U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Mr. Chairman and Members of the Subcommittee:

I am pleased to have the opportunity to appear before you this morning to discuss the role of the Office of Personnel Management (OPM) with respect to the hiring of Administrative Law Judges (ALJs), and our most recent activity with respect to this issue. Let me begin with an assurance to everyone here that I am committed to working very closely with the Commissioner of the Social Security Administration (SSA) and our other Federal partners to ensure the Government has an effective Federal civilian workforce, which includes ALJs. I certainly recognize and appreciate the importance of the work ALJs need to do with respect to Social Security disability cases.

Background

By way of background, the ALJ position, originally referred to as "hearing examiner" was first authorized by Congress in the Administrative Procedure Act (APA) more than 60 years ago. The APA was designed to ensure fairness and due process in Federal agency rulemaking, and the hearing examiner positions were established to provide aggrieved parties an opportunity to have their concerns heard on the record through a hearing. The APA also provides statutory protections to ensure that ALJs have decisional independence from undue agency influence. Some of these protections included making the positions independent of the employing agencies with respect to appointment, tenure, and compensation.

The most recent data available to OPM show there are over 1,400 ALJs serving in the Federal Government, 1,100 of whom work at SSA with the remainder primarily at the Department of Health and Human Services, the Department of Labor, and the National Labor Relations Board. The data show that most ALJs tend to remain in their positions longer than most Federal employees - ALJs retire on average with 32 years of service at age 70 - this is in contrast to other employees who, on average, retire with 28 years at age 59.

Role of OPM

Consistent with civil service law, the Veterans Preference Act, and APA requirements, OPM is responsible for establishing ALJ qualifications, for administering the ALJ examination, and for maintaining a listing of qualified candidates for ALJ employment by Federal agencies. By law, OPM cannot delegate the ALJ examination to any other agency.

In 1999, the current register was suspended following an adverse ruling in litigation before the Merit Systems Protection Board, then referred to as the Azdell litigation (now referred to as Meeker v. OPM). OPM petitioned for review by the United States Court of Appeals for the Federal Circuit, and ultimately prevailed. After the Federal Circuit mandate was issued, in July 2003, OPM refreshed the ALJ register by verifying that candidates on the existing register were still actively interested in ALJ positions (removing those who were not interested or were not reachable). Between 2003 and 2007, OPM also added over 100 new applicants (these applicants included veterans who were 10-point preference eligibles, and other persons who had completed applications pending during the litigation).

After the conclusion of the Azdell litigation in 2003, we closed the ALJ examination to new applicants, (with the exception that we continued to accept applications from 10-point preference eligibles as allowed by law), reconstituted the ALJ register, and made that register available for agency use. At that time, there were 1,730 ALJs on the register. Subsequently, we resumed work on the examination, which as you may know, is a complex multi-step examination process.

A look at ALJ Hiring

It is important for you to understand that agencies have in fact been hiring ALJs both during and after the Azdell litigation. In the case of the Social Security Administration, 562 ALJs have been hired since 1997. Because OPM was sensitive to the Social Security Administration's need for ALJs, we litigated a motion to lift the stay expressly for the purpose of allowing SSA to hire off of the register. As a result, SSA hired 126 ALJs in 2001. After the Azdell litigation concluded, from 2003-2005, OPM issued 7 certificates of eligibles to SSA in the 2003 -2005 period, and as a result, SSA hired another 200 ALJs. More recently, in 2006, SSA hired an additional 37 ALJs.

The New ALJ Examination/Assessment Process

At the end of 2005, OPM published a proposed rule to streamline existing ALJ regulations by removing redundant procedures and outdated information, clarifying bar membership requirements, and ensuring that the ALJ examination process operates in a manner similar to other OPM competitive examinations. As a result, we received a large number of comments from a variety of sources with extensive recommendations. We undertook a careful review of all comments received. Subsequently, we published the final rule in the Federal Register on March 20, 2007. The rule took effect on April 19, 2007. During this same time period, we revamped the qualifications standard. Concurrent with the publication of the proposed ALJ rule, we posted a draft qualifications statement on OPM's website. We received comments on the draft qualifications and took them into account in drafting the final version, which was posted on OPM's website on April 20, 2007. Throughout this process, the register never had fewer than 1,000 candidates.

OPM has also now published its new qualification standards for ALJs, and we expect to open the ALJ vacancy announcement on our USAJOBS.gov website within the next few days with the goal of completing our initial reviews early this month. New ALJ candidates will need to submit their accomplishment records which OPM will review and score, followed by written demonstrations, which are also part of the scoring process. Structured interviews with ALJ candidates will then be scheduled and my expectation is that we can complete that interview process and proceed to final scoring and establishment of a new ALJ register by late Fall. This sequence of events is presented in the attachment to my statement.

Conclusion

Mr. Chairman, I will continue to work closely with your subcommittee and with Commissioner Astrue to ensure we meet the needs of SSA and our other Federal partners - through the existing ALJ register and the new register being established this year. I would be happy to further address any questions the subcommittee may have.