Fwd: President's Newsletter
Dick Goodwin
From: Zahm, Marilyn <Marily...@ssa.gov>
Date: Thu, Jun 21, 2018 at 1:00 PM
Subject: President's Newsletter
To:
June 21, 2018
PRESIDENT’S NEWSLETTER
Lucia Decision
The Supreme Court today held that the SEC ALJs are inferior officers. The Court specifically declined to address the removal issue. The decision can be found on the link below:
https://www.supremecourt.gov/opinions/17pdf/17-130_4f14.pdf
While this decision does not directly involve SSA ALJs, it may well affect us in the future.
Of interest, of course, is whether each of us has been properly appointed. The AALJ has asked the Agency to provide us with the facts surrounding the appointment of each class of judges, but it has refused to do so. We have filed a FOIA request to obtain the information.
The Agency has also refused to advise us as to their plans to reappoint judges.
Should the Agency fail to reappoint any judges who were not properly appointed initially, they will create uncertainty and turmoil surrounding our processes. Every claimant who is denied benefits will be raising this defense; the backlog will grow larger if all such cases are required to be remanded and reheard. This is a waste of our resources. The Agency needs to reappoint all of its judges at once.
Executive Orders
On June 15, 2018, SSA sent a notice to me of its intent to implement the three Executive Orders issued by President Trump on May 25, 2018. The notice stated:
In accordance with the Federal Service Labor-Management Relations Statute, Article 1, Section 2 of the SSA-IFPTE National Agreement (National Agreement), and the three Executive Orders, this is notice of the Agency’s decision to implement all three Orders effective July 9, 2018. Therefore, effective July 9, 2018, the Agency proposes to revise the following Articles, as well as any other Articles implicated by the Executive Orders, in the National Agreement to adhere to the Executive Orders.
Articles 1, 2, 5, 7, 8, 9, 10, 11, 14, 15, 18, and 23 were thereafter listed below the above paragraph.
I asked what was meant by implementing all three orders on July 9, given that we have a contract that does not expire until September 30th and the law requires the Agency to bargain through the impasse procedures before any changes can be made. The answer I received:
We provided you with a notice that states the Agency intends to implement the Executive Orders on July 9, 2018.
Accordingly, the Agency has fulfilled its contractual and statutory notice obligations.
Such implementation is patently illegal. We have an existing contract that does not permit the Agency to change its terms at will. The contract sets out the procedure for making changes when the agreement expires, namely, renegotiation, and the language does not allow for implementing anything during the contract term or bargaining outside of the provisions for renegotiating the agreement.
AALJ has several arbitrations scheduled from July 10 through the remainder of the year. We intend to continue to arbitrate these cases – and fulfill our obligations to represent our members.
The actions brought by the Federal Coalition (which includes IFPTE), AFGE and NTEU to challenge the Executive Orders are pending in the United States District Court for the District of Columbia, and arguments on the merits will be heard on July 25th. The Judge has promised an oral opinion on July 26, with a written opinion to follow when she returns from vacation. I have filed an affidavit regarding our situation in that lawsuit.
Telework
Our third telework arbitration case was presented in Tacoma by Regional Vice President Caroline Siderius with assistant from Judge Larry Kennedy. The Agency’s position is that 600 scheduled hearings per year is required in order to achieve 500 dispositions, which, it contends, is a reasonable quota. Despite the fact that fewer than 10% of the Judges in Region 10, where Tacoma is located, were able to issue 500 dispositions in FY16 or FY17, the Agency continues to assert that 600 scheduled hearings per year is reasonably attainable.
Two other arbitrations – New Haven and New York – will wrap up with a final day each in July.
Two more arbitrations – Boston and Buffalo – will begin in July.
Keep the Faith
While the Agency’s actions are certainly demoralizing, especially in light of the fact that the ALJ Corps is comprised of such dedicated and hard-working judges, do not lose heart. We will persevere, despite short term setbacks, if we stick together.
In Solidarity,
Marilyn Zahm