AWARD OF THE ARBITRATOR In the Matter of the Arbitration between: ) ) THE ASSOCIATION OF ADMINISTRATIVE ) LAW JUDGES, IFPTE, AFL-CIO ) John F. Sass ) Arbitrator -and- ) ) UNITED STATES SOCIAL SECURITY ) ADMINISTRATION ) FMCS Case No. ) 08-016-03479-8 ) Concerning the Issue of: ) ) REASSIGNMENT OF CERTAIN CASES FROM ) Date of Award: ONE ADMINISTRATIVE LAW JUDGE TO ) April 30, 2009 ANOTHER UNDER THE AGENCY’S 1000-DAY ) OLD CASE INITIATIVE ) __________________________________________________)

INTRODUCTION

The arbitration hearing in this case was held on December 8 and December 9, 2008, at the offices of the United States Social Security Administration, 701 Fifth Avenue, Suite 904, Seattle, Washington. The Union was represented at this hearing by Richard C. Welch, Esq., of Mooney, Green, Baker, & Saindon, P.C., Washington, D.C. The Social Security Administration was represented by Clary Simmonds, Esq., and Kathleen Petty, Esq., of the Office of the General Counsel, Baltimore, Maryland. At the hearing, the parties stipulated that the following issues were being presented to the Arbitrator for decision:

1. Was the reassignment of eight cases in Region X during the 1000-day old case initiative (as identified in the grievance) from Administrative Law Judges Cheri Filion, Thomas Robinson, and Linda Haack violative of the parties’ collective bargaining agreement (Article 1, Section 3; Article 3; Article 5, Section 1 and 2; Article 13); the Administrative Procedures Act’s language concerning rotational distribution of cases; or of law, rule, or regulation?

2 If so, what is the remedy?

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The hearing was recorded by Zoya O. Spencer, CSR, of Word for Word Court Reporters, Bothell, Washington. Ten witnesses offered testimony in person and under oath at the hearing and there were 13 joint exhibits, 11 Union exhibits, and 12 Agency exhibits marked for identification. All of the exhibits were admitted except for Agency Exhibit #11 which was withdrawn.

After the hearing, the Court Reporter prepared a transcript of the hearing and made

copies available to the parties. Both parties then filed simultaneous post-hearing briefs which were received by the Arbitrator on or about February 9, 2009. Upon his request, the Arbitrator received a copy of the hearing transcript on March 5, 2009. The following Award is based upon the evidence and arguments presented.

THE FACTS The reassignment by management of the eight cases at issue herein from some administrative law judges (ALJs) to other ALJs occurred in Region X of the Agency’s Office of Disability Adjudication and Review (ODAR). ODAR is responsible for hearing disability appeals and issuing decisions on those appeals. It employs ALJs and other personnel to accomplish those tasks. The cases at issue here were being handled out of the Seattle hearing office by ALJs Cheri Filion (4 cases) and Thomas Robinson (1 case) and out of the Portland hearing office by ALJ Linda Haack (3 cases). In 2007, ODAR had approximately 750,000 disability cases pending and approximately 1100 ALJs to handle those cases in 141 hearing offices divided up into ten regions. At the beginning of fiscal year 2007, 63,553 of the pending cases were 1000 days old or older (as measured from the initial date of request for a hearing) and management declared it to be a “moral imperative” to resolve all, or as near to all as was possible, of these cases by the end of the fiscal year (September 30, 2007). And, in fact, by the end of fiscal year 2007, all but 108 of the 1000-day old cases had been resolved. The 1000-day old cases that were left unresolved in spite of management’s best efforts were basically prisoner cases where a hearing was not practicable, cases where the claimant could not be located, or cases that came back to the office (by remand or other means) too near the end of the year to be heard and decided in time. The “1000-day old case initiative” (as the effort to get the 1000-day old cases resolved was called) was the first of a series of initiatives in recent years to deal with the oldest pending cases. Each of the successive initiatives has reduced the number of days that are used to define the oldest cases. In any event, the first initiative was not developed until the middle of fiscal year 2007 and, since it was something new, it took some time to get up and running and fully communicated to employees. Subsequent initiatives have had the benefit of being in place at the start of the fiscal year (thus having more time to reach their goals) and the fact that employees are already familiar with how they work. The 2007 old case initiative was communicated to the ALJs at conferences, through memos and emails, and at staff meetings. Case files were “flagged” to show that they were 1000

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days old and that they should be given priority. In order to get these cases finally decided by the end of the fiscal year (September 30, 2007), management wanted to see them set for hearing no later than August 31, 2007. On June 26, 2007, Frank Cristaudo, the Agency’s Chief Administrative Law Judge, through his Deputy Chief, Nancy Griswold, sent a memo to all Regional Chief Administrative Law Judges (RCALJs) concerning “Reassignment of Aged Cases – ACTION”. This memo noted that the 1000-day old “Aged cases” have been delayed in the hearing process twice the average length of time that it takes to dispose of hearing level cases and urged the RCALJs to ensure that all of these cases were decided by September 30, 2007. To that end, the memo specifically states that Deputy Commissioner Lisa de Soto had authorized the Regional Chief Administrative Law Judges (RCALJs), and the Hearing Office Chief Administrative Law Judges (HOCALJs), to reassign Aged cases if they reasonably believed that the ALJ who currently had the case would be unable to take the actions needed to insure that a decision was issued by September 30. Furthermore, the memo clearly states that such cases could be reassigned even if the ALJ who currently had the case had already done substantial work on it. And finally, the memo set forth specific “guidance” concerning how such reassignments should be handled. This “guidance” was as follows:

• The RCALJ or HOCALJ should ask the ALJ who has an Aged case to provide a written plan for ensuring that the case is disposed of by September 30, 2007.

• If the ALJ provides a plan that, in the RCALJ’s or the HOCALJ’s judgement, reasonably will dispose of the case by September 30, the case should not be reassigned.

• If the ALJ does not submit a plan or indicates that he or she cannot ensure that the case will be disposed of by September 30, the case should be reassigned.

• If the ALJ submits a plan that, in the RCALJ’s or the HOCALJ’s judgement, will not dispose of the case by September 30, the case should be reassigned. However, the RCALJ or the HOCALJ should summarize in writing why he or she believes the plan will not ensure timely disposition. For example, the RCALJ or HOCALJ may not believe a plan is credible because the ALJ has inappropriately delayed the case by not taking timely action in the past; CPMS reflects that the case has been switched between statuses, such as ALPO and POST, over an extended period of time; the ALJ will be out of the office for much of the time until September 30; or the ALJ has no slots left to schedule hearings in time to ensure disposition by September 30. These are only examples, but the RCALJ or HOCALJ should be able to articulate specific reasons for not believing that the September 30 deadline will be met.

• If the ALJ submits a plan but fails to follow through on it, and the RCJ or HCJ reasonably believes that the case will not be disposed of by September 30, 2007, the case should be reassigned.

• If, in the RCALJ’s or HOCALJ’s judgement, it would be futile to ask an ALJ to provide a plan for ensuring that the case is disposed of by September 30, 2007, the case should be reassigned. However, the RCALJ or HOCALJ should summarize in writing specific reasons for believing that it would be futile to ask the ALJ for a plan.

• The decision to reassign an Aged case should be made only to ensure its disposition by September 30. A case cannot be reassigned to influence the case outcome or otherwise to interfere with the ALJ’s qualified decisional independence.

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• Reassignment should be to the HOCALJ and/or RCALJ or a regional cadre designated by the RCALJ. It is important that the RCALJ or HOCALJ ensures that whoever gets a reassigned case will be able to take the actions needed to ensure that a decision is issued to the claimant by September 30, 2007.

On July 5, 2007, Frank Cristaudo, through Nancy Griswold, sent a memo to all ALJs on the progress being made under the initiative. At that point, there were only 492 cases nationwide that were covered by the 1000-day old case initiative that had not yet been scheduled for hearing and Ms. Griswold urged everyone to “forge ahead” and get these cases scheduled and decided. The following is a summary of the facts and circumstances related to each of the eight case reassignments that are at issue here: Case #1 Case #1 was first assigned to Judge Filion on March 16, 2007. Its history prior to being assigned to Judge Filion is unclear on the record, but the Agency’s Case Processing and Management System (CPMS) shows that the claimant first requested a hearing in October, 2004, and that it apparently first came to ODAR in February, 2005. An employee in the office did some workup on it in March, 2005. CPMS shows no more work on the file until it was assigned to Judge Filion in March, 2007.1 On May 3, 2007, Judge Filion held a hearing, took some testimony from the claimant, and admitted some exhibits. She determined that the case needed further development because it had not been properly worked up and she was therefore not able to address the actual issue that needed to be addressed. She ordered the necessary development and checked up on it in June and again in July to make sure that it was getting done. At that point, she determined that it was ready to be set for hearing. When the Seattle Hearing Office Director was reviewing the status of the office’s 1000-day old cases in July, she saw that this case was not set for hearing yet and she was concerned about whether it would be heard and decided before the end of the fiscal year. The case was an Alaska case and, at that point, the earliest date that Judge Filion could hear the case in Alaska was the last week of September. The Hearing Office Director took the matter to Wayne Araki, the Hearing Office Chief ALJ (or “HOCALJ”). Judge Araki had a docket of his own cases in Alaska that he was going to hear on August 29 and he determined that he could hear this case on that date as well. Without consulting with Judge Filion, Judge Araki then reassigned the case to himself and had it scheduled for hearing on August 29 in Alaska. Judge Araki’s reason for reassigning the case to himself was simply to try to make sure that it got resolved before the end of September. He was afraid that, even if Judge Filion was able to hear the case the last week of September, that she still might not get the decision out by September 30. Judge Araki was also concerned that Judge Filion might not schedule the case until sometime after September 30 and, even if she did schedule it earlier, she might postpone it

1 There are a number of possible reasons for this time lag – such as (1) the claimant being unavailable or (2) another ALJ handling the case, deciding it adverse to the claimant, the claimant appealing, and then it ultimately being sent back to this office on remand. The file portions that were put into evidence simply do not show what happened, if anything, from March 2005 to March 2007. In any event, it is important to note that there is no evidence that Judge Filion had anything to do with this case until it was assigned to her in March 2007 and, once she had the case, she moved it along at a pace that no one would normally find any fault with.

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again so that it would not be heard and decided by the end of September. Management had directed that the 1000-day old cases should be scheduled for hearing by the end of August so that they could be decided by the end of September and, since he was going to Alaska in August and could hear the case then, Judge Araki felt that he should just go ahead and handle it himself. Judge Filion did not realize that this case had been reassigned to Judge Araki until August 21, 2007. At that point, she emailed Judge Araki and asked him to please cancel the hearing he had set for August 29 and to reassign the case back to her for hearing in Anchorage the week of September 24. That request was denied by Judge Araki on the basis of the 1000-day old case initiative. Judge Filion responded immediately that she did not believe that the 1000-day old case initiative was a valid basis for taking this case from her and reiterated her “demand” that the case be reassigned to her. She also stated that she thought she could meet the arbitrary deadline of September 30 if the case was reassigned to her by hearing it in Anchorage on September 24, issuing instructions to a decision writer via email or fax, and then signing the decision when she returned to her Seattle office on September 28. Judge Filion sent a copy of her response to Judge Araki to Regional Chief ALJ David DeLaittre. Judge DeLaittre responded in support of Judge Araki handling the case since he could hear it a month earlier than Judge Filion could. Judge Filion then responded to Judge DeLaittre that it was her case; that she wanted it back; and that she was, had been, and continued to be ready, willing, and able to hear it. Judge DeLaittre denied this request and told Judge Filion that she did not have ownership of the case and, if she had a problem with the lack of communications prior to the reassignment, she should talk to her first line supervisor, Judge Araki. After this case was reassigned to Judge Araki, he determined that it needed to be remanded to the District office to obtain the necessary evidence concerning SSI eligibility. The hearing scheduled for August was then vacated and the case was sent back to the District office with instructions. Remanding the case apparently had the effect of removing it from the list of 1000-day old cases being handled by ODAR even though the claimant did not receive a decision in his case before the end of the fiscal year. Cases #2, #3, and #4 Cases #2, #3, and #4 will be grouped together here because they were all cases that were being handled by Judge Filion which were then reassigned by HO Chief Judge Araki to Regional Chief Judge DeLaittre in August 2007. Before getting to those reassignments, however, it is relevant to look briefly at the history of these cases In Case #2, the Agency’s CPMS records show that the Claimant first requested a hearing on June 10, 2004, and that the case came in to ODAR on July 9, 2004. The case was assigned to another judge from July 2004 until March 31, 2006, and it is not clear from the record what all happened during that time. In any event, it was then assigned to Judge Filion on April 5, 2006. A hearing had been scheduled for April 17, 2007, but that hearing was postponed and another hearing was set for June 14, 2007. At that hearing, Judge Filion apparently determined that a supplemental hearing with a medical expert (a psychologist) was needed. The supplemental hearing was then scheduled for August 23, 2007, before Judge Filion.

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In Case #3, the Agency’s CPMS records show that the Claimant first requested a hearing on May 20, 2004. The case came into ODAR on July 1, 2004. Apparently, the claim was denied by an ALJ and then went to the Appeals Council, which also denied it. Then it went to court and the court remanded it to the Agency with instructions for further consideration. It came to Judge Filion on April 10, 2006, and she directed that the Claimant have some medical tests done and get an evaluation from a doctor. Eventually, the case was set for hearing before Judge Filion on August 16, 2007. Some sort of problem arose on July 30 in relation to the August 16 hearing date and the hearing was then postponed and re-scheduled for September 6, 2007, before Judge Filion. In Case #4, the Agency’s CPMS records show that the Claimant first requested a hearing on January 26, 2004. There was a hearing on August 29, 2005, which apparently resulted in a denial of the claim. The matter was then appealed to the Appeals Council and they remanded it with instructions for further consideration. It was assigned to Judge Filion on July 28, 2006. The Claimant was sent for additional medical testing and evaluation and the case was then set for hearing before Judge Filion on June 28, 2007. On June 7, 2007, Judge Filion ordered the hearing postponed because the designated medical expert would not be able to attend the hearing on June 28. The hearing was then scheduled for August 23, 2007, before Judge Filion. Seattle Hearing Office Director Banks testified, without contradiction, that an employee who schedules hearings for Judge Filion came to her in early August, 2007, and told her that Cases #2, #3, and #4 had been set for hearing before Judge Filion but there was a problem in getting the medical experts to testify in person in those cases on the days that they were set for hearing. Banks also testified that, according to the Scheduler, Judge Filion was insisting on in-person testimony from the medical experts. All of these cases were covered by the 1000-day old case initiative and there was concern that, if the hearings were postponed, they would not be decided before the end of the fiscal year. Director Banks alerted HO Chief Judge Araki and he consulted with Regional Chief Judge DeLaittre. Both Judge Araki and Judge DeLaittre wanted to get these cases heard and decided before the end of the fiscal year pursuant to the 1000-day old case initiative. Judge DeLaittre told Judge Araki that he could hear the cases himself on August 23. Judge Araki then reassigned the cases to Judge DeLaittre without ever talking to Judge Filion about the cases at all. These reassignments were officially recorded in the CPMS system on August 6 and August 7, 2007. Case #2 and Case #4 were already set for August 23 and Judge DeLaittre went ahead and heard them on that date. Case #3, which was set for hearing before Judge Filion on September 6, was re-scheduled for hearing on August 23 after the Claimant’s attorney waived the 20-day notice requirement. Judge DeLaittre then heard that case on August 23 in addition to hearing Case #2 and Case #4 that day. Judge Araki testified that, when he reassigned these cases to Judge DeLaittre, his understanding was that Judge Filion had postponed all of these cases because the medical experts could not testify in person on the day that they were scheduled for hearing. The Agency’s records (at least to the extent that they were put into evidence at the hearing) do not show that Judge Filion ever actually ordered the postponement of any of these hearings. It appears, therefore, that Judge Araki and Judge DeLaittre merely feared that Judge Filion might postpone the 1000-day old cases or that she was actually going to do so if they did not take the cases away from her first.

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There is also no documentation in the record to show that Judge Filion ever had any standing order with her Hearing Scheduler that required the physical presence of a medical expert at hearings. Judge Filion testified that she did not order these hearings postponed and that she had no standing order with her Scheduler to postpone hearings whenever a medical expert was not available to testify in person. She also testified that she sometimes did have medical experts testify by phone or videoconference and that she did not use medical experts in every case. This testimony was credible and it was not rebutted or contradicted by any other witness. Judge Filion admitted, however, that when she does use medical experts, she prefers to have them testify in person and it would be reasonable to assume that her Scheduler would be aware of that preference. In addition, the record shows that she did postpone the hearing set for June 28 in Case #4 because the medical expert could not testify in person on that day. The record also indicates that Judge Filion had several other cases that were scheduled for hearing on August 23 which were in fact not heard on that date. These other cases were not 1000-day old cases and Judge Araki did not reassign those cases. Judge Filion agrees that she had other cases set for that day and that those other case were not taken away from her by Judge Araki or by anyone else. She testified that she does not know why any of those other cases were not heard on August 23. She admitted that she was in the office on August 23 and that she did not hear any cases at all that day. Furthermore, she admitted that it was not until August 24 that she first realized that Cases #2, #3, and #4 had been reassigned to Judge DeLaittre and that he had actually conducted the hearings in those cases on August 23. The reasonable conclusion to be drawn from all these facts is that all of the cases that were still being handled by Judge Filion that were set for hearing on August 23 were postponed by her. The evidence also showed that Judge Filion had a significantly higher rate of postponements than most other ALJs in the Seattle Hearing Office for FY 2006 and FY 2007. Considering Judge Filion’s preference of having medical experts testify in person and her known history of postponing cases, the fear of Director Banks, Judge Araki, and Judge DeLaittre that Cases #2, #3, and #4 were in danger of not being decided before the end of the fiscal year was not unreasonable. Of course, if Director Banks, Judge Araki, and/or Judge DeLaittre had spoken to Judge Filion about their concerns, Judge Filion might have decided to go ahead and hear the cases with the expert testifying by phone or videoconference, assuming that would have been possible. Judge Araki testified that it was his understanding that Judge Filion had been offered the possibility of having the medical experts testify by phone or videoconference and that she had refused. It is clear, however, that he did not make that offer to her, and neither did Director Banks. Judge Filion denies that anyone ever made such an offer to her and there is no evidence to show that anyone ever actually did make such an offer to her. Nor is there any evidence that indicates whether the medical experts would have been available by either of those methods on the set hearing dates for any of these cases. Judge Araki admitted that he could have talked to Judge Filion before deciding to reassign these cases, but he chose not to because he did not feel that she would be receptive to the idea that she should do anything different with her cases than she was doing. Specifically, Judge Araki did not think that Judge Filion would agree to hear and decide these three cases before the end of the fiscal year and he did not want to argue with her about it. Judge Filion claimed at the arbitration hearing that she was ready, willing, and able to hear and decide these cases before the end of the fiscal year, and that she would have done so if she had been asked. However, there are some reasons to question that claim. After all, management had already asked all of the ALJs to be sure to dispose of all of their 1000-day old cases before the end of the

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year and, in order to do so, to schedule them all for hearing before August 31. Cases #2, #3, and #4 all clearly fell under the 1000-day old case initiative. While there is some dispute over whether these particular files were all clearly marked as being 1000-day old cases, the Arbitrator credits the testimony of Office Director Banks to the effect that they were. All of the other 1000-day old cases in the Seattle office were heard and decided before the end of the fiscal year in compliance with the initiative, and that is a strong indication that the files were being specially marked and tracked and that everyone was working to get them done. Judge Filion’s claim that she was not aware that these were 1000-day old cases indicates either a significant lack of attention, or that she simply did not care whether these were 1000-day old cases or not. Judge Filion thought that these particular cases should be given the same attention that she would give to any other case in relation to setting hearings and deciding what evidence was needed, etc. In this regard, the record shows, for example, that when Judge Filion first heard about the 1000-day old case initiative and discussed it with Judge DeLaittre, she voiced general support for the idea of getting the old cases decided, but she also strongly objected to what she felt was an arbitrary time limit that could adversely impact specific cases. She did not want to be prevented from doing whatever she felt needed to be done in a given case just because of some arbitrary time limit. Both her hearing testimony and the Union’s argument in this case clearly reflect a philosophical disagreement with management over just how hard the last few 1000-day old cases should be pushed in order to try and meet the goal of having them all done before the end of the fiscal year. Judge Filion was willing to try and, indeed, got all of her other 1000-day old cases done in time. But if a few cases did not get done for what, to her, were adequate reasons, that would have been alright with her. Judge Araki and Judge DeLaittre, on the other hand, clearly wanted to get all of these cases done and off the office docket if they possibly could, and they were willing to go to significant lengths to make that happen. Judge DeLaittre did not get the files in Cases #2, #3, and #4, and did not review them, until after the cases were formally reassigned to him on August 6 and August 7, 2007. Before that, he had no specific knowledge about the claims or about the evidence that would be needed in any of these cases. Judge DeLaittre could not have known for sure before he actually got the files whether he would feel that there was any need for medical expert testimony in any of these cases. He had talked to Judge Araki before the reassignment and shared his concern that the cases would not be completed in time due to Judge Filion allegedly wanting to be able to have in-person testimony by medical experts. The cases were reassigned by Judge Araki to Judge DeLaittre because he could hear them all on August 23. It was Judge Araki’s and Judge DeLaittre’s understanding that the medical experts could not be available to testify in person on the days that these cases had been set for hearing before Judge Filion (i.e. August 23 in Case #2 and Case #4, and September 6 in Case #3 ). Clearly, no one knew at the time Case #3 was reassigned whether the medical expert in that case could be available at all (either in person, or by phone or videoconference) on August 23 because, at that time, that case was set for September 6 and there would have been no reason at all for anyone to have spoken to the expert about August 23. When Case #2 and Case #4 were reassigned, neither Judge Araki nor Judge DeLaittre knew for sure whether the medical experts in those cases could be available on August 23 by telephone or videoconference. All they knew was that the experts apparently could not be available in person on August 23. It appears from the evidence that Judge DeLaittre really did not care whether the medical experts would be available or not. He testified that he rarely sees any need for medical experts

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and he apparently thought that he could properly conduct the hearings in these cases without any testimony from any medical experts, if that is what it took to get them decided before the end of the fiscal year. He testified that medical experts are only advisers to the Judge. They do not make the decision as to disability under the law. The judge makes that decision and, with his experience, Judge DeLaittre believes that he is able to understand medical records without having to rely on medical experts. That is why he rarely sees any need to use them. Judge DeLaittre also testified that, in his opinion, reassigning a case from one judge who regularly uses medical experts to one who does not, does not influence the outcome of the case because, either way, the ultimate decision is still up to the judge and it still has to be based on the medical evidence. In any event, when Judge DeLaittre heard Cases #2, #3, and #4 on August 23, 2007, it is clear that he did so without any medical expert testimony at all. Case #5 Case #5 was a 1000-day old case that was assigned to Judge Robinson in the Seattle Hearing Office. According to the Agency’s CPMS records that were introduced at the arbitration hearing, the Claimant in that case first requested a hearing on December 22, 2004. Apparently, the Claimant’s benefits had been terminated by a state hearing officer and he was appealing the termination. ODAR got the case on March 24, 2005. For reasons that are not known here, this case apparently had no Judge assigned to it until November 24, 2006. At that time, Judge Peyser was assigned to it and he had it until June 15, 2007. During the time that Judge Peyser had the case, he did Pre-Hearing Review, scheduled it for hearing, and actually held a hearing on January 9 or 10, 2007. Apparently, the Claimant at that time requested a postponement so that he could get representation and that request was granted. The case was then placed in a status known as Post-Hearing Development where it remained until Judge Peyser retired. On June 15, 2007, this case was reassigned to Judge Robinson. Judge Robinson was aware that this case was covered by the 1000-day old case initiative and the file was marked as such. Judge Robinson reviewed the file and scheduled it for hearing on August 30, 2007. At that hearing, the Claimant again appeared and asked for another postponement in order to be able to have representation. The Claimant told Judge Robinson that he had found someone who could represent him, but that person simply could not be there that day. Judge Robinson had reviewed the file and personally talked with the Claimant at the hearing. He felt that the Claimant was mentally impaired and needed a representative in order to effectively present his case. Thus, despite the fact that the case was a 1000-day old case and, if postponed, it would probably not be decided before the end of the fiscal year, he granted the postponement requested by the Claimant. The case was unusual enough, however, that Judge Robinson sent the Claimant a letter to document the fact that he was not happy with the postponement and that the Claimant had been specifically warned that the case would probably not be postponed again. Judge Robinson took personal leave from September 4 through September 12, 2007, to visit his ninety-five year old mother. No serious effort was apparently made to re-schedule a hearing in this case before Judge Robinson went on leave. On September 4, HO Chief Judge Araki became aware of the postponed hearing in this case and the fact that Judge Robinson was not going to return to the office until September 13. Due to the legal requirement that hearings cannot be scheduled without at least 20 days advance notice (unless that requirement is waived

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by the Claimant), Judge Araki knew that Judge Robinson would probably not be able to schedule a hearing (after he returned from leave) that would be before the end of the fiscal year on September 30. Judge Araki then directed a Scheduler to schedule the hearing for September 24 – exactly 20 days from September 4. That date was selected by Judge Araki and the Scheduler without talking to Judge Robinson or to Judge DeLaittre. That date was also apparently selected without talking to the Claimant or his representative to see whether they could be available on that day. Judge Araki then contacted Regional Chief Judge DeLaittre and informed him about the situation. After talking to Judge DeLaittre, Judge Araki reassigned the case to him on September 5, 2007. The case file was then sent to Judge DeLaittre and he reviewed it. On September 13, 2007, Judge DeLaittre decided to rule in favor of the Claimant “on the record” without a hearing. Judge DeLaittre is sight impaired and could only review the file with the aid of a reader. He decided to award benefits without holding a hearing in spite of the fact that a state hearing officer had found the Claimant to not be entitled to benefits and that both Judge Peyser and Judge Robinson had reviewed the file and determined that the case could not be properly decided without a hearing. Judge DeLaittre sent the case to a Decision writer and signed the written decision on September 14, 2007. Thus, the hearing set for September 24 was cancelled and the case was closed before the end of the fiscal year. When Judge Robinson returned from leave, he discovered that the case had been reassigned to Judge DeLaittre in his absence, without his consent, and without even any notice to him. On September 14, 2007, Judge Robinson wrote a memo detailing the facts and the reasons that he objected to this reassignment. This memo concludes with the following paragraph:

In summary, a state hearing officer decided that the claimant was not disabled and should be terminated from benefits based on disability. Judge Peyser and I both reviewed the file and determined that a decision, one way or the other, could not be made based on the current written record alone. Despite this, Judge DeLaittre removed the file from me and apparently will issue a decision favorable to the claimant based on the written record alone. I note that Judge DeLaittre is sight impaired and cannot review the written record without a reader. I suspect that issuing a decision prior to the end of the fiscal year on a case that is more than 1000 days old had a higher priority to those involved in this process than rotational assignment of cases to judges, accuracy of the decision or fairness to the taxpayer. I further note that my decision to grant a second postponement for representation was looked upon with disfavor. Second postponements for this purpose are not standard procedure, but they are granted occasionally. Again speed appeared to be more important than providing a mentally impaired claimant an additional opportunity to be represented.

Cases #6, #7, and #8 These cases were being handled by Judge Linda Haack out of the Portland, Oregon, hearing office. Judge Haack did not testify at the arbitration and no CPMS records for these cases were introduced at the hearing. The Agency presented testimony from Portland HO Chief Judge Thomas Tielens and HO Director Sue Leise showing that all 1000-day old cases in the

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Portland office were flagged with a green card. In addition, Judges were sent memos about the need to schedule and decide these cases before the end of the fiscal year. Judges were also sent lists of their 1000-day old cases and both Judge Tielens and Director Leise spoke directly with Judge Haack, and sent her emails, concerning 1000-day old cases of hers that they were concerned might not get done in time to meet the initiative’s goals. Both Judge Tielens and Regional Chief Judge DeLaittre were particularly concerned about Judge Haack’s cases because of her history of postponing cases numerous times and actually deciding significantly fewer cases per year than most of the other judges in the Region. Judge Tielens sent Judge Haack an email on June 15, 2007, indicating his concerns about one of her cases and asking her to consider options for hearing it earlier than the September 16 scheduled hearing date. He also asked her to let him know whether she was going to have her other 1000-day old cases completed in time. Judge DeLaittre was copied on this email and he then sent his own email to Judge Haack asking her to give him her response by June 22 concerning the scheduling and completion of these cases before the end of the fiscal year. The record here does not show any response from Judge Haack to either Judge Tielens’ or Judge DeLaittre’s emails. On June 27, 2007, Judge Tielens sent Judge Haack another email concerning three more of her 1000-day old cases. All three cases had already had hearings postponed one or more times and the circumstances of each case suggested that further postponements were likely due to the lack of necessary medical records and problems with representatives. Judge Tielens told Judge Haack in this email that he was going to propose to Judge DeLaittre that all three cases be reassigned to another judge who could hear them earlier and hopefully get them done in time. Judge Tielens told Judge Haack to let him know by the next day if she had any comments or concerns about the reassignments. The record shows no response from Judge Haack to this email or that she ever registered any objection to the proposed reassignments. On August 21, 2007, Office Director Liese sent Judge Haack an email concerning yet another of Judge Haack’s 1000-day old cases that had been pending for a long time and had already been postponed three times. By then, the Claimant had committed suicide and the Agency needed documentation to show whether there was a substitute party, but Judge Haack had apparently not followed through on getting that documentation. Director Liese told Judge Haack in the August 21 email that Regional Chief Judge DeLaittre had directed that the case be reassigned to another judge so that it could be resolved before the end of the fiscal year. The record shows no response from Judge Haack to this email or that she ever registered any objection to the reassignment. Judge Tielens reassigned Case #6 to himself and he was able to get it resolved before the end of the fiscal year. Cases #7 and #8 were reassigned to Judge DeLaittre. These were the only three cases that were reassigned in the Portland Hearing Office under the 1000-day old case initiative. Case #6 was the subject of the August 21 email from Liese to Haack mentioned above. Presumably, Case #7 and Case #8 were covered by the other emails mentioned above, although the record does not seem to really be clear on that point. In any event, the Union here admits that the Agency’s June 26 “guidance” on the reassignment of 1000-day old cases was followed in Cases #6, #7, and #8 and Judge Tielens testified that Judge Haack never talked to him about these reassignments and never indicated to him that she had any objections about

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them. In addition, there is no evidence to show that Judge Haack actually did anything beyond the granting of continuances in any of these cases. Apparently, Judge DeLaittre was able to resolve Cases #7 and #8 before the end of the fiscal year, although the evidence does not show exactly how or when he did that. In any event, it appears that, by the end of the fiscal year, the Portland Hearing Office was not considered to have any cases that still needed to be resolved under the 1000-day old case initiative. The Grievance On October 10, 2007, the Union filed a grievance protesting the reassignment of the eight cases described above. The Union asked for a decision finding that the actions of Judge DeLaittre, Judge Araki, and Judge Tielens “were illegal and violative of” various articles of the Collective Bargaining Agreement and, furthermore, that “such actions were violative of the Administrative Procedure Act’s guarantee of ALJ judicial independence and the Agency’s rules, regulations and policy governing ALJ responsibilities.” In addition, the Union asked “that the Agency issue a directive to all ODAR Management Officials . . . that when an ALJ has been assigned to cases, those cases shall not be reassigned to another ALJ without the ALJ’s expressed approval and reasonable and sufficient justification.” The grievance was processed through the steps of the grievance procedure and then appealed to arbitration. The matter is now properly before the Arbitrator for decision.

RELEVANT CONTRACT LANGUAGE

ARTICLE I Section 3 A. In the administration of all matters covered by this agreement, the parties are governed by

the following: existing and future laws; government-wide rules and regulations in effect on the effective date of this agreement; SSA and OHA rules and regulations in effect on the effective date of this agreement and not in conflict with this agreement; and government-wide rules or regulations issued after the effective date of this agreement that do not conflict with this agreement.2 Where the terms of this agreement conflict with government-wide rules and regulations issued after the effective date of this agreement, the terms of this agreement shall be controlling.

ARTICLE III MANAGEMENT RIGHTS 2 Please note that the use of bold type in the body of contract provisions, statutes, rules, regulations, and “guidelines” quoted in this Award, is used by the Arbitrator for emphasis of those provisions – the bold type does not appear in the original documents.

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The parties agree that management rights, as defined in this article, are consistent with 5 U.S.C. §7106 and other applicable laws3. A. Subject to subsection (B) of this section, nothing in this chapter shall affect the authority

of any management official of the Agency: 1. To determine the mission, budget, organization, numbers of employees, and

internal security practices of the Agency; and 2. In accordance with applicable laws:

a. To hire, assign, direct, layoff, and retain employees in the Agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;

b. To assign work, take determination with respect to contracting out, and to

determine the personnel by which Agency operations shall be conducted;

ARTICLE V EMPLOYEE RIGHTS Section 1 The parties recognize that the Judges covered by the terms of this agreement are administrative law judges appointed pursuant to 5 U.S.C. §3105, and are engaged in the performance of duties which require the consistent exercise of discretion, knowledge, and judgment in conducting hearings. These duties are complex and varied as set forth in 5 U.S.C. §7103 (15)(A)(iv) and are of such a character that the output produced or the results accomplished by such work cannot be standardized in relation to a given period of time. ARTICLE 10 GRIEVANCE PROCEDURE Section 2 A. A grievance is defined as any complaint: 3 The contract itself has a footnote at this point which provides as follows: “For example: 5 U.S.C. §3105 (appointment of administrative law judges); 5 U.S.C. §1305 (outline of OPM and MSPB authority when administrative law judges involved); 5 C.F.R. §930.201 et. seq. (appointment, pay and removal of administrative law judges); 5 U.S.C. §2302 (prohibited personnel practices); 5 U.S.C. §7521 (actions against administrative law judges); 5 U.S.C. §4301 (administrative law judges not included in Federal employee performance appraisal systems); 5 U.S.C. §3344 (Details: administrative law judges); 5 U.S.C. §5372 (pay system for administrative law judges); Butz v. Economou, 438 U.S. 478 (1978); Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953); Social Security Administration v. Robert W. Goodman, 19 M.S.P.R. 321 (1984); subject to changes in the law.”

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1. by any judge concerning any matter relating to the employment of the judge. 2. by the AALJ concerning any matter relating to the employment of any judge; or, 3. by any judge, the AALJ, or the Agency concerning: a. the effect or interpretation, or a claim of a breach, of this agreement; or, b. any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment. ARTICLE 13 JUDICIAL FUNCTION IN THE OFFICE OF HEARINGS AND APPEALS Judges play a vital role in the accomplishment of the OHA4 mission and make a significant contribution in the mission of issuing hearing decisions that are timely and correct determinations by the Commissioner of the Social Security Administration. In making hearing decisions, a Judge may determine when a case is ready to be scheduled for a hearing, conduct a full and fair hearing when required, and must issue a legally sufficient decision. The Office of Hearings and Appeals has the authority to provide necessary support staff for the Judges.

ADMINISTRATIVE PROCEDURES ACT

5 U.S.C. §554. Adjudications: (d) The employee who presides at the reception of evidence pursuant to section 556 of this title shall make the recommended decision or initial decision required by section 557 of this title, unless he becomes unavailable to the agency. * * * 5 U.S.C. §556. Hearings; presiding employees; powers and duties; burden of proof; evidence;

record as basis of decision

(b) There shall preside at the taking of evidence - (1) the agency; (2) one or more members of the body which comprises the agency; or (3) one or more administrative law judges appointed under section 3105 of this title. * * *

4 OHA is now ODAR.

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(c) Subject to published rules of the agency and within its powers, employees presiding at hearings may –

(1) administer oaths and affirmations; (2) issue subpenas authorized by law; (3) rule on offers of proof and receive relevant evidence; (4) take depositions or have depositions taken when the ends of justice would be served; (5) regulate the course of the hearing; (6) hold conferences for the settlement or simplification of the issues by consent of the parties or by the use of alternative means of dispute resolution as provided in subchapter IV of this chapter; (7) inform the parties as to the availability of one or more alternative means of dispute resolution, and encourage use of such methods; (8) require the attendance at any conference held pursuant to paragraph (6) of at least one representative of each party who has authority to negotiate concerning resolution of issues in controversy; (9) dispose of procedural requests or similar matters; (10) make or recommend decisions in accordance with section 557 of this title; and (11) take other action authorized by agency rule consistent with this subchapter.

5 U.S.C. §3105 Appointment of Administrative Law Judges Each agency shall appoint as many administrative law judges as are necessary for proceedings required to be conducted in accordance with sections 556 and 557 of this title., Administrative Law Judges shall be assigned to cases in rotation so far as practicable, and may not perform duties inconsistent with their duties and responsibilities as administrative law judges.

AGENCY REGULATIONS

20 CFR §404.929 Hearing before an administrative law judge – general. [which applies to hearings before an ALJ in cases involving Federal Old-Age, Survivors, and Disability Insurance]

If you are dissatisfied with one of the determinations or decisions listed in Sec. 404.930 you may request a hearing. The Associate Commissioner for Hearings and Appeals, or his or her delegate, shall appoint an administrative law judge to conduct the hearings. If circumstances warrant, the Associate Commissioner, or his or her delegate, may assign your case to another administrative law judge.5 * * * 5 The Agency has different sets of regulations that apply to different kinds of cases, and the role played by Administrative Law Judges in relation to each type of case is usually addressed in the regulations that apply to those types of cases. Thus, there are regulations very similar to 20 CFR 404.929 in other parts of the Agency’s regulations. For example, see 20 CFR 405.301 (concerning the Administrative Review Process for Adjudicating

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20 C.F.R. §404.936 Time and place for a hearing before an administrative law judge. (a) General. The administrative law judge sets the time and place for the hearing. He or she may change the time and place, if it is necessary. After sending you reasonable notice of the proposed action, the administrative law judge may adjourn or postpone the hearing or reopen it to receive additional evidence any time before he or she notifies you of a hearing decision.6

POSITION DESCRIPTION ADMINISTRATIVE LAW JUDGE (ALJ)7

II. DUTIES AND RESPONSIBILITIES Under the provisions of Titles II, XVI and XVIII of the Social Security Act and

applicable Federal, State, and foreign laws, and in conformity with the Administrative Procedure Act, and with full and complete individual independence of action and decision, and without review, the administrative law judge has full responsibility and authority to hold hearings and issue decisions as stated under the above Titles and (1) dismiss or allow requests for hearings and rule on requests for extensions; (2) identify problems and issues to be resolved; (3) analyze all previously developed evidence . . . .(7) hear testimony and rule on all motions, petitions, or exceptions

Initial Disability Claims) which provides as follows: “The Commissioner will appoint an administrative law judge to conduct the hearing. If circumstances warrant after making the appointment (for example, if the administrative law judge becomes unavailable), the Commissioner may assign your claim to another administrative law judge.” Also see 20 CFR 416.1429 (concerning hearings before an ALJ in cases involving Supplemental Security Income for the Aged, Blind, and Disabled) which provides as follows: “The Associate Commissioner for Hearings and Appeals, or his or her delegate, shall appoint an administrative law judge to conduct the hearing. If circumstances warrant, the Associate Commissioner, or his or her delegate, may assign your case to another administrative law judge.” Both parties referred to 20 CFR 404.929 in their post-hearing briefs. It was also specifically cited at the hearing in the testimony of Judge Nancy Griswold, Deputy Chief ALJ for ODAR, as authorizing the reassignments that were done in the cases at issue here. Thus, that is the regulation that the Arbitrator is using as the applicable regulation in this Award. Neither party has made any reference to the other similar regulations, but those other regulations do seem relevant to understanding what the Agency’s authority is generally under its regulations in relation to taking cases away from ALJs who had them previously and who have already performed some work on them. The ALJs at ODAR may not handle the specific cases covered by 20 CFR 405.301, but there were references made at the hearing to handling of Supplemental Security Income (S.S.I.) case which would be covered under 20 CFR 416.1429. And, since the Arbitrator does not know enough about the actual cases that were reassigned here to know for sure what specific kind of cases they were or which regulation or regulations apply to each one, it seems appropriate to make note of 20 CFR 405.301 and 20 CFR 416.1429 and how similar they are to 20 CFR 404.929, just in case they actually do apply to any of these reassignments. 6 See Note 4 above concerning different regulations for different kinds of cases. That concept also applies to regulations concerning the ALJ’s authority to set the hearing, change the hearing, cancel the hearing, adjourn the hearing, or postpone the hearing in each kind of case. While the language used in addressing these topics for other kinds of cases is not identical to the regulation quoted in the body of the Award, the Arbitrator did not note any particular differences in the ALJ’s authority in the different regulations that would be material here. 7 Signed by a representative of the Office of Personnel Management, an Associate Commissioner of Social Security, and the Chief Administrative Law Judge for Social Security.

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involving questions of law, procedure, and the admissibility of evidence; (8) hold prehearing conferences with the appellant and/or his counsel . . .; (9) make all evidence of record available to the parties and inform them of any evidence or expert testimony required in connection with a material point or issue; . . . (11) govern the conduct of the parties at the hearing, and in general regulate the entire course of the proceedings; . . . (15) appraise the credibility of witnesses, and resolve conflicts in lay and expert evidence; . . . (17) make findings of fact on each issue, giving the reasons therefore and render conclusions of law as sole trier of fact and law; (18) fully consider all the evidence of record and issue decisions within the requirements of the Administrative Procedure Act, which decisions are completely independent and final, signed only by him, and published to parties in interest without prior review; . . .

III. SUPERVISION AND GUIDANCE The Social Security and Administrative Procedure Acts prohibit substantive review

and supervision of the administrative law judge in the performance of his quasi-judicial functions of holding hearings and issuing decisions. His decisions may not be reviewed before publication, and after publication only by the Appeals Council in certain prescribed circumstances. He is subject only to such administrative supervision as may be required in the course of general office management.

POSITION DESCRIPTION HEARING OFFICE CHIEF ADMINISTRATIVE LAW JUDGE (HOCALJ)8

IV. DUTIES AND RESPONSIBILITIES 2. Under the general administrative direction of the Regional Chief Administrative

Law Judge, the HOCALJ is directly responsible for all program and administrative matters concerning the Social Security Administration’s hearing process in the hearing office. Specific responsibilities of the HOCALJ include but are not limited to:

A. Develops and directs the implementation of administrative policies and

procedures designed to foster efficiency and effectiveness in managing the workload within the hearing office. Provides leadership and guidance to all hearing office employees, including Administra-tive Law Judges, for the purpose of improving the hearing process and achieving the goals and objectives of the Agency. Assures the implementation and maximum utilization of automated systems.

B. Assigns and reassigns cases to Administrative Law Judges on a

rotational basis insofar as practicable and in accordance with established Agency policies.

8 Signed by a representative of the Office of Personnel Management, an Associate Commissioner of Social Security, and the Chief Administrative Law Judge for Social Security.

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C. Provides advice and guidance to Administrative Law Judges in

substantive program policy and procedural matters relating to the adjudication of cases under the Social Security Act, as amended, consistent with the decisional independence accorded Administrative Law Judges pursuant to the provisions of the Administrative Procedure Act. For example, is available to provide advice and guidance to Administrative Law Judges on the interpretation of applicable law, regulations, rulings and judicial precedents, and on the conduct of hearings. * * *

* * *

3. Provides technical and procedural guidance for the expeditious processing of

pending cases. Working in conjunction with the Regional Chief Administrative Law Judge, the HOCALJ provides extraordinary leadership and management in guiding the HO to meet regional and national goals and objectives.

ANALYSIS AND DISCUSSION

In this case, the Agency’s goal of getting all, or nearly all, of its 1000-day old cases resolved before the end of the fiscal year, was imminently reasonable. Marking the files, encouraging the ALJs to develop a plan for dealing with the cases, and then following up with them as the year progressed, were all good and reasonable steps. It certainly would have been better if the initiative could have been communicated to the ALJs at the start of the fiscal year, rather than in the middle, but that was apparently just a function of when the initiative was developed. As a new initiative, it took some time to just get it up and running and to work out the details. In any event, considering that there were over 63,000 cases at the start of the fiscal year that were at least 1000 days old, and only about 100 left at the end of the fiscal year, it is clear that Agency staff, including the ALJs, worked diligently to try to meet the goal. It is also important to realize that there are a lot of reasons why a case might legitimately be 1000 days old (from the date a hearing was first requested) and that the cases at issue here had not just been sitting in a file or on an ALJ’s desk for that period of time. And while the goal was to try to get all of the 1000-day old cases done by the end of fiscal year, it was recognized from the start that there would be at least a few that would not get done due to factors beyond the control of the Agency and its ALJs (such as claimants who were unavailable or could not be located, or cases that came back into the office – by way of court remand or other reason – too late in the year to be completed by the end of the year).

The dispute here is not about the 1000-day old case initiative itself. No one is

challenging management’s right to set a goal like this and to work diligently to try to achieve it. Rather, the dispute here is over just how far management could legitimately go in pushing the last few individual cases in order to try and get them done when it appeared that they might not otherwise get done by the deadline set in the initiative. Was meeting the end of year time limit

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set by the initiative sufficiently important to justify what management actually did in each of these cases? That is the question. And if not, why not?

All of the individual cases at issue here were reassigned by management in an attempt to get them completed before the end of the fiscal year. In the past, cases have been routinely reassigned by the Agency for a variety of reasons, such as the death or retirement of an ALJ, or if an ALJ leaves their position due to termination or to voluntarily take another job. A judge’s serious illness or injury might also make them sufficiently “unavailable” to warrant the reassignment of some, or even all, of their cases. It does not appear that there has ever been any serious dispute about those kinds of obviously necessary reassignments. Nor does there appear to be any dispute generally about whether those kind of cases have to be reassigned in regular rotation order, pursuant to 5 U.S.C. §3105, or whether such reassignments can, at least some of the time, be based on the application of reasonable criteria such as which ALJ is most readily available to take them over and could do so most effectively and efficiently.

There was also testimony at the hearing to the effect that cases have sometimes been

reassigned to balance caseloads among the ALJs, or between offices or regions. When those kinds of reassignments have been done, they apparently involved cases that ALJs had performed little or no work on; management had no issue at all with how the ALJs were handling those particular cases prior to the reassignments, and no ALJ or claimant had any particular objection to the reassignments.

Thus, in the past, the reassignments that did occur were relatively rare and generally non-

controversial. When an ALJ who has been assigned a case becomes “unavailable” for some reason, everyone recognizes that it is necessary to reassign the case to someone else. The reassignments at issue here are clearly different. They are also definitely controversial. Part of the controversy stems from the fact that there was no real precedent for these reassignments. They are also controversial because of the specific circumstances surrounding them and the reasons behind them. The ALJs here who had their cases reassigned to others, had all performed significant work on the cases, made decisions about how they should proceed, and were still available to continue working on them. And, in at least most of these cases, the ALJs were not consulted prior to the reassignments and, when they found out about them, they registered objections.

One of the Union’s claims here is that these reassignments violated 5 U.S.C. §3105. That

section of the Administrative Procedure Act provides that ALJs “shall be assigned to cases in rotation so far as practicable.” Frankly, the Arbitrator understands that section to be primarily concerned with how cases are initially assigned as they come into the office. Whether, and to what extent, cases that are originally assigned in rotation can then be later reassigned to another ALJ, is a somewhat different question. As we shall see, the answer to that question is that cases can be reassigned by the Agency, but only under certain circumstances. In other words, some reasons for reassigning a case are permissible, and some are not. Even the Agency would agree with that general statement. The fundamental dispute here is over how and where to draw the line between permissible reassignments and non-permissible ones. Before we get to that, however, we still need to address the question of whether any of the reassignments at issue in this case violated 5 U.S.C. §3105 because the cases were given to judges who were specifically chosen by management instead of to the next judge in the normal rotation for case assignments.

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5 U.S.C. §3105 does not require that assignments, or reassignments, be made in rotation order in every case – just “so far as practicable.” There is some case law concerning whether certain kinds of assignments, or reassignments, comply with 5 U.S.C. §3105, but none of it is directly on point with the facts here. The cases do indicate, however, that agencies have some latitude to deviate from strict mechanical rotation when making case assignments under certain circumstances. For example, in Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953), the Supreme Court held that ALJs could be put into different classifications and that cases could be assigned based on those classifications in order to achieve greater efficiency. And in Tractor Training Service v. Federal Trade Commission, 227 F.2d 420 (9th Cir., 1955), cert. den. 350 U.S. 1005 (1956), the court held that the FTC had the discretion to reassign a case in the interest of economical operation. In that case, the first witness testified before a hearing examiner (ALJ under current law) in Washington, D.C. That hearing examiner then recessed the case until a later date. The Agency then assigned a different hearing examiner to replace the first one because it was apparent that many more hearing days needed to be scheduled in various parts of the western United States and the replacement examiner could travel to those locations more easily and economically because he was based in the west and already had to go to those places for other cases on his docket.

Efficient case management considerations, as a legitimate reason to deviate from strict

mechanical rotation, was also approved in AAACON Auto Transport, Inc. v. I.C.C., 792 F.2d 1156 (D.C. Cir., 1986), cert. den. 481 U.S. 1048 (1987); Sykes v. Bowen, 854 F.2d 284 (8th Cir., 1988); and Chocallo v. Bureau of Hearings and Appeals, 548 F. Supp. 1349 (E.D. Pa., 1982), affirmed without opinion, 716 F.2d 889 (3rd Cir., 1983). In AAACON Auto Transport, the court found case assignments made after giving consideration to the complexity of cases and the experience of the ALJs to be appropriate and not a violation of the statute. In Sykes, the court found that it was reasonable for the ALJ that held the original hearing and made the decision in a case to reassign the case to himself after it came back on remand from the Court of Appeals. There was no indication of bias and the original ALJ was already familiar with the case and so could more easily handle it on remand. The court found that particular circumstance to be covered by the “so far as practicable” language in the statute and the Supreme Court’s decision in Ramspeck. And in Chocallo, the court upheld a deviation from strict rotational assignment of cases in order to assure equitable caseloads among the ALJs and that no one ALJ had an inordinate number of out-of-town assignments.

In the cases at issue here, however, overall Agency economy and efficiency was clearly not the goal. The Agency readily admits that the reassignment of these cases meant that the new ALJ would have to duplicate some of the time and effort that the original ALJ had already put into the case without gaining any offsetting economy or efficiency elsewhere. Reassignments like this would normally not be made in order to avoid unnecessary duplication of effort. In these cases, however, management felt that the duplication of effort was justified in order to meet its goal of getting these cases resolved before the end of the fiscal year pursuant to its 1000-day old case initiative. The reason that the cases here in issue were reassigned to specifically chosen judges, rather than to judges in the normal order of rotation, was because that was what was needed in order to achieve management’s goal of having them done before the end of the fiscal year. These reassignments were all made within the last couple of months of the fiscal year, after management became concerned that they were not going to get done in time if they were left

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with the ALJs who were then handling them. And, in order to get the cases completed before the end of the year, management had to find judges who had time available to deal with them and who they knew were also committed to getting them done within the time remaining. Under the circumstances, reassigning the cases to judges who would be most likely to meet the desired objective within the limited time available made sense. On the other hand, reassigning these cases to judges in the normal order of rotation, and without any idea of whether the new judges would be any more likely to complete them in time than the old judges, would make no sense at all. In the Arbitrator’s view, therefore, if it was proper to reassign these cases under the circumstances, then the reassignments to specific judges who could get them done in time would not constitute a violation of 5 U.S.C. §3105 or of the parties’ contract. That brings us to the questions of when, how, and why reassignments may be appropriately made, and whether these particular reassignments were appropriate. For the answer to those questions, we must look beyond 5 U.S.C. §3105 to the terms of the parties’ collective bargaining agreement, and to other applicable statutes, rules, and regulations. The parties’ collective bargaining agreement contains no specific reference to reassignments. Article 3 does, however, say that management has the right to assign work, as long as it does so “in accordance with applicable laws”. And in Article 1, Section 3, the parties agreed that they were both bound by all applicable laws, rules, and regulations. Thus, we need to look beyond the contract to any applicable laws, rules, and regulations to determine what restrictions, if any, there are on management’s right to reassign cases.

The Agency argues that, if it has the power under the contract to assign work, then it can

also reassign it. They also cite Section IV. B. of the Agency’s job description for HOCALJs which provides that their duties and responsibilities include: “assigns and reassigns cases to Administrative Law Judges on a rotational basis insofar as practicable and in accordance with established Agency policies”. As already noted above, management clearly does reassign some cases without any controversy whenever the ALJ originally assigned to the case becomes “unavailable” for some reason. In those situations, however, the reassignment is very much like an original assignment since the first ALJ is no longer available and the case clearly has to be assigned to someone else if it is going to be heard at all. Reassignments for other kinds of reasons at least potentially raise some other issues which we will come to shortly. In any event, the Arbitrator accepts the fact that management has at least some right to reassign cases. But just as it is with original assignments, any reassignments clearly need to be made in accordance with all applicable laws, rules, and regulations. And just because the Agency assigns a case properly does not necessarily mean that a subsequent reassignment is proper. The assignment and the reassignment are two different actions that occur at different times and are based on different reasons. Each action must therefore be judged on its own merits.

Once an assignment of a case has been properly made, it should not be changed unless

there is a good and sufficient reason for doing so and the Agency’s own regulations recognize this concept. 20 CFR §404.929 (and other similar Agency regulations – see footnote 4) provides that the Associate Commissioner, or his or her delegate, may reassign a case (after its original assignment) “if circumstances warrant”. There is no specific explanation of what kinds of circumstances might warrant the reassignment of a case under this particular regulation. However, the similar regulation contained in 20 CFR §405.301 (see Footnote 4 above) does give an example of a circumstance that would warrant reassignment, and that example is “if the [original] administrative law judge becomes unavailable”. 5 U.S.C. §554 also clearly states that

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the ALJ who presides over the hearing in a case should make the decision “unless he becomes unavailable to the Agency”. No one disputes here that true “unavailability” of the ALJ that had been handling a case would warrant the reassignment of that case under 20 CFR §404.929, but that does not answer the question of what other circumstances might also warrant a reassignment. In any event, the Arbitrator does not believe that 20 CFR §404.929 means that the Agency if free to reassign cases whenever it wants to, or for any reason that it may want to. Rather, the regulation means that cases will not be reassigned unless there is a necessary and proper reason for the reassignment. And, to determine whether there is a necessary and proper reason for a specific reassignment, one must look carefully at all of the circumstances to determine necessity, and then look at all applicable laws, rules, regulations, and policies to make sure it is proper.

The Union, and the individual ALJs whose cases were reassigned here, argue that these

reassignments were not proper because they violated the ALJ’s right to “qualified judicial and decisional independence”. The Agency disagrees. There appears to be no disagreement, however, that one of the basic tenets of the Administrative Procedure Act is that ALJs should be independent and, at least in the performance of their judicial functions in specific cases, their decisions should not be subject to pressure from management officials within the Agency. In Butz v. Economou, 438 U.S. 478 (1978), at 513, the Supreme Court stated:

There can be little doubt that the role of the modern federal hearing examiner or administrative law judge within this framework is "functionally comparable" to that of a judge. His powers are often, if not generally, comparable to those of a trial judge: He may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. See § 556 (c). More importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency. Prior to the Administrative Procedure Act, there was considerable concern that persons hearing administrative cases at the trial level could not exercise independent judgment because they were required to perform prosecutorial and investigative functions as well as their judicial work, see, e. g., Wong Yang Sung v. McGrath, 339 U.S. 33, 36-41 (1950), and because they were often subordinate to executive officials within the agency, see Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 131 (1953). Since the securing of fair and competent hearing personnel was viewed as "the heart of formal administrative adjudication," Final Report of the Attorney General's Committee on Administrative Procedure 46 (1941), the Administrative Procedure Act contains a number of provisions designed to guarantee the independence of hearing examiners.

In addition, the Agency’s own job descriptions for ALJs and for HOCALJs recognize the “decisional independence” of ALJs and the fact that management’s authority over them is limited by that independence. Section III of the ALJ job description states that:

The Social Security and Administrative Procedure Acts prohibit substantive review and supervision of the administrative law judge in the performance of his quasi-judicial functions of holding hearings and issuing decisions. * * *

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He is subject only to such administrative supervision as may be required in the course of general office management.

Section IV of the HOCALJ job description provides that: Provides advice and guidance to Administrative Law Judges in substantive program policy and procedural matters relating to the adjudication of cases under the Social Security Act, as amended, consistent with the decisional independence accorded Administrative Law Judges pursuant to the provisions of the Administrative Procedure Act. The Agency and its ALJs (either through the Union or individually) have a long history

of litigating whether certain actions by management either do, or do not, violate the ALJ’s “decisional independence” under the Administrative Procedure Act and under other laws, rules, or regulations. Some ALJs would apparently like to think that they operate in a sort of protective bubble that management is not allowed to penetrate at all. But while the reported court decisions do certainly support the concept of “decisional independence”, the fact of the matter is that the Agency has prevailed in most of these cases because the specific actions being challenged were found to not be an undue infringement on that independence. It must be noted, however, that none of these prior court cases involved situations where management took a case away from an ALJ because it disapproved of how it was being handled and wanted to have it handled a different way.

The Agency essentially argues here that there are only two recognized limits on its right

to reassign cases. First, a case that has been properly assigned in the first place cannot be reassigned unless there is some legitimate reason for the reassignment. Of course, in management’s view, virtually any reason that it might want to reassign a case would be legitimate as long as it did not violate the second recognized limit, which is that it cannot reassign a case for the purpose of affecting the ultimate outcome. The Agency argues that it should prevail in this case because it reasonably reassigned the cases at issue here in order to get them completed before the end of the fiscal year in accordance with its 1000-day old case initiative. The Agency also argues that these reassignments were clearly not made for the purpose of affecting the ultimate outcome of the cases because (1) management had no basis for knowing what the original ALJ’s ultimate decision would have been in each case, and (2) management had no way of knowing, at the time of the reassignments, how the ALJ who got each case was ultimately going to decide it.

The Arbitrator agrees that the Agency reassigned these cases in order to try and meet its

goals under the 1000-day old case initiative and that local management felt that the circumstances of each case warranted the reassignments. And, with the possible exception of one of the cases at issue here, he also agrees that the Agency did not reassign these cases for the purpose of affecting the final decision. Management just wanted to get the cases resolved. How they got resolved was not the real concern, at least not unless the only way to resolve one of the cases in time was to decide it a certain way. The Arbitrator does not agree, however, with the argument that there are no other limits on management’s authority to reassign cases. And while it does appear that some of these cases were properly reassigned, the Arbitrator finds that some of them were not.

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There is a line of case law that held, for a time, that a claim by an ALJ that their agency had done something that interfered with their “qualified decisional independence” could be taken to the Federal Merit Systems Protection Board (“MSPB”) under 5 U.S.C. §7521 under a theory of “constructive removal”. Under current case law, however, an ALJ cannot take a claim directly to the MSPB that his or her agency has interfered with their “qualified decisional independence” unless they have been actually separated from their job involuntarily, suspended, reduced in grade or pay, or furloughed for other than good cause.9

It is clear that none of the ALJs involved in this case have any claim that they can take to

the MSPB under 5 U.S.C. §7521 because they have not been required to involuntarily leave their jobs and they were not suspended, reduced in grade or pay, or furloughed for any reason. That does not mean, however, that they cannot claim that the Agency improperly interfered with their “qualified judicial or decisional independence”, and thereby violated the collective bargaining agreement, by reassigning the cases at issue here. Article 10 of the collective bargaining agreement makes it clear that individual ALJs, and the Association of ALJs, can file a grievance concerning “any matter relating to the employment of the judge” or, in the case of the Association, to “any matter relating to the employment of any judge”. Article 10 also clearly provides that any Judge, or the Association, may file a grievance alleging a breach of the agreement or “any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment”. Of course, to be successful in such a claim here, the Union and its individual ALJs must show (1) that the reassignments improperly interfered with the “qualified judicial or decisional independence” of the ALJs and (2) that such interference violated the collective bargaining agreement.

The basic concept of ALJ “decisional independence” is incorporated into the collective

bargaining agreement through several different provisions. Article 1 requires both parties to abide by all applicable laws, rules, and regulations. That would certainly include things like the Administrative Procedure Act and the Agency’s own rules and regulations. Article 5 recognizes that the Judges covered by the agreement are ALJs appointed under the Administrative Procedure Act who perform duties which require the exercise of discretion, knowledge, and judgment in conducting hearings and rendering decisions. As we have already seen, such Judges are well recognized and accepted – by both the courts and by the Agency itself – as having “qualified decisional independence” in the performance of their job duties, which include conducting hearings as well as making final decisions. Article 13 also recognizes an ALJ’s

9 5 U.S.C. §7521 provides that certain actions (i.e. removal, suspension, reduction in grade or pay, or furlough of 30 days or less) taken against an Administrative Law Judge can only be taken for good cause established and determined by the Merit Systems Protection Board. The line of cases referred to in the text began with a holding by the MSPB in a case called In re Doyle, 29 M.S.P.R. 170 (1985) that any action that interfered with the “qualified judicial independence” of an ALJ constituted a “constructive removal” and could be challenged under 5 U.S.C. §7521. The MSPB then codified that concept of “constructive removal” in its regulations at 5 C.F.R. 1201.142. The Federal Circuit Court approved of the MSPB’s construction of the statute in the cases of Sannier v. Merit Systems Protection Board, 931 F.2d 856 (1991), and Stephens v. Merit Systems Protection Board, 986 F.2d 493 (1993). Then, in Tunik (and Schloss) v. Merit Systems Protection Board, 407 F.3d 1326 (Fed. Cir., 2005), the Court held that the MSPB could not repeal by adjudication the rule that it had adopted, but that it was free to repeal the rule as long as it followed the proper procedure for doing so. The Court then found that Tunik’s claim was moot, but the MSPB had to reconsider Schloss’s claim under its old rule. The MSPB did so in Schloss v. Social Security Administration, Docket No. CB-7521-01-0018-B-2 (Decision of the ALJ, July, 2006). However, the MSPB then amended its rule in 5 C.F.R. 1201.142 on June 8, 2006, so that, thereafter, an ALJ would have to show that they had left the position of ALJ and that their decision to leave was involuntary in order for the MSPB to have jurisdiction under 5 U.S.C. §7521. See 71 Fed. Reg. 34231 (June 14, 2006).

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authority to “determine when a case is ready to be scheduled for a hearing” and to “conduct a full and fair hearing when required”. Any improper interference by management with an ALJ’s “qualified decisional independence” in the performance of their job duties would therefore constitute a violation of the collective bargaining agreement.

The Agency argues that the concept of “qualified decisional independence” is limited to just the ultimate decision by an ALJ as to whether a claim for benefits is either granted or denied. But the contractual and legal concept of “decisional independence” goes much further than that. In Nash v. Califano, 613 F.2d 10, at 18 (2nd Cir., 1980), the court held that the ALJ’s “qualified right of decisional independence” specifically extended to cover decisions about matters like the length of hearings and opinions, the amount of evidence required, and the proper use of expert witnesses.10 Some of those same issues are present in the cases that we are dealing with here. And in Sykes v. Bowen, supra., at 288, the Eighth Circuit stated that the assignment (or reassignment on remand) of ALJs “cannot be made with the intent or effect of interfering with the independence of the ALJ . . .”

Statutes and regulations set forth the quasi-judicial authority of ALJs. By law, ALJs have the authority to decide whether to issue subpoenas and what evidence to admit. They also rule on offers of proof, regulate the course of the hearing, dispose of procedural requests or similar matters, make decisions, and take other action authorized by agency rule.11 Federal regulations that govern the Agency provide that ALJs have the authority to dismiss requests for hearings12; decide cases without an oral hearing13; decide whether to hold a pre-hearing or post-hearing conference14; set the time and place for the hearing, and change it if necessary15; issue subpoenas16; rule on motions to adjourn, postpone, or reopen the hearing17; decide what evidence is admissible18; decide whether to have medical experts testify and, if so, whether in person or by telephone or videoconference19; and otherwise exercise control over the hearing and rule on

10 Nash was sent back to the District Court to determine whether the specific Agency actions complained of (a peer review program, quality assurance system, and monthly production goals) really did improperly infringe on the ALJ’s “qualified decisional independence”. After fully considering that issue, the district court found that the Agency’s actions were not an improper infringement. The Court of Appeals then upheld that determination (see Nash v. Bowen, 869 F.2d 675 (1989)) and the Supreme Court denied cert., 493 U.S. 813 (1989). But the concept that decisional independence applies to more than just final decisions is still good law. 11 See 5 U.S.C. §556 (c) (2), (3), (5), (9), (10), and (11). 12 See 20 CFR 404.957. 13 See 20 CFR 404.948. 14 See 20 CFR 404.961. 15 See 20 CFR 404.936. 16 See 20 CFR 404.950. 17 See 20 CFR 404.936. 18 See 20 CFR 404.950. 19 See 20 CFR 404.950.

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matters presented20. The ALJ’s authority with respect to these matters is also clearly recognized in the Hearings, Appeals and Litigation Law Manual (known as HALLEX) of the Agency’s Office of Disability Adjudication and Review (“ODAR”).21 If ALJ’s have this authority and exercise it in a legitimate fashion, they should not have their decisions concerning any of these matters overturned by management officials just because those officials would have done things differently. Decisions can, of course, be challenged through the legal process, but that process is an entirely different thing from management reassigning a case in order to control how that specific case is handled.

The Arbitrator also deems it very significant that the official Agency job description for

ALJs (which was approved by the Office of Personnel Management as well as by the Associate Commissioner of Social Security and the Agency’s Chief Administrative Law Judge) states in Section II that, “with full and complete individual independence of action and decision, and without review, the administrative law judge has full responsibility and authority to hold hearings and issue decisions . . .”. The job description then goes on to list 18 specific actions related to hearings that ALJs have “complete independence of action and decision” with respect to. See Section II of the job description which is quoted in more detail above. Again, if an ALJ has “complete independence of action and decision” to do all of the things listed in their job description (and not just in relation to their final decisions, but also concerning how they conduct the hearings) then the Agency cannot take a case away from an ALJ just because management disagrees with the way they ar