GAO Makes Recommendations on ALJ Hiring and Management

March 11, 2010

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

The Government Accountability Office (GAO) has released a study of the Office of Personnel Management’s (OPM) hiring and management of Administrative Law Judges (ALJs).  GAO-10-14, entitled “RESULTS-ORIENTED CULTURES –  Office of Personnel Management Should Review Administrative Law Judge Program to Improve Hiring and Performance Management,” can be found at www.gao.gov. 

The report, which focuses on ALJs at the Social Security Administration (SSA) and the Department of Health and Human Services (HHS), provides background information on the role of OPM in processing ALJ applications, including examining applicants and certifying qualified candidates.  Once the ALJ is hired, the agency and OPM share responsibility for managing performance.  The GAO recognizes the unique conditions established by the Administrative Procedure Act (APA) for hiring and employment to protect the decisional independence of ALJs.  The GAO nonetheless made recommendations to OPM regarding ALJ hiring and performance management.

The GAO expressed concern that despite the impending retirement of a number of ALJs, OPM  reported that none of the agencies involved had identified or planned for future ALJ related skill and competencies gaps.  SSA officials reported that they were very pleased with the quality of ALJs recently hired.  They stated, however, that the process should have more flexibility in order for them to best meet their agency specific needs, particularly in light of the loss of institutional knowledge and technical skills with impending retirements of experienced ALJs.

In terms of “management,” agencies such as SSA are prohibited by the APA from rating or tying an ALJ’s compensation to performance.  SSA managers reported that they evertheless employ a variety of practices other than ratings to directly and indirectly manage ALJ performance. ALJ performance management was of particular concern in terms of productivity, especially given the Chief ALJ’s “request” that ALJs issue 500-700 legally sufficient decisions each year.  Several stakeholders, including the Association of ALJs and the Social Security Advisory Board expressed concern that the number of favorable decisions will increase as the number of decisions issued increases, in part because a favorable decision may require less ALJ time than a defensible decision denying benefits.

The GAO recommended developing standards or competencies to guide employee performance management.  The report also reviewed other options that have been proposed over the years.  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.

The report makes for some fascinating reading regarding what might be characterized as OPM’s role in herding cats!