges that they had to approximately 1450 by next year.

National Judicial College offering scholarships for two week course on “Administrative Law – Fair Hearing” (updated 3/11/10)
We received the following announcement from the NJC: Hello friends and colleagues, As you may know, the National Judicial College has a two-week course called “Administrative Law: Fair Hearing.” The Spring session of the class is coming up. It will take place April 12th through 22nd. Enrollment is a little low due to the economy. That’s the bad news. The good news is that NJC does have some scholarship money for the course. If you know of anyone who conducts administrative hearings who has not yet attended the course and would be available to attend the Spring session, please encourage them to contact NJC. The administrative agency will need to some of the cost but NJC scholarships might provide a significant portion of the $1,495 tuition. If you know of someone that might be interested and available, please forward this e-mail to them. The course will also be offered September 27th through October 7th. For more information, please contact Scholarship Coordinator Rebecca Bluemer at 1-800-25-JUDGE (58343). You may also contact the Program Attorney for the course, Susan Conyers, at the same number if you have questions regarding the course. The scholarship money is available. It would be a shame to let it go to waste if there is someone who could benefit from the course. There is nothing to lose by calling.

SSA Credit Hours, AWS, and Flextime on Chopping Block! (updated 3/8/10)
As a precursor of possible changes to the work arrangements of SSA judges, AFGE, the union representing SSA’s support staff reports that SSA’s bargaining team, during recent contract negotiations, outlined a number of proposals: total discretion by management over the use of credit hours, including the denial thereof; the right to unilaterally change time and attendance procedures, with no input on those changes; expand the number of facilities that are considered “small offices,” which have less flextime than large offices; reduce the number of offices and employees who are eligible to work 5-4-9 AWS schedules; in teleservice centers, eliminate the union’s right to negotiate shift rotation procedures; management’s right to determine the number of employees on each shift in TSCs that have multiple shifts; management’s right to change procedures for flexing-out during the workday and reduce the number of offices where employees can work 5-4-9 or 4-10. SSA’s judges are represented by the IFPTE/AALJ, which has not yet been provided with such proposals.

SSA Moves forward on setting Judge’s hearings (updated 2/26/10)
Shortly after the Presidential election, Social Security published proposed rules that would give the agency the authority to set the time and place for Administrative Law Judge hearings. This would allow the agency to set hearings for an ALJ without the ALJ’s consent. Social Security has now sent a final version of this rule, which may violate the APA to the Office of Management and Budget seeking approval before publishing the rule in the Federal Register to make it effective.

SSA to Publish Judges’ Disposition Data (updated 2/26/10)
Social Security has begun posting data online showing Administrative Law Judge dispositions, including allowances and denials per ALJ. Note: the difference between the “total dispositions” and “total decisions” figure would be dismissals. A few judges have a very high number of dismissals, which is probably Hearing Office Chief ALJs, as they typically issue the obvious dismissals of late requests for hearings and premature requests for hearings for their office.

Interesting Appeals decision involving Interagency Exchange of Information (updated 2/26/10)
Pursuant to a joint criminal investigation, the Social Security Administration has been turning over to the Federal Aviation Administration medical records it has received in connection with Social Security disability claims so that the FAA can cancel pilot licenses and criminally prosecute those who are allegedly guilty of fraud in connection with their pilot licenses. Consequently, in COOPER v. FAA, No. 08-17074, filed February 22, 2010, the plaintiff commenced an action under the Privacy Act of 1974, 5 U.S.C. § 552a et seq. (the Act), which prohibits federal agencies from disclosing “any record which is contained in a system of records by any means of communication to any person, or to another agency” without the consent of “the individual to whom the record pertains,” unless the disclosure falls within one or more enumerated exceptions to the Act. Id. § 552a(b). The Act also creates a private cause of action against an agency for its wilful or intentional violation of the Act that has “an adverse effect on an individual,” and allows for the recovery of “actual damages” sustained as a result of such a violation. Id. § § 552a(g)(1)(D), (g)(4)(A). The plaintiff claimed actual damages for nonpecuniary injuries, such as humiliation, mental anguish, and emotional distress, as a result of the unauthorized interagency disclosure of his medical information; he did not claim any pecuniary or out-of pocket losses. Because he sought damages only for nonpecuniary injuries, the district court granted summary judgment to the Government, after holding that the Act allows recovery only for pecuniary damages. The Ninth Circuit, interpreting Congressional intent, held that actual damages under the Act encompasses both pecuniary and nonpecuniary damages and reversed and remanded to the district court.

SSA Initiates ALJ Alleged Misconduct Complaints System (updated 2/25/10)
SSA has announced it will maintain a system of records containing complaints against ALJs by the name of the ALJ and the complainant. It will maintain the record for seven years.
Judge Dan Solomon

ALJ Vacancy Announcement EXTENDED – National Hearing Ceneter, St. Louis, Missouri (updated 2/25/10)
SSA is hiring up to 18 ALJs for its new hearing office in St. Louis. The vacancy announcement is open until February 26, 2010. (UPDATE:) The vacancy announcement for Administrative Law Judge positions in the National Hearing Center located in St. Louis, Missouri has been extended. The revised deadline for submission is Monday, March 8, 2010. If you previously applied to the November 4th or December 2nd announcements, you need not reapply to this vacancy. All applications will be considered.

February 20, 2010 Executive Committee Meeting (updated 2/20/10)
Attached are the agenda for the February 20, 2010 Executive Committee meeting, the minutes of the January 2010 Executive Committee meeting, the February 2010 legislative report, and the February 2010 treasurer’s report.

ABA Commission Proposes Independent Court to Help Fix ‘Broken Immigration System (updated 2/12/10)
From the ABA Journal, February 2 issue: A sweeping report released this morning by the ABA Commission on Immigration proposes the creation of an independent structure for hearing cases involving immigrants facing removal from the United States to replace the system that currently operates out of the Justice Department.
“The ABA commissioned this study as our country considers how to overhaul our broken immigration system,” said ABA President Carolyn B. Lamm, a partner at White & Case in Washington, D.C. “This thoughtful analysis of the adjudication system’s problems will help frame the debate as our nation’s leaders move forward.”
Lamm is presenting the report, titled Reforming the Immigration System, at a news briefing this morning in Washington with commission chair Karen T. Grisez, and representatives of Arnold & Porter. More than 50 lawyers and staff members at the firm’s offices in Washington, New York City, Denver, Los Angeles and San Francisco spent more than a year researching and writing the report for the commission on a pro bono basis.
Under the current system, 231 judges sit in 57 immigration courts maintained by the Executive Office for Immigration Review in the Justice Department. The Board of Immigration Appeals also is based in the Justice Department. These courts decide administrative removals, asylum applications, immigration detention cases and other matters involving noncitizens seeking to stay in the United States.
The Department of Homeland Security is charged with prosecuting removal proceedings, managing the immigration detention system and other aspects of enforcing U.S. immigration law. Decisions of the Board of Immigration Appeals may be heard by the federal circuit courts of appeal.
In recent years, “The pressures on the system have grown exponentially as the number of people trying to enter and stay in the United States has increased and as political forces and security concerns have resulted in heightened efforts to stem the flow and remove undocumented noncitizens from the country,” states the executive summary (PDF) of the ABA Commission report.
In considering alternatives to the current system, the Immigration Commission voiced a preference for the creation of independent tribunals by Congress under its Article I powers in the Constitution. Another viable alternative would be to create an independent adjudicative agency in the executive branch, states the report. The commission slightly favors independent tribunals because they would be most likely to be viewed as independent and credible.
In addition to proposing a new adjudication structure for immigration removal cases, the report sets forth a detailed series of recommendations for improving various elements of the existing system.
Those recommendations also will be considered by the ABA’s policy-making House of Delegates when it convenes next week during the association’s 2010 midyear meeting in Orlando, Fla. The meeting opens Thursday. The House will be in session Monday and Tuesday.
“The study’s recommendations identify priorities to ensure that our immigration adjudication system is far more modern, transparent, functional and fair,” said Grisez, public service counsel at Fried Frank in Washington.
One particular focus of the report is how to increase legal representation for noncitizens in removal proceedings. “The lack of adequate representation diminishes the prospects of fair adjudication for the noncitizen, delays and raises the costs of proceedings, calls into question the fairness of a convoluted and complicated process, and exposes noncitizens to the risk of abuse and exploitation by ‘immigration consultants’ and ‘notarios,’ ” the report states.

FALJC February 2010 Executive Committee Meeting (updated 2/7/10)
The upcoming FALJC luncheon meeting is scheduled for Friday, February 19, 2010 in the Conference Room of the Federal Energy Regulatory Commission Building, 888 First St., N.E., Washington, DC. This will be a brown-bag lunch. A detailed notice with special instructions is attached. No speaker has been scheduled.

ALJ Opening at NTSB (updated 2/3/10)
The National Transportation Safety Board (NTSB) has one Administrative Law Judge position to fill at the AL-3 level. Please disseminate this vacancy announcement to judges in your agencies. Note: Although the selectee will be stationed in Washington, D.C., substantial travel is required. Also, no relocation expenses will be paid.
VACANCY ANNOUNCEMENT #: 10-002
POSITION TITLE: Administrative Law Judge
POSITION SERIES & GRADE: AL-0935-03
OFFICE: Office of Administrative Law Judges
LOCATION: Washington, D.C.
OPEN DATE: February 1, 2010
CLOSING DATE: February 22, 2010
NOTE: Open to current and former Administrative Law Judges who meet applicable requirements under 5 CFR 930 Subpart B.
LINK: http://jobview.usajobs.gov/getjob.aspx?opmcontrol=1724075

DEA issues ALJ vacancy announcement (updated 2/2/10)
The Drug Enforcement Administration has issued a vacancy announcement for an ALJ position. Applications are due by February 12, 2010.

HHS announces appointment of new Chief Judge (updated 1/28/10)
From: OS News, HHS (HHS/OS)
Sent: Wednesday, January 27, 2010 2:10 PM
Subject: Important Staff Announcement
To: Senior Leadership
From: Deputy Secretary Corr
Subject: Important Staff Announcement
I am very pleased to announce the appointment of Judge Nancy J. Griswold to serve as the Chief Administrative Law Judge for the Office of Medicare Hearings and Appeals (OMHA).
Judge Griswold is currently the Deputy Chief Administrative Law Judge at the Social Security Administration (SSA). In that role, she has provided leadership, oversight and support for 10 regional offices, 142 field offices, and over 1300 Administrative Law Judges. Previously, she served as SSA’s Regional Chief Administrative Law Judge for the Boston Region. She also served as SSA’s Hearing Office Chief Administrative Law Judge in Shreveport, LA. Judge Griswold has served as an Administrative Law Judge at Social Security since her appointment in 1995. Judge Griswold brings over 10 years of management experience to the Office of Medicare Hearings and Appeals. She received her bachelor’s degree from Louisiana State University at Shreveport and J.D. from Baylor Law School in Texas.
Judge Griswold will join OMHA on February 28, 2010. Please join me in welcoming her to HHS.
I want to express Secretary Sebelius’ and my appreciation to Judge Irwin Schroeder for his outstanding service and performance as Acting Chief Administrative Law Judge over the past 8 months. We are pleased to report that Judge Schroeder will continue to serve as the Managing Administrative Law Judge for the Mid-Atlantic Field Office at OMHA.

SSA Judge ordered removed from office by MSPB (updated 1/28/10)
The Merit Systems Protection Board has reversed an ALJ’s initial decision suspending Fort Lauderdale SSA Judge Danvers Long for 45 days for conduct unbecoming an ALJ (domestic abuse) based on 1 of the 2 complaint specifications. On appeal, the MSPB essentially conducted a de novo review of the trial judge’s credibility findings, reversed the decision,and ordered the Long removed from his position as an administrative law judge. The MSPB’s Opinion and Order is attached.

SSA hiring judges for 47 cities (updated 1/27/10)
SSA has just requested a new certificate identifying 47 cities. More information will be posted as we get it.
Judge Peter Davenport

A Proposal to FALJC to Amend the Model Code of Judicial Conduct for Federal Administrative Law Judges (updated 1/26/10)
FALJC Model Code Revision Committee: At its last Executive Committee Meeting, FALJC decided to expand the membership of its Committee on Revising the Model Code of Judicial Conduct for Administrative Law Judges. The Committee issued a draft proposal of recommended changes and would like more FALJC members to offer their views and proposals. Please contact me at steven.glazer@ferc.gov if you would like to be added to the Committee. In addition, I am posting this topic on the Message Board and invite discussion there as well.
Judge Steven Glazer

DOL Chief Judge Vittone Retiring (updated 1/26/10)
Chief Judge John Vittone is retiring. His reception-luncheon in his honor is scheduled for February 26, 2010 at 11 a.m. at the Army Navy Country Club in Arlington, Virginia. The invitation is attached.

FALJC January 2010 Legislative Report (updated 1/22/10)
Attached is Judge David Coffman’s latest report of legislative developments since November 2009. Activities include FALJC’s meetings with the Office of Personnel Management, Congress, other ALJ organizations, and the American Bar Association and the Federal Bar Association.

2009

AALJ Draft Bill toAmend the APA
Click here for the AALJ’s draft proposal to amend the Administraitve Procedures Act.

2010 ALJ Locality Pay Table Posted (updated 12/27/09)
The 2010 pay raise is now reflected in the locality pay tables for ALJs. The tables reflect an average increase of 2% and, for those at the cap, an increase of 1.5% to $165,300.

ALJ Coordinating Council urges approval of S.1228 (updated 12/17/09)
In a letter dated December 14, 2009, FALJC succeeded in having the ALJ Coordinating Council urge Senate approval of S.1228 and respond to OPM’s opposition to the bill, which would give all Administrative Law Judges 8 hours of annual leave per biweekly pay period.

More on the pay raise (updated 12/15/09)
Section 744(a) of the FY 2010 Appropriations Bill attributes 1.5% of the increase to base pay and the remaining 0.5% to locality pay. Whereas 5 USC § 5303 does not put a cap on federal base pay, including ALJ base pay, 5 USC § 5304(g)(2)(A) does cap the sum of ALJ base pay and locality pay. Accordingly, it appears to me that ALJs whose pay is already capped will receive a raise of 1.5%, and that the remaining ALJs will receive the full 2% as long as their total pay does not exceed the cap.
Judge David Coffman
Legislative Chairman

Congress approves 2% pay raise (updated 12/14/09)
Congress has approved a 2010 spending bill that includes a 2 percent pay raise for federal civilian employees. Although President Obama called for a straight 2% raise with no locality component, Congress rejected that idea and granted civilians a 1.5 percent increase in base pay and an average 0.5 percent boost in locality pay. Presideent Obama is expected to sign the bill.

SSA Wants Contractor To Screen ALJ Applicants (updated 12/9/09)
Posted at FedBizOpps.gov on december 7, 2009: The Social Security Administration (SSA) intends to issue an unrestricted solicitation to obtain the services of one experienced company to perform telephone background screenings on potential candidates that could serve as Administrative Law Judges for the Office of Disability Adjudication and Review (ODAR). The contractor shall provide staff experienced in conducting background screening of mid- to senior level attorneys (comparable to 6th year associates and above, partners, judges, general counsel, associate general counsel positions, U.S. Attorneys, etc.) Only experience U.S. based telephone interviewers (including Alaska and Hawaii) who speak English clearly may be used. Individuals who are bilingual and speak both English and Spanish clearly shall be used for Spanish-speaking individuals. SSA anticipates that the percentage of calls made to Spanish-speaking individuals will not exceed 5% of the total calls.
BACKGROUND: The Social Security Administration employs Administrative Law Judges (ALJs) to adjudicate claims under Titles II and XVI of the Social Security Act. These ALJs are assigned to one of SSA’s components, the Office of Disability Adjudication and Review (ODAR), and ODAR is tasked with selecting ALJs pursuant to the Administrative Procedures Act (APA). The agency that is charged with testing and rating ALJ candidates is the Office of Personnel Management (OPM). When SSA has a need for ALJs, ODAR requests a Certificate of Eligibles (certificate) from OPM for locations where ALJ vacancies exist. OPM provides a number of candidates for each of these locations, and ODAR conducts extensive interviews to determine the suitability of each candidate for employment as an ALJ. In the past, ODAR also conducted background checks of the candidates. The agency has determined that the ALJ candidate background screenings should be performed by private contractors in order to make the screening more extensive than the background checks performed by ODAR in the past.
SSA anticipates the award of one Indefinite Delivery/Indefinite Quantity (IDIQ) type contracts, with provisions for the issuance of Firm-Fixed-Price (FFP) task orders as needed. The IDIQ period of performance will be for a 12 month base period, with four 12 month option periods. SSA’s estimated date for release of the solicitation is on/about December 10th, 2009, of which quotes will be due approximately 14 days from the date of release. Any amendments or other information relative to the solicitation will be posted to this website (www.fedbizopps.gov). As such, interested sources are encouraged to register to receive notification. Hard copies of the solicitation and any related information will not be provided. All questions must be submitted via e-mail to joeie.tracht@ssa.gov.

2010 Pay Raise Limited to 2 Per Cent Across the Board – No Locality Pay Increase (updated 12/3/09)
The White House Office of the Press Secretary
For Immediate Release
November 30, 2009
Letter from the President to the Speaker of the House and President of the Senate
November 30, 2009
Dear Madam Speaker: (Dear Mr. President:) I am transmitting an alternative plan for locality pay increases for civilian Federal employees covered by the General Schedule (GS) and certain other pay systems in January 2010.
Under title 5, United States Code, civilian Federal employees covered by the GS and certain other pay systems would receive a two-part pay increase in January 2010: (1) a 2.4 percent across-the-board adjustment in scheduled rates of basic pay derived from Employment Cost Index data on changes in the wages and salaries of private industry workers, and (2) locality pay adjustments averaging 16.5 percent based on Bureau of Labor Statistics salary surveys of non-Federal employers in each locality pay area. According to the statutory formula, for Federal employees covered by the locality pay system, the overall average pay increase would be about 18.9 percent. This total Federal employee pay increase would cost about $22.6 billion in fiscal year 2010 alone.
Title 5, United States Code, authorizes me to implement an alternative pay plan if I view the adjustments that would otherwise take effect as inappropriate due to “national emergency or serious economic conditions affecting the general welfare.” As in August, when I submitted an alternative plan under 5 U.S.C. 5303(b) to limit the across-the-board increase in 2010 to 2.0 percent, I have determined that it is appropriate to exercise my statutory alternative plan authority under 5 U.S.C. 5304a to set alternative January 2010 locality pay rates.
A national emergency, within the meaning of chapter 53 of title 5, has existed since September 11, 2001. Likewise, our country continues to face serious economic conditions affecting the general welfare and most Americans would not understand or accept that Federal employees should receive an average pay increase of 18.9 percent while many of their fellow citizens are facing employment cutbacks or unemployment. Such an increase would cost $19.9 billion more than the 2.0 percent overall Federal civilian pay increase that I proposed in my 2010 Budget and would build in later years.
Accordingly, I have determined that under the authority of section 5304a of title 5, United States Code, the locality pay percentages currently in effect as shown in the attachment shall remain in effect in 2010.
The law requires that I include in this report an assessment of the impact of my decision on the Government’s ability to recruit and retain well-qualified employees. As I said in August, I do not believe this decision will materially affect our ability to continue to attract and retain a quality Federal orkforce. Since any pay raise above the amount proposed in this alternative plan would likely be unfunded, agencies would have to absorb the additional cost and could have to reduce hiring to pay the higher rates. Moreover, the GS “quit” rate continues to be very low (2.1 percent on an annual basis), well below the overall average “quit” rate in private enterprise.
Sincerely,
BARACK OBAMA

FALJC to respond to OPM’s opposition to S.1228 (updated 11/30/09)
On November 13, 2009, the Office of Personnel Management submitted its opposition to S.1228, sponsored by Senators Akaka (HI) and Pryor (AK), which would give all ALJs 8 hours of annual leave per pay period, regardless of prior years of federal service. FALJC has, since 2005, fought to reverse OPM’s action limiting the benefits of 2004 Flexibility in Hiring Act only to pay groups that are subject to performance appraisals. At its November 20 meeting, President Davenport appointed a committee consisting of Judges Gilbert, Devine and Rosas to draft a response to Congress. With the additional support of Judge Krantz, the committee darfted a proposed response, which is being circulated electronically for a vote among Executive Committee members in advance of the next meeting of the ALJ Coordinating Council on December 8.

DOL Judge Terry Miller retiring (updated 11/23/09)
Judge Terry Miller is retiring after a long and distinguished career as an ALJ and member of the Board of Contract Appeals at DOL. A cocktail reception in his honor will be held on December 1, 2009 from 3:30 – 5:30 p.m. at Clyde’s of Gallery Place in Washington, DC. Cost is $42. RSVP no later than November 24 to Diane Johnson at (202) 693-7370.

43 new SSA judges report to their assigned hearing offices (updated 11/26/09)
On June 18, 2009, we reported the names and assigned offices of 149 newly appointed SSA judges (see below). On October 5, 2009, SSA appointed the following 43 judges, who recently completed training in Washington, DC and reported to their assigned offices: Ryan Alger – New Haven; Kim Griswold – Portland, ME; Lauren Esposito – Bronx; Seth Grossman – Bronx; Daniel Myers – Harrisburg; Frederick Timm – Harrisburg; Sharon Zanotto – Harrisburg; Guy Koster – Pittsburgh; Kenneth Bryant – Richmond; Patrick Maclean – Richmond; Jill Vincent – Birmingham; Thomas Henderson – Charleston, SC; Gloria Green – Lexington; Katherine Wisz – Lexington; Sharon Calhoun – Macon; Barbara Dunn – Middlesboro; Gregory Froehlich – Middlesboro; Robert King – Middlesboro; Tommye Mangus – Middlesboro; William Zuber – Middlesboro; David Horton – Montgomery; Maria Kusznir – Montgomery; Ricky South – Montgomery; David Mason – Nashville; Janet Mahon – Orlando; Edward Bowling – Raleigh; James Wascher – Chicago; Pamela Loesel – Cleveland; Susan Maley – Evansville; William Mueller – Milwaukee; Patrick Nagle – Orland Park; Sylke Merchan – Orland Park; Claudia Rosen-Underwood – Albuquerque; Joan Deans – Alexandria; Brian Dougherty – Alexandria; Trace Baldwin – McAlester; Regina Warren – New Orleans; Matthew Levin – Omaha; Elena Christine Long – Downey; John Cusker – Fresno; William Wallis – Fresno; Robert Iafe – LA West; Nancy Lisewski – San Jose

Significant actions taken at November 20, 2009 Executive Committee Meeting (updated 11/23/09)
At its November 20 meeting, the Executive Committee voted to send a letter urging the President and Congressional leaders to incorporate APA adjudicatory provisions into health care reform legislation currently being considered, and a letter regarding 2010 Basic Pay and Locality Adjustments for Administrative Law Judges.

November 20, 2009 Executive Committee Meeting (updated 11/19/09)
Attached are the agenda for the November 20, 2009 Executive Committee meeting, the October 1 – November 16 treasurer’s report, the November legislative report, the 2010 FALJC seminar contract with the Dunes Manor Hotel, and the proposed minutes of the October Executive Committee meeting.

SSA to open NHC office in St. Louis (updated 11/18/09)
SSA’s ALJ in charge of the “National Hearing Center” offices, Robert Wright, announced recently that a new NHC will open in St. Louis in April 2010 with 15-18 judges.

SSA discipline of judges increasing (updated 11/18/09)
The following disciplinary actions involving SSA judges have occurred over the past several months:
• Refusal to testify at an EEOC Hearing in Region 10 – Federal Court upheld the suspension of an ALJ who refused to testify when called by the Agency as a witness in an EEOC hearing.
• Hearing held in September in Region 6 regarded the proposed removal of an ALJ for failing to follow directives to move cases.
• MSPB charges filed in Region 5 regarding the Agency’s limited use policy of government equipment – Case settled with a two day suspension for sending jokes on Agency email.
• MSPB charges filed for misuse of parking placard; hearing scheduled for December 3rd.
• Reprimand issued in Region 6 for failure to follow public service directive.
• Reprimand issued in Region 4 for failure to follow an order to timely process workload.
• PII Release and Complaint to State Bar Association in Region 10 – MSPB charges seeking suspension for violations of PII and for a complaint being made about a representative to the State Bar. Suspension reduced to 5 days in a settlement of the charges.
• Sleeping on the job in Region 3 – ALJ reprimanded for sleeping between hearings and in his office.
• Reprimand issued in Region 3 for failing to follow procedures regarding the right to counsel in off-the-record discussions with non-represented claimants. The Judge was alleged to have spoken to the claimants in the waiting room, advising them that they had to get a lawyer and not proceed with their hearings; claimants complained.

Social Security Subcommittee schedules hearing (updated 11/17/09)
Congressman John S. Tanner (D-TN), Chairman, Subcommittee on Social Security of the Committee on Ways and Means, today announced a hearing on Clearing the Disability Claims Backlogs: The Social Security Administration’s Progress and New Challenges Arising From the Recession. The hearing will take place on Thursday, November 19, 2009 in Room B-318, Rayburn House Office Building, beginning at 1:30 p.m.

ALJ exam announcement posted here (updated 11/16/09)
The Members Page has download copies of the ALJ exam announcement, which is now closed and not otherwise available for viewing. FALJC members are urged to disseminate copies of the following documents to qualified attorneys interested in the announcement when it opens again, possibly within a few months (like last year). The application window appears to be one to two days whenever it opens so qualified applicants will need to have their responses done and ready to copy and paste when that happens. The pertinent documents include the exam overview, the qualifications & evaluations statement, and the “how to apply” section.

ALJ organization joint 2009 Pay raise letter (updated 11/12/09)
Attached is the proposed 2009 pay raise letter. President Davenport has asked executive committee members if there are any objections to his signing the letter on behalf of FALJC. If so, he wants to hear by COB November 18, 2009.

Applications for ALJ opening at Occupational Safety & Health Review Commission due by December 7 (updated 11/11/09)
The Occupational Safety & Health Review Commission’s job announcement for this Atlanta-based opening indicates an application period of November 9 to December 7.

ALJ exam announcement opens on November 9 and closes on November 10! (updated 11/11/09)
At 4 p.m. on November 9, OPM posted the Administrative Law Judge announcement on its website. It closed at 11:59 p.m. on November 10, as the 900th application was filed that day. The Members Page downloaded the application this time and will post it in the coming days in the Documents Library.

Supreme Court to decide NLRB quorum case (updated 11/5/09)
By Associated Press
Tuesday, November 3, 2009
The Supreme Court said Monday that it will decide whether two people can do the work of five when it comes to resolving labor-management disputes in the workplace. The National Labor Relations Board, which for decades has had the responsibility of policing similar disputes, has operated with two members — and three vacancies — for more than a year. The reason for this is that Democrats who retook control of Congress in 2006 objected to President George W. Bush’s labor policies and thus refused to confirm his nominees. But the two NLRB members still in place have continued to issue decisions, making about 400 in the past 16 months. Federal appeals courts have split on whether decisions made by two board members are legal. The U.S. Court of Appeals for the D.C. Circuit said an NLRB decision handed down last year was invalid because it was made by two members. The U.S. Court of Appeals for the 7th Circuit in Chicago took the opposite position. It ruled that a vote by the two members was appropriate and binding. The NLRB is an independent federal agency created by Congress in 1935. The case is New Process Steel v. NLRB.

FALJC President’s daughter amonng 43 newly appointed SSA judges (updated 11/5/09)
President Davenport announced at the last FALJC Executive Committee meeting that his oldest daughter, Katherine Elizabeth Davenport Wisz, is in the current class of 43 being trained in Falls Church. She did her undergraduate work at Haverford College in Pennsylvania and then went to the University of Kentucky Law School. She is married to David Wisz, a law school classmate, who practices in a litigation firm in Raleigh. They have triplets, Emmy, Jimmy and Woody. Kate has been assigned to the Lexington, Kentucky ODAR Office. Before being appointed, she was the Chief Deputy Clerk of the United States District Court in Raleigh. (The Members Page has overtures out to others in the new class and hopes to post similar details of other new judges as the come in.)

SSA putting its judges in an ethics bind? (updated 10/30/09)
SSA Chief Judge Cristaudo has issued a bulletin regarding the procedure for reporting suspected misconduct by claimant representatives. The bulletin directs that misconduct reports be submitted to a “hearing office management team,” but precludes the reporting of such misconduct by the judge to the applicable state bar licensing authorities. The management team is to forward such a report on to the Regional Chief Administrative Law Judge who is supposed to forward the matter on to the Regional Chief Counsel. The new rule may present an ethics predicament for judges, many of whom are required by their licensing authorities to report instances of attorney misconduct to the miscreant’s licensing authority.

President signs National Defense Authorization Act (updated 10/30/09)
On October 28, 2009, President Obama signed the fiscal 2010 National Defense Authorization Act, which mandates several workplace reforms. They include provisions: (1) allowing workers in the Federal Employees Retirement System to allocate unused sick leave toward their retirement, but phasing it in over a four-year period; (2) making it easier for agencies to rehire federal retirees, without forcing them to take a cut in their annuity checks; and (3) allowing employees who choose to work part time toward the end of their careers to use a higher salary figure to calculate how that work factors into their retirement benefits.

OPM to Announce Opening of Administrative Law Judge Exam (updated 10/29/09)
FOR IMMEDIATE RELEASE October 28, 2009
CONTACT: Mike Orenstein 202-606-2402 or michael.orenstein@opm.gov
Washington, D.C. — The U.S. Office of Personnel Management today announced it will open the Administrative Law Judge Examination to interested applicants in the near future by posting a notice on USAJOBS (www.usajobs.gov).
Due to the overwhelming volume of applications OPM expects to receive, the number of applications the agency will accept for processing will be determined on the basis of projected government-wide hiring needs. OPM will announce the limit at the time the examination opens to applicants. Completed applications will be accepted in the order they are received until 11:59 p.m. (EST) the day in which the limit has been reached.
Individuals who are interested in applying are urged to closely monitor the USAJOBS web site in the coming weeks. When OPM last opened the ALJ Examination in July 2008, it received its target of 600 completed applications within two days.
Administrative Law Judges serve as impartial arbiters at regulatory and benefits-granting agencies. As of March 2009, there were 1,422 Administrative Law Judges employed at 30 Federal agencies and sub-agencies.
The ALJ Examination involves a multi-part assessment of qualifications, including proof of specific legal experience and submission of a written Accomplishment Record. Individuals with higher scores on their Accomplishment Record will then take a written exam and participate in a structured interview. Applicants who complete the examination in its entirety will be given a final numerical rating (including points for Veterans’ Preference, as applicable). Their names will be entered into a register that will be used by agencies as hiring needs arise.

Personnel changes at USDA and NLRB (updated 10/28/09)
USDA Chief Administrative Law Judge Mark Hillson is retiring. No word yet as to who is replacing him. Also, Judge Arthur Amchan has been appointed Associate Chief Administrative Law Judge at the National Labor Relations Board.

Applications for ALJ opening at USDA due by November 13 (updated 10/27/09)
The U.S. Department of Agriculture’s job announcement for this Washington, DC-based position indicates that, in addition to a resume or OF-612, applicants will need to submit a supplemental statement addresing the desireable qualifications stated in the announcement. Applicants will also have structured interviews.

SSA to open new 14 new hearing offices and 3 satellite offices in 2010 (updated 10/26/09)
SSA projects the following new hearing offices and satellite offices, with tentative ALJ staffing and opening dates:
Akron, OH 12 ALJ’s June
Anchorage, AK 2 ALJ’s January
Auburn, WA 10 ALJ’s September
Covington, GA 9 ALJ’s May
Fayetteville, NC 9 ALJ’s June
Livonia, MI 10 ALJ’s June
Madison, WI 6 ALJ’s June
Mt. Pleasant,MI 12 ALJ’s July
Phoenix, AZ 8 ALJ’s June
St. Petersburg, FL 11 ALJ’s May
Tallahassee, FL 5 ALJ’s July
Toledo, OH 10 ALJ’s June
Topeka, KS 5 ALJ’s June
Valparaiso, IN 12 AlJ’s August
Boise, ID (S.O) 2 ALJ’s June
Fort Myers, FL (S.O.)3 ALJ’s March
Harlingen, TX (S.O.) 3 ALJ’s June

ABA prods Congress on the APA (updated 10/20/09)
At the FALJC Executive Committee meeting on October 16, Judge Daniel Solomon mentioned the following resolution recently adopted by the ABA’s House of Delegates:
AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
July 10 – 11, 2000
RESOLVED, That the American Bar Association urges Congress, when it considers enactment of legislation relating to new or existing programs that involve agency adjudications with an opportunity for a hearing, to consider and determine expressly within the relevant legislation whether the hearing should be subject to the requirements of the Administrative Procedure Act (APA) in 5 U.S.C. §§ 554, 556 and 557, including presiding officer protections, ex parte prohibitions, record-based decision-making, and other procedural safeguards.
FURTHER RESOLVED, That in determining the appropriateness of requiring a formal APA adjudication, Congress should consider the following factors:
1. Whether the adjudication is likely to involve substantial impact on personal liberties or freedom, orders that carry with them a finding of criminal-like culpability, imposition of sanctions with substantial economic effect on a party or interested person, or determination of discrimination under civil rights or analogous laws.
2. Whether the adjudication would be similar to, or the functional equivalent of, a current type of adjudication in which an administrative law judge presides.
3. Whether the adjudication would be one in which adjudicators ought to be lawyers. It is recognized that some proceedings might require participation by additional adjudicators with other types of specialized expertise.
FURTHER RESOLVED, That in order to preserve the uniformity of process and of qualifications of presiding officers contemplated by the APA, Congress should amend the APA to provide prospectively that, absent a statutory requirement to the contrary in any future legislation that creates the opportunity for a hearing in an adjudication, such a hearing shall be subject to 5 U.S.C. §§ 554, 556 and 557.

FALJC October legislative report (updated 10/16/09)
Attached is Judge Coffman’s October legislative report.

FALJC October 16, 2009 Executive Committee meeting and related documents (updated 10/16/09)
Attached is the draft agenda, the minutes of the May 15, 2009 and September 14, 2009 Executive Committee meetings, and the list of cases which will be covered by Judge Jerry Nelson during his remarks flowing the lunch. Please let me know if you have additional agenda items. The Legislative Committee Report was previously reported to you by Judge Coffman. If any of you failed to receive it, let me know and I will forward it to you. The Treasurer’s Report will be sent separately. A proposed Health Care Initiative letter has been drafted by Judge Glazer. For those wanting a copy in advance of the meeting on the 16th, if you will send me your personal email address, I will forward it. Otherwise copies will be available at the meeting.
Judge Peter Davenport

Legislative Developments (updated 10/9/09)
On October 8, 2009, the House of Representatives approved the fiscal 2010 Defense authorization conference commitee report containing several provisions affecting federal employees, most notably a provision permitting FERS employees to count their unused sick leave toward their retirement annuity, another eliminating the Defense Department’s pay-for-performance system, and another making it easier for agencies to rehire federal retirees without forcing them to take a cut in their annuity payment. The Senate is scheduled to vote on the bill next week and is expected to approve it.

FMC seeks to hire a second judge (updated 10/7/09)
The Federal Maritime Commission has decided to hire a second ALJ. The Recruitment Notice states that applications must be received no later than Friday, October 23, 2009.

ALJ Application Form (updated 10/8/09)
Recent applicants under the new ALJ examination implemented by OPM have provided FALJC with redacted portions of the application. One portion of the questionnaire seeks the applicant’s basic information and applicant’s accomplishment record, while the other contains the assessment/competency questions. Given the suspect mannner in which OPM administered the new exam and the inability of qualified attorneys to get a copy of the application ahead of time, FALJC members are strongly urged to pass along the form to interested attorneys and bar organizations so that they may be prepared for OPM’s next “race to the mail box.” In addition, the form will be posted on the public documents link on the FALJC home page, which is accessible to the public.

SSA Inspector General’s August 2009 Report (added 9/28/09)
The Social Security Administration’s Office of Inspector recently issued a report stating, in pertinent part: At the end of May 2009, over 750,000 hearings were pending in ODAR [Office of Disability Adjudication and Review], and the average processing time was 494 days. As outlined in its Fiscal Year (FY) 2008-2013 Strategic Plan, the Social Security Administration (SSA) plans to reduce the number of pending hearings to a desired level of 466,000 and the average processing time to 270 days by FY 2013. … The Acting Deputy Commissioner of SSA asked that we evaluate the impact of ODAR’s current MI and ODAR’s proposals on its ability to reduce the backlog to the desired pending level. … Regardless of whether the FY 2010 proposals are approved, it appears SSA will achieve the desired pending hearings level by FY 2013 based on the currently projected level of receipts.” Not evident from the report is the belief among budget experts that the official projections of receipts are wildly optimistic, as new claims for benefits are exploding at a pace that Social Security never anticipated. For a complete copy of the report, click here.

Two per cent raise (2.0%) across the board. Locality pay to be separately addressed at end of November (added 9/17/09)
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release August 31, 2009
TEXT OF A LETTER FROM THE PRESIDENT TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE PRESIDENT OF THE SENATE
August 31, 2009
Dear Madam Speaker: (Mr. President:)
I am transmitting an alternative plan for pay increases for civilian Federal employees covered by the General Schedule (GS)and certain other pay systems in January 2010. Under title 5, United States Code, civilian Federal employees covered by the GS and certain other pay systems would receive a two-part pay increase in January 2010: (1) a 2.4 percent across-the-board adjustment in scheduled rates of basic pay derived from Employment Cost Index data on changes in the wages and salaries of private industry workers, and (2) locality pay adjustments averaging 16.5 percent based on Bureau of Labor Statistics salary surveys of non-Federal employers in each locality pay area. According to the statutory formula, for Federal employees covered by the locality pay system, the overall average pay increase would be about 18.9 percent. This total Federal employee pay increase would cost about $22.6 billion in fiscal year 2010 alone. Title 5, United States Code, authorizes me to implement an alternative pay plan if I view the adjustments that would otherwise take effect as inappropriate due to “national emergency or serious economic conditions affecting the general welfare.” For the reasons described below, I have determined that it is appropriate to exercise my statutory alternative plan authority to set an alternative January 2010 across-the-board pay increase. If needed, I will provide a plan for locality pay rates by the statutory deadline of November 30. A national emergency, within the meaning of chapter 53 of title 5, has existed since September 11, 2001. Likewise, with unemployment at 9.5 percent in June to cite just one economic indicator, few would disagree that our country is facing serious economic conditions affecting the general welfare. The growth in Federal requirements is straining the Federal budget. Full statutory civilian pay increases costing $22.6 billion in 2010 alone would put even more stress on our budget. Such an increase would cost $19.9 billion more than the 2.0 percent overall Federal civilian pay increase that I proposed in my 2010 Budget and would build in later years. Accordingly, I have determined that under the authority of section 5303(b) of title 5, United States Code, an across-theboard increase of 2.0 percent shall go into effect on the first day of the first applicable pay period beginning on or after January 1, 2010. Finally, the law requires that I include in this report an assessment of the impact of my decision on the Government’s ability to recruit and retain well-qualified employees. I do not believe this decision will materially affect our ability to continue to attract and retain a quality Federal workforce. To the contrary, since any pay raise above the amount proposed in this alternative plan would likely be unfunded, agencies would have to absorb the additional cost and could have to reduce hiring to pay the higher rates. Moreover, the GS “quit” rate continues to be very low (2.1 percent on an annual basis), well below the overall average “quit” rate in private enterprise. Should the need arise, the Government has many compensation flexibilities, such as recruitment and retention incentives, and special salary rates, to maintain the high quality workforce that serves our Nation. Sincerely, BARACK OBAMA

Chart of judicial salaries since 1968 (added 9/17/09)
Click here to download the chart.

Insurable Interest Survivor Annuity (added 9/17/09)
Previously the Commissioner requested that I send a message to you soliciting your ideas regarding policies that could be extended to same sex partners. Many thanks to all of you who took the time to provide input. In reviewing your comments, it became clear that some of you are unaware that in certain circumstances a monthly survivor benefit may be elected at retirement for an individual other than a spouse. This applies to all employees, including employees wishing to provide a survivor benefit to a same sex partner. This communication provides information about the ability to elect an insurable interest survivor annuity.
What is an insurable interest annuity?
An insurable interest survivor annuity is a benefit that you may elect at retirement to be paid to a beneficiary upon your death. You may make this election only if you are deemed to be in good health by your medical doctor at the time of retirement, and you may only provide this benefit to someone who has an “insurable interest” in you. “Insurable interest” is an insurance term applying to a person who would benefit from you continuing to live.
An insurable interest is presumed to exist if you name as the beneficiary any of the following individuals:
a current spouse;
a blood or adopted relative closer than first cousin (e.g., parent, sibling, aunt, uncle, etc.);
a former spouse;
a person to whom you are engaged to be married; or
a person with whom you are living in a relationship that would constitute a common-law marriage in a state that recognizes common-law marriages.
You may also elect an individual who is not in one of the above relationships with you. However, this will require you to submit affidavits from one or more individuals having knowledge of the insurable interest relationship to your servicing personnel office along with your retirement application. The Office of Personnel Management certifies all Federal retirements and will make the final determination about eligibility. The affidavits should state: the relationship between you and the person named to receive the annuity; the extent to which the person named is dependent on you; and the reasons why the person named might reasonably expect to derive financial benefit from your continued life. Should you elect an insurable interest benefit, you are responsible for arranging and funding any medical examination required to prove that you are in good health. A report of the medical examination should be submitted with your retirement application. Also, the cost of the insurable interest survivor benefit is based on the difference in age between you and the designee; the younger the designee the more costly the benefit. For more information about electing an insurable interest survivor benefit, please contact your benefit liaison (http://ssahost.ba.ssa.gov/ope/CEB/benefitliaisons.html).
Reginald F. Wells, Deputy Commissioner for Human Resources

OPM creates office to oversee the Senior Executive Service (added 8/21/09)
President Davenport notes that the following development may open the door to FALJC’s long sought reestablishment of an ALJ office within OPM:
OPM creates office to oversee the Senior Executive Service
By Alex M. Parker aparker@govexec.com August 19, 2009
The Office of Personnel Management announced on Wednesday that it was creating a new office to oversee the Senior Executive Service, consolidating powers spread across multiple units to improve efficiency. Nancy Kichak, associate director for the human resources policy division at OPM, said the consolidation will result in one-stop shopping. “Instead of not knowing where to go to OPM, now you will come to this office, and the answers should all reside in one location,” she said. According to Kichak, the unit will focus on performance management for the SES, and on forums and executive groups that will share information about resource allocations and best practices. “It’s not new stuff, but it’s certainly an intensified focus,” she said. OPM plans to have this office up and running by the end of 2009, Kichak said. The SES — established in the 1978 Civil Service Reform Act to create an elite group of federal managers above the GS-15 level — recently has been criticized for a lack of diversity. In addition, the Government Accountability Office last year recommended improvements to the process of certifying performance-based SES pay systems. Legislation introduced in the House and Senate in June aims to boost diversity in the SES by creating the Senior Executive Service Resource Office, which would be responsible for promoting diversity throughout the top ranks in government. The new unit will manage the SES’ Qualifications Review Board, which sets the core qualifications for applicants, and it will coordinate outreach to organizations such as the Senior Executives Association and executive resource managers. It also will make recommendations on allocations of SES and senior-level positions, as well as the certification of appraisal systems and candidate development programs. “The establishment of a centralized SES office will increase the efficiency of our efforts to better serve federal agencies and build a world-class workforce,” OPM Director John Berry said. Kichak said the new office would be similar to the one proposed in the legislation, but would have a broader focus. “We’re about so much more,” she said. “Not only diversity, but we’re also about getting SESers the right training, making sure they have the right development opportunities and making sure that there’s an environment where they can be mentored.” OPM’s move won praise from managers and good government groups. “Our SES has been impeded by decentralized talent development and recruiting, a cumbersome and lengthy hiring process, and inadequate training programs,” said Max Stier, president and chief executive officer of the nonprofit Partnership for Public Service. “By creating an office designed to focus on these issues, OPM has taken an important step to reinvigorate the executive team that leads our government through presidential transitions and through a set of increasingly complex daily challenges.” Establishing the new office was one of many recommendations in a report to be presented on Thursday by the Partnership and consultancy Booz Allen Hamilton. The report, titled “Unrealized Vision: Reimagining the Senior Executive Service,” calls for the SES to be split into two groups — one of mobile managers who will move from agency to agency, and another of managers who will stay put in their respective agencies. In addition, the report calls for Congress to abolish the centralized Qualifications Review Board, which evaluates SES candidates, so OPM can take over that process. The report also advocates reforms to improve the focus and planning of the SES. “Our primary finding is that the Senior Executive Service as envisioned by reformers has fallen short of its promise,” the report states. “The original vision of the SES was never realized. More importantly, we find that the original vision itself is inadequate for today’s needs and does not provide the blueprint to build the kind of senior government leadership required for the future.” Carol Bonosaro, president of the Senior Executives Association, said OPM had a similar SES office, but it was dismantled during Bush administration reorganizations. “I think we have pretty clearly felt the need for a focal point in OPM to deal with policy and best practices in regard to the executive corps,” Bonosaro said. “There were times we felt like we were pushing a balloon to determine where it was most appropriate to address an issue within OPM.”

AALJ President Explains OPM Lawsuit (added 8/18/09)
Congress passed the Administrative Procedure Act (APA) to provide specific safeguards in the administrative decisional process of federal regulatory agencies. Not only does the APA regulate how agencies decide certain types of cases, but it also provides for the appointment of administrative law judges. Without the APA, we would not be administrative law judges. Indeed, non-judges would likely be sitting in our place. The AALJ has been a vigilant defender and enforcer of the APA. It is so important to us that we have included the obligation to defend and protect the APA in our constitution. The APA is as important to administrative law judges as the U.S Constitution is to our democracy. Unfortunately, Congress, when it enacted this important statute, failed to establish an enforcement procedure, other than through litigation.
Let me now attempt to provide a very brief summary and explanation of the lawsuit the AALJ filed against OPM. At the outset, please understand that the sole intention of the lawsuit was, and is, to protect, defend and enforce the APA. I do not know why, but there have been huge misstatements about the scope, purpose and intent of this lawsuit. Some SSA attorneys even have suggested that the lawsuit was to prevent government attorneys from being appointed. Nothing could be further from the truth. I am a long term government attorney and I can assure you that this law suit was not intended to limit or marginalize any attorney’s professional experience, but rather, our goal was to ensure that all are attorneys treated fairly in the application process.
To be sure, the lawsuit involves complex issues and facts. The complaint, answer and briefs combined, consumed over 500 pages. The complaint embodies four separate counts. There were three plaintiffs in this lawsuit: the AALJ; seven federal administrative law judges and three private attorneys. Let me now very briefly describe each count set forth in the complaint. Count I
In Count I, we alleged that the conduct by OPM in promulgating and enforcing a rule that requires sitting administrative law judges to maintain their respective bar memberships so that they are “duly licensed and authorized to practice law “was beyond the scope of their statutory authority. This rule was announced by OPM after a prior Acting Chief Judge at SSA issued, in good faith, a memorandum informing all ALJs that bar membership was not required. Our argument on this count was simply that Section 706 of the APA did not provide any authority for OPM to regulate ALJ post appointment conditions of employment regarding bar status. The action by OPM was clearly inconsistent with the APA and well beyond the authority Congress granted to OPM.
Count II
In Count II, we alleged that the Final Rule regarding bar membership violated the APA as it was arbitrary, capricious and not rational, and was thus, an abuse of discretion. The requirement that an administrative law judge must be duly licensed and authorized to practice law is not rationally related to the duties of an administrative law judge. Indeed nothing in the duties of an administrative law judge requires an ALJ to be authorized to practice law. In fact, ALJs are specifically prohibited from engaging in the practice of law. Moreover, one of OPMs stated reasons for active bar membership was so that a state bar would retain jurisdiction over ALJs ethical issues. On its face, this stated rationale is unsupportable as state bars retain such jurisdiction over judges who are not in active status, such as inactive status or judicial status.
Count III
In Count III, we alleged that OPM’s Rule Making under the Administrative Procedure Act was defective. In this regard, Section 553 of the APA mandates that agencies provide notice of a proposed rule setting forth either the terms or substance of the proposed rule or a description of the subjects and issues involved. Studies and data upon which an agency relies must also be included in the notice.
In its Final Rule, OPM asserted for the first time that the rule was “professionally developed, is supported by a job analysis, and is rationally related.” OPM further asserted that these reports were critical to its final decision on the rule. However, Section 553(b) &(c) of the APA requires OPM to submit these materials and data in its notice and to provide an opportunity for public comment. The satisfaction of this requirement is essential to provide the American public the opportunity for input into issues being considered by federal agencies BEFORE proposed rules become Final Rules. Public input is particularly important as these Final Rules have the full force and effect of law and all citizens become subject to their enforcement.
As the APA clearly prevents agencies from relying on studies and data that were not included in notice of rule making, the rulemaking process was defective. Count IV
In Count IV, we alleged that the establishment by OPM of the Vacancy Announcement and Notice of Examination for ALJ applications was arbitrary and capricious, and thus, violated the APA. Previously, the ALJ examination and vacancy announcement was based on a rule promulgated pursuant to the APA ,which required for notice and public comment. Without the benefit of public comment, OPM removed the notice and examination from rulemaking and made significant changes to the process behind closed doors and away from the scrutiny of the public. We argued that the newly implemented OPM system would be held hostage to the whims of OPM bureaucrats and subject to ad hoc, ungrounded unannounced changes in qualification standards and selection methodologies. Moreover, the OPM action eliminated vital checks designed to ensure that the system is transparent and fair to all applicants. In this regard, OPM did not find or make public any factual basis that demonstrates that a Notice based process was superior to a Rule based process. We also argued that OPMs advanced notice to government agencies and related organizations was unfair advanced notice which prevented some from applying as the ALJ register remained open for only a few days.
POST COMPLAINT ACTIVITY
After the third amended complaint was filed and after extensive discover, OPM filed a Motion for Summary Judgment. Shortly thereafter, the AALJ filed a Cross Motion for Summary Judgment.
After completion of discovery and several appearances by the parties before U.S. District Court Judge, Rosemary M. Collyer, OPM, in a move that certainly surprised the AALJ and its attorneys, withdrew all of its action which was subject to Counts I, II and III. Accordingly, Judge Collyer issued a Minute Order holding Counts I, II and III in abeyance. Thus, the only Count in the lengthy complaint that was subject to a Motion for Summary Judgment was Count IV.
Summary Judgment as to Count IV
In her decision date August 10, 2009, Judge Collyer granted OPM’s Motion for Summary Judgment. Therein, she held that all plaintiffs lacked standing to bring claims regarding the change in the qualification standard. In so holding, she noted that Article III of the U.S. Constitution requires plaintiffs to show an actual injury from the challenged Agency action. She concluded there was no such showing.
As to the allegation that OPM acted arbitrarily and capriciously by giving advance notice of the vacancy announcement to federal agencies, she concluded that plaintiffs AALJ and the seven individual ALJs did not have standing. On this issue of standing, she concluded there was no showing of the requisite injury. However, she concluded that the three private attorneys did have standing. On the merits of this issue, she concluded that the OPM notice to federal agencies was not Final Agency Action and therefore was not reviewable under the APA.
Although not alleged by the Plaintiffs, Judge Collyer further concluded that the numerical cutoff of applications was not arbitrary or capricious as OPM had previously surveyed federal agencies to determine future needs of ALJs and based the numerical cutoff on this survey. In her view, this approach by OPM was a rational one.
AALJ President Randy Frye

Claimant threatens hearing office but is not charged with possesion of illegal weapons (added 8/18/09)
From the Ledger-Enquirer of Columbus, Georgia:
Michael Eugene Hale, accused of threatening a Social Security employee on Aug. 5, had 10 weapons in his Midland home when federal authorities executed a search warrant, court records show. … Hale, who allegedly was upset about the denial of his disability claim, faces only an accusation of telling a Social Security employee that he would go into an office and kill everyone, an affidavit states. He faces no weapons charges.

Las Vegas Sun Article – August 16, 2009 (added 8/18/09)
Disabled? For benefits, apply, keep waiting – Social Security judges say jump in caseloads is overwhelming them
By Michael Mishak
The Social Security Administration is being slammed by a surge in disability and retirement claims that is threatening to shortchange applicants and cripple a system that, even before the downturn, was starved for resources. To cope with the growing tsunami, the agency is putting pressure on its ranks of administrative law judges, both here and nationally, to clear a massive backlog of disability appeals cases. But the union representing those judges says the hearing officers are overworked — and that some, under threat of disciplinary action, have been cutting procedural corners to hit the agency’s mandate of 500 to 700 cases a year. Since October, the number of people waiting to have a claim processed has jumped more than 30 percent, from about 556,000 to 736,000 last month. Although most of those initial claims will be denied, many will end up before an administrative law judge on appeal. Nearly 750,000 people are waiting for a hearing before overwhelmed judges.
“No one ever says, ‘do a sloppy job,’ ” said Marilyn Zahm, executive vice president of the Association of Administrative Law Judges. “But to pretend you can keep pumping out decision after decision and spend the requisite amount of time on each case is foolish. That’s shortchanging people, and the system will lack integrity if you do not require everyone to do a good job.” The disability program, available to people who can no longer work due to injury or illness, is the fastest growing segment of Social Security, with spending on benefits growing at almost twice the rate of retirement benefits. Officials attribute the surge in claims to newly unemployed workers who continued to work despite an injury and to Baby Boomers reaching their most injury-prone years.
Zahm, speaking on behalf of the judges, said they are being called to account by the Social Security Administration for their failure to meet a case threshold the union considers unreasonable. Some have been told to submit written plans on how they intend to reach the minimum of 500 cases, she said. Others have simply been told to hit the target, period. Social Security Commissioner Michael Astrue has said that 500 to 700 cases per judge is a reasonable standard, telling the Associated Press last month that some judges were “not holding their weight.” In a written response to a Sun query, the agency said more than half its administrative law judges meet the standard. An agency spokeswoman noted that Nevada judges exceed the mandate, deciding on average 547 cases per year. But the judges union insists the expectations are unrealistic — and that judges will feel the bind even more as new appeals cases roll in.
In some regions, Zahm said, agency officials have raised the threshold floor. “Corners are being cut in order to accommodate a backlog and at the end of the day everyone is going to suffer,” she said. “People have a right to expect due process … At a certain point, no more corners can be cut.” The fear, she said, is that legitimate claims may be rejected or fraudulent claims accepted in the rush to do business. Indeed, the pressure and disciplinary threats have caused some judges to take shortcuts, Zahm said. “Hearings are being shortened, not all information in the file is being reviewed, not all medical reports are being obtained, and full and legally defensible decisions may not be rendered, either because due consideration hasn’t been given or the decision is poorly written,” she said. “When people have too much work to do in the amount of time allotted to do it, you get sloppy work.” In a report on the disability case backlog, the judges union warned against increasing a judge’s workload, noting the estimated cost of each case to the Social Security Trust Fund: $250,000, including Medicare costs. “Disability hearings deal with the lives of real people, not inanimate objects on an assembly line,” the report said. “Each case deserves adequate time and attention.”
In Nevada, the number of disability claims has jumped 23.2 percent this year, from about 15,100 last year to more that 18,600 in July. The number of people appealing rejected claims has increased 33.5 percent, from about 3,400 to more than 4,500. More than 2,200 people here are waiting for a hearing. On average, it takes the state nearly three months to process an initial disability claim. And although that measure has improved this year, the progress may not last. Nevada is one of roughly a dozen states requiring furloughs for state employees who process claims. The average age of cases here, from claim to final ruling, is nearly 16 months — slightly better than the national average.
Cases go to other states To improve service in Nevada, the Social Security Administration says it has transferred about 1,000 Las Vegas cases since March to hearing offices in other states “that have the capacity to handle them.” The agency plans to hire three more judges for Nevada next year, doubling the number of administrative law judges here. Although welcoming additional hires, the union says it wants systemic changes. Among its recommendations: allowing government attorneys and claimants to discuss — and possibly resolve — cases before they reach the hearing level. Today, judges are independent arbiters who are responsible for much of a case’s fact-finding. Nationally, agency officials estimate they’ll receive 3.3 million new disability claims over the next year. Congress has boosted the Social Security Administration’s budget and the economic stimulus package gave the agency $500 million to help cut the appeals backlog.
Kathryn Olson, staff director for the House Ways and Means Subcommittee on Social Security, told judges at a recent forum organized by their union, “You just need the money to properly administer the program. Too much pressure to crank out cases really does undermine the integrity of the process.” Commissioner Astrue has pledged to cut the backlog to normal levels by 2013.

Court dismisses AALJ’s cause of action regarding new ALJ qualification standard (added 8/11/09)
District Court Judge Rosemary Collyer has dismissed Count IV of the AALJ’s third amended complaint. Count IV dealt with the OPM’s imposition of a new qualification standard, OPM’s advance notice to certain federal agencies of the ALJ exam’s issuance, and OPM’s arbitrary numerical cutoff of ALJ applications. Counts I, II and III survive.

SSA Inspector General to audit 9 hearing offices (added 8/10/09)
The Social Security Administration’s Inspector General will begin auditing nine ODAR Hearing Offices in August to “identify factors that affect the performance of offices whose disposition rates are below national average for fiscal year 2009 as of May.” The offices subject to the audit are: New Haven, CT, Queens, NY, Washington, DC, Tampa, FL, Columbus, OH, New Orleans, LA, Springfield, MO, Fargo, ND and Oakland, CA.

Senate confirms FLRA General Counsel (added 8/10/09)
On August 7, 2009, the United States Senate confirmed the appointment of Julie Atkins Clark as General Counsel of the FLRA. After her confirmation, Ms. Clark resigned her position as General Counsel of the IFPTE and will report to the FLRA within a week. The position of General Counsel at the FLRA is vital because that office is responsible for the filing of complaints alleging unfair labor practices within the federal employee-employer relationship.

Lefkow addresses judge safety at Bar Association convention (added 8/10/09)
This program was put on by the National Conference of the Administrative Judiciary, Judicial Division, American Bar Association at the 2009 A.B.A. Annual Meeting in Chicago, IL:
August 1, 2009
BY ABDON M. PALLASCH Political Reporter
Four years after her husband and mother were killed by a disgruntled litigant, U.S. District Judge Joan Lefkow told fellow judges today she constantly thinks about what she could have done differently.“I’ve gone over in my mind so many times what I could have done,” Lefkow said. “If there had been a home security system, that would have been the best thing,” she told judges gathered at The Drake hotel for the American Bar Association’s annual convention. Lefkow testified before Congress with then-U.S. Sen. Barack Obama to secure funding for a program that offered free home security systems for judges. But some judges don’t want it, said Delaware Supreme Court Judge Henry duPont Ridgely. Of the 2,200 federal judges, 1,529 have taken up the government on its offer, said Michael Prout of the U.S. Marshall Service. “Many judges that I know have the attitude that ‘If somebody’s gonna get me, somebody’s gonna get me,’ ” Ridgely said. Turning to Prout, he asked, “How can we persuade them?” More judge-to-judge conversations between the reluctant ones and judges like Lefkow, Prout said. Watching a video Prout has made with suggestions for judges to keep themselves safer, Lefkow said she doesn’t need to worry about a security system any more or trimming her bushes so potential attackers have nowhere to hide. “Now I live in a high-rise with 24-hour security and valet parking,” Lefkow said. “It’s a whole different lifestyle. I felt I had to sell my house. I don’t like to live like I’m under siege.” Ironically, shortly before Bart Ross broke into Lefkow’s home and killed her husband and mother, Lefkow and her husband talked about getting a home security system because of a white supremacist who was appearing before her in court. “We were told it would cost several thousand dollars,’’ she said. “We had a three-story house, we had four kids and didn’t have any dollar to put anywhere.” But now, Prout said, security systems can be purchased for much cheaper. A white supremacist blogger who had previously posted hostile blogs against Lefkow was arrested this summer for threatening three federal appellate judges in Chicago who upheld the city of Chicago’s ban on handguns. Immediately after Ross killed Lefkow’s family members in 2005, the blogger, Hal Turner, posted a sign next to her name that said, “Gotcha.” Ross was unhappy with the way Lefkow and other judges handled a lawsuit he filed against his doctor. He committed suicide after the murders.

Going part time into retirement (added 8/7/09)
Mike Causey’s August 5 article on part time legislation in the works in Congress: For a lot of people who have been working a long time, the thought of going cold turkey into retirement can be intimidating. Even scary. Financial planners, when they do pre-retirement counseling for a married couple, are fond of telling the wife that after retirement she will have “half the income and twice the husband.” It is a sobering thought indeed! As they approach retirement, many people say they want to do it. But gradually. Maybe by scaling back to two or three days a week or otherwise working less than a 40 hour week. The problem of going part-time, for many working feds, is that it would cost them a lot of money in future retirement benefits. Unless… One of the less controversial pro-fed perqs Congress will take up next month would, if approved, permit working feds who are under the Civil Service Retirement System to phase into retirement by working part-time. Under current rules folks under the CSRS plan, about 20 percent of the federal workforce, who go part-time in their high-3 average salary period often take a big pension hit. Their annuities are based on their high-3 year average salary and going part-time can drag that down. But the House version of the Defense Authorization bill would correct a congressional oversight (from the mid-1980s) by allowing CSRS people who go part time to have their high-3 based on their “deemed full-time” salary, rather than their actual (reduced pay) salary for working part-time. Under the House proposal (which is not in the Senate version of the Defense bill) an employee earning $80,000 a year working full-time, who went to making $40,000 part-time, would have his/her high-3 based on the higher, “deemed full-time rate” salary of $80,000. Backers say the proposed change, which is really to correct an error Congress made years ago, would be a win-win for the government. They note that 60 percent of the workforce will be eligible to retire in the next 10 years. They say that letting the been-there-done-that CSRS workers phase out by going part-time would give them more time to work with newcomers. That, they say, would make for a smoother transition.

Recent Social Security Developments (added 7/31/09)
75 new SSA judges completed training in Falls Church, VA on July 31 and will report to their assigned hearing offices on August 3. An additional 70 newly hired judges will begin training in Falls Church.
We have also learned that SSA’s Senior Judge Program is still in operation and that SSA’s Office of Chief Administrative Law Judges most recently requested a list of qualified Senior Judges on July 8. This is an excellent opportunity for ALJs retired ALJs and soon-to-retire ALJs with current or past SSA experience.
In other news, the Associated Press reports that Social Security is expecting a wave of disability claims in coming months. The agency now expects 3.3 million new disability claims in the next year, an estimate that went up from 3 million in just the last five months. The number of people awaiting an initial determination on a disability claim has gone up from 556,000 to 736,000 over the last eight months.
Lastly, we received a copy of an email being circulated among SSA judges regarding the feasibility of insurance coverage for liability and litigation risks faced by ALJs as the result of alleged misconduct. Pertinent excerpts follow:
To All: Over the past few months I have talked to a number of you about the value of buying liability insurance. I have been amazed at the general lack of interest in the subject given the Administration’s aggressive stance with regard to discipline.
The recent Long case just shows how ridiculous these charges can be. Bill told me today of a judge who is getting five days off for failing to feed parking meters even though he has in his possession a letter from his City prosecutor saying the he (as a judge) does not need to pay the parking fees (there was some negative publicity).
The point is that without insurance you have to defend yourself unless of course you are stupid enough to try to defend yourself. Remember Abe Lincoln’s saying, “A lawyer who represents himself (herself) has a fool for a client.”
The cost of a defense before the MSPB as Bill notes is $30,000-$50,000. So just by filing charges the Administration imposes a $30,000-$50,000 fine on you – not to mention all the family stress and problems it will cause. Some of you may be thinking that if I just do what management wants or avoid controversy I won’t have problems. The problem is that might affect your judicial independence. You start thinking even without someone saying anything to you that handling case in a way you know is right is too controversial and thus should be avoided. Additionally this is a very naïve way of looking at things. My experience is that the fickle finger of fate tends to hit the unprepared and the unwary. For example, how many of you have:
1. Left your computer unlocked when you left the office;
2. Inadvertently taken PII home with you in your briefcase;
3. Know that you have exactly one hour to report the loss of PII even if on a weekend;
4. Know the phone number you have to call within one hour if you lose PII on the weekend;
5. How many of you have ever argued vociferously with a neighbor, spouse, child, or someone at one of your hearings;
6. Contemplated filing bankruptcy;
7. Received a debt collection letter;
8. Had an insufficient funds check;
9. Used an obscene word in the office.
The list goes on. Judges are extremely vulnerable to attack. Long is going to appeal his case, but at great risk to himself and at his own expense. The insurance is slightly more than $300 per year. What a bargain. I believe that if management starts encountering judges who have the insurance, they will instinctively back off. The wolves only attack the weak and the slow.

Recent MSPB decision authorizes SSA to remove ALJ (added 7/30/09)
There was a new decision this week on ALJ removal. The Social Security Administration filed a complaint against Administrative Law Judge London Steverson before the MSPB. The complaint included four charges: Conduct Unbecoming an ALJ (using office letterhead and the title “United States Administrative Law Judge” for personal correspondence); Misuse of Government Equipment (storing sexually oriented material on his government-issued computer and using that government computer to support a private business); Lack of Candor (providing misleading and incomplete responses when questioned about the allegations): and Failure to Follow Agency Policy. The presiding ALJ dismissed the charge of Lack of Candor and recommended a 35-day suspension on the other charges. The agency petitioned the Board for review. In a July 27, 2009 decision, the MSPB found that the ALJ erred in dismissing the charge of Lack of Candor and authorized the petitioner to remove Judge Steverson from his position as an ALJ for good cause shown. The Board’s decision can be found at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=431137&version=432199&application=ACROBAT.
Judge Ken Krantz

Executive Committee votes to send letter to Congress supporting Domestic Partnership legislation (added 7/28/09)
The FALJC Executive Committee has, by a vote of 8 in favor and 7 opposed, endorsed the proposed bill pending before Congress to give the domestic partners of Federal employees the same benefits as married Federal employees. A related motion to table the vote and defer it until the September FALJC Conference was defeated by a vote of 11 to 7. Pursuant to the resolution, President Davenport will send a letter to Speaker Pelosi and Majority Leader Reid urging passage of the Domestic Partnership Benefits and Obligations Act of 2009, H.R. 2517, S. 1102. The letter states, in pertinent part:

We write in support of the Domestic Partnership Benefits and Obligations Act of 2009, H.R. 2517, S. 1102. Currently, the bill has 110 House co-sponsors and 24 Senate co-sponsors. On June 17, 2009, President Obama announced his strong support of this legislation and urged Congress to pass the measure promptly for his signature.
Under the Act, federal employees who have same-sex domestic partners will be entitled to the same employment benefits that are available to married federal employees and their spouses. Federal employees and their domestic partners will also be subject to the same employment-related obligations that are imposed on married employees and their spouses. To receive benefits, employees would have to submit an affidavit of eligibility for benefits with the Office of Personnel Management, certifying that the employee and domestic partner meet necessary criteria as is provided in the Act.
Workplace benefits, such as health insurance and retirement savings, are a significant portion of federal employee compensation. Although the federal government — our nation’s largest civilian employer — offers attractive family benefits to married heterosexual employees and their families, it does not offer the same benefits to the partners and families of gay and lesbian workers. As a result, these employees do not receive equal compensation for their equal contributions, and the government cannot keep pace with leading private-sector employers, including the vast majority of the country’s leading law firms, in recruiting and retaining top legal and executive talent.
The Act would bring employment practices in the federal government in line with those of America’s largest and most successful corporations. Four out of five Fortune 100 companies provide domestic partner benefits to their employees. In addition, 16 states and over 200 local governments offer their public employees domestic partnership benefits. Three-quarters of the nation’s 200 largest law firms extend these benefits to their gay and lesbian employees. In addition, recent national surveys show that almost two-thirds of American adults favor the extension of health insurance coverage to same-sex partners.
FALJC’s members are responsible for issuing important and impartial administrative decisions that impact the lives of ordinary Americans. Equality in the workplace, including the basic concept of equal pay for equal work, demands swift passage of this long overdue legislation.
As of this writing, H.R. 2517 is currently before the House Oversight and Government Reform, House Administration, and House Judiciary Committees. S. 1102 is currently before the Senate Homeland Security and Governmental Affairs committee. We ask that you exercise your leadership on this important issue of fundamental fairness and bring this Act to the floor for final passage with all deliberate speed so that President Obama may keep his promise to achieve equity and fairness for all federal employees, including gay and lesbian FALJC members who serve proudly as ALJs for the people of the United States.
Thank you for your time and consideration.
Very truly yours, Judge Peter M. Davenport, President, THE FEDERAL ADMINISTRATIVE LAW JUDGES CONFERENCE

ABA urges Congress to pass H.R. 2850 (added 7/28/09)
The American Bar Association has sent a letter to Congressman Stephen Lynch, Chairman of the House’s Federal Workforce Subcommittee, urging passage of the “Administrative Law Judges Retirement Act of 2009,” introduced by Representative Dennis Kucinich and referred to his Subcommittee on June 26, 2009. This legislation would provide for enhanced retirement benefits for administrative law judges.

Interesting Cornell Law Review article on ALJ bias in SSA hearings (added 7/27/09)
The Cornell Law Review has published an interesting article entitled “General Bias and Administrative Law Judges: Is there a remedy for Social Security disability claimants.”

Newest FALJC Executive Committee members (added 7/27/09)
Chief Judge William Fowler (NTSB)
Judge Alexander Fernandez (HUD)
Judge Charles Bullock (ITC)

House passes 2 percent pay raise (added 7/20/09)
From GovExec.Com, by Alyssa Rosenberg, July 17, 2009: The House passed legislation that includes a 2 percent pay raise for federal employees late on Thursday evening. The raise, included in the fiscal 2010 financial services appropriations bill, is only one of a number of competing pay raise proposals advancing in House and Senate appropriations bills. The Senate Appropriations Committee backed a 2.9 percent raise for civilian employees in 2010 in its version of the financial services appropriations bill on July 8. The House and Senate Armed Services Committees have included a 3.4 percent raise for members of the armed services in their versions of the fiscal 2010 Defense authorization act. Both the House and Senate budget resolutions included resolutions supporting the principle of parity in pay increases for civil servants and members of the military. President Obama proposed a 2 percent raise for civilians and a 2.9 percent boost for service members in February. Darryl Perkinson, president of the Federal Managers Association, said he was hopeful that the Senate’s proposed raise would prevail in negotiations between the two chambers. “Given the state of the economy and unemployment levels in the private sector, we are grateful Congress is considering a pay raise for federal employees this year,” Perkinson said. But he said he was disappointed that the House was moving away from the precedent of preserving pay parity. Other leaders of federal employee groups have echoed Perkinson’s comments in recent weeks. Colleen Kelley, president of the National Treasury Employees Union, said last week that she thought it was unlikely that Congress would pass equivalent raises for civilians and service members this year.

House Ways and Means Committee letter to Astrue re “Management Tango.” (added 7/20/09)
The House Ways and Means Subcommittee on Social Security has sent a letter to Social Security Administration Commissioner Astrue asking him to explain the costs and justifications for a huge retreat for 700 managers at an Arizona resort and its purchase of video-conferencing units for hearing offices. The focus on SSA apparently arose as the result of recent ABC News coverage.

SSA’s San Diego hearing office spat goes public (added 7/20/09)
Social Security judges sought chief’s ouster
By Greg Moran, Union-Tribune Staff Writer, July 20, 2009
From their nondescript eighth-floor offices in Golden Eagle Plaza downtown, nine administrative law judges of the Social Security Administration work in near-total anonymity. A roster of the judges is hard to find. The hearings they hold are closed to the public. Even calling them is difficult, because their names aren’t accessible via the automated phone system at the office, formally known as the San Diego Office of Disability Adjudication and Review, or ODAR. Despite the obscurity, the judges wield an impressive amount of power. Each year they conduct thousands of hearings and issue opinions on individual claims for Social Security benefits – such as retirement, disability and Supplemental Security Income – that the agency initially denied. But behind the placid scenes of this little-known court system, a quiet revolt has been simmering for months. One day in November, eight of the judges took the extraordinary step of signing a petition demanding the removal of the longtime chief judge of the San Diego office, Edward D. Steinman. The confidential petition, which was sent anonymously to The San Diego Union-Tribune, said Steinman “has lost the trust and confidence of every judge in San Diego ODAR.” It said “(he) lacks the professionalism, interpersonal skills and managerial competence” needed in the position. All of the judges appended memos spelling out, in varying degrees, their problems with Steinman. One judge described the office as “dysfunctional” and not as productive in terms of processing cases as it should be. Despite the united front, Steinman remains the court’s chief judge. The petition was sent to the chief administrative law judge in Washington, D.C., who oversees all 1,200 judges in the Social Security legal system spread across 141 offices around the country. Two investigators sent from Washington interviewed several of the ODAR judges earlier this year, one judge in the San Diego office said. The judge would speak only if he were allowed to remain anonymous because judges are not allowed to speak to the media. Weeks later, two other officials announced the results. “They decided the chief judge would stay and there was no rationale for removing him,” the judge said. Steinman, who has led the San Diego office for two decades, declined requests for comment last week. JoAnn Anderson, the acting regional chief judge in San Francisco who oversees San Diego and 19 other offices in California, Nevada and Arizona, said she could not comment extensively because the issue is a personnel matter. Anderson said complaints from employees are taken seriously, but she declined to say exactly what was done in this case. “Obviously, (Steinman) is still in his position after our inquiry and review,” she said. Asked if she was satisfied with the performance of the San Diego office, Anderson said, “We believe there are some improvements we can make in the San Diego operations, and we are working on that. That includes working with everyone down there.” She declined to be specific. that can reach into six figures. Judges weigh hundreds of cases each year. * * * * In the litany of complaints, Steinman is blamed for low morale, poor communication and a high-handed management style, among other things. Some of the judges also contended in their memos that the staff has dwindled by about one-third. “Judge Steinman’s failure of leadership is signally responsible for the exodus of support staff from this office and he is still driving them away,” wrote Judge Peter J. Valentino. He did not respond to phone messages seeking comment. The staff is responsible for preparing the often voluminous cases the judges have to decide. Low staffing means fewer cases are ready for hearing. Judge Leland Spencer wrote that he had asked for as many as 60 cases to be readied each month, but instead he gets between 25 and 35. The backlog of disability claims at the Social Security Administration around the country is enormous and growing. A report by the Social Security inspector general in April 2008 said there were 755,000 cases nationwide awaiting hearings. Data in that report seem to give support to the productivity complaints of the judges. In the fiscal years 2005, 2006 and 2007, the number of case dispositions per judge in San Diego lagged the national average. In 2005, the average case disposition per judge in San Diego was 359, while nationally it was 421. The next year, San Diego judges averaged 438 compared with 459 nationally. In 2007, the breakdown was 344 in San Diego and 474 nationally. In each of those years, San Diego was well in the lower half of all offices. Lawyers who appear regularly at the hearings were not surprised. “They’re not the worst but not the best, either,” said one longtime lawyer, who did not want to be named because he has cases pending before the judges. Clients can get frustrated with the wait, the lawyer said. “It’s a combination of poor management style and the lack of production from the judges.” The average number of days it takes for a disposition in a case has slowly increased each year from 2005, rising from 384 days to 522 in 2007, statistics show. Productivity of individual judges varied, according to a database compiled last year by The Oregonian newspaper in Portland, Ore., of all Social Security judges in the country. In San Diego, Steinman pumped out more dispositions between 2005 and 2008 than any other judge in the office. In their memos, some judges complained that this is so because of Steinman’s position. Judge David Wurzel wrote that Steinman “put himself first by commandeering support staff for his own use. He takes the best clerks and writers for himself, and manipulates assignment of cases to enhance his own numbers. That enhances his own productivity but lessens the overall productivity of the office.”

Senate committee endorses 2.9 percent federal pay raise (added 7/13/09)
The Senate Appropriations Committee on Thursday approved a 2.9 percent pay increase for federal civilian employees in fiscal 2010, a bigger raise than that approved by the House spending panel earlier this week. Sen. Richard Durbin, D-Ill., chairman of the Senate Financial Services and General Government Appropriations Subcommittee, advanced the proposal on Wednesday to the full panel as part of the financial services spending package. The House Appropriations Committee approved a 2 percent civilian pay raise for next year, the same figure recommended by President Obama in his fiscal 2010 budget proposal. President Obama has said that he proposed the 2 percent raise for civilians in response to the economic climate and as a way to match federal pay practices with those of the private sector. The discrepancy between the House and Senate panels on the amount of the pay raise sets the stage for conflict if it’s not resolved before each chamber votes on its final version of the financial services spending bill. There are other federal pay proposals floating around as well, including the House and Senate budget resolutions, both of which call for parity between civilian and military pay raises. And the fiscal 2010 Defense authorization bill includes a 3.4 percent pay raise for service members. Supporters of pay parity have indicated that they would push for appropriators to match that figure for civilians. Colleen Kelley, president of the National Treasury Employees Union, applauded the Senate committee’s figure but said NTEU still would seek pay parity. “NTEU welcomes approval by the Senate Appropriations Committee of a 2.9 percent pay raise for civilian federal employees in 2010,” said Kelley in a statement released on Thursday. “NTEU will work to include at least the 2.9 percent in the final Financial Services and General Government Appropriations Act for fiscal 2010.” (http://www.govexec.com/story_page.cfm?articleid=43138&sid=2)

White House announces three NLRB nominations (added 7/13/09)
NLRB BULLETIN, Division of Information Washington, D.C., July 10, 2009
WHITE HOUSE ANNOUNCES THREE NLRB NOMINATIONS
Late in the day on July 9, 2009, the White House announced that it had sent to the Senate the nominations of Craig Becker, Mark Gaston Pearce, and Brian Hayes to be members of the National Labor Relations Board. If confirmed by the Senate, the Board would have a full complement of five members for the first time since December 16, 2007. The sitting members are Chairman Wilma B. Liebman and Member Peter C. Schaumber. Earlier, on April 24, 2009, President Obama had announced his intention to nominate labor law attorneys Craig Becker and Mark Gaston Pearce for the two vacant Democratic seats on the Board [see Bulletin]. The intent to nominate Mr. Hayes to fill the vacant Republican seat was announced yesterday shortly before the nominations were sent to the Senate. Mr. Hayes currently serves as the Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP). Mr. Hayes’s term would expire on December 16, 2012. Mr. Pearce, in private practice with a Buffalo, NY law firm, would have a term ending August 27, 2013. Mr. Becker, Associate General Counsel of the Service Employees International Union and the AFL-CIO, would have a term ending December 16, 2014. Chairman Liebman’s term expires on August 27, 2011, and Member Schaumber’s term ends August 27, 2010. By tradition, three of the five Board seats are filled by individuals of the same political party as the President in office. The White House statement summarized as follows Mr. Hayes’ background prior to his present position on the Senate committee: Previously, Mr. Hayes was in private legal practice for over twenty-five years. His practice was devoted exclusively to representing management clients in all aspects of labor and employment law. He has represented employers in scores of cases before the National Labor Relations Board, the Equal Employment Opportunity Commission, and various state fair employment practice agencies. He has served as chief trial counsel in the full range of employment claims in both state and Federal courts. Mr. Hayes has extensive experience in negotiating labor contracts on behalf of management clients, as well as representing clients in arbitrations, mediations and other forms of alternative dispute resolution. He has argued a number of significant labor cases before the Federal Courts of Appeal; and regularly counseled clients regarding compliance with the full range of state and Federal labor laws including OSHA, FMLA, Title VII and the Fair Labor Standards Act. Before entering private practice, Mr. Hayes clerked for the Chief Judge of the National Labor Relations Board and thereafter served as Counsel to the Chairman of the NLRB. In addition to his private practice Mr. Hayes was a member of the adjunct faculty at Western New England Law School where he taught classes in Labor Law, Collective-Bargaining, Arbitration and Employment Litigation. He is a member of the Massachusetts and District of Columbia bars, and the American Bar Association and its Labor and Employment Law Section. Mr. Hayes earned his undergraduate degree from Boston College and his law degree from Georgetown University Law Center.

Newly-elected AALJ President Randy Frye’s first report (added 7/1/09)
June 29, 2009
Wednesday was a bittersweet day. It was the day I assumed the office of President of the AALJ, a position in which I am honored to serve. However, it was also the first day without the Honorable Ronald Bernoski at the helm, a bitter thought for me. My first contact with Ron occurred about ten years ago when he called to ask me to become the first Grievance Chair of the AALJ. Of course I accepted and we have worked very closely on AALJ issues every since. He was an extremely competent leader who worked endlessly on behalf of the administrative judiciary. His expected retirement date is December. Fortunately, he has agreed to continue to work on our legislative issues until retirement. At our regular National Executive Board meeting this past week, the NEB elected (this election was necessary to cure a procedural defect in a previous election) Judge Marilyn Zahm, Region 2 Vice-President from Buffalo, to the position of Executive Vice-President. Prior to her appointment, Judge Zahm worked as an attorney with the National Labor Relations Board and Legal Aid. Her litigation skills acquired in these positions has inured to the benefit of the AALJ as she has served as AALJ counsel in numerous arbitrations as well as cases before the MSPB. The AALJ is most fortunate to have Judge Zahm in a leadership position. At the same meeting, the NEB confirmed my appointment of Judge Linda Stagno to succeed Judge Zahm as Region 2 Vice-President. Judge Stago is in the Brooklyn Office and has previously served the AALJ as a litigator and LAR. We are fortunate to have Judge Stagno as a Regional Vice-President.

House sounds death knell for Pentagon pay-for-performance system (added 7/1/09)
By Kellie Lunney klunney@govexec.com June 25, 2009
The House on Thursday overwhelmingly passed the fiscal 2010 Defense authorization bill containing an amendment that guts the Pentagon’s controversial pay-for-performance system.
The provision, passed last week by the House Armed Services Committee, requires the Pentagon to demonstrate whether its National Security Personnel System can be reformed or prepare to dismantle it within one year. It also prohibits new jobs from being classified under NSPS.
In a statement of administration policy, the White House called the amendment “premature,” because the Defense Department and Office of Personnel Management already are reviewing the pay-for-performance system to determine its future. The panel will issue its recommendations to the Defense Business Board this summer, to be followed by a report to Defense in the fall.
In a statement introducing the amendment last week, Rep. Carol Shea-Porter, D-N.H., said it was intended to ensure Congress could address the results of the review expediently: “Without this language, we would not be able to act until fiscal 2011 and the serious problems would linger unresolved for yet another long year. Our dedicated federal workers deserve better than that.”
The Pentagon in March stopped moving new job titles under the NSPS umbrella pending the results of the assessment. But the amendment goes a step further by blocking Defense from hiring people after June 16 for positions already classified as part of NSPS. This is of particular concern, the White House said, because it “will cause significant, undue disruption to organizations currently operating under NSPS.”
The fiscal 2010 Defense authorization bill also prohibits new positions to be converted to the Defense Civilian Intelligence Personnel System and requires its elimination.
Separately, House lawmakers also approved a 3.4 percent pay raise for military members as part of the authorization bill. That figure is 0.5 percentage points higher than the 2.9 percent 2010 pay hike President Obama requested for the military in his February budget proposal.
The House also rolled H.R. 2990 into the authorization bill. H.R. 2990 includes a provision that would let workers in the Federal Employees Retirement System count unused sick leave toward their pensions. Additionally, it contains language making it easier to rehire federal retirees part time; modifying how the Civil Service Retirement System calculates annuity payments for employees who retire as part-time workers; moving federal employees in Alaska, Hawaii and U.S. territories from cost-of-living adjustments into the locality pay system; and permitting FERS workers to redeposit retirement funds, including interest, collected after leaving government upon returning for a second round of service.
The Senate hopes to wrap up its work on the Defense authorization bill before the August recess.

Stress and burnout found among nation’s immigration judges (added 7/1/09)
By Stuart L. Lustig, MD, MPH
A new study finds that many immigration judges adjudicating cases of asylum seekers are suffering from significant symptoms of secondary traumatic stress and job burnout, which, according to the researchers, may shape their judicial decision-making processes.
The findings appear in “Inside the Judges’ Chambers: Narrative Responses from the National Association of Immigration Judges Stress and Burnout Survey” which will be published June 26, 2009 as part of the fall 2008 (cq) edition of the Georgetown Immigration Law Journal. The study is available online at https://articleworks.cadmus.com/geolaw/zs900109.html.
The study is the first to employ traditional psychological testing instruments to measure stress levels in immigration judges. The researchers found, through a quantitative data analysis of the 96 immigration judges who responded to a survey, that the judges’ burnout levels were higher than those suffered by hospital physicians and prison wardens.
The study is unique, the researchers said, because its findings include direct quotes from the judges themselves. Immigration judges are prohibited from speaking with outsiders about their work without Department of Justice permission, so their candid comments on their working conditions have not been captured before. The survey subjects’ comments provide graphic and specific illustrations of the intense level of stress and burnout under which they are working, the authors said.
The study notes that mental health clinicians have been interested in the occupational effects among those who work with trauma victims, such as immigration judges, since some victims, including asylum seekers, suffer from post-traumatic stress disorder (PTSD). The researchers note that the occupational hazards of the immigration judges may include “compassion fatigue” and “secondary traumatic stress” (STS). Sufferers of STS may manifest physical symptoms as significant and frequent as victims of trauma themselves do.
“Symptoms of trauma are specific and identifiable,” said the study’s lead author Stuart Lustig, MD, MPH, assistant clinical professor of psychiatry at UCSF. “People who experience vicarious trauma may manifest the same symptoms as a sufferer of PTSD.” These include “intrusion,” experiencing the original trauma through apparent flashbacks and nightmares; “avoidance,” shunning activities, places, or people that remind them of the trauma; and “arousal,” physiological symptoms such as being overly vigilant, jumpy or easily startled—or just the opposite, becoming numb and shutting down, he said.
The survey given to the immigration judges included psychological testing tools called the Secondary Traumatic Stress Scale (STSS) and the Copenhagen Burnout Inventory (CBI). The survey respondents indicated that they experienced significant symptoms of secondary traumatic stress on the STSS, scoring means of 2.0, 2.3, and 2.4 out of 5 on subscales for intrusion, avoidance, and arousal symptoms respectively. Female judges were overall more symptomatic than their male counterparts, with women scoring 2.50 on all scales combined, compared to a male mean of 1.84. Women were also more symptomatic than men on each of the three subscales.
“I am concerned that the stress and trauma in judges may make it hard for them to recognize trauma in the refugees whose cases come before them in the courtroom,” said Lustig. Lustig said that this can affect their future caseloads in one of two ways: they may become particularly lenient and grant asylum at a higher rate than they would otherwise, or they may just shut down and become desensitized to those applicants whose stories of persecution are genuine.
“Judges under this much stress may suffer from ‘compassion fatigue,’ in which they start to lose empathy for asylum applicants,” said study co-author Dana Leigh Marks, JD, President of the National Association of Immigration Judges. “This is the first time that the operations of the immigration courts have been evaluated by trained professionals who are qualified to compare the impact of judges’ working conditions with those of others in stressful jobs, like prison wardens and busy hospital doctors,” Marks said.
The survey gave respondents the opportunity to provide narrative responses on their working conditions. The narratives revealed that, in addition to the secondary traumatic stress the judges are suffering from the nature of the asylum seekers’ stories, the judges’ working conditions are contributing to high levels of job burnout.
“While we were well aware of the fact that our courts are extremely overburdened, we were still surprised by the extremely high levels of burnout and work related stress that were reported,” said Marks. “The narratives provide a dramatic depiction of the personal angst these conditions cause those working in this unique court setting,” she added.
Judges’ comments on their working conditions fell into five general themes: workload/time demands, infrastructure problems, challenges to esteem, psychological and health issues, and fraud.
The paper includes recommendations for additional resources for the nation’s immigration courts, including improving education and training for judges; adding adequate support staff and tools, including sufficient infrastructure and sufficient numbers of law clerks, bailiffs, and interpreters; and additional administrative time for judges to research country conditions, for example, on those places where they are being asked to judge the veracity of applicants’ claims of persecution. Additionally, the paper recommends that the Department of Justice establish a network of trained group facilitators to provide immigration judges with the opportunity to connect with each other in a group setting, providing mutual support and the perspectives of their peers who are also dealing with daily exposure to abject human misery and cruelty.
“The findings highlight the importance of providing adequate resources to the system which has the solemn responsibility of administering our asylum laws fairly and expeditiously,” said Marks. “We hope these findings will be used to assure that the immigration court system is improved so that the vulnerable populations we serve, including asylum seekers, juveniles, detainees, and mentally ill respondents, can benefit from a less stressful courtroom experience,” she concluded.
Co-authors of the study were Niranjan Karnik, MD, PhD; Kevin Delucchi, PhD; Lakshika Tennakoon, MSc, of the UCSF Department of Psychiatry; Brent Kaul, International Federation of Professional and Technical Engineers; and Hon. Denise Slavin, JD, National Association of Immigration Judges.
The study was funded by grants from the UCSF Academic Senate and the Research Evaluation and Allocation Committee.
UCSF is a leading university dedicated to promoting health worldwide through advanced biomedical and public health research, graduate-level education in the life sciences and health professions, and excellence in patient care. For further information, visit www.ucsf.edu.

Message from the new FALJC President (added 6/29/09)
In preparing to assume my duties as President, I had occasion to review the purposes for which our organization was founded. They are set forth at Article II of our Federal Administrative Law Judges Conference’s Constitution. In words which remain as relevant today as they were in February of 1947 when the organization was formed, those drafting the document stressed furthering the public interest by improving the administrative process; fostering faithful, efficient, and effective performance of the functions assigned to Administrative Law Judges under the various statutes governing Federal administrative proceedings; advancing the professional standing, education and welfare of the Administrative Law Judges employed by the Government of the United States; and encouraging the cordial and friendly relations among the members of the Conference and with the judiciary, government agencies, and public and private organizations concerned with the administrative process. Recent history has made it abundantly clear multiple forces are present that in the interest of short term expediency would undermine those lofty goals.
Having spent the majority of my life in Kentucky, I grew up hearing that Commonwealth’s motto “United we stand, Divided we fall.” I hope that in the coming year we can focus on the purposes set forth in our charter and work together (and I mean together) cordially in advancing group initiatives. There are issues facing us which have the potential to be exceptionally controversial; however, I would also ask your cooperation in maintaining the open, professional and cordial atmosphere in all of our dealings which is needed for our organization to survive and thrive. Hopefully, such an atmosphere will not only attract the new members which are always needed, but may also allow some former members to return to the fold. It is abundantly clear that our organization is a very diverse one with many strongly differing viewpoints, but it nonetheless still should be possible to agree to disagree on issues without engendering elements of personal rancor or driving anyone from our ranks. Common courtesy dictates that differences of opinion should be respected. The diversity that we have and enjoy is one of our strongest points, as the Federal Administrative Law Judges Conference does draw its membership from all of the agencies having Administrative Law Judges. We have seen changes in the composition of our organization over time, particularly in recent years as the numbers of judges have grown at some agencies; however, the one constant has been the Conference’s steadfast focus on issues affecting the administrative process and the entire spectrum of federal Administrative Law Judges. The increasing frequency of legislative efforts to bypass our use or to undermine our judicial independence should alarm all of us as those proposals threaten the very integrity of the administrative process. Our stewardship continues to be critical to defend against those efforts that would either shortcut administrative due process or dilute judicial independence. The efforts of every one of us are needed and welcomed, as there are many opportunities, as well as challenges, awaiting us during this next year.
With the nation’s current economic condition, the prospect of enormous budget deficits, and the daily crises confronting nearly every aspect of our lives, the eagerly awaited and hoped for improvement in Congressional reception to matters of legislative interest to Administrative Law Judges and other federal employees which was anticipated with the change of administration has failed yet to materialize. Congress has busied itself not only with crisis management legislation, but is also contemplating extensive legislative changes affecting health care, global warming and climate control, energy production, food and drug safety and financial industry regulation. The briefing book produced during President Steven Glazer’s term was provided to the new administration, where it received significant attention and interest. It since has been published in the current issue of the Journal of the National Association of Administrative Law Judges. We will continue to advance the issues set forth in that document. While, the prospects of our legislative efforts will continue to be impacted by budgetary issues, the opportunity for progress cannot be ignored. The pension reform legislation was again introduced in the House on June 12, 2009, the House Judiciary Administrative Law Committee has recently expressed interest in the Administrative Conference bill and we will continue to seek sponsorship of a bill to exclude locality pay from the salary cap and articulate our position on compensation issues. It is clear now that the concept of Pay for Performance has been embraced by this administration and we will again have to renew our educational efforts to explain why the concept is incompatible with the Administrative Procedures Act.
First Vice President Daniel Solomon has put together an excellent substantive program for our 46th Annual Seminar to be held September 13-15, 2009 at the Dunes Manor Hotel in Ocean City, Maryland. The keynote address “On Judges and Judging” on Sunday evening will be given by Judge William F. Dressell, President of The National Judicial College in Reno, Nevada. The program will also feature a number of panels of Chief Judges addressing a broad range of topics all of which should prove interesting to everyone of us. I hope as many as possible of you and your guests will be able to join us there.
I look forward to working with and for all of you.
President Peter Davenport

HHS hires 3 new judges for Miami hearing office (added 6/24/09)
The new judges are: Eric Chinn – from SSA in CA; Brian Haring – from OMHA (Cleveland field office); and Kurt Gronau – private practice in Colorado.

New OPM Director to convene conference (added 6/24/09)
New OPM Director John Berry recently told the CEC, of which FALJC is a member, that he plans to convene a conference on federal human resources practices in September. “The conference will address ways that the federal government can become a “model employer and maintain its preeminence in areas where it outperforms the private sector.” Former Maryland Sen. Paul Sarbanes; Laszlo Bock, Google’s vice president for people operations; and David Ellwood, dean of Harvard’s John F. Kennedy School of Government, have agreed to chair the event, which will be open to the public. Berry invited the relevant employee groups to attend and provide feedback “on overhauling the government’s pay systems.” FALJC ought to be there. Hopefully, it doesn’t conflict with the Seminar.
Judge Glazer

SSA’s 2009 National List of ALJ Hires (added 6/18/09)
Here is the new list of 149 ALJs hired by SSA, including 3 transferring judges to the new Baltimore hearing office. The transferring judges include former FALJC president Judge Paul Lang (FLRA), former OMHA Chief Judge Perry Rhew and Judge Barry Peffley (OMHA-Miami).

Legislation benefiting federal employees advances (added 6/11/09)
On June 10, 2009, the Senate advanced its version of H.R. 1256, the major tobacco reform bill, which includes legislation expanding federal employees’ options under the Thrift Savings Plan, but omitted a provision allowing FERS employees to count unused sick leave toward their retirement annuities. Also not included was legislation that would have made it easier for the government to rehire federal retirees part time; modified how the CSRS calculates annuity payments for employees who retire as part-time workers; and moved federal employees in Alaska, Hawaii and U.S. territories from cost-of-living adjustments into the federal locality pay system. The TSP provisions will automatically enroll federal civilian hires into the plan; enable employees to invest their retirement money into mutual funds of their choice; allow enrollees to create a Roth 401(k) so they do not have to pay taxes when funds are withdrawn; and permit spouses of deceased federal workers to continue managing their funds in the TSP. The Senate is expected to vote on the full bill on Friday. Supporters of the omitted federal employee-related provisions will seek to reinsert them into the bill when it goes to conference with the House.

Not so fast! AALJ changes in officers voided (added 6/11/09)
After voting on May 27, 2009 to replace retiring President Ron Bernoski with Judge Randy Frye and move up others to the resulting vacancies, the AALJ’s National Executive Committee (NEC) reconsidered its actions at its meeting of June 10 and voided the changes. The changes were apparently in violation of the AALJ Constitution, which requires that an Executive Committee be vacant before elections/appointments can take place. Thus, Judge Bernoski remains president until his resignation on June 23, when he will be replaced by Judge Frye. It is not clear, however, whether the NEC will at that time, vote on a replacement to fill the Executive VP position that will be vacated by Judge Frye or hold elections to fill that position as well as others. In any event, Judge Johnson, the replacement for Region 3 VP was again voted on and he was confirmed for that position.

AALJ President Resigns (added 6/5/09)
FALJC has learned that Judge Ron Bernoski, President of the Association of Administration Law Judges, announced at the organization’s National Executive Committee meeting on May 27, 2009 that he was retiring in January of 2010, but resigning as President on June 23, 2009. By operation of the constitution, Judge Randy Frye, the executive VP, will become President. Judge Maylin Zahm will replace him as Executive VP and Judge Linda Stagno will replace her as VP Region 2. In addition, Judge John Johnson will replace Judge Swartz as VP Region 3 on June 1.

Pending Legislative Proposals (added 6/5/09)
The pension bill has not been introduced yet but will be shortly introduced by Rep. Kucinich. Co-sponsors are being sought. However, the bill has not yet been scored by the Congressional Budget Office. The enhanced leave bill, however, is in a better position at the moment. The bill, which would increase leave to 8 hours per pay period for all judges, will be filed shortly by Senators Daniel Akaka (D-HI) and Mark Pryor (D-AR).

FALJC urges passage of ALJ Leave Equity legislation (added 5/28/09)
Judge Glazer recently sent the following letter to House Governmental Affairs staff urging passage of Senator Akaka’s bill that would give ALJs the same enhanced leave entitlement upon the commencement of employment as is currently provided to the SES:
Ms. Khim: As President of The Federal Administrative Law Judges Conference (FALJC), I am writing in support of a bill to be introduced by Senators Akaka and Pryor that will provide maximum annual leave benefits to Administrative Law Judges, Immigration Judges and Board of Contract Appeals Judges from the beginning of their service as judges (copy attached). It will be of great benefit to judges entering service from outside the Federal government and military service.
FALJC is a voluntary professional association, organized over 50 years ago for the purpose of improving the administrative judicial process, presenting educational programs to enhance the judicial skills of Administrative Law Judges, and representing the concerns of Federal Administrative Law Judges in matters affecting the administrative judiciary. The membership of the Conference includes Judges from every administrative agency which employs Administrative Law Judges. The Conference sponsors educational and social programs for its members, and from time to time speaks out on behalf of its members on issues relating to the administrative judicial process and issues of concern to our members regarding our status as employees of the United States.
One of the minimum qualifications for Administrative Law Judges is a full seven 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. Typically, this means that Administrative Law Judges enter Federal service late in their careers. Consequently, at a time when senior Federal employees like themselves enjoy the benefits of full entitlement to accrual of annual leave at a rate of one day per biweekly pay period, new Administrative Law Judges accrue annual leave at the lower rates of beginning Federal workers for a long period of their ALJ careers. The ALJ Leave Equity legislation will correct this anomaly.
FALJC supports the introduction and passage of this bill.
Sincerely, Judge Steven A. Glazer, President, The Federal Administrative Law Judges Conference

National Hearing Center Personnel Announcement (added 5/28/09)
SSA Chief Judge Frank Cristaudo issued the following announcement of personnel changes on May 18, 2007:
Judge Dean Metry has announced his resignation from the position of Lead Administrative Law Judge (ALJ) in the National Hearing Center (NHC) in Falls Church, Virginia. I would like to thank Judge Metry for his outstanding leadership at the Falls Church NHC and helping the Agency make major strides toward reducing the hearings backlog. Judge Metry has maintained day-to-day operation of the Falls Church NHC since his selection and has been instrumental in the opening of the National Hearing Centers in Albuquerque, Chicago, and Baltimore. Judge Metry leaves us to accept a new position as one of only six ALJs with the United States Coast Guard. I am pleased to announce that Judge John Murdock has been selected for the position of Acting Lead ALJ in the NHC in Falls Church. Before joining the Social Security Administration, Judge Murdock served in the U.S. Air Force for 28 years, mainly in the Judge Advocate General’s Department. One assignment included heading the legal office at McGuire Air Force Base in New Jersey. Judge Murdock came to the NHC as an ALJ in January 2008. He was previously an ALJ in the Charleston, West Virginia hearing office and has over 12 years of service as an ALJ with the Agency. Please join me in wishing Judge Metry well on his next exciting endeavor and congratulating Judge Murdock on his new assignment.

Medicare Appeals Chief Judge Rhew Resigns (added 5/21/09)
HHS Medicare Appeals Chief Judge Perry Rhew is resigning and will be replaced on an interim basis by Judge Irwin Schroeder. He issued the following letter to the Medicare Appeals Judges: I have always been a firm believer in the power of change, and the progress to be achieved by a change in leadership. I have seen first hand the excitement generated by a new leader with a fresh look at a problem and a willingness to rethink existing policies and procedures. With change in mind I want you to know that I am resigning from the Department and stepping down as the CALJ in OMHA.
I first started planning for this day in the summer of 2008. Over the course of the past few months I believe I have laid the necessary groundwork for my successor, whoever she or he might be, and believe the transition can move forward smoothly with all deliberate speed.
When I informed the Secretary of my decision, I recommended that she appoint my successor to serve from the Arlington Headquarters office. I do not make this recommendation lightly. In the early months and particularly over the first two years of our existence, I knew how important it would be for the CALJ to be located in or near one of our larger offices. I knew my exposure to the day to day operations would greatly reduce our response and reaction time when problems occurred. That belief proved correct, and our lines of communication have never been better between the Field Offices and Headquarters. Given the change in the administration at HHS, and the ongoing need for OMHA to have a presence in HHS Headquarters and at the table as a member of the Secretary’s Cabinet, it will be important for the CALJ to be in the D.C. area making their existence and availability known to this administration. I was able to do this from Cleveland, but the travel back and forth eventually wore me down. Your new leader needs to work from Arlington, and visit the field as often as necessary.
And now to the two most obvious questions, who will be the next CALJ and what am I leaving OMHA to do? The immediate and interim answer to the first question is easy. I am appointing Judge Irwin Schroeder as the Acting CALJ. Judge Schroeder’s presence as the MALJ in Arlington and availability to the administration in the D.C. area will serve the agency well while the Department hires my successor. I am certain he or any one of the MALJs could serve admirably as the Acting CALJ during the transition. I also know that the Department will choose a qualified and capable person to lead this organization, and that person will inherit a terrifically talented group of leaders in the OMHA HQ and the MALJ and HOD positions.
As for me, well, as they say, timing is everything. I need some time away from work to think about my next career move. For more than a year now I have been exploring various options, and I need to get away to rest for a couple of weeks, pray about the opportunities available to me, and move on.
This roller coaster ride has, to say the least, been the highlight of my career. It has involved four solid years of almost non-stop work, more than 115 out of town trips, wearing out four Blackberries, and dealing with more issues at once than I thought possible. I may never again be given the opportunity to hire 573 people, sign off on more than $230M in expenditures, sign off on every policy directive and guidance document used by an entire federal agency, or work with so many amazing employees. Your dedication and commitment have inspired me these past four years, and I will carry that inspiration forward in my next role.
So to the hard working men and woman in my immediate office, the dedicated employees in the Cleveland and Arlington HQ offices, and every person out in the field, I say thanks. Thank you for the opportunity to serve alongside you these past four years. For those of you who might want to keep in touch after today, I set up a special email account at perryrhew@gmail.com . After today that will be the best way to reach me. I look forward to hearing from you and to hearing of the continuing success of this terrific agency. God bless you all as you continue your public service.
Perry Rhew
Chief Administrative Law Judge
Office of Medicare Hearings and Appeals
Department of Health and Human Services

SSA Judges Elect New FALJC Delegates (added 5/21/09)
SSA members had an uncontested election for the two SSA ALJ representative positions and one alternate to the FALJC Executive Committee. The deadline to declare candidacies was midnight on Monday, May 11. Since there is no contest, balloting was not required. Accordingly, I am happy to certify that the following judges were elected:

SSA Representative to the FALJC Executive Committee:
Judge Donald J. Willy, Houston TX ODAR
Judge T. Patrick Hannon, San Jose CA ODAR

SSA Alternate to the FALJC Executive Committee:
Judge J.E. Sullivan, Morgantown, WV ODAR

White House Announces Two NLRB Board Member Nominees (added 5/21/09)
The White House announced on April 24 President Obama’s intention to nominate labor law attorneys Craig Becker and Mark Gaston Pearce as Members of the National Labor Relations Board. If confirmed by the Senate, they would fill two of three vacant seats on the Board. The appointments would leave one seat for a Republican designee.

ALJCC sends letter to key Congressional members regarding legislation of interest to Administrative Law Judges (added 5/1/09)
On May 1, 2009. in accordance with its April 1, 2009 vote, the ALJCC sent the chairmen and ranking members of key Congressional committees a letter setting forth legislation of interest to ALJs.

SSA Update (added 4/29/09)
FALJC has learned that the AALJ leadership met last week with SSA’s new Deputy Commissioner Foster, had a productive introductory meeting and have agreed to meet again soon. On the other hand, there is also word that SSA is moving in the opposite direction from the recent arbitrator’s award by increasing the “supervisory” duties and production requirements of judges at the disputed National Hearing Centers. We will keep you updated.

HHS’ Audit Recovery Program Taken to Court (added 4/28/09)
FALJC has learned that the HHS-CMS Recovery Audit Program reviled by HHS judges as unlawful is finally going to Federal Court. Background on the lawsuit can be found in the following website publication.

FALJC Welcomes New OPM Director (added 4/27/09)
President Glazer recently sent a welcoming letter to new OPM Director John Berry.

FALJC’s April Agenda and Related Reports (added 4/17/09)
Attached are the Executive Committee’s agenda for its April 17 meeting, the April Legislative Report, the March Executive Committee meeting minutes, the March Treasurer’s Report and the ALJCC’s April 1 meeting minutes.

SSA seeks HOCALJ’s for new Chicago and Baltimore “National Hearing Centers” (added 4/1609)
In a Memorandum, dated April 9, 2009, SSA Chief Administrative Law Judge Frank Cristaudo announced Hearing Center Chief Administrative Law Judge vacancies for the new Chicago, IL and Baltimore, MD National Hearing Centers: “The Center Chief Administrative Law Judge position is a critical one. A Hearing Center Chief Administrative Law Judge must be prepared to handle a variety of issues, including personnel and resource management, labor and employee relations matters, and workload management. A Hearing Center Chief Administrative Law Judge must possess the interpersonal skills necessary to deal effectively with peers as well as individuals throughout SSA, the Disability Determination Services, Congressional offices, advocacy groups, and the community at large. Those interested in applying for this position should ensure the following documents are forwarded: An updated SSA-45 (internal SSA use only), a complete resume or an OF-612 containing pertinent work and other experience the applicant believes qualifies him or her for the position, and a statement of why the applicant is interested in the position, and how the applicant’s skills and experience have prepared him or her for the position. These documents should be postmarked or received at the following address within two weeks of the date of this memorandum: Frank A. Cristaudo, Chief Administrative Law Judge, Social Security Administration, ODAR, 1 Skyline Tower – Suite 1608, 5107 Leesburg Pike, Falls Church, VA 22041-3255. Applicants should ensure their application and supporting statements clearly delineate all demonstrated leadership experience, especially as it relates to managing entire offices or large groups of people. Each applicant should be aware that before making the selection, his/her candidacy may be discussed with the appropriate Regional Chief Administrative Law Judge, Hearing Office Chief Administrative Law Judge and others who may have knowledge about the applicant’s abilities and experience. The individual selected for this position will advance one step on the AL-3 scale unless he/she is already at the AL-3 (F) level or already has received the one-time increase. If there are individuals who the applicant believes are particularly knowledgeable about his or her qualifications, they should be identified in the materials submitted.”

Court Finds Black Female EEOC Attorney Failed to Show Bias in OPM Selection Criteria (added 4/1609)
Judge Henry Kennedy, Jr. of the US District Court for the District of Columbia has issued a decision finding that a black female EEOC attorney failed to show bias in OPM’s Selection Criteria for ALJs. BNA’s summary of the decision: “The Office of Personnel Management was entitled to summary judgment on claims brought by an Equal Employment Opportunity Commission attorney who allegedly was denied a position as an administrative law judge because of her race and sex, the U.S. District Court for the District of Columbia ruled March 23 (Menoken v. Whipple, D.D.C., No. 03-01775, 3/23/09). Cassandra M. Menoken, an attorney with EEOC, began the OPM examination process in 1993, seeking to become an ALJ. Dissatisfied with her final exam score, and after filing several appeals with the ALJ Ratings Appeal Panel, she filed a formal charge with EEOC, alleging that the ALJ selection process had an unlawful disparate impact on black and female applicants. After a hearing, an EEOC administrative judge found all but one of her claims to be without merit. The claim on which Menoken prevailed was a challenge to the use of the “partner benchmark” in the supplemental qualifications statement component of the ALJ exam. The benchmark awarded applicants who were partners at large law firms five out of a possible six points in the organizational skills category. The AJ agreed with Menoken that use of the benchmark impermissibly created a disparate impact on the basis of race.
In 2000, the EEOC AJ ordered OPM to stop using the benchmark “until its use has been properly validated … or until the disparate impact disappears.” OPM issued a final order stating that it would implement the decision fully. In 2001, Menoken filed appeals with EEOC, alleging that OPM failed to comply with the order and challenging the AJ’s decisions on her other claims. The commission rejected her appeals and she filed a request for reconsideration of EEOC’s decision. That request still was pending when she sued in federal court in 2003, alleging violations of Title VII of the 1964 Civil Rights Act.
Menoken’s federal court complaint alleged that OPM failed to comply with the AJ’s order requiring it to stop discriminating against black applicants by using the partner benchmark, the ALJ exam unlawfully discriminated against black applicants in general and against her in particular, and the geographic preference form, which was used to identify where persons on the ALJ register were willing to work, unlawfully discriminated against female applicants in general and against her in particular. OPM sought summary judgment on all three claims. Addressing Menoken’s allegation regarding the partner benchmark, Judge Henry H. Kennedy Jr. found that the evidence supported OPM’s claim that it complied with the AJ’s order. OPM asserted, without contradiction, that it had provided Menoken with a memorandum explaining the numerous steps it had taken to comply with the order, the court noted. Those steps included ending the use of or reliance on the benchmark when scoring completed but unscored ALJ applications, reviewing the scores of applicants on the 1993 ALJ register, and confirming that no applicants received five points on the basis of the partner benchmark, it said. In addition, OPM cited the testimony of one of the two raters of ALJ applications, who testified that he crossed out the partner benchmark while rating applications, that the other rater was given the modified ratings, and that OPM did not resume the use of the benchmark, the court observed. It thus provided “abundant admissible evidence” substantiating its full compliance with the AJ’s order to cease and correct the discrimination caused by the partner benchmark, it found. Moreover, Menoken did not counter with sufficient evidence to create a genuine issue of material fact as to OPM’s efforts toward compliance, the court ruled. OPM therefore was entitled to summary judgment on her compliance claim, it said.
The court also decided that OPM was entitled to summary judgment on Menoken’s disparate impact claims. All she could point to in support of her claims was “conjecture, conclusory statements, and evidence outside the scope of discovery,” it said. OPM contended that Menoken had no personal knowledge of a disparate impact and could not identify testimony, expert reports, or statistical analyses substantiating her claims. In response to her contention that it rated applicants based on their job titles and that black applicants as a group had job titles that would result in lower scores than other applicants, OPM denied relying on job titles and argued that Menoken provided no evidence to the contrary. The court found that, despite a protracted and highly contested discovery period, Menoken failed to present specific proof-statistical or otherwise-from which a jury could rule in her favor. Accordingly, it found, summary judgment to OPM was appropriate on her allegations of disparate impact discrimination in the ALJ selection process.
As for Menoken’s disparate treatment claim, the court accepted OPM’s representation that the supplemental qualifications statement component of the selection process was necessary to evaluate applicants’ experience and accomplishments and that applicants were not asked to identify themselves by race or gender. OPM also argued that Menoken produced no evidence in support of her disparate treatment claims and no proof that OPM’s actions were pretextual. Rather, she relied on the same arguments she raised in her disparate impact claims, which the court rejected, it urged. The court agreed, finding that Menoken failed to adduce sufficient evidence to survive summary judgment. Text of the decision may be accessed at http://op.bna.com/eg.nsf/id/pdon-7qqr68/$File/menoken2.pdf.

No April Fool’s Joke: AALJ Wins National Hearing Center Grievance (added 4/1/09)
The Association of Adminisrative Law Judges has won their arbitration case against SSA alleging that the agency breached its collective bargaining agreement (CBA) with AALJ and/or comitted an unfair labor practice when it opened up a new hearing office in Falls Church, Virginia, called it a “National Hearing Center” (NHC) and, mirroring the Medicare Appeals Hearing Office approach of HHS, staffed it entirely with judges classified as supervisors. In his award, dated March 29, 2009, Arbitrator Michael A. Murphy found, in pertinent part: (1) the judges at the NHC have NOT been shown to have supervisory status; (2) the new judges are members of the bargaining unit represented by the AALJ and entitled to all of the the benefits of the CBA; (3) the agency breached the CBA by failing to give AALJ reasonable notice of its intention to establish the NHC’s, by expanding video teleconferencing, by removing work from the bargaining unit; (4) committed an unfair labor practice by unilaterally creating NHC’s and staffing them with ALJs without bargaining by the union and by displaying an anti-union bias; (5) issued a cease and desist order requiring SSA to recognize AALJ as the bargaining representative of the judges at the NHCs; and (6) to bargain with AALJ in good faith regarding the terms and conditions of employment of the judges at the NHCs.

SSA plans hiring spree to deal with claims backlog (added 3/29/09)
The following article By REBECCA NEAL appeared in the March 26, 2009 issue of the FEDERAL TIMES.
The Social Security Administration plans to hire 157 administrative law judges and more than 700 support staff to reduce a massive backlog of disability claims. But bringing new hires in won’t immediately reduce the backlog, SSA Administrator Michael Astrue testified Tuesday. “The system is so complicated that it takes people a long time to become fully productive. … Nine months in, [ALJs] are at about three-quarters of the productivity of a more experienced person,” Astrue told a joint meeting of the House Ways and Means subcommittee on Social Security and subcommittee on income security and family support. In February, SSA had a backlog of more than 765,527 cases with an average wait time of 488 days. SSA will use new technology to speed up claims processing, Astrue said. Its aging National Computer Center near Baltimore will be outdated by 2012, and a new computing center in Durham, N.C., is set for completion that year to supplement the National Computer Center. The agency also plans to build a replacement for the outdated National Computer Center in the coming years. It received $1 billion in the economic recovery package to fund the replacement facility, likely in the Baltimore area, and to reduce the claims backlog. While Congress under funded SSA through much of the past decade, the tide is changing, said Rep. Jim McDermott, D-Wash., chairman of the income security panel. Congress granted SSA an additional $275 million over the president’s request for the past two fiscal years, he said, and future, timely increases will spur progress. “The agency did not have the resources it needed to keep pace with the normal volume of applications for assistance in the Social Security and SSI programs, much less respond to rising claims that are associated with the aging baby boom generation,” he said. Rep. Sam Johnson, R-Texas, ranking member of the Social Security subcommittee, told Astrue he will hold the SSA accountable for spending the stimulus money wisely, and he said customer service must improve. “Now it’s time for your guys to step up and account how this money will translate into real results. In the short term, Social Security must answer their phones, reduce wait times for people in local Social Security offices and tell people sooner whether their application for Social Security benefits has been granted or denied,” he said. Members asked whether it made sense to outsource data processing to save money instead of building a new data computing center. Astrue said a previous SSA administrator ruled out that option for security reasons. “Part of the issue is we have enormous constraints with regards to sensitivity of the information [provided by] the public. It makes it awkward to share [that] with other members of the public,” he said. (www.federaltimes.com/index.php?S=4006958)

Cleveland MSPB Insubordination Case Summary (added 3/29/09)
The AALJ has published a summary by Judge Ed Round, one of the respondents in the Cleveland MSPB litigation.

Baltimore National Hearing Center Solicitation – Response due 4/17/09 (added 3/25/09)
First Arlington, then Chicago and now Baltimore – that’s a lot of “National” Hearing Centers! The Social Security Adminsitration has issued its latest solicitation to fill at least 6 Administrative Law Judge vacancies in the National Hearing Center located in Baltimore, Maryland. These judges will primarily hold hearings and issue decisions on electronic cases from the Hearing Center. Hearing Center judges will supervise at least one attorney adviser and are nonbargaining. Only ALJs who currently hold the AL-3 or higher position on a permanent basis will be considered.

House of Representatives to hold hearings on SSA’s disability claims backlog (added 3/19/09).
From the House Ways and Means Committee:
Congressman John S. Tanner (D-TN), Chairman, Subcommittee on Social Security, and Congressman Jim McDermott (D-WA), Chairman, Subcommittee on Income Security and Family Support, today announced a joint hearing on the Social Security Administration’s (SSA’s) large backlog in disability claims and other service delivery declines, including backlogs in program integrity activities. The hearing will take place on Tuesday, March 24, 2009 in the main Committee hearing room, 1100 Longworth House Office Building, beginning at 10:00 a.m.
In recent years, SSA’s backlog of claims for Social Security and Supplemental Security Income (SSI) disability benefits has reached unprecedented levels, with more than 1.3 million Americans currently awaiting a decision on their case. The problem is particularly severe at the hearings level, where the backlog has more than doubled since 2000 – from about 310,000 to more than 765,000 – and the average waiting time is now almost 500 days.
These backlogs have resulted from years of underfunding as SSA’s workload increased due to the aging of the population and additional responsibilities given to the agency. Resource shortages have also led to service delivery declines in other areas. SSA has significantly cut back on program integrity activities such as continuing disability reviews and SSI redeterminations, even though these activities have been demonstrated to generate considerable savings, as much as $10 in program costs for every $1 in administrative expenditures. In addition, service to the public has declined in SSA’s field offices, as noted in a January 2009 report from the Government Accountability Office (GAO), and the backlog problem is of such severity that GAO included it in its biennial “high risk” list of federal programs.
In the past two years, Congress has provided additional funding to begin to address these problems, and SSA has begun to implement a plan to eliminate the hearings level backlog by 2013. However, the agency continues to face new challenges. Disability and retirement claims are increasing due to the economic downturn in combination with demographic changes. From FY 2008 to FY 2009, initial disability claims are projected to increase by more than 12 percent and retirement claims by more than 8 percent, and both are expected to increase even further in FY 2010 and FY 2011.
Finally, two provisions designed to increase access to professional representation for disability claimants are scheduled to expire during the 111th Congress; and legislative proposals have been offered relating to the disability determination process, such as changing how claimants give consent to release medical records.

2009-2010 Membership and Seminar Information Updated (added 3/19/09).
The 2009-2010 membership form and 2009 seminar registration form are now available at the home page link.

February Minutes and Treasurer’s Report (added 3/18/09)
Attached are the minutes for the February Executive Committee meeting and February Treasurer’s Report.

Electronic Discovery Primer for Judges (added 3/17/09).
An excellent article on electronic discovery issues is cited in the Department of Justice’s latest CLE course on electronic discovery. The article is contained at FEDERAL COURTS LAW REVIEW – 2005 Fed. Cts. L. Rev. 1.

Cure for “FERS Flu” may be on the horizon (added 3/17/09).
Mike Causey, in his March 17, 2009 Federal New Radio column, reports that a bill to give FERS employees credit upon retirement for unused sick leave has been attached to a bill that would give increase FDA oversight over tobacco. The bill has cleared the Energy and Commerce Committee and is expected to pass the House Government Oversight and Reform Committee and full House shortly. After that, however, it will go to the Senate, where the tobacco lobby is expected to put up a strong fight.

OPM finally responds to FALJC’s 2007 FOIA request (added 3/17/09)
FALJC’s 2007 FOIA request regarding the ITC’s request for a waiver to engage in selective certification of ALJ candidates was finally responded to by OPM’s FOIA counsel, Ryan Witt. Mr. Witt was hired only recently and called to inquire if FALJC was still interested in the information. Judge Glazer responded as follows: Dear Mr. Witt: I am the current President of the Federal Administrative Law Judges Conference (FALJC). I am responding to a telephone call that you made to Judge Michael Rosas regarding OPM’s response to FALJC’s 2007 FOIA request for OPM’s documents received from the U.S. International Trade Commission regarding selective certification authority. As Judge Rosas told you, we are still interested in receiving OPM’s response to our request. You may send it by mail to our address at FALJC, 2020 Pennsylvania Avenue, N.W., PMB 260, Washington, DC 20006. We look forward to receiving your response as soon as possible, particularly in view of the long delay that we have experienced in receiving it so far. Feel free to contact me at this e-mail address or at 301-332-9214 if you have any questions.
Sincerely, Judge Steven A. Glazer, FALJC President

Omnibus Appropriations Act Containing ACUS Start-up Funding Signed Into Law (added 3/17/09)
Great news. As noted below, the Omnibus Appropriations Act containing the $1.5 million in start-up money for ACUS cleared the Senate on March 10 and President Obama signed it into law on March 11. Here is the final language from the Senate-passed bill (which would be identical to the Public Law that the President signed.
Judge Robin Arzt

SEC. 5. STATEMENT OF APPROPRIATIONS.
The following sums in this Act are appropriated, out of any money in the Treasury not otherwise appropriated, for the fiscal year ending September 30, 2009…
DIVISION D–FINANCIAL SERVICES AND GENERAL GOVERNMENT APPROPRIATIONS ACT, 2009…
TITLE V; INDEPENDENT AGENCIES; ADMINISTRATIVE CONFERENCE OF THE UNITED STATES; SALARIES AND EXPENSES.
For necessary expenses of the Administrative Conference of the United States, authorized by 5 U.S.C. 591 et seq., $1,500,000, of which, not to exceed $1,000 is for official reception and representation expenses.

Appropriations

Presidential Action
On 3/11/09, the president signed P.L. 111-8 (HR 1105), the Omnibus Appropriations Act for fiscal year 2009.

FALJC March Legislative Report (added 3/11/09)
Legislative Developments
I. ALJ Locality Payments Relief Act of 2008
On February 26, 2009, Judge Steven Glazer and I met with Ken Cummings, an aide to Congressman Chris Van Hollen, to discuss the possibility of the Congressman sponsoring the ALJ Locality Payments Relief Act of 2008. That bill, drafted by FALJC last fall, would eliminate pay compression among ALJ pay grades by eliminating the cap on ALJ locality adjustments. I have since spoken to Mr. Cummings to answer questions (at which time I expressly stated that we are speaking on behalf of FALJC and not on behalf of our agency or any other government agency), but at this date we have no answer from Congressman Van Hollen. The current climate does not favor our proposal. The administration’s proposed budget would cap the 2010 pay raises for civilian employees of the federal government at 2%, ostensibly to bring federal pay and benefit practices more in line with what workers are experiencing in the private sector. In addition, House Speaker Nancy Pelosi reportedly told Democratic appropriators to draft legislation blocking the automatic cost-of-living adjustment that House Members would otherwise receive in 2010. Spokespersons for the Administration and the House both cited the country’s economic crisis as the reason for these actions.
II. Other Developments
Two other Bills, introduced in the House on February 3, 2009, would provide employees covered under the Federal Employees Retirement System certain rights currently enjoyed by employees covered under the Civil Service Retirement System. One bill, introduced by Rep. James Moran (D), would allow FERS employees (as well as employees covered under the Foreign Service Pension System and U.S. Postal Service retirement plan) to add any unused sick leave to the number of years they have worked in the government to determine their annuity at retirement. The other Bill, H.R. 828, the FERS Redeposit Act, introduced by Representatives Moran, Frank Wolf (R) and Gerry Connolly (D), would allow FERS employees who leave the federal government and either cash out their annuity or roll it into a private savings account to redeposit those funds if they return to government service.
Judge David H. Coffman, Legislative Chairman

FALJC Teleconference with General Accountability Office (added 3/11/09)
I was recently contacted by Patricia Donahue, a Senior Analyst with the U.S. Government Accountability Office for Strategic Issues, (GAO) who requested a meeting with FALJC to discuss our views for a study GAO is doing for Congress on “Current ALJ Hiring and Performance Practices.” A teleconference was agreed upon, and it was held on March 10, 2009 at 2:00 p.m. On the telephone with me were the First Vice President Pete Davenport, Second Vice President Dan Solomon, Treasurer Robin Arzt, Secretary Ted Essex, and our nominee for Secretary for 2009-2010, Rick Pearson.
We had a wide-ranging discussion for 90 minutes on ALJ hiring and performance issues. The GAO employees informed us that the report they are drafting has been requested by the House Ways & Means Committee, the Senate Appropriations Committee, the House Appropriations Committee, Senators Voinovich and Durbin, and others. They also informed us that they spoke the day before with Judge Ron Bernoski at AALJ, the SSA ALJ union, and will be speaking to ABA as well.
GAO was interested in learning our views on ALJ performance management at various agencies, in particular what worked and what doesn’t, what are common practices and what are unique. Ms. Donohue stated that she has received the FALJC Briefing Book. We covered mainly issues at the Social Security Administration compared to other agencies. A good deal of the discussion regarded problems that ALJs have had there with “heavy-handed” management practices. We also discussed some history, including the ALJ Corps bill and our views on the present ALJCUS proposal in our Briefing Book. GAO seemed to be particularly interested in knowing whether the proposed ALJCUS would govern ALJ performance, and we informed them that the proposal does not contemplate changing the current procedure wherein agencies must file suit at the MSPB to seek removal or other discipline against ALJs for cause. GAO was also interested in whether FALJC favored adopting the ABA Model Code of Judicial Conduct for ALJs, and we informed them whereas the ALJCUS proposal gives the ALJCUS Chief Judge the authority to adopt a code of professional responsibility for ALJs, whenever FALJC has debated the Code issue it has either come out negative to overall adoption or taken no position, so I told them that I could not say with confidence that FALJC has a position on it at this time.
We also spoke about hiring practices, particularly the manner in which OPM conducts the application and selection process for the ALJ Register now compared to the way it was done in the past. We explained to them that the system today is pretty opaque. My thanks to Judges Davenport, Solomon, Arzt, Essex and Pearson for accompanying me on the call.
Judge Steven A. Glazer

AFGE Issues Scathing Attack at SSA Commissioner (added 3/3/09)
James E. Marshall, president of AFGE Council 215 of the National Council of Social Security Administration, ODAR Locals, has issued a memorandum accusing SSA Commisoner Astrue of diminishing petitioners’ due process with electronic video hearings and attempting to circumvent the MSPB process for disciplining ALJs. He also concedes that SSA’s attorney adjudication process has not improved case disposition productivity and cites statistics demonstrating the need for increased ALJ support staff.

AALJ Files Opposition to OPM’s Motion for Summary Judgment (added 3/1/09)
Attached is the Association of Administrative Law Judges’ Memorandum in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment as to Count IV of the Plaintiff’s Third Amended Complaint and Plaintiff’s Motion for Summary Judgmentand supplemental affidavits by AALJ’s Legislative Chairman, Judge William Wenzel, and a Mary Rita Lueke, an experienced federal litigator and law professor aggreived by OPM’s arbitrary and capricious new ALJ examination process. Judge Wenzel’s affidavit provides a fascinating and extensive chronology of the history of the ALJ Examination process starting with passage of the APA in 1946 and explains OPM’s repeated attempts to erode ALJ independence and qualifications by manipulating the process to faciliate selective certification of SSA staff attorneys for ALJ positions. In a story similar to one that many FALJC members have heard from persons interested in an ALJ positon, Ms. Lueke’s affidavit provides an explanation as to how the new OPM exam process favors federal staff attorneys over attorneys in private practice, was not transparent and did not provide her with a reasonable opportunity to apply.

Carol Pope Nominated as FLRA Chair (added 3/1/09)
President Obama has nominated Carol Waller Pope, a current Commissioner of the Federal Labor Relations Authority, as the agency’s Chairperson. Ms. Pope, a past speaker before FALJC, was strongly supported by the American Federation of Government Employees and the National Treasury Employees Union for the position. The appointment leaves one vacancy on the three member panel. Ms. Pope is a career federal employee with extensive background in employee law. She previously served as assistant general counsel for appeals in the FLRA’s Office of General Counsel, executive assistant to the general counsel, and as an attorney in the Boston regional office of the FLRA. Earlier in her career, she worked as an attorney in the employee benefits division of the Labor Department’s Office of the Solicitor.

The 2010 Pay Raise for Federal Employees (added 2/28/09)
President Glazer reports that President Obama’s 2010 Budget was released this past week and contains the following statement regarding the 2010 Federal pay raise: “Limit Pay Increases in the Federal Workforce. As families are tightening their belts in this economic crisis across the country, the President ordered a freeze of White House senior staff pay. In this Budget, Federal employees also will be asked to do their part: the 2010 pay increase for Federal civilian employees, 2.0 percent, is responsive to the current economic climate, bringing Federal pay and benefit practices more in line with the private sector.” As to whether ALJs will see any of this increase, Judge Rosenstein commented as follows: “It’s problematic. As you know, the House of Representatives has indicated that it will not take the COLA in 2010. The Senate has not indicated what it will do but in my opinion they will follow the lead of the House. If that happens, unless the Congress permits executive level employees to get a raise (no decision has been made on how much of the proposed 2% raise will be distributed between base and locality pay), we will not receive any raise at AL-3F because the EX-III pay cap will not go up. This is something that must play out as the year unfolds and we get closer to 2010.”

March Executive Committee Agenda (added 2/27/09)
The next FALJC Executive meeting is set for Friday, March 13, 2009 at the the Chinatown Garden in Washington, DC. The guest speaker for the lunch that follows will be Bert Brandenburg, Executive Director, Justice at Stake Campaign. Attached is the tentative agenda for the meeting.

February Agenda and Reports (added 2/9/09)
Attached are the agenda for the February Executive Committee meeting, January 2009 Treasurer’s Report, February Legislative Report, and the AALJ’s February 2, 2009 newsletter.

SSA’s Commissioner seeks end-around MSPB procedures for ALJ discipline (added 2/8/09)
The Social Security Administration’s holdover Commissioner seeks to amend the Administrative Procedure Act (5 U.S.C. § 7521) to permit direct agency discipline of Administrative Law Judges without MSPB action. See the attached draft bill, with section-by-section analysis.

HHS Inspector General Reports on OMHA Operations (added 2/3/09)
HHS’ Inspector General issued a report showing improvement in the Office of Medicare Appeals’ third year of operations compared to its first. The Senate Finance Committee requested this report as a follow-up to an earlier one by the Inspector General providing updated information regarding the timeliness of ALJ decisions and the quality of the data in the appeals system.

List of Agency Chief Administrative Law Judges and Designees (added 1/31/09)
For a list of the Chief ALJs as of October 31, 2008, click here.

FALJC–ABA Letter to Obama-Biden Transition Team on OPM ALJ Selection Process (added 1/23/09)
The ABA has weighed in with the Obama-Biden Transition Team on the OPM ALJ Selection Process with a January 8 letter requesting that the Obama administration look into how the new ALJ hiring process is being implemented.

President Glazer reports on January 14, 2008 CEC meeting (added 1/14/08).
Report on January 14, 2009 Board Meeting of Coalition for Effective Change: The meeting commenced at 10:00 a.m. at NAPA, 900 7th Street, N.W., Suite 600, Washington, DC. Roz Kleeman presided. Among the representatives present from ALJ organizations was Bruce Birchman of FORUM and Steven Glazer of FALJC. The minutes and treasurer’s reports were approved by a voice vote. Several representative then gave updates about activities of his or her member organization. There was a discussion about the President-elect’s nominee for Director of OPM, John Berry. He formerly worked as a staffer for Congressman Steny Hoyer, then worked in DOI management before heading the National Zoo. He has had several contacts with CEC and has received support from Federal employee unions. A discussion was held on commemorating CEC’s 15th anniversary this year. An anniversary party is under consideration, possibly during Public Service Recognition Week, the first week in May 2009. The election of officers, scheduled for this month, was postponed to the next meeting. The remainder of the meeting was devoted to a discussion on pay compression and what CEC’s position should be. It was generally agreed that many GS-15s, SES, ALJs and others are impacted by it. Bill Bransford, on behalf of SES, took the position that pay cap relief, if sought, should be sought for GS-15s, ALJs, SES and others impacted as a whole, rather than separately. He also suggested that there should be a push for comprehensive reform of the federal pay system. Regarding Federal employee pay matters, Bill Bransford of SEA is devising a proposal for a commission on federal pay to develop a comprehensive, government-wide resolution of all pay matters. His proposal, according to Roz Kleeman, is to prevent “balkanization” of pay proposals. Judge Glazer asked the Bransford firm, represented at the meeting by legislative assistant Jenny Mattingley, to copy him on any draft proposal that Bransford makes. Thereafter, the Board meeting adjourned at 10:45 a.m.

Former Director of OPM’s ALJ Office Offers Help on Conference Bill (added 1/13/09)
Following-up on his comments to the President-Elect’s transition committee, Raymond Limon, former director of OPM’s now defunct ALJ office, e-mailed Judge Glazer with an offer to assist with our Conference Bill. This is a really huge development:

Greetings Chief, I recently read FALJC’s recommendations to the incoming Administration and was intrigued by what was proposed. In particular, I do believe there is significant merit to explore the potential of moving ALJ responsibilities outside of OPM’s purview. As you know, I left OPM back in 2005 to become the Chief Human Capital Officer at another Federal agency charged with managing and leading national service and volunteering programs called the Corporation for National and Community Service (e.g., Americorps, VISTA, etc). As a former Peace Corps Volunteer, coupled with my unique legal and policy setting background, CNCS has given me a wonderful leadership opportunity to create and enhance a personnel system that sits mostly outside of title 5.
As you can imagine during my three years leading the Office of Administrative Law Judges just prior to its realignment in 2003, I did come away with an interesting set of experiences. Similarly, as a career public servant, I am committed to sound public policy and if legislation will likely take place to significantly alter the manner in which the ALJ Function is moved outside of OPM, and if you or others believe my experiences would be helpful to influence what that new organization would look like, you should feel free to call upon me.
Sincerely, Raymond Limon

(Judge Glazer’s response)
Mr. Limon: Thank you for your comments on the FALJC Briefing Book to the Obama-Biden Transition Team. We are currently in the process of drafting legislation to propose to Congress for an ALJ Conference of the United States, as the Briefing Book recommends. I am sure that Judge Robin Arzt, who chairs the committee that prepared the Briefing Book and who is drafting the legislation, would be interested in your views and recommendations, and by copy of this e-mail to her, you may hear from her in the near future. Feel free to keep in touch with us as we pursue this goal. Thank you and have a Happy New Year!
Judge Steven Glazer

Chicago National Hearing Center Solicitation–Response due 1/21/09 (added 1/12/09)
The Social Security Adminsitration has issued a solicitation to fill at least 16 Administrative Law Judge vacancies in the National Hearing Center located in Chicago, Illinois. These judges will primarily hold hearings and issue decisions on electronic cases from the Hearing Center. Hearing Center judges will supervise at least one attorney adviser and are nonbargaining. Only ALJs who currently hold the AL-3 or higher position on a permanent basis will be considered.

FALJC Calendar of Events Updated (added 1/11/09)
The FALJC Events Calendar has been updated to add the following speakers and topics. January 16: Baruch Weiss, Esq. (Arent Fox LLP) – “The AIPAC Espionage Act Case: Its Impact on the First Amendment and the Fashioning of Foreign Policy;” February 13: Professor Jeffrey Lubbers, Washington College of Law, American University – “Agency Internal Review Boards and Officers;” March 13: Bert Brandenburg, Executive Director, Justice at Stake Campaign – “Developments in Judicial Independence;” April 17: Julia Akins Clark, General Counsel, International Federation of Professional and Technical Engineers, AFL-CIO & CLC – “ITFPTE: Who We Are and What We Do for Administrative Law Judges.”

FALJC Plea for More ALJ Pay Getting Great Publicity (added 1/10/09).
FALJC’s Briefing Book recommendations to the President-Elect’s transition team were discussed in GovExec.com’s January 8, 2009 article. Judge Glazer also reports that, thanks to Judge Robon Arzt, the FALJC Briefing Book to the Obama-Biden Transition Team will be reprinted in the Journal of the National Association of Administrative Law Judiciary.

FALJC Executive Committee Meeting 1/16/09, 11:00 a.m., Department of Agriculture Headquarters (added 1/9/09)
Attached are the agenda for the meeting, which be held at the Whitten Building on Independence Avenue SW, the meeting minutes for the November meeting, and the November-December 2008 Treasurer’s report.

Report of 1/8/09 ALJCC Meeting (added 1/8/09).
On January 8, 2009, I attended the Administrative Law Judge Coordinating Council (ALJCC) meeting on behalf of FALJC. Forum was represented by Carmen Cintron (Pres) and Bruce Birchman (Legislative Chair). Dan Solomon attended a portion of the meeting representing NCALJ and the ABA. Ed Silverstein chaired the meeting. No other participants attended the meeting including the representatives from AALJ (SSA). The parties opined that it would be extremely difficult to obtain pay compression relief on behalf of ALJ’s this year due primarily to the difficult economic climate. Accordingly, while not giving up on obtaining such relief, the parties firmly believed that the ALJCC should concentrate its efforts on obtaining enhanced annual leave for ALJ’s (Senator Akaka introduced a bill last year that will have to be reintroduced this Congressional session) and the implementation of a ALJ Conference Bill. Judge Solomon apprised the participants that the ALJ Retirement Bill has not been scored as Congressmen Steny Hoyer removed it from consideration in last years session. It is hoped that the bill will be scored in this Congressional session. The participants recommended that the judge organizations send a joint letter to OPM once a new director is appointed and confirmed seeking to reinstate bi-annual meetings to discuss and explore issues of importance to the ALJ community. Judge Birchman noted that the Coalition for Effective Change (CEC) is contemplating sending a letter to the Obama Transition team urging that a Commission on Pay in the Federal Government be established. If the letter is sent, it is recommended that the ALJ community add its support.
Judge Bruce Rosenstein

AALJ issues urgent request for help (added 1/2/09).
FALJC member and AALJ treasurer Judge Thomas Snook forwarded the letter from the Association of Administrative Law Judges sounding the alarm regarding the Social Security Administration’s recent notice of proposed rule making as a threat to overrule 50 years of precedence that the “Judge sets the time and place of the hearing” and have an agency bureaucrat schedule hearings instead of the judge. The AALJ hopes to avoid costly litigation and urge judges, whether they are or are not SSA judges, to read the attachment closely. Judges are asked to go to the website, read the comments already submitted and submit your own comment opposing this proposed action BETWEEN JANUARY 1 and 9.

2008

2009 ALJ Pay Tables (added 12/19/08).
The ALJ pay cap is now $162,900. The 2009 pay tables have just been issued. The “Rest of the United States” has essentially caught up to all others at the AL-3F level at $161,226.

Judge Glazer’s Letter Authorizing Transition Committee to Post FALJC Briefing Book on its Website (added 12/18/08).
Ms. Witt: Thank you for your response. FALJC extends its permission to post on www.change.gov our submission to the Obama-Biden Transition Team, entitled “Advancing the Judicial Independence and Efficiency of the Administrative Judiciary” and all appendices. We are delighted to have our views represented on the Transition Team’s website, and we look forward to hearing from the Team in the near future to talk about our ideas.
Sincerely,
Judge Steven A. Glazer, FALJC President

From: Abby.Witt@ptt.gov
To: dmadland@americanprogress.org; ghane@q-paradigm.com; kirp@berkeley.edu; watersboots@hotmail.com; rmpepper@cisco.com; daniel.kammen@gmail.com; glazerandfamily@msn.com; SovcikA@HumanRightsFirst.org; zgrader@ifrfish.org; pat.reuss@now.org
Date: Wed, 17 Dec 2008 15:19:55 -0500
Subject: On Behalf of Michael Strautmanis and the Office of Public Liaison
Thank you for submitting materials and/or recommendations to the Obama-Biden Presidential Transition Team. An ongoing dialogue with you and other leaders is essential for us to benefit from the best ideas on the issues President-elect Obama faces as we prepare for the Obama administration. We greatly appreciate the time and effort put into your work, and we look forward to taking the next step with you and your colleagues.
As you know, transparency is a cornerstone of the President-elect’s values, and a value which we at the Transition are committed to. During past transitions, documents submitted for meetings, and even the meetings themselves, were kept out of public view. This historic Transition is committed to reversing this precedent, and will post online to www.change.gov materials and/or recommendations received from outside organizations. As you will see, the site is populated with many other submissions and allows viewers to read and comment on the ideas presented. This process provides the American people with a “seat at the table” and assists the Transition’s work, in addition to allowing for consideration by Transition members.
Since your document submission was marked “copyrighted,” we need your express permission to post the document online. Please respond to this email by tomorrow at 5:00 pm with your permission to post the document online. If you have questions, please contact Abby Witt at (202) 540-3283 by tomorrow at 5:00pm.
We know you will agree that providing the American people with a “seat at the table” is an historic and important way for Americans across the country to participate in a new era of open government. Our challenges ahead are great, and we look forward to our work together. Again, our many thanks. Best, Michael Strautmanis, Director, Intergovernmental Relations and the Office of Public Liaison, Obama/Biden Presidential Transition Team

FALJC Briefing Report Posted on Change.gov Website (added 12/17/08).
The FALJC Briefing Book for the Obama-Biden Transition Team has been posted on the Transition Team’s website. It can be viewed at: http://change.gov/open_government/entry/faljc_report_to_the_president_elect/.
Please inform your members!!
Judge Glazer

Judge Glazer’s December 15, 2008 letter to Tania Shand, Staff Director, House Subcommittee on Federal Workforce (added 12/15/08).
Tania: Thanks for meeting with Judge Coffman and myself (and Judge Davenport later in the day) on FALJC’s pay cap removal proposal. We appreciated your insights into the issue. I’m attaching to this e-mail the Briefing Book on ALJ Issues that FALJC recently put together for the Obama-Biden Transition Team. I hope that it will be useful to you in considering the pay cap proposal and other matters of interest to federal ALJs.
I hope to stay in touch through January as the 111th Congress gets underway and you find out what duties you will be facing next. Hopefully we can move toward full hearings on the matter in the beginning of next year. Have a happy holiday and a happy New Year!
Sincerely,
Judge Steven A. Glazer, FALJC President

ALJ Opening at OSHRC (added 12/12/08).
The Occupational Safety & Health Review Commission is advertising to fill an ALJ opening at its Denver office. The job announcement states that the open period for submission of applications is December 10, 2008 to January 05, 2009.

Judge Glazer’s Report on December 10, 2008 Board Meeting of Coalition for Effective Change (added 12/11/08).
The December Board Meeting of the Coalition for Effective Change (CEC) commenced at 9:00 a.m. at NAPA, 900 7th Street, N.W., Suite 600, Washington, DC. John Palguta, Vice Chair (Partnership for Public Service), presided in Chair Roz Kleeman’s absence.
Present were representatives for the following member organizations: Professional Managers Association, National Academy of Public Administration, Federally Employed Women, Federal Executive Institute Alumni Association, Council of Former Federal Executives, Senior Executives Association (Bill Bransford), Partnership for Public Service, Organization of Professional Employees of USDA, FORUM (Bruce Birchman), The Public Manager, International Public Management Association-Human Resources, FALJC (Steven Glazer), National Association of Federal Veterinarians, Federal and Armed Forces Librarians Round Table, National Council of Social Security Management Associations.
The minutes and treasurer’s reports were approved by a voice vote.
Each representative then gave updates about activities of his or her member organization.
Judge Birchman discussed FORUM’s efforts to combat infringements on ALJ independence and letters to Congress opposing various agency efforts to appoint non-ALJs to adjudicative positions. He pointed out that the FTC and ITC bills to this effect were not enacted in the 110th Congress, but that the ITC bill might move forward in the 111th Congress. He discussed FORUM’s work with AALJ on the ALJ enhanced retirements bill, noting that it did not get scored in the 110th Congress but there is hope for it being scored in the next session.
Judge Glazer discussed FALJC’s submission of the Transition Team Briefing Book to the Obama-Biden Transition Team and its proposed pay cap removal bill efforts before the lame-duck session of the 110th Congress.
The remainder of the meeting was devoted to a discussion on pay compression and what CEC’s position should be. It was generally agreed that many GS-15s, SES, ALJs and others are impacted by it. Bill Bransford, on behalf of SES, took the position that pay cap relief, if sought, should be sought for GS-15s, ALJs, SES and others impacted as a whole, rather than separately. He also recommended that there should be a push for comprehensive reform of the federal pay system.
Judge Birchman stated FORUM’s position of support for the earlier ALJ proposal of a raised, tiered cap and opposition to a complete removal of the pay cap, as FALJC proposes. Judge Glazer offered FALJC’s position as one based on economics and separating the non-partisan, independent ALJ pay schedule from the partisan Congressional and Cabinet-level Executive pay schedule. When asked by the presiding Vice-Chair if ALJ organizations were split on the pay compression issue, Judge Glazer noted that FALJC’s proposed bill before Congress to remove the pay cap has received no formal opposition from any group.
In terms of CEC’s assistance on this issue, Judge Glazer pointed out that the best thing CEC could do is to assist FALJC in making personal contact with members of the Obama-Biden Transition Team to discuss the issues raised in FALJC’s Briefing Book.
Another presentation was made on Hispanic employment.
Thereafter, the Board meeting adjourned at 10:30 a.m.

Whole Foods Market files suit to enjoin FTC trial (added 12/10/08).
Judge Glazer spotted a recent article posted on the Legal Times website reporting that Whole Foods Market filed suit on 12/8/08 in U.S.D.C. for the District of Columbia against the Federal Trade Commission, alleging that the Commission violated the its due process rights and prejudged its merger case by assigning an FTC Commissioner, instead of an ALJ, to hear the case. Whole Foods’ suit is premised on the inherent conflict inherent in, and prejudice resulting from, any appeal of the presiding official’s decision to the Commission, which would include the presiding official.

FALJC Legislative Chairman’s Report on Locality Pay Proposal Developments (added 12/7/08).
On December 4, 2008, Steve Glazer and I met with Keith Abouchar, an advisor to House Majority Leader Steny Hoyer, regarding the prospects for passing the ALJ Locality Payments Relief Act of 2008, legislation proposed by FALJC to eliminate the pay cap on ALJ locality adjustments. Mr. Abouchar advised that the House would not consider the proposed legislation during the current, lame-duck session of Congress, but might consider it as part of a stimulus bill next year.
Mr. Abouchar explained that the House was convening prior to 2009 for the sole purpose of considering whether to provide a bailout to General Motors, Ford and Chrysler. He said that the House would not originate any other new legislation, though it probably would vote out a bill previously passed by the Senate providing a cost-of-living adjustment for Article III judges.
Mr. Abouchar said he believed that the bill proposed by FALJC had merit and might pass as part of the stimulus package that Congress will consider early next year. He recommended that we contact Tania Shand, Staff Director of the Subcommittee on the Federal Workforce, Postal Service, and the District of Columbia, House Committee on Oversight and Government Reform. She can give us a better picture of the bill’s prospects in both the House and Senate, and could play a major part in getting the bill enacted, if she chose to do so. If she supports the Bill, she could probably persuade Congressman Danny K. Davis, Chairman of the Subcommittee on the Federal Workforce, Postal Service, and the District of Columbia, to sponsor it. Congressman Hoyer would probably be willing to co-sponsor the bill, once we found a sponsor.
Judge David Coffman, Legislative Chairman

FERC Judge Grossman to Retire (added 12/5/08).
Judge Herbert Grossman of FERC, a FALJC member, is retiring on January 3, 2009. Judge Grossman graduated from the Bronx High School of Science, Cornell University (BA), the Columbia University School of Law (JD), and the Georgetown University Law Center (LL.M). He served as a Senior Trial and Appellate Attorney in the Tax Division at the US Dept. of Justice, and litigated cases in the US District Courts, US Circuit Courts of Appeals, and the US Court of Claims (currently the Court of Appeals for the Federal Circuit, and the U.S. Claims Court). He was an Administrative Judge at the Nuclear Regulatory Commission before being appointed an Administrative Law Judge at FERC in 1987.
Judge Grossman’s retirement is being held on December 10. For further information, contact Judge Glazer.

Obama-Biden Transition Team Briefing Book (added 11/21/08).
The legislative committee has compiled a FALJC Briefing Book for the Obama-Biden Transition Team. It has been forwarded to the appropriate members of the Transition Team.

FALJC October Executive Committee Meeting Minutes (added 11/20/08).
The October meeting minutes were approved at the November 14th Executve Committee meeting.

SEC’s Chief ALJ Issues Report Exonerating SEC Officials (added 11/13/08)
In a 15-page report, Chief ALJ Brenda Murray of SEC has concluded that agency officials did not mishandle an investigation into possible insider trading by Pequot Capital Management, a major hedge fund and that no disciplinary action should be taken against two officials involved in that inquiry. Her conclusions were reported in the November 12 issue of the New York Times, which notes that the report is at odds with the findings by the SEC inspector general and Senate investigators. See http://www.nytimes.com/2008/11/11/business/11pequot.html?_r=1&emc=eta1&oref=slogin. In reviewing the facts of the investigation and issuing her report, Judge Murray was not actinjg in her capacity as an administrative law judge, but rather at the request of the SEC’s executive director. The article also noted that Judge Murray’s report has been criticized by the inspector general and Senators Charles Grassley (R-Iowa) and Arlen Specter (R-PA). Also of note is a comment by an attorney who specializes in securities law objecting “to any federal agency that merged ‘the functions of prosecutor, judge, jury and appellate tribunal’ under the same roof” and suggesting that the federal government should follow the example of many states, which an “an independent corps of administrative law judges who are not employed by any particular regulatory agency.”

Outgoing Administration Begins to Sneak in Last Minute Regulatory Changes (added 11/12/08).
On November 11, the Social Security Administration published in the Federal Register a proposed rule change removing the authority of ALJs to set hearing dates.

President-Elect Obama’s Supports Increased SSA Funding (added 11/8/08).
President-Elect Obama’s pre-election letter to the American Federation of Government Employees, AFL-CIO indicates a committment to increase funding for SSA in order to reduce the disability case backlog.

United States Postal Service To Hire Replacement For Retiring Judge Bruce Houston (added 10/28/08).
The United States Postal service has issued an Administrative Law Judge vacancy announcement. The new judge will briefly work with and then replace Judge Bruce Houston, who is retiring. Applications are due by November 19, 2008.

Proposed ALJ Locality Bill Submitted to Majority Leader Hoyer (added 10/24/08)
On this date, President Glazer submitted the attached letter to Keith Abouchar, a staffer in House Majority Leader Steny Hoyer’s office for consideration during a likely lameduck session in December:
Thank you for accepting the attached letter and proposed bill on behalf of House Majority Leader Hoyer. The bill, which we call the “Administrative Law Judges Locality Payments Relief Act of 2008,” corrects a longstanding anomaly in the law. We are very hopeful that it can be introduced in the 110th Congress before the end of the year. I look forward to hearing from you after the election to arrange a convenient time to meet on the bill, and possibly to speak to Congressman Hoyer about it as well. If you have any questions regarding the explanation or the bill language, do not hesitate to e-mail me or call at 301-332-9214. Thanks again for your encouragement and support. Sincerely, Judge Steven A. Glazer, FALJC President.

SSA Commissioner Asserts Continued Progress Expediting Backlogged Disability Cases (added 10/23/08)
During a speech to the National Organization of Social Security Claimants’ Representatives, Michael J. Astrue, Commissioner of Social Security, reported on the progress made in fiscal year (FY) 2008 in the agency’s efforts to expedite backlogged disability cases.
“The plan we presented to Congress in May 2007 is working,” Commissioner Astrue said. “We have moved quickly to utilize new technologies, improve our business processes and add new staff. Combined with the hard work of our employees and the support of Congress, we are clearly on the right track to providing Americans with disabilities the prompt service they deserve.”
During FY 2008, Social Security hired 190 new Administrative Law Judges (ALJs), opened a National Hearing Center (NHC), eliminated virtually its entire aged case backlog of more than 135,000 cases waiting over 900 days for a hearing decision, and implemented a quick disability determination (QDD) process in all 50 states.
As a result of these and many other activities, the disability backlog at the hearings level, which had been growing at the rate of about 70,000 cases each year for most of this decade, grew by only about 14,000 cases.
“The hiring of 190 additional ALJs was critical but will not yield immediate results,” Commissioner Astrue noted. It generally takes about nine months for new ALJs to become fully productive. With attrition and experienced ALJs being used to train the new judges, the agency actually had 46 fewer ALJs available in FY 2008 than the prior year. Despite this fact, ALJs held more hearings and issued more dispositions than in FY 2007. The agency exceeded its targeted goal by over 16,000 cases.
The opening of the NHC gives Social Security the capability to quickly and flexibly move cases and conduct video hearings in the cities with the worst backlogs. NHC judges initially focused their efforts on the backlogs in Atlanta, Cleveland, and Detroit – cities where claimants had been waiting the longest. Atlanta continues to be a focus for the NHC, along with Flint, MI and Indianapolis. The agency plans to expand the NHC in Falls Church, VA as well as open additional centers in Albuquerque and Chicago. In addition, the agency is working with the General Services Administration to establish new hearing offices in the most backlogged states: Florida, Georgia, Kansas, Michigan and Ohio.
Social Security completed the nationwide roll-out of the QDD process in February 2008 and it has proven to be an unqualified success. QDD cases now represent about three percent of all new claims. This means more than 75,000 people each year will have their cases allowed in about 8 days, something that was unheard of just a year ago. The QDD threshold has now been adjusted for 31 Disability Determination Services (DDS), and the agency plans to gradually increase the volume of QDD cases while maintaining the same level of quality. Other accomplishments in FY 2008 include:
More than 2.6 million initial disability claims processed;
Approximately 560,000 reconsideration cases processed;
Over 575,000 hearing requests processed;
Over 83,000 Appeals Council Reviews processed;
Implemented procedures to allow attorney adjudicators to issue fully-favorable decisions — over 24,000 decisions issued;
Implemented a process in which the hearing office returns specific cases to the DDS for review for potential allowance — to date, DDSs have allowed about 24,000 cases;
Improved the process to identify and expedite military casualty claims; Implemented the Request for Program Consultation process nationally to improve accuracy and consistency in the disability decision-making process; and Implemented a process that allows the public and third parties to file disability reconsideration and hearing requests via the Internet. “The progress we have made is significant, especially since receipts at the hearings level were five percent higher than we expected in FY 2008. While the backlog grew slightly, the rate of increase in pending cases continues to drop,” Commissioner Astrue said.
Looking ahead to FY 2009, Commissioner Astrue hopes the energy and talent of the new ALJs, the national rollout of Compassionate Allowances, and other initiatives will improve the quality of reviews and steadily reduce the number of pending cases starting this spring. However, he stated, “the effects of an extended continuing resolution are clearly slowing our progress. We simply cannot address the challenges we face without adequate and timely funding. Many things we need to do, such as increase support staff and add new hearing offices, will not happen if Congress fails to pass an adequate appropriations bill by March. Social Security is an agency of great skill and accomplishment and we are ready to work with Congress, the new Administration and all of our stakeholders to improve service to the public.”

FTC Seeks Comments on Proposed Amendments to its Rules of Practice Regarding Adjudicative Proceedings (added 10/18/08)
Asserting that changes are needed in order to ensure the high quality of decision-making, the Federal Trade Commission has issued a Notice of Proposed Rulemaking (NPRM) seeking public comment on proposed rule revisions that would amend Parts 3 and 4 of the agency’s Rules of Practice, with the goal of further expediting its adjudicative proceedings, improving the quality of adjudicative decision-making, and clarifying the respective roles of the Administrative Law Judge (ALJ) and the Commission in Part 3 proceedings. Comments must be received within 30 days after publication in the Federal Register. Instructions for submitting comments are found in the Addresses section of the NPRM.http://www.ftc.gov/opa/2008/09/nprmpt3.shtm
For analysis of the proposal, see recent Jones Day article: http://www.mondaq.com/article.asp?articleid=67946
“The Commission proposes to give the Commission, rather than the administrative law judge, the authority to decide dispositive pre-hearing motions. Put bluntly, the Commission would have the authority to decide whether its own complaint should be dismissed pre-trial. Currently, complaint counsel can appeal to the full Commission an order by the administrative law judge dismissing the complaint; thus, the net effect may be little changed. (This occurred, for example, in In the Matter of Unocal.) Nevertheless, the change could have two consequences. First, respondents would lose the opportunity to have a separate, neutral decision-maker provide an independent written opinion with respect to respondent’s motion (even if that motion were ultimately decided by the Commission). And second, respondents would lose one of very few opportunities to present its views on the dispositive issues to the administrative law judge before trial.”

Executive Committee votes to terminate service of legislative representative (added 10/17/08)
By a vote of 13-5, the Executive Committe voted on October 17, 2008 to terminate the legislative services of Steven W. Silver, Esq. and immediately form a committee to find a replacement on a retainer basis. Any FALJC member interested in seving on the search committee is asked to inform his or her agency delegate by Wednesday, October 22, 2008.

FALJC Executive Committee Meeting 10/17/08, 11:00 a.m., Channel Inn, Washington, DC (added 10/15/08)
Attached are the agenda for the meeting, the meeting notice, the September 2008 Treasurer’s report, and the September 15, 2008 Executive Committee/Conference Meeting minutes.

ABA Letter on Astrue SSA ALJ Discipline Proposal (added 10/8/08).
The American Bar Association has submitted a letter to SSA Commissioner Astrue opposing his to proposal to amend the ALJ disciplinary procedures in the Civil Service Reform Act on the grounds that it is unnecessary and undermines the independence of ALJs.

OPM Files Motion for Summary Judgment in Rules Case (added 10/7/08).
The Office of Personnel Management has filed a motion for summary judgment seeking dismissal of Count IV of the Third Amended Complaint.

Legislation introduced on accrual rate of annual leave for administrative law judges (added 10/6/08).
By Mr. AKAKA (for himself and Mr. PRYOR):
S. 3665. A bill to amend chapter 63 of title 5, United States Code, to modify the rate of accrual of annual leave for administrative law judges, contract appeals board members, and immigration judges; to the Committee on Homeland Security and Governmental Affairs.
Mr. AKAKA. Mr. President, today I rise to introduce a bill to enhance the annual leave for Administrative Law Judges, Contract Board of Appeals Judges, and Immigration Law Judges in the Federal Government. I want to thank Senator PRYOR for his support of this bill.
Prior to 2004 Federal employees with less than three years of Federal service accrued annual leave at a rate of 4 hours per biweekly pay period. Employees with 3 to 15 years of service accrued leave at a rate of 6 hours per pay period, and those with over 15 years of service accrued leave at a rate of 8 hours.
As part of the Federal Workforce Flexibility Act of 2004, Congress changed the leave accrual rate for new mid-career employees, allowing agency heads to deem a period of qualified non-federal career experience for an individual an equal period of service performed by Federal employee. In addition, the act stated that all senior executives and other senior level employees shall accrue annual leave at the maximum rate of 8 hours for each bi-weekly pay period. In the past, ALJs, CBAJs, IJs and members of the Senior Executive Service have been treated similarly. However, the Office of Personnel Management is now taking the position that these judges should not receive the same leave benefits as members of the SES since they are not under a pay for performance system. In addition to my general concerns over pay for performance, I believe it is inappropriate for ALJs, CBAJs, and IJs to be in such a system as it could threaten their independence. In fact, ALJs and CBAJs are not allowed to receive bonus awards for this very reason. Given the shortage of ALJs to adjudicate social security benefits and the need to recruit more immigrations judges, I believe that Congress should act to provide these judges with enhanced leave benefits. I am pleased that this bill has the support of the Association of Administrative Law Judges, the International Federation of Professional and Technical Engineers, the National Association of Immigration Judges, and the Senior Executives Association. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection, the text of the bill was ordered to be printed in the Record, as follows:
S. 3665
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. ACCRUAL RATE OF ANNUAL LEAVE FOR ADMINISTRATIVE LAW JUDGES, CONTRACT APPEALS BOARD MEMBERS, AND IMMIGRATION JUDGES.
(a) In General.–Section 6303 of title 5, United States Code, is amended by striking subsection (f) and inserting the following:
“(f) Notwithstanding any other provision of this section, the rate of accrual of annual leave under subsection (a) shall be 1 day for each full biweekly pay period in the case of any employee who–
“(1) holds a position which is subject to–
“(A) section 5372, 5372a, 5376, or 5383; or
“(B) a pay system equivalent to a pay system to which any provision under paragraph (1) applies, as determined by the Office of Personnel Management; or
“(2) is an immigration judge as defined under section 101(b)(4) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(4)).”.
(b) Effective Date.–The amendment made by this section shall take effect on the first day of the first applicable pay period beginning on or after 30 days after the date of enactment of this Act.

OPM Issues Agency ALJ listings (added 10/2/08).
The Office of Personnel Management has issued charts showing the total number of ALJs by agency level as of June 2008 and Chief ALJ/Designee listing as of October 2008.

Federal Employee Health Premiums To Increase Significantly (added 9/30/08).
Federal Employee Health Benefits Program’s (FEHBP) 2009 premiums will increase by an averge of 7% in 2009. However, employee premiums for the most popular plan, Blue Cross/Blue Shield’s standard option, will increase 13.3% and copayments for that plan will increase significantly as well. A positive development is the adding of hearing aids to covered medical equipment. Go to OPM’s link at http://www.opm.gov/insure/health/09rates/index.asp for the new rates. Open season for changes this year runs from November 10 through December 8.

NARFE Website Adds Link for 2007-2008 Congressional Voting Analysis (added 9/30/08).
In this election year, it’s important to know where our Congressional representatives stand on the issues of important to federal employees. The National Active and Retired Federal Employees Association provides an excellent link to 2007-2008 voting analysis for members of Congress. Go to www.capwiz.com/narfe and insert your ZIP Code or ZIP+4 to see a display of your two U.S. Senators and Representative. Select “Votes” under a legislator’s picture to see how they voted on 3 Senate or 5 House votes during 2007-2008. Earlier votes are still available.

ALJ Opening at the SEC (added 9/28/08).
The Securities and Exchange Commission is advertising to fill an ALJ opening. The job announcement states that the open period for submission of applications is September 19 to October 10, 2008.

House passes stopgap measure with 3.9 percent pay raise (added 9/26/08).
Brittany R. Ballenstedt’s September 24, 2008 article in GovExec magazine reports that that the House of Representatives on Wednesday approved a 2009 pay raise of 3.9 percent for civilian federal employees as part of the fiscal 2009 Consolidated Security, Disaster Assistance, and Continuing Appropriations Act (H.R. 2638) funding government through March 2009. The Senate is expected to approve the pay adjustments when it takes up the continuing resolution and Defense authorization bills later this week.

OPM letter regarding the annual ALJ pay increase (added 9/24/08).
OPM Deputy Director Weizmann’s provided the following response to the request by FALJC and other ALJ organizations regarding the 2009 pay increase and pay compression relief:

This is in response to a letter we recently received from Judges Bernoski, Cintron, Glazer and Townsend-Anderson about pay increases that should be authorized for Federal administrative law judges in 2009. The letter asked that we respond to you.
As the letter acknowledges, P.L. 106-97 revised federal law regarding pay of ALJs to establish 6 pay levels within ALJ executive level AL-3, which may not be less than 65% of the rate of basic pay for for Level IV of the Executive Schedule. The law further limits the rate of basoc pay for AL-1 to the rate for Level IV of such Schedule and requires the basic pay rates for ALJs to be adjusted by an appropriate amount, as determined by the President, effective at the same time as pay adjustments for General Schedule employees under 5 U.S.C. 5303. Further, the President’s Pay Agent has extended local comparability payments under 5 U.S.C. 5304 to ALJs each year since locality pay began in 1994.
I appreciate hearing the views of the ALJ community and assure you that we will consider your views and the views of others in the ALJ community as we complete work on pay adjustments for Fedetal employees in 2009.

FALJC Resolution Regarding U.S. Coast Guard Administrative Law Judges (added 9/20/08).
Among other business conducted at the annual FALJC membership meeting on September 14, 2008, the following resolution was passed: The Federal Administrative Law Judges Conference urges that the Congress take no action on moving any adjudicatory function of the Coast Guard Administrative Law Judges until such time as the ongoing GAO and DHS/USCG investigations are complete.

2009 Pay Raise Letter (added 9/19/08).
The ALJC Coordinating Council has submitted a letter to OPM Director Weizmann urging the President and the President’s Pay Agent to authorize ALJs the same national pay raise as will be authorized for the General Schedule and, in addition, provide a supplemental adjustment to the maximum extent practical to offset mounting and widespread ALJ pay compression.. Judge Rosenstein, FALJC’s legislative chair, estimates a 2.9% raise for those of judges at the cap and a little more up to 3.9% for those under the cap. This is all subject to Congressional action during the remainder of the session.

Bankruptcy Trustee Compensation hearing (added 9/11/08).
House Judiciary — Subcommittee on Commercial and Administrative Law
Commercial and Administrative Law Subcommittee (Chairman Sanchez, D-Calif.) of House Judiciary Committee will hold a hearing on bankruptcy trustee compensation.
Date: Tuesday, Sept. 16, 2 p.m.; Place: 2141 Rayburn Bldg.
Contact: Michone Johnson – Democratic Chief Counsel at 202-226-7680

FALJC Treasurer’s Report for period of May 1-August 31, 2008 (added 9/10/08).
Click here to review Judge Arzt’s report.

ALJCC pay raise letter sent to OPM (added 9/9/08).
The ALJ Coordination Council has sent OPM Director Weizmann a letter urging the President take the following actions regarding ALJ pay adjustments in 2009: (1) adjustment of ALJ basic pay to reflect the same increase in basic pay for ALJs as authorized for the General Schedule in 2009; (2) a supplemental adjustment for ALJs by exercising the authority under Public Law No. 106-97 to adjust the percentage of EL-IV pay to which ALJ pay is linked; and (3) extend locality payments to ALJs in 2009. Click here to download the letter.

Report of ALJCC Meeting (updated 9/5/08).
The ALJ Coordinating Council met at noon on Thursday, September 4, 2008. Present were myself, Ed Silverstein (chair), Ron Bernoski, Dan Solomon, Bruce Birchman, Carmen Cintron, Bruce Rosenstein, and Randy Frye. On the agenda were 1. SSA proposed legislation; 2. Status of S. 1919; 3. Joint letter to Pay Agents requesting same pay raise as granted GS; 4. Briefing Book for new administration; 5. Pension Bill; 6. Conference Bill; and 7. Pay Compression. We discussed the letter recently sent by FALJC on SSA Commissioner Astrue’s proposed legislation regarding ALJ discipline actions. AALJ is currently circulating a letter in response to the proposed legislation and will release it shortly. There was no report on the status of S.1919. A draft letter was circulated regarding requesting the annual pay raise for ALJs. Bruce Birchman’s proposal was adopted to include in the letter a request to enhance the standard GS pay increase by an amount that would eliminate the effect of pay compression on upper ALJ grades by placing ALJs in the same position as they were in 1991 vis-à-vis the General Schedule. The letter will be circulated and sent shortly. We discussed a proposal that will be brought before the FALJC membership soon, regarding preparing a briefing book of ALJ legislative issues for the next administration. We discussed the status of H.R. 6706, the ALJ Retirement Act of 2008. Ron reported that the bill, which now has 12 sponsors, is having difficulty getting scored. I offered to make inquiries on the Hill regarding getting the scoring done soon. The ALJ Conference of the U.S. bill proposal was discussed, but there is no draft pending on the Hill at the moment. Pay compression was discussed in connection with the draft letter mentioned earlier. The ALJCC will meet again on January 8, 2009.
Judge Steven A. Glazer

Model Letter for House Resolution 6706 (updated 9/4/08).
FALJC recommends that members call, write, FAX and email House members as individuals to co-sponsor and support HR 6706. Names and addresses of members of Congress are availble at http://www.house.gov/. Click here for a sample letter, but you are encouraged to use your own language and circulate it on this website. Please call to make sure that the representative has received your letters. Because Congress is highly politicized, please make sure that the letter represents the correct party affiliation. If there are any questions from Congressional representatives or staff, please notify your FALJC representative immediately.

FALJC Agenda for September 15, 2008 Seminar at Rehoboth Beach (added 9/3/08).
Click here to download the conference agenda.

AALJ Press Release On “Laptop Law” (updated 9/2/08).
From a press release issued by the AALJ’s National Executive Board:

Currently the nation´s Social Security disability insurance program is struggling under a severe case backlog. In some parts of the country, claimants can wait more than two years for a hearing. According to the Government Accountability Office the backlog results primarily from increased applications, staffing shortages and management weaknesses. The Social Security Administration (SSA) has tried a number of fixes to speed the process including video hearings. In recent years, these hearings have been conducted in special chambers located in government buildings where federal administrative law judges control the camera and where claimants can discuss the most intimate details of their lives and disability, without worrying others will hear. Now, SSA´s management has begun testing a new and until now unpublicized form of video hearing where judges are not in control of the camera, where hearings originate from the offices of private disability lawyers and where no federal employee is present to monitor the hearing and oversee operation of the camera or protect the privacy of claimants. Judges would like to see steps taken to reduce the backlog and more quickly settle claims, however the use of video hearings originating from claimants´ lawyers laptops is not the solution. Claimants who have paid into the Social Security system throughout their working lives have a right to a fair hearing before a judge in a dignified setting. The new “laptop law” video forum has no provision for the judge to position or move the camera during the hearing. It deprives the judge of control of the hearing process and creates too many opportunities to game the system. It is not hard to imagine a claimant testifying from his lawyer´s office reading testimony from a teleprompter or being coached by another lawyer in the background.

FALJC Responds to SSA’s Legislative Proposal to Amend the Civil Service Reform Act of 1978. (added 8/28/08).
FALJC has sent a letter, dated August 28, 2008, to Speaker Pelosi and Majority Leader Reid opposing OPM’s proposal to tighten the disciplinary procedures relating to ALJs.

SSA proposes amendment to the Civil Service Reform Act of 1978. (added 8/25/08).
SSA has submitted a proposal to Congress to modify the disciplinary procedures relating to ALJs. The FALJC Executive Committee has been reviewing the proposal and is developing a response to send Congress.

SSA Announces ALJ Vacancy (added 8/13/08).
SSA is soliciting volunteers for reassignment at government expense to the Casper, Wyoming Satellite Office from among the SSA Office of Disability Adjudication and Review ALJs. The announcement states an application deadline of August 26, 2008.

Former ITC Judge Janet Saxon Dies (updated 8/12/08).
I learned on August 9 the sad news that former ITC Chief Judge Janet Saxon died at her home on August 9. Judge Saxon came to the ITC as a judge in the late seventies, became chief judge there in the mid-eighties, and retired in May 1995. Arrangements for burial are now being planned.
Chief Judge Paul Luckern

ALJ Retirement Bill Reintroduced in House of Representatives (updated 8/8/08).
The Administrative Law Judges Retirement Act of 2008 currently has 11 sponsors in the House, needs to be scored and will need as many co-sponsors as possible. A draft letter for FALJC members to send their Congressional representatives is being drafted and will be posted shortly. The bill, which would provide ALJs covered by the FERS system with the same enhanced annual pension benefit accrual rates as members of the Civil Service Retirement System, would require an additional 1% increase for future contributions by each judge and an additional 1% per year buy-in contribution for past years. The 11 co-sponsors of the bill, H.R.6706, which was introduced on July 31, 2008 are:
Rep Kucinich, Dennis J. [OH-10]
Rep Andrews, Robert E. [NJ-1]
Rep Butterfield, G. K. [NC-1]
Rep Cummings, Elijah E. [MD-7]
Rep Davis, Danny K. [IL-7]
Rep Goode, Virgil H., Jr. [VA-5]
Rep Gordon, Bart [TN-6]
Rep Grijalva, Raul M. [AZ-7]
Rep Hastings, Alcee L. [FL-23]
Rep Schakowsky, Janice D. [IL-9]
Rep Shays, Christopher [CT-4]
Davis is the chair of the pertinent subcommittee – Oversight and Government Reform, Federal Workforce, Postal Service, and the District of Columbia. Its jurisdiction includes federal employee issues, non-appropriation municipal affairs of the District of Columbia, and the Postal Service, including post office namings, holidays, and celebrations. The committee’s members are:
Majority
Danny K. Davis, Chairman
Eleanor Holmes Norton
John P. Sarbanes
Elijah E. Cummings
Dennis J. Kucinich
Wm. Lacy Clay
Stephen F. Lynch
Minority
Kenny Marchant, Ranking Member
John M. McHugh
John L. Mica
Darrell E. Issa
Jim Jordan

FTC’s Chief Administrative Law Judge to Retire (added 8/7/08).
Federal Trade Commission Chairman William E. Kovacic announced on August 4, 2008 that Chief Administrative Law Judge Stephen J. McGuire is retiring after 31 years of public service. Judge McGuire, who was appointed by former FTC Chairman Timothy J. Muris in 2003, will become Vice President for Compliance & Ethics at the University of Louisville Hospital in his hometown, Louisville, Kentucky. “We thank Judge McGuire for his distinguished career of public service and for his many valuable contributions to the Federal Trade Commission. We will remember him for the thoughtful, conscientious approach he took in fulfilling his duties as a manager and a judge.” Chairman Kovacic said. “We wish him the best of success in this exciting new appointment.” Among the FTC cases that Judge McGuire presided over are the Rambus, Inc. matter, which involved alleged monopolization and restraint of trade in the global DRAM computer memory industry and disclosure rules for international standard-setting organizations, and the Evanston Northwestern Healthcare Corporation matter, which was the first hospital post-merger antitrust proceeding in the era of managed care. He also adjudicated several consumer protection matters, including the Telebrands Corporation matter, involving deceptive business practices. Judge McGuire previously served as an administrative law judge with the Environmental Protection Agency, the Patent & Trademark Office, and the Social Security Administration, and as senior attorney and hearings examiner with the Department of Interior Board of Contract Appeals. He also served as an alternative dispute resolution (ADR) mediator in hundreds of environmental cases. Judge McGuire received a certificate in Strategic Management in Regulatory and Enforcement Agencies from Harvard University, John F. Kennedy School of Government; he was president of the Exchange Club of Washington, D.C.; and he spoke at ADR conferences across the nation, including the Attorney General’s Inter-Agency ADR Task Force meetings and the New York Bar Association ADR conference. He is a graduate of the National Judicial College in Reno, Nevada.

FALJC Sends Letter To OPM Regarding Brief Reopening of ALJ Examination (added 8/6/08).
On August 6, 2008, FALJC sent a letter to OPM Director Weizmann expressing concern with the brief amount of time that the register was reopened (1 day).

House backs new FERS sick leave policy (added 8/4/08).
Brittany R. Ballenstedt’s July 31, 2008 article in GovExec magazine reports great news for members of the Federal Employees Retirement System. The article reports that the House of Representatives recently approved a resolution granting members retiring within the next 3 years 75% credit and, thereafter, FULL credit for unused sick leave in their pension calculations – just like members in the Civil Service Retirement System. Currently, FERS members receive no credit for unused sick leave toward their retirement annuity.
Judge Arzt

The ALJ Exam Has Closed (added 8/1/08).
Amazingly, but not surprisingly, the ALJ examination, opened on July 30, but closed after 11:59 p.m. on July 31, as more than 600 applications were received by that date. OPM’s announcement indicates that the examination will remain closed until at least August 1, 2009.

ALJ examination reopened again – BRIEFLY (added 7/31/08).
OPM has reopened the ALJ examination again, but only until the sooner of August 13, 2008 or receipt of the first 600 applications. For the link, click here.

FALJC Comments on OPM Interim Final Rule Regarding ALJ Bar Status (added 7/29/08).
After review and discussion among members of the Executive Committee, Judge Glazer submitted a letter to OPM urging it to permanently remove the requirement set forth in 5 C.F.R. 930(b) that requires incumbent Administrative Law Judges to possess a professional license to practice law and be authorized to practice law.

FALJC opens new avenues with DC area Senators (added 7/24/08).
Past, present and future FALJC presidents paid visits on July 2 and July 22 to staffers for Senator Mikulski (Ulka Patel) and Senator Cardin (Gilberto DeJesus). The staffers were introduced to FALJC’s legislative policy initiatives in the 111th Congress next year, including the joint proposal of the ALJ organizations on pay compression, ALJ retirement reform, the ALJ Conference of the United States proposal, and our opposition to the ITC bill (S.1919 Sec. 601) allowing for the selective certification of ALJs. President Glazer also reports that similar visits are planned for the near future to the offices of Representatives from DC-area districts. He is seeking to achieve more direct contact with congressional members and staff than FALJC has had in the past in order to implement these legislative goals.

OPM rule change to result in DC Bar dues refund to member judges (added 7/22/08).
Now that OPM has suspended the requirement that ALJs be licensed to practice law, Judge Glazer reports that the DC Bar will allow members to revert to judicial status and will refund the difference in dues. ALJ members should contact Mr. Jemal, the membership director at the DC Bar, at (202)626-3475. He is aware of the change and is expecting calls from ALJs.

Retirees Due a 5.7 Percent COLA (added 7/21/08).
As a result of the big jump in inflation in June, Federal and military retirees are looking at their biggest cost of living adjustment in years. To read Mike Causey’s column, click here.

OPM reconsiders comments by FALJC and others, and rescinds active licensure requirement for incumbent ALJs (added 7/18/08).
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PART 930
RIN 3206-AL67
EXAMINING SYSTEM AND PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS (MISCELLANEOUS)
AGENCY: U. S. Office of Personnel Management.
ACTION: Interim rule with request for comments.
SUMMARY: The U. S. Office of Personnel Management is issuing an interim rule suspending the requirement set forth in 5 CFR § 930.204(b) that requires incumbent administrative law judges (“ALJs”) to “possess a professional license to practice law and be authorized to practice law.”
DATES: Comments must be received on or before [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
ADDRESSES: Send, deliver, or fax written comments to: Ms. Angela Bailey, Deputy Associate Director for Talent and Capacity Policy, U.S. Office of Personnel Management, Room 6551, 1900 E Street NW., Washington, DC 20415-9700; email: employ@opm.gov; fax: (202) 606-2329. Comments may also be sent through the Federal eRulemaking Portal at: http://www.regulations.gov. All submissions received through the Portal must include the agency name and docket number or Regulation Identifier Number (RIN) for this rulemaking. FOR FURTHER INFORMATION CONTACT: Ms. Linda Watson by telephone at (202) 606-0830; by fax at (202) 606-2329; by TTY at (202) 418-3134; or by e-mail at linda.watson@opm.gov.
SUPPLEMENTARY INFORMATION: The U. S. Office of Personnel Management is issuing an interim rule suspending the requirement set forth in 5 CFR § 930.204(b) that requires incumbent administrative law judges (“ALJs”) to “possess a professional license to practice law and be authorized to practice law.” This provision requires ALJs to maintain “active status,” ( or “judicial status” in States that prohibit sitting judges from maintaining “active status” to practice law), or to be in “good standing” where the licensing authority considers “good standing” as having a current license to practice law. This licensure requirement set forth in section 930.204(b) henceforth will not apply to incumbent administrative law judges.
ALJ applicants are unaffected by this suspension, and the requirement that applicants possess a professional license to practice law and be authorized to practice law continues to apply. We remain convinced that active licensure at the time of application and appointment is vital as an indicator that the applicant presenting him or herself for assessment and possible appointment has been subject to rigorous ethical requirements right up to the point of appointment. We have reconsidered comments received during the notice and comment period, however, about the burdens imposed by the active licensure requirement, as it applies to incumbents, the potential differences between the ethical requirements that pertain to an advocate and those requirements that pertain to someone asked to adjudicate cases impartially, and the variations in what States require as to lawyers serving as ALJs. We intend once again to solicit comments on this point in a new rulemaking. In the interim, we seek to prevent any adverse impact on incumbents while we engage in this process by suspending the current requirement as to incumbents.
WAIVER OF NOTICE OF PROPOSED RULEMAKING AND DELAY IN EFFECTIVE DATE
Pursuant to 5 U.S.C. § 553 (d)(1), we deem it appropriate to waive the 30-day waiting period and make this regulation effective immediately because this is “a substantive rule which grants or recognizes an exemption or relieves a restriction” set forth in the regulation that is being revised. Further, pursuant to 5 U.S.C. 553(b)(B) and (d)(3), we find that good cause exists to waive the general notice of proposed rulemaking. Because we understand that some incumbents have raised concerns that coming into compliance with bar requirements in section 930.204(b) or continuing legal education requirements of bar membership will impose a burden or hardship on them, we are suspending the requirement in order to alleviate those concerns while we consider its efficacy, as well as comments addressing whether active bar status is necessary to ensure good conduct among incumbent administrative law judges.
EXECUTIVE ORDER 12866, REGULATORY REVIEW
This interim rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
REGULATORY FLEXIBILITY ACT
I certify that these regulations would not have a significant economic impact on a substantial number of small entities (including small businesses, small organizational units, and small governmental jurisdictions) because they would affect only some Federal agencies and employees. List of Subjects in 5 CFR part 930
Administrative practice and procedure, Computer technology, Government employees, Motor vehicles. U.S. Office of Personnel Management.
_______________________________
Linda M. Springer, Director.

Accordingly, OPM is amending 5 CFR part 930 as follows:
PART 930 – PROGRAMS FOR SPECIFIC POSITIONS AND EXAMINATIONS (MISCELLANEOUS)
1. The authority for subpart B of 930 continues to read as follows:
Authority: 5 U.S.C. 1104(a), 1302(a), 1305, 3105, 3301, 3304, 3323(b), 3344, 4301(2)(D), 5372, 7521, and E.O. 10577, 3 CFR, 1954-1958 Comp., p. 219 2. Revise paragraph (b) of §930.204 to read as follows: * * * * * (b) Licensure. (1) At the time of application and any new appointment and while serving as an administrative law judge, the individual must possess a professional license to practice law and be 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. 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 also acceptable in lieu of “active” status in States where the licensing authority considers “good standing” as having a current license to practice law.
(2) The requirements contained in paragraph (b)(1) are suspended until further notice with respect to incumbents serving as administrative law judges. * * * * *

OPM Director Springer resigns (added 7/17/08).
The Director of the Office of Personnel Management announced yesterday she is resigning from her position in mid-August for a job in the private sector. She became the director in 2005. She did not give specifics on her new position. Deputy Director Howard Weizmann will take over as acting director.

FLRA Chairman resigns abruptly on July 14, 2008 (added 7/16/08).
On Monday, July 14, 2008, Dale Cabaniss, the Chairman of the Federal Labor Relations Authority, emailed her staff as follows:
“I have informed the White House that I will be resigning my position as Chairman and Member of the FLRA effective at the end of the day today, Monday, July 14, 2008. Effective immediately, I am designating Catherine V. Emerson as the FLRA’s Acting Executive Director. This designation is in addition to the duties Cathy is performing as Director of the FLRA’s Office of Policy and Performance Management. As Acting Executive Director, Cathy will have the necessary authority to ensure that the agency continues to operate administratively while awaiting a new Chairman. I would like to thank all of you for your dedication and hard work in support of the agency’s mission over the years that I have been a Member and the FLRA’s Chairman.”
This resignation leaves the FLRA with only one member, Democratic appointee Carol Pope. Her term runs through July 2009, but she can’t make a decision without a second member.

Senate Appropriations Committee proposes 3.9 percent civilian pay raise (added 7/14/08).
The Senate Appropriations Committee on Thursday approved a spending bill that would boost civilian federal employees’ pay by 3.9 percent in 2009. That adjustment would be 1 percentage point higher than the 2.9 percent raise proposed by President Bush in February, but it is identical to the civilian pay hike passed last month by House appropriators. Federal employee groups praised the Senate panel for exceeding Bush’s request. “Congressional support for a fair and reasonable pay raise is a clear message for the federal employees who perform the work of the American people every day that their efforts and commitment to excellence are recognized and appreciated,” said National Treasury Employees Union President Colleen Kelley. For the full story, go to http://www.govexec.com/story_page.cfm?articleid=40436&dcn=e_gvet. In response, Judge Rosenstein, FALJC legislative chair, noted the following: “If experience from the recent past is applied for the civilian 2009 pay raise, those judges who are at the EL III cap (base + locality pay) can expect a 2.9% raise assuming that Congress takes that amount and/or permits executive level employees to receive that raise. Those ALJ’s who are under the cap or reside in the locality area for the rest of the United States will see a higher raise up to 3.9%.”

OPM said to be revising rules on Bar membership for ALJs (added 7/11/08).
On July 10, Judge Ed Silverstein received the following update from AALJ president Ron Bernoski regarding the latest development in the AALJ v. OPM lawsuit. It indicates that OPM may be changing its position on Bar membership for sitting ALJs:

DOJ has filed a motion for a stay of the action which we are opposing. The DOJ attorney advised our attorney that OPM will engage in Rulemaking on the ALJ bar membership rules that “will favor our position”. However, the attorney from DOJ could not tell us the length of the stay they are requesting, the nature of the rule change, or when the rulemaking will commence. However, this does show a change in the government’s position on this aspect of the case, but it is troubling that the stay goes to the entire case and not just the bar membership part. The government filed its motion on the day that it was to provide us with the rulemaking data which OPM relied on, which they failed to do. This is troubling, because it either shows that the government continues to “stonewall” on this issue or it does not have the information that it has claimed it relied on. In any regard, the motion for the stay is now pending before the court. Ron

MSPB decision sustains SSA complaint seeking Judge’s removal (added 7/10/08).
Judge William Cates, on loan from the NLRB, has issued an initial decision, which finds in favor of the Social Security Administration’s complaint seeking the removal of ALJ Kelly Jennings. Judge Jennings is assigned to the Atlanta North hearing office. The complaint involved the following charges: (1) Failure to Fully Disclose His Active Duty Status with the United States Army; (2) Improper Dual Employment; (3) Lack of Candor; (4) Failure to Follow the Agency’s Time and Attendance Procedures; and, (5) Failure to Follow the Agency’s “Flexiplace” Procedures. A 6th charge, Conduct Unbecoming an Administrative Law Judge, was dismissed at the beginning of trial.

Senate Subcommittee schedules hearing on pay for the Senior Executive Service (added 7/9/08).
I received the following information in a message from the Senior Executives Association (SEA):
The Senate Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia is holding a hearing on SES pay and performance management at 2 p.m. on July 22, 2008. SEA, along with the Office of Personnel Management and the Government Accountability Office, will testify. SEA will push its legislative agenda calling for assured market based annual pay increases for all Senior Executives at the fully successful or higher level, the inclusion of performance awards in the high-three retirement calculation and greater transparency in the performance management process. We will also contend that the recent OPM SES survey provides additional support for our view that the SES pay system needs to be reformed to make the SES more attractive to current and future Senior Executives.
Judge Glazer

HUD advertising for ALJs (added 7/8/08).
The Department of Housing and Urban Development has issued a job announcement for two ALJ openings in DC. The announcement is open from July 7 to July 28, 2008.

Judge Luckern named Chief ALJ at the USITC (added 7/7/08).
July 3, 2008, USITC News Release 08-065, Contact: Peg O’Laughlin, 202-205-1819
LUCKERN NAMED CHIEF ADMINISTRATIVE LAW JUDGE AT U.S. INTERNATIONAL TRADE COMMISSION
Shara L. Aranoff, Chairman of the United States International Trade Commission (ITC), announced today that Judge Paul J. Luckern has been named the Chief Administrative Law Judge at the ITC. As Chief Administrative Law Judge, Luckern will provide administrative guidance and leadership to assure a thorough, yet expeditious, processing of the agency’s section 337 investigation caseload. He will continue to preside in section 337 investigations as well. ITC administrative law judges manage litigation, preside over evidentiary hearings, and make initial determinations in the agency’s investigations involving unfair practices in import trade. These investigations most often involve allegations of patent and trademark infringement.Luckern has served as an administrative law judge (ALJ) at the ITC since 1984. He served on detail with the ITC for several months prior to his permanent appointment. Luckern was appointed an ALJ with the Social Security Administration in Pittsburgh, PA, in 1981. From 1971 to 1981, he served as a trial attorney in intellectual property with the U.S. Department of Justice, where he received Special Commendation awards for outstanding service in 1975 and 1979. He started as an associate with the law firm of Fish & Neave in New York City in 1964 and later became a junior partner there.From 1962 to 1964, Luckern served as a technical advisor to the late Honorable I. Jack Martin of the United States Court of Customs and Patent Appeals. Prior to that, he worked under a contract as a patent consultant for J.R. Geigy, A.G., in Basil, Switzerland. He was a patent examiner in the U.S. Patent and Trademark Office from 1956 to 1960, and he began his career as a chemist at Eastman Kodak. Luckern holds an LL.B (J.D.) degree and an LL.M degree from Georgetown University. He received a bachelor of science degree in chemistry, cum laude, from Georgetown University and a master of science degree in organic chemistry from Cornell University. He completed further graduate work under a research grant and taught chemistry at the University of Southern California. Luckern is a native of Auburn, New York. The U.S. International Trade Commission is an independent, nonpartisan, quasi-judicial federal agency that provides trade expertise to both the legislative and executive branches of government, determines the impact of imports on U.S. industries, and directs actions against certain unfair trade practices, such as patent, trademark, and copyright infringement.

OPM to Re-Open Administrative Law Judge Exam(added 7/3/08).
The following email and OPM press release were circulated today:

Ladies/Gentlemen, at the request of OPM’s Alan Nelson, I am forwarding this news release which was issued yesterday.
Mike Orenstein, Office of Communications and Public Liaison

FOR IMMEDIATE RELEASE
July 2, 2008, Contact: Michael Orenstein, 202-606-2402

OPM to Announce Re-Opening of the Administrative Law Judge Exam

Washington, D.C. — The U.S. Office of Personnel Management today announced it will re-open the Administrative Law Judge examination to refresh the list of eligible candidates who serve as impartial arbiters at regulatory and benefits-granting federal agencies.
OPM will officially announce the 2008 ALJ examination on its USAJOBS website (www.usajobs.gov) in the near future. The application filing period will be made public at that time; the application limit will factor-in future agency hiring needs.
OPM Director Linda M. Springer said the new examination advances the agency’s strategy of maintaining a sufficient number of qualified ALJ candidates to serve as arbiters of fact in formal proceedings requiring a decision on the record.
“From time to time, we must re-open the exam to ensure federal agencies have access to ALJ candidates who will serve the interests of America’s citizens expeditiously and in accordance with law,” said Springer. “Additionally, we are giving professional men and women the opportunity to serve their country in an important capacity.”
The examination involves a multi-part assessment of an applicant’s qualifications, including proof of specific legal experience and submission of a written Accomplishment Record. Individuals who score highest in this phase will then participate in a written demonstration and structured interview.
OPM last opened the ALJ examination in May 2007. Within six days, OPM had received its stated limit of 1,250 completed applications.

SSA Inspector General’s Report regarding October 29, 2007 notice of proposed rulemaking (added 6/23/08).
In a June 13, 2008 report the SSA Inspector General has concluded that SSA’s proposed rules changes, which require (1) at least 75 days’ notice for hearings and (2) the submission of evidence at least 5 days before the hearing to ensure the ALJ has time to review the evidence, are not likely to remedy hearing process delays.

President Glazer reports on June 18th CEC meeting (added 6/20/08).
I attended the Coalition for Effective Change (CEC) monthly meeting on Wednesday, June 18, 2008, at 9 a.m. in downtown Washington. CEC, of which FALJC is a member, is a non-partisan alliance of associations representing current and retired federal managers, executives, and professionals. Among the other attendees were representatives of The Public Manager, Federal Bar Association, Federal Managers Association, Federally Employed Women, National Active and Retired Federal Employees Association, National Council of Social Security Management Associations, and Senior Executives Association. The minutes of the last meeting were distributed and accepted. The treasurer’s report was distributed and accepted. Melissa Scott of Booz Allen Hamilton made a presentation on her firm’s report about “onboarding,” a model for integrating and engaging new employees in government agencies. Harry Featherstone, president of The Public Manager, reported that August 1 is the deadline for submitting articles through CEC for the magazine’s “Transition” issue. A discussion was conducted on H.R. 6160, the Roosevelt Scholars Act, an act initiating scholarships for graduate students interested in government service. The meeting decided not to specifically support the bill. A discussion was conducted on CEC’s support for H.R. 3774, a bill to establish within OPM an SES Resource Office. The bill has passed the House on 6/3/08, and has been referred to the Senate Committee on Homeland Security and Governmental Affairs. CEC has sent a letter to Sen. Akaka supporting the bill. A discussion was held on other bills, including S.1919 of interest to FALJC. The sense of the members at the meeting was that nothing is moving on the Hill right now. The meeting adjourned at 10:30 a.m.
Judge Glazer

Vacancy at Drug Enforcement Administration, Department of Justice – deadline: July 1, 2008 (updated 6/19/08).
The DEA seeks to fill one ALJ position at the AL-3 level at its office in Arlington, VA. Substantial travel is entailed, as much as 10-12 days in some months. Judges interested should send a resume or other form of application, with two writing samples of recent decisions to: Mary Ellen Bittner, Chief Adminstrative Law Judge, Office of Administrative Law Judges, Drug Enforcement Administration, Washington, D.C. 20537. The deadline for submission of applications is July 1, 2008. The written announcement has been distributed to chief judges and is not posted on USAJobs. If interested and your office has not received a copy of the announcement, you should call the DEA ALJ office at (202) 307-8188 and request one.

Senior Executives Association seeks Congressional relief from pay compression (added 6/18/08).
There is a story in the Federal Times about SEA planning to ask Congress for relief from the pay cap before the end of the current legislative session. Evidently, the SES doesn’t want to fall further behind their GS employees, which I gather is happening at some agencies. Bonosaro says: “We’ve been dealing with SES pay issue [sic] for 27 years, and it’s hard because it affects a small group of people who are not really in it for pay. . . .” Bransford also plans to ask that bonuses be included in the computation of retirement annuities. Perhaps this may be an opportunity for us as well if we can get ALJs added to the legislation.
Judge Ed Silverstein

House panel backs retirement benefits boost for border officers (added 6/17/08).
By Brittany R. Ballenstedt bballenstedt@govexec.com June 13, 2008: Rejecting a White House proposal, a House subcommittee this week approved additional funding for enhanced retirement benefits for Customs and Border Protection officers. The House Appropriations Homeland Security Subcommittee, taking up the fiscal 2009 Homeland Security appropriations bill, voted to grant $217 million to continue a law enforcement officer benefits program for CBP officers. The enhanced retirement benefit, created last year and funded at a rate of $50 million, takes effect July 6. The subcommittee’s approval of the funding shows its support for continuing the program. The law passed last year places CBP officers in line for the retirement benefits many law enforcement officers already receive, allowing them to retire at age 50 after 20 years of service, or at any age after 25 years of service. Formerly, CBP officers were placed in the same category as regular federal employees, who are not eligible for retirement until they have 30 years or more of service and are at least 55 years old. In his fiscal 2009 budget proposal, President Bush proposed repealing the enhanced retirement benefits, requesting no additional funding for the program. The administration claims that CBP officers do not meet the definition of law enforcement officers and therefore should be ineligible for the early retirement option granted to such officers. But CBP has touted the enhanced benefits as a potential tool to boost recruitment and retention at the agency, which is plagued with low morale and high attrition. In fiscal 2007, the agency aimed to hire an additional 646 CBP officers, but actually had to bring a total of 2,327 on board to offset attrition. Besides the retirement benefits, the bill also would provide funding for an additional 100 CBP agriculture specialists and 734 more CBP officers — significantly more than the 539 proposed by President Bush. Colleen Kelley, president of the National Treasury Employees Union, said on Wednesday that CBP needed additional agricultural specialists and officers. She pointed to the bureau’s most recent staffing model, which identified the need for an 4,000 more front-line employees at the nation’s 327 ports of entry. “Each of these provisions in the subcommittee markup is a major step forward not only for CBP and its employees, but for the security of our nation,” Kelley said. The bill also would limit funding for the implementation of a new personnel system at Homeland Security. A spokeswoman for NTEU said on Friday that details on the amount appropriated for the personnel system would not be available until after the full committee markup next week. The funding limit for DHS’ personnel overhaul — the Human Capital Operational Plan — follows similar action by Congress last year. In December, a catch-all funding bill for fiscal 2008 zeroed out funding for the system, providing only $10 million to DHS to help boost morale and other issues identified in a 2006 employee survey.

SSA posts opening for Regional Chief Adminstrative Law Judge (added 6/16/08).
Click here to read SSA’s vacancy announcement for the RCALJ position in San Francisco, CA.

Congressional Hearings of Note (added 6/12/08).
Need for More Judges
Senate Judiciary Committee – Full Committee Hearing
Senate Judiciary Committee (Chairman Leahy, D-Vt.) will hold a hearing on ways to respond to the growing need for additional federal judges
Agenda: Draft Bill — The Federal Judgeship Act of 2008
Contact: Bruce Cohen – Democratic Chief Counsel at 202-224-7703; New Date: Tuesday, June 17, 2:30 p.m.; Place: 226 Dirksen Bldg.
Judge Glazer

Comment and Question by Judge Miller (added 6/12/08).
Congressional hearings are timely and overdue, with some interesting potential! Did anyone see the interesting piece Monday in the NYT about Sandra Day O’Connor and her crusade to educate school children regarding the courts and their function in a democratic society? Good cause, interesting article. Different subject: Is anyone aware of any recent agency revisions to their procedural rules applicable to Administrative Law Judges or their Hearings and Appeals — substance or process – affecting the revisions? I would be grateful for any information regarding same that might be available.My email is miller.edward@dol.gov.
Judge Miller

ITC recruiting for a Chief Administrative Law Judge (added 6/6/08).
Subject: Vacancy Announcement – Chief Administrative Law Judge, AL-0935-3. ITC is recruiting for a Chief Administrative Law Judge, AL-0935-3, Office of the Administrative Law Judges. The announcement AL-08-41 will be opened from Tuesday, May 27, 2008 through Tuesday, June 10, 2008. Applications will be accepted from current and former Federal Administrative Law Judges (ALJ) who meet applicable requirements under 5CFR part 930, Subpart B. This announcement will be opened from Thursday, May 22, 2008 through Thursday, June 12, 2008. If interested, the announcement can be accessed from http://jobsearch.usajobs.opm.gov/tc00.asp. You may also obtain a copy from the announcement rack located in the third floor elevator lobby, or the Office of Human Resources, Room 314. Thank you, Alvina Pasheen Brooks, Human Resources Intern, Office of Human Resources, Room 314, U.S. International Trade Commission (202) 205-2651.

HHS posts position for Managing ALJ of Irvine hearing ofgfice (added 6/6/08).
Managing Administrative Law Judge. SALARY RANGE: 158,500.00 – 158,500.00 USD per year. OPEN PERIOD: Wednesday, May 28, 2008 to Wednesday, June 25, 2008. SERIES & GRADE: AL-0935-02/02. POSITION INFORMATION: Full-Time Permanent PROMOTION POTENTIAL: 02. DUTY LOCATIONS: 1 vacancy – Irvine. WHO MAY BE CONSIDERED: Applications will only be accepted from current or former Federal Administrative Law Judges who meet applicable requirements under 5 CFR part 930, Subpart B. Relocation expenses may be paid. JOB SUMMARY: Become a part of the Department that touches the lives of every American! At the Department of Health and Human Services you can give back to your community, state, and country by making a difference in the lives of Americans everywhere. Join HHS and help to make our world healthier, safer and better for all Americans. The Office of Medicare Hearings and Appeals (OMHA) nationally administers the third level of hearing and appeals for the Medicare program. The Managing Administrative Law Judge (MALJ) is responsible for the overall management of one of four OMHA field offices. ORGANIZATIONAL LOCATION: HHS, Office of the Secretary (OS), Office of Medicare Hearings and Appeals (OMHA), Irvine, California. KEY REQUIREMENTS: U.S. citizenship; background and/or security investigation; occasional travel days required.

Report of June 2 ALJ Coordinating Council meeting (added 6/6/08).
Click here to read Judge Glazer’s report of the meeting.

ITC announces opening for 6th ALJ opening (added 5/28/08).
Subject: Vacancy Announcement – Administrative Law Judge, AL-0935-3. ITC is currently recruiting for an Administrative Law Judge, AL-0935-3, Office of the Administrative Law Judge. Vacancy number is AL-08-40. Applications will be accepted from current and former Federal Administrative Law Judges (ALJ) who meet applicable requirements under 5CFR part 930, Subpart B. This announcement will be opened from Thursday, May 22, 2008 through Thursday, June 12, 2008. If interested, the announcement can be accessed from http://jobsearch.usajobs.opm.gov/tc00.asp. You may also obtain a copy from the announcement rack located in the third floor elevator lobby, or the Office of Human Resources, Room 314. Thank you, Alvina Pasheen Brooks, Human Resources Intern, Office of Human Resources, Room 314, U.S. International Trade Commission (202) 205-2651.

FALJC Constitution and Bylaws amended (added 5/28/08).
Judge John Choate has reported on the results of balloting for proposed changes to the FALJC Constitution and By-laws. FALJC received 23 ballots. The vote for the change to Constitution Article IX regarding Membership Meetings was 22 for and none against. The vote for the change to By-laws Article II regarding Expenditures of Funds was 23 for and none against. In accordance with the ballot results, the FALJC Constitution and By-laws, as amended, are posted on our website.

Administrative Patent Judges appointment process may be unconstitutional (added 5/8/08).
Judge Edward Silverstein raises an interesting NY Times article discussing GWU Law School professor John Duffy’s short paper regarding the constitutionality of Patent and Trademark Office judges. Professor Duffy does explains that the D.C. Circuit has held that ALJs do not suffer from the same constitutional infirmity because they do not render “final” agency decisions. See Landry v. FDIC, 204 F.3d 1125, 1133-34 (D.C. Cir. 2000). Judge Bruce Birchman also notes that some ALJs, like those with the Federal Mine Safety and Health Administration, do issue final agency decisions. However, unlike patent judges, their appointments are made by statutorily-authorized agency officials.
Judge Steven Glazer

FALJC legislative consultant Steve Silver provides update on status of pending legislation (added 5/7/08).
Click here to read Steve Silver’s updates on pending legislation with respect to the ALJ Register, Selective Certification and ALJ pay compression.

SSA Commissioner Astrue Says ALJs Who Want More Staff Promote “A Fiction (added 5/6/08).
To read interesting excerpts from Commissioner Astrue’s April 23, 2008 testimony before the House Ways and Means Committee, click here.

FALJC 45th Annual Seminar to be held on September 14-16, 2008 in Rehobeth Beach, DE (added 5/5/08).
The Program Agenda will be mailed to members shortly.

Legislative update on pending matters (added 5/2/08).
Steve Silver, our legislative consultant, reports that the Administration opposes the entire provision of H.R. 2830, the Coast Guard Authorization Bill that was recently passed in the House of Representatives. In addition, the Transportation Security Administration (TSA) authored a strongly worded letter to the House of Representatives pointing out that the legislation could have an adverse impact upon the adjudication of TSA’s civil enforcement cases and anticipated cases dealing with the Transportation Worker Identification Credential (TWC) program. Silver is of the opinion that the Administration’s opposition will require the bill to be worked out in a joint conference between the House and the Senate. Additionally, the Senate has requested the Government Accounting Office (GAO) to undertake a review of the legislative provisions in the bill before any action will be taken. On other issues, Silver reports that no action has been taken on the establishment of an Administrative Law Judges Conference of the United States as proposed in the U.S. House of Representatives. Likewise, no movement has occurred on the ALJ pension enhancement bill introduced in the House on July 26, 2007. Lastly, as it concerns pay compression relief for ALJs, Silver opines that a change in administration must occur due to OPM’s steadfast position that any remuneration changes must be linked to job performance.
Judge Bruce Rosenstein

Judge Cook retiring at OFIA (added 5/2/08).
Judge Ann Cook, sole judge at the Office of Financial Institution Adjudication is retiring, effective July 1. OFIA is an independent entity, but for administrative reasons, its employees are on the personnel roster of the Office of Thrift Supervision and OFIA is housed with the Federal Deposit Insurance Corporation at Virginia Square in Arlington. The office handles administrative enforcement proceedings originating in the Office of Thrift Supervision, the Office of the Comptroller of the Currency, the National Credit Union Association, the Board of Governors of the Federal Reserve System and the Federal Deposit Insurance Corporation. Judge Cook is being replaced by Judge Richard Miserendino, former Deputy Chief ALJ at the NLRB. Judge Cook’s retirement plans include an August trip to Sweden and France and welcoming a second grandchild in the fall.

FALJC Executive Committee issues position statement on HR 2830 (added 5/1/08).
The Executive Committee has issued a position statement suggesting several changes to HR 2830 and directed Steve Silver, our legislative consultant, to communicate immediately with the appropriate Congressional committees.

Coast Guard Director of Administration addresses HR 2830 (added 4/30/08).
Attached is George Jordan’s April 24, 2008 e-mail to FALJC responding to HR 2830.

Memorandum of the House Subcommittee on Coast Guard and Maritime Transportation (added 4/29/08).
Attached is the Subcommittee Memorandum preceding the July 31, 2007 hearing held on the Coast Guard’s administrative law system.

Proposed Transfer of Coast Guard ALJ Program to NTSB (added 4/28/08).
Recently introduced House Resolution 2830, at §§ 1001-1005, would transfer the Coast Guard’s jurisdiction over suspension and revocation cases to the National Transportation Safety Board. FALJC has asked its legislative consultant to investigate and report on the matter. Stay tuned.

FALJC issues position statement opposing FTC bill (added 4/24/08).
FALJC has issued a positon statement urging the deletion of Section 4 of Senate Bill 2831 on the grounds that the proposed changes would impair the merit selection process for ALJs, lower the selection standards for ALJs, circumvent the Veteran’s preference requirement, impair the independence of ALJs in favor of in-house selection of FTC staff attorneys, and is unnecessary in the lateral hiring of ALJs.

FTC Reauthorization bill – Selective Certification of Administrative Law Judges (added 4/21/08)
On April 18, 2008, the Executive Committee resolved to oppose the following House bill, which would authorize the Federal Trade Commission’s selection of “specialized” administrative law judges:
SEC. 4. SPECIALIZED ADMINISTRATIVE LAW JUDGES. (a) IN GENERAL- In appointing administrative law judges under section 3105 of title 5, United States Code, to conduct hearings and render initial decisions in formal adjudicative matters before it, the Federal Trade Commission may give preference to administrative law judges who have experience with antitrust or trade regulation litigation and who are familiar with the kinds of economic analysis associated with such litigation. (b) DETAILS- If the Commission asks the Office of Personnel Management to assign an administrative law judge under section 3344 of title 5, United States Code, to conduct a hearing or render an initial decision in a formal adjudicative matter before it, the Commission may request the assignment of an administrative law judge who has experience with antitrust or trade regulation litigation and is familiar with the kinds of economic analysis associated with such litigation and the Office of Personnel Management shall comply with the request to the maximum extent feasible.

SSA appoints 136 new judges (added 4/16/08).
Attached are the 4/9/08 SSA, ODAR, Office of the Chief ALJ, lists of the 136 SSA ALJs who are being hired effective 4/13, 5/11 and 6/22, which include three HHS OMHA (Medicare) transfers. Two of the transfers are former SSA ALJs. One list is alphabetical and the other is by location.
Judge Robin Arzt

Irvine ALJ comments on OMHA Hearing Survey (added 4/15/08).
FALJC has obtained a copy of the telephone questionnaire being used as the script by a private consulting firm for the OMHA Hearings Survey. FALJC has learned that OMHA seeks to obtain input from appellants (rarely attorneys) as to how their administrative hearing experience was perceived. One element of that survey are the following questions about ALJ performance:”54. Please answer yes or no to the following statements about the administrative law judge(s) for your hearing(s) experience (answers consist of Always, Often, Sometimes, Never, Don’t Know). (a) The judge asked questions about the case record(s) and exhibits. (b) The judge clearly understood the record and the issue in my case(s). (c) The judge was professional. (d) The judge was understanding without being condescending. (e) The judge was curteous. (f) The judge was an effective listener. (g) The judge was prepared. (h) The judge was experienced. (i) The judge ran an orderly hearing(s).” As noted in the 4/11/08 posting below, the Irvine judges have offered their reaction to that survey. They have presented their comments to the Managing ALJ in Irvine and to OMHA Chief Judge Rhew. At this point, it is unknown how the survey is being conducted, what is to happen with the results or if it has been initiated. Judge Rhew has simply stated that HHS is interested in this subject: “Obtaining honest feedback from the public we serve is in the long run both educational and helpful for any government agency, because we are in this, together, for the long haul.” He has promised to consider the Irvine judges’ comments, but they have not heard back from him.

HHS appoints new judges to Miami office (added 4/14/08)
Newly appointed judges for HHS Medicare appeals office in Miami: Thomas McCarthy, a former NLRB trial attorney; Lauren Heard, a former SSA attorney from Miami; Barry Peffley, a former PA state judge from Harrisburg; and Geoff Carter, a former Assistant US Attorney with Justice in DC.

Irvine ALJ comments on OMHA Hearing Survey (added 4/11/08).
I am attaching a document which reflects the Irvine OMHA ALJ’s comments on the new OMHA Hearings Survey. This should be of interest to FALJC, as we construe it to be an attempt to rate ALJ performance. I request that you make it known to FALJC’s Executive Committee and/or other appropriate committee.
Judge William Cowan

Federal Trade Commission Reauthorization Act of 2008 (added 4/10/08)
Posted by D. Daniel Sokol (a law professor): In a potentially significant (and for the most part positive) change for the FTC, Daniel K. Inouye (D-Hawaii) and Byron Dorgan (D-N.D.) introduced the Federal Trade Commission Reauthorization Act of 2008. Some of the highlights included specialized ALJs (ie, people who have an antitrust background), the ability of the the FTC to pursue litigation for civil action independently of the DOJ, expanded civil penalties, and speedier rulemaking. It would also increase enforcement powers by State AGs. The FTC has a page devoted to testimony on the proposed Act. Chairman Kovacic’s testimony before the committee is available as is the oral statement of Commissioner Jon Leibowitz.
Judge Bruce Levine

3nd Amended AALJ Complaint filed February 21, 2008 (added 2/28/08)
Responding to the District Court’s partial denial of OPM’s motion to dismiss with leave to amend, the AALJ has addressed the plaintiffs’ standing issue in its third amended AALJ complaint.

Changes to FALJC Constitution and Bylaws proposed (added 2/21/08)
Following up on recent discussion within the Executive Committee regarding membership and agency representation, Judge Glazer has drafted proposed rules changes, which have been circulated with the agenda for the March 14, 2008 meeting.

SSA plans significant ALJ hiring in 2008 (added 2/11/08)
According to the January 21, 2008 article in the Federal Times, the Social Security Administration — which is at its lowest staffing levels in 35 years and which faces a growing backlog of 747,000 disability claims cases — plans to hire 150 administrative law judges and 92 support staff this year. SSA plans to replace only one of every two state disability determination service employees — who help decide whether people claiming severe disabilities should receive benefits — who leave in 2008. SSA might hire more people, but Commissioner Michael Astrue hasn’t made any decisions yet, spokesman Mark Lassiter said.

Administrative Law Judges Locality Payments Relief Act of 2008

2007

OPM responds to AALJ letter regarding ALJ “judicial status” in Virginia and other states (added 12/20/07)
In a letter, dated December 7, 2007, OPM’s General refuses to provide a substantive answer to letter by AALJ President Ron Bernoski regarding the significance of judicial status attributed to ALJs in Virginia and other states. OPM’s trial counsel explained that the refusal to clarify is attributable to the pendency of litigation.

FALJC requests confirmation from OPM regarding the significance of the Virginia Bar’s June 19, 2007 letter (added 11/26/07)
Based upon the Virginia Bar’s letter to one of our colleagues (see November 15th post below), President Lang, in a November 21, 2007 letter to OPM, requests confirmation from OPM that Administrative Law Judges who are members of the Virginia bar comply with 5 C.F.R. §930.204(b) if they hold judicial membership.

State of Virginia issues opinion letter relating to ALJs with judicial status (added 11/15/07)
As stated in a June 19, 2007 letter to one of our colleagues, excerpted for publication, the Virginia State Bar’s ethics counsel has concluded that, since ALJs with judicial status are prohibited from maintaining “active” status to practice law, they are exempted from OPM’s requirement that judges maintain active status

OPM Establishes New Register for Administrative Law Judge Program (added 10/31/07)
OPM’s October 30th news release reports that the new register has been issued and the old one has been terminated.

FALJC Bylaws amended (added 10/30/07)
As reported at the October 19th Executive Committee meeting, the membership, by a vote of 35 to 0, has accepted the report and proposal of the Bylaws Committee to amend the bylaws. The changes deal with the voting provisions. Click here to review the proposed bylaws.

President’s Legislative Update (added 10/25/07)

AALJ files opposition to OPM’s motion to dismiss AALJ’s amended complaint (added 10/24/07)
Click here to download the AALJ’s opposition brief. To get the 11 affidavits in support of AALJ’s opposition, submit your request to rosas730@aol.com.

President’s Legislative Update (added 10/9/07)

President’s Legislative Update (added 10/4/07)
Our legislative representative, Steve Silver, and other consultants are meeting with the appropriate Senate staff to elaborate on our opposition to the ITC proposal to create a new class of administrative adjudicators. He will also present the ABA’s October 3rd letter opposing such legislation. To read that letter, click here. Judge Paul Lang

AALJ litigation update (added 10/2/07)

Surprise! OPM files motion to dismiss AALJ’s amended complaint (added 9/25/07)

FALJC urges Congress to reject the ITC’s proposal to create Section 337 judges
Click here to read President Lang’s August 20, 2007 letter to the Senate Financial Services Committee.

President Lang posts FERC Chief Judge Wagner’s statement that OPM is impeding an ALJ transfer

2nd Amended AALJ Complaint filed July 2, 2007
Click here to view a copy of the 2nd Amended Complaint

Program Agenda for 2007 FALJC Seminar
Click here to download the current schedule.

Washington Post’s June 25, 2007 article on the AALJ lawsuit.
Click here to read Stephen Barr’s column.

President Lang’s Report on the Annual ALJ Summit held on June 21, 2007                                             Click here to view a copy of his report.

May 31, 2007 letter requesting a clarification as to the status of federal ALJs in New York
To download the letter, click here.

Judge Glazer’s analysis of the AALJ complaint vs. OPM
After reading Judge Glazer’s memo, members are asked to participate in a discussion on the Message Board. To download the memo, click here.

AALJ and 6 ALJs file Complaint for Declaratory and Injunctive Relief against OPM and Director Springer on April 18, 2007
To download the complaint and exhibits, click here. (partially incomplete download)

OPM agrees to meet with FALJC and other ALJ organizations on April 18, 2007
To read OPM General Counsel Kerry McTigue’s April 11 letter, click here.

April 11, 2007 Letter to OPM Director Springer Regarding the New ALJ Program Regulations. To read the letter, click here.

2006

FALJC_Statement/Testimony to Congress on Pay Compression and OPM’s Insistence on Pay for Performance Concession, WP Article reporting on the testimony, and a Draft Performance Review and Accountability Program for ALJs 

FALJC_Comments_OPM_Proposed_ ALJ_Program_Regs_February_10_2006

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