POSNER AND SEVENTH CIRCUIT SHRUG AT ALJS’ CHALLENGE TO NEW QUOTAS

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Are the Social Security Administration’s ALJs in a race against the clock? Maybe.

Can they make a federal case of it? No, at least not on the facts of one case recently reviewed by Judge Richard Posner and the Seventh Circuit. Ass’n of Admin. Law Judges v. Colvin, 202 LRRM 3265, 2015 BL 15928 (7th Cir. 2015).

The Association of Administrative Law Judges, which represents ALJs employed by the Social Security Administration, sued the agency head under the Administrative Procedure Act after the SSA set a “goal” in October 2007 that directed each ALJ to issue between 500 and 700 legally sufficient decisions a year.

The purpose of the new “goal” was to reduce a backlog of disability cases.

It was a big change, though, because 56 percent of the agency’s ALJs weren’t deciding 500 cases a year at the time.

Assuming a 261-day work year, each ALJ would have to decide about 1.92 disability cases per day, without accounting for leave and holidays.

A federal district court in Illinois dismissed the union’s complaint, finding the Civil Service Reform Act of 1978 precludes resort to the APA.

The district court reasoned that the CSRA creates exclusive remedies for “prohibited personnel practices,” like “significant change in duties, responsibilities, or working conditions.”

Because the union was alleging such a change, the court found, the court didn’t have subject-matter jurisdiction.

The union appealed. Judge Posner and the Seventh Circuit affirmed.

Posner first rejected the union’s argument that the quota interferes with the ALJs’ decision-making independence.

The union had argued that the effect of the quota is to push ALJs to say yes in more benefits cases because it takes more time to say no.

Noting that the SSDI trust fund is on the verge of drying up, Posner observed that SSA is actually under pressure to reduce the disability benefits that ALJs award. The aim of the quota, he reasoned, was to speed up decision-making. The SSA wasn’t trying to prod ALJs to grant more awards.

At the end of the day, Posner reasoned that the ALJs’ remedy under the APA does not extend to “incidental consequences of a bona fide production quota,” and his three-member appellate panel affirmed the decision of the district court.

Senior Judge Ripple, in a concurring opinion, raised some concerns about Posner’s willingness to look to the APA at all.

Ripple agreed that federal courts lack jurisdiction over claims of interference with the decisional independence of ALJs, which he thinks fall under the CSRA as the district court found.

What troubled Ripple is that Posner’s look to the APA to rule out a remedy might open an additional can of worms.

If only “bona fide personnel actions that tread incidentally on decisional independence” are excluded from scrutiny under the APA, Ripple reasoned, federal courts must be prepared to look to the subjective intent of agency officials to evaluate every allegation about decisional independence.

According to Ripple, it’s difficult to imagine that such an inquiry would be compatible with the intent of Congress in the CSRA “to limit judicial intrusion into the day-to-day management of executive and regulatory government.”

Though a clear win for the SSA, the case is not an unlimited gift of timekeeping discretion to agency heads.

In dicta, Posner noted that the court could “imagine” a case in which a change in working conditions for ALJs would have so great an unintended effect on their independence that it would create “serious due process issues.”

In his hypothetical, the SSA orders disability hearings to last no more than 15 minutes. According to Posner, the “quality of justice meted out by the administrative law judges would be dangerously diminished.”

This was not such a case. Only time will tell what might be.

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