PITY POOR ALJ SHAPIRO
The Social Security Administration fired one of its administrative law judges, Mark Shapiro, for failing to produce at least 500 decisions a year. (The preferred target is 700.) That is two a day if he only takes two weeks of leave in a year. In contrast, it is a good year when an ALJ at the FLRA issues five decisions. How could Judge Shapiro be fired from one ALJ spot when he produced decisions at a rate that would have earned him a Croix du Guere with endless clusters at FLRA?
What is wrong is the leisurely, genteel pace at which FLRA ALJ’s have decided to work. For probably a variety of reasons they have been allowed a year to produce what Judge Shapiro and his SSA colleagues produce in three days. It is true that SSA ALJ have a staff attorney in the back room drafting decisions as they hear the cases, but even that help comes nowhere near being an adequate explanation for how slow the Authority’s ALJ’s are. There are private labor arbitrators who handle the same issues that FLRA ALJs do that issue over 30 decisions a year. Less than 100 MSPB Administrative Judges turn out 6,400 decisions a year. Even the Supreme Court, which deals with far more complicated cases and processes than the FLRA ALJs, managed to issue an average of 9 decisions each this past term.
Entering 2013, the FLRA ALJs had still not closed cases that were given them in 2009. They had made a small dent in the cases assigned them in 2010 and done virtually nothing about the 2011 assignments. When expressed in terms of the cost of a decision, given the average ALJ salary each of the five decisions an FLRA ALJ issues in a year costs about $25,000.
What makes these numerical comparisons even sadder is that FLRA ALJs are not doing rocket science. The vast majority of their cases involve allegations that an agency unilaterally implemented some change. The Regional Director’s staff has already listed for them the key facts of the case and generally the agency has already agreed to most of those alleged facts. The parties also file written briefs after the hearing outlining the facts and law for the ALJ’s decision. Finally, after thousands of FLRA decisions the law is pretty well-settled, leaving the ALJ merely to apply it. In other words, the decisions are virtually written for them. What busy student wouldn’t love to be in the position of having to produce a term paper with two drafts of the paper already written and a transcript of the facts before him/her?
Law prevents the three members of the Authority from imposing production standards on their ALJ’s, but common sense demands that the Authority do something about this before its ALJ’s output becomes the next Congressional scandal.
ALJ Shapiro’s defeat at the hands of MSPB provides a good outline for how to encourage judges to dispose of their cases more quickly. Encouraging shorter ALJ decisions would be a good first step. In one recent case the ALJ wrote up 40 paragraphs of facts before applying the law to a relatively simple and routine case. It took 21 months from the end of the hearing to the issuance of the ALJ decision.
But the real answer is that there needs to be a culture shift among the FLRA ALJs. The NY Times just published an article about a judge who has single-handedly turned around the notoriously slow court in the Bronx, NY. She disposed of 500 cases in a court stacked ceiling high with criminal cases. Perhaps that judge should be invited down to give a pep talk to the FLRA ALJs. (See “Bronx Courts Trim Big Backlog, With Outside Judge at the Helm.”) The production targets at SSA are insane, especially given how invalid the measurement system is. No one wants that plague to spread among other ALJs. But neither is it any longer acceptable for ALJ’s to operate at a pace that is substantially contributing to strangling their own agency and statute.