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Judge Work Quotas Fought in 7th Circuit

(CN) - As the Social Security Administration fought in the 7th Circuit Tuesday to designate the number cases its fact-finders hear per year, Judge Richard Posner hounded those employees trying to avoid "working harder."

The case's outcome is of grave importance to administrative law judges, a segment of federal employee also known as Article I judges who preside over claims involving the activities of the government's administrative agencies.

Posner and his colleagues in the 7th Circuit are Article III judges, and the Association of Administrative Law Judges complains that some of its 1,200 member ALJs face an illegal quota that infringes on their right to decisional independence under the Administrative Procedures Act.

The issue came to a head when the Social Security Administration began requiring its administrative law judges to decide between 500 and 700 cases a year.

U.S. District Judge Sharon Johnson Coleman threw the case out for lack of subject-matter jurisdiction in April without touching on the claim by Social Security commissioner Carolyn Colvin that the ALJs lacked standing.

"The Civil Service Reform Act protects the rights of all federal employees, including ALJs, to be free from 'prohibited personnel practices,'" Coleman wrote.

Colvin also found, however, that "federal employees are not to circumvent the act's requirements by resorting to the catchall Administrative Procedures Act when challenging agency employment actions."

"Congress removed the jurisdiction of federal district courts over personnel actions arising out of federal employment," the judge added.

Coleman also rejected the notion that ALJs are being denied the same protections and independence offered to other federal judges.

"Although presented as interference with decisional independence a review of the complaint shows that the ALJs' allegations are actually challenging working conditions and duties," she wrote.

The 7th Circuit heard oral arguments in the case today, with Social Security Judge Marilyn Zahm representing her ALJ colleagues.

"This case is about judicial integrity across the entire system - not working conditions," Zahm began.

"But the bottom line is your clients are employees of the executive branch, not the third branch of government," said Seventh Circuit Judge Michael Kanne.

Zahm replied that "the rule requires judges to render favorable decisions or cut corners."

Judge Posner's hounding of Zahm did not let up until her time ended. "How does having to do 500 cases interfere with judicial integrity?" he asked. "Some jurisdictions have a higher workload. Why do you think they've done this?"

"For political expediency," Zahm replied. "To move a certain number of cases. It's perverting..."

"It only perverts it if judges refuse to work harder," said Posner. "What's the evidence that judges can't work harder?"

"There are no studies showing that a judge can do this and still comply with the law," Zahm said. "The agency asserts it should take us only two and a half hours to hear a case, including reading the record and holding a fair hearing. I don't think it's a question of working harder."

"How many cases have they been handling?" Posner asked.

"It varies..."

"No, you answer my question!"

"Three to four hundred."

"And what's the problem with adding 25 percent?"

Zahm spoke of her own experience as a judge with Social Security, an agency she described as cash-strapped and judge-short.

Echoing the lower court's finding, Posner disputed that the quota was anything more than a changed working condition. He hammered Zahm with hypothetical changes the administration might make.

"What if they raised hours to 10 per day?" he asked.

When Zahm replied that this would not affect the outcome of cases, he was unforgiving. "That's wrong," he said. "You're saying they'll compel you to rubber stamp. That's wrong too. That's not Social Security's goal. They've always been cheap actually."

"Suppose they reduced retirement benefits," forcing some judges to seek other employment, Posner put in.

"That doesn't affect the outcome of the case."

"What?" Posner retorted. "I don't understand you. If a person is forced out, that affects his judicial independence."

Zahm repeatedly made the strained argument that the administration was trying to cut costs by forcing judges to approve more Social Security applications. None of the judges bought it.

"What's the effect on the percentage of claims granted?" Posner asked.

"That's hard to answer. The great recession happened. We have statistics showing that judges who hear more are paid more..."

"That could be unrelated to the quota," Posner cut her off again. "How are you going to show that?"

Zahm mentioned statistics and a study that she would be prepared to show at trial.

Defense attorney Melissa Patterson had a far easier time of it. "Congress contemplated administrative law judges in the Civil Service Reform Act," she began.

Posner asked about the consequences of a judge missing a quota. Patterson explained the complex administrative procedure for hearing such grievances, but her main point was that any harms are purely speculative.

"If you look at their complaint, it says 'we're afraid this might happen,' not 'it actually has happened,'" she said.

In a rare moment of sympathy for the plaintiffs, Judge Kenneth Ripple noted: "I found very disturbing the government brief's lack of sensitivity to the issue of judicial independence."

"I disagree," Patterson replied. "This goes to the court's subject-matter jurisdiction. ALJs play a pivotal role, but we cannot create avenues of review outside of what Congress has done."

The day ended with a little more battering of the plaintiffs.

"What's the worst thing that's been done to ALJs who fail to meet the quota?" Posner asked.

"They have removed one judge, though I concede that his performance was inadequate," Zahm said. "What they do is issue directives" to pressure judges.

Posner noted that any removal would still leave a person with "a remedy before an administrative board."

"Yes," Zahm said, "but none of us want to put our jobs on the line."

Earlier, Judge Kanne had subtly raised the issue that hung over the entire hearing when he pointed out that ALJs were once merely called "commissioners." The circuit must now determine to what extent it will treat them like judges as opposed to typical employees.

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