SEP-09-2011 03:52 SSA-ODAR P.002 AN ARBTRATON BETWEEN :1 SOCAL securty ) ADMNSTRAOON OFFCE OF ) DSABLTY ADJUDCA non AND ) REVEW ) RE: Removal of Cases from ) Judge Eart W. Shaffer and ) ) FMCS No. 1G-60265-3 THE ASSOCA non OF ) ADMNSTRATVE LAW JUDGES ) FPTE AFL..cO ) BEFORE : MARSHALL A. SNDER ARBTRATOR :: ' The arbtraton hearng n ths matter was conducted on May 12. 2011 n Colorado Sprngs. Colorado. Admnstratve Law Judge Lany J. Butler represented The A$socaton of AdmnStratve Law'Judges. ThomasS. nman Esq. Assstant Regonal Counsel represented the Socal SeCurty Admnstraton Offce of Dsablty Adjudcaton and Revew.! The partes stpulated that the steps of the 9~evance process had been followed n a tmely manner or had been waved and that the :matter was properly before the Arbtrator for a fnal and bndng award subject to the rght of federal govemment employees to appeal to the Federal Labor Relaton~ Authorty. The hearng was held open for the submsson of post-hearng bref$ whch were receved by July 13 2011 at whch tme ths matter became ready for the ssuance of an award.. STATEMENT OF THE SSUE The ssue to be determned as stpulated by the jpartes s whether the reassgnment of two cases n the Colorado Sprngs Offce of Dsablty Adjudcaton and! Revew from Admnstratve Law Judge earl W. Shaffer to Hearng Offce Chef Admnstratve Law Judge Kathryn Burgchardt under the Socal Securty Admnstraton's 850 day old case ntatve volated the partes' collectve barganng agreement (Artcle 1. Secton 3A; Artcle 5 Sectons: 1 and 2C) the Admnstratve ' Procedure Ad or other law. rule or regulaton and f so. what s the remedy? ' l
SEP-09-2011 03:52 SSA-ODAR P.003. RELEVANT CONTRACT PROVSONS ARTCLE 1 DURATON AND TERMNATON Secton 3 A n the admnstrat~nof all matters covered b~ ths agreement the partes are governed by the followng: exstng and future laws; government-wde rules and regulatons n effect on the effectve date ofths agreement; SSA and OHA rules and regulatons n effect: on the effectve date of ths agreement and not n conflct wth ths agreement; and government-wde rules or regulators ssued after the effectve date of ths agreement that do not conflct wth ths agreement. Where the terms of ths agreement conflct wth govemment.wde rules and ~gufatons ssued after the effectve date of ths agreement the terms of ths agreement shall be controllng: ARTCLE 3 ~. MANAGEMENT RGHTS A. Subject to subsecton (8) of ths secton noth~ng n ths chapter shall' affect the authorty of any management offcal of the Agency: 2. rn accordance wth applcable laws: a. To hre assgn drect layoff and retan employees n the Agency... b. To assgn work take (sc) determnatohs wth respect to contractng out and to determne the personnel by whch Agency operatons shall be conducted.. ARllCLES! EMPLOYEE RGHTS Secton 1 The Partes recognze that the Judges covered by the terms of ths agreement are admnstratve law judges apponted pursuant to S U.S.C. 3105 and are engaged n the performance of dutes whch requre the consstent exercse of dscreton knowledge. and judgment n conductng hearngs. These dutes are complex and vared as set forth n 5 U.S.C. 7103 (15)(A)(v) and are of such a charader that the output produced or. the results accomplshed by such work cannot be standardzed n relaton. to a gven perod of tme. ' 2
SEP-09-2011 03:52 SSA-ODAR F.004 Secton 2 C. Consstent wth ther appontment under the Admnstratve Procedure Act and the Unted States Offce of Personnel Management (OPM) approved poston descrpton Judges shall not be requred to perform ~utes or ass;gnments nconsstent wth the dutes and responsbltes of an admnstra~e law judge as set forth n 5 U.S.C. 3105 and 5 C.F.R. 930.209. An admnstratve a~ judge may be assgned to perform dutes wth approval of OPM and pursuant to 5 C.FJt 930.209. Secton 2 ARTCLE 10 GREVANCE PROCEDURE A. A grevance s defned as any complant: by any judge concernng any matter reatng to the employment. of the judge: 2. by the AALJ concemng any matter rel~tng to the employment of any judge; or 3. by any judge the AALJ. or the Agencvlconcemng; a. the effect or nterpretaton or a dam of a breach of ths agreement; or b. any clamed volaton. msnterpretaton. or msapplcaton of any law. rule. or regulaton affectng ~ondtons of employment.! 1 ARTCLE 13 JUDCAL FUNCTON N THE OFFCE OF ~EARNGS AND APPEALS Judges playa vtal role n the accomplshment of the OHA msson and make a sgnfcant contrbuton to the msson of ssung hearng decsons that are tmely and correct determnatons by the Commssoner of the ~al Securty admnstraton. n makng hearng decsons a Judge may determne when a case s ready to be SCheduled for a hearng conduct a full and far hearllg when requred and must ssue a legallv suffcent decson... 3
SEP-09-2011 03:52 SSA-ODAR P.005. FACTS A. NTRODUCTON ; 1 The Partes [! The Unted States Socal Securty Admnstraton Offce of Dsablty Adjudcaton and Revew (ODAR or the Agency) mantans 154 ~arng offces throughout the Unted States. The hearng offces hear and decde appeal~ of the actons of state agences regardng applcatons for socal ~rty dsablty and supplemental securty ncome benefts. Nnety-fve percent of these hearngs nvol~e the queston of whether an applcant for benefts s dsabled under the law.! Grevant Eatl W. Shaffer (the Grevant) s an ~dmnstratve law judge n the Colorado Sprngs. Colorado hearng offce. The Gr~vant has been an admnstratve law judge (ALJ) wth the Agency snce 1997. He has been assgned to the Colorado Sprngs hearng offce snce that offce opened n 2003. There are fve ALJs n the Colorado Sprngs hearng offce ncludng the Hearrlg Offce Chef ALJ. Kathryn. Burgehardt.!! 2. Admnstratve Law Judges. The role of an ALJ n OOAR s to mpartally and ndependently hear and decde the cases that come before hm. Once a matter s assgned to an ALJ. t s left to the judge to manage the case and to ask for addtonal e~dence f the judge beleves th~t s appropnate. Generally. Agency management does ~ot tell ALJs how to manage ther cases or whether to grant contnuances.. The poston descrpton for the job of an ALJ '~ecognzes that the Socal Securty Act and Federal Admnstratve Procedure Act each prohbt sub~tantve revew and supervson of an ALJ n the performance of hs quas-judcal functons of holdng hearngs and decdng cases. The poston descrpton provdes that an ALJ s subject only to such admnstratve supervson as may be requred n the course of general offce management. The poston descrpton requre~ an ALJ to obtan a clear and concse record and to use judgment and ntatve n callng expert or other wtnesses and n requestng evdence on any medcal or econoltlc factors n order to develop a complete" record of the hearng. Smlarly. the poston descrpton for a hearng offce chef ALJ specfes that one of the dutes ofths offcal s to provde advce and gudance to ALJs "consstent wth the decsonal ndependence accorded Admnstratve : Law Judges pursuant to the provsons of the AdmnStratve Procedure Act-. The ALJ poston descrpton also recognzes that the Admnstratve Procedure Act and other laws provde AWs wth "complete ndvdual ndependence of acton and 4
SEP-09-2011 03:63 SSA-ODAR P.006 \.J decson and wthout revew the Admnstratve Law Judge has full responsblty and authorty to hold hearngs and ssue decsons... aqd rule on requests for extensons. '" and n general regulate the entre course of the Proceedngs.. : The Agency's ntemal procedural manual for hearngs provdes gudelnes for an ALJ n exercsng hs dscreton to contnue a scheduled hearng. 2 An ALJ does not need the permsson of a supervsor to contnue a hearng. : B. THE AGED CASE NmATlVE 1. The 850 Day Aged Case ntatve As descrbed n the Statement of the ssue o~ the frst page of ths Award ths grevance nvolves the reassgnment of two cases from the Grevant to Hearng Offce Chef Judge Burgchardt. The reassgnment of thes~ cases arose from an ntatve of the Agency to reduce ts backlog of cases docketed for hearng. n fscal year 2009 (whch ended on September 30 2009) ODAR natonally had approxmately 166000 cases requrng hearng that had been pendng for 850 days or more. Mchael Astrue was the Commssoner of Socal Securty the head of the Agency n fscal year 2009. Astrue made the elmnaton of the hearng backlog the number one prorty of ODAR and n fact the num~r one prorty of the entre Agency. Accordngly the Agency set a natonal goal far fscal year 2009 to make every effort to dspose of all cases that were pendng for hearng n ODAR for 850 days or more. The deadlne for ths effort was September 2~ 2009 whd1 was the end ofthe reportng perod for that fscal year. Although the goal was that all 850 day aged cases would be concluded by ths date. the Agency recogn;zed that n some ~ses factors : beyond the control of OOAR would prevent meetng1hs goal. Nevertheless the hearng offces were expected to complete all of the~ aged cases by the September 25 deadlne unless there was a sgnfcant and compem~g reason not to do so. As to each.: case not dsposed of by September 25 the chefalj ln each of the Agency's regons was requred to explan to hs or her superors the reason that the deadlne was not met. The Agency was substantally successful n ts aged case ntatve. By the end of fscal year 2009 only 200 cases natonally remaned open of the 166000 cases that had been pendng for more than 850 days at the start of ~ fscal year.!1. n.;s pall of _ posjt;on clescrptons consolen'.;o Artdo 13 of!he labor agreemen~ whch [Provdes that "8 Judge may determne when a case s ready to be scheduled for a hearng". 2 Ths manual s the Hearngs Appeals and Ltgaton Law Manual also known as " HAL L EX-. 5
SEP-09-2011 03:53 SSA-ODAR P.007 2. Reassgnment of Cases The poston descrpton for a hearng offce chef ALJ provdes that one of the dutes of ths poston s to assgn and reassgn ~s to ALJs on a rotatonal bass nsofar as practcable and n accordance wth establshed Agency polces. Cases before Agency AUs routnely get reassgned when the assgned judge s unavalable (for example. due to llness. or the nablty of the judge to retum to a travel ste or when the judge has decded to recuse hmself or herself from hearng a case).. On December 13 2008 the Agency's Chef Admnstratve Law Judge ssued a memorandum authorzng the reassgnment of aged jeases under the 850 day ntatve. Ths memorandum provded that a case could be reassgned even f the hearng judge had done substantal work on the case f the regon~1 chef ALJ or a hearng offce chef ALJ reasonably beleved that the assgned judge would be unable to take the actons needed to ensure that a decson was ssued pror to the September 25 deadlne. The memorandum emphaszed that a case could not be ~eassgned n order to rlfluence the case outcome or otherwse to nterfere wth an AU's qualfed decsonal ndependence. Qualfed decsonal ndependence recognzes' that vale management cannot requre an ALJ to decde a case n a partcular way ALJs arjt nonetheless employees of the Agency. As employees of the Agency ALJs are sub~ctto Agency manageral. supervson and operatonal polces. The Colorado Sprngs hearng offce s n the tgency's Regon 8. At the start of fscal year 2009 3000 cases had been pendng n Regon 8 for more than 850 days. : Fve hundred of these aged cases were pendng n t~e Colorado Sprngs hearng offce.. Near the end of. the fscal year Judge Burgch~rdt the Grevant's Hearng Offce : Chef ALJ. focused on the small number of aged cases n her hearng offce' that had to " be dsposed of pursuant to ths ntatve. Judge Burgchardt looked at these fles on a case-by-cas~ bass and reassgned some cases from one judge to another n order to facltate the complete processng of each matter by September 25. 3. Reassgnment of the Grevant's Cases.. n late July 2009 Judge Burgchardt ntated a dscusson wth the Grevant (about reassgnng'some of hs 850 day old cases. The Grevant had no objecton to [Judge Burgchardfs decson at that tme to transfer four of hs cases. on whch the Grevant clams he had not performed substantal WOrk or whch were scheduled for.! remote locatons to whch the Grevant would not be returnng that year. 3 3. Judge Burgchardt testfed however that the Grevant ted developed these four cases to some lextent.. 6!
SEP-09-2011 03:53 SSA-ODAR P.008 \.../. n August 2009 Judge Burgchardt decded to reassgn two addtonal cases of the Grevant's to herself pursuant to the 850 day aged case ntatve. These were the eases of clamants Chloe Ssneros and Jeffrey Maske. Judge Burgchardt was concerned that the Grevant had contnued the Ssneros case past the September 25 deadlne. As to the Maske case Judge Burgchardt ~s concerned that the Grevant would not commt to hear and decde that case pro~ to the deadlne. As noted above Agency management typcally would not ten an ALJto contnue or not contnue a case. Had t not been for the 850 day aged case ntatve the Grevants decson~ to contnue or not contnue these two cases would not have come to management's attenton at all. However because of the September 25 aged case ntatve deadlne Judge Burgchardt decded to transfer these cases from the Grevant S6 that she could be assured they. would be heard before the end of the fscal year. On August 27. 2009 Regonal Chef ALJ Marsha Stroup authorzed Judge Burgchardt to reassgn the Ssneros and Maske cases to Judge Burgchardt. Judge Burgchardt then transferred these two cases to he~lf. The Grevant objected to the reassgnment of the two cases.! C. THE GREVANCE The Assocaton of Admnstratve Law Jud~ (the Assocaton) fled ths grevance on September 17 2009. The AssocatonjaUeges that Judge Burgchardt's. acton n reassgnng these two cases was mproper because the reassgnment volated Agency polcy and the collectve barganng agreement and that reassgnng the cases. consttuted actve management nterventon that strpped the Grevant of judcal ndependence..; D. THE CHLOE SSNEOS CASE. 1. The Case Hstory The Chloe Ssneros case was one of the 850 day old aged cases that were subject to the ntatve to close out cases by September 25 2009. Chloe Ssneros was a chld clamant for supplemental securty ncome benefts. She was vsually mpared. havng one glass eye and mpared vson n the other eye. Ths case was transferred to the Colorado Sprngs hearng offce from the Albuquerque New Mexco hearng offce and came to the Grevant n August. 20OS. On Oecember 2. 2008 the Grevant postponed a scheduled hearng n ths case so that the clamant could pursue legal representaton and obtan updated medcal records. On lmarch 132009 the case was agan rescheduled at the request of the clamant's mother. The case was reset for June 162009. 7
SEP-09-2011 03:63 SSA-ODAR P.009 At the June 16 hearng the case was agan postponed at the clamant's request for the purpose of obtanng updated medcal records and to obtan a functonal equvalence evaluaton report from Chloe's pedatrcan. The case was reset for September 15 2009. On August 12 2009 Edmond Roybal. a paralegal at the Colorado legal Servces legal ad offce contacted the Grevant about the Chloe Ssneros case. After talkng to Roybal the Grevant on August 12 reques~ a medcal examnaton by an ophthalmologst. A medcal examnaton nvolves a revew of medcal records by a physcan who s on a lst mantaned by the Agency: and that doctor's testmony at a subsequent hearng. On August 19 2009 the Grevant receved a letter from Roybal. n ths letter Roybal advsed the Grevant that he would be repr~ntng Chloe Ssneros. Roybal requested a two month contnuance of the September 15 hearng. As grounds for the.. contnuance Roybal stated that he needed tme to revew the fle and to gather addtonal medcal records. n addton Roybal statjd that Chloe was about to start preschool and Roybal wanted the pre-school teacher to conduct an evaluaton of the chld. The Grevant granted Roybal's request and contnued the case untl November 2009. 2. Reassgnment of the Chloe Ssneros Case n late August of 2009 the staff at the Colorado Sprngs hearng offce noted that the Chloe Ssneros case an 85O-day case that sho41d be closed out by September 25. had been rescheduled to November. Ths case came to Chef Judge Burgchardt's attenton on August 26. On that day Judge Burgcha1rdt contacted the Grevant by e~mal (the Grevant was out of the offce hearng cases n ~nother cty). Judge Burgchardt told the Grevant that she was gong to schedule the SsFj'eros case for September 15 and advsed the Grevant that f he was not avalable to hear the case on that day Judge Burgchardt would conduct the hearng.! n an e-mal later on August 26 Judge Burgchardt told the Grevant that the Ssneros case had to go to hearng before Septem~ 25 due to the 850 day polcy. n [ ths e-mal Judge Burgchardt stated that " am sure ~ere are good reasons;for the 4. contnuance. but-because t s 850 we can't let t go nto Novembe... The Grevant responded to Judge Burgchardf:s EHT1allater on August 26. He told hs chef judge that he beleved that addtonal e~dence needed to be developed and that f addtonal evdence was not allowed the clamant would. n the Grevants opnon be dened due process of law. Despte the Grevant s reservatons Judge 4. Judge Burgchardt testfed at the at1)traton hearng that she really dd not thnk there was good reason to contnue the Ssneros cas& but she so stated n ths &-mal because she dd not want to offend the Grevant. : 8
SEP-09-2011 03:63 SSA-ODAR P.010. ">.- \.J Burgchardt scheduled and heard the Chloe Ssneros case on September 15. 2009 and dsposed of the case pror to the September 25 deadlne. 3. Dfferences of Opnon Regardng the ~sneros Case The Grevant was of the opnon that a contnuance of the Chloe Ssneros case untl November 2009 was warranted even f dong so would cause that matter to extend beyond the September 25 deadlne of the agect case ntatve. The GreVant had ordered a medcal examnaton by an ophthalmolog~t on August 12 and the Grevant beleved that the perod of tme between August 12 Jmd the September 15 hearng was too short to obtan that examnaton and to fnd a doctor who was avalable to testfy on September 15. n hs August dscussons wth Judge Burgchardt rega((jng ths case the Grevant dd not menton that he had requested the rnedcal examnaton by an ophthalmologst. However Judge Burgchardt revewed the Ssneros fle at ths tme and the fle contaned a notaton dated August 12 2009 that the Grevant had requested a medcal examnaton by an ophthalmologst. ' The Grevant also wanted to obtan addtonal evdence ncludng an addtonal report from the chld's pedatrcan and the functonal equvalence evaluaton by Chloe's pre-school teacher. n the Grevant's opnon ths case had not yet been adequately developed and the ~mant would have been prejudced and dened due pr~s of law f the case had gone to hearng on September 15 wthout ths addtonal evdence.. f the hearng went forward on September 15.the clamant could nevertheless present addtonal evdence at a later tme. The Agehcy's regulatons provde for an appeal of an ALJ decson to the Agency's Appeal C~uncl. The Appeals Councl could remand the case to the ALJ to take addtonal evdence. Although the Appeals Councl also had a sgnfcant backlog. wth delays of two to three years the Appeals Councl could act more quckly than that to remand a case fo~ the takng of addtonal evdence. Further addtonal evdence could be taken by an AUJ after a hearng; a clamant can. ask an ALJ to reopen a case wthn one year of the AU's decson when new materal. evdence has come to lght. Despte these avenues for addtonal evdence to be J presented n the ChlOe Ssneros case after a September 15 hearng. the Grevant was lof the opnon that he had a responsblty to develop jthe record and that the best practce s to develop all materal nformaton and hear a case only one tme. On the other hand Judge Burgchardt beleved that the Chloe Ssneros case was fully developed and rpe for a hearng on September 115. 2009. The case had been pendng for several years whch n Judge Burgchardt's opnon was ample tme for the clamant's mother to gather the necessary medcal nformaton. The Clamant had receved several contnuances and had had an opportunty to obtan legal representaton snce at least December 2008. The fle contaned agood deal of : 9 l
SEP-09-2011 03:54 SSA-ODAR P.011 medcal reports and Judge Burgchardt beleved tha a small perod of observaton by a pre-school teacher would not have provded meann;gtul nput. Whle the Grevant beleved that complete treatng physcan records w~re not n the fle and that an ophthalmologcal medcal examnaton was nece~. Judge Burgchardt was of the opnon that all the medcal evdence was present. ljad mportant evdence come to lght at a later tme that evdence could be presented to the Appeals Councl. or to an ALJ on a request to reopen the case.. Judge Burgchardt consulted wth Regonal C~ef ALJ Stroup who concurred that the Ssneros case was ready for a September 15 h.rng. Lke Judge Burgchardt. Judge Stroup felt that the clamant had had ample opportunty to obtan legal representaton n the past that all of the medcal recbrds were n the fle and that the possblty that an evaluaton mght be forthcomng frbm a pre-school teacher dd not warrant further delay; the teacher's evaluaton f thej teacher dd one at all would not be matera1. Accordngly 8S noted above Judge Stroup authorzed Judge Burgchardt to reassgn ths case. Judge Burgchardt heard the ca. on September 15 wthout any of the addtonal evdence. or medcal records that the Grevant felt was necessary. ' 10 l
SEP-09-2011 03:54 SSA-ODAR P.012 "'-"."---... J case ntatve Hearng Offce Chef Judge Burgchardt asked the Grevant f he could guarantee that he would ssue a decson n the matter by September 25. The Grevant declned to commt to havng a decson out by that deadlne. even though he acknowledged that the case was ready to go to heatng. The Grevant was prepared to hold the Maske hearng on September 2. However. he fett he was unable to gve Judge Burgchardt the requested guarantee that the case would be complet~ by September 25. T~ Grevant dd not know f the. clamant would appear for hearng on September 2. f the Clamant faled to appear the Grevant could ssue a notce to show cause why the matter should not be dsmssed. A notce to show cause allows the clamant ten days to respond. wth an addtonal 5 days for malng. whch would brng the matter very close ~o the September 25 deadlne. The Grevant also was concemed that he dd! not know whether Mr. Maske would appear wth a representatve on September 2 and f he dd. whether that representatve mght ask for addtonal tme. fthe clamant appeared wthout a representatve. he may have asked for more tme to obtan representaton. n ether event the Grevant would not know n advance of the hearng f good cause m~ght be shown to warrant a postponement. n short whle at the end of August the Grevant planned to hold the hearng as scheduled on September 2. because thejgrevant could not know what mght transpre on that date he felt he could not gua~antee that the case would be dsposed of by September 25.. Because the Grevant woud not commt to hjvng the case completed by the aged case ntatve deadlne Judge Burgchardt decded to reassgn the Maske case to herself. n her vew the evdence was fully developed and the clamant had had ample tme to obtan representaton. Judge Burgchardt ddj not see any dfference between the Maske case and other cases that. were transferred from the Grevant wthout any objecton on hs part. As dscussed above Judge Stroup authorzed Judge Burgchardt. to reassgn ths case. The Grevant objected to the leassgnment of ths case.. The reason the Grevant expressed to Judge Burgchardt for not commttng to a decson by September 25 was that he dd not know what mght occur at the hearng. t s true that.at the end of August no one could know what mght happen at the September 2 hearng. The clamant mght fal to appear. fthe clamant dd appear he mght ask for a contnuance. to obtan a representatve or for other reasons. Or a representatve mght appear wth the clamant and request a postponement. Regardless of what ssues arose at the September 2 hearng the judge assgned to the case. whether t was Judge Burgchardt the Grevant or any other judge would have to decde how to respond. 11
SEP-09-2011 03:54 SSA-ODAR P.013 V. DSCUSSON A. THE ARBTRATOR'S AUTHORTV The partes' stpulated statement ofthe ssue specfcally drects the Arbtrator to detennne f the Agency has volated Artcle 1 Secton SA of the contract. That secton provdes that n the admnstraton ofthe agreementthe partes are govemed by exstng and future laws and by Agency and government-wde rules and regulatons. Artcle 1 Secton 3A therefore ncorporates nto the labor agr~ment laws. rules and regulatons beyond the express provsons of the contract. Arbtrator'John sass ssued an award on Aprl 30 2009 n a grevance nvolvng the same subject matter as the present case (the ~ss award). Arbtrator Sass smlarly concluded n that matter that n applyng Artcle 1. secton 3 of the contract t was necessary to look to applcable laws rules and regulatons (Sass award pg. 21). n addton Artcle 10 Secton 2 of the contrabt permts an ALJ or the Assocaton to greve any matter relatng to the employment of a Uudge or any clamed yjolaton. msnterpretaton or msapplcaton of any law rule or regulaton affectng condtons of employment. Thus lke Artcle 1 Secton 3A of the collectve barganng agreement. Artcle 10 Secton 2 also ncorporates laws rules and regulatons nto the contract. Fnally the stpulated statement of the ssuesldentfles as an ssue whether the reassgnment of the Ssneros and Maske cases volated the Admnstratve Procedure Act or other law rule or regulaton. Accordngly the Arbtrator wll consder whether the Agency has volated any express provsons of the collectve barganng agreement and also whether the Agency has volated any relevant ~ rules or regulatons. B. QUALFED JUDCAL NDEPENDENCE Admnstratve lawjudges n OOAR are employees of the Agency and subject to management by the Agency. Therefore the Agency can adopt reasonable admnstratve measures to mprove the decson-makng process of ALJs. Nash v. Bowen 869 F.2d 675 681 (2d Cr. 1989) (Agency can set reasonable producton goals. and establsh a post-decson peer revew program for ALJs). Nevertheless n ther role as judges ALJs have been granted judcal ndependence by both law and Agency polcy. Nash v. Calfano 613 F.2d 10 15 (2d Cr. 1980) (federal statutes confer a qualffed rght of decsonal ndependence onagency ALJs). n Butz v. Economou 438 U.S. 478 1 513 (1978) the Court n referrng to the Admnstratve Procedure Act (APA). stated that "'the process of agency adjudcaton s culjfently structured so as to assure that the hearng examner exercses hs ndependent! judgment on the evdence before hm free from pressures by the partes or other offcals wthn the agency". Therefore t has been held that whle an admnstratve agency has a degree of dscreton n. 12! :1
SEP-09-2011 03:64 SSA-ODAR P.014 assgnng ALJs to cases assgnments cannot be made wth the ntent or effect of nterferng wth an AW's ndependence. Sykes v. Bowen. 854 F.2d 284. 288 (8 th Cr. 1988); Aaacon Auto Transport nc. v. nterstate Co!merce Commsson 792 F.2d 11561163 (D.C. Cr. 1986).! An ALJ's decsonal ndependence extends beyond decdng the merts of a case.. J Judcal ndependence ncludes ndependence n decsons nvolved n the management of the hearng process as well. The APA explctly grants ALJs the authorty to regulate the course of hearfngs and to dspose of procedurall requests. 5 USC 556(c)(5) (9). The Agency's regulatons provde that an ALJ has tt;\e authorty to adjourn.' postpone or reopen a hearng. to change the tme of a hearng for good cause to contnue a hearng f the ALJ beleves materal evdence s mssng. and to decde what evdence s admssble. 20 CFR 404.936 (a) (d); 404.944; ard 404.950(c). ' Consstent wth ths legal structure the Agen~ has recognzed the qualfed judcal ndependence of ALJs ncludng ndepende?c8 n hearng management. The poston descrpton for the ALJ poston provdes th~t an ALJ s subject only to such admnstratve supervson as may be requred n the course of general offce management. The poston descrpton requres an ALJ to obtan a clear and concse record and to use judgment and ntatve n callng expert or other wtnesses and n requestng evdence on any medcal or economc fa~ors n order to develop a complete record of the hearng. The ALJ' poston descrpton\ also recognzes that the APA and other laws provde ALJs wth "complete ndvdual ndependence of acton and decson J and wthout revew. the Admnstratve Law Judge has full responsblty and authorty to hold hearngs and ssue decsons...and rule on r~uests for extensons... and n general regulate the entre course of the proceedngs...t The Agency's HALLEX hearngs manual provdes gudelnes for an AW n exercsng hs dscreton to contnue a scheduled hearng. Smlarly. the poston descrpton for a hearng offce chef AlJ speclfes that one of the dutes 01 ths offcal s to provde advce and gudance to ALJs "consstent wth '[ the decsonal ndependence accorded Admnstratnle Law Judges pursuant to the provsons of the Admnstratve Procedure Act". n addton the partes have recognzed n Artcle 13 of the labor agreement that ta Judge may determne when a ' : case s ready to be scheduled for a hearng". The above authortes and polces establsh that an ALJ's qualfed decsonal ndependence s not lmted to the ultmate decson on the merts of a case. Decsonal ndependence extends to the management of the hearng process. Ths case management ncludes'whether to postpone a hearng (20 CFR 404.936{a) (d»: whether to have medcal experts testfy (ALJ poston descrpton); determnng when a case s ready to be scheduled for a hearng (Artcle 13 of the collectve barganng 13
SEP-09-2011 03:54 SSA-ODAR P.015 agreement): rulng' on requests for extensons (ALJ poston descrpton and HALLEX); decdng what evdence s admssble (20 CFR 4()cf.950(c»; and contnung a hearng to obtan evdence the AU beleves s materal (20 pfr 4l04.944). n the Sass award the arbtrator rejected th~ Agency's clam that qualfed decsonal ndependence s lmted to the ultmate decson by an ALJ as to whether a clam for benefts should be granted or dened (Sass award pp. 25-6). Whle the Sass award s not bndng. the Arbtrator n the present case fnds Arbtrator Sass's concluson n ths regard to be persuasve and consstent wth the above laws regulatons. contractual provson and poston descrptons. The Arbtrator n the present case smlarly concludes that decsonal ndependence e~ends beyond the ultmate decson on' the merts and encompasses the overall management of a case as descrbed. above.! C. THE APPLCATON OF QUALFED JUDCAL NDEPENDENCE TO THE GREVANCE t s true as the Agency ponts out n ts bref.! that the collectve barganng agreement does not contan any provson explctly governng reassgnment of cases. However. as dscussed above the labor agreement ncorporates laws. rules and federal regulatons. These laws and regulatons nclude th~ APA. the court decsons descrbed above regardng the qualfed judcal ndependence 1of ALJs. and the Agency's regulatons regardng the authorty of ALJs n hearng management. Therefore f the Agency nterfered wth the qualfed jud~al ndependence conferred upon the Grevant by the laws and regulatons ncorporated nto the oooectve barganng agreement the Agency would be n volaton ofthe labor agreement; specfcally Artcle 1 Secton 3A. $ 1. The Ssneros Case n reassgnng the Ssneros case from the Gr~vant to Judge Burgchardt the Agency'nterfered wth the Grevant's qualfed judcal ndependence. The Grevant made a number of decsons regardng the managen\lent of ths case ncludng hs determnaton that t was necessary to obtan a medcal examnaton by an ophthalmologst. an addtonal report by the chld's pedatrcan and a functonal equvalence evaluaton by the Grevant's pre-school teacher. \. Hearng Offce Chef ALJ Burgchardt and Regonal Chef ALJ Stroup dsagreed \ wth the Grevant that these addtonal examnatons and reports were necessary pror to 1------------------ 5. The December 13 2008 memorandum from the Agency's Chef AtJ concemng reassgnment of cases under ths ntatve specfed that a case could not be reassgned f t nterfered wth a judge's qualfed decsonal ndependence. Therefore the reassgnment of a case under the 8SO day aged case ntatve n manner'that nterfered wth an ALJ's qualfed jud~al ndependence WOUld also contravene Agency polcy. 14
: SEP-09-2011 03:64 SSA-ODAR P.016 : conductng a hearng. The Agency argues that the Grevant faled to even menton the ophthalmologcal medcal examnaton when he dscussed reassgnment of'the case wth Judge Burgchardt. However. Judge Burgchardt revewed the Ssneros fle n decdng to reassgn the Ssneros case and the ord~r for a medcal examnaton by an ophthalmologst was contaned n the fle. Ultmately. t s rrelevant whether the Grevamt made a correct decson on these matters whether he fully explaned hs reasonng to! Judge Burgchardt or whether Judges Burgchardt and Stroup were correct n ther!vew that the case was rpe for decson. Qualfed decsonal ndependence means that an ALJ makes case management and evdentary decsons such as th~e the Grevant made n the Ssneros case free from Agency second guessng ahd nterference even when Agency management dsagrees wth the AU's judgment on ~hese matters and even when the AU's judgment s questonable. or even wrong. Even f an AU's decson makng s so poor as to rse to the level of a performance ssue management must address that ssue when a case s completed. To address case management performaace ssues by. reassgnng a case from an ALJ durng the pendency of a matter s to volate the judge's judcal ndependence. As dscussed above the Agency does have the rght to reassgn cases but the agency cannot doso f the reassgnment has the e~ect of nterferng wth an ALJ's decsonal ndependence. Sykes v. Bowen supra; ~8acon Auto Transport nc. v. nterstate Commerce Commsson supra. The reassgnment of the Ssneros case was for no purpose other than to meet the 850 day deadlne. s The reassgnment countermanded the Grevant's determnaton that more tme and evdence was needed to develop the case. The reassgnment had the effect of nterferng wth the Grevant's judcal ndependence because t resulted n the ~ gong to hearng wthout evdence the Grevant felt was necessary. and sooner than the Grevant beleved was approprate. t does not matter whether the Grevant properly granted a contnuance or whether the evdence the Grevant wanted to develop was necessary or approprate. Decsonal ndependence requred that the Grevant's judgment on these matters whether rght or wrong. was to be respected by the ~gency even f to do so resulted n the case not beng decded wthn the Agency's deadlne. Therefore. the Agency reassgned the SsnerOs case n a manner that nterfered wth the Grevant s qualfted judcal ndependence. n so dong the Agency volated the collectve barganng agreement because decsonal ndependence s ncorporated nto Artcle 1 Secton 3A of the contract. 6. Were t not for the 850 day aged case ntatve the 'Agency would not have become nvolved n the Grevant's management ofthe Ssneros case t all. 15
SEP-09-20ll 03:66 SSA-ODAR P.Ol? Ths concluson s consstent wth the decson of Arbtrator Sass. Arbtrator Sass concluded. as does the Arbtrator n ths case. that the Agency nfrnges upon decsonal ndependence when t overrules decsons of an Al4 n matters such as hearng schedulng hearng postponements and what knd of evdence s needed (Sass award pp. 27 30). The Agency cannot reassgn a case snply because t dsagrees wth an AU's decsons about the manner n whch the case should be handled (Sass award pg. 26). Arbtrator Sass also concluded as does th~ Arbtrator n ths case. that ths nterference wth judcal ndependence volates the labor agreement (Sass award pp. 26-7.30). : The Agency argues that the Sass award sho~ld not be followed because t was based upon the fact.that management reassgned cl.ses wthout frst talkng to the orgnally assgned AlJ whle n the present case Judge Burgchardt revewed the fles. and dscussed the reassgnments wth the Grevant. Arbtrator Sass dd note the falure of management to dscuss the reassgnments n tha~ case. However Arbtrator Sass held that the falure of management to talk to an ALJ before reassgnng a case was not n tself a volaton of the labor agreement (Sass award. pg. 29). Rather. the basc ratonale of Arbtrator Sass's award was that the Agency volated the collectve barganng agreement when ts reassgnment of a case overruled case management decsons of an AlJ n a manner that nterfered wth the AU's decsonal ndependence. The fact that management revewed a fle and dscu~sed a reassgnment wth the judge n advance does not alter ths concluson. ' 2. The Maske case The Maske matter stands on a dfferent footnb than the Ssneros case. Both the Grevant and the Agency agreed that ths case was ~uly developed and ready for a hearng. At the tme of the reassgnment of the easej to Judge Burgehardt the Agency : dd not nterfere wth any decson of the Grevanfs ~at would have mpacted hs qualfed judcal ndependence. The Agency dd no~ng dfferent than the Grevant was dong n the management of ths case: the matter was proceedng to hearng on September 2. 2009 on the evdence that exsted at the tme of the reassgnment regardless of whch AlJ was assgned to the case.! The Grevant declned to guarantee that he WGuld decde the case by the September 25 deadlne because he dd not know what mght happen at the September [2 hearng. Ths uncertanty would be true of any judge'hearng the case. t could not be tsad at the end of August whether some facts would be rased at the September 2 hearng that would provde good cause to contnue the matter or that would otherwse present an approprate reason not to decde the case by September 25. Whchever ALJ was assgned to the case would have to respond to any ssues rased atthe hearng ~at could result n delay.!1 16
SEP-09-2011 03:55 SSA-ODAR P.OlS! Accordngly. as of the tme of the reassgnment the Agency dd not affect the management of the Maske case n any way that d~ered from the Grevant's handlng of that matter. The reassgnment dd not have the eff!ct of overrulng or nterferng wth any substantve or case management rulng that the Grevant had made up to that pont. The reassgnment of the Maske case therefore dd ~t consttute nterference wth the Grevant's judcal ndependence so as to volate Artcle 1 Secton 3A of the collectve barganng agreement. n hs award Arbtrator Sass also found that ~o contract volaton occurred n cases n whch the reassgnment dd not have the effect of overrulng any Sgnfcant decson ofthe AU (Sass award pp. 28. 32). At page 28 of that award Arbtrator Sass concluded that "[WJhle one could certanly questoq whether ths reassgnment was absolutely necessary. t dd not nterfere wth (the Al.J's] 'decsonal ndependence'. That statement s applcable to the Maske. case as well. Agan although Arbtrator Sass's award s not bndng the Arbtrator n the pre~ent case fnds hs concluson on ths pont to be persuasve. The Assocaton ponts to language n the Sass award that one case was reassgned because management merely feared. as n the Maske case that the ALJ mght postpone the h~rng and therefore not meet the September 25 deadrne. However. Arbtrator Sass dd not fnd a contract volaton n that case because management dd not ov~rrule any decson of the f~t-assgned ALJ that properly was left to that AlJ's dscreton. : D. THE ADMNSTRATVE LlAw JUDGE STATUTE 5 U.S.C. 3105 provdes as follows: Each agency shall appont as many admns~tve law judges as are necessary for proceedngs requred to be contjucted n accordance wth sectons 556 and 557 of ths ttle. Admnstrat e law judges shall-be assgned to cases n rotaton so far as practcable. and may not perform. dutes nconsstent wth ther dutes and responsbltes as admnstratve law judges. The Assocaton does not argue n ts bref that ths statutory provson supports the. grevance. However the Agency argues the effect of ths statute n ts bref and the Assocaton references ths provson n the greva~. Accordngly the Arbtrator wll address the mpact of Secton 3105 on the grevance. :. The Agency frst argues that 5 U.S.C. 3105 apples only to the ntal assgnment of a case not to reassgnments. The Agency ctes no authorty for ths proposton. At page 19 of hs award Arbtrator sass states that he "~nderstands" that Secton 3105 17
SEP-09-2011 03:66 SSA-ODAR P.019. apples prmarly to ntal assgnments. Arbtrator Sass does not explan the bass for hs understandng and the Arbtrator n the present jc8se does not agree that the statute s so lmted. The plan language of the statute makes no dstncton between ntal assgnments and reassgnments. Rather the exp~ss language of ths secton provdes that any assgnment of a case s to be made to the next ALJ n the rotaton so far as practcable. Accordngly. 5 U.S.C. 3105 apples to! the reassgnments nvolved n ths grevance. 18
SEP-09-2011 03:55 SSA-ODAR P.020 E. THE AGENCY'S REGULATON The Agency's regulatons provde for hearngs before ALJs. The regulaton n 20 C.F.R. 404.929 states; "The Assocate Commssoner for Hearngs and Appeals or hs or her delegate shall appont an admnstratve law judge to conduct the hearng. f crcumstances warrant the Assocate Commssoner or hs or her delegate may assgn your case to another admnstratve law judge". Ths regulaton provdes the Agency wth the!dscreton to reassgn a case "f crcumstances warrant:'. Because the reassgnment n the Ssneros case nterfered wth the Grevant's decsonal ndependence. t cannot be sad that crcumstances warranted a change of judge.' The effcency to be ganed by closng out the case by an admnstratvely mposed deadlne cannot take pr~ence over the ndependence of toe AU. See Sykes v. Bowen supra; Aaacon Auto Transport nc. v. nterstate Coml'TJ8:l'Ce Commsson. supra. Therefore. the re~sgnment of the Ssneros case was made n contraventon of 20 C.F.R. 404.929. ~o smlar consderatons are at play n the Maske matter. The Grevant's decsonal ndependence was not mpacted by ths r~ssgnment. Hs uncertanty that he could complete that case by the deadlne was therefore a crcumstance the Agency could consder n reassjgnng the case n complance wth 20 C.F.R 404.929.! F. OTHER CONTRACTUAL PROVSONS. The stpulated ssue rases the queston of ~ether the Agency's reassgnment of these two cases volated Artcle 5 Sectons 1 and 2C of the collectve barganng agreement. Artcle 5. Secton 1 provd~ that the w9rk of ALJs nvolves dscreton and judgment. Ths secton does not specfy those areas n whch that dscreton or judgment can or cannot be overruled by management. However the provsons of a labor agreement should be read as a whole; the me~nng of each sedon s to be determned n relaton to the entre agreement. Wells Badger ndustres nc. 63 LA 517520 (Hales 1984): Elkour and Elkour. How Aftraton Worlcs. pp. 462-63 (6 th Ed. 2003). Therefore Artcle 5 Secton 1 of the collectve barganng agreement should be read n ts context n the labor agreement. Racne Unfed School Dstrct 102 LA 327. 331 (Baron. 1993); Elkour and Elkour supra at 469~ :l Artcle 1. Secton 3A ncorporates the concept of qualfed judcal nclependence nto the labor agreement. Readng Artcle 5 Secton' 1 together wth Artcle 1. Sedon.. la the dscreton and judgment descrbed n Artcle 5 s the same qualfed decsonal ndependence that s ncorporated nto Artcle 1. Therefore. just as the reassgnment of 7. At page 26 of hs award Arbtrator Sass reached a smlar concluson regardng 20 C.F.R. 404.929. 19
SEP-09-2011 03:56 SSA-ODAR P.021 the Ssneros c;;ase volated Artcle 1. Secton 3A that reassgnment also' volated the partes' recognton n Artcle 5 Secton 1 that ALJs 'possess qualfed judcal ndependence. And just as the reassgnment of the. Maske case dd not volate Artcle 1 that reassgnment smlarly dd not volate Artcle ~ Secton 1. Artcle 5 Secton 2 merely ponts out that AlJs cannot be assgned dutes nconsstent wth the dutes specfed by statute and!regulaton. That provson of the contract s not relevant to ths grevance; the Agency dd not requre the Grevant to perform any duty or assgnment nconsstent wth the dutes and responsbltes of an AU. Accordngly the Agency's reassgnment of the Ssneros and Maske cases dd not volate Artcle 5 Secton 2C of the labor agreement. v. AWARD AN!> REMEDY The grevance' requests the followng relef: 1. That the Arbtrator fnd that the reassgnments of the Ssneros and Maske cases were llegal a~ volated Artcle 1 Secton 3 and Artcle 5 Sedon 2C of the collectve barganng agreement 2. That the Arbtrator fnd that the reass~nment of the Ssneros and Maske cases volated the APA's guarantee of decsonal ndependence and the Agency's rules regulatons and polcy. 3. That the Arbtrator drect the Agency that cases shall not be reassgned to another AU wthout the frst AW's express approval; and reasonable and suffcent justfcaton.. n ts bref the ASSOCaton seems to have ab8ndoned ts request for a drectve to the Agency that cases cannot be reassgned wthout AlJ approval. The:bref requests the followng relef: : 1. A determnaton that the reassgnment 1of the Ssneros and Maske cases volated Artcle 1 Secton 3 and Artcle 5 Secton 2C of the collectve barganng agreement. 2. A determnaton that the Agency nterfered wth the decsonal ndependence of the Grevant n volaton of the APA and Agency rules regulatons and. polces. 8
SEP-09-2011 03:56 SSA-ODAR P.022 Even f the Assocaton contnued n ts request that the Arbtrator order the Agency to obtan the agreement of an AU before reassgnng a case the Arbtrator would not do so. There s no provson n the collectve barganng agreement the APA 1 or any regulaton that would support such an order br gve the Arbtrator the authorty to enter that order. To the contrary. suoh an order m~ht contravene management's contractual rght to assgn cases under Artcle 3. ~on A2. The grevance s sustaned n part and dened n part.! 1. The reassgnment of the Ssneros case volated Artcle 1 Secton 3A and Artcle 5 Secton 1 of the collectve barganng agreement. Ths reassgnment nterfered wth the Grevant's qualfed deosonal n~ependence and contravened 5 U.S.C. 3105 and 20 C.F.R. 404.929 all ofwhoh are ncorporated nto those sectons of the collectve barganng agreement. 2. n the December 13 2008 memorand~m regardng the 850 day aged case ntatve the Agency's chef ALJ specfed that cases could not be reassgned under ths ntatve f dong so nterfered wth a judge's qual~ decsonal ndependence. The reassgnment of the Ssneros case volated ths Ag~ncy polcy. 3. The reassgnment of the Ssneros cas~ dd not volate Artcle 5. Secton 2C of the labor agreement. : 4. The "reassgnment of the Maske case dd not nterfere wth the Grevant's qualfed decsonal ndependence dd not votate any law. statute or regulaton. and dd not volate any provson ofthe labor agreement or ~gency polcy. DATED: August 1.2011 j~d ;.f9 arshall A. Snder Arbtrator 21 TOTAL P.022