Challenges remain in administrative judge hiring, evaluation

The federal agencies that rely most heavily on administrative law judges are happy with the candidates for these positions, but would like to be able to test them for specialized knowledge, according to a new report from the Government Accountability Office.

Agency officials also want to find ways to have conversations about administrative judges' job performance without infringing on judicial independence, the report (GAO-10-14) stated. But both goals might prove challenging, according to the watchdog.

Hiring and performance management are particularly important for ALJs because so many are eligible for retirement, GAO wrote. As of September 2008, the most recent month for which data is available, 51 percent of administrative law judges governmentwide were eligible to retire. By 2013, 78 percent of administrative judges will be able to retire and nine of the 25 agencies that employ these judges will face situations where they all are eligible for retirement.

Social Security Administration and Health and Human Services Department officials told GAO they were pleased with ALJ candidates, but would like to better tailor the screening process to their needs, the report noted. For instance, SSA officials said they would benefit from knowing whether candidates can manage large caseloads and deal well with claimants who do not have lawyers. And HHS officials said they would prefer candidates with three years of experience working with Medicare cases. HHS also requested more flexibility in selecting candidates.

GAO recommended the Office of Personnel Management, which administers the exam for ALJs and maintains a list of candidates available for hire, work with agencies to meet their goals. But the report noted changing hiring practices and performance management for administrative judges is complicated.

A lawsuit over a veterans' preference calculation forced OPM to suspend its registry of qualified applicants between 1999 and 2003, essentially preventing hiring during that period. OPM prevailed upon appeal, but had to create an entirely new list of candidates in 2007. That process was time-consuming, OPM officials told GAO. It took six months for the personnel agency to determine which candidates for ALJ positions were qualified in 2007 and 2008 after administering examinations. Additionally, offering the ALJ examination adds to the workload of sitting judges because they administer the test, OPM said.

But OPM Director John Berry told GAO in a letter that the office would consult with the agencies that employ ALJs before giving the next exams to determine the best way to get them the candidates they need. OPM defended the tests, however, saying more generalized assessments of aptitude were a good indicator of how candidates would perform as judges.

Measuring ALJ job performance could be even more difficult. Agencies use a number of metrics to assess administrative judges' work, including how fast they move their caseloads. But agencies are "prohibited from rating or tying an ALJ's compensation to their performance," to avoid influencing how judges make decisions, the report said.

Some attempts to measure performance have ended up interfering with decision-making, GAO said. For example, SSA in 2007 asked ALJs to decide between 500 and 700 cases annually. While officials said the directive increased judges' productivity, the SSA Advisory Board noted it also led to an increase in decisions in favor of petitioners. The Advisory Board and the Association of Administrative Law Judges said favorable decisions required less labor and time than unfavorable ones.

"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 said.

GAO stopped short of recommending specific performance management techniques for ALJs, but the report did call on OPM to establish a core list of competencies the judges must fulfill in their day-to-day work, and to conduct a review of how agencies are currently evaluating them. OPM said it wanted more direction from GAO on how it could guide the ALJ program within the confines of the law. But the watchdog agency wrote that OPM already has the power to adjust management of the ALJ program as it sees fit.

"We believe OPM has the authority to take a more active role in the management of the ALJ program, and that it should do so," the report stated.