With legions of administrative law judges close to retirement and an uptick in caseloads across government agencies, the Government Accountability Office is recommending a review of how judges are hired and the way their performances are evaluated.
Administrative law judges, or ALJs, are the worker bees of the judicial system. There are about 1,400 of them, compared to 678 district court judges. More than three-quarters of ALJs work at the Social Security Administration, with Health and Human Services in distant second, while the rest are spread out among 23 other agencies.
In a report released today, the GAO found that ALJs are on average 61 years old, and by the end of 2013, a whopping 79% of them will be eligible for retirement.
The report warned of “skill and competency gaps” unless the agencies that employ the judges develop hiring and succession plans.
The system for hiring an ALJ is complex and has been the subject of litigation in recent years. The Office of Personnel Management periodically administers an examination for lawyers who are interested in becoming ALJs. OPM then scores the tests and maintains a register of qualified candidates ranked by their scores, a process which takes about six months.
When an agency wants to hire a judge, OPM gives it a list of the highest-scoring candidates and the agency has to hire one of the top three.
Both Social Security and Health and Human Services officials complained that the “hiring process should have more flexibility in order for them to appoint candidates that best meet their agency-specific needs,” according to the GAO report. For example, three years of Medicare-related experience would be helpful for an incoming judge at HHS, one official said.
OPM, however, has “concluded that having certain specialization or expertise would not produce a better cadre of ALJs,” according to the report.
The report also looked at how the performance of ALJs is evaluated. In order to make sure the judges aren’t overly influenced by their employing agency and maintain impartiality, the agencies are not allowed to rate judges or tie compensation to their performance.
Still, at the Social Security Administration, for example, the chief ALJ told the other judges that they should be issuing 500 – 700 decisions each year. Using productivity as a tool to manage performance has triggered concerns from the ALJ union and the Social Security Advisory Board about unintended consequences – namely, when the number of decisions issued increases, there is a corresponding increase in the number of favorable decisions.
“Rendering a decision favorable to a party appealing an agency determination requires less ALJ time than rendering an unfavorable decision,” the GAO reported. “SSA’s emphasis on ALJ productivity may lead to more favorable decisions and result in increasing long-term costs to the federal government.”
The report urged OPM to review the state of ALJ performance management across all agencies. OPM is the only agency with the authority to investigate the program and spell out which practices are prohibited and which are allowed.
GAO also recommended better defining what skills and behaviors are needed by ALJs to do their jobs well. Also, OPM should consult with the agencies that hire ALJs before the next examination and determine whether more flexibility is needed in the hiring process. OPM should also help agencies identify and plan for ALJ retirements.