Results-Oriented Cultures
Office of Personnel Management Should Review Administrative Law Judge Program to Improve Hiring and Performance Management Gao ID: GAO-10-14 January 15, 2010The Administrative Procedure Act established unique conditions for administrative law judges' (ALJ) hiring and employment to protect their decisional independence. However, the potential for a wave of retirements and other events have focused attention on how ALJs are hired and managed. In response to the Consolidated Appropriations Act of 2008, this report examines, among other things, (1) the process for hiring ALJs and selected agencies' observations of the process; (2) ALJs' retirement eligibility and retirement issues; (3) and agency managers' reported ALJ performance management practices and stakeholders' views of these practices. To address these objectives GAO reviewed relevant statutes, regulations, Office of Personnel Management (OPM) retirement-related data, and other program-related documents, and interviewed officials from OPM, ALJ professional associations, and the two largest federal agencies employing ALJs--the Social Security Administration (SSA) and the Department of Health and Human Services (HHS).
SSA and HHS officials responsible for hiring new ALJs reported they were satisfied with the quality of the judges hired from OPM's ALJ register of qualified candidates in 2008. Despite their satisfaction with these ALJ candidates, agency officials raised several issues regarding ALJ hiring and offered suggestions to improve the process, including (1) opening the OPM registry to accept new candidates more frequently, (2) giving greater consideration to agency-specific knowledge and experience, and (3) providing additional agency flexibility in meeting the procedural requirements associated with selecting from the three best qualified candidates and awarding veterans' preference. OPM officials reported they are working to address these issues and develop new approaches, where appropriate. ALJ agencies could experience skill and competency gaps in the ALJ workforce in the near future. As of September 2008, the most currently available data, 51 percent of all ALJs were already eligible to retire. Moreover, by 2013, 78 percent of all ALJs employed as of September 2008 will be eligible to retire, while at 9 of the 25 ALJ agencies, all of the ALJs were eligible to retire. Retiring employees can leave gaps in institutional knowledge and technical skills due, in part, to the time required for new hires to become fully productive. To ensure agencies have talented staff to accomplish their missions, OPM requires agencies to make meaningful progress toward closing skills, knowledge, and competency gaps/deficiencies in all occupations in the agency. Despite the significant proportion of ALJs who were eligible to retire from 2008 to 2013, OPM officials reported that, as of October 2009, they had no record of any federal agency designation of ALJ skill gaps or competency issues. OPM, as ALJ program manager and lead agency in federal human capital management, could use its annual review of federal agencies' human capital accountability plans to assure that ALJ agencies appropriately identify and plan for future ALJ related skill and competency gaps. To safeguard the independence of ALJ decisionmaking, ALJ agencies are prohibited from rating or tying an ALJ's compensation to their performance. Nevertheless, SSA and HHS officials reported using numerous other practices to manage ALJ performance. ALJ association officials were concerned some SSA performance management practices could affect ALJs' decisional independence. The use of competencies in ALJ performance management might help OPM and ALJ agencies define needed ALJ skills and behaviors, ensure objective and balanced performance discussions between managers and ALJs, and enhance consistency in ALJ performance, while not influencing ALJ compensation. Given its role as ALJ program manager and its expertise in performance management, OPM is well-positioned to lead a review of all agencies' ALJ-related management practices.
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Director: Team: Phone:GAO-10-14, Results-Oriented Cultures: Office of Personnel Management Should Review Administrative Law Judge Program to Improve Hiring and Performance Management
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Report to Congressional Addressees:
United States Government Accountability Office:
GAO:
January 2010:
Results-Oriented Cultures:
Office of Personnel Management Should Review Administrative Law Judge
Program to Improve Hiring and Performance Management:
GAO-10-14:
GAO Highlights:
Highlights of GAO-10-14, a report to congressional addressees.
Why GAO Did This Study:
The Administrative Procedure Act established unique conditions for
administrative law judges‘ (ALJ) hiring and employment to protect
their decisional independence. However, the potential for a wave of
retirements and other events have focused attention on how ALJs are
hired and managed. In response to the Consolidated Appropriations Act
of 2008, this report examines, among other things, (1) the process for
hiring ALJs and selected agencies‘ observations of the process; (2) ALJs
‘ retirement eligibility and retirement issues; (3) and agency managers‘
reported ALJ performance management practices and stakeholders‘ views
of these practices. To address these objectives GAO reviewed relevant
statutes, regulations, Office of Personnel Management (OPM) retirement-
related data, and other program-related documents, and interviewed
officials from OPM, ALJ professional associations, and the two largest
federal agencies employing ALJs”the Social Security Administration
(SSA) and the Department of Health and Human Services (HHS).
What GAO Found:
SSA and HHS officials responsible for hiring new ALJs reported they
were satisfied with the quality of the judges hired from OPM‘s ALJ
register of qualified candidates in 2008. Despite their satisfaction
with these ALJ candidates, agency officials raised several issues
regarding ALJ hiring and offered suggestions to improve the process,
including (1) opening the OPM registry to accept new candidates more
frequently, (2) giving greater consideration to agency-specific
knowledge and experience, and (3) providing additional agency
flexibility in meeting the procedural requirements associated with
selecting from the three best qualified candidates and awarding veterans
‘ preference. OPM officials reported they are working to address these
issues and develop new approaches, where appropriate.
ALJ agencies could experience skill and competency gaps in the ALJ
workforce in the near future. As of September 2008, the most currently
available data, 51 percent of all ALJs were already eligible to
retire. Moreover, by 2013, 78 percent of all ALJs employed as of
September 2008 will be eligible to retire, while at 9 of the 25 ALJ
agencies, all of the ALJs were eligible to retire. Retiring employees
can leave gaps in institutional knowledge and technical skills due, in
part, to the time required for new hires to become fully productive.
To ensure agencies have talented staff to accomplish their missions,
OPM requires agencies to make meaningful progress toward closing
skills, knowledge, and competency gaps/deficiencies in all occupations
in the agency. Despite the significant proportion of ALJs who were
eligible to retire from 2008 to 2013, OPM officials reported that, as
of October 2009, they had no record of any federal agency designation
of ALJ skill gaps or competency issues. OPM, as ALJ program manager
and lead agency in federal human capital management, could use its
annual review of federal agencies‘ human capital accountability plans
to assure that ALJ agencies appropriately identify and plan for future
ALJ related skill and competency gaps.
To safeguard the independence of ALJ decisionmaking, ALJ agencies are
prohibited from rating or tying an ALJ‘s compensation to their
performance. Nevertheless, SSA and HHS officials reported using
numerous other practices to manage ALJ performance. ALJ association
officials were concerned some SSA performance management practices
could affect ALJs‘ decisional independence. The use of competencies in
ALJ performance management might help OPM and ALJ agencies define
needed ALJ skills and behaviors, ensure objective and balanced
performance discussions between managers and ALJs, and enhance
consistency in ALJ performance, while not influencing ALJ
compensation. Given its role as ALJ program manager and its expertise
in performance management, OPM is well-positioned to lead a review of
all agencies‘ ALJ-related management practices.
What GAO Recommends:
GAO is making recommendations to OPM regarding ALJ hiring and
performance management. OPM agreed with the hiring-related
recommendation, but disagreed with applying the term ’performance
management“ to ALJs. GAO clarified the statutory basis for its
recommendations and retained its recommendations.
View [hyperlink, http://www.gao.gov/products/GAO-10-14] or key
components. For more information, contact Robert Goldenkoff at (202)
512-2757 or goldenkoffr@gao.gov.
[End of section]
Contents:
Letter:
Background:
SSA and HHS Officials Are Satisfied with Recent ALJs Hired from
Register, but Officials Believe Their Needs Could Be Better Met with
More Hiring Flexibility:
Agencies Could Experience Skill and Competency Gaps in ALJ Workforce
Due to Potential Retirements:
Agencies Manage ALJs without the Use of Performance Ratings or
Competencies:
Several Options Have Been Proposed to Revamp ALJ Program Management:
Conclusions:
Recommendations for Executive Action:
Agency and Third-Party Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Comments from the Office of Personnel Management:
Appendix III: GAO Contact and Staff Acknowledgments:
Related GAO Products:
Tables:
Table 1: OPM and ALJ Agencies Share Responsibilities for Managing ALJ
Hiring, Pay and Performance Management:
Table 2: Majority of ALJs Eligible to Retire at 21of 25 ALJ Agencies
by the End of Fiscal Year 2008:
Table 3: Examples of SSA or HHS Reported Management Practices Used to
Directly and Indirectly Affect ALJ Performance:
Table 4: Summary of Key Features of Current Program and Proposed
Options:
Abbreviations:
AALJ: Association of Administrative Law Judges:
ABA: American Bar Association:
ALJ: Administrative Law Judge:
APA: Administrative Procedure Act:
Appeals Council: Office of Appellate Operations:
CBA: Collective Bargaining Agreement:
CPDF: Central Personnel Data File:
DAB: Departmental Appeals Board:
DDS: Disability Determination Services:
FALJC: Federal Administrative Law Judge Conference:
FERS: Federal Employment Retirement System:
HARP: Human Resources Products & Services Division:
HCAAF: Human Capital Assessment and Accountability Framework:
HCLMSA: Human Capital Leadership & Merit System Accountability
Division:
HHS: Department of Health and Human Services:
MSPB: Merit Systems Protection Board:
NCALJ: National Conference of the Administrative Law Judiciary:
ODAR: Office of the Deputy Commissioner for Disability Adjudication
and Review:
OMHA: Office of Medicare Hearings and Appeals:
OPM: Office of Personnel Management:
SHRP: Strategic Human Resources Policy Division:
SSA: Social Security Administration:
SSAB: Social Security Advisory Board:
SSI: Social Security Income:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
January 15, 2010:
Congressional Addressees:
Each year, federal administrative law judges (ALJ) adjudicate hundreds
of thousands of disputes between federal agencies and private parties
relating to such issues as entitlement to benefits, professional
licensing, regulations, and contracts. Collectively, their decisions
can simultaneously affect a substantial number of Americans and make
significant commitments on behalf of the federal government. For
example, each year, ALJs at the Social Security Administration (SSA)
decide cases that, collectively, commit the federal government to pay
out millions of dollars in disability benefits to thousands of
Americans. In 2008, 25 federal agencies employed approximately 1,400
ALJs, with SSA employing over three-quarters of all federal ALJs.
For decades, policymakers have debated ALJ hiring and employment
issues, in the context of protecting the decisional independence of
ALJs and promoting the ability of agencies to effectively and
efficiently resolve their cases. Because recent events and trends
could affect, in part, the capacity of the ALJ workforce to
effectively adjudicate current and future cases in a timely fashion,
the importance of addressing these issues has become more pressing.
For example, at the same time that a growing proportion of ALJs was
becoming eligible for immediate retirement, the Office of Personnel
Management (OPM) was involved in protracted litigation over the manner
in which veterans' preference was applied to the rating of applicants
for ALJ positions.[Footnote 1] As a result, OPM was under a series of
administrative orders to suspend the use of its list of qualified
candidates, referred to as the ALJ register, in hiring new ALJs and to
suspend accepting new applications from 1999 to 2003 (except for short
periods in 2001).[Footnote 2] In 2003, after prevailing in the lawsuit
that triggered the administrative order, OPM updated and reopened the
ALJ register for use by the agencies but generally did not permit new
applicants to take the examination.[Footnote 3] From 2003 through
2006, OPM generally did not accept new applications to the register
but retained the ALJ register so that the ALJ agencies could hire new
ALJs from among the eligible candidates. In October 2007, OPM
established a new ALJ register based on a new examination and the
previous ALJ register was terminated.[Footnote 4] Agencies began
hiring from the new register in fiscal year 2008. Meanwhile, the
growth in the number of disability cases awaiting disposition at SSA
prompted a number of SSA management initiatives aimed at reducing the
backlog of these cases as a means of increasing ALJ productivity.
Based on a mandate accompanying the Consolidated Appropriations Act of
2008,[Footnote 5] this report examines (1) the process for hiring ALJs
and selected agencies' observations on the process; (2) ALJ
retirements and retirement eligibility; (3) the reported ALJ
management practices at SSA and HHS, and the stakeholders' views of
these practices; and (4) the options that have been proposed to
improve the management of the ALJ workforce, either within existing
authorities or requiring new authorities.
To address these four objectives, we reviewed related statutes,
regulations, testimonies, announcements, correspondence, manuals, and
other program documentation gathered from OPM, and the two federal
agencies employing about 88 percent of ALJs--SSA and the Department of
Health and Human Services (HHS). We also obtained testimonies,
announcements, correspondence, contracts, guidelines, and other
related documentation from the Association of ALJs (AALJ), a union
representing ALJs at SSA and HHS; the Federal ALJ Conference (FALJC),
a professional association of federal ALJs and ALJ managers; and the
American Bar Association's (ABA) National Conference of the
Administrative Law Judiciary, a professional association of federal
ALJs who are also members of the ABA.[Footnote 6] In addition, we
interviewed officials from these agencies and associations. At SSA we
interviewed ALJ managers from the Office of Disability Adjudication
and Review, who conduct impartial hearings and make decisions on
appealed determinations involving retirement, survivors, disability,
and supplemental security income benefits. At HHS, we interviewed ALJ
managers from the Office of Medicare Hearings and Appeals, who conduct
appeal hearings for the Medicare program and who make a new and
impartial decision in accordance with the applicable law, and managers
from the Departmental Appeals Board, who provide impartial,
independent review of disputed decisions in a wide range of HHS
programs under more than 60 statutory provisions. Due to ongoing
litigation,[Footnote 7] we did not collect detailed information
regarding OPM's use of its ALJ register in 2007 and 2008. In addition
to the research methods described above, we undertook other data
collection and analyses to address specific objectives. To review ALJ
retirement and retirement eligibility, we analyzed employment data
from OPM's Central Personnel Data File (CPDF), which is OPM's human
resources reporting system. To identify the proposed options to
improve ALJ performance management, we reviewed numerous related
legislative proposals and proposals from OPM, SSA, the three
associations, and the Social Security Advisory Board.[Footnote 8] We
selected three proposals because, collectively, they contained the
major design features of other more narrowly focused options and
compared these three proposals with the current ALJ program features.
See appendix I for more information on our scope and methodology.
We conducted this performance audit from September 2008 through
January 2010 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
Background:
The ALJ position was created by the Administrative Procedure Act of
1946 (APA)[Footnote 9] The APA separated the rulemaking functions from
administrative adjudication proceedings in federal agencies, and
sought to ensure fairness and due process in both. The APA provides
for formal hearings in certain cases where a party has been affected
by an agency decision or determination.
Typically, ALJs have two primary duties in the administrative
adjudication process. The first duty is to preside over the taking of
evidence at agency hearings and act as the finder of facts in the
proceedings. An ALJ's other main duty is to act as a decision maker by
making or recommending an initial determination about the resolution
of the dispute. In these regards, ALJs, who are executive branch
employees, function much like trial judges in the judicial branch.
[Footnote 10] In general, ALJs hear cases that fall into four
different categories: (1) enforcement cases; (2) entitlement cases;
(3) regulatory cases; and (4) contract cases. Depending on the rules
relevant to the particular issue in dispute, the hearings can be
either adversarial, where the parties or their representatives debate
evidence and law before the ALJ, or non-adversarial, where the ALJ
investigates the facts and develops the arguments both for and against
each party.
In fiscal year 2008, the federal government employed 1,436 civilian
ALJs at 25 agencies. The ALJ agencies[Footnote 11] are extremely
diverse, ranging from components of cabinet-level agencies, such as
the U.S. Coast Guard at the Department of Homeland Security, to
independent agencies such as SSA, the National Transportation Safety
Board and the Securities and Exchange Commission. SSA employed the
largest number of federal ALJs with 1,192 ALJs (83 percent of the
federal ALJ workforce), distantly followed by HHS, which employed 72
ALJs, about 5 percent of the ALJ workforce. Seventeen ALJ agencies
each employed 5 or fewer ALJs.
OPM and ALJ Agencies Share ALJ Hiring, Pay, and Performance Management
Responsibilities:
The conditions of employment for ALJs are unique among federal
employees. In order to ensure ALJs carry out their duties impartially,
the Administrative Procedure Act (APA) stipulates that ALJs are to be
independent of their employing agencies in matters of appointment,
tenure and compensation. To achieve this objective, the APA assigns
responsibilities for the ALJs to three agencies: OPM, the ALJ agency,
and the Merit Systems Protection Board (MSPB).
The ALJ agencies are responsible for managing the ALJs they hire. MSPB
has a role in disciplining ALJs. Under its authority to issue
regulations implementing the APA, the OPM regulations divide the
responsibilities for hiring, pay and performance management[Footnote
12] among OPM, the ALJ agency and the MSPB. Table 1 lists how the
major hiring, pay and individual performance management
responsibilities are divided between OPM and the ALJ agency.
OPM has a number of responsibilities for ALJs under the statutory
framework of the APA. OPM is responsible for administering the exam
and creating a register of qualified candidates for ALJ
positions.[Footnote 13] OPM also has the authority to prescribe
regulations regarding (1) various sections of the APA governing
ALJs;[Footnote 14] (2) implementing the section governing the
appointment of ALJs;[Footnote 15] (3) implementing the requirements
that ALJs be assigned cases in rotation as so far as is practicable
and not perform duties inconsistent with their duties and
responsibilities as ALJs;[Footnote 16] (4) implementing the detail
provisions of the APA, which allow details of ALJs to agencies with
occasional or temporary needs for ALJs as selected by OPM;[Footnote
17] (5) regulations excluding ALJs from the definition of employee for
the purposes of performance appraisals;[Footnote 18] and (6)
implementing the three levels of basic pay for ALJs and allowing OPM
to provide for appointment of an ALJ in the lowest level at an
advanced rate where OPM deems it appropriate.[Footnote 19]
Table 1: OPM and ALJ Agencies Share Responsibilities for Managing ALJ
Hiring, Pay and Performance Management:
ALJ employment responsibilities: Hiring;
Examination and selection of qualified ALJ candidates;
OPM: [Check];
ALJ agency: [Empty].
Maintaining register of qualified ALJ candidates;
OPM: [Check];
ALJ agency: [Empty].
Provide list of certified candidates to ALJ agencies upon request;
OPM: [Check];
ALJ agency: [Empty].
Selection and appointment of ALJs at ALJ agency from list of certified
candidates;
OPM: [Empty];
ALJ agency: [Check].
Determining the number of ALJ positions at agency;
OPM: [Empty];
ALJ agency: [Check].
ALJ tenure;
OPM: [Check];
ALJ agency: [Empty].
Appointment of retired annuitants;
OPM: [Check];
ALJ agency: [Check].
ALJ employment responsibilities: Pay:
Establishing the three levels of pay for ALJs, and rates of pay within
each level;
OPM: [Check];
ALJ agency: [Empty].
Assigning each ALJ position at an agency to a pay level;
OPM: [Check];
ALJ agency: [Empty].
Determining qualifications for appointment to each pay level;
OPM: [Check];
ALJ agency: [Empty].
Paying an ALJ applicant a higher rate of pay due to prior federal
service;
OPM: [Empty];
ALJ agency: [Check].
Paying an ALJ applicant a higher rate of pay due to superior
qualifications;
OPM: [Check];
ALJ agency: [Check].
Promoting ALJ to higher pay level;
OPM: [Check];
ALJ agency: [Check].
ALJ employment responsibilities: Placements and temporary assignments:
Noncompetitive placements, e.g., transfers;
OPM: [Check];
ALJ agency: [Check].
Intra-agency detail or temporary assignment;
OPM: [Check];
ALJ agency: [Check].
ALJ employment responsibilities: Performance management:
Defining permitted management activities;
OPM: [Check];
ALJ agency: [Empty].
Performance ratings;
OPM: [Empty];
ALJ agency: prohibited.
Awards or bonuses;
OPM: [Empty];
ALJ agency: prohibited.
Routine management of ALJs;
OPM: [Empty];
ALJ agency: [Check].
Assignment of cases to ALJ, in rotation;
OPM: [Empty];
ALJ agency: [Check].
Ensuring decisional independence;
OPM: [Check];
ALJ agency: [Check].
Source: GAO analyses of USC sections relating to ALJs and OPM March
2007 ALJ regulations.
[End of table]
In the hiring of ALJs, OPM is responsible for examining applicants and
certifying qualified candidates, while the ALJ agency is responsible
for identifying the number of new ALJs they require and appointing
individual ALJs from OPM's list of certified candidates. As required
by the APA, OPM sets the three levels of pay for ALJs, determines the
qualifications required for appointment to each level, assigns each of
the agency's ALJ positions to one of the pay levels, and determines
the time-in-service required to advance to a higher pay level. OPM
must provide prior approval before an ALJ agency can appoint retired
annuitants, pay an ALJ applicant a higher rate of pay due to superior
qualifications, promote ALJs to higher pay levels, or execute
noncompetitive placements (e.g. transfers), intra-agency details or
temporary assignments. Once the ALJ is employed, OPM and the ALJ
agency share responsibility for managing the ALJ's performance. For
example, OPM defines those management practices that ALJ agencies may
not perform, such as issuing performance ratings and awards and the
ALJ agency is responsible for day-to-day management. According to its
implementing regulation, OPM shares the responsibility with the ALJ
agency for ensuring the ALJ's decisional independence.[Footnote 20]
The APA divides the responsibility for disciplining of ALJs between
the ALJ agency and the MSPB. The APA permits the agencies to take
serious disciplinary action[Footnote 21] against an ALJ only for good
cause as established and determined by the MSPB on the record, after
an opportunity for hearing before the board.
Policymakers, ALJ agencies, and other stakeholders have been
discussing aspects of ALJ management for decades. Over the years,
several options have been proposed to change the roles and
responsibilities for the administration of the ALJ program. Three of
these options are described in more detail later in this report. Over
this same timeframe, to help support deliberations on ALJ issues, we
have issued more than 10 reports where the focus was either on ALJs at
specific agencies or on the federal ALJ program (see list of related
GAO products at the end of this report). Most recently, we issued two
reports relating to ALJ performance at SSA and the Department of
Homeland Security.[Footnote 22]
SSA and HHS Officials Are Satisfied with Recent ALJs Hired from
Register, but Officials Believe Their Needs Could Be Better Met with
More Hiring Flexibility:
In 2007, OPM revised its examination of ALJ applicants by, among other
things, revising the minimum qualification requirements, developing a
set of competencies,[Footnote 23] assessing applicants against the
competencies, and changing the examination scoring method. According
to OPM, in fiscal year 2008, SSA hired 185 ALJs and HHS hired 7 ALJs
from the register established as a result of OPM's new ALJ
examination.[Footnote 24] SSA officials told us that they are very
pleased with the quality of ALJs they hired. HHS officials stated that
they are satisfied that the process provided them with highly
qualified candidates.
OPM is responsible for scoring the results of the competitive
examination and maintaining a register of qualified candidates in rank
order of their final scores. According to OPM officials, after the job
announcements in 2007 and 2008, it took about 6 months for OPM to
complete the examination process and assign the final ratings to
qualified applicants.
The pool of potential ALJ applicants appears to be large because in
2007 and 2008 OPM was able to receive the requested number of
applications in only a few days. According to OPM officials, when OPM
reopened the ALJ register in 2007, they received the desired number of
applications within 1 week of posting an ALJ vacancy announcement. In
2008, OPM received its desired number of applicants within 3 days. In
November 2009, OPM opened a new vacancy announcement for ALJ
vacancies. It received the requested number of applicants within 2
days.
Upon request, OPM provides ALJ agencies with a certified list,
referred to as a certificate, of the highest scoring candidates from
the register who are available to serve at the vacancy locations. If
agency officials choose to fill a vacant ALJ position with a new ALJ,
then the agency must appoint one of the candidates listed on OPM's
certificate. The interview and selection processes vary across ALJ
agencies, but all agencies must comply with federal law and
regulations regarding competitive employment. For example, agencies
must comply with the veterans' preference requirement and the "rule of
three"--agencies must select from the highest scoring three candidates
available to serve in a given location. SSA and HHS officials told us
that it took 8 to15 weeks from the date the agency requested an OPM
certificate of candidates until a selected candidate reported to work.
Despite their satisfaction with the quality of the ALJ candidates, SSA
and HHS officials stated that the ALJ hiring process should have more
flexibility in order for them to appoint candidates that best meet
their agency-specific needs. According to SSA officials, OPM uses a
one-size-fits-all approach in establishing its register of candidates.
SSA officials' reported position was that OPM's ALJ examination of
applicants should also weigh the specialized knowledge and skills
needed to adjudicate SSA cases such as the ability to manage a large
docket because SSA ALJs adjudicate a high volume of cases, and the
temperament to work on non-adversarial cases with unrepresented
claimants. SSA was also concerned about the process for assessing
whether an ALJ candidate on an OPM list of certified candidates was
actually suitable for selection and appointment.[Footnote 25] SSA
officials told us that they currently try to assess the specialized
abilities and the potential suitability of ALJ candidates through
SSA's ALJ interviewing process and investigating the candidates'
backgrounds. SSA officials told us that, in their opinion, the process
was laborious, and requested that OPM assess the suitability of
candidates listed on the certificates provided to agencies. Lastly,
SSA raised concerns about the adequacy of the register to meet their
hiring needs. Given SSA's plans to hire more than 226 ALJs during
fiscal year 2010, SSA officials reported to us their concern that the
register would not provide an adequate number of suitable candidates
to consider for selection. SSA requested that OPM refresh the register
with new candidates as soon as possible and plan to do so, on a
regular basis.
The Chief ALJ of HHS's Office of Medicare Hearings and Appeals (OMHA)
also noted that OPM's examination process does not provide HHS with
candidates who have specialized knowledge important for adjudicating
cases in HHS. He thought, for example, that having 3 years of Medicare
experience would be an asset for an incoming OMHA ALJ. He suggested
that there should be a more flexible process to enable the agency to
select candidates who might be a better fit for the agency's work. The
Chair of HHS's Departmental Appeals Board did not have specific
comments regarding the current hiring process. This board had not had
an ALJ vacancy to fill from 2003 through 2008, and thus, had not hired
an ALJ from the OPM register in 2007 or 2008.
The OPM official responsible for the competitive examination process
reported that OPM experts concluded that having certain specialization
or expertise would not produce a better cadre of ALJs. In OPM's view,
the most important characteristic that ALJs need is the ability to
master lots of facts rather than specialized knowledge. Consideration
of any additional flexibility in ALJ hiring must await the conclusion
of pending litigation.
With regard to SSA's interest in assessing the suitability of all ALJ
candidates on the register, OPM reported in July 2009 that it was
reviewing the documentation SSA provided regarding specific
candidates. OPM noted that the suitability review process encompassed
both a background investigation and an adjudication, either at the
hiring agency or at OPM, depending upon the nature of any issues
identified during the investigation. Agencies are required to
reimburse OPM for each background investigation it conducts. Although
ALJ agencies could request OPM undertake a suitability investigation
at any point in the process, selecting officials usually commence the
suitability assessment process only when the agency is ready to make a
selection because of the expense associated with conducting a proper
suitability investigation. OPM indicated that there was no appropriate
mechanism whereby OPM could undertake suitability assessments in
advance on all the candidates on the ALJ register, and has not
received an appropriation to conduct investigations at its own expense.
Regarding SSA's request for a routine refreshment of the ALJ register,
OPM indicated that it refreshes its register of ALJ candidates by
offering its ALJ examination to new applicants and completing its
examination of the applicants. As examining ALJ applicants requires
significant assistance of retired and sitting ALJs, OPM does not want
to overburden these ALJs by offering the examination too frequently.
According to OPM, the ALJ register was most recently refreshed in
March 2009. The timing for opening the examination is based on several
considerations, such as future hiring needs. OPM regularly queries
agencies about their projected ALJ hiring needs and uses the agencies'
responses to plan when to re-administer the ALJ examination. As of
July 2009, they anticipated they could issue certificates that would
provide an ample number of choices from which to select candidates to
meet the agencies' reported hiring needs. OPM and SSA officials are
addressing the issues SSA raised and, where appropriate, are
developing new approaches and solutions.
Agencies Could Experience Skill and Competency Gaps in ALJ Workforce
Due to Potential Retirements:
ALJ agencies could face skill and competency gaps unless ALJ agencies
and OPM take concerted action to assure that, in the face of
significant retirement eligibility, the ALJ agencies have developed
ALJ hiring and succession plans. As of September 2008, the most
current data available, 51 percent of employed ALJs were eligible to
retire by the end of 2008. By 2013, 79 percent of ALJs will be
eligible for retirement. To put these numbers in perspective, we
recently reported that about one-third of the federal workforce on
board at the end of fiscal year 2007 will be eligible to retire by
2012.[Footnote 26]
The proportion of ALJs who were eligible to retire was not the same at
each of the 25 ALJ agencies (see table 2). As of September 2008, at 9
of the 25 ALJ agencies, all of the ALJs were already eligible to
retire and at 21 of the agencies half or more of the ALJs were
eligible to retire. At 4 of the 25 agencies, less than half of the ALJ
workforce was eligible to retire.
Table 2: Majority of ALJs Eligible to Retire at 21of 25 ALJ Agencies
by the End of Fiscal Year 2008:
Federal agencies employing ALJs: Social Security Administration;
Number of ALJs employed: 1,192;
Number eligible to retire: 598;
Percentage of agency's ALJs eligible to retire[A]: 50.
Federal agencies employing ALJs: Department of Health and Human
Services[B];
Number of ALJs employed: 72;
Number eligible to retire: 19;
Percentage of agency's ALJs eligible to retire[A]: 26.
Federal agencies employing ALJs: Department of Labor;
Number of ALJs employed: 41;
Number eligible to retire: 21;
Percentage of agency's ALJs eligible to retire[A]: 51.
Federal agencies employing ALJs: National Labor Relations Board;
Number of ALJs employed: 40;
Number eligible to retire: 34;
Percentage of agency's ALJs eligible to retire[A]: 85.
Federal agencies employing ALJs: Department of Energy;
Number of ALJs employed: 15;
Number eligible to retire: 9;
Percentage of agency's ALJs eligible to retire[A]: 60.
Federal agencies employing ALJs: Occupational Safety & Health Review
Commission;
Number of ALJs employed: 11;
Number eligible to retire: 8;
Percentage of agency's ALJs eligible to retire[A]: 73.
Federal agencies employing ALJs: Department of Interior;
Number of ALJs employed: 10;
Number eligible to retire: 5;
Percentage of agency's ALJs eligible to retire[A]: 50.
Federal agencies employing ALJs: Federal Mine Safety and Health Review
Commission;
Number of ALJs employed: 9;
Number eligible to retire: 6;
Percentage of agency's ALJs eligible to retire[A]: 67.
Federal agencies employing ALJs: Department of Homeland Security;
Number of ALJs employed: 5;
Number eligible to retire: 3;
Percentage of agency's ALJs eligible to retire[A]: 60.
Federal agencies employing ALJs: U.S. International Trade Commission;
Number of ALJs employed: 5;
Number eligible to retire: 4;
Percentage of agency's ALJs eligible to retire[A]: 80.
Federal agencies employing ALJs: Federal Labor Relations Authority;
Number of ALJs employed: 4;
Number eligible to retire: 1;
Percentage of agency's ALJs eligible to retire[A]: 25.
Federal agencies employing ALJs: Environmental Protection Agency;
Number of ALJs employed: 4;
Number eligible to retire: 3;
Percentage of agency's ALJs eligible to retire[A]: 75.
Federal agencies employing ALJs: Securities and Exchange Commission;
Number of ALJs employed: 4;
Number eligible to retire: 4;
Percentage of agency's ALJs eligible to retire[A]: 100.
Federal agencies employing ALJs: National Transportation Safety Board;
Number of ALJs employed: 4;
Number eligible to retire: 4;
Percentage of agency's ALJs eligible to retire[A]: 100.
Federal agencies employing ALJs: Department of Agriculture;
Number of ALJs employed: 3;
Number eligible to retire: 3;
Percentage of agency's ALJs eligible to retire[A]: 100.
Federal agencies employing ALJs: Department of Justice;
Number of ALJs employed: 3;
Number eligible to retire: 2;
Percentage of agency's ALJs eligible to retire[A]: 67.
Federal agencies employing ALJs: Department of Transportation;
Number of ALJs employed: 3;
Number eligible to retire: 3;
Percentage of agency's ALJs eligible to retire[A]: 100.
Federal agencies employing ALJs: Commodity Futures Trading Commission;
Number of ALJs employed: 2;
Number eligible to retire: 2;
Percentage of agency's ALJs eligible to retire[A]: 100.
Federal agencies employing ALJs: Federal Communications Commission;
Number of ALJs employed: 2;
Number eligible to retire: 2;
Percentage of agency's ALJs eligible to retire[A]: 100.
Federal agencies employing ALJs: Department of Housing and Urban
Development;
Number of ALJs employed: 2;
Number eligible to retire: 1;
Percentage of agency's ALJs eligible to retire[A]: 50.
Federal agencies employing ALJs: Department of Education;
Number of ALJs employed: 1;
Number eligible to retire: 1;
Percentage of agency's ALJs eligible to retire[A]: 100.
Federal agencies employing ALJs: Federal Trade Commission;
Number of ALJs employed: 1;
Number eligible to retire: 0;
Percentage of agency's ALJs eligible to retire[A]: 0.
Federal agencies employing ALJs: Federal Maritime Commission;
Number of ALJs employed: 1;
Number eligible to retire: 1;
Percentage of agency's ALJs eligible to retire[A]: 100.
Federal agencies employing ALJs: Small Business Administration;
Number of ALJs employed: 1;
Number eligible to retire: 1;
Percentage of agency's ALJs eligible to retire[A]: 100.
Federal agencies employing ALJs: Department of the Treasury;
Number of ALJs employed: 1;
Number eligible to retire: 0;
Percentage of agency's ALJs eligible to retire[A]: 0.
Federal agencies employing ALJs: Total;
Number of ALJs employed: 1,436;
Number eligible to retire: 735;
Percentage of agency's ALJs eligible to retire[A]: 51.
Source: GAO analysis of OPM Central Personnel Data File for Fiscal
Year 2008.
[A] Rounded to the nearest percentage.
[B] The ALJ statistics for HHS are for Office of the Secretary, which
includes the Office of Medicare Hearings and Appeals and the
Departmental Appeals Board and employed 71 ALJs, and the Food and Drug
Administration, which employed 1 ALJ.
[End of table]
Administrative law judges are typically older and have served the
public longer than other federal employees. For example, as of fiscal
year 2008, these ALJs were, on average, about 61 years old and had
about 21 years of federal service. In contrast, as of 2005, the
average age of the federal workforce governmentwide was about 46 with
about 15 years of service.
Despite the widespread retirement eligibility of the ALJ workforce,
most ALJs do not retire immediately upon becoming eligible to retire.
In 2007, about 72 percent of administrative law judges were still in
the federal workforce more than 5 years after their eligibility date.
Overall, the ALJ program has experienced a low annual retirement rate,
ranging from 2 to 5 percent from 2002 through 2006, which was about
the same as the total federal workforce, which we noted is younger and
generally has fewer years of service.
ALJ retirements could significantly affect agencies' adjudication
capacities in two ways. First, retirements could significantly affect
those agencies employing a small ALJ workforce. For the 15 agencies
employing fewer than 5 ALJs, one retirement represents a loss of 25
percent or more of their ALJ capacity, at least temporarily. Secondly,
ALJ retirements could also have a more pronounced effect at those
agencies facing increasing case workloads because the agency would be
losing experienced ALJs at a time when demand for their services is
increasing. For example, in 2008, SSA hearing offices received nearly
590,000 claims, an increase of about 6 percent from 2006. In March
2009, the SSA Commissioner projected that, due to the economic
downturn, SSA would receive approximately 50,000 more hearing requests
in fiscal year 2009 than in fiscal year 2008. HHS's Office of Medicare
Hearings and Appeals has also experienced an increasing workload in
recent years. In January 2009, the HHS Inspector General reported
that, from July 2006 to May 2008, the office's caseload increased 37
percent to over 28,000 cases, while the number of cases with the 90-
day decision requirement more than tripled, from 6,079 to 20,720 cases.
Although it appears there are abundant candidates to fill vacant
positions, we have reported that retiring employees can leave gaps in
institutional knowledge and technical skills. These gaps can arise
because, among other reasons, it can take several months for new hires
to become fully productive. For example, at SSA, it takes 1 to 2
months to train a new ALJ, plus an additional 9 months of on-the-job
experience, before SSA considers a new ALJ to be fully productive.
While actual ALJ retirements lag eligibility by several years, the
agencies cannot rely on either the low ALJ retirement rate or the lag
between eligibility and retirement to remain constant. According to
OPM, although demographic factors such as age and years of service can
help predict time of retirement, other factors that are not available
are likely to have a much larger impact on retirement decisions. Such
factors include familial situations, illness, caretaker status,
children in college, the cost of tuition for their children, and
others. The lack of data for some of these factors may limit the
accuracy of retirement forecasts.
OPM is the lead agency in guiding federal human capital management at
executive branch agencies. To assess federal agencies' human capital
management, OPM established the Human Capital Assessment and
Accountability Framework (HCAAF). One of the assessment standards
relates to ensuring agencies have the talented staff that their
mission requires. To meet this standard, OPM requires agencies to make
meaningful progress toward closing skills, knowledge, and competency
gaps in all occupations used in the agency. Furthermore, the standard
requires the agencies particularly to close skills, knowledge, and
competency gaps in mission-critical occupations.[Footnote 27] For
example, SSA's Fiscal Year 2009-2011 Strategic Human Capital Plan, SSA
identified ALJs as a mission-critical occupation and developed a set
of ALJ-specific competencies to guide its ALJ recruitment, retention,
and workforce development initiatives. Despite the significant
proportion of ALJs who were eligible to retire between 2008 and 2013,
OPM officials told us that, as of October 2009, they had no record or
knowledge of any federal agency designation of ALJ skill gaps or
competency issues.
Agencies Manage ALJs without the Use of Performance Ratings or
Competencies:
SSA and HHS Use Numerous Practices Other Than Performance Ratings to
Manage ALJ Performance:
Performance management systems can be powerful tools in helping an
agency achieve its mission and ensuring employees are working toward
common ends. Performance management systems should help employees
understand their responsibilities and how their day-to-day work
contributes to meeting their agency's strategic goals as well as
providing a mechanism for giving employees candid, specific feedback
on how well they are meeting their performance expectations. According
to OPM's performance management guidance, employee performance
management in the federal sector generally includes planning work and
setting expectations, continually monitoring performance, developing
the capacity to perform, periodically rating performance in a summary
fashion, and rewarding good performance. However, in order to ensure
that an ALJ is not unduly influenced by his or her employing agency,
renders impartial decisions, and appears impartial, the APA and OPM
regulations do not permit the employing agency to rate or tie an ALJ's
compensation to the ALJ's performance.
Nevertheless, SSA and HHS managers reported that they employed a
variety of practices other than ratings to directly and indirectly
manage ALJ performance. An example of the variety in management
practices is observed at HHS. There, the Chief ALJ of the Office of
Medicare Hearings and Appeals (OMHA), a large hearing office, assigned
more staff management responsibilities to his ALJs than the Chair of
the Departmental Appeals Board (DAB), a smaller hearing office,
assigned to her ALJs. At HHS's OMHA, which employed 65 ALJs at the end
of fiscal year 2008, ALJs directly supervised their legal teams,
attorney, paralegal specialist and legal assistant. In contrast, at
HHS's DAB, which employed 6 ALJs at the end of fiscal year 2008, the
ALJs did not supervise support staff.
Agency managers and ALJs described the ALJs' performance as
significantly influenced by the hearing office performance, although
the degree of dependency varies by ALJ agency.[Footnote 28] Within
this context, agency managers reported using a wide variety of
practices to either directly influence ALJ performance, or to
indirectly influence ALJ performance by addressing hearing office
performance. The practices focused on such areas as hearing office
management and staffing, case management, quantity and quality of
adjudications, tools to expedite adjudication, workplace privileges,
and progressive discipline. We did not assess the extent to which
various practices were used at SSA and HHS, nor their effectiveness or
appropriateness.
Table 3: Examples of SSA or HHS Reported Management Practices Used to
Directly and Indirectly Affect ALJ Performance:
Direct management practices: Coaching;
Example: Holding informal discussions, encouraging peer competition,
providing formal executive coaching.
Direct management practices: Workplace privileges;
Example: Approving requests for flexi-place, training.
Direct management practices: Training;
Example: Providing ALJs with training on case management and
adjudication.
Direct management practices: Quality;
Example: Setting goals and measures, routinely reviewing of decisions,
tracking measures, providing feedback and training to ALJs.
Direct management practices: Quantity/productivity;
Example: Setting goals and measures, tracking measures, providing
feedback, feedback and training to ALJs.
Direct management practices: ALJ conduct;
Example: Tracking and responding to complaints regarding ALJ conduct.
Direct management practices: Progressive discipline;
Example: Providing counseling, issuing letters of reprimand, filing a
case with the MSPB.
Indirect management practices: Hearing office management;
Example: Hearing office manager supervising support staff;
assigning support staff to various ALJs.
Indirect management practices: Staffing;
Example: Employing sufficient number of ALJs and support staff to meet
caseload demands.
Indirect management practices: Training;
Example: Providing managers with regular training on managing
caseload, ALJs and support staff.
Indirect management practices: Case management;
Example: Setting case processing benchmarks, developing expedited
procedures.
Indirect management practices: Use of tools to expedite case
processing;
Example: Using of electronic document processing, standardizing of
process steps, using video or teleconferencing.
Source: GAO analyses of ALJ-related documents from SSA, HHS, OPM,
AALJ, ABA, and FALJC, and interviews with these agency and association
officials.
[End of table]
The direct practices reported are common to managing the performance
of all federal employees. For example, SSA and HHS ALJ managers
reported providing informal feedback and coaching. The indirect
practices reported addressed aspects of the hearing process that were
not directly under the control of the ALJ. For example, one indirect
approach was to improve the efficiency of case processing by using
electronic document processing, standardizing process procedures, and
tele-and videoconferencing.
ALJ Stakeholders Raised No Concerns about HHS Practices, but Are
Concerned with SSA's Use of Productivity Goals:
ALJ agency managers and officials from ALJ-related associations
expressed differing views regarding current performance management
practices. Managers at HHS's OMHA and DAB thought that statutory and
regulatory deadlines were helpful in managing ALJ productivity. The
Chief ALJ for OMHA thought that their most significant performance
management problem was having enough resources to meet the demands of
their work. He felt there were sufficient safeguards in place to
effectively manage the performance of his supervisory ALJs, while
avoiding interference in the ALJs' decision making. The Chair of HHS's
Departmental Appeals Board found she could effectively manage the
ALJs' performance by engaging them in improving the hearing process.
Yet, while each thought either a performance rating or award could be
a useful management tool in certain situations, if available, they
reported they were able to manage effectively without such tools. AALJ
and FALJC did not raise concerns about specific ALJ management
practices at either HHS office.
At SSA, however, ALJ performance management was of much greater
concern among ALJ stakeholders, especially pertaining to ALJ
productivity.[Footnote 29] In 2007, in order to help SSA reduce its
disability hearing backlog, the Chief ALJ requested the ALJs to manage
their dockets in such a way that they would be able to issue 500-700
legally sufficient decisions each year. As of July 2009, SSA reported
that the request had been an effective tool, among several others, in
helping to raise ALJ productivity.[Footnote 30] Officials from the
AALJ and FALJC questioned the use of a productivity goal as a major
tool to manage ALJ performance for several reasons, including their
view that SSA had not conducted a systematic study to validate the
appropriateness of the numerical range of cases in the goal.[Footnote
31] According to AALJ, FALJC, and ABA officials, SSA's emphasis on
productivity is detrimental to maintaining or improving other
important dimensions of ALJ performance, such as the quality of ALJ
decision making. In addition, AALJ and the Social Security Advisory
Board raised concerns that the agency's emphasis on ALJ productivity
may result in unintended consequences. For example, the AALJ and the
Social Security Advisory Board noted an increase in the number of
favorable decisions. The Advisory Board found that as the number of
decisions increases, the percentage of favorable decisions tend to
increase. The AALJ and the Social Security Advisory Board expressed
concern because rendering a decision favorable to a party appealing an
agency determination requires less ALJ time than rendering an
unfavorable decision. SSA's emphasis on ALJ productivity may lead to
more favorable decisions and result in increasing long-term costs to
the federal government.[Footnote 32] The Social Security Advisory
Board suggested SSA monitor the correlation between the number of
decisions and the number of favorable decisions. In contrast, SSA
reported in December 2009 that the rate of favorable decisions
(allowance rate) had not changed significantly from fiscal year 2001
through the first quarter of fiscal year 2010.
Competencies Provide a Fuller Picture of Performance:
We have reported that high-performing organizations both in the United
States and abroad have applied, among other strategies, a set of
competencies in their employee performance management to provide a
fuller picture of performance. Importantly, we found that
systematically applying competencies to guide employee performance
management had several advantages beyond using competencies to rate or
reward individual performance. These advantages include helping
managers to structure their performance discussions, enhancing
consistency in performance, and ensuring an objective, balanced review
of all the areas significant to the performance of the individual.
Lastly, we have reported that high-performing organizations that
actively involve employees and stakeholders in developing the
performance management systems and provide ongoing training on the
systems help increase their employees' understanding and ownership of
the organizational goals and objectives.[Footnote 33]
OPM and SSA have developed competencies to support other aspects of
ALJ employment. As noted earlier, OPM uses a set of competencies in
its examination of ALJ applicants, while SSA uses a set of ALJ
competencies to assist in their workforce planning. However, OPM has
not established performance competencies to guide ALJ agencies in
their day-to-day management of ALJs. As noted earlier, APA and OPM
regulations prohibit ALJ agencies from issuing performance ratings and
awards to ALJs. Yet, recently, the ALJ associations urged OPM to
implement a particular set of performance standards. Particularly, in
2006, the presidents of several ALJ-related associations, including
AALJ and FALJC, urged OPM to support codifying into law or regulation
ABA's Model Code of Judicial Conduct as a standard for satisfactory
ALJ conduct and performance to which ALJs must adhere. That same year,
the ABA stated that they believed ALJs should be subject to, and
accountable under, appropriate ethical standards adapted from its
Model Code of Judicial Conduct.[Footnote 34] We did not assess the
appropriateness or relative strengths of these different sets of
competencies or standards.
The use of competencies might also help OPM and the ALJ agencies to
ensure the ALJs' decisional independence, a responsibility unique to
ALJ management and which OPM and the ALJ agency share. Even though the
competencies may not be used to influence compensation, a set of
validated competencies would help managers and ALJs to define the
skills and supporting behaviors that ALJs need to effectively
contribute to organizational results, and thereby a shared framework
for discussing employee performance and management practices.
Moreover, a set of validated competencies would also help ensure
objective and balanced discussions between managers and ALJs regarding
performance, and enhance the consistency of ALJ performance.
Furthermore, OPM has expertise in providing performance management
consulting to federal agencies.
Without the systematic application of standards or competencies and
other safeguards to employee performance management, contention over
managing performance, such as at SSA, can arise and persist. For
example, we have previously reported on the use of performance
standards related to the quality and quantity of ALJ decisions to
evaluate ALJ performance, first recommending their use in 1978.
[Footnote 35] In 1990, we noted that the lack of a study to support
SSA's use of an ALJ performance goal (case dispositions per month) led
to long-standing conflict between SSA and its ALJs.[Footnote 36] In
setting its ALJ productivity expectation in October 2007, SSA
officials indicated that they relied on recent historical ALJ
productivity data, rather than conducting a systematic study.
Officials from AALJ reported to us that SSA did not consult with them
prior to issuing their ALJ productivity goal in October 2007. As noted
earlier, the conflict between SSA and its ALJs over SSA's use of an
ALJ productivity goal continues into its third decade.
Several Options Have Been Proposed to Revamp ALJ Program Management:
Over the last 25 years, several statutory options have been proposed
to change the employment and management of ALJs. The options have
addressed to varying degrees several key issues, such as which federal
agency manages the ALJ program, which agency employs ALJs, whether
ALJs receive a performance appraisal, the purpose of the appraisal,
and so forth. In this section, we summarize three statutory options
which have been proposed, without assessing the strengths and
weaknesses of each proposal. We selected these three proposals
because, collectively, these proposals contained the major design
features of other more narrowly focused options.
Table 4: Summary of Key Features of Current Program and Proposed
Options:
Management of the ALJ Program: Program Manager;
Current program features: OPM;
ALJ Corps H.R. 1802 (1995): Corps Chief ALJ and council;
ALJ Conference H.R.5177 (2000): Conference;
Chief ALJ;
Social Security Advisory Board (2006): OPM.
Management of the ALJ Program: Require a dedicated office to manage
the program;
Current program features: No;
ALJ Corps H.R. 1802 (1995): Yes;
ALJ Conference H.R.5177 (2000): Yes;
Social Security Advisory Board (2006): [Empty].
Management of the ALJ Program: Organization selecting candidates from
applicants;
Current program features: OPM;
ALJ Corps H.R. 1802 (1995): OPM;
ALJ Conference H.R.5177 (2000): Conference;
Social Security Advisory Board (2006): SSA and OPM.
Management of the ALJ Program: Organization appointing candidate to
ALJ;
Current program features: ALJ agency;
ALJ Corps H.R. 1802 (1995): Corps council;
ALJ Conference H.R.5177 (2000): Conference;
Social Security Advisory Board (2006): ALJ agency.
Terms and conditions of ALJ employment: Career or term appointment for
Chief ALJ;
Current program features: Career;
ALJ Corps H.R. 1802 (1995): 5-year term;
ALJ Conference H.R.5177 (2000): 5-year term;
Social Security Advisory Board (2006): [Empty].
Terms and conditions of ALJ employment: Appointment of ALJs;
Current program features: Career;
ALJ Corps H.R. 1802 (1995): Career;
ALJ Conference H.R.5177 (2000): Career;
Social Security Advisory Board (2006): [Empty].
Terms and conditions of ALJ employment: Organization setting the ALJs'
pay and compensation;
Current program features: OPM;
ALJ Corps H.R. 1802 (1995): OPM;
ALJ Conference H.R.5177 (2000): Conference;
Social Security Advisory Board (2006): OPM.
Terms and conditions of ALJ employment: ALJs eligibility for bonus or
award for non-judicial duties;
Current program features: No;
ALJ Corps H.R. 1802 (1995): [Empty];
ALJ Conference H.R.5177 (2000): [Empty];
Social Security Advisory Board (2006): Yes.
Management of ALJs: Organization assigning ALJ to agency;
Current program features: ALJ agency and OPM;
ALJ Corps H.R. 1802 (1995): Corps council;
ALJ Conference H.R.5177 (2000): Conference and assigned agency;
Social Security Advisory Board (2006): Agency Chief ALJ.
Management of ALJs: Organization managing ALJs' daily work;
Current program features: ALJ agency;
ALJ Corps H.R. 1802 (1995): Corps division Chief ALJs;
ALJ Conference H.R.5177 (2000): Agency Chief ALJ;
Social Security Advisory Board (2006): Agency Chief ALJ.
Management of ALJs: Organization establishing rules of judicial
practice;
Current program features: ALJ agency;
ALJ Corps H.R. 1802 (1995): Corps council;
ALJ Conference H.R.5177 (2000): Conference;
Chief ALJ;
Social Security Advisory Board (2006): Agency Chief ALJ.
Management of ALJs: Use of a judicial code of conduct for performance
standards;
Current program features: No;
ALJ Corps H.R. 1802 (1995): Yes;
ALJ Conference H.R.5177 (2000): Yes;
Social Security Advisory Board (2006): [Empty].
Management of ALJs: MSPB determines good cause before employing agency
takes adverse action;
Current program features: Yes;
ALJ Corps H.R. 1802 (1995): Yes;
ALJ Conference H.R.5177 (2000): Yes;
Social Security Advisory Board (2006): Yes.
Management of ALJs: Organization carrying out adverse disciplinary
actions;
Current program features: ALJ agency;
ALJ Corps H.R. 1802 (1995): Corps council;
ALJ Conference H.R.5177 (2000): Conference;
Social Security Advisory Board (2006): Agency Chief ALJ.
Management of ALJs: ALJ-specific performance or conduct standards
established;
Current program features: No;
ALJ Corps H.R. 1802 (1995): Yes;
ALJ Conference H.R.5177 (2000): Yes;
Social Security Advisory Board (2006): Yes.
Management of ALJs: Performance appraisals permitted;
Current program features: No;
ALJ Corps H.R. 1802 (1995): [Empty];
ALJ Conference H.R.5177 (2000): [Empty];
Social Security Advisory Board (2006): Yes.
Source: GAO analyses of legislation and Social Security Advisory Board
2006 report.
Note: a blank cell means the description of the proposed option did
not address this specific program feature.
[End of table]
ALJ Corps Option:
The ALJ Corps option was proposed repeatedly in Congress between 1983
and 1995.[Footnote 37] The 1995 version of the legislation was
intended to ensure the impartial resolution of cases by changing the
APA in order to establish an independent corps of ALJs within the
executive branch of government. The corps would organize ALJs into
divisions of practice areas; each led by a supervisory division chief
ALJ who would serve as a liaison between the division and the agency
that required ALJ services. The head of the ALJ Corps, the Chief ALJ,
would be a presidential appointee with Senate confirmation. The Chief
ALJ and the division chief ALJs would serve on the Corps Council. This
body and a Complaint Resolutions Board would review complaints against
ALJs. The council would have the authority to take disciplinary action
against ALJs if MSPB determined there was "good cause." The
legislation did not provide additional details regarding ALJ
performance management.
A major difference between the ALJ Corps option and the current system
is that ALJs would no longer be employed by the agency whose cases
they are hearing. Instead, they would be employed by the corps. The
Corps Council and the division chief ALJs would assign ALJs to the
agencies, manage their workload, establish a code of conduct and
establish the rules of the judicial practice. OPM's role would be
limited to selecting candidates from among job applicants and
maintaining the register of qualified candidates. This legislation
passed the Senate in 1993, but was not considered for a vote by the
House of Representatives.
ALJ Conference Option:
The ALJ Conference option was proposed in the House of Representatives
in May of 1998 and September of 2000.[Footnote 38] The 2000 version of
the legislative proposal changes the APA in order to create the ALJ
Conference of the United States to, among other objectives, "promote
efficiency, productivity, and the improvement of administrative
functions, [and] to enhance public service and public trust in the
administrative resolution of disputes." The conference would be led by
a Chief ALJ who would be a presidential appointee with Senate
confirmation and who could serve a maximum of two 5-year terms. Unlike
the ALJ Corps option, this option proposed to eliminate OPM's ALJ
program responsibilities. This proposed legislation was not considered
for a vote by the House or the Senate.
The major difference between the ALJ Conference option and the current
system is that all of OPM's current program responsibilities, such as
the applicant examination and maintaining a register of qualified
candidates, would be transferred to the ALJ Conference. The
legislation would also allow the Chief ALJ to adopt and issue rules of
judicial conduct for ALJs as long as those rules were consistent with
the ABA's Model Code of Judicial Conduct for ALJs. The rules of
conduct would provide for a voluntary alternative dispute resolution
process conducted at the request of the ALJ. The legislation did not
provide additional details regarding managing ALJ performance.
Social Security Advisory Board Option:
The latest proposed option came from the Social Security Advisory
Board in 2006.[Footnote 39] The board's option suggested making
statutory changes to allow for case processing guidelines and rating
of ALJs. The intended purpose of the board's suggestions was to
increase accountability in the hearing process, and, according to
board officials, provide useful information to ALJs and management. To
protect against any interference with their decisional independence,
this option would have the agency establish a system to investigate
allegations from ALJs of such interference and to take appropriate
action. OPM would have oversight responsibility for this activity and
could review the agency's response to allegations and recommend
further action. ALJs would also continue to have the other protections
for decisional independence that are provided by statute: their pay
would be set in accordance with OPM guidelines and the agency must
provide an ALJ an opportunity for a hearing before the Merit Systems
Protection Board and their establishment of good cause before taking
any adverse action against the ALJ.
The major difference between the Advisory Board's option and the
current system is that the board's option allows the ALJ agency,
through the agency's Chief ALJ, to conduct performance appraisals for
ALJs. These reviews would consider ALJ performance relative to such
criteria as case processing guidelines, judicial comportment and
demeanor, and adherence to law, regulation, and binding agency policy.
The guidelines would be set in collaboration with the ALJs' union,
agency members, and others. The reviews would not include a numerical
rating or ranking or determine pay, but would provide feedback on
performance to assist ALJs in improving themselves and their general
discipline. According to Advisory Board officials, the board
recommendation would not affect ALJs' pay.
To date, these three proposed options have not progressed to
consideration by both houses of Congress.
Conclusions:
Officials from SSA, the largest ALJ employer, told us they were
satisfied with the quality of their 2008 ALJ candidates, as did
officials from HHS's Office of Medicare Hearings and Appeals, the next
largest employer of ALJs. However, these officials told us that, in
their opinion, there should be more flexibility in the ALJ hiring
process in order to better meet their needs. OPM is responsible for
the examination of ALJ applicants and the certification of qualified
ALJ candidates, the first phase in the ALJ hiring process. ALJ
agencies must select their new ALJs from an OPM certificate of
qualified candidates. Beyond these two largest ALJ employers, which
were the focus of our work, OPM could benefit from collecting the
views from ALJ agencies employing smaller numbers of ALJs about the
new hiring process and the potential need for additional
flexibilities. As the federal agency authorized to administer the
governmentwide ALJ program, including prescribing hiring regulations,
OPM could help ALJ agencies develop strategies to address any
concerns, either within the existing hiring process or by revising the
process.
To ensure federal agencies have talented staff, OPM requires agencies
to make meaningful progress toward closing skills, knowledge, and
competency gaps/deficiencies in all occupations used in the agency. A
review of the ALJs' retirement eligibility raises concerns about
potential vulnerabilities in the future ALJ workforce. Given the high
percentage of retirement-eligible ALJs across the federal government,
the ALJ workforce is vulnerable to knowledge and skill gaps. Yet
despite this vulnerability and OPM's human capital management
standard, OPM officials reported they had no record or knowledge of
any federal agency designation of ALJ skill gaps or competency issues.
OPM is well-positioned through its role as the ALJ program manager and
its annual review of federal agencies' human capital accountability
plans to assure that ALJ agencies appropriately identify and plan for
future ALJ-related skill and competency gaps. The identification of
such gaps will enable OPM to provide ALJ agencies with necessary
guidance, tools, and technical assistance to address agency ALJ
workforce gaps. In addition, OPM can take a comprehensive view of the
risks that retirements pose to the capacity of the ALJ workforce, and
lead programwide initiatives, if necessary, to identify, minimize, and
mitigate potential skill gaps.
Given the many practices reportedly used to manage ALJ performance,
the concerns raised by the ALJ-related associations regarding SSA
emphasis on ALJ productivity, and the ALJ agency's need to balance
meeting its organizational goals with ensuring the ALJ's decisional
independence, OPM should review the state of ALJ performance
management across all ALJ agencies. OPM is well-positioned to lead in
reviewing the agencies' ALJ-related management practices because it is
the only federal agency with the statutory authority to investigate
the entire ALJ program and, by regulation, defines those management
practices that ALJ agencies may not perform. Moreover, OPM and the ALJ
agency share responsibility for managing the ALJ's performance. Such a
review could (1) identify the practices currently used to manage ALJ
performance, (2) collect the views of ALJ managers and ALJs regarding
effective ALJ performance management, (3) determine if the ALJ
performance concerns raised at SSA are shared by ALJ managers across
all ALJ agencies, or if such concerns are limited to a few ALJ
agencies, and (4) ensure current practices do not infringe on ALJ
decisional independence. If OPM and/or the ALJ agencies determine that
the current ALJ performance management needs programwide or agency-
level improvement, these agencies could develop agreed-upon
competencies, using existing agency and professional competencies as
starting points. While the agreed-upon competencies could not be used
to influence ALJ compensation, they could help improve ALJ performance
management by defining the skills and supporting behaviors that ALJs
need to effectively contribute to organizational results, ensuring
objective and balanced discussions between managers and ALJs regarding
performance, and enhancing consistency of ALJ performance.
Recommendations for Executive Action:
Given OPM's statutory authority for administering the ALJ program, we
recommend the Director of OPM take the following five actions related
to hiring and managing the performance of ALJs in order to (1)
identify opportunities for continuous improvement of the ALJ hiring
process, (2) identify and address potential competency gaps, and (3)
identify opportunities for improved performance management practices
while maintaining ALJs' decisional independence:
* After current hiring related litigation is resolved, solicit ALJ
agencies' feedback on the new examination process and determine
whether additional agency flexibilities are needed in the ALJ hiring
process.
* Assure ALJ agencies have identified the extent to which their ALJ
workforce is vulnerable to knowledge and skill gaps and addressed
these gaps in their annual human capital plans, if appropriate. OPM
should assist agencies by providing guidance, tools and technical
assistance to enable agencies to identify and address any skill or
competency gaps in its ALJ workforce.
Moreover, consistent with the need for ALJ decisional independence,
lead a program-wide review with ALJ stakeholders of ALJ performance
management options. This review should:
* Determine the degree to which current practices are meeting the
goals of the ALJ agencies and ensuring ALJs' decisional independence.
* Consider the use of competencies in ALJ performance management while
not influencing ALJ compensation.
* Consider the development and distribution of programwide guidance
for ALJ performance management and the involvement of ALJs and
stakeholders in the development of such guidance in order to gain
employee and management ownership of performance management systems.
Agency and Third-Party Comments and Our Evaluation:
We provided a draft of this report to the Secretary of HHS, the
Commissioner of SSA, and the Director of OPM for review and comment.
The Acting Assistant Secretary for Legislation of HHS and the
Commissioner of SSA provided technical comments which we incorporated
as appropriate. The Director of OPM responded with written comments,
which we have reprinted in appendix II. Consistent with our protocols,
we provided a summary of the performance management section of the
draft report to the officials from AALJ, the ALJ union, ABA, and FALJC
for their comments. They also offered technical comments which we
incorporated as appropriate. Collectively, they thought the report's
discussion of performance management was helpful and appreciated the
effort made to ensure their views were presented accurately.
Additionally, SSAB provided technical comments on our presentation of
their results and ALJ option from their 2006 report, which we
incorporated as appropriate.
OPM said it agreed with our recommendation that OPM consult with
agencies prior to designing the next examination and was already
planning to do so. Additionally, OPM expressed concern about the
report's focus on "performance management" a term OPM does not
normally apply to ALJs. In OPM's view, the term performance
management, as defined in its regulations, is the effective use of
performance appraisals, which are not used with ALJs. In OPM's
opinion, "tying the discussion in the report to a concept applied to
employees who may be evaluated and provided with awards is somewhat
confusing and could lead to unintended consequences in terms of
agencies' interactions with their ALJs." OPM also commented that the
report appeared to assume that OPM's role in ALJ management was "well
established and not subject to dispute." Although OPM indicated that
it was open to considering our "suggestions for the greater
involvement of OPM in the management of ALJs," OPM thought we should
"tie that discussion to the statutory framework that actually applies
to ALJs and indicate how it believes OPM could become more involved,
within that framework."
Our report notes that, as described by OPM guidance, performance
management in the federal sector includes planning work and setting
expectations, continually monitoring performance, developing the
capacity to perform, periodically rating performance in a summary
fashion, and rewarding good performance. Our report recognizes that,
in accordance with APA and OPM regulations, ALJs are excluded from
performance appraisals and awards. Nevertheless, other performance
management practices are available to agencies to manage ALJ
performance and agency managers reported to us that they are using
such practices. As stated in our report, OPM could help employing
agencies use these other practices to improve ALJ performance
management, while helping both OPM and the ALJ agency ensure the ALJs'
decisional independence.
Additionally, statutory provisions authorize OPM to prescribe
regulations governing nearly all aspects of ALJ employment (the
exception being that the Merit Systems Protection Board is responsible
for discipline or removal of ALJs). Further, OPM is the only agency in
the federal government with authority to issue regulations on ALJ
employment. OPM's authority to prescribe regulations includes the
authority to "implement, interpret or prescribe law or policy—
"[Footnote 40] For these reasons, we believe OPM has the authority to
take a more active role in the management of the ALJ program, and that
it should do so. OPM also provided technical comments which we
incorporated, as appropriate.
We are sending copies of this report to the congressional committees
with jurisdiction over HHS and its activities; the Secretary of HHS;
and the Director of OMB. In addition, the report will be available at
no charge on the GAO Web site at [hyperlink, http://www.gao.gov].
If you have any questions about this report, please contact me at
(202) 512-2757. Key contributors to this report are listed in appendix
VI. Contact points for our Offices of Congressional Relations and
Public Affairs may be found on the last page of this report.
Signed by:
Robert N. Goldenkoff:
Director, Strategic Issues:
List of Congressional Addressees:
The Honorable Tom Harkin:
Chairman:
The Honorable William Thad Cochran:
Ranking Member:
Subcommittee on Labor, Health and Human Services, Education, and
Related Agencies:
Committee on Appropriations:
United States Senate:
The Honorable David R. Obey:
Chairman The Honorable Todd Tiahrt:
Ranking Member:
Subcommittee on Labor, Health and Human Services, Education, and
Related Agencies:
Committee on Appropriations:
House of Representatives:
The Honorable George V. Voinovich:
Ranking Member:
Subcommittee on Oversight of Government Management, the Federal:
Workforce, and the District of Columbia:
Committee on Homeland Security and Governmental Affairs:
United States Senate:
The Honorable Richard J. Durbin:
United States Senate:
The Honorable John S. Tanner:
Chairman:
Subcommittee on Social Security:
Committee on Ways and Means:
House of Representatives:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Based on a mandate accompanying the Consolidated Appropriations Act of
2008,[Footnote 41] this report examines: (1) the process for hiring
administrative law judges (ALJ) and selected agencies' observations on
the process; (2) the level of retirement and retirement eligibility
for ALJs; (3) the reported ALJ management practices at the Social
Security Administration (SSA) and the Department of Health and Human
Services (HHS), and the stakeholders' views of these practices; and
(4) the options that have been proposed to improve the management of
the ALJ workforce, either within existing authorities or requiring new
authorities.
We focused our data collection on the ALJ hiring process since 2007
and reported performance management practices as described by agency
and association officials. As noted earlier, due to ongoing
litigation, we did not collect detailed information regarding Office
of Personnel Management's (OPM) use of its ALJ register in the 2007
and 2008 hiring.
To address these four objectives, we reviewed related legal
documentation, program documentation gathered from OPM, the two
federal agencies employing about 88 percent of ALJs--SSA and HHS--and
three major professional associations for ALJs: the Association of
ALJs, the Federal ALJ Conference, and the American Bar Association's
National Conference of the Administrative Law Judiciary. We also
conducted interviews with key officials from each of these
organizations to gather information regarding each objective.
Descriptions of ALJ Organizations Providing Hiring and Performance
Information:
The following provides a brief description of each of the ALJ-related
organizations providing hiring and performance information for this
report.
Office of Personnel Management:
OPM has managed the ALJ program since the agency was created in 1979.
The ALJ program was managed through an Office of Administrative Law
Judges until OPM disbanded the office in 2003. OPM divided the program
responsibilities among OPM units, as follows:
* General Counsel serves as the initial contact for ALJ issues:
* Strategic Human Resources Policy (SHRP) Division has the lead for
ALJ policy and regulations.
* Human Resources Products & Services (HARP) Division generates the
ALJ examination, ranking, and register.
* Human Capital Leadership & Merit System Accountability (HCLMSA)
Division handles the ongoing interaction with agencies and identifies
their needs. They have the day-to-day agency liaison responsibility.
SSA Office of the Deputy Commissioner for Disability Adjudication and
Review:
SSA administers two disability programs--Disability Insurance and
Supplemental Security Income--that provide cash benefits to claimants
who believe that they can no longer work because of severe physical or
mental impairments. SSA's Office of the Deputy Commissioner for
Disability Adjudication and Review (ODAR) oversees the adjudication of
those cases where disability claimants appeal the agency
determinations of their benefits. The ODAR consists of the Office of
the Chief Administrative Law Judge--the principal consultant and
advisor to the Deputy Commissioner on all matters concerning the ALJ
hearing function; Office of Appellate Operations (Appeals Council)--
the final level of administrative review under the Administrative
Procedure Act for disability claims; and the Office of Management
which provides administrative support for all related management and
office automation activities. According to OPM data, as of September
2008, SSA employed 1,192 ALJs. These ALJs were supervised by the Chief
Administrative Law Judge, Deputy Chief ALJ, Regional ALJs, and Hearing
Office ALJs.
HHS's Office of Medicare Hearings and Appeals:
HHS's Office of Medicare Hearings and Appeals (OMHA) was created in
July 2005 when the responsibility for conducting appeals of Medicare
benefit determinations transferred from SSA to HHS, Office of the
Secretary. The Office of Medicare Hearings and Appeals (OMHA) is under
the direction of the Chief Administrative Law Judge, who reports
directly to Secretary of HHS. The Office's ALJs issue decisions to
appeals of agency determinations regarding Medicare claims brought
under Parts A, B, C, and D of Title XVIII of the Social Security Act.
Claimants who are dissatisfied with an ALJ decision can seek a further
review and decision from the Medicare Appeals Council. In January
2009, the office employed 65 ALJs, including the Chief ALJ, 4 managing
ALJs, and 60 supervisory ALJs.
HHS Departmental Appeals Board:
HHS's Departmental Appeals Board (DAB), a component within the Office
of the Secretary, is responsible for (1) reviewing certain disputes
between grantees and constituent agencies of the department; (2)
adjudicating certain civil remedies cases pursuant to delegations from
the Secretary; and (3) performing other review, adjudication, and
mediation services as assigned. The board's ALJs hear and decide civil
remedies cases and other cases as assigned. These cases include (1)
sanctions against persons and entities associated with participation
as a provider in federally funded health care programs or as an
employee, contractor, or other fiscal relationship with the
department; (2) contract abuses; and (3) termination of federal
funding for alleged civil rights violations. In January 2009, the
Board Chair reported she supervised five ALJs and one retired ALJ
annuitant.
Association of Administrative Law Judges:
The Association of Administrative Law Judges (AALJ) is a professional
union representing the ALJs employed at SSA and HHS's DAB. The AALJ
has a collective bargaining agreement (CBA) with SSA which is in
effect until 2010, and has had an interim CBA with HHS' DAB since
2003. As of March 2009, according to the union president, the AALJ
represented about 1,100 of the approximately 1,400 federal
administrative law judges, or over 78 percent of ALJs in the federal
workforce.
Federal Administrative Law Judges Conference:
The Federal Administrative Law Judges Conference (FALJC) is a
voluntary professional association of federal administrative law
judges who perform judicial functions within the executive branch of
the government. FALJC was organized over 60 years ago. In 2008, FALJC
reported that its membership includes judges from virtually every
federal agency that employs administrative law judges. As of March
2009, FALJC officials reported there were 174 members (136 are active
ALJs and 38 are retired ALJs) that included management-level ALJs and
line ALJs.
American Bar Association's Judicial Division and National Conference
of Administrative Law Judiciary:
The American Bar Association's (ABA) Judicial Division represents
judges who are members of ABA. As of March 2009, according to
association officials, the Judicial Division had over 3,200 members.
The division is comprised of six conferences: five judicial
conferences and one lawyer conference. Federal ALJs formed what is now
the National Conference of the Administrative Law Judiciary (NCALJ),
as one of the Judicial Division's six conferences, in 1971. According
to association officials, both federal and state ALJs can be members
of the NCALJ, and, as of March 2009, the NCALJ had 233 members.
According to an ABA official, there may be federal ALJs who are ABA
members who are not also members of the Judicial Division or NCALJ
since membership in these ABA suborganizations is voluntary.
ALJ Retirement-Eligibility and Retirement Rates:
To describe demographic data relating to the retirement eligibility of
the ALJs, we analyzed employment data from OPM's human resource
reporting system, Central Personnel Data File (CPDF) for the federal
agencies employing ALJs. We used the pay plan code to identify and
analyze ALJ data in OPM's CPDF. We analyzed data on age, years in
federal service, retirement eligibility, projected retirement rates,
new hires, and similar characteristics of the ALJs. For most of the
groupings, we examined the data from 1991 through 2008 and projected
retirement eligibility through 2013.
To determine the percentage of ALJs eligible to retire, we examined
the fiscal year in which an employed ALJ is first eligible for
voluntary (optional) retirement with an unreduced annuity. For
example, employees under the Federal Employment Retirement System
(FERS) are eligible to retire with reduced annuities at any age from
55 to 62 with 10 years of service or less. The penalty for FERS
employees retiring from age 55 to 61 with less than 20 years of
service is that their annuity is reduced 5 percent for every year they
are under age 62. We considered the penalty for retiring with less
than 20 years under age 62 a disincentive and therefore did not
include this methodology in the definition of "eligible to retire." By
including FERS employees that were eligible to retire on reduced
annuity in the definition of eligible to retire inflates the
percentage of ALJs eligible to retire. Thus, eligible to retire is
defined as "eligible to retire with an unreduced annuity." Moreover,
we did not include temporary and term employees when calculating
retirement eligibility because again, doing so inflates the percentage
of employees that are eligible to retire in any given year. We defined
age at the time the retirement action data was recorded; and the years
of federal service was the effective date of service computation date
as of September 30 of each CPDF file year. New hires data sets were
created by comparing the employee identification numbers of the ALJs
in the current year to that of the previous year. Any ALJ new to the
data set in an analysis year was categorized as a new hire.
For the purposes of our report, we did not independently verify these
data for the years we reviewed; however, in a 1998 report, we found
that governmentwide data from CPDF for key variables in this study
(agency, age, retirement plan, pay plan used to identify ALJs, and
type of personnel action that identified new hires) were 97 percent
accurate or better.[Footnote 42] Since our 1998 report, we have
monitored OPM's reporting requirements and data checks used to assure
that CPDF data are reliable. We also reviewed OPM reports which note
exceptions to OPM's reporting requirements.
In addition, to assess the reliability of data specifically used in
the ALJ analyses we performed a variety of checks on the CPDF data to
ensure they were complete, valid, and consistent with the OPM Guide to
Personnel Data Standards. Although there were minor differences
between agency reported numbers of ALJs and CPDF data, these
differences would not change the findings of this report. Because the
OPM CPDF data quality processes have not substantially changed since
the cited 1998 GAO report, our monitoring of CPDF data, and the
specific checks we performed on the ALJ data prior to our analyses, we
conclude that CPDF data for the years covered in this report are
sufficiently reliable for our purposes.
Identifying ALJ Performance Management Practices:
To identify ALJ performance management practices and stakeholder views
of these practices, we interviewed agency and association officials
and reviewed prior reports and testimonies from OPM, SSA, SSAB, and
HHS. We reviewed previous audits on ALJs conducted by GAO, and HHS's
and SSA's Inspectors General. We also reviewed position papers and
testimonies from a number of ALJ professional associations, AALJ,
FALJC, and ABA. We also reviewed these documents to identify the
factors affecting hearing office and ALJ performance. Given the scope
of our data collection, it is not clear the extent to which the views
offered by the officials from these agencies or ALJ-related
associations are shared across all ALJ agencies or ALJs. We did not
assess the extent to which various practices were used at SSA and HHS,
nor their effectiveness or appropriateness.
Contemporaneously with this study, another GAO team was conducting an
analysis of SSA's plan for reducing the hearings level backlog and
preventing its recurrence, titled Summary of Initiatives to Eliminate
the SSA Hearings Backlog.[Footnote 43] This team conducted site visits
to the National Hearing Center in Falls Church, Virginia and to three
SSA regional offices--Atlanta, Georgia; Chicago, Illinois; and
Seattle, Washington--to identify the factors contributing to, among
other things, the agency's hearings backlog. During these site visits,
they interviewed a variety of staff, including Hearing Office
Directors, ALJs, attorneys, and support staff. They also interviewed
officials from three regional ODAR offices, two state Disability
Determination Services (DDS) offices, one program service center, one
SSA field office, and related professional associations. We collated
from these interviews those responses germane to ALJ hiring and
performance and added them to those comments obtained directly through
this engagement.
Identifying Proposed Options:
To identify the proposed options to improve ALJ performance
management, we reviewed those options that had been proposed to
Congress over the last 30 years. We drew on information collected
through interviews, and our review of related reports, legislation and
proposals from OPM, SSA, HHS, the three associations, and the Social
Security Advisory Board (SSAB). Given the scope of our data
collection, it is not clear if the concerns that prompted the
proposals are shared across all ALJ agencies or ALJs. We selected the
ALJ Corps, ALJ Conference and SSAB options because, collectively, they
contained the major design features of other more narrowly focused
options. We did not assess the relative strengths or weaknesses of
these proposed options.
[End of section]
Appendix II: Comments from the Office of Personnel Management:
The Director:
United States Office Of Personnel Management:
Washington, DC 20415:
December 8, 2009:
Mr. Robert Goldenkoff:
Director, Strategic Issues:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Goldenkoff:
Thank you for the opportunity to review and comment on Results-
Oriented Cultures. Office of Personnel Management Should Review
Administrative Law Judges Program to Improve Hiring and Performance
Management (GAO-10-14).
The Office of Personnel Management appreciates GAO's interest in
seeking ways to improve the ALJ program. Some of the suggestions you
have expressed, especially the advisability of consulting with
agencies prior to designing the next examination, are ideas with which
we agree and which we were already planning to follow. In addition, we
are grateful that GAO recognizes aspects of the program that seem to
be operating well and has taken the time to grasp and tackle complex
issues such as the interaction of the separate assessment and
suitability processes.
We have some concern about the extensive focus upon "performance
management," which, as we have noted in our discussions, is a term of
art not normally applied to ALJs. The term "performance management,"
as our regulations use it, incorporates, as a central focus, the
effective use of performance appraisals ” a tool that may not be used
(pursuant to the Administrative Procedures Act) with respect to
Administrative Law Judges. Tying the discussion in the report to a
concept applied to employees who may be evaluated and provided with
awards is somewhat confusing and could lead to unintended consequences
in terms of agencies' interactions with their ALJs.
The draft report appears to assume that OPM's role in ALJ management
is well-established and not subject to dispute. Although we are open
to considering GAO suggestions for the greater involvement of OPM in
the management of ALJs, we believe that GAO should tie that discussion
to the statutory framework that actually applies to ALJs and indicate
how it believes OPM could become more involved, within that framework.
Thank you again, for your consideration of our thoughts. We have
attached our specific comments with this letter.
Sincerely,
Signed by:
John Berry:
Director:
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
Robert N. Goldenkoff, (202) 512-2757 or goldenkoffr@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, William Doherty, Assistant
Director; Patricia Farrell Donahue, analyst-in-charge; Sara Daleski;
Sharon Hogan; Sabrina Streagle; Gregory Wilmoth; Melanie Papasian; and
William Trancucci made key contributions to this report.
[End of section]
Related GAO Products:
Coast Guard: Administrative Law Judge Program Contains Elements
Designed to Foster Judges' Independence and Mariner Protections
Assessed Are Being Followed. [hyperlink,
http://www.gao.gov/products/GAO-09-489]. Washington, D.C.: June 12,
2009.
Human Capital: Trends in Executive and Judicial Pay. [hyperlink,
http://www.gao.gov/products/GAO-06-708]. Washington, D.C.: June 21,
2006.
Social Security Administration: Agency Is Positioning Itself to
Implement Its New Disability Determination Process, but Key Facets Are
Still in Development. [hyperlink,
http://www.gao.gov/products/GAO-06-779T]. Washington, D.C.: June 15,
2006.
Medicare: Incomplete Plan to Transfer Appeals Workload from SSA to HHS
Threatens Service to Appellants. [hyperlink,
http://www.gao.gov/products/GAO-05-45]. Washington, D.C.: October 4,
2004.
SSA Disability Decision Making: Additional Steps Needed to Ensure
Accuracy and Fairness of Decisions at the Hearings Level. [hyperlink,
http://www.gao.gov/products/GAO-04-14]. Washington, D.C.: November 12,
2003.
Social Security: Many Administrative Law Judges Oppose Productivity
Initiatives. [hyperlink, http://www.gao.gov/products/GAO/T-HRD-90-39].
Washington, D.C.: June 13, 1990.
Social Security: Many Administrative Law Judges Oppose Productivity
Initiatives. [hyperlink, http://www.gao.gov/products/GAO/HRD-90-15].
Washington, D.C.: December 7, 1989.
Additional Management Improvements Are Needed to Speed Case Processing
at the Federal Energy Regulatory Commission. [hyperlink,
http://www.gao.gov/products/EMD-80-54]. Washington, D.C.: July 15,
1980.
Management Improvements In the Administrative Law Process: Much
Remains to Be Done. [hyperlink,
http://www.gao.gov/products/FPCD-79-44]. Washington D.C.: May 23, 1979.
Administrative Law Judge Activities and the Hearing Process at the
Federal Regulatory Commission. [hyperlink,
http://www.gao.gov/products/EMD-79-28]. Washington, D.C.: February 13,
1979.
Administrative Law Process: Better Management Is Needed. [hyperlink,
http://www.gao.gov/products/FPCD-78-25]. Washington, D.C.: May 15,
1978.
[End of section]
Footnotes:
[1] When applying for federal jobs, veterans are entitled, by law, to
a veterans' preference of either 5 or 10 additional points to their
application scores, depending on whether or not they were disabled or
meet other preference requirements.
[2] Meeker v. OPM, 319 F.3d 1368 (3rd Cir. 2003); cert. denied, Azdell
v. James, 540 U.S. 1218 (2004).
[3] Certain preference eligibles are entitled by law to reopen an
examination for which OPM maintains a register. See 5 C.F.R. §332.311.
[4] According to OPM, candidates on the previous register had to take
and complete the new ALJ examination in order to be placed on the new
ALJ register.
[5] Pub. L. 110-161, 121 Stat. 1844 (2007).
[6] Among the ALJ-related associations, these three associations
report the largest membership of federal ALJs and have repeatedly
represented the ALJ community in either hearings before Congress or in
correspondence with OPM. A description of these associations is
provided in appendix I.
[7] In 2007, the AALJ and several ALJs filed suit against OPM
regarding the final rule published March 20, 2007, which revised the
ALJ program. The plaintiffs challenged a provision that would require
sitting ALJs to maintain an active bar membership, and also challenged
as arbitrary and capricious under the Administrative Procedure Act's
rulemaking requirements OPM's issuance of a Qualification Standard for
applicants, OPM's notice to federal agencies that a vacancy
announcement for ALJ positions would be posted soon, and OPM's
imposition of a numerical cutoff for ALJ applications. The litigation
was ongoing as of September 2009.
[8] The Social Security Advisory Board is an independent seven-member
bipartisan Advisory Board formed to advise the President, the
Congress, and the Commissioner of Social Security on matters relating
to the Social Security and Supplemental Security Income (SSI) programs.
[9] Pub. L. 79-404, 60 Stat. 237 (1946). When the APA was enacted in
1946, ALJs were called hearing examiners. Congress changed the title
to administrative law judges in 1978. Pub. L. 95-251, 82 Stat. 183
(1978).
[10] CRS, Administrative Law Judges: An Overview, RL34607 (Washington,
D.C.: August 5, 2008).
[11] In this report we refer to federal agencies employing ALJs as ALJ
agencies.
[12] According to OPM's performance management guidance, employee
performance management in the federal sector generally includes
planning work and setting expectations, continually monitoring
performance, and developing the capacity to perform (see "Overview,"
Performance Management (Washington, D.C.: OPM, Dec. 2009), [hyperlink,
http://www.opm.gov/perform/overview.asp] (accessed Dec. 11, 2009)).
Although the guidance also includes elements of performance management
that can not be applied to ALJs, such as rating ALJ performance, there
are performance management practices that we discuss later in this
report that can in fact be applied. Employee performance refers to the
employee's accomplishment of work assignments or responsibilities. GAO
has noted that federal agencies can develop effective performance
management systems by implementing a selected, generally consistent
set of key practices that create a clear linkage--"line of sight"--
between individual performance and organizational success and,
thereby, transform their cultures to be more results-oriented,
customer-focused, and collaborative in nature. See GAO, Results-
Oriented Cultures: Creating a Clear Linkage between Individual
Performance and Organizational Success, [hyperlink,
http://www.gao.gov/products/GAO-03-488] (Washington, D.C.: March 14,
2003).
[13] 5 U.S.C. § 1104(a)(2).
[14] 5 U.S.C. § 1305.
[15] 5 U.S.C. § 3105.
[16] Id.
[17] 5 U.S.C. § 3344.
[18] 5 U.S.C. § 4301(2)(D).
[19] 5 U.S.C. § 5372.
[20] Decisional independence refers to the ability of administrative
law judges to exercise independent judgment based on the evidence,
free from pressures by the parties or other officials within the
agency. Butz v. Economou, 438 U.S. 478, 513 (1978).
[21] The disciplinary actions covered are removal, suspension,
reduction in grade, reduction in pay, or furlough of 30 days or less.
[22] See GAO, Social Security Disability: Performance Measures and
Better Cost Estimates Could Help Improve SSA's Efforts to Eliminate
Its Hearings Backlog, [hyperlink,
http://www.gao.gov/products/GAO-09-398] (Washington, D.C.: September
9, 2009) and GAO, Coast Guard: Administrative Law Judge Program
Contains Elements Designed to Foster Judges' Independence and Mariner
Protections Assessed Are Being Followed, [hyperlink,
http://www.gao.gov/products/GAO-09-489] (Washington, D.C.: June 12,
2009).
[23] OPM defines "competency" as a measurable pattern of knowledge,
skills, abilities, behaviors, and other characteristics needed to
successfully perform work-related tasks. OPM indicated their ALJ
competencies applied to both incoming and incumbent ALJs.
[24] In addition, according to OPM, Department of Labor hired 2 ALJs
and Department of Housing and Urban Development hired 1 ALJ from the
new register. As of August 4, 2009, the Social Security Administration
had hired 143 ALJs and the U.S. Postal Service had hired 1 ALJ from
the new register during fiscal year 2009.
[25] According to OPM, an employing agency's offer of employment to a
candidate is generally made prior to a suitability assessment, and
conditioned upon a subsequent determination that the candidate is
suitable for federal employment. Agencies are free to request an
investigation as soon as a name is forwarded on a certificate. When an
agency, acting under delegated authority, determines that a
governmentwide debarment by OPM may be appropriate, it must refer the
matter to OPM for debarment consideration prior to any proposed
suitability action. When suitability concerns arise, agencies may
alternatively submit to OPM an "objection" or a request to "pass over"
a particular candidate, based upon the criteria set out in the
suitability regulations. In June 2009, SSA raised concerns regarding 7
of 400 candidates that had recently been submitted to it on ALJ
certificates.
[26] For more information, see GAO, Older Workers: Enhanced
Communication among Federal Agencies Could Improve Strategies for
Hiring and Retaining Experienced Workers, GAO-09-206 (Washington,
D.C.: February 24, 2009).
[27] Mission-critical occupations can be identified as mission-
critical across the federal government or for a specific agency.
[28] The hearing office at the ALJ agency provides the organizational,
logistical and administrative support needed for the ALJ to conduct
the on-the-record hearings. These hearings are complex processes due,
in part, to the numerous steps and people involved in processing a
claim. For a detailed description of generic ALJ duties and
responsibilities see Internet edition of Morell E. Mullins, Manual for
ALJ, University of Arkansas (Little Rock, Ark., 2001), [hyperlink,
http://www.oalj.dol.gov/PUBLIC/APA/REFERENCES/REFERENCE_WORKS/MALJ_NAVIG
ATION.HTM] (accessed Feb. 19, 2009).
[29] The contention over ALJ productivity at SSA has been ongoing for
over three decades. GAO has written several reports related to this
issue, most recently GAO, Social Security Disability: Performance
Measures and Better Cost Estimates Could Help Improve SSA's Efforts to
Eliminate Its Hearings Backlog, [hyperlink,
http://www.gao.gov/products/GAO-09-398] (Washington, D.C.: September
9, 2009).
[30] For fuller description of SSA ALJ productivity and its
measurement, see [hyperlink, http://www.gao.gov/products/GAO-09-398].
[31] SSA had conducted a study prior to setting a previous ALJ
productivity goal, in response to a GAO recommendation in GAO, Social
Security: Many Administrative Law Judges Oppose Productivity
Initiatives, [hyperlink, http://www.gao.gov/products/GAO/T-HRD-90-39]
(Washington, D.C.: June 13, 1990).
[32] In 2006, a study calculated that the value of federal spending
for the average Disability Insurance awardee was more than $245,000.
This average cost per awardee translated into about $204 billion in
annual federal costs for the 832,000 new awards made during the 2005.
See D. Autor and M. Duggan, "The Growth in the Social Security
Disability Rolls: A Fiscal Crisis Unfolding," The Journal of Economic
Perspectives, Vol. 20, No. 3, Summer 2006, pp. 71-96.
[33] See [hyperlink, http://www.gao.gov/products/GAO-03-488].
[34] The most recent version of ABA's Model Code of Judicial Conduct
was published in 2007.
[35] See GAO, Administrative Law Process: Better Management Is Needed,
[hyperlink, http://www.gao.gov/products/FPCD-78-25] (Washington, D.C.:
May 15, 1978).
[36] See GAO, Social Security: Many Administrative Law Judges Oppose
Productivity Initiatives, [hyperlink,
http://www.gao.gov/products/GAO/HRD-90-15] (Washington, D.C.: December
7, 1989).
[37] Most recent proposed legislation was the Reorganization of the
Federal Administrative Judiciary Act, H.R. 1802, 104th Congress (1st
Sess. 1995).
[38] Most recent proposed legislation was the Administrative Law Judge
Conference of the United States Act, H.R. 5177, 106th Congress (2nd
Sess. 2000).
[39] Social Security Advisory Board, Improving the Social Security
Administration's Hearing Process (Washington, D.C., September 2006).
The Board's report also included recommendations to improve
performance in the absence of an ALJ performance appraisal system.
[40] 5 U.S.C. § 552.
[41] Pub. L. 110-161.
[42] GAO, OPM's Central Personnel Data File: Data Appear Sufficiently
Reliable to Meet Most Customer Needs, [hyperlink,
http://www.gao.gov/products/GAO/GGD-98-199] (Washington, DC.: Sept.
30, 1998).
[43] See GAO, Social Security Disability: Performance Measures and
Better Cost Estimates Could Help Improve SSA's Efforts to Eliminate
Its Hearings Backlog, [hyperlink,
http://www.gao.gov/products/GAO-09-398] (Washington, D.C.: September
9, 2009).
[End of section]
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