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ALJs File Lawsuit Over Vacancies

September 1, 2007

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Claimants are not the only ones who bring lawsuits involving the Social Security Administration.  The Association of Administrative Law Judges, a union of ALJs, filed suit this summer against the U.S. Office of Personnel Management (OPM) over the hiring of ALJs.  The lawsuit stems from SSA’s announcement this past spring that it was opening applications for ALJ positions for the first time in nearly ten years.  See the May 2007 edition of the Disability Law News.

The hiring process, when announced, was to remain open until mid May 2007, or until 1,250 applications are received - whichever came first.  According to the ALJ union, the 1,250 came first - within three days of the formal posting of the announcement, but for improper reasons.  In the lawsuit, the union claims one or more federal agencies received advance notice of the vacancy announcement and tipped off their own attorneys.  As a result, according the allegations of the suit, those attorneys got to file first and thus received preferential treatment over other qualified attorneys in private practice.  The suit, Association of Administrative Law Judges v. U.S. Office of Personnel Management, No. 07-0711, is pending, according to a recent report in the National Law Journal.

The article goes on to describe the “long-simmering unhappiness” between OPM and the ALJs.  OPM oversees more than 1,400 ALJs nation-wide, assigned to 31 agencies, although SSA employs approximately 1,000 of them.  As a result of previous litigation over the hiring program, OPM had basically shut it down, only to reopen it based on Congressional pressure to hire additional SSA ALJs to address the backlog of disability claims.  OPM had hoped to have a new roster of names available for SSA by late October.  According to OPM Director Linda Springer, however, that may now be delayed because of the new litigation.

The lawsuit also charges that OPM’s recent rule requiring ALJs to maintain active bar memberships in the state where they sit is “arbitrary, capricious,” and “not rational.”  ALJs have protested that many of them have taken inactive status, “judicial” status, or sit in states other than where they are licensed.  OPM - in true SSA “speak” - has claimed that its ruling is simply a “clarification” of its longstanding policy of requiring ALJs to be licensed for appointment, according to a June 25, 2007 report in the Washington Post. 

The union’s lawsuit contends, however, that "numerous incumbent" judges have not paid the annual fees to retain their licenses or have dropped out of the bar in their states, relying on an announcement by an SSA official in 1989 that they did not need to maintain active bar status after being appointed.  The lawsuit contends that ALJs are now in the position of not knowing whether they need to resign or whether they can legitimately hold hearings or issue orders in light of the confusion over the ruling.

The ALJs have complained that they may have to pay years’ worth of back dues, catch up on CLE (Continuing Legal Education) requirements, or even take bar exams again. So if you catch an ALJ studying those all too familiar BAR/BRI materials between hearings, you’ll know why!


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