<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:30900.wais]
FAIR AND BALANCED? THE STATUS OF PAY AND BENEFITS FOR NON-ARTICLE III
JUDGES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE FEDERAL WORKFORCE
AND AGENCY ORGANIZATION
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MAY 16, 2006
__________
Serial No. 109-201
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
______
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of
PATRICK T. McHENRY, North Carolina Columbia
CHARLES W. DENT, Pennsylvania ------
VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont
JEAN SCHMIDT, Ohio (Independent)
------ ------
David Marin, Staff Director
Lawrence Halloran, Deputy Staff Director
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on the Federal Workforce and Agency Organization
JON C. PORTER, Nevada, Chairman
JOHN L. MICA, Florida DANNY K. DAVIS, Illinois
TOM DAVIS, Virginia MAJOR R. OWENS, New York
DARRELL E. ISSA, California ELEANOR HOLMES NORTON, District of
KENNY MARCHANT, Texas Columbia
PATRICK T. McHENRY, North Carolina ELIJAH E. CUMMINGS, Maryland
JEAN SCHMIDT, Ohio CHRIS VAN HOLLEN, Maryland
Ex Officio
HENRY A. WAXMAN, California
Ron Martinson, Staff Director
Shannon Meade, Professional Staff Member
Alex Cooper, Clerk
Mark Stephenson, Minority Professional Staff Member
C O N T E N T S
----------
Page
Hearing held on May 16, 2006..................................... 1
Statement of:
Cowan, William, Deputy Chief Administrative Law Judge,
Federal Energy Regulatory Commission, and vice president,
Federal Administrative Law Judges Conference; Ronald G.
Bernoski, Administrative Law Judge, Social Security
Administration, and president, Association of
Administrative Law Judges; R. Anthony McCann, president of
the Board of Contract Appeals Judges Association; and
Denise N. Slavin, president, National Association of
Immigration Judges......................................... 20
Bernoski, Ronald G....................................... 30
Cowan, William........................................... 20
McCann, R. Anthony....................................... 38
Slavin, Denise N......................................... 50
Kichak, Nancy, Associate Director, Division for Strategic
Human Resources Policy, Office of Personnel Management..... 5
Letters, statements, etc., submitted for the record by:
Bernoski, Ronald G., Administrative Law Judge, Social
Security Administration, and president, Association of
Administrative Law Judges, prepared statement of........... 32
Cowan, William, Deputy Chief Administrative Law Judge,
Federal Energy Regulatory Commission, and vice president,
Federal Administrative Law Judges Conference, prepared
statement of............................................... 23
Kichak, Nancy, Associate Director, Division for Strategic
Human Resources Policy, Office of Personnel Management,
prepared statement of...................................... 7
McCann, R. Anthony, president of the Board of Contract
Appeals Judges Association, prepared statement of.......... 40
Porter, Hon. Jon C., a Representative in Congress from the
State of Nevada, prepared statement of..................... 3
Slavin, Denise N., president, National Association of
Immigration Judges, prepared statement of.................. 52
FAIR AND BALANCED? THE STATUS OF PAY AND BENEFITS FOR NON-ARTICLE III
JUDGES
----------
TUESDAY, MAY 16, 2006
House of Representatives,
Subcommittee on Federal Workforce and Agency
Organization,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m., in
room 2247, Rayburn House Office Building, Hon. Jon C. Porter
(chairman of the subcommittee) presiding.
Present: Representatives Porter, Davis, Issa and Cummings.
Staff present: Ron Martinson, staff director; Chad Bungard,
deputy staff director; Shannon Meade, professional staff
member; Patrick Jennings, senior counsel; Alex Cooper,
legislative assistant; Mark Stephenson, minority professional
staff member; and Teresa Coufal, minority assistant clerk.
Mr. Porter. Good afternoon, everyone. I would like to bring
the meeting to order. Can you hear me OK?
I would like to bring the meeting to order, and I would
like to thank you all for joining us today.
The role that judges play in holding our society together
is extremely important and often underestimated. Today's
hearing is: Fair and Balanced? The Status of Pay and Benefits
for Non-Article III Judges. We rely on judges serving in courts
of law or administrative tribunals to peacefully resolve our
disputes in an independent manner and according to the rule of
law.
When most people think of a Federal judge, the first thing
that probably comes to their mind is the type of judge in a
court of law under Article III of the Constitution. However,
what many people fail to realize is that there is another group
of Federal judges serving critical functions in the courts
created outside of Article III and outside of the judicial
branch. Today, we will be examining the recruitment and
retention of judges in the executive branch. These judges
decide the cases which affect the functioning of the government
and the everyday lives of people across the country, handling
such cases involving interpretation of complex regulatory
issues, Social Security disability appeals, and deportation and
immigration cases. Nothing could be more important to the
litigants before these tribunals than the right to due process
and a fair hearing. The role of a judge in the executive branch
is not easy. That is why it is important to not only recruit
the best and the brightest lawyers to execute these judicial
duties, but to retain them.
I look forward to delving into the issues pertaining to the
recruitment and retention of these judges, including pay
compression, the utility of adjusting judicial pay based on
performance, the Office of Personnel Management's management of
the Administrative Law Judge [ALJ] Program and retirement
benefits provided to the ALJs.
There are over 1,400 ALJs across the government responsible
for hearing disputes over their agencies' decisions. Most of
them work at the Social Security Administration, where they
make judgments on citizen appeals. There are also a number of
Administrative Judges [AJs], serving as immigration judges and
Board of Contract Appeals judges. We will hear from their
representative associations today.
I would like to thank our witnesses for being here, and I
look forward to the discussion.
Now we are going to move right into procedural matters. It
is customary to have all witnesses take the oath before their
testimony. So please stand.
Honorable Bill Cowan, please, are you here?
Judge Cowan. Here.
Mr. Porter. Honorable Bernoski.
Judge Bernoski. Mr. Chairman, yes, sir.
Mr. Porter. Anthony McCann.
Judge McCann. Here.
Mr. Porter. And Denise Slavin.
Judge Slavin. Here.
Mr. Porter. And, of course, Nancy is with us today.
Thank you very much. If you would please all raise your
right hands.
[witnesses sworn.]
Mr. Porter. Let the record reflect the witnesses have
answered in the affirmative. Please be seated.
I ask that each of you remember your testimony will be
approximately 5 minutes, and any further statements you wish to
make will be included in the record. We will have Members that
will be coming today, actually, coming and going. There is a
funeral that is happening in Mississippi, so we are not going
to have our normal Members here. But, just so you know, Members
may come and go. So understand that is how the process works.
Also note that Mr. Issa is here, and we now have a quorum.
[The prepared statement of Hon. Jon C. Porter follows:]
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Mr. Porter. We will begin, Nancy Kichak, with your
presentation. You are the Associate Director for the Division
for Strategic Human Resources Policy for the Office of
Personnel Management. Thank you for being here.
STATEMENT OF NANCY KICHAK, ASSOCIATE DIRECTOR, DIVISION FOR
STRATEGIC HUMAN RESOURCES POLICY, OFFICE OF PERSONNEL
MANAGEMENT
Ms. Kichak. You're welcome.
Mr. Chairman, members of the subcommittee, thank you for
this opportunity to discuss human resources management of
Federal administrative law judges and to respond to calls for
changes in their pay and retirement benefits. For the past 60
years, ALJs have provided a vital service in the administration
of Federal programs. We are committed to ensuring the agencies
can continue to recruit and retain a high caliber of personnel
while respecting ALJ independence.
The Administrative Procedure Act created the position of
ALJ, originally called hearing examiner, to ensure due process
in Federal agency rulemaking and provide aggrieved parties an
opportunity for a formal hearing on the record before an
impartial hearing officer. It also provides for a merit system
of selection administered by the Office of Personnel Management
and the statutory protection of the ALJ's decisional
independence from undue agency influence.
In order to assure the requirements for a merit selection
system is met, OPM administers the ALJ examination and
maintains a register of qualified candidates. Currently, the
exam is closed while OPM is working to update the exam to
include abilities identified by ALJs as necessary to perform
their work.
Recently, we have filled 140 positions with qualified
candidates from the existing register, demonstrating there is
no recruitment problem for this profession. When the new exam
is completed, applicants will use state-of-the-art technology
to apply online.
Until recently, members of the SES and ALJs have had access
to the same pay cap. However, Congress enacted legislation in
late 2003 that gave SES access to higher pay, provided they are
covered by performance appraisal systems that are certified by
OPM and OMB. Understandably, ALJs would like access to the
increased level of pay. However, they fail to credit the
additional requirements placed on members of the SES.
At this time pay levels of ALJs are not creating a
retention problem. A total of only 12 ALJs have resigned over
the last 4 years.
There is no similarity in responsibilities or
qualifications of ALJs and SES indicating their pay should be
directly linked. A more appropriate comparison is to employees
in like positions with similar duties and responsibilities.
For example, judges of the Supreme Court, U.S. Court of
Appeals and U.S. District Court indeed have higher pay than for
ALJs. However, bankruptcy judges and magistrates earn less than
the cap salary of ALJs.
This administration believes that higher pay levels must be
justified by the scope of duties and coverage by a performance
management system that is designed to maintain the independence
of the administrative judiciary.
Groups representing ALJs have suggested that OPM establish
a special office to deal with ALJ issues. Director Springer is
personally committed to seeing that ALJ issues are
appropriately addressed. OPM's General Counsel has been serving
as the initial contact for ALJ issues, with support from
additional OPM staff. If at any time the Director determines
this arrangement is not effective, she will make other
arrangements.
The Administrative Law Judges Retirement Act of 2005,
introduced by Representative Wynn, liberalizes eligibility
requirements for retirement while increasing the annuity
computations. Other special retirement programs with enhanced
benefits such as for law enforcement officers and firefighters
are based upon the human capital management issues resulting
from the physical demands of the specific position.
ALJs retire on average at age 70 with 32 years of service,
demonstrating an ability to work a full career. Thus, we
believe that the existing retirement provisions applicable to
ALJs are appropriate.
We are committed to ensuring the Federal Government can
continue to recruit and retain the high caliber of personnel it
has come to expect in ALJ positions. We are improving the
recruitment process. But we believe current pay and retirement
provisions are enabling the Federal Government to recruit and
retain a high quality ALJ work force.
This concludes my statement. I would be glad to take any
questions.
Mr. Porter. Thank you very much. We appreciate the
testimony.
[The prepared statement of Ms. Kichak follows:]
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Mr. Porter. Chairman Davis.
Mr. Davis. Thank you, Mr. Chairman.
Thank you for your testimony.
Unfortunately, I have to get over to the floor where I have
to manage a couple of bills on behalf of the committee, but I
want to take the opportunity to wish Chairman Porter a happy
birthday.
Mr. Porter. Twenty-one.
Mr. Davis. Times a factor.
But I am not going to say how old he is, but I will say
that I think the Las Vegas climate is preserving him well, and
I appreciate his leadership on this subcommittee and his
friendship.
I want to thank OPM and the representatives and the judges
for appearing here today. How we recruit, we retain and pay
non-Article III judges and ALJs is an important issue that
deserves careful, careful consideration.
These judges decide disputes that cross a range of subjects
from Social Security disability cases to cases involving
complex questions about regulatory tax and immigration law. All
of these are, generally speaking, administrative cases which
are not as visible as the headline court cases. Decisions of
the judges involved are of critical importance to the
litigants, the individuals seeking disability benefits or the
person who is in a tax dispute with the IRS; and because of the
critical importance of these cases it is important that the
government provides a competitive salary and a competitive
benefits package to recruit and to retain the judges that
decide them.
The structure of pay and benefits for non-Article III
judges and, more specifically, ALJs is very different from what
it once was. But, as the 20th century philosopher Yogi Berra
once said, ``the future ain't what it used to be.'' Today's
ALJs are increasingly facing pay compression. This means that
many ALJs are being paid in a narrow range at or near the pay
cap for their occupation.
This seems to be a persistent issue. I am looking forward
to learning more about the issue and trying to resolve it. Once
again, I want to thank you for coming today to help us
understand the issues facing the non-Article III judges; and I
appreciate it very much.
I know the committee staff has a lot of questions, Mr.
Chairman. I will move through you, but I want to just be here,
show my support for what you're doing and hope we can move to
some kind of a resolution.
Mr. Porter. Thank you, Mr. Chairman. I appreciate your
being here and your questions and your comments.
I do have a couple of questions regarding OPM. Does OPM
agree that a very large number of judges are at or near the
total pay cap?
Ms. Kichak. Yes, we do.
Mr. Porter. And if that is the case, does OPM consider that
to be a problem?
Ms. Kichak. OPM does not consider that to be a problem. Pay
caps--whenever there is a pay cap, folks cluster at that pay
cap. That's true when you set the pay caps for SES. When you
have a pay cap for ALJs, they cluster there. In our general
schedule, folks cluster at the step 10. In other words,
particularly with ALJs that work long careers, eventually they
work through the ALJ pay range and they get to the top; and
whatever that cap is, that is where they are.
Mr. Porter. Does the compression cause a recruitment or
retention problem?
Ms. Kichak. It does not. We have been able to fill every
position that has been presented to us from the existing
register.
We are getting ready to introduce a new exam fairly soon.
We have had a lot of interest exhibited through calls and
comments in that exam.
We think that the newest register will offer the wealth of
candidates that the existing register does.
Mr. Porter. In your opening comment, you mentioned there is
approximately 1,400 or so ALJs, right----
Ms. Kichak. Right.
Mr. Porter [continuing]. In 26 departments and agencies.
But there has only been 12 that have retired in 4 years, is
that correct?
Ms. Kichak. Twelve who have resigned. There have been more
retirements.
Mr. Porter. And it may have been in your testimony or in
your backup, but do you recall why the 12 have resigned?
Ms. Kichak. No, our records don't show that.
Mr. Porter. The specific reason?
Ms. Kichak. The 12 resignations out of 1,400 folks is not a
huge number.
Mr. Porter. What would you say the average is for
resignations in the Federal employee?
Ms. Kichak. I think we have what we call a turnover rate of
around 6 percent in the Federal Government. So 6 percent of
1,400 would be more than----
Mr. Porter. Six percent a year.
Ms. Kichak. That's right; and the number I quoted you was
12 over 4 years, or 4 per year--3 per year.
Mr. Porter. As far as your testimony, you stated that
higher pay levels for ALJs must be accompanied by the
development of robust performance management systems; and you
cite the Office of Inspector General as an example of OPM
having substantial experience with performance appraisals and
organizations that have responsibility for independent review
of agency actions. Let's face it. Judicial functions are much
different from that of the IG, is that correct?
Ms. Kichak. Right.
Mr. Porter. What experience does OPM have with performance
appraisals for executive branch judges or hearing examiners?
Ms. Kichak. We do not have experience with that. This is a
new area for us. But we think our experience with Inspector
Generals is important. Yes, their actual jobs are different,
but Inspector Generals pride themselves on their independence
also. And yet, in their structure, which is like the ALJ
structure where you have offices with senior Inspector Generals
and then you have staff, they have been able to develop
performance appraisal systems where they are--their performance
is evaluated by independent folks, not by the agency head.
We think that opportunity exists in the ALJ community,
because most ALJs are in offices where the ALJ is not the
sole--is not by themselves. They are in a management structure
in which there can be performance oversight by other ALJs and
maintain the independence.
Mr. Porter. The OPM's position is that ALJs should receive
no pay compression relief unless such a pay increase was
accompanied by a robust performance management system. Is that
correct?
Ms. Kichak. We think the robust performance management
system is critical, yes.
Mr. Porter. And what are OPM's special plans to revitalize
the ALJ register?
Ms. Kichak. We have proposed regulations and we have
proposed new qualification standards. Those proposals were open
for 60 days of public comment. We are in the process of
reviewing those comments now, and we are in the process of
modernizing the exam and taking account of things we have
learned from the ALJ community that--about things that are
important to examine candidates on.
So as soon as we are done reviewing and commenting--
reviewing those comments, we will announce the final--the
regulations and procedures, we will open a new exam and develop
a new register.
Mr. Porter. I think that is it for today. There will be
additional written questions for followup, and we appreciate
your testimony.
Ms. Kichak. Thank you. We will be glad to answer them.
Thank you so much.
Mr. Porter. Also note that all Members will have 5
legislative days to submit written statements and questions for
the hearing record. Answers to written questions provided by
the witnesses also will be included in the record.
I also acknowledge all other materials referred to by
Members and the witnesses may be included in the hearing
record. All Members will be permitted to revise and extend
their remarks.
I would like now to welcome our second panel. We will hear
from the Honorable William Cowan, the Honorable Ronald
Bernoski, the Honorable Anthony McCann and the Honorable Denise
Slavin.
Let's begin with Judge Cowan, who is the Deputy Chief
Administrative Law Judge with the Federal Energy Regulatory
Commission and is vice president for the Federal Administrative
Law Judges Conference. Welcome, Judge.
STATEMENTS OF WILLIAM COWAN, DEPUTY CHIEF ADMINISTRATIVE LAW
JUDGE, FEDERAL ENERGY REGULATORY COMMISSION, AND VICE
PRESIDENT, FEDERAL ADMINISTRATIVE LAW JUDGES CONFERENCE; RONALD
G. BERNOSKI, ADMINISTRATIVE LAW JUDGE, SOCIAL SECURITY
ADMINISTRATION, AND PRESIDENT, ASSOCIATION OF ADMINISTRATIVE
LAW JUDGES; R. ANTHONY McCANN, PRESIDENT OF THE BOARD OF
CONTRACT APPEALS JUDGES ASSOCIATION; AND DENISE N. SLAVIN,
PRESIDENT, NATIONAL ASSOCIATION OF IMMIGRATION JUDGES
STATEMENT OF WILLIAM COWAN
Judge Cowan. Thank you very much, Mr. Chairman and
honorable members of the committee, members of the staff. On
behalf of the Federal Administrative Law Judge community, I
thank you for this opportunity to discuss a very significant
issue for us and that is compression of the pay schedule for
the corps of administrative law judges.
I have been a U.S. Administrative Law Judge for a little
over 9 years, and I live in northern Virginia.
Sixty years ago, the Congress enacted the Administrative
Procedure Act, which provided for the independent adjudication
of agency administrative hearings by presiding officers who
later became known as Administrative Law Judges. To serve in
this function well, the ALJs must be chosen from the best legal
minds the Federal Government and the private bar have to offer.
The Federal Government and the American people have a great
stake in the process.
Unfortunately, over the past few years, ALJ compensation
has not kept pace with traditional milestones, resulting in
compression of the pay schedule that actually threatens to
weaken the administrative adjudicatory process.
Pay compression, as has been discussed previously today,
results from a statutory limitation of the pay grade. Last
year, as a result of this compression, most ALJs received only
a 1.9 percent increase, while most of the Federal work force
received a 3.44 percent increase, including locality pay.
Most ALJs at level AL-3F, AL-2 and AL-1 now receive exactly
the same rate of pay, so there is no recognition through
compensation for greater experience, length of service,
management responsibilities. Nor is there any financial
incentive for a judge to take on the administrative
responsibilities of a Chief Judge or Deputy Chief Judge.
While this is unfair to sitting ALJs, we are also very
concerned that continuing pay compression will dilute the
quality of ALJ applicants and make the position unattractive to
senior agency counsel or SES attorneys that historically formed
the natural candidate base for ALJ positions. They are no
longer interested. A GS-15 step 10 senior attorney, for
example, already makes 25 percent more than a starting ALJ.
There was a lot of talk earlier today about everybody being
at a relatively healthy level of pay. The missing ingredient
there was the $95,000 starting salary for ALJs. It is simply
not competitive in this day and age.
Agencies deserve to have the best and the brightest ALJs to
adjudicate the important cases that they get from their
agencies. Pay dilution will beget quality dilution. You get
what you pay for. If this problem continues, the ALJ program
will end up bottom feeding from a pool of marginal perspective
candidates instead of attracting the best and brightest
individuals.
I know the chairman of my agency wrote to the President a
number of years ago complaining about the quality of the
applicant pool. The situation has gotten even worse since then.
Now OPM recognizes the problem but has linked consideration
of a remedy to establishment of a pay-for-performance regime.
However, the APA itself and OPM's own regulations prohibit
grading of the performance of ALJs and with good reason. ALJ's
need judicial independence to protect the integrity and the
legitimacy of the agency hearing process and the rights of
claimants and litigants in agency cases.
OPM seems not to understand the very fundamental principle
that an agency rating and rewards system for ALJs would be
inconsistent with a preservation of an independent
administrative judiciary and, more important, even the
perception of objectivity and fairness that is so important to
claimants and litigants. OPM has not suggested to us to date
how its policy preferences can be reconciled with the need to
maintain judicial independence, which is the hallmark of a fair
and balanced process.
We have communicated our thoughts to OPM as to some
concepts and existing programs that might help bridge this gap.
At bottom, however, we don't believe that relief from the very
important pay compression issue needs to be delayed until a way
can be found to satisfy OPM's performance policy objectives.
Pay compression is a problem that needs attention now.
Thank you for this opportunity. That concludes my prepared
remarks.
Mr. Porter. Thank you, Judge.
[The prepared statement of Judge Cowan follows:]
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Mr. Porter. Next, we have Judge Bernoski, Administrative
Law Judge, from the Social Security Administration, and
president of the Association of Administrative Law Judges.
Welcome.
STATEMENT OF RONALD G. BERNOSKI
Judge Bernoski. Thank you. Thank you, Mr. Chairman, and
thank you for inviting us to testify here today.
I have been an Administrative Law Judge with the Social
Security Administration for over 25 years. But, as you
indicate, I appear here as a witness as president of the
Association of Administrative Law Judges. We represent about
1,100 Administrative Law Judges in the Social Security
Administration and in the Department of Health and Human
Services.
As indicated previously, there are about 1,400
Administrative Law Judges in the Federal Government. However, I
make the statement today on behalf of all Federal
Administrative Law Judges. We appear in support of the
Administrative Law Judges Retirement Act of 2005, which is
pending before this committee as H.R. 1864. This legislation
addresses the present inequity for Administrative Law Judges
and provides a retirement benefit similar to other judicial
officers in both the State and Federal Governments. This
legislation is not complex, and it is patterned after existing
Federal pension law.
All Administrative Law Judges will receive the same pension
enhancement as currently received by Federal law enforcement
officers, congressional staff, and some Article I judicial
groups. The pension annuity for Civil Service Retirement System
pension beneficiaries will be enhanced from the current 2
percent to 2.5 percent, and the Federal Employees Retirement
System [FERS] beneficiaries annuitants will be enhanced from
the current 1 percent to 1.7 percent. In exchange,
Administrative Law Judges will pay an additional 1 percent
individual contribution for this pension benefit.
The enhanced pension only applies to the years that the
individual serves as an Administrative Law Judge in the Federal
Government.
This is low-cost legislation; and, on a similar bill, in
2003, the Congressional Budget Office estimated a 10-year
direct cost of $14 million, or an average of $1.4 million per
year.
The legislation will also provide a short-term reduction in
the budgets of some agencies. This savings will occur because
older judges who are paid at a higher rate will retire and be
replaced by judges who are entering the system at the lower pay
scales, thereby resulting in a cost savings for the agencies.
This legislation is needed because Administrative Law
Judges enter the government later in their professional career.
This is particularly common for Administrative Law Judges who
enter the Federal Government from the private practice of law.
It is not uncommon for an attorney to become an Administrative
Law Judge at age 50 or older. Because of the qualifying
requirement of trial practice or legal experience which enables
an Administrative Law Judge to start hearing cases completely,
there is no extensive training period. For example, in the last
class at Social Security, the average age of the judges was 56
years. This means that these judges must work until age 80
years or older to earn a Federal pension based on the
governmentwide average of 30 years of service.
Now, many States have recognized that judicial officers
should have enhanced pensions. For example, in the State of
Nevada, the State provides a pension at age 60 at 75 percent of
the last year's judicial salary; and the State of Illinois
provides a pension for 85 percent of salary after 20 years at
age 60.
Administrative Law Judges should receive a fair pension for
the same reason that other judicial employees receive a fair
pension, and that is to attract highly qualified attorneys to
the position of Federal Administrative Law Judge.
In closing, Mr. Chairman, the Federal Administrative Law
Judges Retirement Act of 2005 provides this remedy. It will
permit Administrative Law Judges to retire before they reach
mid-80's and create a younger, more efficient corps of
Administrative Law Judges.
As indicated previously, this bill is low cost and will
result in short-term savings for some agencies. Therefore, Mr.
Chairman, we ask for your support for this legislation.
Thank you.
Mr. Porter. Thank you, Judge.
I appreciate two of your comments, one, that you brought up
Nevada, which is always a good thing, and the 50 and older, so
I fit into that group.
I do appreciate your testimony.
Judge Bernoski. On behalf of all Administrative Law Judges,
we wish you happy birthday.
Mr. Porter. Thank you, and we should be celebrating in Las
Vegas right now.
Judge Bernoski. That is exactly correct.
[The prepared statement of Judge Bernoski follows:]
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Mr. Porter. Judge McCann is president of the Board of
Contract Appeals Judges Association. Judge.
STATEMENT OF R. ANTHONY McCANN
Judge McCann. Thank you. Thank you, Mr. Chairman. Good
afternoon and thank you very much for this opportunity to
appear before you.
Mr. Porter. Excuse me, Judge. We won't hold Bill against
you, because I see he is here today.
Bill Bransford--we won't hold Bill against you.
Judge McCann. We appreciate that very much. We try to keep
him under control.
I am president of the Board of Contract Appeals Judges
Association; and one of the purposes of the Board of Contract
Appeals Judges Association is to provide appropriate means of
communication between BCA judges and Congress, the judiciary,
bar associations, etc.
I am familiar with the concerns of my Federal judges, and I
know that I speak for most of them.
The Boards of Contract Appeals are independent quasi-
judicial tribunals authorized by Congress and established by
agencies to issue binding decisions resolving contract
disputes. Congress provided that the Boards of Contract Appeals
judges would not be subject to direction or control by
procuring agencies. Our decisions are final agency decisions
not reviewable by the agency and appealable only to the Court
of Appeals for the Federal Circuit, much as the decisions of
the Court of Federal Claims are.
In this respect, we are quite different from Administrative
Law Judges. Our primary responsibility is to issue fair and
independent decisions. It is from this perspective that I
approach the issue of the pay-for-performance issue.
Pay for performance provides compensation based on
individual performance or contribution to agency performance.
Pay for performance would necessarily affect the process of
arriving at, the quality of, the timeliness of, or the outcome
of decisions. It would, in fact, diminish or possibly eliminate
a judge's independence and his impartiality. Certainly it would
create doubt in the government contract community as to judges'
impartiality and independence. Contractors may well hesitate
before they bring appeals to the Boards of Contract Appeals.
This could have a significant impact on Boards of Contract
Appeals and could even impact on a court of claims.
Pay for performance is simply inconsistent with the judge's
primary responsibility to issue fair and independent decisions,
and my attachment goes into this issue in more detail.
With regard to pay, the Contract Disputes Act of 1978
established BCA judges pay at grade levels of GS-16, 17 and 18,
the so-called super grade levels, the precursors to the Senior
Executive Service. The Federal Employees Comparability Act of
1990, again, Congress set Boards of Contract Appeal judges pay
at levels comparable to that of the SES.
BCA judges perform work at levels comparable to the Court
of Federal Claims. Contractors can appeal their cases either to
the Boards of Contract Appeals or to the Court of Federal
Claims, and the relief granted by each of these tribunals is
exactly the same. The Court of Federal Claims judges are paid
at Executive Level 2, the pay cap for the SES. We believe that
BCA judges should be restored to the pay levels comparable to
the SES and Court of Federal Claims judges.
BCAs need to be fully competitive when filling vacancies.
If the SES is paid more, candidates are more likely to opt for
the SES. The SES already has a competitive advantage. They can
receive bonuses, where BCA judges may not receive bonuses for
the very reason that they must remain independent.
To keep the rates relatively comparable to the SES, BCA pay
rates we feel should be set at a percentage of Executive Level
3, instead of Executive Level 4; and the locality pay cap
should be set at executive pay level 2 instead of level 3. BCAs
have separate significant pay compression over the past 15
years in relation to the general schedule. After the Pay
Comparability Act of 1990, GS-15 step 10 received 74 percent of
the pay of the BCA judge. Today, they receive 92 percent of the
pay of the BCA judge. Soon there may be little, if any,
monetary reason for a GS-15 to aspire to become a BCA judge.
If the trend continues, the only way a GS-16 could increase
his pay is to move to the SES. The relative diminution of pay
is inappropriate, we feel, and should be rectified.
Thank you for the opportunity to appear before you.
Mr. Porter. Thank you very much, Judge. We appreciate your
testimony.
[The prepared statement of Judge McCann follows:]
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Mr. Porter. Finally, we have Judge Slavin, who is the
president of the National Association of Immigration Judges.
STATEMENT OF DENISE N. SLAVIN
Judge Slavin. Good afternoon and happy birthday, Mr.
Chairman; good afternoon to the committee members. Thank you
for inviting the National Association of Immigration Judges to
testify today.
The National Association of Immigration Judges is an
association of immigration judges in the certified collective
bargaining unit for these judges Nationwide. There is about 200
of us Nationwide. We have been reaching out to lawmakers
grappling with this topic for the last few years. Pay
compression has been an increasing problem in the ranks of the
Immigration Judge Corps for some time.
The unique position of immigration judges frequently has
been overlooked because we comprise a relatively small body of
specialized administrative judges within the Department of
Justice. Immigration Court proceedings are a strange hybrid of
administrative civil and criminal law. While we are technically
an administrative tribunal, we are not governed by the
Administrative Procedures Act. However, we comprise one of the
bigger groups of administrative judges within the Federal
bureaucracy.
Unlike ALJs, we generally render final agency decisions,
not mere recommendations. The vast number of our cases are not
appealed. The subject matter we address daily can have life-or-
death impact on the parties before us, whether it is in the
context of asylum claims in the United States or whether
someone's removal would cause exceptional and extremely unusual
hardship to a U.S. citizen's relative.
More recently, cases have raised significant national
security issues and assertions of connections to international
terrorism or persecution of others. Further, the increased
spotlight on immigration issues and IJ decisions has been
brought on by streamlining, a process where the Board of
Immigration Appeals adopts IJ decisions as the final agency
decisions, and this highlights the need for a seasoned and
stable corps of immigration judges.
We have similar problems to ALJs because of pay
compression. These include the serious problems of attrition in
the ranks and salaries disproportionate to those of the
attorneys and parties who appear before us. Our ranks have been
more directly affected by pay compression in recent years
because, increasingly, the department has not been able to fill
positions as IJs leave, creating a burden on the system and
sitting IJs. The increased focus on immigration issues in the
press only highlights the need to recruit and retain a high
caliber of candidate for the system.
The immigration judge pay schedule is based on four levels
of pay, based on increasing years of experience. However, in
the third of the cities in which the immigration judges sit,
the pay levels for the two highest positions are the same due
to pay compression. At present, over 100 judges, about half of
our corps, are paid identical salaries because of the pay cap
provisions which limit the amount of locality augmentation that
we can receive.
One thing that someone hasn't mentioned is that pay
compression is aggravated by the fact that, for the same reason
we are exempted from performance reviews, we cannot receive
other types of Federal compensation, such as bonuses or awards.
These types of compensations usually are used to augment the
salaries of high-level SES or executive schedule employees.
Historically, immigration judges have been exempted from the
general Federal Employment Performance Review System by OPM in
recognition of the quasi-judicial nature of the job and the
need for both real and perceived decisional independence.
The NAIJ would be happy to work with the subcommittee to
change the pay scale, but we cannot envision a system that
would link pay to performance and still preserve public
confidence. A new pay system cannot include a pay for
performance model. Judicial independence is paramount to ensure
that we maintain public confidence and neutrality and fairness
of our tribunal, and the mere appearance that quantity based
measures are applied are worse yet. Financially rewarding would
severely undermine that confidence.
Indeed, many immigration judges believe that the isolated
incidences of immigration judge intemperance that have been
occasionally criticized by the press have been brought on by
the Department of Justice's position of case performance goals.
These goals have dictated rigid guidelines for the immigration
judges for the timeframe of completion of cases based on the
type or age of the case. With added emphasis in the last years
on these goals, we do not have the time in court to exchange
pleasantries or allow an applicant to take all the time they
desire for their day in court, and this sometimes makes us
appear abrupt or curt in order to move cases along.
It is not difficult to see how this pressure to
expeditiously move cases through the system might be
misconstrued and misinterpreted as a lack of courtesy by the
parties. Yet it is the same press of cases which highlights the
need for expert and experienced IJs and serves to underscore
the crucial importance of maintaining a top-quality corps of
seasoned IJs by addressing pay compression and inequities
relative to private sector employment.
The important independent goal of IJs in post September
11th times and the pay compression from which we suffer demands
that all positions be addressed in a manner similar to any
proposal for ALJs or non-Article III judges. The statutory
language must be clear to ensure the pay scale for IJs is
appropriately modernized, the compression is alleviated, and it
would be clearly protected from any link to performance based
criteria.
Thank you very much for the opportunity to speak today.
Mr. Porter. Thank you, Judge. We appreciate your testimony.
[The prepared statement of Judge Slavin follows:]
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Mr. Porter. I guess we will start with you, with a couple
of questions.
In light of the President's new proposal, at least
concepts, yesterday, do you see your workload increasing
substantially with some of the proposals that have been brought
forward?
Judge Slavin. I see our workload increasing in two ways.
One of the ways it makes our workload more difficult is
immigration law is constantly changing so it is very difficult
to keep up with those changes and to apply the new
complexities. Just as case law develops on statutes that are
passed, new statutes are passed or they are amended; and this
makes these novel issues basically appear in court almost all
the time. It is hard to determine whether this would be an
initial increase in cases before the Immigration Court, and
especially until some actual language comes out of any
compromise that would be developed it would be difficult to
determine.
Mr. Porter. Before I continue with questions, I would like
to ask my colleague, Mr. Cummings, if he would like to make any
comments or an opening statement.
Mr. Cummings. No, you can proceed Mr. Chairman.
Mr. Porter. Thank you.
You had mentioned also, Judge, that the pay of immigration
judges should be linked to the salaries of bankruptcy judges or
magistrate judges. How are these judges paid, and why is that
the best comparison?
Judge Slavin. Well, it is interesting I did agree with Ms.
Kichak on this issue. They are paid on a percentage of the pay
of the Federal court judges. I think her comparison to State
court judges is totally inappropriate. It is like comparing
apples and oranges. If you compared, for example, the salaries
of Federal attorneys to State attorneys, you would see a
similar discrepancy. But I think we should be paid comparably
to magistrate judges and bankruptcy judges.
I would note, however, that those judges and the Federal
court judges are also pressing for an increase in pay and feel
that their current system is out of date.
When I looked at this issue last year, the Senate bill that
was proposed would have proposed a maximum of $166,000 for the
magistrate or bankruptcy judges; and if you linked, for
example, the immigration judge pay at 95 percent of that, it
would have brought our pay up to $157,000. So I think that the
type of work we do is more similar to that than the work done
by management employees or senior level management employees.
Mr. Porter. It is becoming more and more obvious that we
have a lot of our senior government officials in different
areas where--their pay benefits and retirement situations--we
need to be reviewing a lot of folks that are in the senior
level, and possibly by an independent commission at some point.
But, again, I appreciate your comments in answering my
questions.
Judge McCann, in your view, are there any pay-for-
performance principles that will be applied to preserve your
independence and improve the quality of timeliness?
Judge McCann. Mr. Chairman, I don't see any way to have a
performance pay or any standards that can be used that would in
fact preserve our independence or our impartiality. We thought
about this long and hard and actually tried to but have not
been able to come up with something that would preserve our
impartiality.
Mr. Porter. And, Judge Bernoski, how many ALJs retire each
year and how many separate without retiring? Do you do any exit
polling discussion with these folks?
Judge Bernoski. Off the top of my head, Mr. Chairman, I
cannot give you an answer to that. I can supplement my
testimony and try to provide that information to you.
But I think that probably in the Social Security
Administration--this is probably a guess--we probably would
have about--we have 1,100 judges, probably around 30 retire a
year. I think that is a good ballpark estimate, about 30 a
year.
Mr. Porter. And if you could check that for us, I would
appreciate it.
Judge Bernoski. Yes, sir I will.
Mr. Porter. Judge Bernoski, do you see a significant loss
of experienced and talented judges in the near midterm if we
don't address these pay concerns; and, if so, what will happen.
Judge Cowan. Do we anticipate a loss of judges because of
the pay problem? I think it is a complicated question. The fact
is that the existing corps of judges came in late in their
careers, typically, to Administrative Law Judge positions. They
typically need to stay in largely because they can't afford to
retire, and I think that links into Judge Bernoski's testimony
about the need for retirement programs. So you are not going to
see a lot of midterm people going in and out. There are some,
but not a lot.
Mr. Porter. And you need to help me because I don't know
the answer to this question. You take a--like a State employee
judge in the State of Nevada, who may well be a part of the
public employees retirement system in Nevada, and what you are
saying is they may be there for 10, 15 years and then, at later
in life, with that experience, then they become a Federal
judge. And they are not able to combine their benefits. So they
have to stay longer to make sure that they can maximize the
retirement benefits.
Judge Cowan. That is exactly right. I am an example of
that. I am a retiree in the State of New York. That pension
plus the Federal pension is not nearly as good as a typical
long-term Federal pension.
So that is why people in ALJ positions stay in them. They
need to stay in them to continue to get the number of years to
boost up the FERS benefit, basically.
Mr. Porter. So where is it that they start in salary,
approximately?
Judge Bernoski. $95,500 I believe is the existing starting
pay for ALJs.
Mr. Porter. To start, you have to have experience for a
number of years. It is not like they are coming in fresh from
college in their first job?
Judge Cowan. No. OPM has an examination. Last examination
required 7 years of trial experience or similar experience and
a number of other qualifications that you wouldn't get right
out of law school, for example. So you are dealing with a
seasoned corps of people. Typically the kind of people that
came into ALJ positions were senior-level government employees
at the GS-15 level that my colleague was talking about earlier
and I mentioned as well. We are not getting those transfers
anymore because it is just not lucrative for them. They can
make more money staying where they are. That is what our
concern is.
There is always going to be applicants for a job that pays
$95,000 a year. The question is, are you getting the right kind
of people? And we think that these programs need the best and
the brightest people.
Mr. Porter. Thank you. That actually concludes my
questions.
Mr. Cummings, anything you would like to ask?
Mr. Cummings. Yes. What is the retirement age for judges--I
guess it is different--on different levels it is different
retirement ages. In the State of Maryland, you have to retire
by 70. But when do you all have to? Do you have a time that you
have to retire?
Judge Bernoski. No, there is no mandatory retirement age,
Mr. Cummings, in the Federal Government.
Most judges, Administrative Law Judges, that is, retire
between after 20 years of service and then usually around 30 or
more, depending on what their age is at that time. We have--I
was over in Oklahoma City a couple of weeks ago and in that
office there in the Oklahoma City hearing office of about 13
judges I think there were 3 that are over 80 years old. One was
85 or 86 years old. So these people are working well into older
age and probably, quite frankly, beyond the scope of
productivity.
Mr. Cummings. The reason why I ask that question is because
there was some mention of judges having to work longer because
of certain circumstances with regard to pay, I guess, and
pensions. So I assume that part of the reason why some may work
a little longer than, say, the average is because of pay, is
that it, or the retirement packages?
Judge Bernoski. Well, the typical reason why judges work
older is because, well, first of all, as Judge Cowan indicated,
their FERS system is really inadequate for the salary level of
Administrative Law Judges the way the pension is structured,
but second is because they enter Federal service at much later
age. Like, for instance, the last class of Social Security
judges of about a year ago, the average age of those judges was
a little over 56 years.
So if you are going to take a governmentwide pension of 30
years on top of 56, you have 85 years of age before they would
receive their 30 years of Federal service. And that is
typically what happens. Our people enter into government
service probably closer--OPM statement said age 40, but I think
that is a little bit young. I would say our judges are a little
bit closer to 50 years old when they enter. We have some
younger people, but most of them are on the older side, 50
years or more.
Mr. Cummings. Judge McCann, you had said that--in answering
one of the chairman's questions about pay for performance, you
said that--you mentioned that it might be harmful to
impartiality. Is that what you said?
Judge McCann. Yes, I did.
Mr. Cummings. Can you explain that to me? I am sorry I
missed you all earlier.
Judge McCann. Absolutely, Congressman Cummings.
If you have pay for performance, you would have to have
certain standards for pay for performance. And that would--if
you have standards for pay for performance that are at all
subjective, that would be opening up that performance review to
political pressure or pressure by the agency to come to some
conclusion. It would not be impartial.
If you had absolutely objective standards, you could have
pay for performance. But we know of no objective standards that
would possibly apply. So any type of--we come to the conclusion
that any type of pay for performance necessarily destroys
impartiality.
Mr. Cummings. So when it comes to--and then when it comes
to pay compression, I guess it becomes very--I am sort of
moving to another subject--kind of difficult to hold on to
folks and even to get them in the process.
I know you can get somebody for $95,000. I got that. But as
far as attracting the better people, that is your major
concern, is that right, Judge Cowan?
Judge Cowan. Yes. Absolutely.
Mr. Cummings. So you just got somebody that comes in at
$95,000 who is an outstanding jurist or whatever they might be
doing, could probably make a lot more money doing something
else----
Judge Cowan. Yes.
Mr. Cummings [continuing]. At that point in their career.
Judge Cowan. What you are going to get are a bunch of
people with failed law practices or people who just couldn't
cut it in private industry, that have the requisite number of
years to qualify for experience. They will submit applications.
Now, hopefully, OPM will design an examination that will weed a
lot of those people out. But we are really worried about the
fact that this compression is going to have a real quality
effect on the corps of ALJs.
Mr. Cummings. And have you seen evidence of that? How do
you all--I am trying to say this in a way where you don't have
to talk about your colleagues. I mean, do you all have any kind
of evaluation system short of somebody complaining? Are you
following me?
Judge Bernoski. No, we don't. There isn't any evaluation
system for Administrative Law Judges. It is precluded by the
Administrative Procedure Act and by Federal statute.
But, Mr. Cummings, with relation to the OPM statement,
since the register has been closed, since 1999, OPM has not had
empirical data as to the quality of applicants that they will
receive under this current pay cap, quite frankly, because they
haven't been putting any applicants on the register; they
haven't been receiving any applicants or administering the
examination. So it is at best on their part an educated guess;
and we do not, I think, concur with their conclusion.
Judge Cowan. If I might supplement upon that, I referred
earlier in my remarks that the chairman of my agency wrote to
the President a number of years ago, 3 years ago, complaining
about the quality of the applicants we were seeing in the OPM
register. I am with the Federal Energy Regulatory Commission.
We have very technical, very complex cases. You really need to
have the right kind of skills to do those kinds of cases. And
he just wasn't seeing--when we would bring applicants that OPM
would certify up to the chairman's office and he would say, we
don't think they can do the job. So it was a real concern. It
hasn't gotten any better. It's gotten worse, because the pay
compression is even worse now than it was then.
Mr. Cummings. Who did you say you work for?
Judge Cowan. The Federal Energy Regulatory Commission.
Mr. Cummings. So when it comes to judges in your area, they
have to have expertise with regard to energy?
Judge Cowan. They don't necessarily, no. We don't have that
as a requirement. As far as OPM examination is concerned, all
judges are equal. A judge in Social Security could conceivably
be transferred and do our work. In fact, they have done that;
and some of them work out fine. But others may not work out so
good. We are really concerned about the general problem.
Mr. Cummings. I understand that. But you are also concerned
about, yeah, quality.
But what I was thinking about is, in Maryland, they just
had a--there was an article in the Baltimore Sun the other day
about one of our circuit court judges and how he had to--I
think they said he spent a whole summer just trying to figure
out how the Public Service Commission works and with regard to
energy problems in Maryland, just so that he could be
knowledgeable of even dealing with a hearing. And I can imagine
that would get--that could get very, very complicated.
So if you have someone who is mediocre at best and who may
not be too quick on the draw with regard to learning the
subject matter, it is kind of hard, I guess, to have a truly
fair hearing. Because it takes about, I assume, a certain base
of knowledge just to be able to even fully appreciate and
understand the arguments that may be presented. Is that a fair
statement?
Judge Cowan. I would agree with that.
Mr. Cummings. So if whoever is in charge of the judges, say
like in your agency, ends up with a judge who is clearly not
qualified to hear those kinds of cases, there is not too much
you can do it about it, huh?
Judge Cowan. No, we are required basically to assign cases
on a rotational basis. So as they come in they get assigned to
the next available judge to the extent practicable.
Mr. Cummings. What is your solution to this problem of
compression? What do you see as a solution?
Judge Cowan. The solution would be--I would like to see a
fresh look at the whole structure, but the immediate solution
would be to establish a cap at a higher level. That is a
stopgap measure.
But I think the American public deserves a fresh look at
compensation for judges across the board, non-Article III
judges, which is what this committee is looking at. I think it
is a wonderful idea to do that, and we are appreciative of it.
Mr. Cummings. Let me say one last thing. I agree with you.
I am a lawyer. I practiced for 20-plus years, and for the life
of me, I could not, I never could, understand why judges were
not paid better. I mean, most of the judges I knew were very
strong people in the legal profession. They could go out and
make more money than what they were making on the bench. And
then people would scream and holler if any mention was made of
them making a decent salary.
It seems to me we have to protect all branches of our
government, and I think the judicial branch plays as
significant a role as the legislative and executive. Hopefully
we can take a look at this.
I agree with you on quality. To have justice, in order to
make decent decisions, you have to start with a base of
knowledge. If you don't have that base, you have a problem. I
don't consider that justice.
Thank you all very much.
Mr. Porter. Thank you. I just have one additional question.
Entry level approximately $95,000, is that based upon what
is being paid, or is that where it begins? I would assume that
a lot of folks come in from other agencies and may be above the
$95,000. If they come in at $110,000, they start at $110,000?
Judge Cowan. If there is an intergovernmental transfer,
they transfer laterally at their highest level.
But there are other people that come from other
jurisdictions or the private sector, and they start at the
lowest level.
Mr. Porter. Your points are well taken. I concur with Mr.
Cummings that this is an important hearing, and we appreciate
hearing your perspectives.
As I said earlier, I think there are some other executive
levels in the government, senior government officials, that we
need to take a look at also.
Thank you very much for your testimony. We appreciate you
being here today. And with that, we will adjourn the meeting.
[Whereupon, at 3:03 p.m., the subcommittee was adjourned.]
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