Both the Administration and your Committee Staff Report recognize that, despite all the management procedures being taken, the backlog continues to exist now and the number of requests for hearings does not appear headed for any substantial decrease in the foreseeable future. Given all the staff support and assistance possible, it is obvious that an Administrative Law Judge, who is doing a conscientious job, can only handle a limited number of decisions. The Bureau recognized this, and determined that 150 more Administrative Law Judges should be appointed as soon as possible. In addition, during the next three years 248 of the current ALJ's will be eligible for retirement. We submit that the facts speak for themselves. 400 new ALJ's will be needed within the next three years, and at least 150 are needed now. There is no other way to reduce the backlog and have timely hearings and decisions. APA STATUS IS ESSENTIAL FOR ALL SOCIAL SECURITY HEARINGS Although it has been fairly well-recognized that Title II hearings are under the Administrative Procedures Act, the issue has not been finally resolved by the courts, and there are still those who say they should not be. The history of SSI (Title XVI) hearings, and the current non-applicability of the APA in violation of the congressional intent, is documented in the reports of our Committee's staff. There are those who say that the APA is suited for appeals before the regulatory agencies with formal and adversary hearings, but not for the type of hearings conducted by beneficiary agencies such as SSA. We are not impressed by the niceties of legal theory used to justify such a view. It is inconceivable that, at a time when the whole image and integrity of government is in some doubt, Congress would say or permit that corporations may get due process before an independent judge, but the individual citizen may not get such fair plan, but should be relegated to some other process of unknown independence and integrity. For most individual citizens, contact with the federal, judicial system is in hearings such as these, not in the courts. Their view of government and the fairness of its judicial process will be shaped by their contact with it. The APA is the only system, extant in government today, which can ensure a hearing officer with complete independence of judgment and decision-making, to give both the appearance and substance of a fair, due process hearing. The fact that there are different, agency-type hearings, does not affect the appointment of an independent ALJ for Social Security hearings. All hearings and hearing officers should be under the APA, and legislation is needed to specifically and clearly spell this out, and settle the matter once and for all. SSI HEARING EXAMINERS SHOULD BE MADE PERMANENT ADMINISTRATIVE LAW JUDGES NOW The current corps of SSI hearing examiners is uniquely ready, prepared and qualified to fill the need for 150 new ALJ's now. There are approximately 125 on duty now. Most of them do not carry a full work load because they cannot hear Title II cases. Within 24 hours after enactment of legislation, they could be at work attacking the backlog. They are already settled into permanent locations, with existing office space, equipment and staff. SSI Examiners have already demonstrated their capacity to fill Administrative Law Judge positions, based upon merit and competitive examination among candidates. The quality and level of experience required in the examinations for SSI Hearing Examiner is identical to that required for Administrative Law Judges. The only difference is that the SSI Hearing Examiner examination requires a slightly shorter period of recency (time) of qualifying experience. SSI Hearing Examiners have demonstrated their capacity and qualifications to be Administrative Law Judges by the work they are presently doing. Substantially all SSI hearings involve disability determinations, made under provisions of law and regulations identical to Title II disability cases. Actually, 'SSI cases are more complex and difficult than Title II cases. They may involve additional income and resource issues. Determining extent of impairments and vocational capabilities of SSI claimants is in itself more difficult, because they generally do not have the level of history of employment experience of Title II claimants. In short, these people are absolutely qualified to be Administrative Law Judges. The current, anomolous Grade 13 of SSI HE's is a part of the whole erroneous process of the Civil Service Commission in failing to recognize both the Congressional intent and the equal level of work required of SSI as compared to Title II hearings, and this unfair and unreasonable circumstance would also be corrected by such legislation. The current SSI HE's are highly qualified lawyers, who gave up positions and careers to assure their new careers in permanent duty stations assented to by them. They should be protected in that choice, not subject to assignment to new duty stations. They are needed everywhere. Any gaps can be filled in by continued appointment of new ALJ's which will still be needed to fill vacancies as they occur. Attempting to obtain enough new ALJ's now is apparently impossible. BHA planned to appoint a new class of 75 ALJ's in June, 1975. After going through the certificate of eligibles, provided by the CSC, only a class of 43 was obtained. In addition, every such new ALJ must be given time to clean up his private affairs and practice, go through a six week training course, and be set up in new office space with new staff, equipment, etc., acquired. He must also learn on the job and develop the proficiency to handle a full case load. Thus, there is a delay of six months to a year before a brand new ALJ is fully performing. This procedure is simply wasteful, inefficient, and time-delaying, while the backlog builds and 125 qualified SSI HE's are ready to work now. Finally, we note that various plans for "Temporary ALJ's", such as H.R. 8911, undermine the integrity and independence of the hearing process. Temporary ALJ's are subject to ongoing supervision, rating, etc., of the Secretary, and, most important, remain temporary until appointed by the Secretary from a CSC register. This is actual destruction of the whole concept of a hearing officer independent of the agency for which he works. And how do you justify, to a claimant, the fact that he got a temporary, non-APA "judge" while another got a regular "judge," and satisfy that claimant he got a fair hearing. Both in form and substance, any such plan is unwise, lacks guarantee of due process, and is unnecessary in view of all the circumstances. RECOMMENDATIONS We recommend that legislation be enacted, as speedily as possible, as follows: 1. Section 1631(d) (2) of the Social Security Act be amended to provide that: A. The secretary shall hereafter appoint administrative law judges to conduct such hearings in accordance with Section 3105, Title V, U.S. Code. B. Hearing Examiners, heretofore appointed by the Secretary under this section, shall be deemed to have been appointed as administrative law judge under Section 3105, for the duty station where they now serve, and shall hold the same grade, title, and position as administrative law judges heretofore and hereafter appointed. 2. Section 205(b) and Section 1631 (c) (1) of the Social Security Act be amended to provide that such hearings shall be conducted subject to and under the Administrative Procedures Act, Title V, U.S. Code. In summary, it would appear that the needs of both BHA and Social Security claimants will be best met by adoption of the foregoing legislation. Mr. BURKE. Thank you. We just got another rollcall. We will be right back and then we will hear Mr. Reed. Mr. STEIGER. Mr. Chairman, can I ask unanimous consent to submit some questions to this panel, and have the answers in the record? Mr. BURKE. Is there any objection? I hear no objection. So ordered. Mr. STEIGER. May I also ask one other thing of our former colleague, Judge Watson. You have just heard an eloquent plea by those now serving as hearing examiners. Can you give me any single understandable, rational, logical reason why this committee and the Congress ought not to make the hearing examiners ALJ's and end the controversy? Mr. WATSON. I think the argument that I give will be that it is logical and reasonable, and I will add one further thing. It is certainly in line with the protection of the Administrative Procedure Act. As I stated initially, if Congress wishes at this time, or permanently, to exclude us from the act, and they can do so, they can make the exception. I well realize that. That is why I told some of my colleagues not to get too deeply involved in the legal aspects, because Congress, if they don't like the law, will change the law. The thing is that you have decided that the law is going to be the APA proceeding, and we all agree with that, and I concur in that. The heart of the APA proceeding, and Congress has repeatedly said that, is a totally independent APA judge, and I have said earlier that we want more ALJ's We don't want them making exclusions for us. These gentlemen and I have been urging here Mr. STEIGER. Albert, be careful. On what basis are you going to say that the hearing examiner becomes an ALJ? Mr. WATSON. The basic thing is a matter of the qualifications. Mr. WATSON. He referred to Mr. Wilson Mathews as a man who was totally independent in this, quoting him, I believe, and he has done a remarkable job in following this hearing examiner program in setting up the qualifications. But I think the basic thing we have to wrestle with is, Do you believe the independent qualifying agency-to wit, the Civil Service Commission-is in order? I will state that I think it is. I think we should make the exception and, of course, Congress has that right, but I think it is very essential. These gentlemen presently are subject to performance ratings, and I happen to think there is no such thing when you look at independent decisions. It is like pregnancy. You can't be a little bit pregnant. You are either independent or you are not. Mr. STEIGER. I will tell you frankly that it fails for a logical reason to respond to the question. As I told Judge Grossman and Judge Silbert when I saw them in my office, it is inconceivable that this committee should spend its time worrying about GS ratings. The 3 years' difference in the practice of law just leaves me absolutely cold. So I will ask you to go back and rethink and see if you can come up with a more reasonable answer as to why we should adopt his suggestion, and I will be more than happy to listen to it. Mr. WATSON. All right. I will try again. I think that we must both agree that if you conclude immediately that that is the reasonable and logical answer, then any response that I might make that does not fit into that particular conclusion would not be necessarily construed as reasonable by the gentleman who asked the question, and I am now talking in riddles, and we understand one another, and you say you have a very strong feeling on that, and you have expressed it there, and I understand that, and I respect your feeling, but the point I am trying to make here is that we understand these gentlemen want to move up. We understand administratively speaking that Mr. STEIGER. Your bill raises you from a GS-15 to a GS-16 overnight. Mr. WATSON. Is is one basic thing. That is the procedure whereby we are qualified to be the ALJ's under the Administrative Procedures Act. Mr. STEIGER. But the 7 years' experience requirement is the key, is that not the fact? Mr. WATSON. And written and oral examination, yes, sir. Mr. STEIGER. But are they not the same? Does the hearing examiner system leave out the kind of experience and background requirement that you had to meet? Mr. WATSON. No. I understand from Mr. Mathews that he stated that the experience was not as much as ours. It was 4 years' experience, I believe. Mr. KROSS. Four for GS-13. Mr. WATSON. Many of you are 14's. Mr. KROSS. By the way, Mr. Chairman, 92 of the current hearing examiners have only had 7 years of experience, including SSI experience as of September 31, 1975. Mr. WATSON. The basic question you have to decide is whether you want the Civil Service Commission to continue with its procedures. I happen to think it is a good thing. I didn't ask for an exception, and I see none, and I am sure that these other gentlemen-frankly, when he mentioned he was on the 15 or 16 register, I am sure a gentleman of your perception would say, "Why aren't you a regular ALJ now?" The gentleman who was speaking in behalf of the hearing examiners. I don't believe if I am on the 14 and 15 register that I would be a 1, or whatever. I don't want you to feel it is an interassociational squabble. Mr. BURKE. Would you explain to me what are the qualifications to be a member of the Supreme Court? Mr. WATSON. You have made a cogent observation, and we won't get into that. Mr. BURKE. Are there restrictions outside of being confirmed by the Senate and having known a President, and being a lawyer. Mr. WATSON. The qualifications for hearing examiners, black lung judges, and regular ALJ's may be a little more stringent than those of the court. I am not faulting anybody else. As I said earlier, we are looking for an orderly solution to this problem, but if you want to grandfather them in, I say this: I believe Mr. Fauver, who heads up the Federal administrative judge conference might address this question. Mr. Keatinge who was here earlier testified on the APA he made reference that there are a good many lawyers out in the respective districts, who, because of the economy and other reasons might like to come in and compete for appointment under the Civil Service Commission qualifications. If Congress wishes to exclude them, they may do so, but that is a decision you will have to make. Mr. STEIGER. I apologize for getting off on that. Mr. BURKE. Are you going to submit your questions? Mr. STEIGER. I will. Mr. BURKE. We will recognize Mr. Reed now. He has been very patient. STATEMENT OF JACK R. REED Mr. REED. Thank you, Mr. Chairman. On behalf of the approximately 100 black lung administrative law judges in the SSA I wish to extend my thanks to the members of the committee and the staff for the opportunity to appear before you today 59-762 O-75-12 and to present our views on a matter that is of serious concern not only to the administration and to every Member of the Congress and, more significantly, to the public generally. We have filed a written statement that sets forth the views of our association. At this time, I do not propose to take up the committee's time by reading that statement to you in detail. However, I would like to discuss briefly what we feel are the most important points. Mr. BURKE. Your entire statement will be placed in the record, without objection. Mr. REED. Thank you, Mr. Chairman. I concur fully with everything Mr. Kross has said, and also the statements that Mr. Wilson Matthews made this morning, and this afternoon. This association submits that the best and most feasible solution to the problem of the hearing backlog is the prompt and efficient utilization of the more than 200 temporary administrative law judges and permanent hearing examiners now employed by the Bureau, in the SSI programs and in the black lung programs. At this time, there are approximately 100 temporary black lung judges. All the black lung judges had to have 6 years of requisite experience to get their GS-14 appointments. Now, everyone of the black lung judges left on the face of this earth have more than 7 years of some experience. No real question is raised as to their qualifications to hear and decide all types of cases before the Social Security Administration. For some time black lung judges have heard and decided claims under the Coal Mine Health and Safety Act, which are similar. Black lung cases involve somewhat more complex issues than do many social security agencies, because of the technicalities of the Federal Coal Mine Safety Act. As a practical matter, all of the 100 black lung judges, 100 or so that we have now, have permanent SSA appointments, and when the black lung program concludes, we will go to work as SSI hearing examiners. Presumably this will be in about 5 months, probably the last of March next year. The black lung judges and the SSI hearing examiners are an untapped resource of the Bureau of Hearings and Appeals. They are a uniquely qualified group with more than 200 trained and qualified individuals with proven abilities to hear issues and decide cases. We are presently functioning within the administrative apparatus of the Bureau, and have staffs and offices and other things that are necessary to function as administrative law judges in the hearing process. Once enabling legislation is passed, minimal additional orientation would be required to place all these individuals in a position to start hearing and deciding the cases, and bring the backlog down to a manageable level. We urge that this Congress enact legislation necessary to enable black lung judges and SSI hearing examiners to hear all kinds of cases before the Social Security Administration, including the remaining black lung cases. Mr. Chairman, I have concluded my remarks. I would be happy to answer any questions that might be raised. [The prepared statement follows:] |