Comment from Birge, Joanne, private citizen who is also an ALJ

The proposed rule does not pass the rational basis test. And the agency's discussion purportedly justifying the rule fails to provide either real need or legitimate basis for what the agency proposes. First, the agency suggests the rules makes a simple organizational change or a change that results in greater efficiency. The agency, however, has never established that the present system is not efficient. In fact, it is. What the present system does not do is allow the agency to force an ALJ into more or additional hearings whether or not the ALJ finds added hearings results in a manageable workload, either in the short term or over a year's period. The latter--and not the former--is the obvious actual aim of the proposed rule. Rather than define how the agency can better set agendas and dockets for over 1,000 ALJs in 140 different offices, the agency discusses how it needs to set 500 cases a year for each judge. The agency is solely interested in using the proposed rule to set a quota. This is neither a legally permissible goal nor an end reasonably related to the agency's intended control of dockets. The agency has never studied how long local hearing offices spend setting individual dockets for judges in each separate office and it does not know or explain how a national office might do this more efficiently. It has never studied how an ALJ allocates time on a daily basis or even what decisions go into setting the time and place of a hearing and holding to that through conclusion of the process. The agency has never calculated (except by arbitrary estimates) how much time an ALJ needs (a) to review cases before they are considered ready to be heard, (b) to hold a hearing, (c) to handle matters completely collateral to hearings, such as ruling on petitions for fees, and (d) to handle miscellaneous matters absolutely necessary to keep cases moving. There have been no studies or time accountings for ALJs generally, much less by individual ALJ or ALJs office-by-office. The agency has never addressed the differences in hearing offices, such as those where the ALJs never travel and those (like New Mexico) that conduct hearings in at least five offices remote from the central Albuquerque office. How then can the agency establish that it can set cases more efficiently on a national scope? How can it decide how long hearings should be, i.e. that is, how much time from one setting to the next? How can it know when a judge views a file and sees the case will require twice the hearing time of the usual case? How, in fact, can the agency argue that 500 cases a year across the board--for every judge and with every case presumed to be the same--is not completely arbitrary? Second, setting the time and place of hearing is an act of judicial discretion. Case law is replete with instances where a judge decided merely a request for a continuance, and that act by itself was explicitly ruled an act of judicial discretion that placed the case within the judge's parameters and beyond interference by another judicial officer. As a party the agency cannot engage in any actions that even appear to involve judicial discretion. If the agency takes up setting cases, this by definition will eventually and likely frequently involve the agency in determinations of when a case is ready for hearing, when continuances are justified or permitted, when last minute excuses for attorneys or claimants who fail to appear at the stated place and time might be acceptable, when weather precludes continuation of a scheduled docket, and a long list of like decisions. Clearly, the agency cannot get involved in any of these matters without destroying both the reality and the appearance of that due process guaranteed by the Fifth Amendment. Third, the agency should not be able to accomplish through the back door or by parallel path what it cannot accomplish any other way. A rule that simply mandates a quota of 500 cases a year is clearly a more direct route to what the agency itself states provides the needs for its present proposal. Yet, SSA does not propose such rule because it is well accepted that the agency cannot establish quotas without violating ALJ independence and judicial authority to handle each case on a case-by-case basis--with some cases requiring more time than others. Again, the determination that each judge should be hearing 500 cases per year is by itself arbitrary. There are no findings to support the determination. The agency has no idea how many judges spend 30 minutes for each hearing, how many spend 45 minutes, how many spend an hour. The agency has made no attempt to calculate the differences between judges who never travel from their hearing offices and those who regularly travel one to two weeks a month. The agency has made no plans to manage the several contingencies that interrupt hearings plans and scheduled times. The agency states essentially only that it needs to set 500 case per judge per year. This is neither well considered nor reasonable.