Stuck contract negotiations and now a proposed rule change for disability appeal processing have widened the wedge between the Social Security Administration and its administrative law judges. With the latest developments, the president of the Association of Administrative Law Judges, Melissa McIntosh joined Federal Drive with Tom Temin.
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Tom Temin: Let’s talk about this rule change for disability appeal processing, coming from the commissioner, I presume, Andrew Saul. This is out for comment now. What is he trying to do here in what is the judge’s reaction to it?
Melissa McIntosh: This is a very significant change. Right now, American citizens have the right to a full and fair hearing before an administrative law judge. That’s critical because we are independent. We do not get performance appraisals. We receive no bonuses. We cannot be influenced. The SSA has proposed to remove these hearings and give them to non ALJ Individuals who receive performance appraisals, can be manipulated and persuaded through that process, through bonuses. We think this is a very critical issue of due process for American citizens.
Tom Temin: I guess he wants to see the establishment of a appeals council. Is that what you’re referring to is people that would not be administrative law judges, but members of some sort of an appeals council?
Melissa McIntosh: Right. And that’s another layer of the problem . He wants to have the members of the appeal council who are attorney examiners. He wants them to be able to hear these cases. But that does strip away official due process, right? So as well you have the people who review our decision sitting in the same organization who would now here the cases and make the decisions.
Tom Temin: The agency’s justification for this in the proposed rule is it will increase their adjudicative capacity and speed things up those are good goals, though, aren’t they?
Melissa McIntosh: That sounds good on its face, but the appeal council has its own backlog. We, the ALJs have eliminated our backlog, so this would come down to they they want the ability to hire new individuals into the appeal council rather than hiring a ALJ. And just for the record, the appeals council individuals, they do call them judges. But they are attorney examines per their position description. They make about the same amount of money as we do, so it’s not even a cost saving. It’s really about, most unfortunately, it’s about control. Again, we have eliminated our backlog, and we’ve done it by losing about 44,000 hours worth of leave over three fiscal years.
Tom Temin: Suspect it could be because of the nature of the decisions coming from the administrative law judges? That they think you’re maybe deciding too often in favor of the applicants or something.
Melissa McIntosh: The only stated reason is that they want to expedite the process. And that’s just not a legitimate assertion, since we have eliminated the backlog. If you want to hire more people, you should be hiring administrative law judges to hear these decisions. And recently, in a Supreme Court case called Smith v. Berryhill. The Supreme Court, in a unanimous decision, said that these disability hearings must be heard by administrative law judges.
Tom Temin: All right, so it looks like, in your view, you have the law on your side. What can you do about this rule or what you’re planning to do? I know the AALJ, the group has filed comments on the rulemaking. The agency can consider those comments. Do you have any other legal recourse past that?
Melissa McIntosh: We are now exploring our options but we do want to get the word out. I think so much is going on right now. And in addition, the agency has proposed to make it even harder for individuals to get disability by looking into and proposing increasing age requirement. As well, making reviews occur more often, every two years. So much is swirling around. We’re concerned that this is going to be lost, so it really takes others who are interested, who care to speak up and say, ‘This is not good government. This is not due process.’
Tom Temin: You also have the issue between the association and the Social Security Administration of kind of stuck contract negotiations. And the agency has called in the federal impasses panel, which has not ruled in favor of other unions that have had disputes. What’s going on there and what’s your take on them declaring this impasse and calling in the impasses panel?
Melissa McIntosh: We filed suit in the Court of Appeals, the fourth circuit on Thursday, and we did that to stay the impasses panel from continuing to facilitate and rule on our labor dispute. And here’s why. The impasses panel is not constitutionally constructed. These are individuals who have extraordinary power. Only in extraordinary circumstances can their decisions be reviewed in court. They are principal officers under the Constitution and a such they should have been confirmed by the United States Senate. They were not. So it’s our hope that there will be a stay on our proceedings. Bottom line, these panel members must be confirmed by the United States Senate, and here’s why. They really should be independent. And over the years, panel members have been independent and made decisions looking at what is in the best interest of good government? What is fair? Over the last couple of years, you’ve seen extremely anti-union decision making out of the panel. And why is that? I believe this really is a great exhibit of why you need Senate review and confirmation. Individuals with expertise in federal sector labor relations who recognized pursuant to the statute, unions are in the public interest. If you don’t believe unions are in the public interest, you really have no place on the impasses panel because the statute has already decided that we are in the best interest for efficiency to facilitate good labor management relations.
Tom Temin: And what are the biggest issues over which you are at an impasse or with which you are apart with SSA at this point?
Melissa McIntosh: I think we really have to lead with traditional functions. The Social Security Administration has actually proposed to entirely eliminate the judicial function article in our contract for judges. To not even want to recognize that were judges in the contract is, you know, candidly, that’s ridiculous. It’s essential to what we do. We are judges. As well, they want to force us to waive statutory rights. They want us to waive our ability to bargain. They want us to agree to a ridiculously low number of hours to represent our members. As a union, we have a statutory obligation to represent our bargaining unit, and with only a handful of hours, we simply can’t do it. The bottom line is that all of this is designed an orchestrated, and it’s across the board to eliminate federal sector labor unions. If you zoom out and look at the big picture, and so where we’re not exempt from any of this.
Tom Temin: What happens now? You have to simply wait for what the impasses panel decides?
Melissa McIntosh: We have to wait to hear from the court of appeals. We’ve filed suit and we have asked for a stay. So we are hopeful that we’ll receive it and that there will be a ruling that, that in fact, these panel members consistent with article two, section two, the appointments clause, that they must receive Senate confirmation. And when the Senate looks at who’s on the panel, it’s my hope that there will be a consideration of whether or not an individual believes that, in fact, that federal unions are in the public interest, which is consistent with the statue.
Tom Temin: Melissa McIntosh is president of the Association of Administrative Law Judges. Thanks so much for joining me.
Melissa McIntosh: My pleasure, thank you.